Daly v The Crown

[2009] NSWDC 292

CITATION:	Daly v The Crown [2009] NSWDC 292
HEARING DATE(S):	9-10 November 2009
JUDGMENT DATE:	10 November 2009
JURISDICTION:	Crime
JUDGMENT OF:	Murrell SC DCJ
CATCHWORDS:	CRIMINAL LAW - driving offence - negligent driving occassioning grievous bodily harm - appeal against conviction
LEGISLATION CITED:	Road Transport (Safety and Traffic Management) Act 1999
CASES CITED:	DPP v Yep [2008] NSWSC 953 Simpson v Peat [1952] 2 QB 24
PARTIES:	John Kenneth Daly (Appellant) The Crown (Respondent)
FILE NUMBER(S):	2009/10627
COUNSEL:	Mr S Wilkinson for the Appellant
SOLICITORS:	Ms C Dodd for the Respondent

1 At the Sutherland Local Court, the appellant was convicted of the offence of negligent driving occasioning grievous bodily harm contrary to s 42 (1) (b) of the Road Transport (Safety and Traffic Management) Act 1999. The appellant appealed.

The Accident

2 At 2:40 p.m. on Sunday 28 October 2007, the appellant was driving his white station wagon out of the driveway of a unit block in Elouera Road, Cronulla. He visited the units frequently and was familiar with the surrounding traffic conditions. Elouera Road runs north/south. As he exited the driveway, the appellant’s vehicle was facing east. The appellant intended to cross the northbound lane of Elouera Road and turn right into the southbound lane. The traffic was moderate. The appellant stopped his vehicle in the gutter and waited for the traffic to clear. The driveway was about 95 m north of the intersection of Elouera Road and the Kingsway. The North Cronulla Hotel was located between the Kingsway and the unit driveway. Parked vehicles obstructed the appellant's view to the right, towards the Kingsway. When he thought that the northbound lane was clear, he proceeded to move across it.

3 The intersection of Elouera Road and the Kingsway was controlled by traffic lights. When the lights turned green, a motorbike was the first vehicle through the lights. It turned left (north) into Elouera Road, passed the driveway to the North Cronulla Hotel, and accelerated "moderately harshly" to reach a speed in excess of the 50 km per hour speed limit.

4 When his vehicle was well into the northbound lane, the appellant saw the motorbike proceeding towards his vehicle at speed. The motorbike was 25 to 30 m away. The motorbike braked. When it was about 20 m from the appellant's vehicle, the motorbike skidded. It collided with a point on the appellant's vehicle that was about two thirds of the way between the front and rear of the driver's door.

5 The motorbike rider sustained a complete C5 spinal cord injury resulting in tetraplegia and associated disabilities.

The Issues

6 The issues before the Local Court and on appeal were:

1.The speed of the motorbike.
2. Whether the appellant negligently failed to keep a proper lookout.
3. Whether the injuries sustained by the motorbike rider may have been attributable to the excessive speed at which he was riding rather than to the appellant’s negligence.

The Speed of the Motorbike

7 Except to the extent that it may have impacted upon the appellant’s conduct and the assessment of whether his conduct was negligent, in these proceedings the Court is not concerned to identify fault on the part of the motorbike rider. Although the nexus was not clearly articulated, the appellant did assert that the speed of the motorbike affected an assessment of whether the appellant's conduct was negligent.

8 Mr Reeves, an off-duty police officer who was crossing Elouera Road at the Kingsway at the time of the accident, estimated that the motorbike accelerated to a speed between 60 and 70 kph. Mr Moullet, an eyewitness with eight years experience as a motorbike rider, estimated the speed at between 50 and 70 kph. Mr Barsch, who witnessed the incident from the North Cronulla Hotel, estimated the speed at 70 to 80 kph. Mr Lennon, an expert called by the prosecution (over objection to his qualifications) used North Cronulla Hotel CCTV footage to calculate that, when it was approximately 75 m north of the appellant, the motorbike may have been travelling at 64 kph. I infer that the motorbike may have accelerated past that point.

9 Mr Sculthorpe, the expert called by the appellant, opined that the motorbike was travelling at 92 kph when the motorbike rider applied the brakes and that it was travelling at 82 kph on impact. As noted by the Local Court (para 58 of the reasons for decision), Mr Sculthorpe's opinion was based on a conclusion that the appellant's vehicle moved sideways on impact. That conclusion depended on the interpretation of marks on the road as depicted in photographs, and battery acid marks that Mr Sculthorpe observed on the roadway in December 2008. Mr Sculthorpe did not inspect the appellant’s vehicle and was therefore unable to give reliable evidence about the aetiology of battery acid leakage from the vehicle. I agree with the Local Court that an opinion based on such matters is unreliable.

10 I accept the evidence of Mr Reeves that the motorbike was travelling at up to about 70 kph, well in excess of the speed limit of 50 kph. Mr Reeves was an experienced police officer. His evidence was consistent with that of other eyewitnesses and Mr Lennon.

