A Fife and Co Pty Ltd v Pane - [2018] NSWDC 332

District Court

New South Wales

Medium Neutral Citation: A Fife & Co Pty Ltd v Pane [2018] NSWDC 332
Hearing dates: 10 September – 12 September 2018
Date of orders: 02 November 2018
Decision date: 02 November 2018
Jurisdiction: Civil
Before: Dicker SC DCJ
Decision:
(1) The Second Further Amended Statement of Claim is dismissed. Judgment for the defendants;
(2) The plaintiff is to pay the defendants' costs of the Second Further Amended Statement of Claim proceedings as agreed or assessed;
(3) The Further Amended Statement of Cross-Claim is dismissed. Judgment for the cross-defendant;
(4) The cross-claimants/defendants are to pay the cross-defendant’s/plaintiff's costs of the Cross-Claim proceedings as agreed or assessed;
(5) Liberty to the parties to apply to the court within 14 days for a different costs order to those set out in Orders 2 and 4 above;
(6) Exhibits to be returned in 28 days.

Catchwords: Torts – negligence – property damage claim to motor vehicles arising from motor vehicle accident – quantum not in issue – liability in issue – different factual accounts – whether liability can be determined on the evidence
Legislation Cited: Civil Liability Act 2002 (NSW)
Motor Accidents Compensation Act 1999 (NSW)
Cases Cited: Boateng v Dharamdas [2016] NSWCA 183
Briginshaw v Briginshaw (1938) 60 CLR 336
Croucher v Cachia [2016] NSWCA 132
Davis v Swift [2014] NSWCA 458
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72;
Hyjer v Lopes [2018] NSWDC 8
Manley v Alexander [2005] HCA 79; (2005) ALJR 413
Marien v Gardiner (2013) NSWCA 396
Perpetual Trustees Victoria Ltd v Cox [2014] NSWCA 328
Podrebersek v Australian Iron & Steel Pty Ltd [1985] 10 HCA 34; (1985) 59 ALR 529
Rail Corporation New South Wales v Donald [2018] NSWCA 82
Sangha v Baxter [2009] NSWCA 78
Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182
Watson v Foxman (1995) 49 NSWLR 315
Category: Principal judgment
Parties: A Fife & Co Pty Ltd (Plaintiff)
Nino Pane (First Defendant)
Joan Pane (Second Defendant)
Representation:
Counsel:
P Stockley (Plaintiff)
J Gruzman (Defendant)
Solicitors:
Hedges Legal (Plaintiff)
De Mestre & Company Solicitors (First and Second Defendants)

File Number(s): 2017/00048415

Judgment

These proceedings relate to a motor vehicle accident which occurred on 11 August 2016 between a Kenworth prime mover truck pulling two trailers loaded with grain and a four wheel drive Toyota Prado pulling a caravan. The plaintiff company, A Fife & Co Pty Ltd, was the owner of the truck and trailers and the employer of the driver of the truck, Mr Darrell Fife. At the time of the collision Mr Nino Pane was the driver of the Toyota Prado. His wife, Mrs Joan Pane, was in the passenger seat beside him. The plaintiff company claims the accident was caused by the negligence of Mr Pane and seeks damages for the property damage done to the truck and trailers. Mr and Mrs Pane claim that the accident was caused by the negligence of Mr Fife and seek, in a Cross-Claim, damages for the damage caused to their Toyota Prado, their trailer and its contents. Contributory negligence is pleaded by both parties.
The issue therefore is whether any breach of duty of care owed by one of the drivers caused the collision and the property damage in question. The accident occurred at about midday on the Henry Lawson Way travelling south from Grenfell towards Young in New South Wales.

The pleadings

A Second Further Amended Statement of Claim was filed with leave by the plaintiff company on 10 September 2018. The Second Further Amended Statement of Claim:

Pleads that at all material times the plaintiff company was the owner of a 2010 Kenworth prime mover and two attached tipping trailers;

Pleads that at all material times the first defendant Mr Pane was the driver of a 2010 Toyota Prado motor vehicle and the owner of an attached 2016 Seaview Caravan;

Pleads that on 11 August 2016 the plaintiff's vehicle was being driven by an employee along Henry Lawson Way between Grenfell and Young in the State of New South Wales while at the same time the defendants’ vehicle was being driven along the same road ahead of the plaintiff's vehicle by the first defendant;

Pleads that, as the plaintiff's vehicle was in the process of overtaking the defendants’ vehicle on a straight level section of road at which overtaking is permitted, the first defendant negligently “drove, managed and controlled the defendants’ vehicle that it collided with the plaintiff's vehicle causing extensive loss and damage”. The particulars of negligence include the first defendant driving at varying speeds which were erratic in the circumstances; failing to take heed of the presence of the plaintiff's vehicle attempting to overtake the defendants’ vehicle to its right-hand side; failing to keep proper control over the defendants’ vehicle thereby causing the caravan to collide with the left-hand side of the plaintiff's vehicle and eventually cause the defendants’ vehicle to jack-knife in front of the plaintiff's vehicle and allowing the caravan to encroach onto the wrong side of the roadway and collide with the plaintiff’s vehicle;

Pleads that as a result of the first defendant's negligence the plaintiff has suffered damage to the prime mover and trailers and related fees of $226,203.04 with additional interest.

In their Further Amended Defence filed with leave on 10 September 2018, the defendants deny any liability and the particulars of negligence alleged by the plaintiff and plead:

The plaintiff is vicariously liable for the acts and omissions of its driver;

The driver of the vehicle was contributorily negligent or alternatively the claim is an apportionable claim under Part IV of the Civil Liability Act (2002) NSW (“CLA”) and the driver is a concurrent wrongdoer;

Particularises that the employee of the plaintiff failed to control his vehicle so as to avoid collision with the defendants’ vehicle; failed to steer or alter the course of the vehicle to avoid a collision; failed to apply the brakes on the vehicle in order to avoid a collision; failed to maintain any or any adequate control over the plaintiff’s vehicle to avoid a collision and attempted to overtake the defendants’ vehicle when it was not safe to do so. It is also pleaded that the plaintiff’s driver failed to sound the horn or give any adequate warning of an intention to overtake the defendants’ vehicle.

In a Further Amended Statement of Cross-Claim filed with leave on 10 September 2018 the defendants claim for the damage allegedly caused to their Toyota Prado, caravan and its contents due to alleged negligence by the driver of the plaintiff’s vehicle. Similar particulars are pleaded as in the pleading of contributory negligence in the Defence. An amount of $110,740.59 is sought as damages.
In a Defence to Further Amended Cross-Claim filed with leave on 10 September 2018, the plaintiff denies liability under the Amended Cross-Claim and asserts that the negligence was caused by the negligence of the first defendant in driving the Toyota Prado. Similar particulars of contributory negligence are made as set out in the particulars of negligence in the Second Further Amended Statement of Claim.

Statement of agreed facts and issues

In the course of the hearing, a Statement of Agreed Facts and Issues was tendered by the defendants.
The agreed facts were as follows:

1.  At all material times, the Plaintiff was the owner of a 2010 Kenworth K108 Prime Mover motor vehicle registration number CB94GA and two attached 2013 Hercules Aluminium Tipping Trailers registration numbers Y70560 ("A Trailer") and Y70561 ("B Trailer"), ("the Plaintiff's Vehicle").
2.  At all material times, the Plaintiff was the employer of Mr Darrell Fife.
3.  The Plaintiff is vicariously liable for the acts and omissions of Darrell Fife.
4.  At all material times, the Second Cross-claimant was the owner of a Toyota Landcruiser Prado GXL motor vehicle registration number JTP7 ("Prado").
5.  At all material times, the First Defendant/First Cross-claimant was the owner 2016 Seaview caravan registration number X14288 ("Caravan").
6.  At all material times, the First Cross-claimant and Second Cross Claimant owned the contents of the Caravan and the Prado.
7.  On 11 August 2016, Mr Darrell Fife was driving the Plaintiff's Vehicle along Henry Lawson Way between Greenfell and Young, in the state of New South Wales, Australia.
8.  On 11 August 2016, Mr Nino (Tony) Pane (First Defendant) was driving the Prado towing the Caravan along Henry Lawson Way between Grenfell and Young, in the state of New South Wales, Australia.
9.  At or about 12 noon on 11 August 2016, the Plaintiff's Vehicle and the Prado and Caravan were involved in a motor vehicle accident on Henry Lawson Way between Grenfell and Young, in the state of New South Wales, Australia ("the Accident").
10.  As a result of the Accident, the Plaintiff has suffered damages of $226,203.04 exclusive of Goods and Services Tax ("GST") and before interest and costs.
11.  As a result of the Accident, the Second Cross-Claimant has suffered damages of $47,312.85 exclusive of GST and before interest and costs.
12.  As a result of the Accident, the First Cross-Claimant has suffered damages of $63,427.74 exclusive of GST and before interest and costs.

The Statement of Issues, in substance, provides that the issues were liability and contributory negligence on the Second Further Amended Statement of Claim and the Amended Cross-Claim.

The witnesses

Oral evidence was given by:

Mr Darrell Fife, the driver of the truck in the accident;

Mr Nino (Tony) Pane, the driver of the Toyota Prado in the accident;

Mrs Joan Pane, Mr Pane’s wife, and the passenger in the Toyota Prado at the time of the accident;

Two motor accident reconstruction experts, being Mr P Feenan on behalf of the plaintiff and Mr John Jamieson on behalf of the defendants. Detailed expert reports were prepared and tendered in the course of the hearing.

I should say at the outset that in my view Mr Fife and Mr and Mrs Pane were all honest witnesses who were attempting to give their best evidence to the extent of their recollections in relation to the accident. The task for the court is to determine, if possible, what occurred in the accident, taking into account all the evidence.
It is clear that in making its factual findings, the court is not bound to accept any or all of the evidence of a particular witness. Similarly, it does not follow from the fact that part of the evidence of a witness is rejected that other aspects must also be rejected: Sangha v Baxter [2009] NSWCA 78 at [155]-[156]; Croucher v Cachia [2016] NSWCA 132 at [129].
As the majority of the High Court stated in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [31]:

“[31] Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.”

Evidence on behalf of the plaintiff

The films

The plaintiff tendered a film said to have been made after the accident. The film was taken from inside a vehicle driving in the same direction as the vehicles drove that were involved in the accident. The film showed:

A two lane bitumen sealed road;

Grass edges;

Occasional trees growing near the side of the road;

The vehicle in which the camera person was situated turning a bend and then facing a long stretch of straight road said to be where the accident occurred.

The film was helpful in showing the general area where the parties travelled immediately before the accident and the place where the vehicles ended up. It is not in issue that following some initial collision between the vehicles that the defendants’ car with the trailer attached jack-knifed in front of the truck which then pushed the Toyota Prado and caravan along the ground for a distance before they came to a stop. The issue is what caused the first collision to occur and the jack-knifing of the defendants' vehicle. When the vehicles came to rest they were on the opposite side of the road, in an area off the road. By “opposite side of the road” I mean on the landward side of the road and landward of the lane in which the plaintiff’s vehicle attempted to overtake the defendants’ vehicle immediately before the collision.
A second film showed what can occur with a vehicle towing a caravan if the caravan begins to sway and control is lost.

