Police v Melisi - [2010] SASC 21

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v MELISI
[2010] SASC 21
Judgment of The Honourable Justice White
15 February 2010
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - DRIVING WITHOUT DUE CARE AND ATTENTION OR REASONABLE CONSIDERATION FOR OTHER ROAD USERS
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - OTHER MATTERS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST ACQUITTAL
Appeal against acquittal of a charge of aggravated driving without due care - whether Magistrate failed to apply an objective test to the assessment of the respondent's driving - whether Magistrate made an error of principle in focussing on the ability of the respondent to avoid the collision - whether Magistrate should have found the charge proved on the evidence at trial.
Held: Magistrate appropriately applied an objective test to the assessment of the respondent's driving - not an appropriate case for appellate intervention with the Magistrate's findings of fact - appeal dismissed.
Road Traffic Act 1961 (SA) s 45; Justices Act 1921 (SA) s 177; Magistrates Court Act 1991 (SA) s 42, referred to.
Dunsmore v Dawson (1981) 94 LSJS 1; Crispin v Rhodes (1986) 40 SASR 202; Ladlow v Hayes (1983) A Crim R 377; Vairy v Wyong Shire Council (2005) 223 CLR 442, applied.
Taylor v Hayes (1990) 53 SASR 282; Rowland v Police (2001) 79 SASR 569; Thorogood v Warren (1979) 20 SASR 156; Semple v Williams (1991) 156 LSJS 40; DPP (Cth) v Brown (1994) 72 A Crim R 527; Police v Jachmann [2009] SASC 392; Arthur v Police (2008) 101 SASR 529, considered.

POLICE v MELISI
[2010] SASC 21
Magistrates Appeal

WHITE J: On 8 October 2007, a van driven by the respondent struck a pedestrian, causing him fatal injuries. The respondent was charged with driving without due care, with the prosecution alleging that the death of the pedestrian made it an aggravated offence.[1] A Magistrate acquitted the respondent of that charge. The Police now appeal against the order of acquittal.
[1] Contrary to s 45(3) of the Road Traffic Act 1961 (SA) (RTA).
The appeal is by way of rehearing. This Court is required to reconsider all of the evidence before the Magistrate and to make up its own mind, after giving due weight to the advantage of the Magistrate in seeing and hearing the witnesses, and after giving appropriate weight to the Magistrate’s findings on credibility which depended wholly or partly upon the witness’ demeanour.[2]
[2] Taylor v Hayes (1990) 53 SASR 282. Although Taylor v Hayes was decided in relation s 177 of the Justices Act 1921 (SA), the approach discussed by Perry J is equally applicable to appeals under s 42 of the Magistrates Court Act 1991 (SA): Rowland v Police [2001] SASC 179; (2001) 79 SASR 569.
In the case of a prosecution appeal against an acquittal based upon a Magistrate’s finding of a reasonable doubt, the Court, in recognition of the principle against exposing a defendant to double jeopardy, acts with restraint. In particular, an appeal against an acquittal which involves issues of fact, or in which the conclusions at first instance depended upon the Magistrate’s assessment of conflicting testimony, requires appellate restraint.[3]
[3] Thorogood v Warren (1979) 20 SASR 156 at 159; Semple v Williams (1991) 156 LSJS 40 at 41-3; DPP (Cth) v Brown (1994) 72 A Crim R 527 at 535-6; Police v Jachmann [2009] SASC 392 at [8].
Driving Without Due Care
Section 45(1) of the RTA provides:
A person must not drive a vehicle without due care or attention or without reasonable consideration for other persons using the road.
Section 45(3) creates the aggravated offence of driving without due care or attention or without reasonable consideration for other persons using the road if the offence causes the death of, or serious harm to, a person.[4] As already noted, the respondent was charged with the aggravated form of the offence.
[4] Arthur v Police [2008] SASC 213; (2008) 101 SASR 529.
Factual Circumstances
The Magistrate heard oral evidence from four witnesses including the respondent. In addition, the parties agreed certain facts and to the tender of some statements from other witnesses without the need for them to attend for cross-examination. The Magistrate accepted that all witnesses, including the respondent, had given their evidence honestly, although he regarded some evidence as more reliable than others. On appeal, there was no challenge to the Magistrate’s factual findings. The issues at trial were not really about what had occurred, but whether the respondent’s lookout had been adequate and whether he had driven sufficiently defensively in the circumstances.
