Franjic v Visser

[1990] TASSC 94

Serial No B17/1990
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Franjic v Visser [1990] TASSC 94; B17/1990

PARTIES:  FRANJIC
  v
  VISSER

FILE NO/S:  LCA 1/1990
DELIVERED ON:  7 May 1990
JUDGMENT OF:  Crawford J

Judgment Number:  B17/1990
Number of paragraphs:  15

Serial No B17/1990
List "B"
File No LCA 1/1990

FRANJIC v VISSER

REASONS FOR JUDGMENT  CRAWFORD J

7 May 1990

The applicant has applied to review his conviction and sentence imposed by a Court of Petty Sessions on a charge of driving a motor vehicle without due care and attention, contrary to regulation 6B of the Traffic (General and Local) Regulations 1956. The particulars in the complaint specify driving at an excessive speed having regard to the prevailing road and weather conditions, failing to keep a proper look out and failing to avoid an accident.

1. The magistrate's findings of fact are not disputed. I will state them adding other facts plainly established by the evidence. Mr Galina, aged 78 years, walked in a westerly direction along the southern footpath of Brisbane Street, Launceston, at about 3.20pm He arrived at the traffic lights at the intersection of Bathurst Street and commenced to walk across that street, contrary to the instruction of a "Don't Walk" light. He had at least three traffic lanes to cross in Bathurst Street, all of which were for the use of north–bound traffic. For the purposes of this judgment, I will assume that there were three lanes. By the time he reached the centre lane, the Bathurst Street traffic had the green light and "was due to move". By the time he had walked to the western lane "traffic was already moving". The applicant was driving a vehicle in the western lane of Bathurst Street and the vehicle struck Mr Galina.

1. In the centre lane a car had been stationary. Behind it was a van. The applicant was approaching the intersection in the western lane in Bathurst Street, there being no other vehicles in front of him in that lane. He had no visual warning of the presence of Mr Galina because the van blocked his view of him, as it also did of other traffic in Bathurst Street at the lights. The van moved slightly forward (following the light change to green) and stopped, and was stationary as the applicant passed it on its left. He was unable to see whether any other traffic was moving off. He did not think to attribute to the fact that the van was stationary anything other than that it had stalled. Seeing that the lights were green for him, he proceeded towards crossing the intersection.

1. The magistrate made no finding as to the speed of the vehicle, the position of Mr Galina when struck (except that he "was about to reach the far side of the road") nor as to the point at which Mr Galina first came into the vision of the applicant. In these circumstances it seems proper to conclude facts most favourable to the applicant on the evidence. He was, he said, cruising and when 50 metres from the intersection, the lights changed to green. He therefore accelerated and was travelling at no more than 40 or 50 kilometres per hour when he struck Mr Galina. He said that "just as I got to the intersection the old man just jumped out in front of me from the car that was in the right–hand lane … I got right into the intersection, that's when he just jumped right out in front – right–hand corner of the car" (I have quoted from the transcript). He swerved to his right to go behind Mr Galina, hit the car in the centre lane and "just clipped his leg". The only other vehicle he had seen was the van.

1. It is implicit in the finding of the magistrate, and it is supported by the evidence of witnesses, that Mr Galina was walking and did not in fact "jump out" in front of the applicant's vehicle.

1. The applicant's passenger, in evidence, sorted the facts out as follows:–

"... the old man who was sort of in front of the vehicle, along side of him, and he sort of stepped out as we accelerated to go through the lights and Rick swerved to miss him and hit the car next to us in the other lane and sort of collected him in the back leg and he sort of fell down. He was sort of right there in front of us, sort of as I looked up he was sort of there more or less".

Concerning the blocking of her vision by the van she said that "when the old man stepped out in front of us we couldn't see that whole half of the intersection except of what was in front of us".

1. The learned magistrate stated his findings of fact and continued as follows (there are obvious errors in the transcript which I have not attempted to correct):–

"The mere fact that the lights for him were green does not absolve him from exercising due care and attention in his driving, nor, of course, is it determinated or conclusive of that issue. Only lane gave him free access so it was though, across the intersection and there were no vehicles preceding him in that lane. To be considered in conjunction with this, is the fact that as he approached, and until the moment his view of other vehicles at the intersection was obstructed by the presence of the stationary van to his right, all those vehicles at the lights so far as he could see, except for the van, which had moved forward and then propped, had remained stationary. The van itself was stationary again, as I've mentioned as he went to pass by it for a reason which he only wondered at, that he thought being that it had stalled. In the circumstances can it be said that he exercised due care and pressing on I think not. Any driver should be aware that traffic light controlled city intersections carry a mix of vehicular and pedestrian traffic and that it is not uncommon for pedestrians to take their time at crossing on occasion. He should not have barged through as he did, but taken more care to actually determine rather than merely wonder at, what the reason why for the van not moving off. He was hasty where care was called for. I find the complaint proved."

1. There was no suggestion on the evidence that the applicant could have seen Mr Galina earlier than he did. The question which fell to be determined therefore was whether the applicant should have driven at a speed sufficiently slow as to enable him to stop in case there was some as yet unseen problem ahead of him which might cause an emergency, such as a pedestrian crossing the road against the lights, or some other form of activity on or near the intersection.

