Cuthbert v Coates - [2018] TASSC 7

[2018] TASSC 7

COURT: SUPREME COURT OF TASMANIA

CITATION: Cuthbert v Coates [2018] TASSC 7

PARTIES:  CUTHBERT, James Andrew
  v
  COATES, Daryl (SC)

FILE NO:  1881/2017
DELIVERED ON:  20 February 2018
DELIVERED AT:  Hobart
HEARING DATE:  19 October 2017
JUDGMENT OF:  Brett J

CATCHWORDS:

Traffic Law – Offences – Negligent driving – Particular acts or omissions – Evidence that applicant drove into left hand bend too fast to be able to maintain control of his car – Conclusion that driver was negligent reasonably open to magistrate.

Traffic Act 1925 (Tas), s 32(2B)

Aust Dig Traffic Law [1104]

Traffic Law – Offences – Negligent driving – Other matters – Causing grievous bodily harm by negligent driving – Meaning of grievous bodily harm – Passenger had metal rod attached to spine by pedicle screws from surgery from a previous fracture – Collision resulted in screw in spine breaking, causing metal rod to push into bone – Conclusion that this amounted to grievous bodily harm was reasonably open to magistrate.

Traffic Act 1925 (Tas), s 32(2B)
R v Rhodes (1984) 14 A Crim R 124; R v Overall (1993) 71 A Crim R 170; Tasmania v Gladwin [2016] TASSC 64, cited.
R v Swan [2016] NSWCCA 79; Wick v The Queen [2017] NSWCCA 244, considered.
Aust Dig Traffic Law [1105]

REPRESENTATION:

Counsel:
             Appellant:  G Stevens
             Respondent:  E Avery
Solicitors:
             Appellant:  Steven Chopping
             Respondent:  Director of Public Prosecutions

Judgment Number: [2018] TASSC 7
Number of paragraphs: 42

Serial No 7/2018
File No 1881/2017

JAMES ANDREW CUTHBERT v DARYL COATES SC

REASONS FOR JUDGMENT BRETT J

20 February 2018

On 14 June 2017, Chief Magistrate Geason found the applicant guilty of one count of causing grievous bodily harm by negligent driving, contrary to s 32(2B) of the Traffic Act 1925. The charge arose out of an incident which occurred on 28 October 2015 when a vehicle being driven by the applicant along the Channel Highway left the road and collided with a power pole. It was alleged that the front seat passenger in the vehicle, Shinead Palmer, suffered bodily harm, amounting to grievous bodily harm, as a result of the collision.
The applicant has moved this Court to review the finding of guilt. The grounds of review assert that the Chief Magistrate erred in finding:
(a)that the applicant's driving, which led to the collision and hence the bodily harm, was negligent (ground 2); and
(b)that Ms Palmer suffered grievous bodily harm as a result of the collision (ground 3).
The notice also asserts that the learned magistrate erred in law in dismissing the applicant's submission that he had no case to answer (ground 1). The submission was that the evidence adduced on the prosecution case at hearing was not capable of satisfying a jury, in law, that the injury sustained by Ms Palmer amounted to grievous bodily harm. It is the common position of the parties that that ground, for all practical purposes, is subsumed within ground 3.
The test applicable to a review of a magistrate's findings of fact upon the evidence, pursuant to s 107 of the Justices Act 1959, is not in dispute. That test was succinctly stated by Crawford CJ (with whom Blow and Porter JJ) agreed, in Phillips v Arnold [2009] TASSC 43, 19 Tas R 21:
"A motion to review is not of the nature of an appeal by way of rehearing and the principles of Warren v Coombes (1979) 142 CLR 531 do not apply. On a review of the conclusion of a magistrate based on the evidence, the question is whether upon the evidence the magistrate might, as a reasonable person, have come to the conclusion to which he or she did. Taylor v Armour& Co Pty Ltd [1962] VR 346 at 351; Bedelph v Weedon [1963] Tas SR 69 at 81; Benson v Rogers [1966] Tas SR 97 at 99; Richardson v Shipp [1970] Tas SR 105 at 117."
The reviewing court is not entitled to "weigh the evidence and reach its own conclusions", Kent v Gunns Limited [2009] TASSC 30, 18 Tas R 454 per Porter J. The only question for me is whether the conclusion reached by the magistrate was reasonably open on the evidence.

