John Boyd v Ronald Fielding
[2009] VSCA 237
•21 October 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 3763 of 2008
| JOHN BOYD | Appellant |
| v | |
| RONALD FIELDING | Respondent |
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| JUDGES | NEAVE, DODDS-STREETON JJA and KYROU AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 4 May 2009 |
| DATE OF JUDGMENT | 21 October 2009 |
| MEDIUM NEUTRAL CITATION | [2009] VSCA 237 |
| JUDGMENT APPEALED FROM | Boyd v Fielding (Unreported, County Court of Victoria, Judge Misso, 15 April 2008) |
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NEGLIGENCE – Motor vehicle accident – Whether judge misdirected jury as to evidence – Whether judge’s jury direction unbalanced – Obligation of judge to summarise evidence – Whether judge failed to properly relate law to the facts – Whether jury directed to disregard opinion evidence given by lay witness – Appeal dismissed.
PRACTICE AND PROCEDURE – Whether point raised in pleadings but not relied on during trial can be relied on as ground of appeal.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr G Nash QC with Mr G J Burns | M W Law |
| For the Respondent | Mr J Ruskin QC with Ms N Wolski | Solicitor to the Transport Accident Commission |
NEAVE JA:
The appellant, Mr John Boyd, issued proceedings in the County Court seeking common law damages for injuries suffered when his motorcycle collided with a mobile crane truck driven by the respondent, Mr Ronald Fielding, in Canterbury Road, close to the intersection of Warrigal Road and Canterbury Road.[1] A jury found that the injuries suffered by Boyd in the collision were not caused by Fielding’s negligence.
[1]After the first reference to the parties and their witnesses by their full names, I will refer to them, purely for convenience, by their surnames. No disrespect is intended.
Boyd now appeals against the jury verdict. He claims that the trial judge misdirected the jury in a number of respects and seeks to have the matter remitted to the County Court for a retrial.
Background
Warrigal Road runs north-south and ends at Canterbury Road, forming the stem of a T-intersection. Canterbury Road runs east-west, forming the cross bar of the T-intersection. Both roads have two traffic lanes on each side. Fielding was travelling north on Warrigal Road and stopped his truck in the right-hand lane when the light turned red. His truck was about 14 metres long and three metres wide, with the boom of the crane protruding a couple of metres from the front of the driver’s cabin. He was turning, or had turned left into Canterbury Road from Warrigal Road, when the collision occurred. It was not disputed that he entered the intersection and began turning on a green light.
Fielding did not realise that there had been a collision. He continued driving along Canterbury Road until another driver, Ms Noelene Xerri drove after him, alerting him to the fact that Boyd had come off his motorcycle. He then reversed his truck back to the intersection and spoke to Boyd.
Boyd was travelling west on Canterbury Road and had stopped at the red light on Canterbury Road in the right-hand lane on the eastern side of the intersection. It is not disputed that the light facing him had turned green when he entered the intersection.
The essential issue in dispute was how the accident occurred. Boyd claimed that the truck had reversed and was able to complete its turn into Canterbury Road, in one movement. It had done so in the left lane and was travelling west towards the city, at the time of the collision. He said that it was straddling the left and right lanes, leaving sufficient room for his motorcycle to pass. He said that he had begun to pass the truck on the right-hand side, and was about level with the driver’s cabin, when it veered further into the right lane. The outrigger of the crane then struck his hand and knocked him off his motorcycle and the back wheels of the truck then ran over his left foot.
Fielding’s case was that the truck did not reverse in order to complete its turn. It was still straightening up after turning into Canterbury Road when Boyd attempted to ride through a narrow gap between the truck and cars driving in the opposite direction in Canterbury Road. Because there was insufficient room, Boyd rode into the back of the truck and fell off his motorcycle, suffering the injuries for which he claimed damages.
The evidence
Boyd gave evidence and called his work supervisor, Mr Brett Fisher, as a witness to events which occurred after the accident.[2] Fielding gave evidence and called two witnesses, Mr Craig Reaks and Xerri, who were driving west on Canterbury Road and were stopped at the traffic lights when Fielding’s truck was turning into Canterbury Road. The relevant evidence of the witnesses was as follows.
[2]He also called a number of medical witnesses who gave evidence as to the nature of his injuries, which is not relevant to this appeal.
Fielding’s evidence
Fielding’s evidence-in-chief was that he stopped at the red light at the intersection of Warrigal and Canterbury Roads and when the car in front of him moved into the intersection to make a right-hand turn, he followed that car into the intersection and began a left hand turn. He then had to deal with cars turning right from Canterbury Road into Warrigal Road. He was unable to complete his turn because the cars had come up too far for his boom to make it safe to turn without interfering with them, so he stopped and waited for them to reverse. He said that, contrary to Boyd’s evidence, his vehicle was in the right-hand lane after completing the turn and ‘the only time my vehicle would have been in the left-hand lane is when I was doing the actual left-hand turn into the right-hand lane. I never moved over on to the left-hand lane at all’.
He said that after completing his turn, he travelled along Canterbury Road in the right-hand lane towards Union Road where he was intending to turn right again. After he had driven about 80 metres, he was alerted by a woman passing him on the left-hand side that something was wrong.
He then reversed his vehicle back to the intersection in the right hand lane, stopped in that lane, got out to see how Boyd was and spoke to him briefly. He explained that he had to get his truck off the road. After he moved the truck over to the left-hand side of the road he went back to see Boyd again. He told Boyd he was sorry that he had been hurt but he had not seen him. He asked Boyd if he wanted the police or an ambulance called and Boyd said he had already rung friends and they were coming to pick him up.
Fielding said that he had a mobile phone in the truck which he had used after the accident, but denied he had been using it when he entered the intersection and was turning. He was asked what were the dimensions of the handpiece for his citizen band radio (‘CB radio’) and he said they were about three by two inches.
He denied Boyd’s claim that his vehicle was either entirely or virtually entirely in the left-hand lane of Canterbury Road after he completed his turn and that he had then diverged to the right, colliding with Boyd’s motorcycle. He said that the only damage he could see on his truck after the accident were scuff marks on the rear right hand side dual tyre.
In cross-examination, Fielding said that he was using his CB radio intermittently while making the turn. He said it could have been in his left or right hand when he was making the turn. He was asked whether he might have brought it to within six to nine inches of his mouth in order to speak into it and he said that he would have done so. He said that the truck behind him had told him on the CB radio that he was ‘okay on the left’ when he was turning, but again denied that he was using his mobile phone when he made the turn. He said that he did not recall Boyd saying to him after the accident that ‘you were talking on the phone. You did not see me’. He was taken to an earlier statement in which he said that Boyd had made this statement and that his only response to Boyd was that he had not seen him.
It was put to Fielding that in an answer to an interrogatory he had said ‘I believe that in the process of making the left turn, my vehicle was in both the westbound lanes of Canterbury Road up to the point of this collision’. In a later interrogatory he was asked about the position of the truck after it had executed the left-hand turn and he referred to his previous answer.
It was also put to him that he had said in another answer to an interrogatory that ‘I believe my vehicle was in the process of executing the left-hand turn when the collision occurred’. His answers were tendered.
