Daniel Terrence Serrao by his tutor Alicia Serrao v Cornelius

[2017] HCATrans 186

[2017] HCATrans 186

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S89 of 2017

B e t w e e n -

DANIEL TERRENCE SERRAO BY HIS TUTOR ALICIA SERRAO

Applicant

and

CLAIRE MYFAWNY CORNELIUS

Respondent

Application for special leave to appeal

BELL J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 SEPTEMBER 2017, AT 11.35 AM

Copyright in the High Court of Australia

MR D.F JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR T.J. BOYD, for the applicant.  (instructed by Herbert Weller Solicitor)

MR P.J. DEAKIN, QC:   If the Court pleases, I appear with my learned friend, MS N.D COMPTON, for the respondent.  (instructed by Hall & Wilcox Lawyers)

BELL J:   Yes, Mr Jackson.

MR JACKSON:   Your Honours, as the Court will have seen from paragraph 7 of our submissions in‑chief at page 153, this is an interests of justice case.

BELL J:   Yes.

MR JACKSON:   May I go to the heart of it?  At the heart of the case lie two propositions ‑ lie two contentions.  The first is that there was no principal basis for setting aside the primary judge’s finding that the applicant was not on the bitumen surface of the road prior to the impact.  The second is that the Court of Appeal’s view that it is not negligent when one’s driving ability is significantly impaired by alcohol to drive partly off the bitumen because of the car coming the other way, does not accord with human experience and should not be accepted.  Your Honours, may I deal with those matters in that order?

As to the first of them, your Honours will have seen that at page 38, paragraph 151 of the primary judge’s reasons, the primary judge accepted the evidence of Mr Gallagher and Mr Schneider.  And your Honours will then see at paragraph 91 in the Court of Appeal at page 102 the Court of Appeal said that whilst his Honour was entitled to accept the evidence of those two persons, it did not entitle him to find that the applicant was not on the bitumen but, rather, that it showed that he was on the bitumen.  Now, your Honours, there was a lot of evidence on the issue but it was, in our submission, clearly open to the judge to make the finding which he did.

May I take a moment to take your Honours to the most relevant passages of the oral evidence of the witness, and I appreciate, your Honours, that is not in the application book, but we have prepared parts of the transcript of the evidence of those two witnesses and have told our learned friends.  Could I give your Honours copies of that?

BELL J:   Yes.

MR JACKSON:   Your Honours, could I just say the first document is exhibit H and your Honours will see where the vehicle came onto the road at points A and B, skidding, you will see, but before that it had been off the road for some 15 to 20 metres, as the judge found.  If I could take your Honours to the oral evidence of those two witnesses, first of all Mr Gallagher, the relevant first passage is at page 53 commencing at letter S and going over to C on the next page.  Gallagher was sitting in the passenger seat of the vehicle, front passenger seat.  Your Honours will see about line – between Sand T ‑ ‑ ‑

EDELMAN J:   Did you say page 53?

MR JACKSON:   Page 53, your Honour, bottom of the page, I am sorry.

EDELMAN J:   Yes, thank you.

MR JACKSON:   And it is letter S going over to C on the next page.  You will see that he said between S and T:

I was looking down and as I looked up, I heard a scream as well from the back as I looked up and then I seen two figures on the road – sorry, not on the road.  They were on the side of the road.

Your Honours will see that goes over to the top of the next page.  And then at page 54, that next page, letters J to P, you will see that he said:

The two figures – one ran off to the left and one ran onto the road towards the middle.

Then, your Honours, that goes down to where he says the same thing, about letter O.  If you go to page 63, letter S through to U, he was asked:

Q.       Right.  So at least at that stage, we know that he is well and truly on the road surface, don’t we?

A.       He’d run towards the road and the car had swerved.  I don’t know if the car was off the road or on the road, but I remember when I got out of the car I was on the gravel ‑

Then, your Honours, finally with his evidence, page 72, letters S to Y, he was asked in re‑examination:

Can you clarify, if you would . . . the second pedestrian, who you’ve referred to as Daniel . . . I think it was at the edge or near the road.  Is that right?

