Police v Klaphake [2016] NZDC 20494 (13 October 2016)

Last Updated: 8 November 2016

_{EDITORIAL NOTE: NO SUPPRESSION APPLIED.}

IN THE DISTRICT COURT AT WELLINGTON

CRI-2015-085-012304 [2016] NZDC 20494

NEW ZEALAND POLICE

Prosecutor

v

JOHN GERARD KLAPHAKE

_Defendant

Hearing:	13 October 2016
Appearances:	Sergeant G Coffey for the Prosecutor C Tennet and C O'Connor for the Defendant
Judgment:	13 October 2016

_{ORAL JUDGMENT OF JUDGE D M WILSON QC}

[1] John Gerard Klaphake is charged that on 24 July last year at Wellington he operated a vehicle on a road, namely Constable Street, carelessly and thereby caused injury to Azeb Kebede.

[2] The defendant is a volunteer fireman. He was driving a fire service truck at the time. He drove down Constable Street towards the intersection in question, a red light was showing to his front. His vehicle collided with a vehicle being driven on Owen Street, I find with the benefit of a green light, by the woman who was injured.

[3] As defence counsel said, the most important aspect of law in any trial is that the onus of proving the charge rests on the police from the beginning of the trial until the end and never shifts. The starting point is the presumption of innocence and there is no onus on a defendant to prove he is innocent and no requirement or

_{expectation that he should give evidence or call other people as witnesses. If he does}

NEW ZEALAND POLICE v JOHN GERARD KLAPHAKE [2016] NZDC 20494 [13 October 2016]

that he does not accept any responsibility to prove that he is innocent. The police must prove that the defendant is guilty beyond reasonable doubt [or] he is entitled to be acquitted.

[4] The standard of care for road users is an objective one and personal and universal, fixed in relation to the safety of other users of the road and governed by the essential needs of the public on the road. It is not related to an individual driver’s

_{degree of proficiency or experience. See Police v Chappel}1_.

[5] Red lights are fundamental to road safety in our communities. A driver approaching a red light must not enter the controlled area, see r 3.2(5)(a) Land Transport (Road User) Rule 2004. Under the rules drivers of emergency vehicles are protected against conviction for driving through a red light in certain circumstances; if they are displaying red or blue lights or sounding a siren and if the driver enters and crosses the intersection at a speed not exceeding 20 kilometres per hour and

_{takes care to avoid a collision with other traffic.}

[6] I accept that Mr Klaphake was driving an emergency vehicle with lights and siren in use and that he was driving at a speed not exceeding 20 kilometres per hour when he entered the intersection. The term “intersection” is defined by law as the area contained within the prolongation or connection of the lateral boundary line of two intersecting roadways. I must adopt this definition rather than the one used in evidence which asserted that the intersection started with the limit lines at which traffic should stop before red lights.

[7] The question here is have the police established beyond reasonable doubt that the defendant took care not to collide with other traffic and if he did, whether his carelessness was causative of the injury that was unquestionably suffered. The question then is whether the prosecution has proved beyond reasonable doubt that he failed to exercise that degree of care and skill that one expects from a reasonable and prudent driver. If he has not he will not be excused, simply because the accident

_{arises from an error of judgment. See Chappel at 228.}

1 Police v Chappel [1974] 1 NZLR 225

[8] The standard of driving to be applied, as I have said, is universal. An experienced driver such as one who drives an emergency vehicle, is not to be subjected to a more stringent test than the ordinary motorist. The standard of driving is that of a reasonable and prudent motorist.

[9] In regard to cause, a Court must be satisfied beyond reasonable doubt that the prosecution has not only established that the defendant was careless but also that the driving, having been characterised as careless, was causative of the injuries. It has been put in various ways. An English Court of Appeal in R v Hennigan2 held that it was only necessary for the prosecution to show that the defendant’s culpable driving was a cause of the accident and was something more than minimal. The word

“substantial”, if it is used, must be taken as indicating no more than the culpable driving is one cause of the accident. Other ways of putting it are that it was a material cause of the injury or a significant or substantial cause. These are all really

