Seselja v Reardon & Anor

[2021] HCATrans 184

[2021] HCATrans 184

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Canberra  No C4 of 2021

B e t w e e n -

SOPHIA SESELJA

Applicant

and

LINDEN MICHAEL REARDON

First Respondent

INSURANCE AUSTRALIA LIMITED TRADING AS NRMA INSURANCE ACN 000 016 722

Second Respondent

Application for special leave to appeal

KEANE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE AND MELBOURNE

ON FRIDAY, 5 NOVEMBER 2021, AT 10.30 AM

Copyright in the High Court of Australia

KEANE J:   In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR D.R. CAMPBELL, SC appears with MR A.R. MULLER for the applicant.  (instructed by Maliganis Edwards Johnson)

MR K.P. REWELL, SC appears for the respondents.  (instructed by HWL Ebsworth Lawyers)

KEANE J:   Before you begin, Mr Campbell, I notice that a short extension is required, and I do not apprehend that it is opposed by you, Mr Rewell.  Is that correct?

MR REWELL:   It is not opposed, your Honour.

KEANE J:   Very well.  You have your extension, Mr Campbell.  Yes, Mr Campbell.

MR CAMPBELL:   Yes, thank you, your Honour.  Could I begin by proposing as the ‑ what we would see is the central issue to the present application, as being the approach that was taken by the Court of Appeal in circumstances where it did not have any of the evidence that was available to the primary judge when he had made his decision, and that despite this circumstance, the majority of the Court of Appeal, we say, purported to conduct a review of the evidence and to make findings respecting that evidence which were contrary to those of the primary judge.

When undertaking the review it did, we submit that the Court of Appeal engaged in a process that involved it making an assessment of the mental processes of the defendant driver, that is, it made an assessment of that witness’ state of mind.  We submit to your Honours that this, as a matter of general principle, and especially given the circumstances prevailing in this case, was something that the trial judge had a very considerable advantage over an appellate court about and was something that involved the Court of Appeal embarking on a process where it sought to find differently to the primary judge and ought not to have done so.

Could I take your Honours directly to the central part of the reasoning of the primary judge, which can be found at page 49 of the application book, under the heading “Awareness of the presence of the Suzuki before reversing”.  Some of this material was specifically incorporated into the reasoning of the Court of Appeal, beginning at page 76 of the application book, but there are a couple of extra points at 49 that I would just wish to draw to your Honours’ attention.  Firstly, his Honour at paragraph 299 noted that:

The plaintiff gave evidence –

which he accepted:

that after she had pulled up and put her hazard lights on, she saw the rear seat passengers of the Lancer look back –

At paragraph 300, she also:

gave evidence that the first defendant turned and looked back . . . His evidence was that he got a shock when he hit the Suzuki because he did not know that it was there.

He accepts the first defendant’s evidence on the fact that he was unaware of the presence of the Suzuki, going on to point that notwithstanding that he turned his head, he did not actually see the vehicle, and I will take your Honours to the critical finding about that shortly.  At paragraph 303 his Honour made the important finding, we say, that when he commenced to do his reversing manoeuvre, he:

assumed, having seen nothing in his rear vision mirror, that there was nothing behind –

him, he being in the Lancer and, accordingly, he found, as a fact, that he was:

not aware of the presence of the –

plaintiff, the then plaintiff in the Suzuki behind him.  His Honour shortly dealt with the reversing manoeuvre at paragraphs 305 and 306, and accepted that:

the Lancer reversed at least one and a half car lengths –

namely:

a distance of 7 to 8 metres).

Could I now take your Honours to the process of the Court of Appeal, beginning at 76, where the court helpfully used the same headings the primary judge had, in this instance, “(iv) Awareness of the presence of the Suzuki before reversing” and it is noted that:

his Honour accepted Mr Reardon’s evidence that he was not aware of the presence of the Suzuki when he reversed into it . . . 

(a)the trial judge accepted Mr Reardon’s evidence that he looked in his rear vision mirror when he first stopped behind the Commodore and did not see any vehicle behind him –

and he repeats at paragraph 303, which I just took your Honours to.  If I could then take your Honours to the section headed “The trial judge’s reasoning”, which the court conveniently incorporates into its decision.  This is essentially the relevant part for our purposes, and I do not think, at the moment, that I would need to take the Court to any earlier passages of the reasoning of the primary judge.  Paragraph 318, the finding is made, as was said by the defendant in his evidence, that:

he was reversing to get away from –

the persons in the car in front of him.  Secondly:

He was intending to move back and then to drive around the Commodore.