Negligent driving

It is common ground that the collision occurred shortly after 12 noon on a day on which the weather was fine and the road surface dry. It occurred at a point on the Channel Highway just past the tourist facility known as the Shot Tower. The collision occurred because the applicant's vehicle left the roadway as it was negotiating a bend in the road. There is no suggestion of the involvement of any other vehicle.
The evidence was that immediately before the location of the collision there were two bends in the road, the first to the left and the second to the right. The speed limit was 60 km/h, although it was common ground that before reaching the bends, the applicant would have passed a speed advisory sign recommending a speed of 25 km/h. Although there was some dispute as to the precise location of the sign, the magistrate proceeded on the basis of the applicant's version, which was that the sign was at least one kilometre prior to the first bend in the road.
The Chief Magistrate was satisfied that the applicant was negligent because "he took this particular corner too fast to be able to maintain control of his car". The corner in question, as determined by her Honour, was the first left hand bend. Her Honour was satisfied that by failing to slow down, and driving too fast into the bend, the applicant was "not exercising a degree of care that an ordinary prudent driver would deem necessary when negotiating this particular left hand corner".
The applicant's counsel, Mr Stevens, asserts that this finding was not open to the Chief Magistrate. In particular, he asserts that her Honour was not in a position to exclude as a reasonable explanation for the vehicle leaving the roadway, the applicant's explanation that he had unexpectedly driven over a dip and/or gravel on the road, and that this had caused him to lose control of the vehicle. He asserted this was the case despite the fact that he had slowed down for the bends and was driving at a prudent speed. He asserted that the loss of control had occurred after he had successfully negotiated the left hand bend and was travelling through the gentler right hand curve.
The prosecution adduced evidence from three witnesses. Ms Palmer's evidence was that the applicant had collected her from her home in Hobart for the purpose of a journey to Kingston Beach. She had not travelled along the Channel Highway before and had not yet acquired her driver's licence. She said that early in the journey, she had remonstrated with the applicant concerning his driving, in particular when he had "put his foot down a little bit too much" as they left an intersection on a green light. She also said that as they travelled along the Channel Highway, prior to the collision, they had followed another vehicle for some distance and she had felt relieved because it meant that the applicant "wasn't able to go any faster around the corners as I kind of felt like he would have wanted to …".
In relation to the actual collision, she remembered "the rev of the engine" and that she "thought that we would be going too fast for the corner coming up". She estimated the speed of the vehicle at that time as "fifty or sixty". She was asked what the car did as it came up to the corner. Her response was:
"The engine revved and then the back end slipped, like lost traction, and then he – the driver tried to correct the car, which wasn't possible, so the back of the car swung out a few times back and forth until we eventually hit the power pole."
She said that this loss of control occurred as the vehicle came up to a "corner to the right".
In cross-examination, Ms Palmer disputed an assertion that she had not complained to the applicant subsequently concerning his manner of driving prior to the collision. She also rejected an assertion that there was gravel on the road in the area of the collision, although conceded that she was not able to say anything about the presence of gravel elsewhere on the road.
Mr Peter Jones is the proprietor of the Shot Tower. He was outside the souvenir shop when he "heard from Hobart a car travelling … coming up the road, had a loud exhaust and it kept accelerating, so it got my attention". He said that the Channel Highway was approximately 15 metres from where he was standing and he had a view which was "absolutely clear, there was nothing in between myself and the Channel Highway". He saw the car travel past, but only through what he described as "a brief window of when the car actually comes past" because his view earlier was blocked by a building. He said he "Just saw the car speed past." He estimated that it was travelling between 60 and 70 km/h. As the vehicle entered the first left hand bend, he saw the driver's rear side fishtail out across the road onto the other side of the road, and then it fishtailed to the passenger side. He then lost sight of the vehicle but continued to hear the screech of tyres and a loud crash. He described the driver as having "lost control" and the bends as being "very sharp". In cross-examination, Mr Jones disputed there was a gravel verge at the point where the vehicle started to fishtail. However, he did agree that "in the middle of those corners … Actually there's quite a tricky bump …" at a point that he showed to the magistrate. He said "It catches a lot of cars out and it actually kicks up their back wheel."
Michael Larcombe gave evidence that at the time of the collision, he was sitting on the deck of his home, which is approximately 500 metres, as the "crow flies", from the Shot Tower. He heard a car "apparently out of control, spinning its tyres". He could not see the vehicle but he said that "There was a period of time, maybe three seconds, where I could hear the car was accelerating, de-accelerating, spinning its wheels and then there was a large crash." In cross-examination, he was asked whether he could distinguish between the sound of the tyres spinning or skidding. He responded by describing his experience of "ten years in motorsport" and having his own race cars and having attended many international events. He asserted that he was able to recognise the sound of a car when it is accelerating and spinning its wheels as opposed to being in a slide. His opinion "was that the car was entering a corner, accelerating, spinning the wheels, perhaps sliding … The engine pitch was very high and far higher than what we would normally experience in the area."