_{much the same idea.}

[10] During the course of the hearing we heard from a number of witnesses. Azeb Kebede who was the lady who was injured in the collision is a taxi driver. On the morning in question she was taking her daughter to school, she had, she said, green lights ahead of her at the intersection of Owen Street, along which she was driving, and Constable Street. She said that she was not talking to her daughter at the time. She said she did not look left or right at the green light and she did not know how the accident happened because she came to in hospital. She did not see

_{the fire truck before or after the accident and she did not hear the siren.}

[11] Challenged by defence counsel, Mr Tennet, she maintained that the lights remained green throughout. She acknowledged that she had gone through the intersection looking straight ahead and that she did not slow or stop as she approached the intersection because she had the green light. She said she knew she had to give way to a fire engine which had its lights and siren showing.

[12] Kurt Madsen was a retired man looking after his stepson’s shop near the intersection of Owen and Constable Streets. He had heard sirens about quarter of an

2 R v Hennigan [1971] CA

hour beforehand but immediately prior to the accident heard no siren. He said that the fire truck entered the right lane, across the centre lane and he thought that the driver was looking to overtake the waiting cars. He did not hear any sign of braking. He could see the red light on Constable Street because he was looking in the opposite direction to the driver of the fire truck. He told police he did not recall hearing the siren and he thought there were a number of cars going down the hill in the same direction as the fire truck. He thought the driver of the fire truck was overtaking that line of traffic to beat them at the lights. I must say that in relation to that evidence that the evidence that I have and I accept is that at least at the time that he was entering the intersection the defendant was driving at no more than

20 kilometres per hour.

[13] Brian Aarons was called, he is a volunteer fireman of 41 years standing, a centre station officer. He recounted how he was called to a house fire and that Mr Klaphake was driving the fire truck which is a support vehicle. He was sitting beside him in the front of the fire truck and he said the lights were red as they approached the critical intersection. He said cars had pulled over because of the siren. He looked left, right and left again, said, “Clear, okay” because it was clear but also said, “Be careful”. He said he approached at 30 to 35 kilometres an hour and when he suddenly saw the Estima vehicle being driven by the injured person he said, “Stop”. He said he was quite sure there were no cars parked and that he had seen nothing when he looked to his left which was the direction from which the Estima was coming.

[14] He acknowledged that in driving an emergency vehicle like this haste must be made but no rush. He said that an extra pair of hands and ears was given to the station officer to ensure that the firemen got to the job and back safely. He said the defendant was a good driver. He denied that they were racing to beat the lights. He acknowledged that it was part of the duty to ensure that it was safe to proceed.

[15] Reka Patel owns a dairy on the intersection. She works seven days a week there. She heard the siren and then she heard a big noise. She did not see the collision. She did say that she thought the fire truck looked as though it was travelling slowly past.

[16] The officer in charge was Constable Vaughan Simpson who has been in road policing for some years. He was directed to the scene at about 9.35 am that morning. It was a fine dry road with good conditions and he described what he found at the scene. He found damage at the driver’s door to the rear light. There was red paint transfer beneath the windows and various black marks. There was no damage in front of the driver’s door of the Estima and he spoke to both Mr Klaphake and Mr Aarons at the scene. The defendant said he was the driver, Mr Aarons said he was the front seat passenger.

[17] He took a notebook statement from the defendant which the defendant verified as true and correct in which he said he had braked before the collision and skid marks were pointed out which were measured at 1.4 metres. He acknowledged that there were speed bumps 35 metres before the intersection for vehicles travelling in the direction that Mrs Kebede was travelling.

[18] He did not make any calculations but he did provide photographs and his own observations to the Court. He had called for the serious crash unit but they declined to attend. He said the collision was 14 metres into the intersection and that the Estima which had a 40 kilometre maximum and that was the speed at which Mrs Kebede said she was travelling would require 12 metres to stop.

