Health Administration Corporation v CJL Haulage Pty Limited

This is an appeal brought pursuant to ss 39 and 40 of the Local Court Act 2007 (NSW) from the verdict and orders of a Magistrate sitting in the civil jurisdiction of the Local Court. It was accepted by senior counsel for the appellants that, pursuant to those appeal-creating provisions, they possess an appeal founded upon a question of law as of right, and an appeal founded upon a question of mixed fact and law by leave only. There is no right of appeal with regard to a question of fact alone: see Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54, 77 (Brennan J); Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 356 (Mason CJ).

The appellants are a corporation and a natural person, Ms Foukkare, who was an employee of that corporation. She was driving an ambulance at the time of a motor vehicle collision that gave rise to the proceedings in the Local Court. The respondents to the appeal are a corporation and a natural person, Mr Edwards, who was an employee of that corporation. He was driving a truck at the time of the collision.

The appellants in this Court were the defendants in the Local Court. There was also a cross-claim brought by the defendant corporation in the Local Court against both Mr Edwards and his employer. In that rather complicated context, I shall, in the interests of comprehension and concision when discussing legal submissions, refer to the appellants in this Court compendiously as “the ambulance driver”, and refer to the respondents in this Court compendiously as “the truck driver”.

The facts are straightforward. Early on the morning of 25 July 2008, the truck driver and the ambulance driver were driving their vehicles east on a suburban road of Sydney. The ambulance driver and her offsider had received a message to attend an emergency. When they left their base, they had both lights and sirens activated. Whilst travelling east, because of the amount of traffic up ahead on the same side of the road (that is, the northern side), the ambulance driver made a decision to cross to the “wrong” side of the road; that is, the southern side whilst travelling east.

Meanwhile, the truck driver, who had been up ahead, moved his vehicle to the right-turning lane in order to turn right (that is, south). He had his right-turning indicator on. As one would expect, his attention was focused upon the oncoming traffic to the east, across the path of which he was to turn.

As he performed that turn, the ambulance struck the truck on its right hand side. Serious injury and damage was caused as a result of the collision.

At first instance, there were four possible outcomes of the litigation. The first was that the truck driver alone had been negligent. The second was that the ambulance driver alone had been negligent. The third was that each driver was negligent, thereby giving rise to considerations of contributory negligence. The fourth was that neither driver was negligent, and the collision was a true “accident”.

There is no need for me to recount the pleadings in detail. Suffice to say that by the close of the pleadings each driver was denying that he or she was negligent, and asserting that the other driver was negligent.

There were two central questions of fact for determination by her Honour. The first was whether or not the lights of the ambulance were activated at the time of the collision. The second was whether the siren of the ambulance was activated at the time of the collision.

It is noteworthy that an affidavit of the offsider of the ambulance driver was read in her case in the proceedings at first instance, and he was not cross-examined upon it by counsel for the truck driver. Accordingly, the following sworn evidence in that affidavit can be taken as accepted:

The affidavit of the offsider did not speak in terms as to whether or not the siren was on at the time of the collision. It said nothing about either the offsider or the ambulance driver deactivating the siren.

The position of the ambulance driver was that the siren was on, and neither she nor her offsider deactivated it before the accident. As one would expect, she also did not assert that she had a perfect recollection of the seconds before the impact.

A Mr Ali Rihani was also driving east on the road in question that morning. Using his rear-view mirror, he heard and saw the ambulance as it approached him from behind (that is, from the west). He noted that the lights and siren were activated. That was some distance before the point of collision. His evidence was that he was unable to say with certainty that the siren was activated at the time of the collision.

The evidence of the truck driver was that he did not hear the siren in the moments before the collision. His evidence was also that there was nothing that would have impeded him from doing so if the siren had been sounding.

It can be seen that her Honour’s judgment placed a great deal of weight on whether or not there had been a breach of the Road Rules 2008 (NSW) by either the ambulance driver or the truck driver. The judgment includes quite a lengthy discussion of whether or not the criminal defence provided to certain persons contained in r 306 had been established. That rule was, as at the date of the collision, as follows:

Before me, the parties were agreed that the correct position with regard to the relationship between an asserted breach of a criminal statute (or, as here, delegated legislation to do with criminal liability) and civil liability for the tort of negligence is encapsulated in what was said by Meagher JA (with whom Gleeson and Sackville AJA agreed) in Verryt v Schoupp [2015] NSWCA 128 at [4]:

It is true that the degree to which the judgment of her Honour in this civil matter focuses upon delegated legislation that gives rise to criminal offences, and defences to those offences, is at first surprising. But a reading of the pleadings and the oral submissions made at first instance shows how that came to occur. I proceed to detail that development.

It can be seen that one of the particulars of negligence asserted by the truck driver in the amended statement of claim of 23 August 2012 was “failure to comply with the Australian Road Rules”. It can also be seen that, in the defence to that amended statement of claim of the ambulance driver of 27 September 2012, reliance was placed upon “sections 78, 79 and 306 of the Australian Road Rules”. In similar terms, the cross-claim of the ambulance driver of 27 September 2012 made specific reference to a “failure to comply [on the part of the truck driver] with the Australian Road Rules, particularly rule 78 and 79”.