A.        Yeah, that’s correct.

Q.       Doing the best you can . . . are you able to say how far, if any, he was on to the road surface itself?

A.       No, I couldn’t tell you.

Then that is the end of the evidence.  Your Honours, those pieces of evidence demonstrate what the judge was perfectly entitled to say, that he was not on the road surface and, your Honours, Mr Schneider’s evidence ‑ ‑ ‑

BELL J:   Just before you leave Mr Gallagher, the Court of Appeal placed considerable emphasis on Mr Gallagher’s statement made shortly after the event.  Now, that was part of its conduct of the hearing by way of rehearing.

MR JACKSON:   Indeed it was, your Honour, and your Honours will appreciate that that was before the primary judge.  The primary judge heard his evidence and he heard him giving the oral evidence to which I have referred ‑ ‑ ‑

BELL J:   Yes.

MR JACKSON:   ‑ ‑ ‑ and where he was clearly asked the direct questions about these things and he answered them in a way that demonstrated his situation.  Your Honour, could I go then to Mr Schneider’s evidence?

BELL J:   Yes.

MR JACKSON:   Again, if I could do so as briefly as possible.  Page 35, letters Q to T, he said:

I was walking a few metres to the left of the roadway.  At no stage did I go on the road, and at no stage did I see Daniel on the road.

. . . 

He was behind me ‑

Your Honours, page 41, in the passage commencing about letter G and going through to M, you will see around G he said:

We were walking side by side at the start.  When the incident occurred he was a little behind me, yeah, roughly two metres.

He was asked specifically then in letter I:

if you were walking side by side and if he was to your right, then he would have been walking on the road surface.

A.        No.

Your Honours, that goes through to about letter M.  At page 46 – I might say, your Honours, Mr Schneider was a young man who was halfway through his course of becoming a police officer and appears to have been a responsible person because when the car pulled up and Gallagher got out, he thought Gallagher was the driver trying to get away and so he tackled him, and then found out he was not, of course.  But, your Honours, what I was going to say was if you go to page 46, commencing about letter B, you will see he speaks at letter D, says:

I was a few metres to the left.

Q.       Daniel was walking behind you.  Is that right?

A.       At the time the incident occurred because we were walking together‑‑

He said in the next – letter G:

we were walking next to each other.

Letter H:

A.        And then he ended up he was walking behind me, yes.

Q.       He said he was about 10 metres behind you.  Is that right?

A.       He was 10 metres behind me?

Q.       Yes.

A.       No.

Then your Honours will see what goes on between L and O.  Finally, your Honours, page 48, about letter U, it was put to him that:

when he was struck by the motor vehicle Daniel was in fact walking along the bitumen road surface.

A.        I never seen.

Then, about letter – between W and X:

A.       I don’t think he was on the road.

Then, letter Y:

he was walking next to me and I was off the roadway, and he was like a couple of metres behind.  I never seen him on the roadway, I was never on the roadway.

And he said of course he was behind him, he could not see him.  But your Honours, the point we made in our written submissions is that surely if he is talking to someone, he has got a pretty fair perception of where he is.

Your Honours, could we say that in the light of those parts of the evidence, going into those, it is very difficult to see, in our submission, why the primary judge was not entitled to make the finding which he did at paragraph 151 on page 38 that the applicant was “walking in the gravel area when [he was] first sighted”.  It is equally, in our submission, but perhaps more difficult, to see why the Court of Appeal said at paragraph 91 at page 102 that the evidence of the two witnesses:

went no further than indicating that [he] was likely to have been on the bitumen ‑

Your Honours, that seems quite remote really from what they said.  So, we would submit there was no proper basis for the Court of Appeal to make the finding that he was likely to be on the bitumen rather than what the evidence seemed to demonstrate, that he was off.  That is the first point, your Honours.

BELL J:   Yes.

