Robertson v McAdam No. Scgrg-97-1458 Judgment No. S6969

ROBERTSON v McADAM
[1998] SASC S6969

Full Court
Coram: Millhouse, Debelle and Nyland JJ

MILLHOUSE, DEBELLE AND NYLAND JJ. This appeal is concerned with the determination of liability arising out of a motor vehicle accident which occurred at about 7.25 pm on 20 April 1994, on the southern carriageway of Bagster Road, Salisbury North. On that date, a Volvo station wagon being driven by the respondent collided with a Nissan tow truck, driven by the appellant. The force of the impact caused the front right section of the Volvo to be impaled underneath the rear left panel of the Nissan tow truck. As a consequence of the collision, the respondent suffered serious injury to the right side of her body and permanent scarring to her face.
The quantum of damages was agreed between the parties in the sum of $60,000. The matter thereafter proceeded to trial on the issue of liability. The action was heard by a stipendiary magistrate, sitting in the civil division of the Magistrates Court. On 29 September 1997, the learned magistrate delivered judgment. He held that the respondent had failed to prove any negligence on the part of the appellant and dismissed her claim.
The respondent appealed against the dismissal of her claim to a single judge of this court. The appeal was upheld. The learned judge, on appeal, set aside the order dismissing the respondent’s claim and in lieu thereof entered judgment for the respondent in a sum equal to 70% of the agreed quantum of damages. The appellant now appeals against that finding. In order to consider the issues which arise for determination, it is necessary to review the evidence given at the trial.
At the time of the collision, the respondent was aged 18 years. She had only recently qualified for her probationary driver’s licence. There were three passengers in her motor car, namely her 15 year old brother, Russell McAdam and his two friends, Jefferey Dean and Daniel Micu. They were also aged 15 years. Russell McAdam was in the front passenger seat and Mr Dean and Mr Micu were seated in the rear of the respondent’s car.
The respondent was unable to give evidence about the exact nature of the collision as she was suffering from psychogenic amnesia due to shock. She did, however, give evidence as to the sequence of the events before the collision. She said that she had collected her brother and his friends from a basketball stadium. This was situated in the Elizabeth recreation centre at Woodford Road and Elizabeth Way, Elizabeth. The respondent planned to return to her parents’ home at Antrim Street, Salisbury Downs. Her route took her along Kettering Road behind General Motors Holden on to Commercial Road. She travelled along Commercial Road in a southerly direction. At a roundabout on Commercial Road she turned left and entered Bagster Road. Approximately 103 metres after the roundabout there is a railway crossing. After the crossing, Bagster Road proceeds on a steady downhill decline. The respondent said that as she approached the roundabout, her speed was about 20 km per hour. As she turned she accelerated up to around 60 km per hour. She remembered taking her foot off the accelerator after the second set of railway lines and then going down towards the left. She could not recall anything further.
The appellant, in the meantime, had positioned his tow truck on the driveway of his house premises which were situated on the eastern side of Bagster Road. He had loaded a motor vehicle on to the top tray. The length of the tow truck was approximately 30 feet and its total weight was roughly four tonnes. The respondent said at night time you could just see lights a little bit past the railway line. He said that he looked to his right and he could not see anything coming. He pulled out slowly because of the incline on the driveway. He swung wide to the left, staying on his side of the road and then proceeded to straighten up. As he straightened up he looked in his right hand mirror and he saw the respondent’s Volvo coming off the median strip to the north of his position.
A diagram of the accident scene drawn by Constable Vincent shows that there is a bend (or kink, as one witness called it) in the road just past the railway line, with two traffic islands or median strips thereafter. The respondent’s vehicle mounted the more southerly median strip and left marks on it for a distance of 22 paces. At the southern end of that strip there was a sign which was knocked down. About 11 metres further south is the approximate point of impact. Constable Vincent located gouge marks in the bitumen and other debris. Constable Vincent concluded that the Volvo struck the left rear side of the truck and forced the truck on to the incorrect side of the carriageway.
Constable Vincent interviewed the respondent at the scene but she declined to make a statement. The appellant made a statement in which he said:
“I loaded the car onto the truck in the driveway of Number 70. I pulled forward and checked the road. There was no oncoming traffic. I pulled out turning left. I saw a red Volvo station wagon come over the railway crossing. It looked to me to be out of control. I would say it was going not less than 80 km per hour. I was on the road and travelling down Bagster Road. The car hit me on the rear left. The force of the hit pushed me onto the wrong side of the road as well as me trying to avoid the car. There was no other traffic whatsoever.”