Following these inconsistencies being put to him he was asked whether: ‘You agree now that your truck was in both lanes’ and he said that a portion of it was. The cross-examination is somewhat confusing and it is not entirely clear whether this admission in cross-examination related to the period when he was turning the truck (as he had said in his evidence-in-chief) or after the turn had been completed. It may be noted that Fielding was not aware of the collision, so that his evidence on the position of the truck at the time of the collision is of little assistance.
Boyd’s evidence
In his evidence-in-chief Boyd said that he was stopped at the traffic lights in Canterbury Road and saw the truck attempting to make a left-hand turn into that road. Traffic was banked up and waiting to make a right-hand turn from Canterbury Road into Warrigal Road. Because the truck was unable to perform its turn in one manoeuvre it had reversed to straighten up and then completed the turn. The driver was using a mobile phone at the time and the truck was mainly in the left lane.
Boyd said that the truck proceeded down Canterbury Road and that he drove his motorcycle in the same direction when the light facing him turned green.
He said that the truck was partly in the left lane and there was a space of about a couple of metres on the right-hand side of the truck, which would have allowed him to pass safely. When he was level with the cabin door of the truck, he noticed that the driver was starting to veer across.
He was asked by his counsel whether he had seen the truck, and he replied:
Yes, when I looked up he was driving with one hand on the steering wheel and had a phone to his ear and at that stage I realised he hadn’t seen me and I tried to stop and the outrigger on the crane struck my hand, knocked me off my motorcycle. I was laying on the road, his back tyres scud along me and ran over my left foot and when I stood up, he was just continuing on down the road. He made no attempts to stop.
Boyd said that after the collision he called his supervisor, Fisher, to tell him he would not be able to come to work and Fisher came to help him. While he was sitting in Fisher’s car, he noticed the truck driver and said to Fisher ‘that’s the person that hit me’. He said: ‘The truck driver said to me, “I’m sorry I didn’t see you” [to which I replied] “No, you were too busy on the phone” and he just accepted that and then we just swapped names and addresses’.
In cross-examination, it was put to Boyd that Fielding had not been able to complete his turn until the cars waiting to turn right into Warrigal Road had backed up. Boyd denied that this was what occurred, explaining that there were too many cars to allow those waiting to turn right to back up. Boyd maintained his position that Fielding had reversed the truck in order to make the turn, even after it was put to him that Fielding, and his two witnesses, Xerri and Reaks, had denied that Fielding had done so.
It was put to Boyd that Fielding, Xerri and Reaks had said that the collision occurred while the truck was completing its turn and was in the right-hand lane or moving into it, and Boyd had attempted to pass through the narrowing gap between the truck and the cars waiting to turn right. Boyd said that the accident happened 30 metres past the intersection. He said that when the collision occurred, the truck was straddling the white line between the two lanes and that he had had sufficient room to pass. He had passed the truck when it was facing straight ahead and had been hit by the crane outrigger.
Some of Boyd’s answers to interrogatories were also put to him. He had said that he was travelling at 40 kilometres per hour when the collision occurred. It was put to him that he had said that he had braked before the collision and that this was inconsistent with his evidence-in-chief that he was travelling at 30 kilometres per hour when the collision occurred. He said he had been confused as to whether the question related to his speed immediately before the collision or when it actually occurred.
It was also put to Boyd that his answers had not mentioned that Fielding had reversed the truck in order to complete the turn. He agreed but said he had mentioned this in his police statement.
He was also asked about his evidence that Fielding was using his mobile phone at the time he was turning. Fielding’s evidence was that while he was driving he was having intermittent conversations on his CB radio which was black or a dark colour and about three inches by two inches or thereabouts. Boyd was asked whether that description was consistent with what he saw and he said that what he had seen was that Fielding ‘was holding something to his ear which appeared to be a phone’. He said that he didn’t think that it was necessary to hold the handpiece for a CB radio to the ear.
Boyd said he did not recall Fielding asking him whether he wanted an ambulance or the police to be called, but that when Fielding said that he had not seen Boyd, he took this as an admission of ‘fault’.
Reaks’ evidence
Reaks was the driver of the second car back in the line of cars stopped at the traffic lights in Canterbury Road, heading west. In his evidence-in-chief he said he had noticed the truck having difficulties turning out of Warrigal Road into Canterbury Road because ‘the crane was longer than the corner could handle’ and ‘the length of the vehicle got to a point where the vehicle had to remain stationary, either by hitting a car or taking out the corner, so it got to the point where the vehicle couldn’t move’. He then saw the cars, which had stopped to make a right-hand turn into Warrigal Road, reversing so the truck driver could complete his turn. When asked what happened then he said:
As the traffic backed up, the crane driver was able to manoeuvre a little bit forward to the point where he came around the corner. As he completed the turn, I noticed a motorbike accelerate quickly and it seemed to be the motor bike rider was trying to get between the gap that had been created as the traffic … backed up.
The motorcycle then got caught between the truck and the vehicles that had backed up on the oncoming traffic. The motorcycle rider came off his bike and the motorcycle finished in the middle of the road. The impact occurred somewhere around the rear axle of the truck, where the motorcycle made contact.
Reaks said the motorbike proceeded across the intersection ‘very quickly’. The truck then stayed in the right-hand lane and continued to head towards the city. Reaks was asked whether he had seen the truck in the left-hand lane of Canterbury Road but said he only saw it there 200 metres down the road where the driver had stopped his vehicle after being flagged down. He said that there was no point of time between the intersection where the truck was making the left-hand turn and the point of impact where the truck was travelling in the left-hand lane.
In cross-examination, it was put to Reaks that his view of the intersection would have been partially blocked by the car driven by Xerri, who had also stopped at the lights. He denied this and said he had ‘perfect vision’ of the accident and a clear view of the intersection. He said he had not seen the truck driver and could not say whether he was on a mobile phone.
Reaks said in cross-examination that when the light turned green in Canterbury Road, the truck was blocking the intersection. At that point the truck was across both lanes. Its rear wheels were in Warrigal Road and the front wheels were in the right-hand lane of Canterbury Road. It was the point of time at which the motor cyclist ‘took off’. The only time when the truck was in the left-hand lane was when the driver was crossing the intersection in the completion of his turn to go into the right-hand lane.
When asked how far the truck driver had gone in completing his turn, Reaks said:
He was blocking the intersection and still completing his turn, so you’ve got two simultaneous things happening at once. You’ve got the truck driver continuing to complete his turn and you’ve got the motorbike rider taking off, so there was a small gap between the oncoming traffic that had backed back and the driver completing the turn. As the motor rider took off, the truck straightened up, staying in the right-hand lane and the motorbike got caught between the truck and the oncoming traffic to make …
Reaks then said that:
the motorbike rider was racing the gap. As the truck driver straightened up the gap got narrower and the motorbike rider got caught between the truck and the oncoming vehicles who were making the turn into Warrigal Road.
Contrary to the evidence of Boyd, Reaks denied that the truck driver reversed in order to complete the turn. He was asked whether he agreed with Boyd’s statement that the truck driver was ‘partially in both lanes driving up Canterbury Road before he collided with him’. Reaks said that was possible. However he disagreed with the evidence of Boyd that his motorcycle had driven up to the cabin of Fielding’s truck, saying that he saw the collision near the rear axle of the truck.
