Naysmith v Police HC Tauranga CRI-2011-470-14

[2011] NZHC 671

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2011-470-14

BETWEEN  STUART RICHARD NAYSMITH Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         22 June 2011

Appearances: T J Leigh for the Appellant

C A Harold for the Respondent

Judgment:      23 June 2011

RESERVED JUDGMENT OF ELLIS J

This judgment was delivered by me on 23 June 2011 at 3pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:      Crown Solicitors, PO Box 13063, Tauranga 3141

Counsel:       T J Leigh, PO Box 4033, Mount Maunganui 3149

NAYSMITH V POLICE HC TAU CRI-2011-470-14 23 June 2011

[1]      Mr Naysmith has been convicted on a charge of careless driving causing injury under s 38 of the Land Transport Act 1998 (“the LTA”).  On 14 March 2011 he was sentenced to 150 hours community work, $2000 reparation and disqualification from driving for seven months.  The conviction relates to an incident in which Mr Naysmith hit a pedestrian on a pedestrian crossing in Tauranga at about

10.40 in the evening of 24 July 2010.

Facts

[2]      On  the  evening  in  question  Mr  Naysmith  was  driving  in  the  Greerton shopping  precinct.    He  was  going  east  on  Chadwick  Road  heading  away from Cameron Road.  The area had a speed limit of 50 km/h.  The weather conditions at the time were fine and the road surface was dry.  There were no other vehicles on the road and very little foot traffic.

[3]      Mr Naysmith approached a pedestrian crossing, the centre of which was a raised island with street lights on both sides of the crossing.   On one side of the pedestrian crossing is a school, and on the other is a set of shops.

[4]      The effect of the raised island in the middle of the crossing is that as a matter of law there are two separate pedestrian crossings.1   The lights on the left side of the road  were  not  working  at  the  time,  but  visibility  from  ambient  lighting  was apparently still good, although this was disputed somewhat by Mr Leigh before me. Because there was no suggestion that other vehicles were on the road and there were few  other  pedestrians,  it  can  be  inferred  that  there  were  no  obstructions  or

distractions and any pedestrians entering the crossing should have been easy to see.

[5]      As Mr Naysmith approached  the crossing, it seems the victim (Mr Hill) entered onto the crossing from the right and walked across it onto the east bound lane.  Mr Naysmith drove into him, knocking him onto the bonnet, which caused his head to hit the car windscreen.  Mr Hill was thrown five metres and came to rest on the road.   He sustained severe head trauma and now has no recollection of the

accident.

1 Land Transport (Road User) Rule 2004, r 10.1(3).

The District Court decision

[6]      The issue before Judge Harding was “whether the police had proved beyond reasonable doubt that Mr Naysmith’s standard of driving fell below that expected of a reasonable and prudent driver”.2

[7]      In his judgment, Judge Harding noted that the victim had been at the rugby that day and had been to the local pub for a couple of drinks.  However, there was no suggestion or evidence that he was affected by alcohol to any material extent, although alcohol could be smelt on his breath.   The Judge noted that the crash investigation expert called by the Police established that Mr Hill had started on the northern side of the road, crossed the lane on that side, crossed the small centre island and was struck roughly in the middle of the lane in which Mr Naysmith was driving. The contact point was slightly to the left of centre in the car.

[8]      The Judge then said:3

[9]     Mr Naysmith explained to the police, in a full and frank interview, that he suddenly saw somebody right in front of him.  He saw him before he had hit him and jammed on the brakes and that he appeared just as a perception to have been coming across ... that is entirely consistent with the conclusions drawn by the traffic investigator.

[9]      The learned District Court Judge noted the defence submission that Mr Hill probably walked out onto Mr Naysmith’s side of the road when Mr Naysmith was about 16 metres from the pedestrian crossing.  The defence position was therefore that there was no time for Mr Naysmith to avoid a collision and an accident was inevitable. The Judge went on to note the further submission that:

[14]   ... [T]here was no obligation on Mr Naysmith to stop or give way to Mr Hill when Mr Hill was on the other side of the pedestrian crossing; that being apparent from the Land Transport (Road User) Rules 2004 (dealing with pedestrian crossings interrupted by raised islands).