When asked when he first saw the car, he said:

“As she was coming off the traffic island.”

Mr Micu gave a statement to Constable Vincent on 28 September 1993 in which he said that after they left the recreation centre the respondent was driving in a rush to get home. He said they drove along Elizabeth Way, down Goodman Road, then along Kettering Road. He remembered seeing the speedometer at one stage on Goodman Road and they were doing 90 and 100 km per hour. He said that when they got on to Commercial Road the respondent was initially travelling at normal speed but when they got to the roundabout “she took the corner pretty fast”. He thought she may have been doing about 40 to 50 km per hour around the corner. He said that she was in the right hand lane as she left the roundabout travelling along Bagster Road. She accelerated out of the corner along Bagster Road. He estimated she was travelling at about 70 to 80 km per hour and at the point of impact they were travelling at about 90 km per hour. He said:
“As we came off the high part of Bagster Road, past the railway line, Louise was accelerating. The car seemed to me to get slightly air-borne as we went over the rise. I heard the engine revs increase, as if there was no longer any load on the engine as we were in the air for a short time. Louise was still, it seemed to me, accelerating. The car was turning to the left. Louise turned the wheel to the right. I think Louise lost control of the car at this time.”

He said that when they were on Goodman Road, the respondent overtook a car which was going the same way. They were doing about 90 km per hour. He said that he and Dean told her to “chill out”. He explained that by that statement he meant that she should take it easy.

The trial took place more than four years after the accident. At the trial, Russell McAdam gave evidence on behalf of the respondent. He estimated the respondent’s speed when commencing to negotiate the roundabout at about 20 to 25 km per hour and about 50 to 60 km per hour when the truck first became visible. His evidence was generally exculpatory of his sister on the topic of speed. When cross-examined, he conceded that he did not specifically look at the speedometer, but said that “whatever the speed limit was, she was doing it”. He did not hear anyone tell her “to chill out” during the journey. He said his first view of the truck was when it was at 45 degrees with the rear to the kerb. He first saw the truck a second or two after they went over the rise.
Mr Dean said that they were travelling at 80 to 90 km per hour on Kettering Road. He agreed when being questioned about a statement he had made to Mr Coulter, an investigator employed by the appellant’s insurer, that it might have been 70 to 80 km per hour prior to the roundabout. He also agreed that he told Coulter that the speed after the roundabout was about 80 km per hour. He then recanted from that but agreed that he had told Mr Coulter that the car had accelerated after the roundabout. He described the truck as being first visible after the crossing and before the median strip. He described the position of the truck as “On a slight angle, the back side of the truck I could see mostly”. He also said he thought he saw two white lights on either side of the back of the truck. He recalled that as soon as the truck became visible someone told the respondent to slow down but she did not brake.
At the trial, Mr Micu gave evidence for the appellant. He said that when they were behind the GMH factory they were travelling at about 70 to 80 km per hour. They overtook a couple of cars and came to an abrupt stop at a T junction. At this point both he and Mr Dean told the respondent to chill out and he glanced at the speedometer. He said that they were travelling at about 70 to 80 km per hour down Commercial Road up to the roundabout when she slowed down to about 40 to 50 km per hour and they then proceeded over the crossing at about 65 to 70 km per hour. He said:
“... the car felt very uneasy over the railway line, the car felt very loose, ... we weren’t on the left-hand side of the road we were more or less in the middle of two lanes ... (after the crossing) there’s a bit of a dip on Bagster Road, we proceeded down that dip, and as soon as we entered that dip I felt the car was out of control, the car wasn’t heading in a straight line ... we were actually heading for a stobie pole on the left-hand side ... we then jolted quickly towards the right ... about 25, 30 degrees ... and that’s when we entered the median strip ...”
He said he first saw the truck after they got over the railway line. He described the truck’s position as being a fraction off straight. He denied it was at a 45 degree angle and said;
“No, it wasn’t that much of an angle I remember seeing the side of the truck always seeing the tail lights. ... It was very, very close to being vertical but ... still ... at that fraction of two or three seconds away from being straight.”