Thirdly, at 319, he reiterates that, notwithstanding that he looked:

he did not see any car . . . There really is no adequate explanation for him failing to see the approaching Suzuki . . . if he had seen the Suzuki he would have realised, given that there was only one eastbound lane at that point, that it was probable that there would be at least one car stopped behind the Lancer in the coming seconds.

Very…..paragraph 320, he goes on to point firstly to how did this come about, possibly:

inexperience as a driver . . . The first defendant knew that the Commodore had been driving aggressively and erratically.

I do not think there is any need to take your Honours to the evidence – there is no issue about this:

For it to have stopped, with its lights off, on a single lane of what was a significant arterial road was extremely unusual.  A reasonable driver in those circumstances would, in my view, have been carefully checking his/her surrounds and thinking of options for escape even before the Commodore occupants had emerged.  A person in that situation should have checked the rear vision and noted the presence of the Suzuki.  Once aware of it, the fact that it would probably be stopped behind the Lancer would have been a factor which he/she would have taken into account if it did become necessary to drive away from the situation.

Then he goes on to make the final finding:

I am satisfied that if the first defendant ‑ ‑ ‑

KEANE J:   It is noteworthy, Mr Campbell, that his Honour does not seem to take into account in any firm way in that paragraph the circumstances in which the driver found himself – that is to say being approached by the occupants of the Commodore in circumstances where he had members of his family in the back, and was no doubt quite seriously concerned about his situation.

MR CAMPBELL:   Your Honour, he does have regard to that earlier ‑ ‑ ‑

KEANE J:   To the point of, understandably perhaps, not exercising that level of care which might have been expected of him had the situation not been so exigent.

MR CAMPBELL:   Yes, your Honour, I understand.  He does refer to those circumstances earlier in his reasons – he does not incorporate them into this passage.  He did say that he had considerable sympathy for the driver, however, went on to say these things, your Honour.  His finding is that – I will cut to the chase, your Honour.  It is accepted, properly so, that the defendant driver was in breach of his duty in failing to see the Suzuki behind him.  So, we begin the analysis with an admitted breach of duty, which was still - - -

GORDON J:   Sorry to interrupt, but the question though is when that breach of duty arose and whether or not that breach carried on to the second – in effect – aspect of the event, is it not?

MR CAMPBELL:   It is, your Honour, except ‑ ‑ ‑

GORDON J:   The breach of duty was the failure to see the Lancer, was it, when he first stopped?

MR CAMPBELL:   Correct.  His Honour said had he seen the Lancer when he first stopped it was a factor that he would have taken into consideration when making the manoeuvre he did.  The critical point about this is this was not an uncontrolled, reflex response such as would ordinarily constitute an agony of the moment.  This was a considered decision made by him on the assumption there was no one behind him because when he looked, he had not looked properly.  He only needed to go a short distance back – not the distance he did go back – and he would have, according to the finding of the primary judge – modified his behaviour so as to reduce the distance that he went back. 

What is involved in this analysis of the primary judge, which is why I began with the short beginning I did – is his Honour saw and heard the witnesses and his Honour took into consideration the state of mind and the thought processes of this defendant driver.  It is that state of mind and reasons for the decision he made and the nature of the conduct he engaged in that is critical to the assessment of whether the otherwise present breach of duty can thereby be excused or said to have come to an end. 

This is not a case, with respect, your Honours, whereby there was an uncontrolled mishandling of a vehicle in the face of an emergency.  But the making of a decision by the man’s engaging in a series of mental processes, which the trial judge said, based on what he was doing and thinking, had he seen this vehicle, I am satisfied the accident would never have occurred.  It is our respectful submission ‑ ‑ ‑ 

KEANE J:   Mr Campbell, can I just interrupt you to ask, does the appeal that you want to bring – will it not boil down to a contest between paragraph 53 in the reasons of the majority, which is at page 79, and paragraph 66 in the reasons of Justice Elkaim at pages 81 and 82.  Is that not the essential contest that will be before us?

MR CAMPBELL:   That is the principal contest between the Court of Appeal, however, we say the majority is fundamentally in error at paragraph 51.  We say that there are serious, fundamental errors in that paragraph, your Honour, in particular ‑ ‑ ‑ 

KEANE J:   Those are all errors which involve the suggestion that their Honours have misunderstood the facts?