MR JACKSON:   The second point, your Honours, is the other aspect.  That concerns the Court of Appeal’s view at paragraph 72 on page 95.  You will see that they say, to put it shortly, that what might have been the position was that because of the car coming the other way, the respondent drove off the road to avoid it and that was a perfectly normal thing to do.  Your Honours, we have referred in our written submissions at page 157, paragraphs 24 through to 33, to this aspect of the matter.  I do not want to simply repeat what is there, but may I say these things?

The first thing was that there was no evidence from the respondent or her passengers that she had in fact moved off the road to avoid a passing car and Mr Stuart‑Smith’s evidence that she may have done so for that reason was really speculation.

The second thing, your Honours, is could I take your Honours as well to our submissions in reply, page 174, and to paragraphs 5 to 10?  Your Honours, there we say in paragraph 5 one needs to bear in mind that the point of impact was just over a metre from the edge of the bitumen.  It was not as if the car was right in the middle of the bitumen.

The second thing was, your Honours, the impact was with the driver’s side of the vehicle and the view that the vehicle was partly off the roadway was very much supported by the judge’s discussions and findings.  Could we emphasise, your Honours, what we have said in paragraph 7?  The view advanced by our learned friends in their response in paragraphs 24 and 25 that it was entirely reasonable for the respondent to drive off the bitumen because of a passing car, should not be accepted for the reasons we have already said.  It may have been understandable to do it, but only in circumstances where you had a fair bit to drink, as was the – and not just a fair bit to drink, your Honours – I do not mean that in any offensive way – but simply to say where the evidence was that her capacity to drive was affected significantly by it.

BELL J:   She was .14 or something.

MR JACKSON:   I am sorry, your Honour?

BELL J:   She was .14.

MR JACKSON:   I think .133 at the ‑ ‑ ‑

BELL J:   At the time, yes.

MR JACKSON:   When tested by the police on the spot; a little less a little later.  But we have cited the evidence on that.  That was unchallenged evidence.  So, your Honours, could we just say this, that our learned friend’s submissions in paragraph 3 of the response at page 161 suggest in effect that this is just a 10 per cent case; l0 per cent difference between 40 per cent finding of contributory negligence at first instance, 50 per cent on the blameless accident.

BELL J:   But you have not had your challenge to the 40 per cent contributory negligence?

MR JACKSON:   Well, your Honour, that is right.  Could I just say several things about that contention?  The first is that the test for contributory negligence is different and the relevant tests, your Honours, are conveniently referred to at page 127, paragraphs 59 and 60.  In the ordinary case where a plaintiff and defendant are both negligent, the issue is one of relative responsibility.  In a blameless accident type of case, the question is

how far the person has departed from the standard of care for their own safety.

The second feature is one your Honour mentioned a moment ago, that our appeal on contributory negligence on the ordinary basis has never been heard, and could I just say something in relation to that?  If you go to the question of comparative negligence of the two parties, two people wait unsuccessfully for taxis after the party.  Each has consumed approximately the same level of alcohol.  One starts to walk to get a taxi.  The other thinks she is okay, gets into the car and, by reason of the alcohol, drives off the road into the applicant as he tries to avoid her.

Now, your Honours, the worst, in our submission, that could be said about the applicant’s conduct was that he should have walked on the other side of the road and, your Honours, we would say a 25 per cent finding of contributory negligence should have been the maximum.  Of course, there no costs of the trial, nor costs in the Court of Appeal and, your Honours, even if it came down to just being a 10 per cent case, $200,000‑odd – 10 per cent – is quite a lot of money to a brain damaged young person.  Yours Honours, those are our submissions.

BELL J:   Thank you, Mr Jackson.  Yes, Mr Deakin.

MR DEAKIN:   Thank you, your Honour.  Dealing with the first point, your Honours, can we just make the obvious submission, this was no special leave point, factual reviews and nothing more.