In re-examination, he said he was certain that the accident occurred during the turn as the truck was straightening up and the gap was getting narrower.
Xerri’s evidence
In her examination-in-chief, Xerri, the driver of the car at the front of the line of cars stopped at the traffic lights in Canterbury Road, said that she saw the truck entering the intersection from Warrigal Road. She saw the truck making a turn ‘in the far right lane’ and straightening up while making it and then ‘the lights turned green and the motorbike took off’. The driver then ‘sandwiched himself between the oncoming cars turning into Warrigal Road while the truck was on the right-hand lane, heading city bound’. The motorcycle then clipped the truck and the motorcycle went down. She said the motorcycle made contact with the rear of the driver’s side tyre.
Xerri said she then took off after the truck driver to get his attention and tell him there had been an accident. She said that the truck driver was travelling in the left-hand lane after he completed his turn and she overtook him on the right to flag him down. She was asked whether she agreed with Boyd’s account of the accident and she said that it was false.
In cross-examination, Xerri said she had caught up with Fielding about half-way between Warrigal Road and the next intersection. She said that Fielding had completed the turn when the collision occurred and that she believed that he had completed his turn in a single movement. It was put to her that ‘after the driver completed his turn, he got into the left-hand lane and drove down the left-hand lane of Canterbury Road. She said ‘No, he was still on the right side’, but again said that after he completed his turn he drove down the road in the left-hand lane. It was put to her that Fielding and Reaks’s evidence was that after Fielding had completed the turn, he drove along Canterbury Road in the right-hand lane. She said that was not correct and that she had overtaken him on the right-hand side.
Fisher’s evidence
Fisher gave evidence that he had gone to the scene of the accident after receiving a call from Boyd. Boyd was hobbling around on the footpath. He saw the truck parked on the left-hand side and saw Fielding after Boyd said: ‘That’s the driver’. Fielding was on his mobile phone and came over and said to Boyd something ‘along the lines of “Sorry, mate, I’m just on the phone. Is he okay” or “Are you okay?”’.
The grounds of appeal
These were as follows:
1.His Honour misdirected the jury when he told them (Charge 32-33) ‘the last point of difference, as I see it, is whether the defendant went into the left lane or stayed in the right-hand lane. Reaks and Xerri say it was in the right-hand lane, as does the defendant, until Reaks loses sight of the crane truck, and that would appear to be the case, and the plaintiff, of course, says it has gone some distance down Canterbury Road, is straddling both lanes and it was partly in the left-hand lane’.
2.The learned trial judge failed to direct the jury adequately in relation to the issue of negligence, and in particular:
2.1His Honour failed to direct the jury adequately or at all, otherwise than by reference to what a ‘reasonable and prudent driver would do’, as to the criteria which they should use to determine whether there had been a breach of the duty of care owed by the respondent to the appellant;
2.2His Honour failed to relate the law as stated by him to the particular facts of the case;
2.3His Honour failed to direct the jury sufficiently, or at all, as to the significance of:
(a)the evidence that the respondent was holding in his hand, and using, a CB radio at or about the time of the collision;
(b)the conversation or conversations which took place after the collision;
(c)the evidence of Ms Xerri that –
(i)the respondent’s vehicle had completed its turn at the time of the collision; and
(ii)after completing the turn the respondent’s vehicle moved into the left-hand lane;
(d) the precise movements of the respondent’s vehicle:
(i)immediately before,
(ii)at the time of,
(iii)immediately after,
the collision;
(e)whether after the collision the crane truck continued on in the right-hand or the left-hand lane.
3.The learned trial judge’s charge was unbalanced or apt to mislead the jury particularly in that:
3.1His Honour drew the jury’s attention to inconsistencies between the evidence of the appellant and prior statements made by the appellant;
3.2 His Honour did not advert to inconsistencies between the evidence of the respondent and:
(a)the respondent’s answers to interrogatories (Exhibit ‘F’);
(b)the respondent’s statement to the insurance investigator (Exhibit ‘H’);
3.3His Honour contrasted the evidence of the appellant with that of Mr Reaks and Ms Xerri without drawing the jury’s attention to the respects in which the evidence of Ms Xerri differed from the evidence of Mr Reaks and of the respondent;
3.4His Honour failed to direct the jury that, according to the evidence of Ms Xerri –
(i)the respondent’s vehicle had completed its turn at the time of the collision;
(ii)the respondent’s vehicle moved into the left-hand lane very shortly after the collision;
(iii)Ms Xerri overtook the respondent’s vehicle on its right side.
3.5His Honour failed, when directing the jury as to the conversations which took place between the plaintiff and the defendant after the collision to draw the jury’s attention to the fact that the respondent’s evidence as to what happened after the collision was inconsistent with the evidence of Ms Xerri (at Transcript 380 and 382) and not entirely consistent with the respondent’s statement to the insurance investigator (Exhibit ‘H’).
3.6His Honour failed to advert to the uncontradicted and unchallenged evidence of the appellant that the rear wheels of the truck ‘scud over me and ran over my left leg’ as relevant to the point of impact between the truck and the motorcycle.
3.7His Honour told the jury (correctly) that Ms Xerri described the appellant’s account of the collision as a ‘false account’, but he did not advert to the fact that Ms Xerri also gave evidence that the respondent’s evidence that he was in the right-hand lane, and not in the left-hand lane, after the collision was ‘not correct’.
4.The learned trial judge erred in failing to direct the jury (in accordance with the principle in Browne v Dunn) of the significance and possible effect of the failure of defence counsel to put to the appellant that there were two conversations between the appellant and the respondent following the collision.
5.The learned trial judge gave an unbalanced answer to the jury question in that:
5.1His Honour read to the jury evidence of Mr Fisher and Mr Boyd and also that of the respondent (whose evidence was not requested);
5.2His Honour refused or failed to put to the jury:
(a)the evidence of the respondent as to the manner of use of the CB radio (at Transcript 318);
(b)the evidence of Ms Xerri (at Transcript 380 and 382) which on its face was inconsistent with the evidence of the respondent as read to the jury at Transcript 530;
5.3Although at the request of Counsel for the appellant his Honour referred the jury to Exhibit H, he did so in a perfunctory and insufficient manner (Transcript 553); [and]
5.4His Honour answered the question in a manner which highlighted and emphasised the relevant evidence in chief of the respondent without adverting to:
(a)[the] fact that that evidence was inconsistent with the evidence of Ms Xerri; [and]
(b)the evidence of the respondent in cross-examination as to his use of the CB Radio (Transcript 317-318).
