W v Police HC Christchurch Cri-2006-409-155

[2006] NZHC 1358

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2006-409-000155

W

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         1 November 2006

Counsel:         M A J Elliott for Appellant

S C Poore for Respondent

Judgment:      3 November 2006

JUDGMENT OF PANCKHURST J

Careless use causing injury

[1]      This case involves a clash of approaches.   The Judge in the District Court found that the appellant was guilty of careless use causing injury by paying regard to the driving conduct of other motorists, who avoided the victim without difficulty. By contrast, the defence case was based upon expert evidence to the effect that, in the particular circumstances, it was quite possible that a prudent motorist would have had no adequate opportunity to observe the cyclist before the collision occurred.

[2]      In this Court, Mr Elliott for the appellant, argued that it was not competent of the Judge to decide the case on the basis that preceding vehicles avoided a collision, therefore the appellant should have as well.   He submitted that the circumstances

were such as to require “rigorous analysis” of the available avoidance time within

W V NZ POLICE HC CHCH CRI-2006-409-000155  3 November 2006

which to take appropriate action.   Hence, it was said, the expert evidence should have been accepted, or should at least have left a reasonable doubt, and that the appeal must be allowed on this basis.

Circumstances of the accident

[3]      At about 4.00 pm on 5 July 2005 the appellant was driving south on State Highway 1 a short distance on the Christchurch side of Rolleston.  At the same time the complainant, Mr Lewis, was biking home from Sockburn to Rolleston.  This he did daily.  He was a serious cyclist, with a competitive background in the sport.

[4]      Mrs W   hit Mr Lewis from behind.  This occurred on a straight stretch of road.   At the relevant point on the road there were two lanes in each direction. Mrs W   was driving in the left hand lane heading south, with a passing lane to her immediate right.   The two lanes for traffic proceeding in a northerly direction converged into one at, or about, the point of the accident.

[5]      The left side of the roadway was marked by a continuous white line which I will refer to as the fog line.  To the left of it was a narrow bitumen border of about .5 to.75 of a metre.  Then there was a grass verge.

[6]      The appellant was driving south in the midst of a convoy .  It comprised three army vehicles which were en route to Burnham Military Camp.   The first was an army truck carrying two or three inflatable vessels.   About 50 metres behind the truck was another army vehicle, a Nissan Navara driven by Mr Morgan.  Mrs W   was driving a modern Mazda car about 50 metres behind the Nissan Navara.  Further back, at a distance of 100 metres or more, was the third army vehicle, another Nissan Navara.   A Mr Ferguson was a rear passenger in this vehicle, seated behind the driver.

[7]      All four vehicles were in the non-passing lane.  The maximum speed of the truck was about 90 kilometres per hour, so the convoy was proceeding at about this speed.

[8]      Mr Morgan, the driver of the first Nissan Navara, noticed the truck ease out to the right as if to pass something.  Momentarily he saw Mr Lewis on his bicycle. With reference to Mr Lewis’s position, Mr Morgan said he was “close to or on the white line” and “riding normally in a straight line”.  He added that if he had been on a bicycle he would have been in much the same position.  Mr Morgan said that he engaged his right side indicator, pulled to the right and perhaps eased slightly over the dividing line between the left lane and the passing lane.   This manoeuvre he described as not strictly necessary, but advisable to give Mr Lewis a safe berth.

[9]      The driver of the second Nissan Navara observed nothing untoward until the point of impact.  At that stage he saw something thrown into the air from the front of Mrs W  ’s Mazda and subsequently realised that the object was a man, who had come to rest on the grass verge.

[10]     However, his back seat passenger, Mr Ferguson, observed rather more.  His recollection was that only one car passed the convoy in the passing lane, but this was a little earlier, somewhat before the point of the impact.  Mr Ferguson noticed both the truck and the first Nissan Navara ease to the right as if to pass something.  He described the Mazda as positioned close to the left edge of the road and he did not see it deviate as the other vehicles had done.  Next, he too saw something airborne which he came to realise was a cyclist.

[11]     The first two army vehicles continued on their way oblivious to what had occurred.   Mrs W   and the second Nissan Navara stopped.   Assistance was rendered to Mr Lewis who had sustained serious injuries.  An ambulance was called.