The collision occurred at about 9.10 am on 8 October 2007 on Greenhill Road at Hazelwood Park. The respondent had been travelling south on Glynburn Road and had performed a right-hand turn at the Glynburn Road – Greenhill Road roundabout so as to travel west on Greenhill Road. The collision occurred at a point approximately 150 metres west of the roundabout. Greenhill Road in that area comprises two lanes for east bound traffic and two lanes for west bound traffic separated by a raised median strip. The respondent was in the centre lane (the lane nearest to the median strip). The Magistrate accepted that he was travelling at 55-60 kph.
The collision occurred in an area described by a Police officer as “an unmarked and uncontrolled designated pedestrian area”. This area comprised a cut-out in the southern kerb of Greenhill Road permitting easier access by pedestrians on to the road surface, a second cut-out in the centre raised median strip (with adjacent pedestrian safety bars) and a third cut out on the northern kerb of Greenhill Road. This pedestrian area was not controlled by pedestrian lights, nor was it in the nature of a zebra crossing. Its presence was indicated to drivers travelling in a westerly direction on Greenhill Road by a pedestrian advisory sign on the southern grass verge approximately 60 metres to its east. In addition, the pedestrian safety bars in the median strip had red and white reflective tape on the lateral posts.
The deceased was an elderly man aged 90 years. He suffered from deafness and did not have sight in one of his eyes. He walked with a stick.
The Magistrate accepted evidence that the deceased had stepped from the adjacent grass verge onto the west-bound carriageway of Greenhill Road without stopping. He was walking quickly and was seemingly oblivious to the approach of west-bound traffic. The Magistrate likened his entry on to the road to that of a person who has the benefit of a green “walk” sign at a crossing controlled by traffic lights. Having entered Greenhill Road, the deceased continued walking across it until the point of impact. There were no indications that he made any check at all of the approaching traffic. The Magistrate considered, without intending any disrespect to the deceased, that his entry onto Greenhill Road had been “with a complete disregard for his own safety”. He said that the deceased had “most regrettably and sadly, simply walked into the path of the oncoming vehicle of [the respondent]”.
A Mr and Mrs Davey were driving in their car in the left-hand lane for west-bound traffic (the lane nearest the median strip). Mr Davey died before the trial but a statement which he had given to the police was tendered by consent. Mr Davey said that he was driving in a stream of traffic in the left lane with cars alongside him in the right-hand lane. He saw the deceased when he came on to the road, saying “he just suddenly appeared”. He braked “slightly heavier than normal” to avoid hitting the deceased, and had still not come to a complete stop when the deceased crossed in front of him. The Magistrate regarded Mr Davey’s statement as reliable.
Mrs Davey did give evidence. She saw the deceased while he was still on the footpath. Mrs Davey saw that the deceased entered Greenhill Road without looking to the east to check for west-bound traffic. She described the deceased as walking “very quickly”.
Mr Klerck, the driver of the vehicle immediately behind the Davey’s vehicle (and in the same lane) said that he saw the deceased on the grass verge and then step off the kerb in front of the Davey’s vehicle. He noted that the Davey’s vehicle braked and he too applied his brakes, bringing his vehicle to a halt. He said that he had been stationary for up to five seconds before the impact occurred but the Magistrate did not regard that piece of evidence as reliable. Mr Klerck said that the deceased was less than a metre into the centre lane at the time impact occurred.
The defendant said that he was travelling at a speed of approximately 55-60 kph. He was to the rear of the two cars in the left-hand lane. He noticed them slowing and he gained on them. He thought that the cars were slowing because they were about to turn into a driveway or into the next street on the southern side of Greenhill Road. He did not, however, see any indicators operating on either vehicle. He did not see the deceased until he was about level with the Davey’s vehicle and at that stage the deceased was already in the centre lane and directly in front of him. He did not have time to brake. He said that he swerved to his right. The Magistrate accepted that the defendant had swerved but could not make a finding as to whether that occurred momentarily before impact, simultaneously with impact, or momentarily after impact. The respondent also thought that his view of the deceased as he crossed Greenhill Road had been obscured by vehicles travelling in front of him, in particular, the two vehicles in the left-hand lane.