On the hearing of the appeal, the Court gave leave to add an additional ground which was as follows:
6.The learned trial judge erred in that he misdirected the jury in relation to the opinion evidence given by Reaks as follows:
6.1His Honour told the jury that ‘he [Reaks] described the acceleration of the motorcycle as aggressive’;
6.2His Honour told the jury that ‘he [Reaks] also described the movement of the motorcycle as stupid’;
6.3His Honour told the jury that although he had ‘said something about that [Reaks’ opinion evidence] yesterday, by making reference to his description of that kind, [he] was not intending to detract from the evidence of Reaks, but simply to make an example when contrasting what a lay witness can do, which is to give evidence of what they saw or heard, as opposed to an expert who can rely on other material for the purpose of giving an opinion’;
6.4His Honour then proceeded to tell the jury, ‘You need to make what you consider to be fair and to be reasonable from Mr Reaks’ observations and the conclusion he reached. But you will understand it is your conclusion that these parties want, not Mr Reaks’ conclusion. You need to be concerned with how he described the occurrence of the collision and what you make of his evidence. As I said to you yesterday, you might agree with him, but then again you might disagree with him on that score.’
6.5By so instructing the jury his Honour:
(a)elevated Reaks’ evidence above that of other witnesses by placing Reaks’ evidence on the level of that of an expert, which Reaks was not, and
(b)having done so, encouraged the jury to consider conclusions Reaks had expressed thereby giving weight to Reaks’ inadmissible non-expert opinion evidence;
rather than directing the jury to ignore the opinions and conclusions expressed by Reaks and to rely only upon Reaks’ evidence as to what he saw and heard.
Ground 1 – misdirection on the evidence
The first ground of appeal complains that the judge misdirected the jury by telling them that Ms Xerri and Reaks agreed that the truck was in the right-hand lane after the collision occurred, whereas they in fact disagreed about the movement of the truck after the collision occurred. Counsel for Boyd submitted that Xerri had said the truck was in the left-hand lane when she overtook it after the accident, whilst Reaks had said that the truck had ‘stayed in the right-hand lane and continued to head to the city’.
Counsel for Fielding submitted that his Honour had accurately summarised the facts relating to the main matters in dispute. Further, even if his Honour had incorrectly said that Reaks and Xerri ‘essentially had the truck in the right-hand lane of Canterbury Road’ no objection to this error had been made by counsel for Boyd and it had not resulted in any miscarriage of justice.
In his jury directions his Honour summarised the evidence of Boyd, Fielding and the other witnesses and then said he would describe the points of difference between them. He reminded the jury that they could reject these comments. The relevant section of the jury direction was as follows:
There is no doubt, as I see it, that all of the witnesses agree that the crane truck was doing a left-hand turn from the right-hand lane. The second point is whether the crane truck reversed up as the plaintiff says it did. The defendant, Reaks and Xerri[3] say it did not.
The next point of difference is where did the collision occur? The defendant says he does not know and he has given you some elaborate evidence about that; large vehicle, did not feel anything, understood that the collision occurred only because of the intervention of Ms Xerri. Reaks and Xerri have it essentially in the right-hand lane of Canterbury Road, but at different points perhaps not far apart. The plaintiff says, and this is the next point of difference, that it occurred some distance down Canterbury Road with the crane truck straddling both lanes, with the plaintiff travelling at about 30 kilometres an hour and I suppose you can draw an inference there that if he was travelling at 30 kilometres an hour and he got up to the cabin of the truck, it was probably travelling at a speed perhaps approximately to what speed he said he was travelling at.
The next point of difference is, on the account of the plaintiff, Reaks and Xerri, was there room for the plaintiff to get through? Reaks and Xerri say there was no room. The plaintiff says on his account he had at least a couple of metres in between the driver’s side of the truck and the centre of the road.
The next point of difference is where did this collision occur? Did it occur where Reaks and Xerri say it did or where the plaintiff said it did? I will remind you again, adding onto what I have just said to you about the plaintiff’s description, he says his left hand was struck by the outrigger area on the driver’s side of the defendant’s truck.
The last point of difference, as I see it, is whether the defendant went into the left–hand lane or stayed in the right-hand lane. Reaks and Xerri say that it was in the right-hand lane, as does the defendant, until Reaks loses sight of the crane truck, and that would appear to be the case, and the plaintiff, of course, says it has gone some distance down Canterbury Road, is straddling both lanes and it was partly in the left-hand lane.
That is just a summary to bring back into your state of consciousness where the differences lie between the defendant and the witnesses he called, Reaks and Xerri, and what the plaintiff says about the movements of the respective vehicles and what then unfolded leading up to the occurrence of the collision.
[3]She did not in fact say so, but this was not a ground of appeal.
Xerri said that Fielding was travelling in the left-hand lane when she flagged him down after the accident, and Reaks thought he was in the right-hand lane. Counsel for Boyd submitted that the jury was misdirected that Xerri and Reaks gave the same evidence on that issue. However, Xerri also said that ‘the truck was in the right-hand lane, heading city bound when the accident occurred,’ and Reaks agreed that was the case. When read in context, the passage relied upon by Boyd as a misdirection may well have been referring to the lane in which the truck was travelling when the collision occurred, rather than the lane in which it was travelling further down the road. Further, Xerri’s evidence as to the movement of the truck was open to the interpretation that the truck was in the right-lane for some period after the collision occurred, but then moved into the left lane.
Even if the passage relied upon was an inaccurate summary of the evidence about the position of the truck after the collision, I do not consider that it was a material error or that it caused any miscarriage of justice. Both Reaks and Xerri testified that the accident occurred when Boyd attempted to run the gap between the truck and the on-coming traffic. His Honour correctly told the jury that both Reaks and Xerri said there was no room for Boyd to get his motorcycle through, while Boyd said he had at least a couple of metres. The jury were accurately directed on the central issue in dispute at the trial. Their verdict can be explained as based on the fact that they did not accept Boyd’s evidence. A reading of the whole transcript, in which Boyd was extensively cross-examined about his injuries, provides some basis for that conclusion.
It follows that Ground 1 is not made out.
Grounds 2.3, 3.3, 3.4, 3.5, 3.6, 3.7 and 6 – unbalanced jury direction
These grounds are repetitive of each other and also overlap with Ground 1. They allege that his Honour failed to sufficiently direct the jury on:
(a)inconsistencies between the evidence of Fielding’s witnesses, and between their evidence and Boyd’s evidence relevant to the cause of the accident;
(b)evidence relating to Fielding’s failure to keep a proper look out because of his use of a CB radio when the accident occurred; and
(c)the significance of the conversation or conversations which occurred between Boyd and Fielding after the collision.
In relation to paragraph (a), counsel for Boyd complained about the manner in which his Honour’s jury charge dealt with the following matters:
·whether Fielding reversed in order to execute the turn into Canterbury Road. Boyd said that Fielding had reversed the truck, while Fielding and Reaks said that the cars turning right had backed up to permit him to turn. Xerri gave no evidence on this issue;
·whether the truck was able to execute the turn in a single movement. Xerri said that this had occurred, while the other witnesses said it did not;
·the precise location of the accident. Fielding and Reaks’ evidence was that the collision occurred while the truck was completing its turn. Boyd said it occurred in Canterbury Road while the truck was driving towards the city after the turn had been completed. Xerri said that the truck was ‘on the right-hand lane heading city bound, when the accident occurred’, though she also said that the truck moved into the left-hand lane after completing its turn; and
·whether the truck was in the right or left lane when it was driving down Canterbury Road. Boyd said it was straddling both lanes. Xerri said that after it completed its turn it had moved into the left lane and she flagged it down in that lane. Fielding gave evidence that the only time his vehicle was in the left-hand lane was when he was doing the actual left-hand turn into the right-hand lane and after that was driving in the right lane, intending to turn right into Union Road. He said ‘I never moved onto the left-hand lane at all’. Xerri’s evidence was that when she caught up with the truck halfway between Warrigal Road and the next intersection, the truck driver was in the left-hand lane and she had passed him on the right, whereas Reaks thought he had driven off in the right lane. Reaks said it was possible that the truck was in both lanes after completing the turn, but it was clear that Boyd had run into the back of it.