[15]   Mr Toner also  points  out that  those same  rules  require,  in effect, pedestrians not to suddenly enter a pedestrian crossing in circumstances which prevent a driver being able to give way.  Those rules are undoubtedly

in effect but they do not address the question of the carelessness or otherwise of Mr Naysmith.

[10]     Relevant to the appeal, Judge Harding went on to say:

[16]   The question is not whether Mr Hill may have either advertently, or inadvertently,  contributed to  what  happened  but  whether  Mr  Naysmith’s behaviour on the night was that of a reasonable and prudent driver.

[17]   In that regard the significant point is not when Mr Hill stepped onto Mr Naysmith’s side of the road but when he was available to be seen and his actions anticipated.

[18]   From the evidence it is clear that, before Mr Naysmith saw Mr Hill, he had walked from the other side of the road, across a full lane (measured at some 3.8 metres), across the pedestrian island in the middle and half-way across the next lane.   It was not until approximately that point that Mr Naysmith saw him.

[19]   ...[A]lthough there is no obligation on Mr Naysmith as a driver to have given way to Mr Hill, while he was on the other side of the road, there is clearly an obligation on reasonable and prudent drivers to keep a proper lookout and to see and anticipate future hazards.  Mr Naysmith simply did not see Mr Hill; Mr Hill was there to be seen.

[20]   In that respect, inevitably, Mr Naysmith’s actions were not those of a reasonable and prudent driver.   In that respect his standard of driving fell below that required. The charge is proved to the criminal standard.

[11]     In  his  sentencing notes, Judge  Harding said  that  “the carelessness  found against you was, in essence, that you had not seen somebody who was there to be seen, in good time”.   He recorded his view that the carelessness was not “at the highest end” but rather a “tragic failure to see somebody on a pedestrian crossing”.4

Grounds of appeal

[12]     The two bases upon which Mr Naysmith now appeals his conviction are that in finding that Mr Naysmith failed to see somebody who was there to be seen Judge Harding:

(a)       failed  to  take  into  account  the  legal  significance  of  the  raised pedestrian refuge; and

(b)failed to take into account the legal obligations placed on pedestrians who use a crossing that is divided by a raised pedestrian refuge.

Approach on appeal

[13]     The right  of  appeal  against  sentence  pursuant  to  s  115  of the  Summary Proceedings Act 1957 is a right of general appeal and the appeal is thus by way of re- hearing.5   The normal appellate principles as set out (at [16]) in Austin Nichols & Co Inc v Stitching Lodestar6  apply.   I must accordingly come to my own view on the

merits.7

Relevant law

Land Transport Act 1998

[14]     Sections 8 and 38 of the Land Transport Act 1998 relevantly provides:

8     Drivers not to be careless or inconsiderate

A person may not drive a vehicle, or cause a vehicle to be driven, carelessly or without reasonable consideration for other persons

38     Contravention of section 8 causing injury or death

(1)     A person commits an offence if the person operates a vehicle on a road carelessly or without reasonable consideration for other persons using the road, and by that act or omission causes an injury to or the death of another person.

(1A)  A person commits an offence if—

(a)     the person drives a motor vehicle, or causes a motor vehicle to be driven, carelessly; and

(b)     by that act or omission, causes an injury to or the death of another person.

[15]     In order to convict under s 38, the Court must be satisfied beyond reasonable doubt  that  the  prosecution  has  not  only  established  that  the  defendant  has  not

5 Summary Proceedings Act, s 119.

6 [2008] 2 NZLR 141 (SC).

exercised the degree of care and attention which an ordinary and prudent driver would exercise in the circumstances but also that driving, having been characterised as careless, was causative of the injuries or death.  I record that causation was not in issue in Mr Naysmith’s case.

[16]     In Boyes v Transport Department8  Wilson J held that the phrase “without reasonable consideration” includes inattention or thoughtless acts or omissions as well as deliberate ones.9

Land Transport (Road User) Rule 2004

[17]     Part 10 of these rules deal with pedestrian crossings.  Rule 10.1(1) provides that when approaching a pedestrian crossing, a driver must:

(a)     Give way to pedestrians...

