R v Wells

[2016] NSWDC 169

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Wells [2016] NSWDC 169
Hearing dates:	15 August 2016
Date of orders:	17 August 2016
Decision date:	17 August 2016
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	The accused is found guilty of the 2 back up charges on the s 166 certificate
Catchwords:	CRIMINAL LAW – Back up charges after acquittal at trial – Negligent driving occasioning death – Not give way when making a U-turn – Emergency vehicle – Negligence – Causation – Entering the overtaking lane of a freeway when car approaching – Failing to wait for approaching car to pass
Legislation Cited:	Rural Fires Act Criminal Procedure Act Australian Road Rules
Cases Cited:	Cameron v R unrep NSWCCA 27 Sep 1994 DPP v Yeo & Anor [2008] NSWCSC 953 Royall v The Queen (1990) 172 CLR 378) Thabo-Meli v R [1954] 1 WLR 228
Category:	Principal judgment
Parties:	The Crown Ian Jeffrey Wells
Representation:	Counsel: R Cooley – The Crown M Higgins – The Accused   Solicitors: Director of Public Prosecutions Crown Solicitor’s Office - Accused
File Number(s):	2013/44288

Judgment

Introduction

1. In May this year I presided over a jury trial in which the accused, Ian Jeffrey Wells was charged with 2 offences. The first was an offence of dangerous driving occasioning the death of Mrs Katina Mihailidis and the second was an offence of dangerous driving occasioning grievous bodily harm to Mr Peter Mihailidis. The accused was acquitted on both counts.

2. With the consent of Mr Wells, and pursuant to s 166 of the Criminal Procedure Act, I am now dealing with 2 back-up charges, an offence of negligent driving occasioning the death of Mrs Mihailidis and an offence of making a U turn without giving way to a vehicle.

3. There is no back up charge relating to the grievous bodily harm suffered by Mr Mihailidis. That circumstance apparently arises from inappropriate advice given to those who laid the charges.

4. The evidence which I will consider in determining the guilt or otherwise of Mr Wells on these 2 back up charges consists of the evidence given in the trial, both oral and documentary, supplemented by the tender in these proceedings of some further documents to which reference had been made in the earlier trial. There was also a statement of agreed facts tendered which has substantially reduced the issues for me to resolve.

Facts

5. What follows is a non-controversial outline of the events which have led to the present proceedings.

6. The accused was a volunteer rural fire-fighter with the Kariong Brigade of the Rural Fire Service (“the RFS”). One evening while at his home he was paged and, together with other RFS members, attended an incident at the Mount White weighbridge station on what was then called the F3 Freeway. Concentrated orange juice had been spilt. The accused travelled to the scene of the spillage in a RFS vehicle designated Kariong 1. That vehicle was a category 1 fire tanker which carried a substantial quantity of water. It was thus heavy, about 13 tonnes, and slow to accelerate.

7. Before completion of the task concerning the orange juice spill the accused and another of the RFS personnel at the weighbridge, Paul Barwick were asked to attend a motor vehicle accident closer to Sydney, but also on the F3 Freeway. The accused and Mr Barwick arrived at that incident and performed various duties.

8. At around 10.21pm the accused and Mr Barwick were asked to drive Kariong 1 back to the weighbridge station where the incident regarding the spillage of the concentrated orange juice was ongoing. The evidence does not disclose precisely what their duties on their return to the weighbridge would be. To get back to the weighbridge station the accused, who was driving Kariong 1, needed to turn the tanker around so that it could head north, back to the weighbridge station at Mount White. He thus drove along the F3 southbound until he reached U-turn bay 10. He decided that he would perform a U-turn through that gap in the median divide. There was a sign at the U-Turn bay which said “no U-turn” but a supplementary sign positioned underneath said “Police, RTA, NRMA and emergency vehicles excepted”.

9. There was no other traffic heading south, so the accused was able to begin his U-turn by moving to the left of the south bound carriageway before turning the steering wheel to the right. He activated the red and blue flashing lights on the top of the tanker and applied full right lock to the steering wheel. He was in second gear.