Mr Hall, an engineer with experience in accident reconstruction, was called by the respondent. I will refer to his evidence shortly.
Alleged Errors of Law
The appellant contended that the Magistrate had made several errors of law. First, it was said that the Magistrate had failed to apply an objective test to the assessment of the respondent’s driving, considering instead the respondent’s subjective beliefs about the circumstances confronting him. Secondly, it was said that the Magistrate had focussed inappropriately on the question of whether the prosecution had proved that the respondent’s lookout was inadequate. In the alternative, it was put that the Magistrate had been distracted into a consideration of whether the respondent could have avoided the collision with the deceased rather than that of whether his driving had been without due care.
Legal Principles
The legal principles applicable to alleged contraventions of the obligation to drive with due care are well established. The issue is to be determined objectively. The obligation to drive with due care is the duty to exercise the standard of care which one would expect of a reasonably prudent driver in the like or similar circumstances.[5] In the assessment of whether a particular driver has departed from that standard, it is immaterial that he or she had been unaware of, or did not advert to, the risks which the manner of driving presented to other road users.[6] The reasonably prudent driver is expected to drive with a defensive outlook, ie, a lookout “that not only sees immediate, or immediately developing, danger, but looks well ahead and searches for potential danger”.[7]
[5]    Dunsmore v Dawson (1981) 94 LSJS 1 at 4; Crispin v Rhodes (1986) 40 SASR 202 at 204.
[6]    Ladlow v Hayes (1983) A Crim R 377 at 390.
[7]    Stoeckel v Harpas (1971) 1 SASR 172.
An Objective Assessment of the Respondent’s Driving
It is true, as the appellant submitted, that the Magistrate did not refer expressly to the case law, or to the objective test which he had to apply, or to the standard of the reasonably prudent driver. This evidenced, it was said, the beginning of error in the Magistrate’s approach.
However, it is to be borne in mind that the Magistrate gave his decision immediately after the parties had presented their final submissions. In those circumstances, it is readily understandable that the Magistrate may have omitted mentioning expressly some matters which formed the basis for his reasons. Further, ex tempore reasons often proceed on the basis of what was put by the parties in their respective submissions. In the present case, it seems likely that both parties would have made their submissions on the basis that an objective test was to be applied. This Court does not have a transcript of the parties’ final submissions, so that one cannot be certain about this, but it is an additional reason for caution about accepting a submission that the Magistrate overlooked something as basic as the appropriate test to be applied.
In any event, a full reading of the Magistrate’s reasons indicates that he did consider whether the respondent’s driving departed from the requisite objective standard. On several occasions the Magistrate referred to the reasonableness of the respondent’s conduct or belief. He said, for example, that it was reasonable in the circumstances for the respondent “or anyone else in his position” to have concluded that the two vehicles in the left-hand lane were slowing down preparatory to making a left-hand term into a driveway, or into a nearby side street. Later, the Magistrate said that the respondent could not reasonably have been expected to foresee that a pedestrian would attempt to cross Greenhill Road in the manner of the deceased. In relation to the failure of the respondent to see the deceased, despite the slowing down and ultimate stopping of the Davey’s vehicle, the Magistrate said:
The combination of the rarity of that, namely of a vehicle such as the Davey vehicle stopping to allow a pedestrian to cross where there was no obligation to so stop and the obstruction to his vision by the presence of the Davey vehicle and the Klerck vehicle are such that it was not unreasonable and not through a want of care that Mr Melisi did not appreciate the presence of [the deceased] until a point had been reached where an impact was inevitable. [Emphasis added]
In each of these examples, the Magistrate applied the objective test of reasonableness. His use of the word “reasonable” or its cognates can, and should, in my opinion, be understood as a reference to what a reasonably careful driver in the circumstances would have done or observed.
In addition, the Magistrate referred to the general duties on drivers in a paraphrase of passages in the authorities:
It is beyond argument that all drivers have a duty which extends beyond simply observing the statutorily imposed obligations. It is not disputed, and I agree with APP Wright, that all drivers have a duty to drive defensively or even protectively. All drivers have a duty to drive conscious, at all times, that other road users may, and do as a matter of bitter experience, breach the road rules from time to time. Therefore, the follies and foibles of other drivers, pedestrians and road users generally must be kept in mind by all drivers and allowances made. The allowances to be made in any particular case, of course, will depend on the circumstances of the particular case. Obviously if a driver sees ahead of him, a situation of danger, his obligation is to take such steps as are reasonably necessary to avert or minimise that danger. That will often include a slowing of speed. Sometimes those defensive or protective actions are required where the danger is a potential danger, that is, one that is not visible but one that may potentially arise given the circumstances.