Oral evidence of Mr Darrell Fife

Oral evidence was given by Mr Darrell Fife who stated that he was a director of the plaintiff company and also an employee of the plaintiff company. Mr Fife gave evidence that he was employed by the plaintiff company as a driver and had been driving heavy vehicles for 20 years. Later, in answer to questions from the court, Mr Fife stated that he had been driving a prime mover with two trailers attached for two years but had previously driven a truck with a trailer attached for 18 years. Mr Fife gave evidence that he was familiar with the road where the accident occurred, Henry Lawson Way, and drove on that road about twice per week.
Mr Fife confirmed that he was the driver of the Kenworth prime mover towing two tip trailers which was involved in the accident on 11 August 2016. Mr Fife put the time of the accident at roughly 12 noon and said that his trailers were loaded.
Mr Fife gave evidence that he started work at 4:30am in Goulburn and drove to the other side of Grenfell where the trucks were loaded. He said he was proceeding south to a dairy on the south coast at the time of the accident.
Mr Fife gave evidence that the accident occurred about 10 to 15 minutes after he had left Grenfell. Mr Fife said that he had observed the defendants’ car and caravan prior to the accident and had followed them from just out of Grenfell for between 10 and 15 minutes. Later, Mr Fife accepted that he could have followed the Toyota Prado and the caravan for 5-6km before the accident which suggested that the time period may well have been less than 10-15 minutes. Mr Fife said that the vehicles were travelling in the 70 to 80kph range before the accident. He gave evidence that the speed limit on Henry Lawson Way where the accident occurred was 100kph and later gave evidence in cross-examination that his truck was speed limited to 100kph.
Mr Fife gave evidence that he went back to the scene of the accident with an investigator when the video which was part of Exhibit A was made. He gave evidence that the vehicle in which the camera was situated when Exhibit A was made was travelling in a southerly direction. He also gave evidence that the chopped up ground denuded of grass to the right-hand side of the road was where the vehicles ultimately ended up in the collision.
Mr Fife gave evidence that his intent was to pass the defendants’ vehicle after they turned a bend, as he was aware that there was a long straight stretch of road after the bend. He described the process he engaged in as follows:

First, coming around the corner in the truck;

Second, making sure that there was no traffic ahead on the straight road;

Third, placing the right-hand indicator of his truck on and commencing the overtaking manoeuvre.

Mr Fife gave evidence that he was about 15 metres behind the defendants’ caravan when he pulled the truck out to the right-hand lane to undertake the overtaking manoeuvre.
Mr Fife gave evidence that the truck proceeded at 80kph (which he later corrected in cross-examination to possibly 86kph). When the cabin of the truck was adjacent to the defendants’ caravan he heard two bumps on the side of the cab of the truck and realised that the caravan was hitting the truck. He said he moved over his truck further to the right in the overtaking lane such that the right-hand wheels of the truck were “in the grass” but then noticed that there were trees on the side of the road and tried to correct by moving the truck back onto the bitumen road. He noticed the car and trailer jack-knife so that it was in front of the cabin of the truck with the vehicles proceeding in that manner until they came to a halt. Mr Fife gave evidence that from the time of hearing the two bumps on the side of the cab to the vehicles coming to a halt was five to eight seconds, “pretty quick”. He said the weather was fine at the time and the road conditions were good, with the road being a bitumen sealed road. Mr Fife rejected the proposition that at any time the front of the prime mover had struck the rear of the caravan.
Mr Fife was then subject to detailed cross-examination.
Mr Fife confirmed that on the day of the accident he had got up at 3:45am, had driven in his truck 300 kilometres to his destination arriving at 8:30am and had loaded barley into the two trailers such that the truck and the trailers combined weighed 50 tonnes. Mr Fife confirmed that the truck had a horn, VHF radio and headlights installed.
Mr Fife confirmed that he had been driving the loaded truck for about one hour prior to the crash. He rejected the proposition that he would not be as fresh whilst he was driving the truck at the time of the accident as he had been earlier. He claimed that he was awake and a lot more aware than he had been earlier. He denied any tiredness.
Mr Fife agreed that the road was a “secondary road” with narrower lanes than on a normal freeway and with no breakdown lanes. He agreed that he needed to concentrate for the purposes of his trip. Mr Fife stated that his truck was capable of travelling at 100kph if he chose to do so.
Mr Fife denied that the Toyota Prado and the caravan were in his sight when he left Grenfell. Although he was not sure, he thought that he first saw the Toyota Prado within a short space of time after leaving Grenfell and possibly after three to four minutes.
Mr Fife accepted that his progress was being impeded for a period by the defendants’ Toyota Prado and caravan and that he was stuck behind them. He candidly agreed that that was annoying to him as he wanted to go faster and proceed more quickly along his journey, although he qualified that by saying that he wished to do so safely. Mr Fife said that he had been prevented from overtaking prior to when he attempted it as there was no safe opportunity to pass prior to his attempt. Mr Fife confirmed his evidence that the defendants’ vehicle was travelling between 70 and 80kph and, as stated above, initially said that he was travelling no faster than 80kph in overtaking. He denied that the Toyota Prado was travelling at a constant 80kph. Mr Fife accepted that the side mirrors and the bull bar installed on the prime mover increased the width of the vehicle slightly. This was shown in a photograph of the truck at the scene of the accident which became Exhibit 1 in the proceedings.
At this stage, Mr Fife said he was travelling behind the Toyota Prado at a distance of between 20 and 30 metres.
Mr Fife stated that when he turned the bend on the road and saw that there was no car coming towards him on the straight road ahead, he decided to overtake the Toyota Prado and caravan. Mr Fife said that when he pulled out to overtake he was a good 15 metres behind the Toyota Prado and caravan and was doing roughly 80kph which he then later changed to 86kph. He claimed to have checked the speedometer while he was passing. He said he proceeded with the overtaking manoeuvre quickly but in his view safely. He said the speed being travelled by the Toyota Prado at the time was roughly 70kph. He stated that the truck passed the 20 metres so that the cabin of the truck was next to the caravan. He said the speed differential was about 10kph. Mr Fife accepted that he may have suggested the parties were travelling at different speeds earlier in the insurance claim form he had completed. Mr Fife estimated that after he had commenced the overtaking manoeuvre it was not until five to six seconds later that he felt the first impact on the cabin of the truck. At this time he agreed he was focused on the road ahead and was on the bitumen until he heard the bump.

Mr Fife was shown a photograph which became Exhibit 2 and confirmed that there was no breakdown lane on the road and that the edges towards the right hand side were soft and it was best to avoid them. He agreed that he did not sound the horn before he attempted to overtake as he did not want to scare the Prado driver. He said he did not have a practice of sounding a horn before overtaking but accepted that it was possible for him to blow a short note on the horn before doing so.
Mr Fife agreed that there was a tight gap between the vehicles and it was important not to cross over the line. Although he estimated as roughly correct the gap being 10 to 15cm, a greater gap seems clearly established on the evidence. This will be considered further below.
Mr Fife denied that he misjudged the position of his truck and that the truck had “nudged” the caravan. It was at least part of the defendants’ case that the truck driven by Mr Fife had struck the defendants’ caravan from the rear. When asked whether, upon assuming that there was minor contact between the truck and the caravan, it was possible that he would not have felt the contact due to the size of the truck, Mr Fife said that he felt the bumps of the caravan on the side of his truck cabin. He rejected that he had ever bumped into something and not realised it, particularly a car or a caravan. He rejected the proposition that there may have been contact he was not aware of.
Mr Fife agreed that prior to commencing overtaking there was nothing about the course of the Toyota Prado and the caravan which caused him any concern and that it was travelling in a straight line at a constant speed of about 70kph. He said that it appeared that the driver of the Prado lost control of the vehicle when the semi-trailer was adjacent to it. Mr Fife rejected that the overtaking manoeuvre was not safe.
Mr Fife was taken to the accident claim form where he put the speed of his vehicle at the time of collision as being 86kph. He said he had formed this view from looking at the satellite tracking record of his vehicle at the time of the accident. He said his recollection was he was travelling 80kph. He accepted, however, that he may have been travelling at more than 80kph at the time of overtaking.
Mr Fife said that when he felt the two bumps on the side of the cabin of the truck he was concerned and made the immediate decision to move the truck to the right on the carriageway. He said that he accepted that he did not immediately brake the truck but pulled to the right and denied the suggestion that he should have applied the brakes to the truck and kept it on the roadway. Mr Fife said that if he had applied the brakes too hard he could jack-knife the truck. He denied that the brakes could have been applied less hard to bring the truck to a halt safely with the caravan at his side. Mr Fife denied that he drifted across the centre lane with the truck at any stage. He said that when he saw that there were trees coming up on the side of the road, in order to avoid a collision with a tree, he swung back the truck onto the bitumen. Mr Fife accepted that he had the right wheels of his truck off the road at the point marked on Exhibit 2 with red arrows. As he returned the truck onto the roadway the Toyota Prado and the caravan jack-knifed in front of him.
Mr Fife was shown a statement signed by him which he had given to police where he apparently stated that he had followed the defendants’ vehicle for about 5km after he left Grenfell before he attempted to overtake their vehicle. Mr Fife said that this was his best recollection at the time but he rejected the suggestion that he had followed the defendants’ car for less than five minutes before the overtaking manoeuvre.
Mr Fife denied the suggestion that having regard to the length and width of the truck and the speed that he was travelling of 86kph that it was never safe to commence the overtaking manoeuvre or that he should have sounded his horn before doing so.
In re-examination, Mr Fife confirmed that it was not his practice to use his horn while overtaking as he did not wish to scare other drivers. He agreed that his own assessment of his speed whilst overtaking was 80kph but accepted that he put 86kph in the claim form.
Mr Fife said that once he had cleared the defendants’ vehicle he intended to speed his truck up to the speed limit.
Mr Fife denied that if he had applied his brakes after the initial collision that he would have avoided the final collision or the plaintiff's vehicle jack-knifing.
As indicated, Mr Fife struck me as an honest witness. He appeared to have a reasonable recollection of events. There were, however, some inconsistencies in his evidence:

Initially, Mr Fife said that the truck did not exceed 80kph in the overtaking manoeuvre but then changed his evidence to 86kph when he was faced with the insurance claim form;

Mr Fife initially said that he followed the Toyota Prado and the caravan for between 10 and 15 minutes after leaving Grenfell and then changed the evidence to possibly for 5-6km which suggests a lesser period.

The defendants’ evidence

Evidence of Mr Tony Pane

The defendants read an affidavit of Mr Nino “Tony” Pane sworn 27 August 2018. Mr Pane gives evidence that he was born in October 1948 and was accordingly 67 at the time of the accident. Mr Pane gives evidence that he has held a driver’s licence continuously for more than 40 years. Mr Pane states that after many months of research, he ordered the caravan involved in the accident in October 2015 and took delivery of it in May 2016. He ordered and purchased additional items for the caravan including “a level ride kit and a Hitchmaster coupling” which he said assists with the driving and ride of the caravan. There was no expert evidence on that issue. Mr Pane gives evidence that between 1985 and 2000 he was a commercial courier driver in the greater Melbourne metropolitan area including to as far west as Geelong.
He states that in the 18 months before taking delivery of the caravan he and his wife purchased and towed a camper trailer behind the Toyota Prado on trips around Victoria. He gives evidence that on 1 June 2016 he and Mrs Pane attended and completed a defensive driving course.
Mr Pane states that after taking delivery of the caravan in May 2016, he and his wife completed a road trip from Mordialloc in Victoria to Warrnambool in Victoria and back and that there were no problems with the handling of the Toyota and the caravan. A second road trip commenced in July 2016 and Mr and Mrs Pane proceeded from Melbourne to northern Queensland and back. By the date of the accident, Mr Pane states that he had driven many thousands of kilometres on the trip with the Toyota and the caravan attached without any instability or handling issues. Similarly, on the morning of the accident there were no handling issues relating to the Toyota towing the caravan including any instability with it.
In paragraphs 28-39 of his affidavit, Mr Pane states as follows:

28.  At about 12:00 noon I was driving at about 80 kilometres per hour, along a straight section of Henry Lawson Way approximately 12 kilometres south of Grenfell, New South Wales, Australia.
29.  Joan was sitting in the front passenger seat and we were both wearing our seatbelts.
30.  The caravan was loaded in the same manner it always is with the items secured and loaded towards the front and middle of the Caravan. I keep the weight in the Caravan to a minimum to assist in reducing the fuel bills.
31.  I was not varying the speed of the Prado erratically.
32.  I was not in any hurry as I was on holidays.
33.  I was not changing direction or accelerating or braking.
34.  I was just travelling straight and maintaining a constant speed of about 80 km/h.
35.  Suddenly and without notice, I heard a noise and felt what I would describe as a nudge or bump to rear of the Caravan.
36.  At the time I felt the bump the Prado and the Caravan were within my lane travelling in straight line at a constant speed.
37.  I then felt the Prado and the Caravan jack-knife and shift from the left-hand side of the road to the right-hand side of the road with the feeling of being airborne. I tried to correct this movement but had no control of the Prado.
38.  Before I knew it, the Prado had flipped over onto the passenger side and I could see to my right a large truck, that had made contact with the driver's side (right-hand side of the Prado) and we were sliding uncontrollably towards a tree on the opposite (right-hand side/western) side of Henry Lawson Way.
39.  The Prado came to a stop about one and a half metres from a large tree on the western side of Henry Lawson Way.