10. There was some north bound traffic which had gone past the U-turn bay, but a Toyota Corolla driven by Mr Peter Mihailidis, with his wife Katina Mihailidis in the passenger seat, had not. It was approaching the U-turn bay from the south (and thus heading north). It was visible to the accused and would have taken about 11 seconds to pass him. It was initially in lane 3 and it was Mr Wells’ intention to also turn into lane 3, the lane nearest the centre of the roadway.

11. When the Corolla driven by Mr Mihailidis was about 350 metres south of the U-Turn bay he flashed the car’s high beam headlights. At about the same time the Corolla moved from lane 3 to lane 2, the centre of the northbound lanes. Both Mr Barwick and the accused noticed this and interpreted this as an indication from the driver of the approaching vehicle that he or she was aware of the presence of the RFS vehicle and, in effect, indicating to the driver of that vehicle that he could complete his U-turn – and that he, the driver of the approaching vehicle, would give way.

12. As I mentioned before the RFS tanker was heavy and slow to accelerate. It had remained in second gear as it went through the U-Turn bay at walking pace. As the accused told police in his interview with them conducted early the following morning, it was easier for him to keep the momentum going rather than stop and go back into first gear. As the tanker moved into lane 3 of the northbound carriageway the Corolla also moved back into lane 3. The accused saw this manoeuvre in his rear view mirrors and so steered the tanker left, intending to get out of the way of the Corolla. He had partly entered lane 2 at the time the Corolla collided with the rear left hand side of the fire tanker. The tanker was moving slowly at the time of the collision, its speed being in the order of 10-15kph.

13. After the collision the accused drove the tanker into the break down lane. The Corolla was left stationary in lane 3. Its electrical system was damaged to the extent that none of its lights operated. It was completely unlit. Mrs Mihailidis, whilst perhaps injured in the collision, was alive. She opened the passenger door and released her seat belt. She was in the process of getting out of the car when she was struck by a third vehicle, this a Mazda driven by Ms Nicole Burton who was also travelling northbound. She was driving the Mazda in lane 3 and had been for some time. Her lights were on low-beam and as she approached the scene she looked towards the flashing lights of the RFS tanker to her left. She did not see the stationary Corolla until it was too late to avoid colliding with it. It was the collision between the Corolla and the Mazda which caused Mrs Mihailidis’ death.

The trial

14. There were 3 issues in dispute at the jury trial insofar as the count concerning the death of Mrs Mihailidis was concerned. The Crown had to prove beyond reasonable doubt that the impact between the RFS fire tanker and the Toyota Corolla driven by Mr Mihailidis caused the death of Mrs Mihailidis. The jury was directed that the Crown would have proved that if it proved beyond reasonable doubt that the impact between the RFS tanker and the Corolla caused the impact between the Mazda and the Corolla.

15. The next issue for the jury to resolve at the trial was whether at the time of the impact between the RFS tanker and the Corolla the accused was driving the RFS tanker in a manner dangerous to another person or persons.

16. And the third issue, which only arose if the 2 earlier issues were resolved in a manner adverse to the accused, was whether the accused proved on the balance of probabilities that Mrs Mihailidis’ death was not in any way attributable to the manner in which he drove the RFS tanker. Of course how the jury resolved these issues is unknown. On what basis the not guilty verdicts were returned is unknown.

17. It is now my task to determine whether the Crown has proved beyond reasonable doubt the guilt of the accused on the 2 back-up charges I have referred to at the start of this judgment.

Was the accused driving an “emergency vehicle”

18. I will firstly deal with an issue which Mr Higgins says arose in the case of both charges before me – the question of whether the accused was driving an “emergency vehicle”

19. The issue arises directly as regards the charge relating to the U-turn and, Mr Higgins says, indirectly in relation to the charge of negligent driving causing death. It concerns Rule 306 of the Australian Road Rules. That rule provides

20. A provision of these Rules does not apply to the driver of an emergency vehicle if:

1. In the circumstances:

1. the driver is taking reasonable care, and

2. it is reasonable that the rule should not apply, and

2. if the vehicle is a motor vehicle that is moving – the vehicle is displaying a blue or red flashing light or sounding an alarm.

21. An “emergency vehicle” is defined in the dictionary as meaning any vehicle driven by a person who is;

1. An emergency worker, and

2. driving the vehicle in the course of his or her duties as an emergency worker.