BELL J:   Mr Jackson accepts it, pure ‑ ‑ ‑

MR DEAKIN:   Yes.  Your Honours, these are cases which were determined by the Court of Appeal with all the material, including the very point that your Honour Justice Bell made, a very relevant document, namely, Mr Gallagher’s contemporaneous statement to the police officer which the trial judge extracted a paragraph from but did not refer to the key paragraph which the Court of Appeal emphasised corroborated Mr Gallagher’s statement to the police that he saw the plaintiff on the roadway.

Now, that is a very concrete example of how dangerous it is for your Honours to determine an application of this kind with a selection of extracts read from some of the transcript when the Court of Appeal had all the transcript and all the exhibits, and your Honours are being invited to grant special leave on a pure fact case by reference to selected items of transcript which we submit the Court of Appeal plainly had before them and took into account.

This is not a credibility case, which seemed to be part of what was being suggested to your Honours about the trial judge’s finding.  The Court of Appeal said – and, your Honours, this part of it was read to you – the trial judge was entitled to say he accepted Mr Gallagher and Mr Schneider, but the trial judge extracted from their evidence a conclusion which was not supported by the evidence and Mr Gallagher’s evidence, which was perhaps the critical one, is contradicted by his own statement.

BELL J:   Well, when one turns to that portion of the statement extracted at application book 97, paragraph 77, what he said was:

and I think [the appellant] was walking maybe just onto the tar road portion but not sure how far from the gravel edge.

MR DEAKIN:   Yes.

BELL J:   Now, to rely on that to hold that it was not open to the primary judge who saw Mr Gallagher give the evidence to which our attention has been directed, minds might differ about whether one can say this is a contemporaneous record that makes glaringly improbable the conclusion that the trial judge reached.

MR DEAKIN:   Well, your Honours, there is other evidence of course in which he admitted he corrects his mistake but he says he saw them on the road and then he corrects it.  But, your Honours, Mr Gallagher had a number of aspects of his evidence, some of which was critical, but the trial judge accepted him.  But he ‑ ‑ ‑

EDELMAN J:   This is the point about Fox v Percy, is it not?

MR DEAKIN:   Yes.

EDELMAN J:   These are the advantages of a trial judge.

MR DEAKIN:   But your Honours, this is a case in which the trial judge – and it is admitted by my learned friend – drew inferences about these matters.  It was not a case where there were two conflicting versions and he had to make a finding of a Fox v Percy type conclusion, as Justice Edelman has just put to us.

MR EDELMAN:   Fox v Percy is more than just the drawing of conclusions in relation to competing inferences.  It is the feel of the case, it is having all of the evidence before you, it is the nuance from the oral evidence, the weighting, and so on.

MR DEAKIN:   But your Honour, all of those points are obviated in this case because the Court of Appeal proceeded on the basis, “Let us look at what the actual evidence was”.  So, Fox v Percy, with the greatest respect, your Honour, just disappears from this case because they did not overrule credibility findings.  They said, “All right, let us look at what the evidence actually was”, and they recite exactly what was set out and come to a different inference to that drawn by the trial judge, based on that evidence.  Now, your Honour, these are factual issues; no special leave point at all, in our respectful submission.

When one comes to Mr Schneider, who was equally important in the trial judge’s approach, as my learned friend has read to your Honours, Mr Schneider could not really say beyond saying, “He was behind me and to my right when I was on the gravel”, he could not say where the plaintiff was.  So, he cannot provide a basis for the trial judge to say, “I am satisfied from Mr Schneider’s evidence that he was on the gravel”.

BELL J:   The Court of Appeal’s analysis, as I understand it, involved a rejection of the view that in the agony of the moment the appellant had run onto the roadway and Mr Schneider had run to his left.  Well, Mr Gallagher does give direct evidence ‑ ‑ ‑

MR DEAKIN:   Of seeing that, he does, your Honour.

BELL J:   ‑ ‑ ‑ consistent with the judge’s finding of seeing that.

MR DEAKIN:   Mr Schneider gave no such evidence, your Honour.

BELL J:   Mr Gallagher, I am sorry.

MR DEAKIN:   No, your Honour said Gallagher.

BELL J:   Yes, right.