In cross-examination, Mr Pane agreed that he had been interviewed by police in relation to the accident and had signed the interview as recorded by the police officer. He agreed that when he told the police what had occurred in the accident that it was fresh in his mind. However, towards the conclusion of his evidence, Mr Pane said that he never got a chance to read what the policeman had written and that he had signed the statement whilst he was in the ambulance.
Mr Pane was taken to part of his signed record of interview, an agreed version of which became Exhibit 4. He was taken to the second question and answer in the interview which were as follows:

Q) What can you tell me what happened?
A) I felt the car sway left to right and then I tried to rectified [sic] it. I heard an explosion from the back. The car flipped and when I looked to my right I can see the truck pushing us towards the tree. Next minute we are lying upside down in the car. People came and checked us out.

Later, Mr Pane stated as follows in the statement:

Q) At what point did you feel the caravan go left to right?
A) After I felt the nudge at the back it started to go all of [sic] the place. I lost control.

Mr Pane confirmed the second answer as set out on the top of page 2 to Exhibit 4. It is noted that this answer has the defendants’ car swaying left to right, Mr Pane trying to rectify it and then him hearing an explosion from the back. Mr Pane said that he assumed the explosion he heard was one of his tyres exploding. His evidence in effect was that the accident was horrific and he did not know if he would lose his life. Mr Pane confirmed that he felt the car swaying from left to right, then heard the explosion, then the car and caravan pulling sideways into the right-hand lane before the car flipped and jack-knifed and was pushed by the truck until it stopped. Mr Pane said that after he felt the car first swaying, about three to four minutes expired before the Toyota came to a halt and that it was pushed along by the truck for about three to four minutes and at a distance of 300 metres or more. In effect, he said that from swaying to the right to becoming stationary about three to four minutes expired. When it was put to him that such a period of time was unlikely, he stated that the Toyota and caravan were scraping and being pushed along the ground. He said the truck hit the driver’s side of the Toyota and tipped him over.
Mr Pane was then taken to paragraph 34 of his affidavit which he stated was correct. He confirmed that he then felt the car sway from left to right. He was then taken to paragraph 35 of his affidavit and confirmed that the “noise” referred to in that paragraph was the explosion which he had mentioned to police. He also confirmed that after the noise or explosion he had felt a nudge or bump. He confirmed that paragraph 35 of his affidavit was his best attempt to state where the nudge or bump occurred to the best of his knowledge. He said it was to the caravan and not to the Toyota Prado.
When asked whether, at the time of the nudge or bump, he had no notice of the part of his vehicles hit, Mr Pane said that it “must have been” on the right-hand side. He confirmed that he did not mention that in his affidavit.
When it was put to Mr Pane that the version which he had given to police was different to that set out in paragraph 35 of his affidavit, he said that the version in the affidavit was the correct version. He said the process of the policeman taking the notes was disjointed. He said that he was “all over the place”, was not thinking clearly and was shaking “like a leaf”.
When it was suggested to Mr Pane that he had not referred to his vehicle swaying from the left to the right after the nudge or bump in his affidavit he pointed to paragraph 37 where he states the Toyota and the caravan jack-knifed.
When Mr Pane was cross-examined about the three to four minute time lapse from the beginning of the vehicle swaying to the vehicles coming to a stop as being inaccurate, Mr Pane said that three minutes was reasonable. He could not be accurate in relation to the period of time from hearing the noise or explosion to the car and caravan jack-knifing.
Mr Pane confirmed that he had not seen the truck before the collision including in his rear vision mirrors. He said he had been driving slowly and steadily and looking ahead. He confirmed he had travelled 8,000km with the Toyota and the caravan without any issues.
While Mr Pane accepted that it was possible for a caravan being towed by a vehicle to go across the lane without the vehicle going across as well, he said that he stayed within his lane at all times. He confirmed that the road was narrow but he tried to keep in his lane. He also pointed to the fact that he had an anti-sway device installed to the caravan.
Mr Pane confirmed that he did not see the truck hit the caravan or the moment of impact. He said he did not know what had hit him and he was too busy trying to correct the vehicle and caravan after that. He rejected the proposition that the caravan had swayed into the other lane before it was nudged. He said he was driving a straight line with the Toyota and the caravan.
Mr Pane refused to accept that his vehicle had deviated across the lane or that he had hit the truck through swaying. He said he was driving in a straight line and was only driving at 80kph. His evidence was that the truck hit his caravan.
Mr Pane also struck me as an honest witness. There were, however, some aspects of his evidence which caused concern:

Mr Pane initially gave evidence that his car swayed from left to right, then he heard an explosion, then he felt a nudge and then the car jack-knifed and flipped. In his affidavit evidence, he makes no reference to an initial sway. He said the reference to a “noise” in paragraph 35 of his affidavit is a reference to the explosion. Mr Pane in the end in his oral evidence rejected that he had initially swayed from left to right;

The suggestion from Mr Pane that three to four minutes passed from the commencement of the swaying to the vehicle stopping in 300 metres is highly unlikely and I reject it. It is highly likely that the whole process from the initial swaying or bump to the vehicles coming to a halt was a very short period, very likely to be measured in seconds and certainly less than one minute;

Although the police statement was given by Mr Pane on the day of the accident, Mr Pane had just experienced an horrific accident. His wife was apparently injured in the accident and he thought he would die in the accident. In my view, some caution should be shown in relation to Mr Pane's initial recollection as recorded in the police statement having regard to these matters.

Evidence of Mrs Joan Pane

The defendants read an affidavit of Mrs Joan Pane sworn 27 August 2018. Mrs Pane was the owner of the Toyota Prado involved in the accident. She confirms a May 2016 date of delivery of the caravan and the trips that were undertaken with it in Victoria and ultimately to northern Queensland. Mrs Pane also confirms that at no time did the caravan or Toyota Prado have any stability issues on the trips.
In her affidavit Mrs Pane states the following in paragraphs 16-21:

16.  I don't know the exact speed we were travelling. The best I can describe it as not too fast.
17.  All of a sudden, I remember I felt what I would describe as a bump and then my husband could not steer the Prado.
18.  I remember the Prado going to the wrong side of the road and my husband was trying to straighten up the Prado but nothing was happening.
19.  I remember seeing some rushing trees.
20.  I believe I might have blacked out.
21.  The next thing I remember is that I woke up with strong pain in my left shoulder and the Prado had been flipped onto its passenger side. I was facing the ground and my husband was in the driver's seat to my right hanging above me.

Mrs Pane confirmed that the first thing she recalled was a “bump”. She denied hearing an explosion which should be contrasted with Mr Pane's evidence. Mrs Pane said that before feeling the bump she was sitting in the passenger seat looking straight ahead and nothing unusual was happening. She said that after feeling the bump and seeing the Toyota going to the wrong side of the road it seemed to be a very short period before the vehicles came to rest. She denied that the caravan was swaying before the bump. After the bump, she said that the vehicle went across the road and her husband was trying to correct it but he had no control.
Mrs Pane seemed to me to be an honest and straightforward witness. She did not have a strong recollection of what occurred. She did not know the exact speed they were travelling in the Toyota Prado and only describe it as “not too fast”. She did not hear an explosion or noise prior to the bump as Mr Pane claims. The only swaying of the vehicle was observed by her after the bump.
I think that some caution should be shown in relation to Mrs Pane’s evidence. As a passenger she was looking straight ahead. She did not have control of the Toyota like Mr Pane. She could provide no further detail in relation to the “bump”.

The expert evidence

The parties relied on a number of expert reports. As indicated above, the crash investigation expert on behalf of the plaintiff was Mr Paul Feenan. The expert on behalf of the defendants was Mr John Jamieson. It is clear from the curricula vitae attached to their reports that both gentlemen are experts in their field and no issue was raised as to this.
In the end, little regard was given to the expert reports by counsel in their final submissions. It appeared to be the position of both parties that the evidence of the lay witnesses was determinative of the primary issues in the case.

Report of Mr John Jamieson dated 10 January 2018

The first expert report prepared was that of Mr Jamieson dated 10 January 2018. Unlike Mr Feenan, Mr Jamieson inspected the accident site. That inspection occurred on 17 December 2017 (report page 3).
In his report, Mr Jamieson:

Notes that the police described the accident as a rear-end collision between two vehicles (page 4). In his first report, Mr Feenan notes that the preamble to the statement by police relied upon by Mr Jamieson states “at this stage it is not confirmed” (first report page 4);

Notes that his brief required an analysis of two presented versions of the accident (report page 4);

Provides a description of the accident site with accompanying photographs (report pages 5-7);

Notes that the rest position of the vehicles was approximately 400 metres along the straight part of the road (report pages 8-9);

States that the road featured an approximate width between edge lines of 6.5 metres with each lane being approximately 3.25 metres. The pavement of Henry Lawson Way was “chip seal bitumen”, being blue metal aggregate bound with normal bitumen. The condition of the road was average at the time of inspection. The roadway featured a broken centreline and edge lining with a usual unbroken fog line (report page 11 cf photo page 11);

Estimated, on certain assumed speeds, a maximum sighting distance of the truck to the point of impact as being 250 metres. It was later accepted by the experts that the estimated speeds were not clearly established objectively by the evidence. A visual assessment was made by Mr Jamieson for potholes, undulations or any irregularities which may cause a caravan to sway or swing and none was found by Mr Jamieson (page 12);

States that technical specifications show that the Toyota Prado was 1.885 metres wide. Mr Jamieson assumed a caravan width of 2.3 metres. However, the annexures to Mr Pane’s affidavit show that the caravan width was 2.44 metres (report page 13);

Assesses sighting distances based on the assumption of the speeds of the different vehicles (report pages 14-16). These speeds were not established by the evidence in the case of the truck;

Asserts that the truck had more than adequate time to slow itself safely once it sighted the Prado and the caravan. This however is based on the assumptions made about speeds (report pages 16-17);

Refers to a version of the accident provided by Mr Pane in an insurance document in which he states, “…my wife and I both felt a shunt from the rear, causing the caravan to jack-knife and push the vehicle to the other side with the feeling of being airborne by this…” Mr Pane provided a sketch which Mr Jamieson includes in his report showing the truck apparently hitting the rear of the Prado and caravan combination (report page 17). The version of the truck driver, Mr Fife, is also given where he says that Mr Pane failed to keep any proper control of the Prado and caravan thereby causing the caravan to collide with the left-hand side of the truck (report page 18);

Refers to photographs of the left side of the truck and trailers. Mr Jamieson says that there is no “obvious sideswipe “scraping” type damage seen” on either trailer which would be consistent with the sideswipe from the side of the caravan. However, Mr Jamieson notes that the vehicles were not forensically examined at the scene. It is noted that Mr Fife said in his oral evidence that the caravan bumped against the prime mover the left side of which is not shown in the photographs Mr Jamieson relies upon (report pages 18-19);

Expresses the opinion that if the caravan had hit the side of the truck as alleged, having regard to his assumed speeds, then it would be almost certain that the truck/trailer combination would have travelled in front of the Prado/caravan during this process. It is asserted that the truck/trailer combination was behind the caravan when it “bulldozed” the Prado to overturn. As stated, the speed assumptions were not established on the evidence and it appears from photographic evidence that the point of maximum impact may not have been with the caravan but with the driver passenger door of the Prado (report page 21);

Asserts that the most likely series of events from a crash research viewpoint was that the truck driver decided to overtake but probably misjudged the clearance between the left front corner of his prime mover and the right rear corner of the caravan giving rise to contact which, given the significant mass differential between the vehicles, rotated or jack-knifed the caravan. It is noted that Mr Jamieson assumes that the truck/trailer destroyed the caravan by direct impact and caused the Prado to rotate then roll (report page 22);

Expresses the opinion that the crash involved a rear end collision between the Prado and caravan and the truck/trailer combination. Mr Jamieson also states that the “primary problem” with the truck driver’s version was that at the assumed speeds of 80km for the Prado and 100km for the truck (which were not established), the energy possessed by the truck/trailer combination was at least five times greater than the Toyota/caravan which would have resulted in the truck/trailer simply continuing further south clearing the incident without being knocked off-line, which did not occur. Accordingly, the version of Mr Pane was preferred by Mr Jamieson.