22. The definition of emergency worker is such that, as a member of a rural fire brigade the accused would be an emergency worker if he was “providing transport in the course of an emergency” (emphasis added).

23. The word “emergency” is not defined in the Road Rules but Mr Higgins suggested that that word should be interpreted in the way that word is used in the Rural Fires Act. The Crown accepted that that was an appropriate way of interpreting the word “emergency”. The relevant part of Mr Higgins submissions, in which he quotes the definition he impresses upon me, is this:

The Rural Fires act 1997 (NSW) (Rural Fires Act) provides the best guide to the legislature’s intended meaning of the word “emergency” in the Australian Road Rules. It relevantly applies to a member of a rural fire brigade, which establishes and sets out the functions of rural fire brigades. Relevantly, section 4 of the Rural Fires Act as at 18 October 2012, is a Note, which picks up the definitions in the State Emergency and Rescue Management Act 1989 (NSW):

Emergency means an emergency due to an actual or imminent occurrence (such a fire, flood, storm, earthquake, explosion, terrorist act, accident, epidemic or warlike action) which:

1. endangers, or threatens to endanger, the safety or health of persons or animals in the State, or

2. destroys or damages, or threatens to destroy or damage, property in the State,

being an emergency which requires a significant and co-ordinated response. (emphasis added)

24. Mr Higgins also relied on the natural and ordinary meaning of the word emergency and noted that the Macquarie Dictionary defined emergency as “an unforeseen occurrence; a sudden and urgent occasion for action”.

25. The evidence as to what was actually happening at the Mount White checking station at the time the accused performed the U-turn was not terribly clear. There was evidence that about 2,000 litres of concentrated orange juice had spilt. It was classified as a chemical spill. Crew attending had to wear breathing apparatus. I was asked to infer that the evidence was such that there was a threat of damage to property. Whilst I may have been prepared to infer that fact at the time of Kariong 1’s first attendance at the weighbridge station, there is a dearth of evidence as to whether such threat continued to the time when the accused performed the U-turn.

26. The communication logs admitted at trial speak only of a need for the accused to return to the Mount White checking station. The accused in his interview with police conducted in the early hours of the following morning spoke of having to return to the Mount White checking station to finish tidying up and pick up the crew that were left there. The accused told police that he had consumed pizza at the weighbridge before he left, bought for them by the owner of the truck which had spilt the concentrated orange juice. The accused would have known what the situation was at the time he left the weighbridge and so there is no reason at all to doubt his description of the reason that he was heading back to the Mount White checking station some time later.

27. A number of points flow from the evidence to which I have just referred. Firstly it tends to suggest that whatever threat there had been to property had abated and, more importantly, that there was no urgency in the accused and Mr Barwick getting back to the weighbridge to assist with tidying up and picking up the crew.

28. In my view the need for “urgency” or as the Macquarie Dictionary suggests “urgent occasion for action” was missing from the evidence as to what the accused was responding to at the time he did his U-turn.

29. As it turns out I have reached verdicts on the 2 counts before me without needing to decide whether the accused was the driver of an emergency vehicle. If it had been necessary I would have concluded beyond reasonable doubt that he was not.

30. The definition of “emergency” relied on by Mr Higgins defines the sort of emergencies which amount to an “emergency”. Even if there has been an accident which threatens to damage property, which Mr Higgins says there had been, the opening words of the definition: “Emergency means an emergency due to…” make it clear that the overarching requirement to be understood is that there is an “emergency”. On proper analysis the definition limits the types of emergencies which are covered. I find that a threat to property which does not require an urgent response is not an “emergency”.

31. No evidence before me pointed to any urgent need for the accused to return to the weighbridge. The accused knew the situation at the weighbridge when he left and he told the police in his interview that he had to return there to tidy up and pick up the crew. I repeat, if necessary I would have found beyond reasonable doubt that the accused was not driving an emergency vehicle when he performed the U-turn.