MR DEAKIN:   But what I am putting to your Honour is that was what Mr Gallagher described Mr Schneider as doing and Mr Schneider said not only did he make no mention of any movement to his left; he says in his evidence that he was not even aware of the approaching car either until he heard the thud.  So, your Honours, we know that Mr Gallagher’s evidence is contradicted by Mr Schneider’s evidence about his movements, and the expert evidence was that there was no evidence to support a lateral movement, a movement across the road by the plaintiff.

BELL J:   But Mr Gallagher gave direct evidence of it.

MR DEAKIN:   He did.

BELL J:   And the trial judge saw him.

MR DEAKIN:   Indeed, your Honour, but these are matters which were flatly contradicted by the objective evidence because the objective evidence was, as my friend has frankly conceded, a point of impact more than a metre ‑ or a metre or more on to the bitumen surface and a collision with the driver’s windscreen of the car, right in front of the car.  That objective evidence corroborated the respondent and her witness, Ms Newton, who said, “When we first saw the plaintiff, he was on the roadway in front of the vehicle”.

Now, all of these are factual issues, your Honours, and we would submit that this is not a case where these sorts of factual issues give rise to any miscarriage of justice at all, let alone a substantial miscarriage of justice.  The Court of Appeal read all the material and it came to its own conclusions based on that material and we submit they were plainly entitled to because they did not seek to set aside the findings accepting the witnesses.  They simply said, “We have all the material and these are the conclusions which we unanimously draw from that material”.  A selective reading of transcript pages – we could read other pages – but, your Honours, our point is these are factual issues and not matters that warrant the grant of special leave.

Your Honours, there are other aspects of the matter.  The critical finding that arises that was the subject originally of a notice of contention before the Court of Appeal was the finding that the trial judge was not entitled to conclude that in any event there was insufficient time to avoid this collision, so essentially taking alcohol out of it.  Your Honours unfortunately do not have the notice of contention reproduced, but it is apparent from the judgment where it is dealt with.  In CA1 early in the piece at application book 80, your Honours:

The appellant filed a notice of contention prior to the hearing of the appeal challenging the primary Judge’s finding that the respondent, even if she had not been affected by alcohol, had insufficient time after seeing the appellant to avoid colliding with the appellant.

Now, that challenge arises from paragraph 115 of the trial judge’s judgment, and could we just take your Honours to that on application book 32?  His Honour accepts the evidence of Mr Jamieson that there was only two seconds in which there was available to this driver to react and, based upon that speed, he would be travelling at – she, I apologise – would be travelling at 13.8 metres a second, and the trial judge says:

However even on this analysis, bearing in mind the visibility distances as I have found and the length of the skid marks, the Defendant would not have had sufficient time in which to be able to bring her vehicle to a stop without colliding with the Plaintiff.

Now, as the Court of Appeal correctly points out, that finding was fatal.

BELL J:   That is a finding, is it not, with respect to a case – the driver is required to keep a proper lookout and if you see a pedestrian wherever they are, including on the road surface, you are meant to stop, and this driver did not have the opportunity to do so.

MR DEAKIN:   Yes, the accident ‑ ‑ ‑

BELL J:   But if one looks at a case that she has driven in consequence of her impairment due to alcohol onto the – off the roadway and scooped up a pedestrian, that is rather different, is it not?

MR DEAKIN:   But your Honour, the scooping up of the pedestrian occurred on the roadway.  We know that.  There is no dispute about it.

BELL J:   Yes, but because the pedestrian on this account has run onto the roadway in the way Mr Gallagher described in his evidence.

MR DEAKIN:   Yes.

BELL J:   I am just taking up with you, Mr Deakin, that is a rather different case to the issue of perception time with which Dr McIntosh was concerned.

MR DEAKIN:   Mr Jamieson, but yes, your Honour.

BELL J:   I am sorry.

MR DEAKIN:   But your Honours, the point we make is that it is an answer to everything because it was an unavoidable collision, alcohol or not.  That is the finding of the trial judge.  That is why ‑ ‑ ‑

EDELMAN J:   Except premised upon the view that the trial judge took of the facts.