Much of this passage is drawn from the well-known reasons of Wells J in Stoeckel v Harpas.[8]
[8] (1971) 1 SASR 172.
When regard is had to all these matters, I am satisfied that the Magistrate did apply the requisite objective test in his consideration of the charge.
Focus on the Adequacy of the Respondent’s Lookout
I did not understand the appellant to press strongly the submission that the Magistrate had focussed inappropriately on the adequacy of the respondent’s lookout, rather than addressing the question of whether he had driven without due care.
In any event, I do not accept the submission. A failure to drive with due care occurs when the driver does something, or fails to do something which the reasonably prudent driver would do, or not do, in the circumstances. The “something” is a factual matter to be proved beyond reasonable doubt, warranting the legal conclusion that the driving was without due care.
In the present case, in particulars provided before the trial, the prosecution had identified an inadequate lookout as the principal omission of the respondent upon which it relied. Given the respondent’s admission that he had not seen the deceased at all until immediately before impact, that particularisation is readily understandable. It seems that the trial was conducted on the basis of that particularisation. It was appropriate therefore for the Magistrate to consider whether the prosecution had proved beyond reasonable doubt an inadequacy in the respondent’s lookout. I note that in Police v Jachmann in which, like the present case, the appellant had not seen the person with whom he collided until impact, Layton J described the question of whether he had failed to keep a proper lookout for other road users as “the principal issue in the case”.[9] It was very much the central issue in this case as well.
[9] [2009] SASC 392 at [9].
Further, the Magistrate did not regard his conclusion concerning the adequacy of the respondent’s lookout as being determinative of the charge. He also addressed the prosecution submissions that the respondent should, in the circumstances, have slowed his vehicle as he drew level with the two cars in the left-hand lane, or at least have “covered” the brake pedal so as to facilitate rapid braking if required.
Focus on Respondent’s Ability to Avoid the Collision
The alternative submission was that the Magistrate had approached the matter by considering whether the respondent could have avoided the collision, thereby making the error of principle indentified by Layton J in Police v Jachmann.[10]
[10] [2009] SASC 392 at [9].
At the end of his reasons, the Magistrate said that he was satisfied that the respondent’s van had swerved slightly to the right but, as already noted, was unable to make a finding as to whether that occurred momentarily before the impact, simultaneously with impact or momentarily after impact. He described it as an instinctive movement by the respondent, made at the last moment. The Magistrate then said:
There was no other defensive action reasonably available to Mr Melisi or which, not having been taken by him, is evidence or an indication that he was driving without due care. … Mr Melisi did take such defensive action as was reasonably available to him but, by that stage the scene was set.
…
My view is, once [the deceased] had left the safety of the verge and stepped onto the roadway the train of events which happened within the next few seconds was irretrievably set in place. There was no lack of care on the part of Mr Melisi which, in my view, contributed to that chain of events. Perhaps put better, the prosecution had not proven that any such lack of care on his part resulted in that chain of events or duly contributed to the outcome. [Emphasis added]
The appellant submitted that the emphasised passages indicate that the Magistrate had approached the matter by considering what it is that the respondent could have done to avoid the collision. It submitted that the Magistrate may have been influenced to approach the matter in that way by the written report of Mr Hall, the engineer, from whom the respondent adduced expert evidence. In his report, Mr Hall addressed the question:
Were there circumstances, which fit with the physical evidence and known human and vehicle characteristics that can lead to a conclusion that Mr Melisi was likely to have insufficient time available to avoid a collision?
Mr Hall’s report answered that question in the affirmative.

I agree that the passages in the Magistrate’s reasons to which the appellant referred are capable of being understood in the way for which the appellant contends. However, there are other considerations.