Annexed as Appendix C to Mr Jamieson's report are photographs taken of the scene of the accident which include tyre marks which the parties accept were connected with the accident.

Report of Mr Feenan dated 28 February 2018

Mr Feenan was asked to consider Mr Jamieson's first report.
In his report dated 28 February 2018, Mr Feenan:

Notes that he has not visited the scene of the accident as he believed that the time differences would reduce any evidentiary on scene evidence that may have been of assistance closer to the time of the incident;

Assumes that both vehicles were travelling south on a sealed section of bitumen road with a provision for one lane of traffic in either direction. The relevant section of the highway was assumed to be straight, dry at the time, and with a marked centre line that did not restrict vehicle overtaking;

States that the issue is where on the road laterally the impact occurred and whether either of the vehicles encroached into the traffic lane of the other at the time of the initial impact (report page 2);

Notes that there is no issue as to the line of sight or any suggestion that the vehicles were travelling in excess of the 100kph speed limit applicable (report page 2). Mr Feenan assumes the dimensions in Mr Jamieson's first report of the roadway. In cross-examination, he confirmed that he did not measure any of the widths of the vehicles or the laneway. He also conceded that he had not measured whether the bull bar on the prime mover was wider than the prime mover itself. He noted that the truck configuration may not exceed 2.5 metres to be registered on road in New South Wales (page 3);

Mr Feenan rejects Mr Jamieson's conclusion that the crash involved a rear end collision between the truck/trailer combination and the rear of the caravan. Mr Feenan includes in his report the diagram drawn by Mr Pane which was included with Mr Jamieson's report (report page 5) and says that the coloured photographic evidence supplied to him shows the underside of the wrecked caravan still attached to the Prado vehicle at the location of rest of the vehicles at the scene of the collision. Mr Feenan expresses the opinion that the photographic evidence shows a lack of impact evidence by the truck/trailer combination into the rear of the caravan, thus negating the conclusion of Mr Jamieson (report pages 3-7). Mr Feenan expresses the view that the photograph of the trailer chassis shows no impact distortion to the rear of the caravan that would be expected from impact by the front of the truck;

Mr Feenan expresses the opinion that the kinetic energy of the truck/trailer combination was vastly greater than the Prado/caravan configuration. Accordingly, if the truck/trailer combination was angled towards the caravan it would redirect the caravan and Prado towards the eastern side of the road. This did not occur with the vehicles travelling towards the western edge of the road. This negates the suggested collision by the truck straying onto the Prado/caravan side of the road (report pages 7-8). The calculations of the kinetic energy made by Mr Jamieson were “greatly flawed” (report page 8) on his own assumptions as to speed (report pages 8-10);

Mr Feenan comments that Mr Jamieson's assumptions as to speed are contrary to Mr Fife's version (report pages 10-11);

Thus the truck/trailer combination striking the Prado/caravan combination would have little effect on the approach and continuation of the truck (report page 11);

The huge kinetic energy of the truck/trailer combination, if it struck the caravan, would be expected to cause a major distortion of the caravan and the photograph of it shows it to be “unremarkable” and “not distorted as would be expected by impact from a vehicle possessing a huge kinetic energy” (report page 12);

Questions Mr Jamieson's calculations of the time distance relationship (report pages 12-15);

Raises in relation to Mr Jamieson's conclusion that the truck driver “probably misjudges the clearance”, the extensive experience of Mr Fife who has been licensed to drive heavy vehicle since 1995. Reference is made by Mr Feenan to the fact that a towed caravan “can misbehave dramatically”, resulting in it being more prone to becoming unstable. Mr Feenan notes that he has no evidence as to Mr Pane's driving experience;

In cross-examination, Mr Feenan confirmed that even experienced truck drivers can make errors. Both Mr Fife and Mr Pane were experienced drivers. Although Mr Pane had only had the caravan for a relatively short period, he had driven several thousand kilometres in it on the trip (report pages 15-16);

Mr Feenan notes from the limited scene evidence available, that it does suggest that the Toyota Prado has at some time encroached into the path of the prime mover by the yaw marks visible on the roadway in photographic evidence and the changes in the photographic evidence marks on the roadway. These show that the Prado was then pushed and dragged along the road for a period. Mr Feenan refers to diagonal striation marks on the roadway in the photographic evidence and states the diagonal striation marks are made when vehicle tyres move outside the path of the front while rotating in one direction while the vehicle is moving in another (report pages 17-23). Mr Feenan includes photographs of a film showing a caravan and car combination losing control. He also refers to the similarity in the diagonal striation marks between the subject scene and those appearing in the film (report page 23);

Mr Feenan expresses the opinion that the front of the truck came into contact with the full driver’s side of the Prado (report pages 24-26), but states that the impact must have occurred after the Prado and caravan became unstable and commenced to rotate on the highway intruding into the overtaking lane because of the presence of the diagonal striation marks in the photographic evidence (report page 25);

Mr Feenan makes reference to the signed version of the accident given by Mr Pane to police where his initial response to police was: “I felt the car sway left to right and then I tried to rectified it. I heard an explosion from the back and the car flipped …" (report page 26). Mr Feenan expresses the opinion that the movement described by Mr Pane was most probably the caravan becoming unstable as the truck was commencing to overtake thus causing an oscillation of the caravan (report page 26);

Mr Feenan refers to the photographic evidence showing the tyre marks of the truck/trailer combination as Mr Fife attempted to avoid the impact of the caravan. Mr Feenan noted that the tyre marks were completely straight and were supportive of the fact that the truck/trailer combination was still tracking in a straight line (report page 27);

Mr Feenan expresses the opinion that having regard to the flawed time and distance calculations of Mr Jamieson, the only opinion that Mr Jamieson has to support his report is his view that the truck driver probably misjudged the clearance (page 28);

Sets out on pages 29 to 31 of his report his summary. In the summary, Mr Feenan rejects the conclusion of Mr Jamieson that there was a rear end collision due to the lack of evidence of damage to the chassis of the caravan. Mr Feenan says that Mr Jamieson's conclusion of misjudgment by Mr Fife “is not based on any evidence contained” in his report. Mr Feenan states that there is a strong probability that the caravan “has commenced to become unstable while the B-double was overtaking, and commenced oscillation at the rear”. Mr Feenan states that this probable version was supported by Mr Pane's statement to police (which on page 31 he incorrectly attributes to Mr Fife).

Mr Jamieson’s supplementary report dated 28 March 2018

Mr Jamieson prepared a supplementary expert report dated 28 March 2018 in which he considered Mr Feenan’s first report. In his supplementary report, Mr Jamieson:

States that Mr Feenan is known to him as a competent crash reconstructionist. He also notes that Mr Feenan did not visit the site;

Expresses the opinion that Mr Feenan was correct when he indicated that the chassis of the caravan did not appear to be deformed on its right rear corner as might be expected. However, Mr Jamieson says that it was quite reasonable to suggest that the front left corner of the prime mover impacted or contacted the superstructure of the caravan which was later destroyed. Accordingly, the lack of evidence of any bending of the chassis of the caravan was not conclusive in relation to whether or not it was impacted (report page 3);

Mr Feenan criticises this conclusion in his supplementary report;

Accepts Mr Feenan’s calculation of the differential in kinetic energy between the two vehicles as being possibly as high as 19 times (page 4). Mr Jamieson notes that there was no evidence available to him in relation to the load of the truck/trailer combination. He agrees that the rubber marks or yaw marks left on the road in the video referred to by Mr Feenan were not dissimilar to those shown on the photographs in the present case;

Mr Jamieson appears to suggest that with the kinetic energy and the faster speed of the truck/trailer combination, that it would be expected that the Prado would be knocked to the left and off to the east rather than both vehicles moving to the right. This seems to provide some support to Mr Feenan's analysis (report page 5);

Mr Jamieson does not change his view because he is of the opinion that the heavier truck/trailer combination would have simply continued straight ahead and not been involved in a collision as occurred (report page 6).

Supplementary report of Mr Feenan dated 14 June 2018

Mr Feenan considered Mr Jamieson’s supplementary report in his own supplementary report dated 14 June 2018. Mr Feenan in his supplementary report:

Rejects Mr Jamieson's explanation for the lack of structural damage to the chassis of the caravan. Mr Feenan includes photographs of the relevant caravan undamaged which suggest to him “that its chassis height is located towards the top quarter height of the tyres, and the metal frame would be within the front section of the prime mover during any impact” (report page 2). Mr Feenan also includes a photo of the subject truck and trailers as establishing “the impracticability of an impact by the front of the prime mover overriding the metal chassis of the caravan and leaving it undamaged”. Mr Feenan expresses the opinion that the lack of damage to the metal chassis of the caravan must be “a strong assumption that there was no frontal impact of the prime mover into the rear of the caravan” (report page 3);

On page 3 of his report Mr Feenan says that there is no evidence of the loading of the caravan that would negate the possibility of it becoming unstable. However, this issue is not pleaded by the plaintiff and may be excluded. It was not relied on in submissions;

Mr Feenan expresses the opinion that the end location of the trucks excludes a substantial speed differential of the vehicles such that the truck/trailer combination would knock the Prado to the left and off to the east rather than the right (page 4);

Mr Feenan's interpretation of the tyre marks visible on the road is that the Prado was encroaching over the centre of the roadway when the impact occurred (report pages 7-8). However, this does not determine the location of the initial collision between the two vehicles;

Mr Feenan notes that Mr Jamieson was adamant that the initial impact between the truck and the Prado/caravan combination was by the front of the prime mover and the rear of the caravan. Mr Feenan said there was no evidence of impact into the rear of the caravan on the photographic evidence. Mr Feenan expressed the opinion that it was illogical that Mr Pane would lose control of his vehicle after any rear impact and then steer into the oncoming traffic lane rather than move to his left towards that side of the road. He expresses the opinion that a vehicle impacted in the rear on the driver’s side which is driving ahead will redirect or rotate towards the left side of the road (report page 9);

Mr Feenan in cross-examination noted that there was no debris from the caravan on the roadway after the collision. This tends to negate an initial rear end collision. All the debris was at the ultimate resting place of the vehicles;

Mr Feenan expresses the opinion that the physical evidence at the scene supports the case of the plaintiff (report page 10).