At the relevant time, r 78 was as follows:

At the relevant time, r 79 was as follows:

A reading of the transcript of proceedings in the Local Court shows that both parties consistently directed her Honour’s attention to the Road Rules, and were content when her Honour turned to them of her own motion: see, for example, pp 6.24; 7.7; 7.9; 25.10; 80.13; 84.32; 87.22; 101.27; and 101.28. Indeed, as p 6.28 of the transcript shows, counsel for the ambulance driver provided her Honour with “a copy of what we say [are] the relevant Road Rules” shortly after proceedings had commenced.

During the course of the hearing, counsel for the truck driver said at p 80.4 of the transcript that the Road Rules (and in particular, r 306), did “not operate to protect [the ambulance driver]”, since her driving was negligent in the circumstances. As well as that, counsel for the ambulance driver said at p 88.22 of the transcript that “Rules 78 and 79 were applicable” in the circumstances and, accordingly, the ambulance driver should be exempt from liability.

Counsel for the ambulance driver also submitted at p 83.8 of the transcript that “Road Rules, Road Rule 78. 79 and 306 apply in this case to like effect in that the ambulance travelling in the westbound lane had the right of way to vehicles coming in any direction of it”.

It is also noteworthy that, at p 100.5 of the transcript, counsel for the ambulance driver addressed her Honour directly on the question of interpretation and submitted that “a very strict application of rule 306 would render the exemption for emergency vehicles nugatory; it would be against the policy of the law”.

In other words, to my mind, it is tolerably clear that both parties were content for her Honour to determine the question of the establishment (on the balance of probabilities) by one party of the tort of negligence having been committed by the other very largely by way of reference to the Road Rules.

In the event, her Honour found that the siren of the ambulance was not activated at the time of the collision. That finding underpinned the determination that the truck driver had not been negligent in the moments before the collision with regard to an impact with a vehicle that was approaching him from behind on the wrong side of the road.

Her Honour did find that the lights of the ambulance were on. But that was of no great moment, because the truck driver was naturally focusing upon the oncoming traffic in front of him, to the east, as he performed the turn to the south, and not (by way of his mirrors) upon what may have been behind him to the west.

The learned Magistrate found that the ambulance driver had been negligent and that the truck driver had not been. A number of findings of fact underpinned that evaluation.

First, the driving by the ambulance driver at a speed of 80 km/h on the wrong side of the road was, in all the prevailing circumstances, not reasonable, not prudent, and recklessly fast.

Secondly, the right-hand turning indicator of the truck was on, but the ambulance driver did not see it because “she was travelling so fast…and with such little focus on what was going on on the right-hand side of the road [that is, the right-hand portion of the northern side] that she missed that indicator”.

Thirdly, the ambulance driver should have made a continuing assessment of whether it was appropriate at any stage to return to the correct side of the road, but she did not.

Fourthly, the siren of the ambulance was not activated at the time of the collision.

The result at first instance was that the statement of claim of the truck driver was upheld and the cross-claim of the ambulance driver was dismissed.

It is convenient now to turn to the seven grounds of appeal notified in the summons filed on 8 May 2014 and pressed by the ambulance driver at the hearing. They are as follows:

I consider that it is appropriate to deal with grounds one and two together.

The ambulance driver submitted that, taking the judgment as a whole, it does not sufficiently explain how her Honour came to be satisfied that the ambulance driver was negligent, and the truck driver was not. Indeed, it can be seen from ground one that it is contended that there was a failure to determine the pleaded issues of negligence and contributory negligence.

As I have said, it is noteworthy that the judgment says little, if anything, about the elements of the tort of negligence at common law, as modified by the provisions of the Civil Liability Act 2002 (NSW). At first blush, the submissions of the ambulance driver have force in those circumstances. But reading the entire transcript of the hearing, with particular emphasis on the position adopted by the ambulance driver at first instance, it can be seen that her Honour did what she was asked to do; namely, determine the issues of fact, and thereafter decide which party (if either) could avail himself or herself of the Road Rules.

In light of the way the proceedings were conducted by both parties at first instance, I do not consider that the judgment is open to the criticism for which the ambulance driver now contends.

Separately, it was said before me that it was incumbent upon the learned Magistrate, having found that the siren was not on at the time of the collision, to provide an affirmative hypothesis as to how that came to be the case, in light of the undisputed evidence of the offsider and others that it had been activated at an earlier part of the journey.

I reject that submission. It was incumbent upon the Magistrate to make findings on the balance of probabilities about the disputed facts to which legal principles needed to be applied, thereby giving rise to a verdict. I do not consider that it was incumbent upon the Magistrate to demonstrate a mechanism whereby the siren was not operating at the time of the collision. It is possible to posit various theses for that state of affairs: for example, deliberate deactivation; accidental deactivation; malfunction. But I do not consider that the reasons of her Honour were deficient in failing to make anterior findings of fact underpinning the central factual question that required determination. That is especially so in the context of there being evidence from the truck driver, which her Honour was well entitled to accept, that the siren was simply not sounding at the time of the collision.

