Pankelis v Frankcombe
[1988] TASSC 20
•10 March 1988
TASSC A5/1988
CITATION: Pankelis v Frankcombe [1988] TASSC 20; A5/1988
PARTIES: PANKELIS
v
FRANKCOMBE
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 20/1987
DELIVERED ON: 10 March 1988
JUDGMENT OF: Neasey J
Judgment Number: 5/1988
Number of paragraphs: 20
Serial No 5/1988
List "A"
File No LCA 20/1987
PANKELIS v FRANKCOMBE
REASONS FOR JUDGMENT NEASEY J
10 March 1988
This appeal from a Court of Requests decision concerns a motor vehicle accident which occurred on 9 September 1985 at the junction made by a road known as the Nook Road with the Sheffield Main Road in Northern Tasmania. The junction makes a "Y" formation, in that the Nook Road joins the southbound lane of the two lane Sheffield Main Road at an acute angle. The appellant Pankelis was travelling in a Holden sedan car in a north–westerly direction, on Nook Road, approaching the junction, and intending to continue in a northerly direction along the Main Road. There was a give–way sign where the Nook Road joins the Main Road, and the appellant was required to give way to traffic proceeding south on the Main Road which the respondent, Frankcombe, was doing. He was driving a Suzuki flat tray truck. Each vehicle was carrying one passenger. After the appellant entered the junction there was a collision between the two vehicles. The passenger in the appellant‘s car subsequently died from injuries received.
When the vehicles came to rest after impact, the appellant’s vehicle was on the edge of the northbound lane of the Main Road, facing in a north easterly direction, and the respondent‘s vehicle was straddling the centre line, facing north west, and having about two thirds of its length on the south bound lane of the Main Road. Photographs taken of the vehicles in static position after the accident show that the right front of the appellant’s vehicle and the left front of the respondent's were only two or three feet apart, but the actual distance is not specified in the evidence. Both vehicles were extensively damaged. The appellant sued the respondent for damages, in a sum slightly less than $5,000.
At the hearing, the only person who gave evidence about the circumstances of the accident was the appellant. He said he saw the respondent’s vehicle approaching the junction from the north at a very rapid speed, just before he stopped at the junction line. He looked left, and then right again. He saw the other vehicle at what he thought was an ample distance away for him to cross safely into the northbound lane of the Main Road, and he commenced to do so. He would have had plenty of time to cross the southbound lane before the respondent's vehicle arrived, he said, but as he was crossing, the respondent’s vehicle commenced to move across towards the northbound lane – ie, towards its right and to its incorrect side. The respondent's vehicle continued in that course, crossed over to the northbound lane and collided with the appellant’s vehicle in that lane.
The respondent gave evidence, saying that as a result of the accident he had suffered amnesia, and had no recollection of the actual circumstances of the accident. It was sought to call the respondent‘s daughter, who was his passenger, aged eight at the time of the accident and ten when the hearing took place, but the court rejected her as a witness. As she was the only other person who, it was claimed, was able to give some account of the circumstances, her evidence was important if receivable; but after a few brief questions the learned Commissioner declined to receive the girl's evidence on oath. At least, that is the impression I take from the transcript. It does not seem that consideration was given to whether the girl's evidence could be received unsworn, pursuant to s128 of the Evidence Act 1910 (see Cross on Evidence, 3rd Aust edn, para 7.12, 7.13).
However, the principal ground of appeal was based upon the alleged wrongful admission of opinion evidence by a Constable Flude, who attended the scene of the accident and was permitted by the learned Commissioner, against the objection of the respondent, to tender a sketch plan which he had made. This plan purported to mark the point of impact between the vehicles, as estimated by him, at a point on the southbound lane of the Main Road. That is to say, the constable was permitted to give evidence of his opinion as to the point of impact, based upon his alleged qualification as an expert in the investigation of road accidents. The Commissioner, in finding for the respondent, accepted Constable Flude’s evidence as to the location of the point of impact, and the Commissioner‘s finding as to that crucial fact was clearly the lynch–pin of his reasoning.
Constable Flude’s evidence was placed before the Court in a somewhat unorthodox manner, designed apparently to cut down the time involved in its presentation. He had been the principal investigating officer preparing material for the coronial inquiry into the death of the applicant‘s passenger, and in the course of doing that he had sworn an affidavit for tendering at the inquest. That affidavit, in which his account of the facts was set out, was tendered in evidence before the Commissioner by consent. The sketch plan produced by Constable Flude was objected to insofar as it sought to show the suggested point of impact. The constable’s oral evidence of his opinion as to that point was also contested, and evidence was heard from the constable in respect of his training and experience.
Constable Flude said he had been a police officer for seven years, during the last four of which he had been involved with traffic control. He had attended as an investigator some 50 traffic accidents per year. While training at the police academy he had attended an accident investigation course of a fortnight's duration, conducted by a senior officer experienced in the subject. The context of the course had comprised a study of the movement of vehicles before and after impact, how debris can be thrown from them, how to ascertain the vehicle’s point of impact, what deductions may be drawn from such matters as types of skid marks, and the like. During the course, he had seen films taken by police of various fatal accidents in Tasmania, and had studied the results of coronial inquiries following such accidents. Various tests had been conducted in relation to skids, loss of control of vehicles, marks on the roadway, and so on. The learned Commissioner admitted both the oral evidence and the sketch plan indicating the witness' opinion as to the approximate point of impact of the vehicles.