He said the brakes were not applied at any stage.

The appellant, in his evidence, estimated the speed of his truck at the time of impact to be between 30 and 40 km per hour. The position of the truck was that the front of the truck was just about at the kerb. He said there were four lights on the back of the truck, that is, the tail lights of both car and truck, plus a numberplate indicator light. There were no lights on the side of the tray and no clearance lights, but there was an RAA contact reflective sign. He said he could see just past the railway crossing. He swung wide to the left and stayed on his side of the road and proceeded down the road. He said that as he straightened up he looked in his rear vision mirror and saw the respondent’s car coming off the median strip. At that stage it was too late to do anything. He also told police after the accident that one of the male passengers had said words to the effect that “She was driving like an idiot - it is all her fault”.
In his reasons for judgment, the learned trial magistrate accepted that all of the witnesses were honest but he expressed some doubts about the accuracy of the evidence of Mr McAdam and Mr Dean on the question of speed, due to their age, driving experience and lapse of time since the accident.
The magistrate found that the respondent had an unobstructed view along Bagster Road from at least the railway line; that it was 97 paces from the railway line to the point of impact; that it was a clear night and the bitumen road was dry. He also found that the appellant’s vehicle was clearly visible. The magistrate found that the lights of the truck and, in particular, its rear lights were on. In addition, the appellant had turned on the parking lights of the Holden which was being carried on the back of his truck. The truck had a reflective sign on the side. The road was lighted but there was little evidence as to the extent of lighting. He found that, when it was first seen, the truck was at 45 degrees to the kerb so that both the illuminated signs and the rear lights would have been visible. The magistrate found that, with all of these lights on, the truck was clearly visible from the railway line. It is reasonable to add that it would also have been possible to see the fall of light from the headlights.
The magistrate found that the respondent at no time applied the brakes or took any evasive action. He found that there was no evidence that the appellant failed to check that it was safe to execute the manoeuvre of leaving his driveway. He accepted that the appellant had checked back to the railway line and allowed two cars to pass. He could see past the railway lines. He found that the appellant did not see the respondent’s motor car. It was implicit in his findings that he accepted the evidence of the appellant as to his actions prior to the collision. He said:
“What else could he do when looking down the road to see that it was clear. On seeing it was clear he executed his manoeuvre, he had completed his circle, was about to come on to the straight when he was hit in the rear.”

The magistrate also found that the respondent was driving at a speed that was not safe and that she failed to stop or slow her vehicle and that she did not take any proper or evasive action. It is implicit in his findings that he accepted the evidence of Mr Micu as to speed of the car in preference to that of the other two passengers. Although Mr Micu was of a similar age to the other occupants, he had the advantage of having given a statement closer to the actual events.