32. Implicit in that conclusion is my rejection of an argument raised by Mr Higgins at paragraphs 50 - 55 of his written submissions where he asked me to form a conclusion, from the particular charge chosen by the prosecution, that the Crown was effectively conceding that the accused was driving an emergency vehicle. I will simply say that there is no legal principle which would require, or even allow, such a conclusion. Mr Higgins suggested that it would be an abuse of process for me to allow the Crown to argue that the accused was not driving an emergency vehicle. I completelyaccept that the categories of abuse of process are not closed but it has never been said to apply to the situation raised by Mr Higgins, nor, in my view, should it.

Negligent driving occasioning death

Legal test for Negligence

33. I will now turn to the allegation of negligent driving occasioning death. It is important to emphasise that a significant degree of negligence needs to be proved beyond reasonable doubt by the Crown. The authorities require that the Crown prove negligence of such a high standard that criminal punishment is appropriate. Negligent conduct penalised by the criminal law must evidence such a marked departure from the standard of care that the reasonable person would have exercised, that it merits criminal punishment.

34. Many relevant issues are examined in determining whether an accused’s manner of driving reaches that standard. There needs to be proved a likelihood of risk to others which must be at least real, obvious and serious.

35. It is also relevant to consider whether the conduct said by the Crown to be negligent has been shown to be a breach of a duty of care recognised by the general law, or created by statute. That of course is not the same thing as saying that the Crown needs to demonstrate that a road rule has been breached before driving can be negligent (although as will be seen, I do in fact find that the accused did breach at least road rule 38).

36. The test for criminal negligence in this context is well expressed in by Johnson J in DPP v Yeo & Anor [2008] NSWCSC 953 as follows

27 Negligent driving is established where it is proved beyond reasonable doubt that the accused person drove a motor vehicle in a manner involving a departure from the standard of care for other users of the road to be expected of the ordinary prudent driver in the circumstances. The distinction which may be drawn between driving negligently, driving in a manner dangerous to the public and driving of a kind which justifies a conviction for manslaughter is essentially a distinction in the degree of negligence appropriate to the offence, being a distinction in the degree of departure from the standard of care for other users of the road to be expected of the ordinary prudent driver in the circumstances: R v Buttsworth at 672.

…

29 The question is essentially whether the driver was exercising that degree of care which the ordinary prudent driver would exercise in all the circumstances, including the circumstances as set out in s.42(3): Simpson v Peat [1952] 2 QB 24.

The Respective Cases

37. The Crown case is that the accused failed to allow Mr Mihailidis’ vehicle to pass, that he did not wait until the roadway was clear before entering the northbound carriageway, and in so doing he did not take the reasonable care expected from the ordinary prudent driver.

38. The case for the accused is that the road rules entitled him to drive the way he did, that he only entered lane 3 when it was clear of traffic, and that the cause of the collision was Mr Mihailidis’ decision to move back into lane 3, a decision perhaps contributed to by Mr Mihailidis’ obstructive sleep apnoea and vision problems..

Findings

39. Mr Higgins makes a series of submissions in support of his general submission that the accused breached no relevant road rule by doing what he did. Subject to the question of whether the accused has breached the road rule the subject of the second charge, for the purposes of this judgment I accept Mr Higgins’ submission in this regard.

40. I do not take into account Mr Mihailidis’ obstructive sleep apnoea though. That it contributed to this collision is mere speculation and inconsistent with what appears to have been a deliberate response (flashing his lights and changing lanes) by Mr Mihailidis to the circumstances as he perceived them to be.

41. The problems that Mr Mihailidis had with his vision may have contributed to the collision, in particular his decision to move the Corolla from lane 2 north to lane 3 north once the RFS tanker began entering the northbound carriageway. His ability to correctly perceive the path that the RFS tanker was taking may have been effected by the cataract he had in one eye and the intra ocular lens he had in the other. However I find that he was legally entitled to drive in that he had been recently tested and met the vision standards required to hold a drivers’ licence. As I explain later, even a driver with perfect vision could easily be unaware that the accused was intending to perform a U-turn. And in any case, drivers must drive in a way which takes account of the abilities of all other drivers who are on the road. We all have different levels of vision, we all have different reaction times. Some drivers startle more easily than others. Mr Wells was entitled to assume that Mr Mihailidis’ vision allowed him to legally drive. He was not entitled to assume more than that.