Counsel for Boyd submitted that his Honour had ‘not discharged his obligation to give equal weight to the evidence of the parties and not to give an unbalanced direction’. He submitted that his Honour had conflated the evidence of Reaks and Xerri, despite the differences identified above. He said that the trial judge had repeatedly contrasted the evidence of Fielding’s witnesses with that of Boyd and had failed to draw the jury’s attention to evidence supporting Boyd’s version of events, or to summarise Boyd’s counsel’s arguments.[4]
[4]In support of the submission that the jury charge was unbalanced because Boyd’s counsel’s arguments were not adequately summarised he relied on R v Demiri [2006] VSCA 64.
Counsel submitted that the situation was similar to that which occurred in Kamcev v Hamid,[5] where there were variations in the accounts of the witnesses as to how the accident occurred and the trial judge had directed the jury that there were only two versions of events and that if they accepted one version they were required to find in favour of the respondent. The Full Court of the Supreme Court allowed the appeal and ordered a re-trial on the basis that ‘it was for the jury to determine what the version was and what acceptance of it entailed, and whether their understanding of the version and their acceptance of it’ meant that the plaintiff had made out his claim in negligence and whether he had himself contributed to the accident.
[5]He submitted that the situation was analogous to that which was held to require a retrial in Kamcev v Hamid (1993) 18 MVR 201.
Counsel for Boyd also submitted that his Honour had given an unbalanced direction by referring to Reaks’ evidence that he considered Boyd’s acceleration through the intersection was ‘stupid’.
Counsel was asked why no exception was taken to the jury direction, if it was unbalanced. Counsel for Boyd said it would not have been immediately obvious that his Honour had over-emphasised the evidence of Fielding’s witnesses and failed to differentiate properly between them. Counsel contended that his Honour had falsely suggested that the witnesses for Fielding were unanimous in their account of events, because he focused solely on the evidence as to the movement of the truck at the intersection and had not alluded to other matters such as the use of the CB radio or the mobile phone or the difference between Xerri’s and Reaks’ account of what happened immediately after the accident.
Counsel for Fielding submitted that the essential difference between Boyd’s and Fielding’s case related to the cause of the collision. Boyd’s case was that Fielding had reversed his truck so that he was able to complete the turn in one movement which took him into the left-hand lane. After completing the turn the truck had veered into the right. Fielding’s case was that the truck had not reversed; rather the cars turning right had reversed to enable him to turn his truck, which he had done in two movements.
Both Reaks and Xerri testified that Boyd had tried to run the gap and was caught between the truck and the oncoming cars and his Honour had drawn the attention of the jury to the difference between the account of Boyd and the evidence of other witnesses as to how the collision had occurred. All these witnesses had said that the truck was in the right lane at the time when the collision had occurred. Counsel submitted that the jury direction in this case was clearly distinguishable from the direction in Kamcev v Hamid,[6] because in that case the judge told the jury they had to decide between two versions of events and did not make it clear to the jury that their function was to decide the factual issues.[7] In this case, by contrast, the trial judge left it to the jury to decide how the accident had occurred and explicitly told the jury that the factual question was for them to decide.
[6]Kamcev v Hamid (1993) 18 MVR 201.
[7]Ibid 11.
Counsel for Fielding also submitted that it was never put to his client that he was not keeping a proper look-out when he was executing the turn. This explained why there was no ground of appeal which complained about his Honour’s failure to direct the jury on that matter. The fact that there was some difference in the evidence of Reaks and Xerri about what happened after the collision was not as significant as what they had said about the cause of the collision. Further, counsel for Boyd had made objections to other aspects of the jury charge and the fact that he had not done so on the matters which were now the subject of the appeal showed that he considered that the charge was balanced in this respect.
In my opinion Fielding’s submission should be accepted. His Honour dealt very fully with Boyd’s evidence in his jury directions. He said that Boyd had given evidence that he saw the truck stop, reverse and then proceed and that the truck went some distance down Canterbury Road where there was sufficient room for his motorcycle to pass. His Honour said that Boyd’s evidence was that the truck was partially in both lanes and that he had reached a position close to the cabin of the truck when he saw Fielding talking on his mobile phone. He said ‘you will have to decide, was it a mobile phone or was it a CB radio’. His Honour referred to Boyd’s evidence that the accident occurred when ‘the crane truck veered to its right and into his path’ and that he was then travelling at about 30 kilometres per hour.
His Honour then summarised the evidence of Fielding, Reaks and Xerri. He said that Xerri described the point of impact as being to the rear drivers’ side of the truck and, in a passage which counsel for Fielding said was unbalanced said that ‘it was my impression that she was pointing to the same position which Reaks pointed to, that is the rear axle, the rear tyre on the rear axle’. His Honour then said that the jury would receive a list of exhibits enabling them to match the evidence with the line that Xerri made on a photograph indicating the point of impact on the roadway. He told the jury that Xerri had said that Boyd’s account of the accident was false. He went on to say that ‘these are my comments in trying to isolate where the points of difference are’, but reminded the jury that they could accept these comments or ‘reject them absolutely’.
The essential difference between Boyd’s and Fielding’s case was whether the accident occurred when Boyd tried to ‘run the gap’, as Xerri and Reaks said, or when Fielding’s truck veered from the left lane into the right lane. His Honour clearly summarised the evidence which bore directly on that issue.
In Domican v R[8] where the question whether a charge was unbalanced arose in a criminal trial, the High Court (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ) said:
Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence. Consequently, the conduct of the case necessarily bears on the extent to which the judge is bound to comment on or discuss the evidence.[9]
[8](1992) 173 CLR 555.
[9]Ibid 561 (citation omitted).
A trial judge is only obliged to summarise as much of the evidence as is relevant to the issues in the case.[10] His Honour was not required to repeat the whole of the evidence to the jury, or comment on every minor inconsistency between the evidence of Boyd and Fielding’s witnesses. He made it entirely clear that the jury’s role was to determine the facts. There was considerable agreement between the evidence of Reaks and Xerri as to the cause of the collision. The fact that Xerri gave evidence contrary to that of Fielding as to which lane the truck was in when she passed it after the accident had limited relevance to the position of the truck when the collision occurred.
[10]Domican v The Queen (1992) 173 CLR 555, 561 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ); R v AJS (2005) 12 VR 563, 577.