The applicant gave evidence that he approached a "left hand sharp corner" which is followed by a more gradual right hand bend. As he approached the first corner he "slowed down to at least anywhere between thirty and forty kilometres because it is quite a sharp corner to travel around". He then proceeded to gain speed in a long sweeping right hand corner and then described the collision as follows:
"There was a bit of a dip in the road and I'm not sure if there was gravel on it, I think there was, which caused the car to slide out, then me immediately jumping off the accelerator and putting my foot on the brakes caused the car to slingshot to the left hand side of the road, causing us to come into a collision with a power pole."
His evidence was that he believed that he was travelling at between 50 and 60 km/h when he went through the dip in the road. The applicant disputed that Ms Palmer had remonstrated with him earlier concerning his speed, and that she had subsequently complained to him concerning his manner of driving.
The applicant accepted that he had passed a speed advisory sign approximately one kilometre before the Shot Tower, recommending a speed of 25 km/h. He asserted that this sign related to "a completely separate set of corners".
The learned Chief Magistrate accepted that the evidence of Ms Palmer was consistent with the evidence of Mr Jones and Mr Larcombe. Their evidence, taken together, satisfied her that the applicant had taken "a left hand bend too quickly" resulting in the car "fishtailing and crashing into the power pole". She rejected the applicant's evidence that he had been driving at 30 to 40 km/h and "lost control because the car hit some gravel on the verge".
Mr Stevens submitted that the magistrate's finding that the applicant had taken the first left hand bend too quickly was not supported by the testimony of the prosecution witnesses, and that the evidence of those witnesses tended to support the applicant's assertion that he had lost control after successfully and safely negotiating the left hand bend, as he accelerated into the sweeping right hand curve. Accordingly, the evidence of the prosecution witnesses is said to support the applicant's explanation that he lost control, not because of his speed, but because of the road conditions. It is true that in her evidence, Ms Palmer said that the vehicle lost control as it came to a "corner to the right". However, nothing else about the evidence of these witnesses supported the applicant's version. Ms Palmer said nothing about the applicant having safely negotiated a left hand bend before losing control on a sweeping right hand curve. The impression one gains from her evidence is that she was describing the car approaching the first bend at speed and then losing control. Whether that bend was to the left or to the right reduces in significance when considered in the context of her overall evidence. Mr Jones, an independent witness, gave explicit testimony of hearing the vehicle accelerate towards his location and then seeing it travel past at speed. He then saw it commence to fishtail as it "hit the first left hand bend". As already noted, the evidence of Mr Larcombe also supported the conclusion that the vehicle accelerated before losing control. The independence and credibility of Mr Jones and Mr Larcombe was not challenged. The Chief Magistrate was entitled to accept their testimony, and this evidence was consistent with the testimony of Ms Palmer. Taken together, the evidence of the three witnesses provided strong support for the conclusion reached by the Chief Magistrate. It should also be noted that her Honour had the benefit of a view of the relevant area.
Further, the explanation provided by the applicant was not necessarily exculpatory or inconsistent with the prosecution case. His explanation for the vehicle leaving the roadway was that he had lost control because his vehicle had come across particular road conditions, namely loose gravel and/or a "dip in the road". The only reasonable inference available from his explanation was that although he asserted having slowed the vehicle before entering the first bend, that this was to a speed which he considered appropriate given a smooth roadway without the unexpected features. If that were the case, then the implication is that the unexpected nature of those features, combined with his speed, had caused the vehicle to fishtail and eventually leave the roadway. However, the degree of care expected of an ordinary prudent driver would require the driver to drive to conditions and to anticipate reasonably foreseeable risks arising from the condition of the roadway. This would be particularly so given the fact that the applicant was negotiating sharp bends. Accordingly, even if there was a reasonable possibility that road conditions may have played a part in causing the applicant to lose control of the vehicle, that loss of control was not inconsistent with the magistrate's conclusion that he had travelled into the bends at an unsafe speed.
Her Honour was not required to find culpable negligence, but rather negligence according to the civil standard, that is a breach of the standard of care that would be expected of the ordinary prudent driver: Robertson v Watts (1964) 14 Tas R 18; Filz v Knox [2002] TASSC 82; Charnock v Tasmania Police [2013] TASSC 64. The conclusion that the applicant's driving, which caused the collision and hence the injury to Ms Palmer, resulted from driving which fell below that standard, was reasonably open to the Chief Magistrate on the evidence. Accordingly, there is no merit in this ground of appeal.