MR DEAKIN:   But no one – it was the subject of a notice of contention which was abandoned.  It was not pressed at the hearing and the Court of Appeal records that fact later in the judgment at 103 of the book.

BELL J:   I am sorry, where does the trial judge deal with this?

MR DEAKIN:   Paragraph 115, your Honour, of the judgment which is at 32 of the book:

would not have had sufficient time in which to be able to bring her vehicle to a stop without colliding with the Plaintiff.

And the plaintiff clearly recognised that was a major problem for them and originally it was the subject of a notice of contention, dealing with alcohol as well, and that was not pressed and treated as withdrawn.  Could we invite your Honours to turn to 103, paragraph 93 of the judgment:

No submission has been made on his behalf that the causation finding should be upheld even if the appellant was on the roadway immediately before the accident.  Indeed in his oral submissions Mr Laughton accepted that if the correct position was that the appellant was not on the gravel verge, but was on the bitumen surface of the roadway, the case founded on breach of duty could not succeed.

BELL J:   Yes, but that – I may be missing the point, Mr Deakin, but, as I understand it, I do not know that Mr Jackson and you are at odds about this.  That is if the Court of Appeal was right to conclude that the appellant was on the road surface.  But if one goes back to the trial judge’s finding, then that alters the causation question.

MR DEAKIN:   It can, your Honours, but with Mr Schneider saying, “I cannot say where he was because I did not see him.  All I knew, he was to my right”, that is consistent with him being on the bitumen, as it is consistent with him being on the verge.

BELL J:   Yes.

MR DEAKIN:   So Mr Schneider essentially disappears and his Honour was not entitled to say Mr Schneider corroborated the version that Mr Gallagher could support, namely, that he was on the gravel.  But if we take Mr Gallagher ‑ ‑ ‑

BELL J:   Yes.

MR DEAKIN:   ‑ ‑ ‑ then, your Honours, we are left with the conflict between his statement to the police and other descriptions that he later gave.  Well, your Honours ‑ and then, if we take the question I think that your Honour Justice Edelman posed to me, the whole case turns on whether Mr Gallagher’s description of what he saw of Mr Schneider is wrong, because Mr Schneider did not go along with it, of what he saw of the plaintiff is accepted, and that is the reason why the Court of Appeal’s approach should be overturned.

Now, your Honours, we submit that this case, with all of the expert evidence, all of the other factual issues, all of the other factual evidence, it cannot turn on that single proposition.  Even if what your Honour Justice Bell has put to us about that evidence being from Mr Gallagher and accepted by the trial judge, it may be brought into the matrix, but it cannot determine the outcome of this application, in our respectful submission.

Your Honours will recall that the oncoming driver, whose presence on the roadway is accepted as going in the opposite direction shortly prior to the collision, saw the man she recognised as the plaintiff on the roadway.  The trial judge has not even taken that into account.  So we have another strong piece of evidence which from an independent witness ‑ ‑ ‑

EDELMAN J:   This is Ms Sandstrom?

MR DEAKIN:   Ms Sandstrom, yes.  We know, as I – I am sorry to be repetitive about this part of it – we know that the collision occurred on the roadway, more than a metre onto the roadway.  My friend has said and repeated in his submissions the proposition that this vehicle was off the roadway, and the trial judge seemed to accept it off the roadway.  Well, we do invite your Honours to look at the photograph number 85 that is before your Honours.  There is a portion of the nearside tyre marked by those yellow marks that your Honours have probably had occasion to observe in other cases.  That is off the bitumen surface, it is true, and there is evidence which we should draw to your Honours’ attention that that mark extended further back on the gravel.

But the vehicle is practically for most purposes substantially on the bitumen surface of the roadway and with an approaching vehicle, Mr Stuart‑Smith proffered an opinion about it which the Court of Appeal thought was at least equally consistent with why a driver may have moved further to the left than one that caused her to do it as a result of alcohol.  It was never put to the respondent, your Honours, that she drove off the roadway because she was affected by alcohol.