Nor do I consider that the jury charge was unfair to Boyd, because his Honour referred to Reaks’ evidence that the acceleration of the motor-cycle was ‘aggressive’ and ‘stupid’. In cross-examination about the sequence of events at the intersection counsel for Boyd put to Reaks that ‘the motor-cyclist just took off?’ Reaks replied, ‘Yes, a stupid thing to do’.
In his jury charge, his Honour referred to that answer whilst explaining to the jury that lay witnesses could not give opinion evidence. He said:
… what Mr Reaks should have been limited to, and perhaps I was a little slow, but one cannot always be on the spot with these things when evidence is given by witnesses as rapidly as it often happens, that is a conclusion that he reached. He is entitled to answer a question on what he saw, but to say whether someone was behaving correctly or incorrectly, stupidly or sensibly, is a conclusion. That is a conclusion which you are asked to reach, so I only draw that as an example for you to show that that is the difference between an expert witness and a lay witness.
In his evidence-in-chief, Reaks was asked ‘are you able to say anything about the rate of acceleration that the motorbike proceeded across the intersection?’ and he responded ‘I would say it was aggressive or very quickly’. Counsel for Boyd did not object to that question.
While summarising Reaks’ evidence in his jury charge, his Honour referred to Reaks’ description of the movement of the motor-cycle as aggressive and stupid and again reminded the jury of the difference between expert and lay evidence and told them it was their role to reach a conclusion on that matter. No exception was taken to this aspect of his Honour’s direction.
When read in context I do not consider that his Honour’s reference to these matters, combined with the warning to the jury that it was their role to reach a conclusion on Boyd’s actions, was unbalanced. My conclusion on this matter is also sufficient to meet the complaint made by ground of appeal 6.
In relation to paragraph (b), counsel for Boyd complained that his Honour had not drawn attention to Boyd’s version of the conversation between himself and Fielding, in which Fielding had accepted the proposition that he had simply not seen Boyd, had failed to stop after the accident and was using either a CB radio or a mobile phone while he was executing the turn or shortly afterwards. It was said that his evidence supported Boyd’s case that Fielding had failed to keep a proper look out while executing the turn from Warrigal Road into Canterbury Road, because he had been using a mobile phone or a CB radio.
Counsel for Fielding submitted that the case had been run below on the basis of Boyd’s evidence that Fielding was on his mobile phone when he was executing the turn. Boyd had not adduced any evidence, such as mobile phone records, to indicate that Fielding was on his mobile phone when the collision occurred. He should not now be permitted to rerun the case on the basis that Fielding failed to keep a proper lookout because he was using his CB radio. Further, counsel said that the evidence of Boyd that the truck driver had ‘just accepted’ Boyd’s statement that ‘he was too busy on the phone’ was inadmissible evidence.
The particulars of negligence in Boyd’s statement of claim referred to ‘using a mobile phone and/or a CB radio whilst [Fielding’s] vehicle was in motion’. However in his opening address at the trial Boyd’s counsel relied solely on the use of the mobile phone and did not assert that Fielding was negligent because he made the turn while using a CB radio. His counsel said:
John will give evidence that he was talking into a mobile phone in his ear. Mr Fielding denies that. He says that he was talking into a CB radio. Be that as it may, Mr Boyd will give evidence that he was on the phone, talking into a mobile phone and doing this difficult turn.
Later in his address Boyd’s counsel said that it was alleged that Fielding was on his phone when the truck began to veer into the right-hand lane.
In his closing address at the trial counsel for Boyd said:
This question of the mobile phone has occupied a lot of time in this case. If Mr Fielding was using a mobile phone, would he have admitted it? No, because if he was using a mobile phone, then he certainly would have been committing an offence. He would have been on the phone. He said he was using a CB radio intermittently as he turned, but he had both hands on the wheel. Do you remember in answer to me – I asked him ‘Did you have the CB radio up here?’ He said, no, he had it somewhere on his chest. He had that CB radio - how could he have been? He said he was using his CB radio intermittently when he was turning, so obviously if he had the CB radio and he was talking into it, he had to be driving with one hand. He was driving this huge big truck with one hand around that corner.
Counsel then went on to refer to the conversation which Boyd said had occurred about mobile phone use after the accident. In his jury charge, his Honour alluded to Boyd’s evidence that he saw Fielding using his mobile phone immediately before the accident and told the jury they would have to decide whether it was a mobile phone or CB radio.
In Water Board v Moustakas[11] Mason CJ, Wilson, Brennan and Dawson JJ[12] said that:
In deciding whether or not a point was raised at trial no narrow or technical view should be taken. Ordinarily the pleadings will be of assistance for it is one of their functions to define the issues so that each party knows the case which he is to meet. In cases where the breach of a duty of care is alleged, the particulars should mark out the area of dispute. The particulars may not be decisive if the evidence has been allowed to travel beyond them, although where this happens and fresh issues are raised, the particulars should be amended to reflect the actual conduct of the proceedings …
It is necessary to look to the actual conduct of the proceedings to see whether a point was or was not taken at trial … [13]
[11](1988) 180 CLR 491.
[12]Gaudron J dissented.
[13](1988) 180 CLR 491, 497.
Although Boyd’s particulars of negligence did refer to the use of the CB radio, no emphasis was placed on this during the trial. Boyd’s evidence was that Fielding was not using a CB radio, but a mobile phone. Fielding admitted use of the CB radio and denied using his mobile phone. Counsel’s closing address was the first time that any attention was focused on the question whether Fielding had removed a hand from his wheel to talk on the radio. His Honour’s jury direction was consistent with the emphasis put on the alleged mobile phone use at the trial. Counsel did not ask his Honour to direct the jury to consider whether use of the CB radio while turning, was negligent.
Because of the way the case was run, no miscarriage of justice occurred as a result of his Honour’s failure to direct the jury about the possible significance of Fielding’s use of a CB radio at the time of the collision. Further, I doubt whether that evidence had any relevance if the evidence of the Xerri and Reaks that the accident occurred when Boyd tried to ‘run the gap’ was accepted, as the jury verdict indicates. It was only if the jury had considered that the truck had veered, as Boyd alleged, that Boyd’s allegation that Fielding failed to keep a proper look out because he was using a CB radio became relevant. It is not now open to Boyd to complain that the jury was not directed on that matter.
In relation to paragraph (c) Boyd complained that his Honour did not adequately direct the jury on the significance of the conversation or conversations which occurred between Boyd and Fielding after the collision. The passage in his Honour’s jury direction relevant to this complaint is as follows.
I want to go to the issue of what occurred after the collision occurred, that is, as between the plaintiff and the defendant, and the conversation which they say they had. I want to read some parts of the transcript to you so that this aspect of what occurred is clear to you …
The plaintiff, you will recall, gave evidence that at one stage he was standing beside a car and was asked whose car it was and he said ‘Brett’s’, being Brett Fisher, the first witness. The question was this, ‘You pointed out the truck driver and said, “That’s the man’”? Answer, ‘Yes’. ‘What did the truck driver do?’. Answer, ‘The truck driver said to me, “I’m sorry, I didn’t see you,” which I replied to, “No, you were too busy on the phone,” and he just accepted that and then we just swapped names and addresses’.