The magistrate rejected the evidence of the respondent’s witnesses on the basis that, if the respondent had been travelling at 60 km per hour and had been keeping a proper lookout, she would have seen the appellant’s vehicle in sufficient time to stop or take other evasive action to avoid a collision. The magistrate found that the respondent was not keeping a proper lookout; that she was driving at a speed which was not safe; that she failed to stop or slow her vehicle; that she did not take any proper evasive action; and that she panicked. He held that the respondent was solely responsible for the collision. The effect of this conclusion was that the appellant had not acted negligently and that the respondent was the author of her own misfortune. Those findings were all open on the evidence.
In the course of his reasons, the magistrate referred to a diagram showing stopping distances. The diagram shows a range of different speeds and for those speeds records the distance travelled in one second, an average braking distance, a reaction distance and an average stopping distance. The diagram states that it shows “the average stopping distance which an alert driver would obtain when driving a car which was in good condition on a dry sealed roadway”. The diagram is very similar in effect to the well-known tables that appeared in Mazengarb, Negligence on the Highway and like texts. The stopping distances are not identical but are very similar. It is sufficient to note that at a speed of 60 km per hour the table used by the magistrate gives a stopping distance of 38 metres. The table in Mazengarb is based on speeds expressed in miles per hour. 60 km per hour is approximately 37.5 miles per hour. According to the table in Mazengarb, at 35 miles per hour the stopping distance is 123 feet (37.5 metres) and at 40 miles per hour it is 154 feet (47 metres).
It is apparent from the reasons of the magistrate that he has not used the tables in any absolute sense, for example, to fix precisely where the respondent’s vehicle was when she first saw the appellant. Instead, he has used the table for the purpose of examining the evidence and determining which account, on the balance of probabilities, is the more accurate. This limited use of the diagram was legitimate. It provided a kind of yardstick against which to assess the evidence. It enabled the magistrate to conclude that, had the respondent been travelling at a speed of 60 km per hour and had she been keeping a proper lookout, she would have seen the appellant’s vehicle and stopped or taken other evasive action. That conclusion was clearly open to the magistrate since the respondent could have seen the appellant’s vehicle at least 97 metres away when crossing the railway line.
If the respondent had been travelling at a speed of 60 km per hour, as her brother Russell McAdam had asserted in evidence, she would have had ample time in which to see the appellant’s vehicle and stopped. If, however, she was travelling as fast as 70 to 80 km per hour, as stated by Mr Micu and Mr Dean after the accident, the respondent would have had substantially less time to stop, although an alert driver might have been able to do so. It is implicit in the findings of the magistrate that he has accepted the evidence of Mr Micu that the respondent was driving at least as fast as 70 km per hour.
The judge who heard the appeal in this court conducted his own review of the evidence and reached a different conclusion. As the magistrate had made no findings as to the demeanour of witnesses, the judge was entitled to review the evidence himself unhampered by the disadvantage which might otherwise have arisen from not having seen nor heard the witnesses giving evidence subject to due weight being given to the conclusions of the magistrate: Taylor v Johnson (1983) 57 ALJR 197, 198; Jovanovic v Rossi (1985) 58 ALR 519, 522. In conducting that review, the judge has criticised and ultimately decided not to accept the evidence of Mr Micu. As will have been noticed from the review of the evidence earlier in these reasons, Mr Micu’s evidence was very damaging to the respondent’s case. He was an independent witness. The effect of his evidence was that she was driving too fast and lost control of the motor car after crossing the railway line. The judge’s criticism was based on two grounds. The first was that the estimates given at the time of the accident to the police were difficult to reconcile with his evidence. We do not think that this is a fair criticism. Although Mr Micu reduced his estimate when giving evidence, the effect of his evidence was the same as his statement to the police, namely, that the respondent was driving too fast.
The second criticism was based on an exercise undertaken by the judge on a view with the parties. The judge drove on two occasions along Bagster Road. The view notes record, among other things, two sets of observations made after this driving exercise. The first concerned the view ahead. The second concerned the observations as to crossing the railway line at a speed of 60 km per hour. It reads:
“The second is we in fact attempted two runs at this as close to 60 kph as we could, from the [sic] reaching that speed at the railway line and maintaining it down the road, apart from the hair-raising experience that was occasioned by me attaining 60 kph across the railway line, which in fact is very difficult to do it [sic], and still stay on the road, I might say, the timing from the railway line to the entrance to the property, which [sic] we were standing, was virtually somewhere in the order of three seconds, depending on the precise speed. It was near as possible we could be to 60.”