(i)    On the pedestrian crossing; or

(ii)  Obviously waiting to cross it; and

(b)     If necessary, slow down and stop the driver’s vehicle for that purpose.

[18]     Rule 10.1(3) provides that if a pedestrian crossing is interrupted by a raised traffic island, the parts of the crossing that are situated on different sides of the island must be regarded as separate pedestrian crossings.

[19]     Rule 11.5 provides that:

A pedestrian  ...  must  not  suddenly enter  a  pedestrian  crossing when  an approaching vehicle is so close to the pedestrian crossing that the driver of the vehicle is unable to give way to the pedestrian ....

Discussion

[20]     For the purposes of this appeal I am prepared to assume that in entering the second pedestrian crossing upon which he was hit, Mr Harris failed to comply with

the obligation placed on him by rule 11.5.  I also accept that the evidence established

8 Boyes v Transport Department [1966] NZLR 171.

9 At 173.

that Mr Naysmith had slowed down when approaching the crossing (the  Police evidence was that he was travelling at 12 kph under the 50 kph speed limit when he hit  Mr  Harris).    But  neither  of  those  matters  determines  the  issue  of  whether Mr Naysmith’s  driving  was  nonetheless  “careless”  as  that  term  is  legally  to  be understood.

[21]     The essence of Mr Leigh’s submissions on the appeal was the contention that Judge Harding erroneously placed a legal burden on Mr Naysmith to be responsible for the actions of a pedestrian on the separate crossing.

[22]     But the consideration required of drivers by s 8 is not limited in the way that this submission suggests.  It extends to all “other persons using the road”.  Mr Harris was undoubtedly such a person.   As well, the s 38 offence is focused on the carelessness  of  the  driver.    It  is  the  driver’s  actions  or omissions  that must  be assessed against those of an ordinary prudent driver.

[23]     The proposition that a prudent driver approaching a legally separate crossing that is nonetheless contiguous with another would not be required to look beyond the first crossing at what might be happening on the other cannot be correct.  On that analysis a driver approaching a normal pedestrian crossing would equally be entitled to ignore the presence of a pedestrian approaching that crossing and the real possibility that, notwithstanding his rule 11.5 obligation, he might step out onto that crossing.  The mere presence of the rule 11.5 obligation does not excuse a prudent driver from turning his mind to the likelihood of it being breached.  And where (as here) there are two adjacent crossings the chance of a pedestrian who is walking on one continuing on to cross the other without stopping is, in my view, quite considerable.

[24]     Regardless  of  the  precise  point  that  Mr  Hill  was  in  fact  first  seen  by Mr Naysmith, the conclusion that he should, in the conditions prevailing at the time, have been seen earlier (while crossing the first crossing) seems to me to be inescapable.  Although Mr Leigh sought to take issue with the finding that the area was well lit there was simply no evidence before me upon which I could differ from the learned District Court Judge in that respect.

[25]     So as Judge Harding said, the critical point is not when Mr Hill stepped onto Mr Naysmith’s side of the road but when he should reasonably have been seen and his actions anticipated.  In my view that point was, at the latest, when Mr Hill was navigating the first crossing.   It is at that point that an ordinarily prudent driver would have seen Mr Hill and would have been prepared, and able, to stop in the event that Mr Hill did not comply with his rule 11.5 obligations before stepping onto the second crossing.

[26]     The unfortunate reality is that Mr Naysmith should have seen Mr Hill in time but did not.  Had he seen him on the first crossing he would not simply have driven across the second in reliance on Mr Hill complying with rule 11.5.  A reasonable driver would then have taken steps to mitigate the risk of his not doing so and to avoid any possible collision.  This is not a case of the legal burden being reversed. Of course pedestrians should be careful not to step out in front of a vehicle suddenly. But a reasonable driver knows that pedestrians are not always careful, particularly in the circumstances presently at issue.

[27]     The appeal is dismissed accordingly.

Rebecca Ellis J