Joint report dated 30 July 2018

Mr Feenan and Mr Jamieson prepared a joint expert report.
In the report, the two experts noted ten areas of agreement which were as follows:

Mr JAMIESON stated that he was of the opinion that while the collision may have occurred as described in each reconstruction report, the event outlined in Mr FEENAN's report was quite possible.
Both Mr JAMIESON and Mr FEENAN agree that the B-Double configuration (mass of about 60,000 kgs) was being driven by a professional heavy vehicle driver and when overtaking the vehicle would be normally expected to track in a straight line, with the trailers generally following the path of the prime mover.
Both Mr JAMIESON and Mr FEENAN agree that there was little information regarding the ability or training provided to Mr Pane the driver of the Prado towing the caravan. It was also agreed that many drivers do not become aware of a caravan or trailer's potential errant behaviour until it is too late to recover, and many driver's will argue a variety of methods to recover the trailer, not all successful.
Both Mr JAMIESON and Mr FEENAN agree that the Prado rotated into the path of the B Double due to the instability of the caravan swinging, and that volatility could be activated by either incorrect loading, by the speed of the vehicle configuration, by unevenness or instability of the road's surface or by sudden steering input by the driver.
Mr Jamieson added that the instability could also be induced by an impact from the rear.
Both Mr JAMIESON and Mr FEENAN agree that there is no evidence collected that would allow a determination where longitudinally on Henry Lawson Drive the collision between the front of the prime mover and the driver's side of the Prado occurred.
Both Mr JAMIESON and Mr FEENAN agree that there is insufficient evidence as to the relevant or actual speeds of the respective vehicles when overtaking. Because of this, it was considered a calculation of the total distance required for the heavy vehicle to overtake could be considered with any accuracy.
Mr JAMIESON stated he had not been privileged to a statement by Mr Pane to the Police. However, both agree that if this statement was accepted, there must have been instability in the caravan that was described where Mr Fife said he felt two impacts to the side of his cabin while he was overtaking the caravan and realised the caravan was hitting his cabin.
This was not inconsistent with Mr Jamieson's position involving a rear impact.
Both Mr JAMIESON and Mr FEENAN agree that if the caravan had remained stable and not commenced swinging (for whatever reason), the B -Double could have passed the caravan and Prado successfully and this…collision would not have occurred.

The joint report also set out areas of disagreement which were as follows:

Mr FEENAN stands by his supplementary report that outlines the B Double Semi Trailer was in the process of overtaking the caravan configuration when the caravan commenced to sway or oscillate from side to side.
Mr FEENAN considered that there was no impact between the front of the prime mover and the rear of the caravan. This was due to the "at-rest" photograph showing the chassis maintained its original shape, and that a photograph of the front of the prime mover shows its low proximity to the ground and that impact between those areas of the vehicles could not have occurred.
Mr JAMIESON considered that the apparent relative heights of the super-structure of the caravan and the front left bumper of the prime-mover could allow contact between the two - with no bending of the caravan's chassis, depending on the precise bumper type of the Kenworth prime-mover. This was not made available.
Mr FEENAN considered that the damage displayed in the post-collision photograph showing the contact damage to the Prado's driver's side rear door was most likely occasioned by impact from the front of the prime mover as the Prado encroached into the path of the B-Double.

Mr JAMIESON considered this was possible but not definitive. Mr Jamieson considered that if contact was made as shown of Mr Feenan's 'Diagram 2' of his Supplementary report of 14 June 2018, as the B-Double was moving faster than the caravan combination, the Prado probably would have been "knocked" to the left (to the east).
Mr FEENAN considered that in terms of impact position, laterally it had to occur on the Prado driver's incorrect side of the roadway.
Mr JAMIESON is of the opinion that while the length of the roadway stretch was probably sufficient to complete the overtaking manoeuvre, the roadway which was measured at about 6.4 metres wide, and the width of both vehicles totalled about 4.8 metres, then the overtaking manoeuvre by Mr Fife on this section of roadway, even though road markings allowed overtaking, may have presented a contributory negligence in the causation of the collision.

In the course of his oral evidence, Mr Feenan was asked by the court whether there was room for the truck/trailer combination to pass the Prado/caravan and he confirmed that. When asked whether there was room to pass safely, Mr Feenan said that there was “on a country road”. When it was suggested to him by counsel for the defendants that having regard to the width of the caravan, and there being no breakdown lane and grass edges, the passing manoeuvre was not a safe manoeuvre, Mr Feenan described the suggestion as drawing “a long bow”. In the end, he stated that he did not know of any factors which would make the passing manoeuvre undertaken by Mr Fife unsafe.

Oral evidence of Mr Feenan

Mr Feenan was subject to cross-examination by counsel for the defendants.
In cross-examination, Mr Feenan confirmed that his case theory was that Mr Pane lost control of the caravan for reasons which were unknown. He rejected the suggestion that his view was that the first contact was between the truck and the Toyota Prado and said that his view was that the first contact was between the caravan and the prime mover of the truck. He said his view was that the subsequent contact was between the prime mover and the rear right passenger door of the Toyota. This caused the Toyota to tip over and be shoved along the road by the truck until the vehicles came to rest. While Mr Feenan accepted that the truck must have been travelling at a higher speed than the Toyota, he agreed that the speeds of both were unknown and there were only estimates from the drivers.
Mr Feenan agreed that he had not taken measurements of the Toyota, the truck or the addition of the truck mirrors and bull bars. However, he accepted that the mirrors and bull bar would increase the width of the truck and limit its leeway in a lane.
Mr Feenan agreed that an issue, although not the initial issue, was whether there was room for the truck to pass. He accepted that if the caravan was 2.44 metres wide as opposed to his stated width of 2.3 metres that there was less room for the truck to pass. He did not know the width of the trailers of the truck. Mr Feenan said he assumed that the passing gap “could be around 75cm” (report page 3). He accepted that the passing gap involved a fairly small tolerance for the vehicles with limited passing space. When asked whether the truck would be forced to stay in the centre of the lane Mr Feenan said that it would be forced to stay to the left of the fog line whilst passing.
Mr Feenan was then taken to his consideration of Mr Pane’s police statement (report page 26). Mr Feenan confirmed that he had read the entirety of the police statement of Mr Pane but did not include Mr Pane’s statement that he felt the caravan go left to right “after I felt the nudge at the back it started to go all of the place. I lost control” (Exhibit 4). Mr Feenan said he placed weight on the initial answer of Mr Pane as it was the response given by Mr Pane to the question by the police officer, “What can you tell me what happened?” Mr Feenan said this was the explanation for the accident given to the police officer as an immediate response of Mr Pane. Mr Feenan said he took Mr Pane’s first explanation when asked, to be his account of what happened in the accident.
Mr Feenan was then asked whether he had excluded a nudge to the rear of the caravan which preceded a sway of the caravan. He said that he had on the evidence as there was no evidence to support a nudge by the truck to the rear of the caravan. Mr Feenan confirmed that he assumed the nudge was a direct impact from the truck into the rear of the caravan. He said he also considered a nudge to the side of the caravan by the truck. Mr Feenan said that he did not believe that the truck had gone into the Toyota lane to the left as the size of the truck, if it had pushed into the caravan, would push the car and caravan off to the left which did not occur.
After some further cross-examination, Mr Feenan accepted that the likely path of the Toyota and caravan if struck depended on the extent of the tap or hit of it. However, he said usually the driver of the car towing the caravan would look to escape to the left of the lane which did not occur.
After further cross-examination, in which Mr Feenan said he had never driven a “B-double combination”, he accepted that the extent to which the vehicle with the caravan would go to the left depended on the degree of the contact with the truck. Mr Feenan accepted that a push from the truck, depending on the extent, could destabilise the caravan and lead to a chain of events which resulted in a collision. This included fishtailing by the caravan.
Mr Feenan said he had excluded a collision to the rear of the caravan because the chassis of the caravan following the collision was unremarkable and undamaged, a substantial impact by the truck into the caravan would redirect the caravan and Toyota to the western side of the road which did not occur and it would have caused catastrophic damage to the caravan itself. However, he accepted that a nudge by the truck to the rear right of the caravan could produce an instability in the caravan.
Mr Feenan accepted that he had not undertaken an on-site examination of the chassis of the caravan at the scene of the accident. However, he expressed the view that photograph 2 on page 7 of his first report indicated no impact damage to the back of the chassis of the caravan as would be expected by contact with a 50 tonne plus truck/trailer combination. Nevertheless, Mr Feenan accepted that damage would depend on the degree of the impact. He also accepted that the extent of the impact would affect the angle the Toyota and caravan would go.
It was put to Mr Feenan that the truck could have undertaken controlled braking and stayed in the overtaking lane because the caravan/Toyota combination would not push the truck off the road. Mr Feenan said that the photographs indicated that there were tyre marks by the truck towards the side of the road on the right. He accepted that the truck could have chosen just to brake and not gone off the road. Whether that is a reasonable alternative has to be seen in the context of the situation which was facing Mr Fife depending on the facts found. One cannot be too critical of the actions taken by Mr Fife in an emergency situation, depending on what had occurred previously.
Mr Feenan was asked questions in relation to page 15 of his report and his comments on the experience of Mr Fife. He accepted that it was possible for experienced truck drivers to make errors in their handling of their vehicle.
Mr Feenan was then asked some questions in relation to the behaviour of trucks compared to a vehicle and caravan. While accepting trucks can misbehave, he said that they did not do so in the same way. Mr Feenan said that caravans can start to oscillate for a number of different reasons. However, he said that in the absence of an intervening factor and providing that a vehicle and caravan were proceeding at a constant speed on a flat road, they can proceed without oscillating. He accepted that he understood that the road conditions at the time were good with the road being flat and straight.
Mr Feenan said he made no assumptions in relation to Mr Pane's driving experience or the loading of the caravan at the time of the accident.
After a number of questions, Mr Feenan accepted that the oscillation of a caravan, as shown on pages 18 to 23 of his first report, could be consistent with being bumped or nudged by another vehicle. He said that was possible. When asked whether it was likely, Mr Feenan said in his view it was not because it was likely that the vehicle towing the caravan would be pushed to the left-hand side of the road not the right-hand side as occurred here. Mr Feenan said he believed that the oscillation of the caravan causing a loss of control of the Toyota/caravan combination was more likely. However, he accepted that the truck bumping the caravan causing it to oscillate was a possibility.
Considerable evidence was given by Mr Feenan in his report and in cross-examination about the tyre marks in photographic evidence showing a yaw mark turning to a slide mark. The court did not find this evidence persuasive due to the poor quality of the photographs and the fact that Mr Feenan had not inspected the accident site. However, it was a possible explanation for what occurred in the light of the similarity with the video photograph on page 23 of his first report.
Mr Feenan accepted that truck drivers could be involved in a slight impact with their trucks but not feel the impact due to the size of the truck.
Mr Feenan accepted the following summary of his views:

He excluded a full rear impact between the truck and the caravan due to the lack of apparent damage to the chassis of the caravan on the photographic evidence;

He excluded a significant degree of impact between the truck and the rear driver's side corner of the caravan due to the lack of structural damage to the caravan;

A glance or bump between the caravan and the truck was possible either by the truck intruding on the Toyota left lane or the caravan intruding on the truck in the passing right lane;

The experts cannot determine what occurred as it is a question of fact;

The possibility of the caravan oscillating onto the passing side of the road was more likely as the caravan is lighter and the truck is heavy. Further, even if the truck glanced against the caravan, having regard to their different weights and sizes it is expected that a substantial degree of damage would be inflicted to the caravan which would push the Toyota and the caravan to the left side of the road and not to the point of rest which occurred.

Mr Feenan was shown what was said to be a photograph of the right-hand side of the caravan and certain damage but could not say whether the damage shown was consistent with a glance by the truck hitting the right hand side of the caravan. In his answer, Mr Feenan said that he had never previously seen an accident between a “B-double” truck/trailer combination and a caravan being towed of this type.
In re-examination, Mr Feenan confirmed that the photo shown on page 6 of his first report was part of a larger photograph which became Exhibit C which showed the underside of the defendants' caravan whilst it was still attached to the Prado when the vehicles had come to rest after the collision.
Mr Feenan said that the defendants’ hypothesis of the prime mover “nudging” the caravan sufficient to set up a swinging of the caravan was unlikely because a nudge would involve an impact and an impact would involve damage which was not evident to the chassis of the caravan.
Mr Feenan confirmed that he was commenting in his first report on Mr Jamieson's proposition that there had been a rear collision between the truck/trailer combination and the caravan as shown in the diagram prepared by Mr Pane which is at page 5 of his first report. Mr Feenan confirmed that Mr Jamieson still adhered to the likelihood of a rear end collision between the truck/trailer and the caravan. Mr Feenan said that he understood that Mr Jamieson stated that the absence of damage to the rear of the caravan did not rule out a rear collision between the truck/trailer combination and the caravan.