In his reasons for judgment the trial judge made the following findings as to the possibility of driving around the bend in Bagster Road at 70 km per hour:

“Seated in a motor vehicle heading south from the roundabout, it is virtually impossible, due to the ridge line effect, coupled with the bend in the road and the clutter of the pedestrian crossing, signal lights and boom gate at the railway line, to see down into and along Bagster Road until one is actually traversing the railway line. Indeed, it is only at about that point that the presence of the median strip and an associated reduction in the width of the south bound carriageway becomes apparent.
Due to all of those factors and the “hump” created by the ridge line it is quite difficult to negotiate the bend at the railway line with comfort, at a speed as low as 60 kph. In my opinion, it would be impossible for many drivers to get around the bend at a speed of 70-80 kph.”

The judge referred to his experience on the view again when dealing with Mr Micu’s evidence. He said:

“Micu’s estimates of speed given at the time of his statement are somewhat difficult to reconcile with what he later said in evidence. Moreover, on my own experience at the view, I question whether anyone but a skilled rally driver would have negotiated the railway line and the bend at a speed of, or approaching, 70 kph. It is only just possible at 60 kph.”

This passage and the other reasons of the judge show that he rejected Mr Micu’s evidence as to the speed at which the respondent was driving and found that the respondent was driving at a speed of 60 km per hour.