[12]     Police  officers   went   to   the   scene   soon   after   the   accident   occurred. Photographs were taken and a road plan was subsequently prepared.   One officer took roadway measurements which were recorded in a job sheet.  He noted that the two south-bound lanes were 6.8 metres wide, each being about 3.4 metres.   The verge to the left of the fog line was .75 of a metre or less.

[13]     On account of the nature of the accident there was no evidence left on the roadway  which  established  the  point  of  impact.     However,  a  photograph  of

Mrs W  ’s car indicated an impact about .3 of a metre from its left hand side. Also,  the  windscreen  on  the  passenger’s  side  was  shattered,  consistent  with Mr Lewis having been thrown in that direction before he came to rest on the grass verge.

[14]     The appellant provided a written statement to the police 16 days after the accident.  She explained that she was driving to Geraldine for work-related meetings. She described the convoy in terms consistent with the recollections of the army witnesses.  With reference to the accident itself, the appellant said that she was not distracted (through using a cellphone or any other cause), but that she simply did not see the cyclist.  Her immediate reaction was that a stone had broken the windscreen. Subsequently she discovered the true situation.

[15]     Mrs W   also gave  evidence  in  the  District  Court.    Her  account  was consistent with the written statement.  She was asked:

Q.   Do you recall what you were doing before the collision.

A.   No I don’t, but I just assumed that I was driving as I normally - Q.     You said no I don’t but I just assumed that I was.

A.   Driving normally.

Q.   What do you mean by driving normally. A.    Driving I believe as a responsible driver.

Q.   Did you see the bicycle at any point before the collision. A.    No I didn’t.

There was then reference to there being no distractions, or medical or other reason why Mrs W   failed to observe the cyclist.   However, she added that she was conscious of the traffic conditions, including that north-bound vehicles were coming to the end of a passing zone comprising two lanes, at about the point of the impact.

The respective cases in the District Court

[16]     The police case involved the straight-forward propositions that Mr Lewis was proceeding in an appropriate manner on or about the fog line, there was ample room in the left hand lane to pass him with safety and that both vehicles immediately in front of Mrs W   saw Mr Lewis and eased to the right in order to give him a safe

berth.   Therefore, any other prudent motorist should likewise have observed him. The fact that the appellant did not indicated inattention on her part.

[17]     The defence case was based upon expert evidence given by Mr C C O Marks, a mechanical engineer and specialist in motor vehicle crash reconstruction.  He gave lengthy and detailed evidence, including various calculations relevant to the avoidance time available to the appellant.   His evidence may be summarised as follows.

[18]     Based  on  a  separation  distance  of  65  metres  between  the  appellant  and Mr Lewis (when he first became visible as the first Nissan Navara passed him), Mr Marks arrived at a total avoidance time of 4.2 seconds.  He expressed the opinion that the mean driver perception response time is 1.9 seconds.   Mr Marks further explained that a prudent driver would scan the road ahead, as well as checking rear vision mirrors and speed at random intervals.  Through cross-examination of a police officer  it  emerged  as  common  ground  that  a  reasonable  driver  may check  side mirrors, the rear vision mirror, the speedometer, the road ahead, overtaking traffic, and oncoming traffic (especially where two lanes were converging into one)  in circumstances such as these.

[19]   Mr Marks also expressed the opinion that the “central visual field” is comparatively narrow.    Then,  he  gave  considerable  evidence  concerning  glance times, culminating in the opinion that a prudent driver may avert attention from what is immediately ahead for up to 2 seconds;   while mirrors, instruments and other vehicles are under observation.

[20]     Based on Mr Marks’ evidence, Mr Elliott submitted that there were a number of scenarios which could have occurred whereby there was no available avoidance time in which a prudent motorist could have avoided this impact.  He referred to a scenario described by the expert, and based upon Mrs W  :

just missing seeing the cyclist with her last look to the left, then looking ahead, followed by looking to the right to the opposing traffic, then looking ahead, then looking (again) to the left.