Oral evidence of Mr Jamieson

Oral evidence was given by the defendants' expert, Mr John Jamieson. He confirmed that he adhered to the views expressed in his various reports.
Mr Jamieson was taken to page 19 in his first report and Figure 10 on that page. He agreed that he included that photograph in his report to demonstrate that there was no obvious side swipe scraping damage on the trailers of the truck. When asked whether he examined the cab of the prime mover of the truck, Mr Jamieson said he could not recall. He said he did not recall any material which showed the side of the prime mover.
Mr Jamieson was asked questions about his use of a speed differential between the two vehicles of 20kph in his first report. Mr Jamieson said he used this speed differential “as a hypothesis”.
Mr Jamieson said he could not determine the increase in speed of the truck/trailer at the time of any collision. He said it would depend on how far behind the Toyota the truck had commenced to accelerate. He could therefore not determine whether it was plausible that the truck had only increased its speed to five to six kilometres per hour more than the Toyota.
Mr Jamieson confirmed that from the time of the point of impact to the time when all vehicles were at their resting place would have involved only some seconds. This should be contrasted with the evidence of Mr Pane who seemed to suggest it would take three to four minutes which appears to be clearly highly unlikely.
The court asked Mr Jamieson whether he regarded the overtaking manoeuvre by the truck and trailer in the circumstances on the road as being a safe manoeuvre. Mr Jamieson said in his view it was not. While the length of the vehicle was satisfactory in regard to the straight road, the problem was the width of the truck/trailer combination. He said all vehicles including a truck/trailer combination move laterally to some degree. This included a truck/trailer which could move up to 200mm to each side and had to be considered with the width of the vehicle at 2.5m and about 200mm for the mirrors. He saw there being little free room in the truck’s lane for the passing manoeuvre.
He agreed in cross-examination that the potential to move 200mm from side to side was relative to the road surface being travelled. He said this was the case with an articulated vehicle. He accepted that the position of the prime mover was different to the trailers.

Submissions

Both parties made detailed oral submissions. The submissions made focussed on the lay evidence almost entirely. It is noted that a transcript of the evidence was not available to the court.
The plaintiff made, in general summary, the following submissions:

The important evidence was the account of the two drivers of the vehicles. Mrs Pane added little in relation to her evidence. It was accepted that all witnesses were trying to give honest accounts in accordance with their best recollections. However, Mr Pane’s evidence was less reliable than that of Mr Fife;

Mr Pane gave evidence that he never observed Mr Fife's truck until the collision occurred. Accordingly, there was no observation by Mr Pane of the truck until the Toyota/caravan lost control. Mr Fife was the most familiar with the roadway and gave evidence that he travelled it twice per week. Mr Fife also gave evidence, which should be accepted, that he observed the plaintiff's vehicle for several kilometres before attempting to overtake it. Whilst there was cross-examination in relation to the time Mr Fife was behind the Toyota, on any view Mr Fife was travelling behind the Toyota for some time with the clear ability to observe the Toyota and caravan. Mr Fife's evidence that after he rounded the bend and had the straight available, he formed the view that he could pass safely, should be accepted. The only evidence as to that matter was that of Mr Fife. The court should reject the hypothesis of Mr Jamieson that Mr Fife went around the bend and was almost immediately after confronted with a slower vehicle;

When Mr Fife commenced the overtaking manoeuvre he had all the relevant information required available to him. He was familiar with the road, had waited to pass until he rounded the bend where he knew there would be a straight flat road and accordingly, there was no element of surprise or panic for Mr Fife. He was not disadvantaged in undertaking the overtaking manoeuvre in any way;

If the court accepts that Mr Fife had observed the Toyota/caravan combination whilst travelling from behind for a number of kilometres and had all the information available to overtake them in the straight part of the road after turning the bend, then the court would be comfortable in reaching the conclusion that Mr Fife did not strike the back of the caravan with his truck. Accordingly, the original hypothesis of Mr Jamieson and Mr Pane, that the truck struck the caravan from behind, can be rejected. This is the hypothesis in Mr Pane’s drawing which is in Mr Jamieson's first report. Mr Pane had never seen the truck until his vehicle became out of control. What he was displaying in the drawing was pure speculation on his part. There is no evidence from Mr Pane which can support a factual finding that the prime mover struck the back of the caravan either fully on or in the back driver's side corner of it. Mr Fife's evidence should be accepted that he undertook the overtaking manoeuvre without striking the back or back right corner of the caravan;

Mr Fife gave evidence of hearing the caravan bumping twice against the side of the prime mover. Mr Fife knew the relative positions of the truck and the caravan at the time of the bumps as the two vehicles were overlapping. Mr Fife's version is the only direct account of what happened. He only heard two bumps and he saw nothing;

There was no challenge to Mr Fife's account of him attempting to avoid contact by pulling the truck to the right hand side of the road. He also observed the Toyota and caravan jack-knife;

Although there was cross-examination of Mr Fife in relation to the truck speed in overtaking, relying on a prior inconsistent statement and Mr Fife changing his account from 80kph to 86kph, he confirmed that 80kph was his recollection. The reason he gave for changing his account (satellite tracking information), was plausible to explain the speed in the claim form. There was no problem with Mr Fife giving a slightly slower estimate for the speed of the Toyota than that given by Mr Pane. What is clear is that neither vehicle was travelling at anything approaching one hundred kilometres per hour and the truck must have been travelling faster than the Toyota Prado. Mr Fife should be accepted that he intended to increase his speed once the overtaking manoeuvre was completed. The court should conclude that the relative speed differential when the prime mover was at the side of the caravan was not enormous and somewhere between five and 10kph;

Mr Fife's account that the truck was travelling in the overtaking lane and that he heard two bumps with the caravan striking the cabin of the prime mover but that he saw nothing should be accepted. Mr Fife was in possession of all relevant information and he was familiar with the road;

Mr Pane’s evidence that he was travelling entirely within his lane should be rejected. He was not even aware of the presence of the truck and his evidence is an ex post facto reconstruction of events. It is clear he was not looking in the rear vision mirror of the Prado as he would have seen the truck if he had been. The fact he had not seen it meant that he had not looked in his rear vision mirror for five to six kilometres;

In the fourth and fifth paragraphs on page 5 of the joint experts' report dated 30 July 2018, the experts say that the Toyota rotated into the path of the truck due to the instability of the caravan swinging and that volatility “could” be activated by either incorrect loading, by the speed of the vehicle configuration, by unevenness or instability of the road's surface or by sudden steering input by the driver. Mr Jamieson added that the instability of the caravan could also be induced by an impact from the rear.

… where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture … But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise.” (emphasis added, citations omitted)

[77] This was reiterated in Holloway v McFeeters (1956) 94 CLR 470; [1956] HCA 25. In that case, the plurality, Williams, Webb and Taylor JJ, observed at 480 that:
Inferences from actual facts that are proved are just as much part of the evidence as those facts themselves. In a civil cause ‘you need only circumstances raising a more probable inference in favour of what is alleged … where direct proof is not available it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference … (emphasis added)

[78] Their Honours, referring to Bradshaw v McEwans, emphasised that an inference could be drawn “from the circumstances that sufficiently appear by evidence or admission” provided that the circumstances were left unexplained.

Having regard to all of the evidence and the submissions made by the parties, I make the following findings of fact:

On 11 August 2016, shortly after leaving the town of Grenfell in New South Wales and proceeding south on Henry Lawson Way towards Young, Mr and Mrs Pane were driving in their Toyota Prado vehicle pulling a caravan. Mr Fife, driving a Kenworth truck with two loaded grain trailers behind known as a “B-double”, had been following Mr and Mrs Pane in their vehicle for at least five to six kilometres and for about several minutes soon after leaving Grenfell;

At no time did Mr Pane, who was driving the Toyota Prado, see Mr Fife or his truck in any of his (Mr Pane’s) rear vision mirrors. He was focusing on the road ahead. I find that Mr Pane was driving his Toyota and caravan in a steady fashion facing the road ahead, most likely travelling in the centre of his lane, driving at a relatively steady speed at or just under 80kph and without undertaking any unnecessary braking or acceleration. Mr Fife had been following Mr Pane for some time whilst he was driving in this fashion;

Mr Fife was somewhat annoyed at being delayed by the speed of the car and caravan combination and was desirous of passing it. He was aware that after a modest bend in the road ahead, there was a long straight stretch with a broken line which permitted passing. He turned the bend with the Toyota and caravan ahead of him and saw that there was no vehicle coming towards him in the distance. He decided to overtake. He put his indicator on and pulled over into the right hand lane and proceeded to begin to overtake the Toyota and caravan;

For several minutes, Mr Fife had been observing the Toyota and caravan ahead of him and had a good view of the road ahead. He was prudent in that he had not attempted the overtaking manoeuvre until a long straight stretch with no vehicles approaching presented itself. Mr Fife was aware of the stretch of road as he travelled the road twice a week;

There is a factual issue as to whether Mr Fife's truck struck the rear of the caravan in any place including the right rear corner of the caravan;

Mr Fife said that he did not, and he had adequate room to pull out into the overtaking lane and proceed safely with the overtaking manoeuvre. He said he kept within his lane at all times. Mr Pane said that he “heard a noise and felt what [he] would describe as a nudge or bump to the rear of the Caravan”: affidavit paragraph 35. Mrs Pane said that she remembered feeling what she described “as a bump and then my husband could not steer the Prado”.

Mr Pane was not aware of the presence of Mr Fife in his truck behind him. Mr Fife had been observing the Toyota/caravan for some time and had, on all the evidence I find, a good view of it. I accept Mr Fife's evidence that he undertook the manoeuvre as he indicated. I prefer the evidence of Mr Fife in all the circumstances that he did not hit the rear of the caravan with his truck either fully or in the right rear corner. The drawing prepared by Mr Pane, which is reproduced in the experts’ reports, shows the truck driven by Mr Fife hitting the rear of the caravan. There is a cross in the right rear corner. There was no cross-examination or evidence as to what this cross signified. However, in my view as Mr Pane had not seen the truck, the drawing was speculation on his part as to what had occurred. In the end, I accept Mr Fife's evidence that he did not strike the caravan as being more likely in the circumstances, having regard to the fact he had a good view of the Toyota/caravan and the road ahead as he passed;

There is no satisfactory evidence to support the submission made by the defendants that Mr Fife may have struck the caravan in the rear with the truck without feeling it. The direct evidence from Mr Fife is that he undertook the commencement of the overtaking manoeuvre some distance from the caravan and in the overtaking lane. I accept that evidence and it is inconsistent with any likely impact on the rear of the caravan;

Mr Feenan expresses the opinion that the photographs show that a collision from behind is unlikely as the photographs do not show structural damage to the chassis of the trailer. In my view, the photographs relied on do not allow that conclusion to be drawn on the balance of probabilities. Mr Feenan did not inspect the caravan after the accident and the photograph does not rule out a minor bump. However, in the end I accept Mr Fife’s evidence on this issue that an impact at the rear of the caravan did not occur. Mr Jamieson does not, in my view, point to any compelling factor which suggests the contrary;

Mr Fife says that he remained in the overtaking lane with his truck/trailer combination at all times during the overtaking manoeuvre. Mr Pane says that he remained in his lane with his Prado/caravan combination at all times;

Submissions were made by each of the parties suggesting different matters which made it more likely that the other vehicle strayed into the lane of their client’s vehicle. The experts also expressed various views on the issue;

The defendants had only taken delivery of their caravan in July 2016. This was one month prior to the accident. However, the evidence establishes that Mr Pane was an experienced driver having been a courier driver before his retirement. He also had experience in driving a camper trailer behind the Prado. Further, he was coming home from a long trip with the Prado and the caravan which had been uneventful. That trip was some 8,000km. There were no problems experienced on that trip up to 11 August 2016. The evidence in Mr Pane's affidavit suggests that he was a meticulous person with his vehicle. I have not seen any evidence to the contrary.

