McPherson v Lucas

Case [2008] WASCA 56

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   McPHERSON -v- LUCAS [2008] WASCA 56

CORAM:   WHEELER JA

McLURE JA
MILLER JA

HEARD:   7 DECEMBER 2007

DELIVERED          :   11 MARCH 2008

FILE NO/S:   CACR 34 of 2007

BETWEEN:   VALERIE IRIS McPHERSON

Appellant

AND

BENJAMIN MURRAY LUCAS
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :HASLUCK J

Citation  :LUCAS -v- McPHERSON [2007] WASC 53

File No  :SJA 1108 of 2006

Catchwords:

Criminal law - Appeal against conviction for dangerous driving causing bodily harm - Relationship with negligence - Elements of the offence

Legislation:

Crimes Act 1900 (NSW), s 52A
Criminal Code (WA), s 24
Road Traffic Act 1974 (WA), s 59A, s 61, s 62
Road Traffic Code 2000 (WA), reg 52

Result:

Appeal allowed

Category:    A

Representation:

Counsel:

Appellant:     Mr R W Richardson

Respondent:     Ms C J Thatcher

Solicitors:

Appellant:     Stables Scott

Respondent:     State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Jiminez v The Queen (1992) 173 CLR 572

Kaighin v The Queen (1990) 1 WAR 390

McBride v The Queen (1966) 115 CLR 44

R v Coventry (1938) 59 CLR 633

Richardson v Price (1971) WAR 177

  1. WHEELER JA:  I agree with McLure JA.

  2. McLURE JA: The appellant was charged with one count of dangerous driving causing bodily harm contrary to s 59A(1)(b) of the Road Traffic Act 1974 (WA) (the Act).

  3. The charge arose from a collision between a car driven by the appellant and another vehicle at the intersection of Arbor Drive and Broadway (also known as The Boulevard) in Ellenbrook on 17 January 2006.

  4. The appellant was acquitted of the charge by Magistrate Edwards.  The magistrate's decision was overturned on appeal by Hasluck J who substituted an order of conviction.  The appellant appealed to this court from the decision of the appeal judge.  At the conclusion of the hearing of the appeal the court ordered that the appeal be allowed, the conviction be quashed and the other orders made by the appeal judge be set aside.  These are my reasons for joining in those orders.

The statutory framework

  1. Section 59A(1) of the Act provides:

    (1)If a motor vehicle driven by a person (the 'driver') is involved in an incident occasioning bodily harm to another person and the driver was, at the time of the incident, driving the motor vehicle ‑ 

    (a)while under the influence of alcohol, drugs, or alcohol and drugs to such an extent as to be incapable of having proper control of the vehicle; or

    (b)in a manner (which expression includes speed) that is, having regard to all the circumstances of the case, dangerous to the public or to any person,

    the driver commits an offence.

    (2)For the purposes of this section ‑ 

    [(a)deleted]

    (b)it is immaterial that the bodily harm might have been avoided by proper precaution on the part of a person other than the person charged or might have been prevented by…

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McPherson v Lucas [2008] WASCA 56
Case
[2008] WASCA 56
Decision Date

CaseChat Overview and Summary

The case of McPherson v Lucas involved the appellant's appeal against his conviction for dangerous driving causing bodily harm. The appellant was charged under the Road Traffic Act with dangerous driving causing bodily harm to the respondent, which occurred in a motor vehicle accident. The Court of Appeal was tasked with determining the relationship between the elements of dangerous driving and negligence, as well as the adequacy of the trial judge's direction to the jury on these issues.

The legal issues that the court had to address were whether the appellant's conduct constituted dangerous driving, and if so, whether it caused bodily harm to the respondent. Additionally, the court needed to clarify the distinction between the elements of dangerous driving and negligence, as well as the role of causation in determining liability. The appellant argued that the trial judge had failed to properly direct the jury on these matters, which led to an unsafe and unsatisfactory verdict.

The Court of Appeal found that the trial judge's direction to the jury was inadequate, as it did not properly distinguish between dangerous driving and negligence. The court held that dangerous driving involves a higher degree of recklessness or disregard for the safety of others than ordinary negligence. The court also emphasised the importance of causation in establishing liability for dangerous driving causing bodily harm. The appeal was allowed on the basis that the trial judge's direction to the jury was insufficient, leading to an unsafe and unsatisfactory verdict. The conviction was quashed, and the case was remitted to the trial court for a new trial.

Orders

Orders of the court

Appeal allowed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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