42. I accept, because it is consistent with statement of agreed facts, that Mr Mihailidis moved his vehicle from lane 3 to lane 2 and then back to lane 3, the first of those manoeuvres coinciding with him flashing his lights. I am prepared to proceed on the basis that the accused was entitled to assume that Mr Mihailidis would see the RFS tanker as an emergency vehicle and give way to it as the road rules required.

39. But I am satisfied, even given all those findings made in the accused’s favour, that he drove negligently. The Crown case is that the accused was negligent by failing to stop or slow his vehicle so that it did not enter the northbound carriageway until after Mr Mihailidis’ vehicle had gone past. I am satisfied beyond reasonable doubt that it was negligent for the accused to have entered the northbound carriageway while Mr Mihailidis’ vehicle was approaching.

40. Many of Mr Higgins’ submissions referred to the actions of Mr Mihailidis. In deciding whether the accused is guilty of negligent driving occasioning death the focus should be on the accused’s manner of driving, albeit one of the matters taken into account when assessing that will of course be the accused’s responses to the actions of another road user, in this case the driver of the car which collided with the RFS tanker, Mr Mihailidis.

The accused was negligent

45. I find that the accused’s driving was criminally negligent for the following reasons, acknowledging of course that there is some considerable overlap in the matters to which I will now refer:

• The accused should have foreseen that northbound vehicles approaching him would be travelling at or about that speed limit of 110kph. A reasonable and prudent driver would foresee that.

• The accused must have also understood, as would a reasonable and prudent driver, that when he turned his vehicle and entered lane 3 northbound there was going to be an enormous speed differential between Mr Mihailidis’ approaching Corolla and the RFS tanker, even if that tanker accelerated as fast as it was able. When the collision occurred the tanker was only doing about 10-15kph and was only 8 metres past the U-turn bay.

• The accused should have also foreseen that drivers do not always act as anticipated and that even drivers with perfect vision can be startled by unexpected events. In this regard, the accused well knew that it was night time with no lighting in the area. These matters would also be foreseen by a reasonable and prudent driver.

• The accused believed, as did Mr Barwick that when Mr Mihailidis flashed his lights and moved into lane 2 he was in effect saying “I acknowledge your presence on the roadway and it is safe for you to enter the northbound carriageway”. If he were a reasonable and prudent driver, the accused would have foreseen that it was entirely possible that Mr Mihailidis flashed his lights as a warning and moved into lane 2 at the same time to avoid the danger which he could see approaching from his right.

• The accused should have foreseen that one entirely logical response to a vehicle entering from a driver’s right, apparently taking a path from right to left in front of him or her, is to steer to the right and pass behind the apparent path of the other vehicle. At the very least the accused should have foreseen that Mr Mihailidis might have been unaware that he intended to turn into Lane 3 and so he should have foreseen, as a reasonable and prudent driver would, that there was a risk that the oncoming driver would, wrongly, perceive that the RFS tanker was going to cross his path and so would steer his vehicle to the right in an attempt to pass behind the apparent path of the other vehicle.

• Further, even accepting that the accused was driving an emergency vehicle in that he was responding to an event which threatened to damage property back at the Mount White vehicle checking station the accused should have foreseen that the driver of an approaching vehicle would not have known what Mr Wells’ intention was. The driver of an approaching vehicle would just see an emergency vehicle on his right but the driver would not know whether the emergency vehicle was responding to an incident located at the position where the RFS tanker was at the time (perhaps somewhere in the 8 metres gap between the 2 carriageways), or responding to an emergency on the left hand side of the northbound carriageway, or performing a U-turn so that the vehicle can travel north along that carriageway.

• Mr Wells knew what he intended to do, namely enter lane 3 and travel north, but a reasonable and prudent driver would foresee that this intention was not at all obvious to the driver of a vehicle approaching at or about 110 kph. Mr Wells knew what he was planning to do, but he should have foreseen that an approaching driver would not share that knowledge.

• Even assuming that the driver of an approaching vehicle could work out that the emergency vehicle was in the process of performing a U-turn, Mr Wells should have foreseen, because a reasonable and prudent driver would, that given that Mr Mihailidis’ car was the only vehicle approaching, it would not be unreasonable for the driver of a car approaching an emergency vehicle to expect the driver of the emergency vehicle to stop and wait the 11 seconds it would take to allow the approaching car to pass, before entering the northbound carriageway, and that the driver of the approaching car may be startled when that did not occur.