[19] The defendant gave evidence of being a volunteer fireman for some six years and also having experience independently as a rural fire officer. He said as he came down the hill, heading to the fire, he could see the red light ahead of him and he moved out to straddle the midline of the road to improve visibility. He said as they approached the intersection he looked left, right and left again, still going very slowly and he was aware that he could not exceed 20 kilometres through the intersection. He said he braked and stopped very quickly, as soon as he saw the vehicle. He said the Estima van was in front of him and he heard the crash. He was quite shocked because he had been sure that the way was clear and had had the affirmation from his senior officer that it was clear from the left. He said he was not careless and he did not take risks. He knew there was a red light. He hoped that the light would change to green and he thought that the way was clear. He said there was not a significant amount of urgency at getting to the scene of the fire. The

obligation of the fire truck was not to fight the fire but they provided support facilities to the people who did by way of transporting personnel and assisting with evacuation.

[20] He acknowledged that he could not just rely on someone else to tell him that the road was clear. He looked and did not see the car. He said he slowed and he was prudent. He said that he saw that the red light was affecting his forward travel and he would prefer to go through on a green light. He accepted that the other driver was injured, that he believed that the other driver hit him and that he did not hit the other driver.

[21] From the damage caused to the two vehicles, it appears to me that the Estima vehicle had partially cleared the line of travel of the fire truck and that the front of the fire truck collided with the area of the Estima vehicle which as the expert said was to the rear of the B pillar, that is why the Estima vehicle spun through

180 degrees after the collision. He said that in terms of evasive action he had slammed brakes on and nothing else. He said when he spoke to the police he was in a state of shock and that he felt that he had got some things wrong in what he had told the police. He did say that as he entered the intersection he was looking forward of him and then suddenly the vehicle was in front of him. He said that his account in Court was true and correct and that he was affected by shock at the time he had spoken to police.

[22] Mr Paul Bass was the final witness. He is a vehicle crash analyst. He produced the results of his careful appraisal of the scene, although he did not get there until 28 May 2016. His evidence was delivered with restraint and independence and I found him a credible, reliable and helpful witness. He even drove his Ford Explorer down both Constable Street and Owen Street and took videos for each street, the first from the roof cam to approximate the defendant’s sight line and the second from a head cam and these enabled him to produce to videos and a series of photographs and assisted his compilation of material with which he assisted the Court. I accept his evidence that the maximum engagement was behind the B pillar of the Estima. Red paint from the fire truck was there and

that this caused that 180 degrees rotation which was only stopped when the Estima van collided with that yellow pole on the corner.

[23] He acknowledged that Constable Street was on a downhill gradient of about five percent and he had taken that into account. While he did not scale the buildings in the area correctly, he did scale the road correctly. He said that the Estima was travelling across the front of the fire truck when the collision occurred. He said reaction times can be expected to be very quick because both motorists were at an intersection and would have heightened expectations because of that.

[24] He produced two diagrams and he told the Court that if the fire truck had stopped at what was the point shown in diagram A, indeed of course at that stage there was a red light, the people in the truck would have spotted the Estima because of the sight lines available and if that vehicle had stopped then, then the collision would not have occurred. He said that there was an obligation to stop at the limit line and that if the fire truck had applied emergency braking, even at the pedestrian crossing, a collision would have been much less likely and he said that maybe there would have been an exchange of paint. In those circumstances it was clear from his evidence that there would have been no injury.

[25] At the positions in plan A, both drivers had a line of sight to each other’s vehicle, if they were looking towards each other at the time and the view was not impeded by other road users. There is no evidence that the view was impeded by other road users. The unfortunate thing here is that neither of the drivers looked in the direction of the other vehicle as they approached the intersection or continued through it.

[26] So that was the state of the evidence and I then received submissions from Sergeant Coffey. He referred to a number of authorities and two of the cases he referred to I accept are authorities for the proposition that the Court is required to look at the conduct of the defendant, not any lack of care, if there is any, by the other person involved in the accident and the cases that he referred for that proposition

were Lindsay v Police3 a High Court Christchurch case and Readings v Police4 a decision of Asher J in 2007 at the Auckland High Court.

_{[27] In a case called Turner v Police}5 _{Priestley J stated that:}

Checking and double checking that there is no approaching traffic in either direction is what one would expect from a reasonable and prudent driver. Through what I am sure was a momentary lapse on his part and possibly lulled into a false sense of security by the memories he had carried of his view of the traffic a few seconds previously, the appellant made an error which can only be characterised as careless.

[28] He went on to find that carelessness was a significant contributing factor to the accident.

