T v Police HC Christchurch CRI 2007-409-205

[2007] NZHC 1191

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2007-409-000205

T

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         1 November 2007

Counsel:         A S Greig for Appellant

K J Bell for Respondent

Judgment:      2 November 2007

JUDGMENT OF PANCKHURST J

Careless use causing injury

[1]      After a defended hearing in the District Court on 25 September 2007 the appellant was convicted upon one charge of careless use of a motor vehicle causing injury.

[2]      The offence occurred on 31 January 2007 near the intersection of Salisbury and Montreal Streets.  Mr T  , while travelling east on Salisbury Street and shortly after crossing Montreal Street, turned out of a line of traffic into a driveway. As he effected the turn the complainant collided with the left side of his vehicle.  She

was a cyclist, also proceeding east on Salisbury Street.

T V NEW ZEALAND POLICE HC CHCH CRI 2007-409-000205  2 November 2007

[3]      Judge Erber found that carelessness was established to the required standard. There  was  clear  evidence  to  show  that  the  complainant  sustained  nasty  minor injuries, which were depicted in photographs produced at the hearing.

[4]      The operative finding of carelessness was expressed in these terms:

[10]   He was exercising the care which I am sure that he normally takes but he simply failed to see the cyclist who was travelling on the left hand side of the road in the same lane as he was travelling and he cut across her and she drove into the side of his car.  That failure to see the cyclist and take steps to avoid a collision is a failure to take reasonable care that a reasonable and prudent driver would in the circumstances take.

[5]      Mr Greig argued in support of the appeal that the learned Judge failed to consider a reasonable explanation which arose on the facts.  This was that, although the appellant checked his left hand side rear view mirror, on account of other obstructions the complainant was not able to be seen and the accident occurred.  To appreciate this submission it is necessary to refer to the circumstances in more detail.

Some further background

[6]      Both parties were going to work.   It was a little after 8.00 am in the morning. The appellant turned into Salisbury Street from Park Terrace.   As he did so he noticed the complainant (Mrs Donaldson) on the traffic island, waiting to proceed in an easterly direction on Salisbury Street. Mr T   did not see her again.

[7]      Salisbury Street is one way.  It comprises two carriageways, with designated parking on each side of the road.   At the point of the impact the left hand side parking area was a five minute park for use by persons going to a New Zealand Post Shop.

[8]      Once  on  Salisbury  Street  the  appellant  travelled  one  block  to  the  light controlled intersection with Montreal Street.  The lights were red.   He stopped, as probably the second car back from the intersection.  On moving off, Mr T   had to cross the intersection with Montreal Street and pass the tower block on the eastern  side  of the  intersection  (which  includes  the  New  Zealand  Post  Shop  at ground level), before executing a left hand turn into an alleyway between the tower

block and an immediately adjacent building.  The distance from the intersection of Salisbury and Montreal Streets to the alleyway was not great, being the width of a footpath and the width of the tower block, outside which there is space for two vehicles to park in the five minute zone.

[9]      In anticipation of his turn Mr T   said that he engaged his indicators when he was almost through the intersection, slowed, checked his rear vision mirror and commenced to execute the left hand turn.  He did not see Mrs Donaldson at any point immediately before the impact.  The complainant hit the left side of his vehicle approximately where the hinges to the passenger’s door are situated.

[10]     In giving evidence Mrs Donaldson said that she cycled to the left of the left hand carriageway as she proceeded  along Salisbury Street.    Photographs  of  the roadway show that there is an available path, a metre or so wide, between the markings for parked cars and the marked left hand edge of the left carriageway. Mistakenly, Mrs Donaldson described this as a marked cycle lane.  At the relevant point on Salisbury Street there are no cycle lane markings, but such markings do appear later closer to the Durham Street intersection.

[11]     Mrs Donaldson received a green light as she approached Montreal Street. She estimated her speed as 20-25 kph.  As to the impact, she said that she first saw the appellant’s car out of the corner of her eye as he angled across her path.  She was also conscious of Mr T  ’s indicators at about the point of impact.  The gist of her evidence was that she had no chance to avoid the collision, her bike hit the car and she was thrown to the road sustaining nasty abrasions and bruising.

[12]     Mr T   immediately went to her assistance.   He arranged for Mrs Donaldson to see a doctor in the tower block, a building which he knew well, since he worked on one of the upper floors.

Was there a reasonable explanation which the Judge did not consider?

[13]     Mr Greig’s argument in support of the appeal was that Mr T   was an experienced  driver  who  had  an  unblemished  record  over  35  years  and  that  his

evidence  of  checking  the  rear  view  mirror  before  turning  left  indicated  that Mrs Donaldson must have been obscured from his view.   Hence, it was said, the facts did not unequivocally establish carelessness on the appellant’s part.

[14]     As to the source of the obstruction of Mr T  ’s rear view, Mr Greig stressed that it was probably a vehicle, or vehicles, parked in the five minute zone to the left side of the carriageway.   Mrs Donaldson thought there may have been a courier van there, although she was unsure, while Mr T   recalled a car parked in the zone.  Mr Greig submitted that the appellant, while proceeding in a line of traffic and on checking his left side rear view mirror, may not have seen Mrs Donaldson on account of obstruction from parked vehicles or the like.

[15]     Is this a tenable suggestion, sufficient to raise a reasonable doubt?   To my mind this question is readily answered by reference to the evidence.  At page 17 of the notes of evidence the appellant was asked in evidence-in-chief:

Q.    You mentioned your rear view mirror, do you know whether or not you checked your mirrors that day.

A.    I’ve thought about that a lot.  I can’t say with certainty.  I always do check my mirrors, I’m just used to doing that when you’re conscious of the traffic all around, so I’m not saying it’s a male thing but I always check my mirrors but I can’t guarantee I checked my mirrors in that case.  I certainly didn’t notice anything by exception but I’m absolutely positive I would have checked my mirrors.

[16]     The cross-examination of Mrs Donaldson concluded on this note:

Q.    Do you accept that it is possible that you were hidden by an obstruction like  the  courier  van  we  see  in  this  photograph,  at  the  time  he commenced his turn.  You emerged from the side of it.

A.   No I just think he wasn’t looking. Q. You think that’s not possible.

A.   No.

Conclusion

[17]     Particularly in light of the evidence just highlighted, I do not consider there is any basis for a conclusion that Judge Erber failed to consider a reasonable possibility or explanation, which raised a reasonable doubt as to carelessness.  To the contrary, I am satisfied that the evidence entirely justified the conclusion reached by the Judge,

namely that there was a failure to look for, and see, the cyclist before the left hand turn was executed.  I also agree with the Judge’s observation that this appeared to be an isolated lapse, in that the appellant failed to exercise the care “which I am sure he normally takes …”.

[18]     For these reasons I am satisfied that the decision of the learned Judge cannot be  impeached  and  that  the  appeal  must  be  dismissed.    That  said,  I have  some sympathy for Mr T  ’s plight.   Until now, he had an unblemished driving record.   Yet, a momentary lapse has produced the present conviction, including a disqualification  of  six  months’  duration.     However,  the  Road  Transport  Act

prescribes that period of disqualification and the will of Parliament must prevail.

Solicitors:

A S Greig Barrister, Christchurch for Appellant

Raymond Donnelly & Co, Christchurch for Respondent