These actions would occupy on average 2.5 seconds, which, with the addition of a response time of 1.9 seconds, exceeded the total avoidance time of 4.2 seconds calculated by Mr Marks.   Other  scenarios  suggested  by Mr Marks  included  an additional glance at a side mirror and/or the speedometer, in which case an average of 3.5 seconds would elapse, before the next glance to the left.  On this basis the total available avoidance time, 4.2 seconds, was well exceeded by the combination of glances  elsewhere  totalling  3.5  seconds  and  the  required  response  time  of  1.9 seconds.

[21]     On the basis of these scenarios Mr Marks concluded:

105.The available evidence and my analysis of it has led me to conclude that a substantial proportion of normal attentive drivers in the same circumstances as Ms W   who was scanning ahead towards the right as Mr Lewis became fully visible would not be expected to have been able to avoid collision with Mr Lewis and might not be expected to have recollected seeing Mr Lewis prior to the collision when questioned afterwards.

[22]     The latter point was the subject of a further opinion from Mr Marks that if, say 3.5 seconds were devoted to looking elsewhere, it might be thought that a driver on returning their gaze to the left would still have a momentary time in which to see Mr Lewis and remember seeing him.  However, his evidence included at para 100 of his brief:

That is not necessarily the case.   It is well established that the perceptual processes  involved  might  not  result  in  any  permanent  record  of  seeing Mr Lewis …”

[23]     Indeed, this phenomenon was the focus of the evidence given by the other defence expert.   This was Dr Barry Hughes, a psychologist, who gave extensive evidence to the effect that there were good reasons why Mrs W   may not have seen the cyclist, or if she did, might not have recalled seeing him.  This reflected the process of perception and how memories are stored in the brain.

The decision of the District Court Judge

[24]     Judge Callaghan did not find it necessary to confront the evidence of the two defence experts in a detailed manner.   At an early stage in his oral decision he

referred to the conclusions reached by both Mr Marks and Dr Hughes.   However, immediately following reference to them the Judge observed at para 9:

Both of these witnesses of course had not had the opportunity, as I have had, to hear the evidence and see the witnesses give their evidence for what, quite frankly, is a straight forward incident when considered.

[25]     The Judge then described the circumstances of the incident as detailed by the various witnesses, to whom I have already referred.  He then referred to a submission made by Mr Elliott, namely that the maxim res  ipsa  loquitor  (things  speak  for themselves) does not apply in the criminal law.  He accepted evidence was required to establish that the appellant had fallen below the standard of a reasonable and prudent driver in the circumstances which prevailed.

[26]     The Judge continued:

[21]     Mr Marks’ evidence is prefaced on the basis that Mrs W   was involved in taking into account many of the things that were happening around her and by way of example checking oncoming traffic where the passing lane on the opposite side of the road was returning to a single lane, cars  behind  vision  to  the  right  and  left  rear  vision  inside  mirrors  etc. However, there is not the evidence from Mrs W   about what she was doing other than she thought she was driving normally and that she was aware of oncoming traffic.

[22]      Just because two drivers in front of her have seen clearly Mr Lewis’ bike does not mean automatically that she should have but it is certainly a very good indication as to what the standard of a reasonable and prudent motorist is because clearly both of those drivers for whatever reasons were able to view Mr Lewis on his bike.  I conclude from that that Mr Lewis was visible and I conclude from that that those motorists were driving to the required  standard.     Why  wasn’t  Mrs  W    because  clearly  she  hit Mr Lewis and knocked him off his bicycle?

[23]      Well of course she does not have to offer an explanation as to why she did not see him or if she did that she now does not have a recollection. When I assess all the evidence and even making allowance for her perhaps not viewing the truck with the inflatable boats in front of her taking or moving out I cannot see how if she was paying attention to the road ahead which was her prime focus as a reasonable and prudent driver why she did not see the Nissan Navara driven by Mr Morgan move out and indicate.

[24]      To me the only conclusion to draw in those circumstances is that she was not paying the care and attention that a reasonable and prudent driver would normally do in those circumstances.  This was the open road.  This was  driving  at  80  or  90  kmph  it  is  not  suggested  by  anyone  she  was speeding.  The cyclist was there, the car in front driven by Mr Morgan had indicted a change of path.  If she had seen that she would have been alerted

to at least something occurring and there is no evidence at that point in time that Mr Morgan was going to overtake anything and he barely, if at all, went over the centre line.