1. Counsel for the applicant submitted that I am bound by the High Court decision in Warren v Coombes (1979) 142 CLR 531 in which it was held that on an appeal by way of re–hearing from a judge sitting without a jury, an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. But what I have before me is a motion to review an order of a magistrate pursuant to section 107 of the Justices Act 1959. This is not an appeal by way of re–hearing. Warren v Coombes does not apply to an application to review an order of justices. The question for me is whether upon the evidence the magistrate might, as a reasonable man, have come to the conclusion to which he did: Taylor v Armour & Co Pty Ltd [1962] VR 346 at p351; Bedelph v Weedon [1963] Tas SR 69 at p81; Benson v Rogers [1966] Tas SR 97 at p99; Richardson v Shipp [1970] Tas SR 105 at p117; Hrycyszyn v Groves, 27/82 at pp7–9; In re p(An Infant), 24/1986 at p15; VJS & KML v Strickland B12/1987 and Smith v Spencer, B31/89 at p1.

1. The requirement in the regulation that there must not be a driving "without due care and attention" was sufficiently explained, for the purposes of this case by Lord Hewart LCJ in McCrone v Riding [1938] 1 All ER 157 at pp158–9 as follows:–

"I think, therefore, that the proper course is that the appeal should be allowed, and that the case should go back to the justices with the direction that regard must be had to the words of this statute 'without due care and attention,' and that it is wrong to assume that the word 'skill' is synonymous with the word 'care', and that it is wrong to assume that there can be one standard for an ordinary driver and another standard for somebody else. The question is not a question dependent upon inexperience or lack of skill. It is a question dependent upon lack of care and attention. I think that it is not without significance that the statute uses both the word 'care' and the word 'attention'. In other words, the driver, whoever he may be, experienced or inexperienced, must see what he is about. He must pay attention to the thing he is doing, and, perceiving that which he is doing or entering upon, he must do his best, and he must show proper care in the doing of that thing upon which he is intent. It may very well be that the error which these justices have made was an error due to a kind of benevolence, but it is very important, I think, that it should be understood that there are not two standards, but that there is one standard only. 'Due care and attention' is something not related to the proficiency of the driver, but governed by the essential needs of the public on the highway."

The question of the applicant's skill as a driver, or his lack of it, did not of course arise from the evidence. What the learned magistrate had to decide was whether it was established to his satisfaction, beyond reasonable doubt, that the applicant failed to exercise due care and attention when driving, the question of what was due to be decided by way of objective judgment based on all the circumstances established by the evidence when viewed from the aspect of the needs of members of the public who foreseeably may have been on the streets.

1. In my view the judgment of the learned magistrate that the applicant's driving did not fulfil the standard of due care and attention was justified by the evidence. It was a conclusion to which a tribunal of fact, acting reasonably, could have come. It was reasonably open to conclude that a driver, exercising the care and attention the public interest demanded to be due, would have slowed and not proceeded into the intersection without ensuring that it was safe to do so, taking into account that the stationary van presented a warning of possible danger and the applicant's vision of the intersection was severely restricted by it. As was appropriately stated by counsel for the respondent, the applicant "was travelling down a corridor of blindness" with everything on his right obscured by the van. Admittedly it was only a short corridor, but while in it the applicant could not see much of the intersection and it was open to the learned magistrate to find that in the circumstances of the stationary van, he should not have assumed an entitlement to proceed without taking greater care. It was reasonably open to conclude from the evidence that the applicant should have adverted to the possibility of a pedestrian being on the road. The application to review the conviction will therefore be dismissed.

1. The penalty imposed by the learned magistrate was a fine of $150, costs of $194.10 and licence disqualification for three months. The applicant has sought to have that penalty reviewed on the ground that it was manifestly excessive in all the circumstances. Clearly, the fine and order for payment of costs were not excessive, having regard to the nature and circumstances of the offence and the applicant's prior traffic offences. It is also my view that the licence disqualification cannot be said to be manifestly excessive either. The applicant was aged 22 years and he had committed a number of traffic offences between April 1984 and 16 June 1989, which was the date of this offence. Those offences were speeding (2), undue noise (5), disobeying a road sign (2), bald tyres, driving while disqualified, failing to display "P" plates and inefficient exhaust system. Of course, quite a number of those offences did not arise out of the manner of his driving and, it should be noted, the only offence committed by him after December 1986 was one of undue noise on 19 January 1989. But in his reasonably short driving career he had twice been disqualified for an excessive accumulation of demerit points and at the time of this offence he had an accumulation of 5 demerit points acquired in less than 3 years.

1. The applicant's solicitor asked the magistrate to take into account that any disqualification would impose hardship on him and his family, but the reasons advanced by her did not justify mitigation of penalty in the circumstances of the case.

1. As was stated by the learned magistrate, the offence of driving without due care and attention comes in varying degrees of seriousness. The consequences of the applicant's driving were potentially serious, as evidenced by the fact that his vehicle collided with a pedestrian. His counsel argued that the offence should be treated as one "at the lower end of the scale" and consisted only of inadvertent driving. I am not persuaded that this submission is correct. It is not a case of a driver inadvertently failing to observe circumstances indicating danger. He apparently observed all circumstances which would have been observable to any driver, but he failed to act appropriately as the public needs demanded he should have done. He may not have realized the danger but he should have done so and the magistrate was justified in considering that his failure to do so was sufficiently serious to warrant disqualification in the light of his record for traffic offences.

1. In all the circumstances I am not satisfied that the penalty imposed by the learned magistrate was manifestly excessive. If the applicant's prior traffic record was not so bad I might have thought otherwise.

1. The motion will be dismissed.