BELL J:   Did the respondent have any recollection of what she ‑ ‑ ‑

MR DEAKIN:   Yes, your Honour, she had a very clear recollection.  It is true, your Honours, that she did not recall ever running onto the gravel, but neither did anybody else in her car, including Mr Gallagher, your Honours.

BELL J:   But the Court of Appeal seems to have accepted that for a distance of what, 15 to 20 metres ‑ ‑ ‑

MR DEAKIN:   Marginally, I think, was their words, how – to what extent it ran off the bitumen.  That marginally is putting it kindly because it is largely on the bitumen with a very small portion of its nearside tyre off the bitumen.  If we could just invite your Honours to sit back and say without the benefit of hindsight, a vehicle proceeding in a straight line without any knowledge that there would be pedestrians in the area ‑ and the Court of Appeal has emphasised this ‑ how can it be negligent to have driven in that fashion and applying her brakes as quickly as she did, and that is the key to this case, in our respectful submission, and these other criticisms based on selective readings of the transcript, we submit, were not sufficient to warrant the grant of special leave.

BELL J:   Thank you, Mr Deakin.  Yes, Mr Jackson.

MR JACKSON:   Your Honours, the first thing we would seek to say is this.  Our learned friends refer and refer again to reaction time, could we just take your Honours to page 175 to paragraph 10 of our response in that regard where we say that her conduct, as we would say “induced by alcohol, that caused [the] vehicle to be partly off the bitumen surface, thus creating a situation where, even with a normal reaction time” she could not – “the collision could not be avoided”.  Your Honours, a very good indication of the danger that her conduct created was the fact that Mr Schneider ran for his life to his left ‑ no question about him being anywhere near the bitumen.

BELL J:   Mr Deakin says Mr Schneider had no recollection of moving to his left at all.

MR JACKSON:   No, Mr Gallagher who was in the front passenger seat and was looking to his left saw him do it.  The judge is perfectly entitled to accept that evidence.

BELL J:   What did Mrs Sandstrom say?

MR JACKSON:   Yes, your Honour, paragraphs – I think you can see at page 101, paragraphs 88 and 89 extract parts of her evidence.  The witness statement is referred to in paragraph 88:

she was concentrating on staying near the left edge of the road, she saw:

“someone standing on the other side of the road on the edge of the bitumen –

. . . 

She thought that person may have been the appellant.

Then, paragraph 89 refers to her evidence in‑chief and then she did not say – this is put in the negative way:

She did not say that she observed [him] on the gravel verge.  In her cross‑examination, [she] . . . accepted that the person she saw “would have been [at] the edge of the line where the bitumen meets the gravel on the path”.  She later clarified that answer to mean that the person was standing “on the edge of the bitumen which is where the gravel is”.  She also accepted –

and your Honours will see the remainder of that paragraph.  It is very difficult, your Honour, to see, with respect, in the last sentence that is referred to in that paragraph, that that conclusion would follow from what she said.  Your Honours, everywhere that there is some evidence concerning where it was, the Court of Appeal seems to have taken the view that meant he was on the bitumen.  It did not say that at all, with respect. 

Your Honour, that is the first point.  The second point is that our learned friend refers to our taking your Honours to parts of the evidence as being selective; we would use the word “relevant” in lieu.  But could we also say that our learned friends say they could read others; well, they may do so, your Honours, but it would not help, with respect.

Your Honour has referred already – your Honour the Presiding Judge referred to page 97, paragraph 77, maybe just on the bitumen.  Your Honour, those are our submissions.

BELL J:   Thank you, Mr Jackson.  The Court will adjourn briefly to consider the future conduct of the matter.

AT 12.12 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.14 PM:

BELL J:   We are not persuaded that it is in the interests of the administration of justice to grant special leave in this matter.  Special leave is refused with costs.

The Court will adjourn now to reconstitute.

AT 12.15 PM THE MATTER WAS CONCLUDED