11 Had the motorbike travelled at an average speed of 60 - 70 kph over the 95 m from the corner to the point of impact, it would have covered the distance in 5 – 6 seconds (at 16 to 19 m per second). Even an average speed of 90 kph (very fast, as the motorbike had been stationary at the traffic lights and braked before impact), it would have taken 3.6 seconds to travel from the corner to the point of impact (at 25 m per second).

The Appellant’s Negligence

12 The issue is whether the appellant exercised that degree of care which the ordinary prudent driver would have exercised in all the circumstances, including the circumstances set out in s 42 (3): DPP v Yeo [2008] NSWSC 953, approving Simpson v Peat [1952] 2 QB 24.

13 Section 42 (3) provides:

"42 (3) In considering whether an offence has been committed under this section, the court is to have regard to all the circumstances of the case, including the following:
(a) the nature, condition and use of the road or road related area on which the offence is alleged to have been committed,
(b) the amount of traffic that actually is at the time, or which might reasonably be expected to be, on the road or road related area.”

14 At the time of the accident, it was a sunny Sunday afternoon. Elouera Road was in apparently good condition. The traffic volume was substantial or “busy”. On the western side of Elouera Road, to the appellant's right and between his vehicle and the Kingsway, were three parked cars, then the driveway servicing the North Cronulla Hotel car park. There were three or four large palm trees with thick trunks and several other trees (see the photographs and Exhibit 10).

15 In evidence, the appellant said that he had a “clear line of sight up to the traffic lights" and had "made sure" that the northbound lane was clear before he drove into the lane. He said that, when the front wheels of his vehicle were in the gutter, he had a clear view through the windows of the parked cars. More realistically, in an electronically recorded interview, the appellant said that his view was "filtered" and that obstruction by parked cars had "always been an issue" when exiting the driveway to the units.

16 Although incomplete, the CCTV footage recorded by two cameras at the North Cronulla Hotel provided useful information as to the timing of events. A master control ensured synchronisation of the times on each of the two cameras. In para 6, figure 1 of its reasons, the Local Court set out a helpful summary of the camera - recorded events, which is partially reproduced and supplemented by comments below.

Time	Driveway camera Camera 1 (facing north)	Street view Camera 9 (facing south)
14.40.39	4WD approaches appellant’s car	Motorbike in view, has turned the corner into Elouera Road
14.40.40	As above	Motorbike moves fully into the north bound lane, approximately 20m from intersection, about 75m from the appellant
14.40.41	4WD passes in front of appellant’s car in northbound lane. No other northbound vehicles visible.	Motorbike passes the 2nd palm tree (approx 75m from the appellant) and nears the 2nd no stopping sign (68m from appellant), travelling near the median strip.
14.40.42	Appellant starts to move forward into northbound lane, view of oncoming traffic improved but still obstructed by parked cars.	Motorbike no longer in camera view (ie less than 68m from appellant)
14.40.43	Appellant’s bonnet moves just beyond the line of parked cars, improved view of oncoming traffic.	As above
4 second gap	[collision occurs – not recorded]
14.40.47	Collision has occurred, the motorbike is under the front of the car and appellant starts to open driver’s door. Front of appellant’s bonnet is at painted median strip.

17 Having regard to the CCTV evidence, I find that, at 14.40.41, a 4-wheel drive vehicle passed in front of the appellant's car, leaving the northbound lane clear apart from the motorbike. The appellant checked for oncoming traffic, but did not see the motorbike because his view was obstructed by parked vehicles. At that point, the motorbike was approximately 70 m (3.6 seconds at 70kph, 2.8 seconds at 90 kph) from the appellant's vehicle. At 14.40.42, the appellant nudged his vehicle forward.

18 At 14.40.43 the appellant’s bonnet moved just beyond the line of parked cars, affording a better - but not entirely clear - view of oncoming northbound traffic. Had the appellant's vehicle remained in that position or moved slightly forward to check for northbound traffic, there would have been ample opportunity for the motorbike to pass. However, the appellant moved his vehicle forward so that the front of the bonnet was at or very near the painted median strip, entirely blocking the northbound lane. When the appellant and the motorbike rider saw each other, the distance between their vehicles was only 25 to 30 m (at most, two seconds of travel time for the motorbike). The appellant observed that the motorbike "didn't have much hope of stopping before he collided with me" (ERISP, question and answer 9).

19 The appellant's conduct was understandable. He probably had an adequate view of northbound cars and he may have failed to consider the possibility of motorbikes. Given the busy traffic, he may have been anxious to move forward during an apparent break in the traffic. However, a prudent driver would have adverted to the possibility of motorbike traffic and would have appreciated that his or her view of motorbike traffic was obstructed. A prudent driver would have moved forward more slowly, would have observed the oncoming motorbike well before the bonnet of his or her vehicle reached the painted median strip and would have stopped the vehicle to allow the motorbike to pass. The appellant was negligent.

The Cause of the Injuries

20 At least in part, the injuries sustained by the motorbike rider were attributable to the appellant’s negligence. Had the appellant seen the motorbike earlier and halted his vehicle only part way into the northbound lane, the motorbike could have avoided the vehicle, either by proceeding straight ahead or by deviating only slightly to the right.

21 The appeal against conviction is dismissed.