THE driver of a large 4-wheel-drive vehicle who used a Nelson Bay council car park as a "drive-through thoroughfare" has lost an appeal against her conviction for negligent driving leading to the death of an elderly woman. Marion Fleming denied that her focus was on a vacant car space immediately outside a beautician's shop at 1.10pm on May 22, 2018 after she turned left into the car park for a 1.15pm appointment with the beautician. "She told police that as she drove along the street she saw a vacant parking space almost immediately outside the beautician's premises and, rather than perform a U-turn on the road, she turned into the council car park with the intention of exiting and then securing the car space outside, or near, the beautician shop," NSW District Court Judge Ian Bourke, SC, said. In a decision last week after Fleming appealed against her conviction in the local court, Judge Bourke said Fleming told police she had just turned right into one of the lanes in the car park when she heard a "clunk" or a loud bang. She slammed on the brakes, got out of the vehicle and found Barbara Pawlicki, 91, on the ground to the left of Fleming's Toyota Landcruiser Prado. Mrs Pawlicki was taken to hospital with a broken leg and serious head injuries and died the next day. Tests showed Fleming was not affected by any substance, the weather was fine, the car was in good working order and she insisted she was not distracted by anything. Police investigations contradicted Fleming's evidence that Mrs Pawlicki was to the left of her vehicle, and her barrister agreed it was a "reasonable conclusion" the elderly woman was in front of the Prado and on the driver's side. Fleming denied the incident occurred as she was looking to see whether the car space outside the beautician's shop was still vacant. "When asked if there were any vacant spots in the council car park, (Fleming said) she was not thinking about that, because she intended to park in the space that she had earlier noticed, which was on the road," Judge Bourke said. Negligent driving is established where a driver departs from a standard of care for other road users that is expected of the ordinary prudent driver. Judge Bourke said the incident occurred in the middle of the day and in a busy council car park where a high level of pedestrian activity was to be expected. "The impact occurred at the very front, on the driver's side of the vehicle, and therefore directly within the critical field of view of the driver," he said. Fleming's statement that she was "merely using the car park as a drive-through thoroughfare" was a factor supporting the police case she failed to keep a proper lookout, Judge Bourke said. "It is in my opinion more likely than usual that (Fleming's) attention would have been less focused on events inside the car park, and more focused on securing the car space on the road outside." Until the moment of impact the events of that day were "utterly unremarkable", Judge Bourke said. "A car park is an area shared by motorists in vehicles, and pedestrians including children and elderly people on foot," he said. "Although it includes a road area it is unlike a road because it is an area where pedestrians, including unpredictable children who may be small and difficult to see, are not only likely to be present but almost certainly will be. "A car park is therefore an area where a driver is 'on notice' of the presence of people on foot and where the exercise of proper care will always require constant vigilance. "The need for constant vigilance is even greater where the vehicle being driven is, as in this case, a large 4WD, with its increased capacity to cause significant injury and its somewhat restricted view of objects or children which may at times be below the natural line of sight of the driver."
THE driver of a large 4-wheel-drive vehicle who used a Nelson Bay council car park as a "drive-through thoroughfare" has lost an appeal against her conviction for negligent driving leading to the death of an elderly woman.
Marion Fleming denied that her focus was on a vacant car space immediately outside a beautician's shop at 1.10pm on May 22, 2018 after she turned left into the car park for a 1.15pm appointment with the beautician.
"She told police that as she drove along the street she saw a vacant parking space almost immediately outside the beautician's premises and, rather than perform a U-turn on the road, she turned into the council car park with the intention of exiting and then securing the car space outside, or near, the beautician shop," NSW District Court Judge Ian Bourke, SC, said.
In a decision last week after Fleming appealed against her conviction in the local court, Judge Bourke said Fleming told police she had just turned right into one of the lanes in the car park when she heard a "clunk" or a loud bang. She slammed on the brakes, got out of the vehicle and found Barbara Pawlicki, 91, on the ground to the left of Fleming's Toyota Landcruiser Prado.
Mrs Pawlicki was taken to hospital with a broken leg and serious head injuries and died the next day.
Tests showed Fleming was not affected by any substance, the weather was fine, the car was in good working order and she insisted she was not distracted by anything.
Police investigations contradicted Fleming's evidence that Mrs Pawlicki was to the left of her vehicle, and her barrister agreed it was a "reasonable conclusion" the elderly woman was in front of the Prado and on the driver's side.
Fleming denied the incident occurred as she was looking to see whether the car space outside the beautician's shop was still vacant.
"When asked if there were any vacant spots in the council car park, (Fleming said) she was not thinking about that, because she intended to park in the space that she had earlier noticed, which was on the road," Judge Bourke said.
Negligent driving is established where a driver departs from a standard of care for other road users that is expected of the ordinary prudent driver.
Judge Bourke said the incident occurred in the middle of the day and in a busy council car park where a high level of pedestrian activity was to be expected.
"The impact occurred at the very front, on the driver's side of the vehicle, and therefore directly within the critical field of view of the driver," he said.
Fleming's statement that she was "merely using the car park as a drive-through thoroughfare" was a factor supporting the police case she failed to keep a proper lookout, Judge Bourke said.
"It is in my opinion more likely than usual that (Fleming's) attention would have been less focused on events inside the car park, and more focused on securing the car space on the road outside."
Until the moment of impact the events of that day were "utterly unremarkable", Judge Bourke said.
"A car park is an area shared by motorists in vehicles, and pedestrians including children and elderly people on foot," he said.
"Although it includes a road area it is unlike a road because it is an area where pedestrians, including unpredictable children who may be small and difficult to see, are not only likely to be present but almost certainly will be.
"A car park is therefore an area where a driver is 'on notice' of the presence of people on foot and where the exercise of proper care will always require constant vigilance.
"The need for constant vigilance is even greater where the vehicle being driven is, as in this case, a large 4WD, with its increased capacity to cause significant injury and its somewhat restricted view of objects or children which may at times be below the natural line of sight of the driver."