As already noted, the impugned passages appear at the end of the Magistrate’s reasons. Earlier in the reasons, the Magistrate had considered a number of matters which the prosecution had suggested indicated that the respondent should have driven more defensively. These included that the general area was one in which pedestrians might be expected to be on the road, the slowing of the two vehicles in the left-hand lane, and the obstruction to the respondent’s line of vision caused by those vehicles. He also referred to the prosecution submissions concerning the adequacy of the respondent’s lookout. The Magistrate then said:
The combination of the rarity of that, namely of a vehicle such as the Davey vehicle stopping to allow a pedestrian to cross where there was no obligation to so stop and the obstruction to his vision by the presence of the Davey vehicle and the Klerck vehicle are such that it was not unreasonable and not through a want of care that Mr Melisi did not appreciate the presence of [the deceased] until a point had been reached where an impact was inevitable.
In my view, it has not been established by the evidence that the circumstances were such that it was a lack of due care on the part of Mr Melisi to have not decelerated by either taking his foot off the accelerator and applying it to the brake and to not have ‘covered the brake’ which is the act of taking the foot off the accelerator and holding it over the brake pad ready to be applied.
It has not been proved, in my view, to the required degree, that it was through a want of care on Mr Melisis’s part that there was insufficient time for him to have taken any of those actions once he appreciated the true situation. The true situation was effectively concealed from him by the presence of the two vehicles on his left.
It can be seen that in these paragraphs, the Magistrate reached the conclusion that the prosecution had not made out the charge against the respondent. Having done that, the Magistrate then went on to give some further reasons concerning the deficiencies in the respondent’s lookout for which the prosecutor had contended. It was in the course of those further reasons that the Magistrate made the remarks which are presently impugned by the appellant. When the Magistrate’s reasons are understood in this way, it should not be concluded, in my opinion, that he has made the error of determining the charge by considering only whether the respondent could have avoided the impact.
It is also possible, as the respondent submitted, that in the passages presently impugned by the appellant, the Magistrate was addressing the aggravated element of the offence, and concluding that even if the respondent had been driving without due care, it had not been proven that the death of the deceased had been caused by that manner of driving. However, given my earlier conclusion, it is not necessary to express any final view about that submission.
For these reasons, I do not consider that the Magistrate made the errors of law imputed to him by the appellant.
Challenge to the Magistrate’s Factual Conclusions
The appellant submitted, in the alternative, that on the evidence which was largely undisputed the Magistrate should have found the charge proved. In essence, there were two aspects to this submission. The first was that the respondent’s admission that he did not see the deceased until a split second before impact was sufficient to indicate that his lookout had been inadequate. The second was that there were enough “cues” in the surrounding circumstances to indicate that the a reasonably prudent driver would have driven more defensively.
Mr Hall gave evidence that the deceased was likely to have been walking at a speed of between 1 metre and 1.5 metres per second. He used a speed of 1.2 metres per second for his own analysis. The width of the left west-bound lane on Greenhill Road was 3.4 metres. This meant that it would have taken the deceased approximately three seconds to walk the distance between the southern kerb and the point of impact.
The appellant’s submission in short was that the deceased was visible to be seen by the respondent for the whole of that period of approximately three seconds. Although three seconds is a short time in absolute terms, it provided a more than adequate opportunity for him to be seen. Hence it was said that the respondent’s admission that he had not seen the deceased was evidence by itself of an inadequate lookout.
There is force in that submission. Another way of assessing the position is to consider the respondent’s position during the period of three seconds before impact. If he had been travelling at a constant speed of 60 kph, he would have been approximately 50 metres from the point of impact when the deceased first stepped on to the roadway. If he was travelling at a constant speed of 55 kph, he would have been approximately 45 metres from the point of impact when the deceased first stepped on to the road surface. In other words, it could be said that the respondent travelled some 45-50 metres without seeing the deceased at all and without appreciating the risk which his presence presented.
Although the Magistrate did not make an analysis in these exact terms, he did not overlook the prosecution’s submission along these lines. He observed that statements by drivers that they had not seen another road user are often effectively admissions that the driver was not keeping a proper lookout. However, the Magistrate considered in the present case that the deceased was not visible to the respondent for the whole of the period during which he crossed the left lane. He made a specific finding that “the true situation was effectively concealed from him by the presence of the two vehicles on the left”.