He was then cross examined … by Mr Smith. Mr Smith put this proposition to him, ‘He will give evidence that he did come back to speak with you and the first thing he asked you was whether you needed an ambulance and you told him that you did not. Is that correct?’ Answer, ‘I cant remember’. ‘The second thing he said is, “Do you want the police called?” You said you did not want the police called, is that correct?’ Answer, ‘I cant remember’.
When the defendant gave evidence, he was asked by Mr Smith to describe what he did following his understanding that the collision had occurred and he said this: ‘What did you do?’ Answer, ‘I stopped. I put my hazard lights on, which are very large, continuous lights. All my rotating lights were working, everything else. Headlights are on all the time. I reversed the vehicle back in that same right-hand lane. I stopped before I got back to Mr Boyd’s motorcycle. By that stage he was on the footpath with some people. I left the crane in the centre lane. I went over to see how he was. I spoke to him briefly. I explained to him that I’ve got to get my crane off the road, its still blocking the right lane. I moved the crane over to the left-hand side of the road, half on the footpath, half on the road outside a garden supply place and went back to see Mr Boyd again’. Question, ‘Did you conduct any conversation with him?’ Answer, ‘I spoke to Mr Boyd. I said that I was sorry that he had injuries, but I never ever saw him. I didn’t know which direction he had come from. I asked him if he wanted police and ambulance. He told me that he had already rung friends and they were to come to pick him up’.
You will understand, members of the jury, from your recollection of that evidence and from what I have reminded you, the plaintiff says he spoke to the defendant once. The defendant says that he spoke to the plaintiff twice, on the first occasion, then went back to his truck to do whatever he needed to do and then he came back and there was conversation about the police and ambulance. What you will need to do, to the extent that you consider that to be of significance, is of course to balance up what actually happened in the aftermath of the collision. Were there two occasions they spoke or was there one? It was not put to the plaintiff that there were two occasions that the defendant approached him. In any event, what you need to do is to balance up, to the extent that you consider the occasions when they confronted one another occurred on one occasion or two and then to determine the significance that you attribute to the exchange and you will understand that they both say that the conversation occurred in different ways. The plaintiff says that other things were said. Mr Fielding says other things were said altogether, so you will need to make an evaluation of that.
There is no substance in the complaint that his Honour did not direct the jury sufficiently or at all on Boyd and Fielding’s evidence about the conversations said to have occurred after the accident.
For the above reasons these grounds of appeal cannot be sustained.
Grounds 3.1 and 3.2 – unbalanced jury direction relating to inconsistencies in Boyd’s and respondent’s evidence
These grounds of appeal allege that the jury verdict was unbalanced because his Honour drew attention to inconsistencies between Boyd’s evidence and his prior statements, but made no similar remarks about inconsistencies between Fielding’s answers to interrogatories and his evidence at trial.
I have referred above to the cross-examination of Fielding and Boyd.[14] It was put to Fielding that in his answers to interrogatories he had said that ‘I believe that in the process of making the left turn, my vehicle was in both the west bound lanes of Canterbury Road up to the point of this collision’. Later in cross-examination he conceded that a portion of the truck was in both lanes when he was making the turn. His Honour made no reference to this matter in his jury directions.
[14]Paras [14]-[17] and [23]-[28] above, respectively.
In Boyd’s cross-examination it was put to him that in his answers to interrogatories he had said that he was travelling at approximately 40 kilometres per hour at the time of the collision, whereas he had said in his evidence-in-chief that when he collided with the truck he was travelling at 30 kilometres per hour and that he had braked before the collision. Boyd said he had been confused by the question and had meant that 30 kilometres per hour ‘was the speed I slowed down to after the collision’.
Following the cross-examination of Boyd, his Honour told the jury that they would have access to the exhibited answers to interrogatories. It must have been apparent to the jury that the same applied to Fielding’s answers to interrogatories. Apart from mentioning a possible inconsistency relating to the evidence given by Boyd about the speed he was travelling at when he was hit by Fielding’s truck, his Honour did not make specific reference to the inconsistencies between the evidence-in-chief of Boyd and Fielding and their respective answers to interrogatories. However, he told the jury that he would not summarise every aspect of the evidence. In my opinion the charge read as a whole did not unduly emphasise inconsistencies in Boyd’s evidence, while ignoring similar inconsistencies in Fielding’s evidence.
These grounds of appeal are not made out.
Grounds 2.1 and 2.2 – inadequate direction on law and fact
These grounds of appeal allege that his Honour directed the jury inadequately on the law and did not sufficiently relate it to the facts of the case. Counsel for Boyd submitted that his Honour did not satisfy the requirement in Alford v Magee[15] to determine the real issues in the case, and to direct the jury on how the law related to the facts in light of those issues. He submitted that his Honour should have referred the jury to the particulars of negligence, to the significance of Fielding’s use of the mobile phone or CB radio while turning a large vehicle, and his failure to see or be aware of Boyd at any time until he was flagged down by Xerri.
[15](1952) 85 CLR 437, 466.
Counsel for Fielding submitted that none of these complaints were made out. His Honour had adequately directed the jury on the standard of care required of a driver and summarised the main areas in factual dispute. It was not necessary for his Honour to tell the jury that in deciding whether Fielding was negligent they should consider whether he had failed to keep a proper look out. Fielding had conceded that he had not seen Boyd, but this was not a material issue in the trial. Further, his Honour had made it clear to the jury in his direction that he was not going to refer to every piece of evidence or every point made.
The submission of counsel for Fielding should be accepted. His Honour’s direction on the law was as follows:
The duty of care, members of the jury, is to act reasonably and prudently in the driving of the motor vehicle by the defendant in all of the circumstances. Let me give you an example. If I were driving my motor vehicle down the Geelong Road at a hundred kilometres an hour in a hundred-kilometre zone you would say, ‘Look, there is nothing unreasonable or imprudent about that’. But if you were coming back into court and you saw me driving down William Street outside this court at a hundred kilometres an hour, you would consider that to be utterly unreasonable, utterly imprudent, if not dangerous. Why would you say that? Because I have fallen below what you would reasonably expect to be a standard of driving in those circumstances. There is quite a different standard required on the Geelong Road from driving down William Street. Of course, you do not have to find that someone’s driving was dangerous for it to lack reasonableness and prudence; that is merely an example of an exaggerated kind that I wanted to give you so that you understand how that works.
Of course, when assessing whether a party is being negligent, you must understand, as I have no doubt you do, that no-one is expected to reach a standard of perfection in driving a motor vehicle. What is expected is reasonableness and prudence and, of course, you are to be mindful of what you consider to be a reasonable standard. As judges of the facts, you bring – and I once again return to the fact – your commonsense, your experience of life and no doubt all of you drive motor cars and you understand what I am talking about without any difficulty, I am sure.
The standard you apply is an objective standard. It is not a matter of asking, ‘What would I have done in the circumstances, whether I was the defendant or the plaintiff?’ That is not how you do it. That is subjective. You stand back from it and you ask the question, ‘All right, here is the scene unfolding. Was there a failure? Was there a breach?’ by testing it in the way which I have described.