• Mr Higgins relies on some evidence in the trial as to the unlikelihood of a driver steering towards an emerging hazard. There was evidence in the trial about a study in which a researcher had reviewed driver’s responses in actual collisions. It was found that steering towards an emerging hazard is very rare. However circumstances behind real world collisions must vary enormously. The collision that I am concerned with arose in particular circumstances and, while relevant to the foreseeability that Mr Mihailidis would have swerved to his right immediately before the collision, the study to which reference was made in evidence at the trial establishes little about the circumstances of this particular collision. Like many statistics, they say much about a population, but say much less about an individual event.

• In the particular circumstances of this evening, especially where Mr Mihailidis was the only vehicle approaching, and could have been forgiven for thinking that the emergency vehicle he could see ahead would not enter the carriageway until after he had gone past it, the sudden and unexpected emergence of a threat which appeared to him to be entering on his right and moving towards his left could have led to him making the decision to respond to this emerging threat by veering behind the apparent path of the emergency vehicle. This is especially the case if, as I have found it foreseeable that it was, the flashing of the lights coinciding with the move from lane 3 to lane 2 was a warning to alert the driver of the RFS tanker that a car was approaching at high speed, rather than an invitation to proceed as the accused interpreted it.

• It was foreseeable to the accused that the driver of the sole vehicle approaching might have responded to the RFS tanker entering the northbound carriageway in unexpected ways, including by doing exactly what Mr Mihailidis did.

• It was foreseeable by a reasonable and prudent driver that a collision could occur as a result of the accused’s manner of driving, in particular by the driver of the approaching vehicle changing from lane 2 to lane 3 to avoid what was perceived as a risk that the RFS tanker would move from the driver’s right, across his path of travel in lane 2.

46. The accused was negligent in that he failed to take what is the obvious decision when the driver of a heavy vehicle intends to enter the carriageway of a high speed expressway while a vehicle is approaching – wait the 11 seconds or so necessary to allow that vehicle to go past before entering the carriageway.

47. By failing to do that, by entering the carriageway while the Corolla was approaching, the accused’s manner of driving was such a serious departure from the standard of care that a reasonable driver would have exercised that it merits criminal punishment. A reasonable and prudent driver would not have entered lane 3 of the northbound carriageway of the F3, where the speed limit is 110 kph, at night, in a slow moving vehicle, while he or she could see a car approaching in lane 2. By doing what he did he created a risk which was real, obvious and serious. The accused did not exercise that degree of care which the ordinary prudent driver would exercise in the circumstances I have outlined above.

48. Mr Wells didn’t want to lose momentum and have to change down to first gear. Mr Wells didn’t want to stop. It was negligent of the accused to fail to do so.

49. Thus I am satisfied beyond reasonable doubt that the accused was driving negligently.

Causation

50. That raises another issue in this case which arises because, as I have explained above, Mrs Mihailidis did not die in the collision between the Corolla driven by her husband and the vehicle driven by the accused. It was the later collision between the Mazda driven by Ms Burton and the stationary Corolla which killed her.

51. Although the collision between Ms Burton’s Mazda and the stationary Corolla was the immediate cause of death that does not mean that, as the law understands it, there was not another cause, namely the accused’s negligent driving.

52. The concept of causation in the criminal law does not require the application of esoteric legal principle. What is required is that the question as to whether one circumstance caused another is to be looked at in a common sense way. It is not enough to say that but for the accused’s negligent driving Ms Mihailidis would not have died. As Mr Higgins’ correctly submitted,

“the causal connection between the manner in which the U-turn was conducted and impact #2 must be sufficiently substantial to attribute criminal responsibility to Mr Wells for the death of Mrs Mihailidis from impact #2”

53. Mr Higgins focused on the driving of Ms Burton in an attempt to demonstrate that his client’s negligent driving did not cause the death of Mrs Mihailidis. Mr Higgins referred to a number of features of the manner in which Ms Burton drove that evening which I have outlined at the beginning of this judgment. In particular I note that, amongst other matters, she was travelling at slightly more than the speed limit, she did not have her head lights on high beam, and she was distracted by the flashing lights on the RFS tanker so that she took her eyes off the roadway for some time.