[25]     So the conclusion is that she was not paying attention to that and I draw the inference that she was not therefore paying attention to the road in front of her because had she been she would have seen Mr Lewis and she would have been able to avoid him.  He was cycling, I am satisfied, on the left hand side of the road on or just about on the fog line.  Her car was more to the left and here I rely on Mr Ferguson’s evidence perhaps more than the Nissan Navara she just did not see him.   She obviously was not looking ahead and the collision occurred.

On the basis of this assessment the Judge concluded that the case was proved beyond reasonable doubt.  He entered a conviction.

Was this process of reasoning open, in the face of the expert evidence?

[27]     This, to my mind, is the essential issue raised by this appeal.   Mr Elliott’s argument was, in effect, that confronted by the evidence of the two experts, the Judge was bound to confront their testimony and, unless he found a reasoned basis upon which to doubt it, reasonable doubt existed.

[28]     But, Mr Poore did not accept that this was so.  He observed that the Judge did not ignore the evidence of Mr Marks and Dr Hughes.  In fact, he expressly referred to their conclusions, but then expressed the view that this was, on consideration, “a straight forward incident”.   It was common ground that the primary focus of a motorist in the appellant’s position must be upon the road immediately ahead.  And, based on the actual evidence of the witnesses, Mr Morgan and Mr Ferguson in particular, the Judge concluded that the appellant was not keeping a proper lookout, which explained why she did not see Mr Lewis before the impact and hit him from behind.

[29]     I agree that the Judge was entitled to resolve the case in the manner that he did.  Put simply, the evidence of Mr Marks represented a theoretical approach based on a number of assumptions, some of which I will mention shortly.  By contrast, the Judge preferred to approach the case by a more direct route, through having regard to the direct testimony of witnesses, who observed matters of particular relevance on the day as they travelled on the same route.   On the basis of that evidence I am

satisfied it was competent of the Judge to make the finding of a failure to keep a proper lookout, which in turn prompted the conclusion that the appellant had fallen below the standard expected of a reasonable prudent motorist.

[30]     With  reference  to  Mr  Marks’  thesis  I  consider  there  are  a  number  of difficulties.  The first one is the point to which Judge Callaghan referred.  That is his opinion  was  based  on  an  assumption  that  the  appellant  looked  to  the  left momentarily before Mr Lewis was able to be seen, and then embarked upon glance observations of various other things.   But in fact there was no evidence from the appellant supportive of this course of conduct.

[31]     I think it is also important to note that the available carriageway in the left hand lane was 3.4 metres, while the appellant’s car measured 1.76 metres in width. It follows that there was about 1.6 metres of clearance within the left hand lane, assuming of course Mr Lewis was on the fog line.  These measurements underline the extent to which this was, as the Judge put it, “a straight forward incident”, consistent with a failure to keep a proper lookout being the operative cause of the accident.

[32]     It is also significant that Mr Marks’ analysis “proceeded on the basis that Mr Lewis was riding at about 0.5 metre from the left edge of the left lane at the material times involved” (para 65 of his evidence).  Hence, he was able to postulate that the left side of the appellant’s car was approximately .2 of a metre from the fog line, which explained why the point of impact on the car was .3 of a metre from its left side.

[33]     But the direct evidence was contrary to Mr Marks’ assumption.  Mr Morgan gave evidence concerning this aspect (see para 8) namely that Mr Lewis was close to or on the fog line, riding normally in a straight line and in a position which the witness would expect a cyclist to adopt.  Further, the Judge accepted this evidence (para [25] of his decision).   This aspect indicates to me the extent to which the experts’ theory of the case was at odds with the available evidence.  Nor do I think it credible to suggest that Mr Lewis might have deviated from his previous line of travel immediately before  the  impact  and  in  the  few  seconds  after  Mr  Morgan

observed him.  Not only is there no evidence to indicate this, but the experience of

Mr Lewis as a cyclist indicates that it is a farfetched suggestion.

[34]     For these reasons I am satisfied that the conclusion reached by the Judge was not  only  available  on  the  evidence,  but  correct  as  well.    The  appeal  against conviction is dismissed.

Was the reparation for emotional harm excessive?