When you judge whether the defendant was negligent, you do not leave a case in negligence just hanging in the air. What I mean by that is this: let us assume there was a head-on collision and one of the drivers had a faulty tail-light and the negligence was that this car had a faulty tail-light. That is not negligence at all.
It really is something that is irrelevant. It is just hanging in the air. In other words, what you need to do is define in your own minds what was it that the plaintiff says here amounted to the negligence of the defendant. In other words, you just do not have it hanging in the air. You have to define it.
As I have said, it is ultimately up to you to decide what is reasonable, what is prudent, given the circumstances of this case and, of course given a whole range of things that you need to consider when you make an objective judgment, and that is the visibility at the time, the time of day, the weather conditions, the traffic conditions, the locality of the accident and maybe there will be other things that you can think of that you will consider to be relevant in weighing up and balancing the judgment you are to make.
That direction on the law was entirely adequate. This was not a negligence case which involved assessment of complex technical questions. The issue to be determined was clearly defined. It can be assumed that a jury is well-equipped to decide what the standard of care of a reasonable driver requires. In the circumstances of this case there are no further matters to which his Honour should have referred in instructing the jury on the standard of care of a reasonable driver.
His Honour prefaced his summary of the facts as follows:
I want to spend just a moment telling you about the summary I am going to give. This trial started on a Tuesday; it is now a Tuesday. We have been here for five days. I am not going to recapitulate every word spoken. I am not going to refer to every piece of evidence. I am not going to refer to every point made by Mr Smith and Mr Wikramanayake because to do so would be to do other than give you a summary. What is the purpose of a summary given by a judge? Simply to remind you of the flavour of the evidence so that it brings back into your state or consciousness the whole of the evidence. This is what it is intended to do. If I fail to refer to something, it does not mean it is not important. If I refer to something, it does not mean that I am emphasising it and saying, ‘That’s important and the things I have not said are not’. It is meant to be a summary and that is the way I want you to look at it.
His Honour’s summary referred to the evidence of each witness, drawing attention to the central issues on which there was factual dispute and related his summary to the standard of care of a reasonable driver. It was not necessary for him to summarise every minor detail of evidence. Furthermore, he made it clear to the jury that the issue they had to determine was whether Fielding had breached the standard of care of a reasonable driver, having regard to the factual findings. Although his Honour did not direct the jury on the relevance of failure to keep a proper look out, this was not part of Boyd’s case at the trial. Nor do I accept Boyd’s submission that his Honour failed to give the jury any assistance as to how the law should be applied to the facts.
Early in his jury directions his Honour told the jury that if he made a comment they should not assume they should follow it and that ‘if a comment is made and you think that it is not on, you reject it. It is as simple as that’. He reminded them later in his directions that:
… whatever comments I make, members of the jury, are to be taken with the same persuasion as comments made by counsel. You can be assisted by them and you can accept them. On the other hand, you can reject them absolutely.
His jury charge was both balanced and comprehensive.
Ground 4 – failure to give Browne v Dunn direction
Ground of appeal 4 complains that his Honour failed to direct the jury, in accordance with the principle in Browne v Dunn[16] of the significance and possible effect of the failure of Fielding’s counsel to put to Boyd that there were two conversations between him and Fielding following the collision. This ground of appeal was appropriately abandoned by Boyd’s counsel during the hearing of the appeal.
[16](1893) 6 R 67.
Ground 5 – answer to jury question about Fielding’s use of his mobile phone
Ground of appeal 5 complains of the answer which the judge gave the jury to the question about the evidence relating to Fielding’s use of a mobile phone.
Boyd’s counsel submitted that his Honour had given an unbalanced answer to the jury question about the evidence that Fielding was holding in his hand, and using, a CB radio at or about the time of the collision. It was submitted that his Honour should have referred to Xerri’s evidence, and to Fielding’s evidence in cross-examination about the use of the CB radio. It was said that his Honour had responded in a perfunctory manner to the request of counsel for Boyd’s request that the jury’s attention be directed to the conversation about mobile phone use which Boyd alleged had occurred after the accident.
Counsel for Fielding submitted that his Honour had responded adequately to counsel’s request and had given the jury an even-handed response to its question.
The relevant passage in the trial transcript records the following. The jury said that on the first day they had heard evidence from Fisher and Boyd and asked his Honour to have ‘details from the transcript read to us please about the conversation regarding the use of a mobile phone at the time of the happening of the accident’. It will be noted that although Ground 5 focuses on the use of the CB radio, the jury question actually related to the conversation about the mobile phone use (not the CB radio) which occurred after the accident.
His Honour then clarified that question by saying ‘So you want the conversation which would be between Fisher, Boyd and Fielding regarding the use of either a mobile phone or CB radio coming from those three witnesses’. His Honour therefore expanded the question to include reference to a conversation about the CB radio.
After discussion with counsel in which his Honour said that ‘I want to make sure this is absolutely balanced’ he said that he would read to the jury Boyd’s evidence, Fielding’s evidence and Fisher’s evidence about Fielding’s use of the mobile phone or a CB radio and about the conversation which followed the accident. That included evidence about use of the phone or CB radio at the time of the accident and was not confined to the subsequent conversation.
His Honour referred to the evidence of Boyd that he could see Fielding talking on a mobile phone at the time when he began to pass him. His Honour also included the question ‘[Fielding] says he was using a CB radio, was he using a CB radio?’ Answer ‘I don’t believe so, no’. His Honour then took the jury to Fielding’s evidence-in-chief which indicated that he had three CB radios in his truck and that he had communicated with somebody on his CB radio. He also referred to the evidence of Fielding that there was a phone in the truck and that he had not used the mobile phone as he went to the intersection and made the left-hand turn and to his evidence as to the dimensions of the handpiece for the CB radio. He then referred to Fisher’s evidence that the driver was using a mobile phone on the footpath after the accident and took the jury to the evidence of Boyd, Fielding and Fisher about what was said after the accident.
His Honour told the jury if they wanted anything more about the use of the mobile phone they should tell him. The foreman then said that the answer to the question had been ‘satisfactory’. Counsel for Boyd then said to his Honour that the judge had left out the alleged statement made by his client to Fielding after the accident, that he was talking on his mobile phone when the collision occurred. His Honour said he would ask the jury to come back and tell them that they could have regard to Exhibit H which included an account by Fielding of conversations between himself and Boyd. His Honour then drew the jury’s attention to that conversation. He said:
Members of the jury, this is a bit like those conversations you have when you say, ‘Look, I just want to make two points’, and it suddenly turns into three or four. I neglected to say this to you: that if you have regard to Exhibit H, you will see that is a statement of Mr Fielding and you’ll find in that statement reference to conversations which he said in the statement occurred between
he and the plaintiff. That is it, I hope. You can now retire after you’ve made your note of that, so it’s Exhibit H.
In my opinion, there is absolutely no substance in the contention that his Honour answered the jury question in an unbalanced or unfair way. Accordingly Ground 5 fails. I have already dealt with Ground 6.
For these reasons I would dismiss the appeal.
DODDS-STREETON JA
I have had the advantage of reading in draft the reasons for judgment of Neave JA. I agree with the disposition proposed by her Honour for the reasons she gives.
KYROU AJA
I agree with Neave JA.
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