The constable up to this point had not given any detailed evidence of the facts upon which he based his opinion as to the point of impact, but in cross–examination he made it clear that the basis was the location of glass and debris on the road in the vicinity of the stationary vehicles. He said this debris "tended to emanate from a circle around an approximate point of impact (as shown on the diagram)". Much of the debris, consisting of broken glass from both vehicles, was strewn around the vehicles in a circle of approximately five to ten metres, which could be seen from looking at the police photographs.
In accepting this witness' evidence as to the point of impact, the Commissioner said, "I think that on the balance of probabilities the evidence of Constable Flude that impact took place in the southbound carriageway of the Spreyton/Sheffield Main Road, correctly establishes where impact took place". I think it is a fair interpretation of the court's observations that, although the Commissioner may have reasoned to some degree independently from the position of the glass and other debris, nevertheless he was to a substantial degree influenced by his acceptance of the constable’s opinion as to the point of impact.
The appellant's first argument was that accident investigation is not, to use the words of Menzies J in Clark v Ryan (1960) 103 CLR 486 at p501, "an organised branch of knowledge". The question, shaped more fully, is whether vehicle accident investigation and deductions drawn from it as to the causes of and other facts relevant to criminal or civil liability is an organised branch of knowledge, or "so far partakes of the nature of a science as to require a course of previous habit, or study, in order to the attainment of a knowledge of it" – per Dixon CJ in Clark v Ryan (supra) at p501.
In Volper v Poole [1972] 2 SASR 419, at p421, Bray CJ held that on the evidence before him, accident investigation had become an organised branch of knowledge. The report does not give any detail as to the evidence which enabled the learned Chief Justice to reach that conclusion, but there is no such evidence in the present case. All we have is evidence that the witness had done a fortnight’s course of study as a student at the Police Academy, in which various aspects of vehicle accident investigation had been studied under the guidance of a senior officer. There was no evidence as to the experience or skill of that officer. There was no evidence that there are any books written on the subject, or recognised authorities in the field; nor any evidence that vehicle accident investigation is the subject of a course of study at a recognised institution of learning or technical training.
"Expert" evidence of the kind tendered here has been refused admission in a number of cases. In Fisher v Brown [1968] SASR 65, a witness who appears to have been one of the two who were accepted as experts by Bray CJ, in Volper v Poole, (supra), a Sergeant Swaine, was not accepted by Travers J. It is interesting to note Sergeant Swaine‘s experience, as detailed in Fisher v Brown (supra). It included a special study of road accident investigation, including overseas study in the United Kingdom and the United States. In the United Kingdom the witness had carried out a course at the British Road Research Laboratory in England, and in the United States had studied the work of various police forces in that field, and he had studied films in slow motion at the University of California, showing what happens in collisions, and the like. He had also studied textbooks, and said that there was "a Bible" in this field called "Accident Investigators Manual", published by the "North West Traffic University". The witness in addition, had extensive practical experience in such investigations. However, Travers J. said that his view was that there was no recognised or organised branch of knowledge on the subject. His Honour did, however, refer to other South Australian cases in which a different view had been taken.
In Nickisson v R. [1963] WAR 114, the Court of Criminal Appeal in Western Australia by a majority held (to cite the headnote) that several years of experience in investigating traffic accidents does not qualify a police officer to give an opinion as to what occurred in an accident, based on what he observed subsequently at the scene; the police officer’s opinion being no more than a surmise or conjecture. Jackson SPJ (as he was then), said (supra at p116) that he had "always disallowed opinion evidence by police officers or other investigators who have attended the scene of a traffic accident and then by looking at marks on the road and damage to vehicles have tried to reconstruct the occurrence or to estimate the speeds at which the vehicles involved were travelling or the direction of their travel or even the exact point where the collision occurred if this is in dispute". Negus J agreed, but D'Arcy J dissented, adopting a narrower view of the basis upon which the witness' evidence had been admitted.
In R. v Faulkner, reported in 4 Motor Vehicle Reports 307, the Court of Criminal Appeal in Queensland held in 1986 that a research fellow in mechanical engineering at the University of Queensland should not have been permitted to give opinion evidence as an expert upon a number of contentious matters related to criminal liability arising out of a vehicle accident. These included the pre–collision position on the road of the two vehicles involved, their directions of travel and relative positions at the time of impact. Included amongst the data which the witness considered in forming an opinion as to the point of collision were gouges, debris and traces of oil found after the accident, and other such objective material. McPherson J, speaking for the court, said that he was not persuaded that there is an organised branch of knowledge pertaining to the reconstruction of highway traffic accidents, in order to elucidate their causes; or if there was, that the witness had been sufficiently qualified as an expert in it.