Grievous bodily harm

The impact of the collision caused Ms Palmer to be thrown forward against her seatbelt. Her evidence was that she had immediate pain in her lower back. She was taken by paramedics to the Royal Hobart Hospital where she remained for two days. She continued to experience pain and underwent radiological examination. The pain continued after discharge. She eventually consulted a neurosurgeon, Mr Thani, who recommended surgery. The ongoing pain impacted on her capacity to perform day to day household tasks, and she was initially unable to return to work. She gradually improved after the surgery. She estimates that it took two months to get back to a normal level of function.
Mr Thani's evidence was that Ms Palmer had previously had a spinal fracture which had been repaired by surgery. This surgery had included the insertion of a metal rod which was attached to the lumbar spine by the insertion of five pedicle screws. The purpose of the rod was to hold the spine in place until the fracture healed, and the bone had "become a single unit". This healing process had been completed well before the collision on 28 October 2015. Mr Thani gave evidence that the rod and screws could have been removed by surgery prior to that time, but as there would have been no benefit in doing so, this had not taken place. His opinion was the force of the collision had caused one of the pedicle screws to fracture. The effect of this was to destabilise the rod, with the result that body movement pushed the rod into the bone, thereby causing pain. He had recommended surgery to remove the unstable metal. The reason for this recommendation was that the pain would be ongoing and was unmanageable in the sense that "she didn't think that her pain level was controlled enough for her to get back to her occupation and get back to her life in general".
Mr Thani's evidence was that the surgery involved an incision in the back of the spine, dissection of the muscles off the metalware and removal of that metalware. Metal that was already buried in the bone and not unstable was left in place. His expectation was six to eight weeks of recovery time, together with ongoing physiotherapy in order to build up muscle strength.
In cross-examination, Mr Thani confirmed his opinion that the broken screw was indeed a part of the spine. When it was put to him that the pain Ms Palmer was experiencing was the original fracture to the spine and not any injury caused by the collision in question, he responded, "incorrect".
There was no significant challenge to the evidence of Ms Palmer and Mr Thani. However, at the hearing before the Chief Magistrate, defence counsel argued that the fracture of the pedicle screw did not amount to a bodily injury, and further that any pain experienced by Ms Palmer arose not from the collision but from the prior injury. Counsel further argued that the subjective experience of pain is not relevant to the assessment of whether bodily harm amounts to grievous bodily harm, but rather that determination depends on an assessment of the severity of the injury itself. Because the only injury, if pain is disregarded, was to an artificial component, this cannot amount to grievous bodily harm.
Counsel repeated those arguments on the hearing of the motion to review.
The Chief Magistrate was satisfied that the fracture of the pedicle screw amounted to bodily harm. She was satisfied that the screw was part of the spine, and that its fracture had caused constant and unmanageable pain. In assessing whether that injury amounted to grievous bodily harm, her Honour applied the test confirmed in R v Perks (1986) 41 SASR 335 in which the Full Court of the South Australian Supreme Court held that the proper direction to be given to a jury in relation to the term "grievous bodily harm" is that the bodily harm must amount to "really serious bodily harm".