On my review of the evidence, I think it unlikely that the deceased would have been completely obscured by the two vehicles, but accept that the respondent’s ability to see the deceased’s body (other than his head and shoulders) would have been obstructed by one or both of the vehicles for at least some part of the three second period. That is because the respondent’s vehicle was to the rear, and to the right, of those two vehicles. Accordingly, for at least some period, those two vehicles would have been between the deceased and the respondent. Of course, as both the respondent and the deceased neared the point of impact, that obstruction would have been removed. It is not possible on the evidence to determine when that may have been, but it is likely that it would have been for at least part of the 45-50 metres travelled by the respondent immediately before impact.
The deceased was a man of some 180 cms. It is likely that his head and shoulders may have been visible over the top of the two vehicles in the left lane, but in the circumstances I do not think that that detracts from the appropriateness of the Magistrate’s findings.
The obstruction caused by the two vehicles cannot explain the respondent’s failure to see the deceased over the last one to two seconds before impact. However, in considering whether that failure amounted to a want of due care, it is to be remembered that the risk that a pedestrian would emerge from the front of the two cars on the left was not the only matter to which the respondent had to be alert. He had to be exercising care having regard to all the risks of driving in the circumstances. The adequacy of his lookout had to be assessed having regard to those overall risks. This point was made by Hayne J in relation to the tort of negligence in Vairy v Wyong Shire Council as follows:
When a plaintiff sues for damages alleging personal injury has been caused by the defendant’s negligence, the inquiry about breach of duty must attempt to identify the reasonable person’s response to foresight of the risk of occurrence of the injury which the plaintiff suffered. That inquiry must attempt, after the event, to judge what the reasonable person would have done to avoid what is now known to have occurred. Although that judgment must be made after the event it must seek to identify what the response would have been by a person looking forward at the prospect of the risk of injury.[11] [Emphasis added]
In the present case the respondent had also to be paying attention to the vehicles in front of him, the two vehicles in the left lane, his own speed, and possibly to any vehicles travelling behind him. Accordingly he could not be looking only to the area from which the deceased emerged. Consideration of those matters makes his failure to see the deceased more explicable.
[11] [2005] HCA 62 at 126; (2005) 223 CLR 442 at 461.
Nevertheless, it is a significant matter that the respondent did not see the deceased until only a split second before impact. That significance is underlined by the fact that the respondent did not see the deceased even when the latter had wholly passed the front of the Davey’s vehicle. This is despite the fact that the deceased was in the area of his forward vision. Accordingly, even making allowance for the obstruction to the respondent’s line of vision, and the other risks to which he had to be alert, I consider that the respondent’s failure to see the deceased earlier than he did makes the question of whether he departed from the standard of the reasonably prudent driver borderline.
However, I should not interfere with the Magistrate’s conclusion unless I am satisfied that it is wrong. That is particularly so when regard is had to the principle of appellate restraint on appeal against orders of acquittal, to which I referred earlier. As I say, I consider that the case is borderline, but I am not satisfied that the Magistrate’s decision is wrong. That being so, this is not a case for appellate intervention.
The appellant emphasised, as the prosecution had before the Magistrate, the failure of the respondent to respond defensively to the “cues” available to him. These included the pedestrian advisory sign, presence of the pedestrian crossing area itself, the fact that the two cars in the left-hand lane were slowing without operating any indicators, the possibility that the second of those cars might suddenly divert into the centre lane in order to overtake the first, and the proximity of Hazelwood Park and its swimming pool on the northern side of Greenhill Road (facilities which could attract pedestrians). It was submitted that these matters in combination should have caused the respondent to be particularly cautious and, in particular, have caused him to give effect to that caution by slowing his speed and perhaps by “covering” his brake pedal so as to facilitate rapid braking if necessary.
Against that, it is to be noted that the collision occurred at a time when there appears to have been a steady stream of traffic on Greenhill Road. I note that Mr Davey described himself as travelling in a stream of traffic (with the deceased simply stepping on to the road between his car and the car immediately in front of him). The presence of the traffic stream could also be regarded as a “cue” making pedestrian movement such as that of the deceased unlikely. Greenhill Road in the area is a wide well-made road. Visibility at the time was good. The respondent’s driving appears otherwise to have been unremarkable. When regard is had to those additional matters, it is difficult, in my opinion, to conclude that the reasonably prudent driver would have thought it necessary to respond in the way for which the appellant contends. At the very least, I am not satisfied that these matters, together with the criticisms which the appellant made of the respondent’s lookout, indicate that the Magistrate’s conclusion was incorrect.
Conclusion
For the reasons given above, I dismiss the appeal.