Mr Fife was a very experienced truck driver. As indicated above, he drove the road in question twice per week. He had considerable experience in driving the truck/trailer combination involved in the accident.
Overall, both drivers were very experienced. I am unable to reach any conclusion that Mr Pane’s lack of time with the caravan contributed in any way to the accident;

A question was raised about the possibility of fatigue in Mr Fife at the time of the accident. It is clear on all the evidence that Mr Pane was well rested at the time of the accident. Although Mr Fife had already been working for eight hours on the day of the accident, he was a professional truck driver who had fairly recently on that day had a break in his driving. I do not consider that there is any evidence that there was fatigue involved in the accident. Mr Fife denied fatigue and said he was awake. I accept that evidence;

The court has to determine the various claims of the parties in relation to the bump or nudge which is alleged. I have rejected the hypothesis that the truck nudged or bumped or collided with the caravan from behind either fully or in the right driver’s side rear corner. Mr Fife gave direct evidence that he felt the caravan bump against the cabin of the truck. He said he was in the overtaking lane at the time but did not see the bumps occur. Clearly the bump or nudge which the Panes felt may have been to the side of the caravan causing it to commence to sway and oscillate.

The plaintiff submits that Mr Pane's police statement which is Exhibit 4 establishes that the caravan with the car began to sway left to right prior to the bump or nudge described by Mr Pane in his statement as “an explosion”. The defendants point to other answers further down in the statement and the statement as a whole in the context of Mr Pane's evidence.

Taking into account Mr Pane's oral evidence, his obvious upset in giving the evidence, and Exhibit 4 as a whole, I am not satisfied that there was swaying in the caravan before the nudge or bump was felt as the statement may initially indicate. I accept the defendants’ submission as to the proper way to read the statement;

Having carefully considered all the evidence and the submissions made by the parties, including their various submissions as to the likelihood of various different scenarios, I am not satisfied on the balance of probabilities where the collision alleged occurred. Each party regarded their vehicle as staying in the proper lane. I accept that is their honest belief. The defendants ask why Mr Pane would have driven any differently to the way he had been driving previously as stated by him and as observed by Mr Fife. The plaintiff goes through the various possibilities set out in the joint report, excludes a number of reasons for the impact, and says that a loss of control or poor control by Mr Pane is the only reasonable answer. Having considered all of the different submissions and noting that I am permitted to make inferences from the evidence, I remain not satisfied on the balance of probabilities as to the location where the bump or bumps or nudges occurred. There is simply, in my view, a lack of evidence to establish which of the different submissions should be preferred. Equally, in my view, I am unable to make any proper inference in favour of the version of one party. Accordingly, I am unable to find to the necessary standard where the bumps or nudges which are alleged occurred on the roadway;

In Briginshaw v Briginshaw (1938) 60 CLR 336 Dixon J stated at 361, in relation to the civil standard of proof, the following: “The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality.” See also Watson v Foxman (1995) 49 NSWLR 315 at 319 and Perpetual Trustees Victoria Ltd v Cox [2014] NSWCA 328 at [107]. Having reviewed the evidence and the submissions, I do not feel an actual persuasion as to where the bumps or nudges occurred. Accordingly, I cannot find to the requisite civil standard in favour of either party’s claim as to the location of the impact or impacts;

The plaintiff says that if there had been an impact from the truck in the Toyota lane there would have been debris left on the road at the initial point of impact. This was the view of Mr Feenan. There is no satisfactory evidence on this issue. A slight nudge by the truck may have left no debris in any case;

Mr Feenan says a nudge from the truck in the Toyota lane would have pushed the Toyota/caravan to the left of the road not the right. In my view, it depends on the nature and extent of the nudge which may have been very slight;

I reject the allegation by the defendants that Mr Fife should have braked in a straight line and not veered to the right because the caravan and Prado would have had no effect on the path of the truck/trailer combination in the overtaking lane. This was an emergency situation. Mr Fife was aware that there was a car and caravan to his left containing people or at least a driver. In my view, and I find, what he did in directing the truck further to the right to avoid what he saw as an encroaching caravan was not unreasonable in all the circumstances.

Further, I do not accept that it has been established that if Mr Fife had braked as is submitted he should have, that the accident would have occurred any differently. There is simply no evidence about the result of any potential braking by Mr Fife and in particular, whether hard braking in an emergency situation could have avoided the accident or the damage which occurred. I accept the defendants' submission that all drivers have to consider braking when an emergency situation is faced but this depends ultimately on the circumstances and what is best to avoid an accident. In the end, I am not satisfied that what Mr Fife did was either unreasonable or that braking would have avoided the accident or the damage which occurred;

The defendants allege that the overtaking manoeuvre was unsafe in all the circumstances. The relevant measurements are set out above in the defendants' submissions which I have summarised. There is some uncertainty as to the additional width of the bull bar and mirrors on the prime mover. The mirrors on the driver's side in overtaking would of course not be relevant as would the bull bar on that side. The defendants submit that the overtaking manoeuvre was unsafe having regard to the limited clearway, the edges of the road and the potential for a catastrophic collision. Having considered the matter carefully in the context of the film, the relevant measurements and the expert evidence, I prefer the plaintiff's submissions on this issue for the following reasons:

Mr Fife was a very experienced truck driver who had driven the road regularly. He was also experienced with this truck/trailer combination. He was of the view that it was safe to overtake;

The road was marked with a broken line permitting overtaking;

There is no evidence that any car was approaching facing the vehicles. All the evidence is to the contrary;

The evidence establishes that the road ahead was straight, in good condition, bitumen sealed, and allowed an adequate line of sight;

The Toyota and the caravan appeared to be driving in a steady and not erratic fashion at a reasonable speed;

There is no suggestion that the Prado and caravan were anything other than situated about in the middle of the left lane;

The measurements allowed a safe leeway for overtaking.

Taking all of these matters into account, I find that the overtaking manoeuvre as assessed by Mr Fife was not unsafe in the circumstances.

According to Mr Fife, there were two bumps between the caravan and the cabin of the truck. There was no adequate photographic evidence which supported this conclusion. However, both Mr and Mrs Pane also gave evidence of a bump. Wherever this occurred, in my view it caused the caravan to start to sway which led to Mr Pane losing control and the Prado and caravan combination jack-knifing in front of the truck and leading to the vehicles coming to rest on the right hand side of the road in a damaged condition;

Quantum has been agreed between the parties depending on the court's findings on other matters.

In the end, I am not satisfied that I am able to find that it is more probable than not that the relevant impact between the vehicles occurred in any particular lane. There are factors pointing each way. In my view, there is not satisfactory direct evidence to allow an appropriate conclusion. There is also not evidence giving rise to a reasonable and definite inference as to the relevant lane. In my view, there are simply conflicting versions from honest witnesses and conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture or surmise.

Consideration

Duty of care

It is clear that Mr Fife owed a duty of care to Mr and Mrs Pane in the operation of the truck/trailers and that Mr Pane owed a duty of care to Mr Fife and to the plaintiff as owner of the truck/trailer combination. A driver of a motor vehicle owes a duty of care to users of the roadway to take reasonable care for their safety having regard to all the circumstances of the case: Manley v Alexander [2005] HCA 79; (2005) ALJR 413 at [11]; Marien v Gardiner (2013) NSWCA 396 at [33].

Breach of duty of care.

The question whether there has been a breach of a duty of care is to be addressed prospectively and taking into account what a reasonable driver in the circumstances would have done, if anything, by way of response to any foreseeable risk of injury or sources of danger to other road users: Marien v Gardiner, above at [34]. In paragraph 162 of Hyjer v Lopes [2018] NSWDC 8 I stated as follows:

[162] Under s 3B(2)(a) of the Civil Liability Act 2002 (NSW) (“CLA”), Divisions 1–4 and 8 and Part 1A (Negligence) apply to “motor accidents”. Accordingly, in determining whether a driver of a motor vehicle has breached his or her duty of care and whether any breach was causative of any injury suffered by a plaintiff in any motor vehicle accident, the court must apply the sections in those divisions including ss 5B, 5C and 5D (relating to causation).

Sections 5B and 5C of the CLA are as follows:

5B   General principles
(1)  A person is not negligent in failing to take precautions against a risk of harm unless:
(a)  the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b)  the risk was not insignificant, and
(c)  in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2)  In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a)  the probability that the harm would occur if care were not taken,
(b)  the likely seriousness of the harm,
(c)  the burden of taking precautions to avoid the risk of harm,
(d)  the social utility of the activity that creates the risk of harm.

5C   Other principles
In proceedings relating to liability for negligence:
(a)  the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and
(b)  the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and
(c)  the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.

Having regard to my factual findings above, I am not satisfied on the balance of probabilities that there was a breach of a duty of care owed by either Mr Fife, for whom the plaintiff is legally responsible, or Mr Pane.
Applying s 5B of the CLA to the facts of the case as found:

The risk of either vehicle hitting the other if it went outside the relevant lane was clearly a foreseeable risk, being the risk of which each driver ought to have known;

The risk was clearly not insignificant if proper control was not kept of the vehicles having regard to the width of and the nature of the road;

In all the circumstances, a reasonable person in the position of both drivers would have taken the precautions of keeping in the proper lane;

There was a high probability that a collision would occur if care was not taken to keep the relevant vehicle in the proper lane;

The harm which could have occurred was serious and possibly could have led to death;

The burden of taking precautions to avoid the risk of harm by keeping in the proper lane was not significant;

The social utility in driving the vehicles was not such that the risk of harm created should be excused.

Having regard to my factual findings above, I am unable to say that there was a breach of a duty of care being a failure to take reasonable care in all the circumstances by either driver due to my inability to be satisfied on the balance of probabilities as to where the collision occurred.
I have also applied ss 5B and 5C of the CLA in relation to the allegation of a failure to brake. In my view in all the circumstances the approach taken by Mr Fife which must be considered in the emergency situation which existed, was not unreasonable. In my view a reasonable person could well have taken exactly the same course which he did which was to avoid what he thought was the encroachment by the Toyota vehicle and caravan into the overtaking lane.
In relation to the overtaking manoeuvre itself, the width of the road was not large. However, taking into account the matters in ss 5B and 5C I do not believe that a reasonable person in the position of Mr Fife would not have overtaken the Toyota and caravan, having regard to the matters which I have set out in my factual findings. While the risk was clearly foreseeable, I do not see the risk as being more than insignificant. I do not regard it as being probable that the harm would occur. I do not regard the manoeuvre as unreasonable.
As to sounding the horn of the truck, there was no satisfactory expert evidence on this issue. Mr Fife said it was not his practice and that it may unduly alarm another driver. I accept his evidence. I do not accept that a reasonable driver would have sounded his horn in the circumstances before attempting to pass.
For those reasons, I find that there was no breach of duty of care by Mr Fife on behalf of the plaintiff or by Mr Pane.

Causation

Sections 5D and 5E of the CLA provide as follows:

5D   General principles
(1)  A determination that negligence caused particular harm comprises the following elements:
(a)  that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b)  that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).

(2)  In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3)  If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:
(a)  the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b)  any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
5E Onus of proof
In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.