Applying this test, her Honour was satisfied that the injury suffered in the collision amounted to grievous bodily harm. In arriving at this conclusion, her Honour took into account the following circumstances:
"(a)Ms Palmer was taken to hospital and admitted for two days while tests and x-rays were conducted in relation to the pain she was suffering.
(b)Her pain was to her back and in the first couple of weeks after the accident she was not able to perform daily tasks such as washing, cleaning, cooking, shaving her legs, brushing her hair or putting on socks.
(c)Ms Palmer was unable to return to her employment as a barista.
(d)Ms palmer had pain upon standing straight, bending backwards, lying down, sitting down and the pain was constant and unmanageable.
(e)To alleviate the pain, surgery was required to remove the fractured part of the pedicle screw. Without the surgery, Ms Palmer would have continued to have constant and unmanageable pain.
(f)The surgery required three days in hospital and a three-month recovery period."
As her Honour correctly noted, the term "grievous bodily harm" is not defined in the Traffic Act. There is no statutory provision that would incorporate into that Act, the definition of that term as it appears in the Criminal Code. Accordingly, the Chief Magistrate was required to turn, as she did, to the common law to give meaning to the term. Her Honour applied the proper common law test, that set down in R v Perks (above), of "really serious bodily harm". As I noted in Tasmania v Gladwin [2016] TASSC 64, Perks was cited with approval by the High Court in Wilson v The Queen (1992) 174 CLR 313 at 333, and also by a number of subsequent decisions of intermediate courts of appeal. It has been held that the definition is not restricted to injuries of a life-threatening nature: R v Griffiths[1999] SASC 70 (SA CCA).
The first question for her Honour under this test was whether the fracture of the pedicle screw and the consequent pain amounted to bodily harm. Again this term is not defined in the Justices Act (nor indeed in the Code), and resort must be had to the common law. As I also noted in Tasmania v Gladwin, bodily harm has historically in Tasmania been defined according to the meaning established in R v Donovan [1934] All ER 207 as:
"Any hurt or injury calculated to interfere with health or comfort. Such hurt or injury need not be permanent but must, no doubt, be more than mere transient or trifling."
The evidence was that metal which had been attached to Ms Palmer's spine for therapeutic purposes, and left inside her body as part of the spine, had been fractured as a result of the collision and was creating painful pressure on her spine. It is impossible to regard this as anything other than a "hurt or injury calculated to interfere with health or comfort". The provenance of the metal was, in my view, irrelevant. Although it had been introduced into her body, and not developed as part of a natural process, it had clearly become part of her body and the damage caused to it during the collision meant that without surgery it would continue to interfere with health and comfort. The magistrate correctly concluded that this amounted to bodily harm. Indeed, it was the only conclusion reasonably available on the evidence.
In accordance with the Perks test, her Honour was then required to consider whether the bodily harm amounted to "really serious bodily harm". Mr Stevens submits that her Honour's conclusion that the harm was "really serious" was not reasonably open to her. Counsel relied on the comments of Garling J in R v Swan [2016] NSWCCA 79, in which his Honour considered whether an injury which involved a fracture to a bone which was part of a lumbar vertebra amounted to grievous bodily harm. His Honour accepted that such injury was capable of amounting to grievous bodily harm, but held that that conclusion was not open to the jury in the circumstances of the case. His Honour commented that in the assessment of whether an injury amounts to grievous bodily harm, a court should ignore "individual subjective characteristics and features", including the person's subjective experience of pain. His Honour noted that it would be incongruous if differential pain thresholds or natural fortitude caused the same injury to be regarded as grievous bodily harm in one case and not such in another. Accordingly, Mr Stevens argues, as the damaged screw in this case caused only pain, it could not be regarded as grievous bodily harm, as Ms Palmer's experience of pain ought be disregarded.