54. Before going any further I should mention that I have not paid too much regard to a submission by Mr Higgins that Ms Burton had breached a road rule by travelling in lane 3 while she was not overtaking any other vehicle. True it is that if she was travelling in lane 2 she would not have collided with the Corolla, but that is merely a matter of coincidence because of where the Corolla ended up. I find that there is no relevant connection between what appears to be Ms Burton’s breach of a road rule by travelling in lane 3 and the issue as to whether, as a matter of law, the accused’s manner of driving caused the collision between the Mazda and the Corolla which was the direct cause of the death of Mrs Mihailidis.

55. It is as well to remember the position after the accused moved the RFS tanker to the breakdown lane. The Corolla, dark in colour, was unlit and stationary on the roadway in the overtaking lane. Drivers approaching the scene would naturally look towards the tanker with its flashing red and blue beacons. In such a situation it was almost inevitable that an approaching vehicle would collide with the Corolla.

56. Mr Higgins points out that Ms Burton’s Mazda was not the first vehicle to approach the stationary Corolla and that other drivers had been able to avoid colliding with it. That much is true, but it is important to understand the situation which approaching drivers were presented with.

57. Perhaps the best evidence of the situation which presented itself to oncoming drivers is to be found in the dash cam video of Mr Schiemer. That video was tendered in the trial and Mr Schiemer himself gave oral evidence. The video graphically demonstrates the very limited time that an approaching driver had to see the stationary, dark, unlit Corolla and then avoid colliding with it. I fully accept of course that a poor quality video recording does not replicate what the human eye can see but fortunately the video recording contains a sound track. Mr Schiemer can be heard loudly expressing an expletive. He gave evidence that that was the moment that he saw the Corolla. It was but a matter of moments between when Mr Schiemer saw the stationary Corolla and when he went past it. From that evidence it is apparent that, as I have already said, a collision between an approaching vehicle and the stationary Corolla was almost inevitable.

58. In a common sense way, a group of men who throw off a cliff an unconscious man, who later dies of exposure have caused his death (Thabo-Meli v R [1954] 1 WLR 228). Again in a common sense way, a man who causes some live electric cables to fall to the ground causes the death of the boy who is later electrocuted after coming into contact with the live cables (Cameron v R unrep NSWCCA 27 Sep 1994). And of course when causation is considered in a common sense way the death a woman who jumps to her death to escape an attack from her partner was caused by the partner (Royall v The Queen (1990) 172 CLR 378)

59. Looking at the facts of this case in a common sense way, the Crown has satisfied me beyond reasonable doubt that the cause of Mrs Mihailidis’ death was the manner in which the accused drove the RFS tanker that night.

60. I thus find the accused guilty of negligent driving occasioning death.

Failure to give way to another vehicle when making a U-Turn

61. That brings me to the question as to whether the accused has breached Road Rule 38. Has the prosecution proved beyond reasonable doubt that the accused, as a driver making a U-turn, did not give way to Mr Mihailidis’ approaching vehicle?

62. It is here that Mr Higgins relied on the exemption in Rule 306 to which I have earlier made reference. As noted above, if necessary I would have found that the accused was not driving an emergency vehicle and so the exemption would not apply to him. But in any case it is to be noted that the exemption only applies if, among other circumstances, “the driver is taking reasonable care”.

63. As I have concluded above, the accused’s manner of driving was negligent. It follows that he was not taking reasonable care. In the course of submissions Mr Higgins conceded that he could not contemplate a situation where a driver found to be driving negligently could be found to have been taking reasonable care.

64. For that reason I find that the exemption in Rule 306 does not apply and that Mr Wells did not give way to Mr Mihailidis’ approaching vehicle when he, Mr Wells, was making a U-turn.

65. I thus find him guilty of breaching Road Rule 38.

Conclusion

66. The accused is guilty of the 2 back up charges on the section 166 certificate

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Amendments

24 November 2016 - Cover sheet spelling correction

Decision last updated: 24 November 2016