MR CAMPBELL:   Yes or have sought to introduce facts which were not in existence.  I think we set out some transcript references in our written submissions to put into context the matters in paragraph 51, particularly.  These bear on this central question, which is the mental processes of the defendant at the time of the decision he made, which is pivotal to the ultimate course of action which ensued and the way in which it was ‑ ‑ ‑

KEANE J:   The primary judge did, of course, accept the defendant’s evidence as to what his thinking was.

MR CAMPBELL:   Yes, and it was.  He assumed there was nobody behind him, because when he had looked – not properly – but when he had looked, he did not see anyone.  What the judge said, had he seen someone, based on my assessment of everything that was happening, based on my assessment of what was going through his mind, he would have been able to avoid this impact with the vehicle behind him.  That is why I emphasised it is not an uncontrolled reflex reaction which caused the collision that was inevitable, but rather ‑ ‑ ‑

GORDON J:   Mr Campbell, may I ask a question.  The difficulty with that proposition is that even if you accept, as the Court of Appeal did, that there was this breach at the – what I will call the first instance, the way in which they reasoned, as I read their reasons for judgment, is that it was broken by a new act.  There was a new act, being the people coming out of the car and coming back to them to, in effect, put their life at risk.  That is the question and assessment, is whether or not his conduct in those circumstances, as Justice Keane put to you, was conduct which gave rise to a different answer. 

MR CAMPBELL:   But the problem with that conclusion, your Honour, is that that is not what the defendant himself said.  The defendant did not say, “I panicked, and I acted in a way that I was not responsible for”.  He said, “I deliberately did what I did in order to go around them and get away from them, in the belief there was no one behind me because I had already looked and assumed that there was no one there, because I had not seen anyone”.  So that you cannot divorce the earlier act from the later actions, they all being interrelated and shaping the final course of conduct which led to this collision.

That is the difficulty, we say, with this.  It is not one of those cases where someone just does something without thinking because they panic and it is a reflex response to a set of circumstances.  It still centrally comes down to a state of mind which the judge is in a position the Court of Appeal is not in to make an evaluation – we would respectfully say – he having seen the witnesses, he having seen the exhibits, he having read the transcript, none of which the Court of Appeal had.

That is why the errors in paragraph 51, the factual errors as to the circumstances of the event are also of central import, because they colour the conclusion the Court of Appeal comes to.  They purport to conduct a review of the evidence when they did not have it.  That is really the central question we say arises on the leave application, that a Court of Appeal should not undertake that task in the circumstances presented before it on this occasion.

Central to the reasoning is that the driver of the Commodore was not holding onto the door of the car when the defendant was reversing.  He was back away from the car.  The defendant driver, as the Court of Appeal has concluded he was, was not so attracted or distracted by the conduct of that man threatening him at his door, because he was not even on the vehicle at the time. 

Now, that is, with respect, a fundamental error of the reasoning of the Court of Appeal, and the primary judge was perfectly entitled to conclude, as he did, that the reverse movement could have been effected in a couple of metres and not seven or eight metres. 

Just dealing with Justice Keane’s other proposition, we also respectfully submit that the finding of the Court of Appeal at 49 that it did:

not agree with the trial judge’s further finding at [320] that a reasonable person “would have been carefully checking his/her surrounds –

is simply not open on the evidence or as a matter of principle, that, in light of those matters I read, as set out in paragraph 320 of the primary judge’s reasoning, that any reasonable prudent motorist would have scanned the area and would have made themselves aware of what was going on around them, and not just that area in front of them, the car in front of them, this being, of course, the period before the occupants of that car had got out.  That, with respect, the Court of Appeal also took into consideration in colouring its ultimate conclusions, as your Honour Justice Keane took me to earlier. 

Your Honours, it is a short point, I can speak in many different ways, I have heard the buzzer, I do not think there is anything further I need to say to your Honours, unless there is something you wish to debate further with me.

KEANE J:   Thanks, Mr Campbell.  The Court will adjourn briefly to consider the course it will take in this matter.  Adjourn the Court, please.

AT 10.49 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.53 AM:

KEANE J:   We need not trouble you, Mr Rewell, thank you.

The appeal foreshadowed by this application for special leave to appeal would not raise any issue of principle, as distinct from a dispute as to the better understanding of the facts to which settled principle is to apply.  The application is dismissed with costs.

Adjourn the Court, please.

AT 10.53 AM THE MATTER WAS CONCLUDED