[35]     Although Judge Callaghan delivered an oral decision finding that the charge was proved, sentencing was deferred to enable a number of reports to be obtained. These included a victim impact statement, a reparation report and a pre-sentence report.  Sentence was imposed on 7 August 2006.

[36]     The appellant was fined $500, ordered to pay witness expenses and court costs totalling $877, disqualified from driving for eight months, ordered to  pay reparation for reparation damage of $4,779 and reparation of $7,500 for emotional harm.

[37]     The sentence appeal is limited to the award for emotional harm.

[38]     Mr Lewis sustained serious injuries.   These included a fracture of the C7 vertebrae and of the right fibula and right ankle.  In the long term, however, the most significant injury was to the brain.  The left temporal and frontal lobes are affected. This has brought about the onset of epilepsy, for which Mr Lewis will have to take anti-convulescent medication for the rest of his life.  At the time of the hearing he had not returned to work.   He could not drive a car, much less ride his bicycle. Because his wife is a non-driver these impacts have been particularly significant.

[39]     Counsel submitted that the award for emotional harm was clearly excessive. My attention was drawn to a number of cases in this court where reparation orders for emotional harm were considered.  Although I have read each of these cases, I do not find them particularly helpful.   A number of the cases, which involved comparatively modest awards, were obviously influenced by the limited ability of

the appellant to pay reparation.  In terms of s35 of the Sentencing Act 2002 the Court is required to take into account the financial capacity of the offender.  The present appellant is not in straitened financial circumstances.  It is not suggested she lacks the capacity to pay.  Rather the argument is that the order is excessive.

[40]     In Smith v Police HC Rotorua CRI 2006-463-001 7 March 2006, Priestley J expressed the view that a reparation order in the sum of $10,000 for emotional harm payable in relation to a child aged 7 was “arguably on the high side” by comparison to other awards.   The Judge referred the matter back to the District Court for reconsideration.   The case was characterised by an absence of evidence as to the harm suffered by the child and as to how the Judge below had calculated the award. Nor is it apparent from the appeal judgment whether the capacity of the offender to pay was in issue.

[41]     A case which was referred to by Judge Callaghan was Read v Police CHCH HC CRI 2003-409-000070 10 December 2003.  William Young J upheld reparation orders totalling $7,000 for emotional harm, but payable as to $5,000 to one victim and $2,000 to another.  Judge Callaghan in referring to this decision appears to have assumed that the total award was payable to one person.

[42]     With reference to the level of the award William Young J said this:

[48]     Sentencing is not a precise sentence.   The comparatively modest orders made could hardly be regarded as being in the nature of compensation for the injuries suffered as opposed to being fairly referable to the emotional harm suffered. Mr Hall’s complaint that imposing a reparation order in these circumstances  has  the  consequence  that  a  wealthy  defendant  may  be punished more severely than a poorer defendant seems to imply that the Court should not make a reparation order against a defendant who can pay merely because some (or perhaps most) similarly situated defendants would not be able to afford to pay reparation. That submission does not seem to me to be in accord with the significance accorded to reparation/amends in the Sentencing Act.

[43]     I agree with these observations, which I see as of direct relevance to the present case.   In fixing the level of the emotional harm order Judge Callaghan characterised the consequences for Mr Lewis as “dire” and therefore warranting a high level of reparation for emotional harm.  The Judge also observed:

Nothing of course that I can order will ever fully compensate Mr Lewis for the injuries and it can only be within the parameters as I see them of awards previously that I can order reparation. (emphasis added)

The reference to injuries was in error.  Section 31(1) of the Act limits reparation to property damage, emotional harm and consequential loss flowing from either of the two.  Injuries per se cannot form the basis for a reparation order.  Despite this one reference to “injuries” I am sure that the Judge had the necessary distinction in mind. At all other times he referred to emotional harm, indicating that the single reference to injuries was a slip of the tongue.

[44]     In my view the amount of reparation awarded was not excessive.  I agree that the emotional impacts in this case have indeed been dire.  Most areas of Mr Lewis’ life are affected as a result of this accident and the extent of the emotional harm is self evident upon a reading of the victim impact statement.

[45]     For these reasons the appeal against sentence is also dismissed.

Solicitors:

Mortlock McCormack Law, Christchurch for Appellant

Raymond Donnelly & Co, Christchurch for Respondent