_{[29] In O’Neill v Ministry of Transport}6 _{Cook J held that:}

One look to the right which must have been only a fleeting one was not a sufficient exercise of care. The driver was under a high degree of care to ensure that the way was clear and I cannot but think that had he looked again and been travelling at no more than 20 kilometres an hour, he would have seen the truck and been able to stop immediately.

And this finding is very similar to the circumstances here, although as I say I have accepted positively Mr Klaphake was not travelling at more than 20 kilometres an hour. If he had looked he must have seen the Estima van. He did not look.

_{[30] In R v McInnes}7_:

Emergency service drivers cannot rely on assumptions that other road users will in fact hear and see an emergency vehicle.

This was a submission that Mr Tennet had made and having regard to a decision in

R v McInnes that submission is incorrect in law.

[31] So the prosecution submitted that the defendant had the responsibility as the driver of the operation support vehicle to ensure that other road users were not

3 _{Lindsay v Police HC Christchurch AP153/94, 30 June 1994}

4 _{Readings v Police HC Auckland CRI-2006-404-437, 26 April 2007}

5 _{Turner v Police HC New Plymouth CRI-2009-443-21, 14 December 2009}

6 _{O’Neill v Ministry of Transport (1986) 2 CRNZ 59}

7 R v McInnes [2001] DCR 1118

placed in an unjustified risk and that he had driven that vehicle at a standard less than that of a reasonable and prudent motorist. He could have and should have also added that the defendant’s careless driving must be a material cause of the injury suffered by Mrs Kebede.

[32] Mr Tennet grudgingly agreed that a driver can be held to have caused an accident even if there are other causes. He accepted that the red light affected the forward travel of the fire truck. He said cases put forward by the police could be distinguished on the facts and the defence did not accept that there was a constantly green traffic light for Mrs Kebede’s forward travel. I find as a fact that there is no evidence that as she approached the intersection there was anything other than a green light. I accept her evidence that it was green at all material times. I also accept the evidence that at all material times the traffic light affecting the forward progress of the defendant was red.

[33] Mr Tennet submitted that his client had entered the intersection first or at least that this proposition could not be discounted beyond reasonable doubt. He submitted that the intersection started at the limit line. As I have pointed out the legal definition of the intersection would place that line about where the left-hand pedestrian line is and at that point had the defendant looked, in my view, there being no visual difficulty, he would have seen the Estima and at that point he would have been able to avoid a collision.

[34] Mr Tennet submitted that there were a number of factors that went to the absence of carelessness by his client. He said that his client had said he was prudent, that he looked and his station officer looked and he was entitled to rely on Mr Aaron’s observation. He said that the lights and siren were on and he was travelling at the qualifying speed for protection, that is under 20 kilometres, that he did not see the Estima. He said that the other driver breached her duties at the green light, which were to avoid collisions in the intersection area in general terms. He referred me to r 3.2C. He said his client could not be expected to continuously look to his left because he was going across an intersection. The intersection area was narrow and there were other cars waiting to travel in the opposite direction. He said that he had an obligation to look ahead of him as he was driving into that narrow

road with cars facing him. This submission is contrary, in my view, to the decision of O’Neill v Ministry of Transport.

[35] He also submitted that the defendant was entitled to expect anyone else entering the intersection to know of the lights and siren and give way and he cited the decision of Simmons8 as authority for that proposition. With respect that is not a

_{correct statement of the law. I have cited McInnes:}

A driver entering an intersection is not entitled to assume that other people will meet their obligations.

[36] Furthermore, it is quite clear from the actual evidence we heard that some people heard the siren and some not and an assumption that everyone will hear the siren would mean that a driver of an emergency vehicle could proceed through an intersection regardless and that cannot be and is not the law.

[37] I find that Mr Klaphake’s action in driving against a red light into the intersection was objectively careless. Had he looked to his left he must have seen the Estima approaching or even at the intersection. He chose to look directly ahead of him. I have no doubt that his carelessness in proceeding through a red light when the way was not clear was a substantial cause of the collision and the injury to Mrs Kebede. Accordingly my verdict is guilty.

D M Wilson QC District Court Judge

8 Police v Simmons [1978] 1 NZLR 435