Accordingly, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation. This will similarly be the case in relation to the Cross-Claim of the defendants.
As was held in Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182 at [18] the determination of factual causation within s 5D(1)(a) of the CLA involves the application of a “but for” test of causation. That is, a determination that in accordance with the section that negligence was a necessary condition of the occurrence of the harm is a determination that on the balance of probabilities that the harm in fact occurred and would not have occurred absent the negligence.
Assuming I am in error in relation to rejecting the alleged breaches of duty, I consider the question of causation.
If the correct factual finding is that either vehicle encroached into the lane of the other vehicle and impacted with it then in my view that is a breach of the duty of care by the driver of the encroaching vehicle. If for example, the truck and trailer combination encroached into the lane of the defendants and bumped the caravan then it seems clear that this is likely to have been the reason for the caravan/Toyota combination losing control and jack-knifing. Accordingly, causation in my view would be established in those circumstances.
I am not satisfied on the whole of the evidence that if Mr Fife had braked as submitted by the defendants that he should have, that the accident would have occurred in any materially different way to the way it did. To suggest that, is in my view simply speculation in the absence of appropriate evidence. No expert evidence was led on the issue. The truck/trailer combination was going at least 80kph and weighed at least 50 tonnes. I am unable to infer what would have happened in that scenario.
Clearly, if, contrary to my finding, the overtaking manoeuvre itself involved a breach of duty of care, there is a question whether the overtaking itself caused any impact. That is, there is an issue whether the overtaking manoeuvre by Mr Fife caused his truck to go into the defendants' lane and collide with or bump the caravan. I am not satisfied on the balance of probabilities that this occurred. However, obviously if the overtaking manoeuvre had not occurred at all, then the truck would not have been anywhere near the Toyota/caravan combination and therefore the accident would not have occurred. In my view, this is sufficient to establish factual causation under s 5D of the CLA. In that scenario, any appellate court would need to consider contributory negligence by Mr Pane, if alternate factual findings were made.

Contributory negligence

Section 138 of the Motor Accidents Compensation Act 1999 (NSW) (“MACA”) provides relevantly as follows:

138   Contributory negligence—generally
(1)  The common law and enacted law as to contributory negligence apply to an award of damages in respect of a motor accident, except as provided by this section.
…
(3)  The damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case.
(4)  The court must state its reasons for determining the particular percentage.

Sections 5R and 5S of the CLA provide as follows:

5R   Standard of contributory negligence
(1)  The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
(2)  For that purpose:
(a)  the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and
(b)  the matter is to be determined on the basis of what that person knew or ought to have known at the time.

5S Contributory negligence can defeat claim
In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated.

In Davis v Swift [2014] NSWCA 458 Meagher JA (with whom Leeming JA agreed) stated in paragraphs 23-29 as follows:

[23] Section 138(1) of the MAC Act provides that the “common law and enacted law as to contributory negligence” apply to an award of damages in respect of a motor accident, except as provided by that section. The enacted law relevantly is the s 9 of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) (the LR Act) and the ss 5R and 5S of the Civil Liability Act 2002 (NSW) (the CL Act). Section 138(2) and (3) vary the enacted law; the former by requiring findings of contributory negligence to be made in particular cases; and the latter by describing in more general terms the matters to which regard may be had when apportioning responsibility.
[24] The starting point is s 9(1) which provides that if the claimant “suffers damage as the result partly of the claimant’s failure to take reasonable care (contributory negligence) and partly of the wrong of any other person” the damages recoverable in respect of the wrong “are to be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage”. That description of contributory negligence reflects the common law position that the claimant’s lack of care must contribute to the occurrence of the injury or the nature or extent of it: Nance v British Columbia Electric Railway Co Ltd [1951] AC 601 at 611; [1951] 2 All ER 448 at 450 in a passage cited with approval by the majority in Astley v Austrust Ltd (1999) 197 CLR 1; 161 ALR 155; [1999] HCA 6 at [21] .
[25] The approach to the reduction of damages in accordance with the language of s 9(1) was described in Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 at 532–3; 59 ALJR 492 at 494 (Podrebersek) as follows:
The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man … and of the relative importance of the acts of the parties in causing the damage … It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.

[26] Section 138(3) is in different terms to s 9(1) and the other state provisions based on s 1(1) of the Law Reform (Contributory Negligence) Act 1945 (UK). Whereas those provisions require the court when assessing what is “just and equitable” to have regard “to the claimant’s share in the responsibility for the damage”, s 138(3) provides:
(3) The damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case.

[27] Section 74(3) of the Motor Accidents Act 1988 (NSW) is in the same terms. In Nicholson v Nicholson (1994) 35 NSWLR 308 at 333–4; 21 MVR 125 at 145–6, Mahoney JA suggested a reason for the use of the broader language. The concept of contributory negligence involves the plaintiff’s lack of care contributing to the damage. However, the effect of s 74(2), which is in similar terms to s 138(2), is to require a finding of contributory negligence in cases where the act or omission may not have caused or contributed to the damage claimed. Relevantly in that case, s 74(2)(c) required a finding of contributory negligence “where the injured person … was … not wearing a seat belt as required” by law. That being the position, the broader language may have been used to allow the court in such cases to recognise that it would be unjust and inequitable, where there was no such causation or contribution, to reduce the damages otherwise recoverable. The remaining members of the court, Kirby P with Meagher JA agreeing, also held that the finding of contributory negligence required by s 74(2)(c) did not constrain the inquiry as to what was “just and equitable” or prevent consideration of all of the circumstances, including whether the absence of a seat belt contributed to the damage claimed.
[28] In a case that does not involve a finding of contributory negligence made under s 138(2) or deemed fault on the part of the owner or driver, an assessment of what is “just and equitable in the circumstances of the case” will involve, as part of that evaluative process, a comparison of the kind described in Podrebersek. See the discussion per Giles JA in Mackenzie v Nominal Defendant (2005) 43 MVR 315; [2005] NSWCA 180 at [54]–[63]. In Joslyn v Berryman (2003) 214 CLR 552; 198 ALR 137; 38 MVR 41; [2003] HCA 34 at [157] per Hayne J considered s 74(3) to require the undertaking of such a comparison: compare Kirby J at [133] .
[29] Section 5R of the CL Act, which by s 3B(2)(a) applies to motor accidents, provides that the principles applicable in determining whether a person has been negligent, which include those in s 5B, also apply in determining whether the person who has suffered harm has been contributorily negligent in failing to take precautions against the risk of harm which materialised and resulted in injury. As Basten JA observed in Gordon v Truong (2014) 66 MVR 241; [2014] NSWCA 97 at [15], a case involving a collision between a pedestrian and a motor vehicle, the existence and extent of a claimant’s contributory negligence is to be assessed by reference to the risk of harm which is the subject of his or her claim for damages, and the precautions that a reasonable person in the claimant’s position would have taken against that risk. Section 5S provides that in apportioning responsibility a court may determine a reduction of 100% in the claimant’s damages by reason of contributory negligence.

See also Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72 at [161]-[162]; Boateng v Dharamdas [2016] NSWCA 183 at [129].
Accordingly, under s 5R of the CLA, a court is required in determining whether a person is contributorily negligent, to apply the provisions of ss 5B and 5C of the CLA which I have set out already above.
Having regard to my findings of fact, in my view I am unable to say that the parties were contributorily negligent as alleged. First, I am unable to find on the balance of probabilities where the impact occurred which led to the caravan to swerve. Secondly, I am unable to find that if there was a breach of duty in failing to apply the brakes by Mr Fife that it has any causal relevance or causal potency in relation to the accident: see Podrebersek v Australian Iron & Steel Pty Ltd [1985] 10 HCA 34; (1985) 59 ALR 529 at [8]-[10]. Thirdly, I do not agree that the failure to operate the horn by Mr Fife was negligent and a failure to take reasonable care for his own safety and the safety of his truck/trailer combination. Mr Fife had been following Mr Pane for some considerable distance and for a number of minutes. In my view it was reasonable for Mr Fife to assume that Mr Pane would have seen him in his rear vision mirror in that time and been aware of his presence. I also accept Mr Fife's comment that the sounding of the horn may have alarmed the driver of the car. I also do not believe that the overtaking manoeuvre could be seen to be either negligent or contributorily negligent as alleged.
In relation to the Defence to Cross-claim, there is no evidence that Mr Pane drove at varying speeds which were erratic in the circumstances: see paragraph 6 particular (a).
Accordingly, I do not believe that a finding of contributory negligence is appropriate on my factual findings.
As there was no breach established by either party then each of Mr Pane and Mr Fife could not be considered a concurrent wrongdoer in relation to Mrs Pane’s claim.

Damages

Therefore, no damages are to be awarded to either party. However, if I am in error there are agreed facts which became Exhibit 3 in the proceedings. It is an agreed fact that as a result of the accident the plaintiff has suffered damages of $226,203.04 exclusive of GST and before interest and costs. It is also agreed that Mr Pane has suffered damages of $63,427.74 exclusive of GST and before interest and costs as a result of the accident. It is further agreed that as a result of the accident Mrs Pane has suffered damages of $47,312.85 exclusive of GST and before interest and costs. I make findings in accordance with these agreed facts.

Disposition

For the above reasons, I make the following orders:

The Second Further Amended Statement of Claim is dismissed. Judgment for the defendants;

The plaintiff is to pay the defendants' costs of the Second Further Amended Statement of Claim proceedings as agreed or assessed;

The Further Amended Statement of Cross-Claim is dismissed. Judgment for the cross-defendant;

The cross-claimants/defendants are to pay the cross-defendant’s/plaintiff's costs of the Cross-Claim proceedings as agreed or assessed;

Liberty to the parties to apply to the court within 14 days for a different costs order to those set out in Orders 2 and 4 above;

Exhibits to be returned in 28 days.

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Decision last updated: 09 November 2018

Medium Neutral Citation:	A Fife & Co Pty Ltd v Pane [2018] NSWDC 332
Hearing dates:	10 September – 12 September 2018
Date of orders:	02 November 2018
Decision date:	02 November 2018
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) The Second Further Amended Statement of Claim is dismissed. Judgment for the defendants; (2) The plaintiff is to pay the defendants' costs of the Second Further Amended Statement of Claim proceedings as agreed or assessed; (3) The Further Amended Statement of Cross-Claim is dismissed. Judgment for the cross-defendant; (4) The cross-claimants/defendants are to pay the cross-defendant’s/plaintiff's costs of the Cross-Claim proceedings as agreed or assessed; (5) Liberty to the parties to apply to the court within 14 days for a different costs order to those set out in Orders 2 and 4 above; (6) Exhibits to be returned in 28 days.
Catchwords:	Torts – negligence – property damage claim to motor vehicles arising from motor vehicle accident – quantum not in issue – liability in issue – different factual accounts – whether liability can be determined on the evidence
Legislation Cited:	Civil Liability Act 2002 (NSW) Motor Accidents Compensation Act 1999 (NSW)
Cases Cited:	Boateng v Dharamdas [2016] NSWCA 183 Briginshaw v Briginshaw (1938) 60 CLR 336 Croucher v Cachia [2016] NSWCA 132 Davis v Swift [2014] NSWCA 458 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72; Hyjer v Lopes [2018] NSWDC 8 Manley v Alexander [2005] HCA 79; (2005) ALJR 413 Marien v Gardiner (2013) NSWCA 396 Perpetual Trustees Victoria Ltd v Cox [2014] NSWCA 328 Podrebersek v Australian Iron & Steel Pty Ltd [1985] 10 HCA 34; (1985) 59 ALR 529 Rail Corporation New South Wales v Donald [2018] NSWCA 82 Sangha v Baxter [2009] NSWCA 78 Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182 Watson v Foxman (1995) 49 NSWLR 315
Category:	Principal judgment
Parties:	A Fife & Co Pty Ltd (Plaintiff) Nino Pane (First Defendant) Joan Pane (Second Defendant)
Representation:	Counsel: P Stockley (Plaintiff) J Gruzman (Defendant) Solicitors: Hedges Legal (Plaintiff) De Mestre & Company Solicitors (First and Second Defendants)
File Number(s):	2017/00048415