This submission is premised on a misunderstanding of the effect of Garling J's comments. His Honour, in fact, quoted with approval the comments of Mahoney JA (with whom Allen J agreed) in R v Overall (1993) 71 A Crim R 170, as follows:
"The difference between actual bodily harm and grievous bodily harm is ... one of degree. Actual bodily harm if 'really serious' (cf DPP v Smith at 335; 291) may constitute grievous bodily harm. Each is 'harm' but the one is more serious than the other."
By definition, bodily harm means harm or injury which has the effect of interfering with health or comfort. It must follow that a relevant factor in assessing the question of whether an injury amounts to bodily harm is to assess whether it is capable of producing pain and hence interfering with comfort. As the difference between bodily harm and grievous bodily harm is a question of degree, a relevant factor in the assessment of grievous bodily harm must be the extent to which the injury is capable of interfering with comfort, including by causation of pain. Accordingly, the experience of the person concerned with respect to the experience of pain is clearly a relevant factor in assessing whether or not the injury amounts to grievous bodily harm.
The point being made by Garling J was that while the capacity of the injury to produce pain is relevant, the question of whether the injury amounts to grievous bodily harm should not be determined solely by reference to the subjective experience of pain by the person concerned and its personal, social or economic consequences. It is one factor only and must be considered in combination with all other relevant factors in determining whether the injury itself can be said to amount to grievous bodily harm. A subjective experience of pain at a higher degree than would otherwise be warranted will not elevate an injury, which is not itself grievous bodily harm, into that category.
In this case, the factors relied upon by her Honour were clearly relevant to the assessment of whether the bodily harm was grievous. These factors were distinguishable from the factual situation with which the New South Wales Court of Criminal Appeal was dealing in Swan. In that case, the spinal fracture was undisplaced, required no operative or other treatment, including ongoing medical consultation, was not permanent and was described by the doctor as a "minor" injury. In Ms Palmer's case, the injury was capable of producing significant pain, and this was consistent with her actual experience. The magistrate was entitled to conclude that, without surgery, the pain would be permanent and would seriously impact on Ms Palmer's functionality and enjoyment of life. The effects of the injury were only alleviated by significant surgery.
In Wick v The Queen [2017] NSWCCA 244, a differently constituted Court of Criminal Appeal considered Swan in the context of injuries consisting of facial lacerations which had healed, with some surgery, within approximately one year after their infliction. The injuries had involved full thickness suturing and microsurgery to repair nerve damage. The court held that the jury was entitled to find that these injuries constituted grievous bodily harm. It distinguished the injuries from those in Swan which it noted, at [23],"required no surgery or other treatment and caused only pain and restriction in mobility for a few weeks".
As has already been noted the assessment is ultimately a question of fact and degree. It has been held that the definition is properly capable of extending to a wide range of bodily harm. In R v Rhodes (1984) 14 A Crim R 124 (Vic CCA), Brooking J said (at 128):
"Once the jury has been given the usual short definition of grievous bodily harm, it is not the practice, and would indeed be unwise (Smith [1961] AC 290 at 335) to attempt a more elaborate exposition of the meaning of that phrase. The law gives only very general assistance to juries in this regard. While some injuries are manifestly too slight and some injuries clearly sufficient to answer the legal test, there remains an infinite variety of situations in which a jury might reasonably take either view."
The matters relied upon by her Honour in arriving at her conclusion were relevant to the assessment. In my view, the conclusion which her Honour reached was open to her as a reasonable person. It follows that this ground of appeal must be rejected.

Conclusion

As all of the grounds are without merit, the motion does not succeed, and is dismissed.