There is a dispute whether the exercise was undertaken with the consent of counsel for both parties. Counsel had undoubtedly concurred in the judge taking a view. They might have even concurred in the judge driving along Bagster Road and across the railway line. The real dispute is whether counsel concurred in the judge driving in a way to assist him in determining whether a driver could negotiate the bend in Bagster Road at a speed of 70 km per hour or more. The notes made on the view record the observations made by the judge and the judge’s conclusion after he conducted the driving exercise. They do not record any statement by any of the counsel present concerning the proposed exercise. There is, therefore, a conflict between the parties and there is no transcript to assist in the reconciliation of that conflict. There is nothing which indicates whether there was consultation with counsel about the manner in which the driving would be conducted or the use to be made of the exercise. It would not have been permissible for the judge to have conducted this exercise unless all counsel consented: Scott v Numurkah Shire Council (1954) 91 CLR 300. The evidence before us does not permit us to reach any conclusion on that issue.
However, there are two more fundamental reasons for concluding that the judge should not have relied on his conclusions made as a result of this exercise. First, the view provided an opportunity to understand the evidence led before the magistrate. It was not an opportunity to undertake an exercise to determine how fast vehicles could drive around the bend and across the railway line for that would be to allow fresh evidence to be introduced on appeal. No application had been made to adduce fresh evidence.
Secondly, by undertaking the exercise, the judge shed the mantle of a judicial officer and became a witness. If experiments of this kind are to be undertaken, they should be undertaken by experts or by other persons qualified to undertake the exercise or, in appropriate circumstances, by a layman. The weight to be attached to this evidence will depend upon a range of factors: see the discussion in R v Ireland (No2) [1971] SASR 6 at 14 to 15. But, more importantly and more significantly, the witness would be available for cross-examination. We express no opinion on the question whether this is the kind of test which might more suitably have been conducted by an expert or skilled driver. The fundamental objection to the judge conducting this experiment was that it was not possible for counsel to cross-examine the judge or investigate in any other way the basis for his findings. We think, therefore, that the judge should not have conducted the exercise or made any conclusion based on that exercise. By conducting this exercise, the judge has assumed the role of a witness but he is not available for cross-examination. Furthermore, the validity of the exercise is open to serious question because it would have been extremely difficult to recapitulate the manner in which the respondent was driving.
We add as a footnote that, if the judge was to rely on his observations and to his finding that it was extremely difficult to drive across the railway line safely at 60 km per hour, that observation is consistent with the observation of Mr Micu that the respondent seemed to lose control of the car after it had crossed the railway line. That would indicate a basis for accepting rather than rejecting Mr Micu’s evidence. But we place no reliance on this fact since that is to rely on an exercise which should not have been undertaken.
The judge was also very critical of the use which the magistrate made of the diagram of stopping distances. It is unnecessary to repeat the criticism. The judge has, with respect, misunderstood the manner in which the magistrate used the diagram. The use was legitimate for the reasons expressed above.
An examination of the reasons of the judge show that, having decided to reject the evidence of Mr Micu on the basis of the test, he has propounded his own view as to how the accident occurred. The judge was entitled to do so in the particular circumstances of this case. But he had to have due regard to the findings of the magistrate. In that respect, the evidence of Mr Micu was very important. One of the important issues was the speed at which the respondent was travelling. Mr Micu’s evidence told heavily against her. The magistrate had implicitly relied on it. As the judge was not entitled to discount that evidence we do not think there is any basis for interfering with the magistrate’s conclusions about the respondent’s manner of driving.
The judge also criticised the magistrate’s conclusion that the respondent was solely responsible for this collision. It was submitted that the magistrate had applied the wrong test of causation and had used the last opportunity rule instead of the common sense approach as outlined in decisions such as March v E & M Stramare Pty Ltd (1991) 171 CLR 506 and Medlin v State Government Insurance Commission (1995) 182 CLR 1. We do not agree. The effect of the magistrate’s findings was that the respondent had had sufficient time in which to see the appellant’s vehicle and stop or take other evasive action. Common sense and one’s ordinary experience indicates that there are occasions when one driver can be solely responsible for a collision. A common sense view of what occurred was that this was one of those occasions when a driver, by the exercise of ordinary care in keeping a proper lookout and driving at a safe speed, could have avoided a collision. That was the magistrate’s approach and there is no basis to interfere with it.
Counsel for the respondent placed a great deal of emphasis upon the obvious duty of care which had to be exercised by the appellant when driving from his private land on to this relatively busy road. He had a duty imposed by ss62 and 66 of the Road Traffic Act 1961 to give way to vehicles travelling along Bagster Road. That duty has been reinforced in Butcher v Saunders (unreported, 24 July 1997 Judgment No S6252.2). That duty of care was all the greater because the appellant was reversing a truck and at night. But the appellant was driving slowly and keeping a careful lookout. His vehicle was moving very much more slowly than the respondent’s vehicle. When he began his manoeuvre there was no vehicle between his vehicle and the railway line. It was not the kind of manoeuvre which could be executed in a second or two. He was entitled to assume that other road users approaching him would exercise reasonable care and stop and allow him to complete his manoeuvre. It is a commonplace that other drivers will have to stop or slow to allow drivers of large vehicles to complete certain kinds of difficult manoeuvres. Those manoeuvres include reversing from private land on to a public road. We do not think that there is any cause to hold that the appellant was negligent.
For all of these reasons, we would allow the appeal against the decision as to the liability for this collision.
There is a further appeal against an order made by the judge as to costs in the Magistrates Court. The judge held that a special order as to those costs should be made in favour of the respondent. He held that the costs should be awarded in accordance with the provisions of Rule 53 of the Magistrates Courts Rules and should be doubled because an offer had been made at the trial. He also ordered that the costs of the trial should be computed on the footing that this was a complex action: see Rule 106(7) of the Magistrates Court Rules. The appellant appeals against the order that the costs should be computed as a complex action. In our view there was nothing out of the ordinary about this action. It was no different from many kinds of cases involving claims for personal injury following a motor vehicle accident heard and determined in the Magistrates Court. It was a common or garden type of motor vehicle accident case typical of many such cases in the Magistrates Court. Rule 106(7) is designed for cases in which there is some unusual difficulty which makes the case a complex action. This accident involved two motor vehicles only. There were a number of witnesses. There was nothing unusual about that fact or the fact that the evidence of the witnesses differed. There was, in our view, no basis for holding that the costs should be computed on the footing that it was a complex action. We allow the appellant’s appeal on that issue also.
For these reasons, we allow the appeal, set aside the orders of the appellate judge and restore the findings and orders of the magistrate.

[1998] SASC 6969

26 November 1998