It is clear that in the present case there was no evidence capable of establishing that the investigation of highway traffic accidents is an organised branch of knowledge, in respect of which a person may become qualified by study or experience or both to give opinion evidence. There is no basis upon which judicial notice could be taken that there is such an organised field of study. On this first and basic ground, therefore, Constable Flude's opinion evidence as to the point of impact should not have been admitted.
The appellant next argued that even if there was such an organised field of study, the evidence should not have been held to qualify the constable as an expert. I accept that submission also. It does not need emphasising that a fortnight’s study by a student at a police academy, though proper and necessary for the purpose of instructing future police officers in the duties they might be required to perform in the course of traffic investigation, must be instruction of a relatively elementary kind. The further experience which Constable Flude had acquired might have made him at the end of it a competent officer in that field, but his skill and experience did not qualify him as an expert for the purpose of giving opinion evidence, even if there was an appropriate field for exercise of his expertise.
There is also a further basis upon which the witness' evidence should have been rejected. A relevant evidentiary rule is that an expert witness cannot express an opinion upon an issue which a jury or other tribunal of fact is capable of determining for itself from everyday knowledge and experience – see Cross on Evidence 3rd Australian Edition, para 15.2. The approximate location of the point of impact of two colliding vehicles, as indicated by deposits of debris of various kinds, which can be assumed to have dropped from or been dislodged from the vehicles by the shock of impact, may fall into this category. In Weal v Bottom (1966–67) 40 ALJR 436, which involved issues arising out of a collision between a car and a semi–trailer, Barwick CJ in a dissenting judgment said (at p437):–
"It is sufficiently within the experience of mankind that upon impact headlight glass or windscreen glass and mud from beneath the mudguards or chassis of a vehicle are apt to be dislodged and to fall close to that point at which the force of the impact dislodged them. Consequently the position of such glass and mud on a roadway has on occasions been held sufficient to warrant an inference that the impact with the vehicle from which the glass and mud has come took place at or close to the location of such glass and mud. In this case, standing alone, the position of the debris from the Holden, in my opinion, warranted an inference that the impact took place on the side of the road where that debris was found."
Taylor J in that case expressed a similar view, (at p441):–
"The jury, however, were entitled to reject this evidence and, no doubt, they did reject it having in mind the evidence concerning the position of the debris deposited on the roadway by force of the collision. This was reasonably cogent evidence and I agree with the observations made in the dissenting judgment of Barwick CJ that the inference was open to the jury as a matter of common sense that the point of impact was approximately indicated by the situation of the debris on the northern side of the roadway."
See also per McPherson J in R. v Faulkner (supra, at pp 310, 311). I take those statements to be persuasive expressions of opinion by individual judges that in an appropriate case it can be regarded as a reasonable conclusion by a tribunal of fact from its ordinary knowledge and experience, based upon evidence of fallen debris after a collision between vehicles, that the point of impact between vehicles occurred at a point or in an area indicated approximately by the location of such debris. As such, I respectfully agree, and in my opinion the court should have considered for itself in this case whether the position of the debris sufficiently indicated the point or area of impact. Expert evidence was unnecessary and inadmissible. On that basis also, Constable Flude’s evidence as to the point of impact should not have been admitted.
To hold that the evidence should have been rejected, however, is not of itself sufficient for the appeal to succeed. Order 76, r54(3), of the Rules of the Supreme Court provides that "no appeal from an inferior court shall succeed on the ground merely of misdirection or the improper reception or rejection of evidence unless, in the opinion of the court or judge, some substantial wrong or miscarriage has been thereby occasioned in the inferior court". If it could be said in the present case that the only reasonable conclusion, leaving aside the constable‘s evidence, was that the point of impact was where the constable’s opinion indicated, then there would have been no substantial wrong or miscarriage – cf. Volper v Poole (supra) at p421.
In my view, however, that cannot be said in the present case in view of the fact that the appellant‘s sworn evidence was uncontradicted. There are a number of cases which tend to say that rejection of uncontradicted oral evidence calls for some reasonable explanation – e.g., Richards v Jager [1909] VLR 140; Swinburne v David Syme & Co [1909] VLR 550; Llewellyn v Reynolds [1952] VLR 171; Sheahan v Woulff [1927] QSR 128; City of Brunswick v Hillier [1947] SASR 300; Holman v Holman 81 WN (Pt 1) (NSW) 374 (FC). If a tribunal were to conclude from the location of the debris and other relevant factors that the point of collision was on the respondent’s correct side of the Main Road, namely the southbound lane, and not in the northbound lane where according to the uncontradicted evidence of the appellant Pankelis it took place, that might provide a basis for a reasonable explanation, but that is something which ought to be considered, if appropriate on the evidence, at a new trial.
In addition, I think with respect that the question of competence of the respondent‘s daughter to give evidence, sworn or unsworn, might have been more carefully examined. See as to this, e.g., Regina v Taylor (1971) 1 CCC (2nd) 321. The location of the point of impact is a vital question in this case, and overall I think that for justice to be served a retrial is necessary. The appeal will succeed. The case should be retried before another Commissioner of the Court of Requests.
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