I reject grounds one and two.

I consider that grounds three and four can be dealt with together as well.

As I have said, there is force in the proposition that the judgment is unorthodox, in that it says virtually nothing about the elements of the tort of negligence, and focuses very largely on questions of the Road Rules. If that course had been adopted by her Honour contrary to the submissions of the ambulance driver at first instance, I would uphold this appeal. That is because, as I have shown by way of a judgment of the Court of Appeal, the proper role of the Road Rules was nothing more than to inform the question of whether or not negligence had been established by either party or both.

However, the references to the transcript of proceedings at first instance that I have provided above show that each party was content for her Honour to decide the question of the establishment of negligence by way of reference to those rules. The ambulance driver never submitted at first instance that the Magistrate was falling into error by focusing on the Rules; to the contrary, submissions were made about them that implicitly accepted the correctness of the approach adopted by her Honour.

Where a judicial officer decides a case in the way it has been conducted, and adopts a “shorthand” or “shortcut” legal analysis for which the parties have jointly contended, it will only be in rare cases that an error of law in doing so can subsequently be established on appeal by one of those parties. I do not consider that this is one of those cases.

I would not uphold grounds three and four.

Ground five was explained before me by senior counsel as follows. It was said that, to the extent that the Magistrate, sitting as the tribunal of fact and law, made an adverse evaluation of the driving of the ambulance driver, her Honour should have put that adverse proposition to the ambulance driver, who was, of course, a party and a witness, in order to permit her to comment upon it.

To be clear, the submission was not that it was incumbent upon opposing counsel to put the proposition to the witness in cross-examination, in accordance with the well-known rule in Browne v Dunn (1893) 6 R 67. Nor was it the submission that, as a matter of procedural fairness, it was incumbent upon the Magistrate to raise with counsel for the ambulance driver, during his final address, the possibility that an adverse finding would be made about the conduct of his client. The submission was that it was incumbent upon the Magistrate to put to the witness the possibility of the adverse finding, in order to give the witness a chance to rebut it.

No authority was provided in support of the submission that a tribunal of fact must put to a witness a possible adverse finding to a witness whilst he or she is in the witness box. I reject that proposition. Were it correct, no jury would be entitled to reject the self-exculpatory evidence of an accused person and return a verdict of guilty on an indictment without the jury first having itself somehow questioned the accused in the witness box. That is not the law of New South Wales.

I would not uphold ground five.

Ground six focuses upon the following paragraph from p 5 of the judgment:

It was said that, at the least, it was an error of mixed law and fact with regard to which leave should be granted for her Honour to say that there was “no evidence about what she [the ambulance driver] was going to attend to”.

But to my mind, that was a statement that was objectively correct: there was indeed no evidence in the hearing about the details of the particular emergency to which the ambulance driver was travelling. Immediately before the impugned clause in the same paragraph, her Honour referred explicitly to the fact that it was a “lights and siren” emergency, and implicitly to the fact that it was a “class one” emergency. Reading the paragraph as a whole, it does not demonstrate error.

I would reject ground six.

In support of ground seven, reliance was placed upon what was said by Hall J in US Manufacturing Co Pty Limited v ABB Service Pty Ltd [2008] NSWSC 705 at [54]. There his Honour said:

It can be seen that his Honour was referring to the very well-known taxonomy of Jordan CJ in Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 138 with regard to errors of fact and errors of law. There his Honour relevantly said:

In support of this ground, the ambulance driver submitted that the fact that the truck driver did not hear the siren, in circumstances in which one might expect him to hear it, was no evidence for the proposition that it was not activated at the time. It was said that that was merely evidence of his failure to hear the siren, nothing more.

In short, it was said that there was no evidence, on that analysis, that the siren was not in operation at the time of the collision, and accordingly an error of law had occurred.

In the alternative, it was said that the vast preponderance of the evidence was that the siren was operating at the time of the collision, and, in accordance with what Hall J has said, that of itself constituted an error of law.

Turning to the primary submission, I reject the proposition that the fact that an eye witness did not see something, or an “ear witness” did not hear something, is not, at the least, circumstantial evidence that can be taken into account as to the existence or not of the subject matter that was not perceived. Evidence from a witness that he or she did not perceive an event when he or she was in a position to perceive it is evidence (though not, of course, conclusive evidence) that the event did not occur. For that reason, I reject the submission that there was no evidence that the siren was not operating at the time of the collision. To the contrary, the evidence of the truck driver constituted evidence of that state of affairs.

Secondly, accepting for the sake of argument the correctness of the proposition that a finding of fact against the great preponderance of evidence can constitute an error of law, I do not accept that that is what occurred in this case. The Magistrate heard in the witness box from the ambulance driver, the witness Mr Rihani, and the truck driver. Her Honour was in a position to make assessments of demeanour and presentation that are, of course, completely denied to me. Whilst I respectfully consider that the finding that the siren was not operating at the time of the collision is a surprising one, to my mind it was open to the evaluation of her Honour.

I would reject ground seven.

All grounds having been rejected, the appeal must be dismissed.

Neither party submitted that costs should not follow the event.

I make the following orders: