Anedda v Horsey

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PERSONAL INJURIES LIST

S ECI 2018 00782

KYLE ANEDDA	Plaintiff
v
DENISE HORSEY	Defendant

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JUDGE:	Zammit J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 – 23 July 2019, 24 September 2019 – 4 October 2019, 21 October 2019
DATE OF JUDGMENT:	14 November 2019
CASE MAY BE CITED AS:	Anedda v Horsey
MEDIUM NEUTRAL CITATION:	[2019] VSC 729

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NEGLIGENCE – Transport accident – Collision between street sweeping truck and car – Whether defendant’s vehicle crossed the continuous double dividing lines – Reliability of witnesses – Expert Evidence – Evidence Act 2008 s 140 – Briginshaw v Briginshaw (1938) 60 CLR 336 – NOM v DPP (2012) 38 VR 618.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Harrison QC with Mr J Fitzpatrick	Slater and Gordon
For the Defendant	Ms M Britbart QC with Ms A Wood	Transport Accident Commission

TABLE OF CONTENTS

Introduction.......................................................................................................................... 1
The claim............................................................................................................................... 2
The pleadings.......................................................................................................... 2
The plaintiff’s alternative claim of negligence................................................... 2
The case at trial....................................................................................................... 3

Applicable principles.......................................................................................................... 3
Duty of care............................................................................................................. 3
Standard of proof................................................................................................... 4

The evidence....................................................................................................................... 12
For the plaintiff..................................................................................................... 12
For the defendant................................................................................................. 12

Plaintiff’s evidence............................................................................................................ 12
Defendant’s evidence........................................................................................................ 23
Submissions relating to the plaintiff and defendant’s evidence................................. 31
Plaintiff’s submissions......................................................................................... 31
Defendant’s submissions..................................................................................... 32

Findings in relation to the plaintiff and defendant’s evidence................................... 33
Expert evidence.................................................................................................................. 40
Physical evidence at the collision site................................................................ 41
Animation and simulations based on physical evidence............................... 43

Submissions relating to the expert evidence................................................................. 52
Plaintiff’s submissions......................................................................................... 52
Defendant’s submissions..................................................................................... 53

Findings in relation to the expert evidence................................................................... 54
Conclusion.......................................................................................................................... 60

Introduction

On 21 February 2013 the plaintiff, Kyle Anedda, was driving a black BMW sedan (the ‘BMW’) in a southerly direction along the South Gippsland Highway (‘SGH’) in Foster North, when his vehicle collided with a Hino truck (the ‘Hino’) being driven in a northerly direction by the defendant, Denise Horsey (‘the collision’).

Immediately prior to the collision, the plaintiff’s BMW was travelling downhill and the defendant’s Hino was travelling uphill. The Hino was not an ordinary truck; it was a street sweeping truck, fitted with left and right side controls and cleaning apparatus which were suspended beneath the truck.

As a result of the collision, the Hino rolled over and landed on top of a third vehicle, a Toyota, leading to the death of the driver of that vehicle. An investigation was carried out by the Victoria Police Major Collision Investigation Unit (‘MCIU’), leading to a criminal prosecution of the plaintiff and his subsequent acquittal by a jury.

On the first day of trial, senior counsel for the plaintiff indicated that should liability be established, parties had reached an agreement as to quantum of damages. Liability was therefore the only issue in this case.

The plaintiff claims the collision was caused by the negligence of the defendant, who veered into his lane on the roadway. The defendant denies she was negligent. She says the collision was caused by the plaintiff’s own negligence, by allowing the BMW he was driving to veer into her lane and collide with the Hino.

I attended a view on the second day of trial, which included an inspection of the collision site and of the SGH on either side of the collision site. As part of the view, I drove my motor vehicle through the collision site in both directions along the highway, and also sat in the front passenger seat of my motor vehicle while my Associate drove through the collision site in both directions.

For the reasons that follow, I have found the plaintiff has not established the defendant drove her Hino negligently. The proceeding must be dismissed.

The claim
The pleadings

The essence of the plaintiff’s claim is that the Hino being driven by the defendant veered into the opposing lane of traffic and collided with the plaintiff’s car. The particulars of negligence relevantly include that the defendant: failed to keep a proper lookout; failed to keep the Hino under proper control; failed to alter the course and speed of the Hino so as to avoid the collision; failed to apply the brakes of the Hino in time to avoid the plaintiff; and failed to exercise reasonable care and skill in the driving, management, and control of the Hino. As a result, the plaintiff claims he has physical injuries to his spine, right ankle, right clavicle, right shoulder and thigh, internal injuries, and psychological injuries.

The defendant admits the collision took place. However, she denies she was negligent, and claims the collision occurred because the plaintiff’s BMW veered into her lane.

The plaintiff’s alternative claim of negligence

In closing submissions, the plaintiff contended that even if the Court found the defendant’s actions did not cause the collision, the plaintiff could still succeed on an alternative claim of negligence, namely that the defendant failed to take evasive action which could have avoided the collision. The plaintiff’s new and alternative allegation of negligence was not pleaded.

The claim of negligence pleaded at paragraph two of the plaintiff’s statement of claim states:

On or about 21 February 2013, the plaintiff was driving on the SGH in Foster North. A Hino driven by the defendant veered into the opposing lane and collided with the plaintiff’s motor vehicle.

Paragraph three of the statement of claim by reference to paragraph two, sets out the particulars of negligence of the defendant.

At no stage did the plaintiff make an application to amend his pleadings. The defendant did not submit that she was unable to respond to the new claim of negligence, despite the timing. For the reasons that follow, I reject the plaintiff’s evidence that the defendant could have taken evasive action to avoid the collision.

The case at trial

The issues in dispute had narrowed considerably by the time the matter came on for trial. The trial ran for a total of fifteen days. Upon commencement of the sixth day of trial, the plaintiff made an application that the trial be adjourned to allow Dr George Rechnitzer, the expert witness called by the plaintiff, to provide a further opinion, and to allow the defendant’s expert to respond to any further material. The defendant opposed this application. I granted an adjournment until September 2019.

It is useful to note that this case was run in two discrete parts.

The first was the contest between the plaintiff and the defendant’s evidence and their respective versions of events as to how the collision occurred.

The second was on the basis of the physical evidence at the collision scene and any inferences that may be drawn from that evidence. This part of the trial primarily involved the evidence of two experts, Dr George Rechnitzer and Detective Sergeant Dr Janelle Hardiman.

On the basis of the plaintiff’s and defendant’s evidence, as well as the evidence of the witnesses at the collision scene and their contemporaneous notes, I have concluded that the BMW was on the wrong side of the road at the point of impact and therefore find that the defendant was not negligent. Nevertheless, I will consider in some detail each expert witness’s opinion.

Applicable principles
Duty of care

There was no dispute that all road users owe a duty to other road users to take reasonable care and not expose them to unnecessary or unreasonable risk of injury. It was common ground at trial that the defendant was under a duty to take reasonable care in the driving and management of her Hino so as to not injure the plaintiff. Although not in dispute, it is convenient to say something about the nature and scope of this duty, since it will naturally inform the question of breach.

The plaintiff bears the burden of proof to establish on the balance of probabilities that the defendant was in breach of her duty of care to the plaintiff. A standard of perfection was not required of the defendant; she was only required to act reasonably in all the circumstances. This is an objective test.

Standard of proof

In view of submissions made by the defendant, it is appropriate to briefly consider the standard of proof which was applicable in this case.

Section 140 of the Evidence Act 2008 sets out the civil standard of proof as follows:

(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account –
(a)the nature of the cause of action or defence; and
(b)the nature of the subject-matter of the proceeding; and
(c)the gravity of the matters alleged.

The considerations set out in sub-section 140(2) reflect the principles discussed by Dixon J in Briginshaw v Briginshaw:

[W]hen the law requires 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 … it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.[1]

[1](1938) 60 CLR 336 (Dixon J) (‘Briginshaw’) 361–2; Linke v Linke [2019] VSCA 210 [112].

As the Court of Appeal stated in NOM v DPP:

While a fact finder may take into account a number of considerations for the purposes of informing the statutory standard of proof under s 140(2), he or she must take into account the three specified considerations set out in s 140(2)(a)-(c). While these do not include all the considerations Dixon J proffered as informing the civil standard of proof in Briginshaw, it is open to the fact finder under s 140(2) to take into account additional relevant matters to those specifically identified, such as the inherent unlikelihood, or otherwise, of the occurrence of the matter of fact alleged.
…
Accordingly, whether it be by virtue of the common law or s 140, the civil standard of proof subject to the principle in Briginshaw is the relevant conceptual standard to which a fact-finder must satisfy him or herself in proceedings of this nature. Mere mechanical comparison of probabilities independent of a reasonable satisfaction will not justify a finding of fact. The fact finder must feel an actual persuasion of the occurrence or existence of the fact in issue before it can be found.[2]

[2](2012) 38 VR 618, 654–6 (emphasis added).

There is not a different standard of proof in cases involving ‘grave’ allegations; the standard remains as set out in s 140 of the Evidence Act.[3] However, the Briginshaw principles and s 140(2) stipulate that:

the nature and quality of the evidence that must be adduced before a court can be satisfied that a fact is established on the balance of probabilities will be affected by the seriousness of the allegations involved and their consequences.[4]

Ordinarily, ‘the more serious the consequences of what is contested in the litigation, the more a court will have regard to the strength and weakness of evidence before it in coming to a conclusion’.[5] As Mason CJ, Brennan, Deane and Gaudron JJ elaborated in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (‘Neat Holdings’):
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary ‘where so serious a matter as fraud is to be found’. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.[6]

[3]Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 CLR 445 (‘Neat Holdings’); Re Tang (2017) 52 VR 786, 806–7 [83].

[4]Re Tang (2017) 52 VR 786, 806–7 [83].

[5]Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466, 480 [30].

[6]Neat Holdings (1992) 110 CLR 445, 445–6 (citations omitted); See also Nguyen v Tran [2018] NSWCA 215 [62].

Citing Neat Holdings, in Bibby Financial Services Australia Pty Limited v Sharma, the Court of Appeal of New South Wales noted that s 140(2) does not change the standard of proof, ‘but merely reflects the perception that members of the community do not ordinarily engage in serious misconduct’.[7] Moreover, consideration of the ‘gravity of the matters alleged’ in s 140(2)(c) is not limited to circumstances involving criminal conduct or fraud.[8]
[7]Bibby Financial Services Australia Pty Limited v Sharma [2014] NSWCA 37 [205].
[8]Ibid [204].

Circumstances in which courts have had particular regard to the strength of the evidence in accordance with the Briginshaw principles, include allegations of fraud,[9] suicide,[10] fabrication of false evidence,[11] intentional deception by an officer of the court,[12] sexual harassment,[13] professional misconduct,[14] racial discrimination,[15] destruction of a will,[16] breaches of consumer protection laws resulting in pecuniary penalties,[17] and applications to propound informal documents such as wills.[18]
[9]See, eg, Di Sisto v Skyworld Development Pty Ltd [2005] NSWSC 723 [42].
[10]Australian Associated Motor Insurers Ltd v Elmore Haulage Pty Ltd (2013) 39 VR 465, 476 [55].
[11]New South Wales v Hathaway [2010] NSWCA 184 [263].
[12]Bale v Mills (2011) 81 NSWLR 498, 517 [73].
[13]Bibby Financial Services Australia Pty Ltd v Sharma [2014] NSWCA 37 [202]–[208] (Gleeson JA); Vergara v Ewin (2014) 223 FCR 151, 159 [28].
[14]Gad v Health Care Complaints Commission [2002] NSWCA 111 [32]–[40]; Belle v Chiropractors Board of SA [2006] SASC 250 [13]–[15].
[15]Sharma v Legal Aid (Qld) [2002] FCAFC 196 [40].
[16]McCann v McCann [2013] NSWSC 78 [8].
[17]Reardon v Magistrates’ Court of Victoria (2018) 56 VR 266, 298 [136].
[18]Estate of Peter Brock [2007] VSC 415 [45]–[47] (Hollingworth J).

A number of cases have discussed the Briginshaw principles in the context of alleged negligence. In Pendrigh v Canon Australia Pty Ltd [2000] VSC 511 the plaintiffs alleged negligent manufacture of a typewriter that was said to have caused a house fire. In considering the standard of proof required to establish the claim, Eames J stated:

I accept the contention of counsel for the defendant that when applying the standard of proof of the balance of probabilities, I should adopt the gloss applied by Dixon J in Briginshaw v Briginshaw, that before accepting that a matter had been proved I should feel an actual persuasion of its occurrence or existence. There must be a belief in the reality of the disputed proposition. It is appropriate to exercise care, because a finding against the defendant may have serious consequences for its reputation and that of its parent and related companies, worldwide. Having not before had a finding of heat or fire failure of this transformer an adverse decision could have serious financial consequences, worldwide, for the defendant.[19]

[19]Pendrigh v Canon Australia Pty Ltd [2000] VSC 511 [119].

In Pallier v Solomans (No 2),[20] the plaintiff suffered serious injuries as a passenger in a motor vehicle accident. The defendant was the driver at the time, and another passenger was killed in the accident. Although the defendant conceded that he was negligent, the extent of his negligence was in dispute. The plaintiff asserted that the defendant deliberately drove part way off the road to ‘take out a guidepost’. The defendant denied that it was a deliberate act, instead claiming that the vehicle left the road due to a combination of his intoxication and distraction. He contended that the ‘Briginshaw standard’ should apply if Hamill J was to make the finding that he deliberately drove off the road.
[20][2014] NSWSC 1524.

Hamill J found that the defendant deliberately drove off the road, describing the action as ‘negligence of an extremely high order’. As to the submission that the ‘Briginshaw standard’ should apply, his Honour stated:

The authorities stress that in a civil case, where reliance is placed on circumstantial reasoning, the evidence must go further than ‘the raising of conflicting inferences of equal degrees of probability’ ...

If there is a different standard of proof - which is doubtful in view of what was said in Neat Holdings ... it makes no practical difference to the resolution of the present case.
I am comfortably satisfied on the clear and cogent evidence of Constable Hooley and the other evidence to which I have referred that the defendant deliberately drove the vehicle off the roadway in order to scare the boys in the back seat of the car. It is not a case involving ‘inexact proofs, indefinite testimony, or indirect inferences’: Briginshaw v Briginshaw at 361-362. Whether the defendant lied on oath, had a convenient memory of events or was simply unable to remember as a result of his deep remorse at having killed his friend, is not a matter that is necessary to resolve. As to making a finding that the defendant committed a criminal offence, that is not a controversial proposition - he pleaded guilty to such an offence and has been sentenced for it. Having said that, he was sentenced (or so it seems) on the basis of a less serious factual basis to that which I find (on balance) actually occurred. In that regard, the evidence goes well beyond the raising of conflicting inferences of equal degrees of probability.[21]

[21]Ibid [69]–[71]; An appeal was upheld in Solomons v Pallier [2015] NSWCA 266, but not on this issue, at [40].

His Honour referred to Asim v Penrose [2010] NSWCA 366. In that case the plaintiff sustained catastrophic injuries when he was attempting to get into a taxi (‘the culpable taxi’) that drove away. At issue was whether a certain taxi owner was liable, or the Nominal Defendant. The driver of the taxi denied that he was involved in the accident. It was submitted by the taxi owner, and accepted by the Court of Appeal, that for the Court to be satisfied that his vehicle was the culpable taxi the ‘Briginshaw standard’ needed to be satisfied.[22] As summarised by Tobias JA:

If Mr Rana was the driver of the culpable taxi, then there is no doubt, and the contrary was not suggested, that he was guilty of serious criminal conduct and, further, that he had given perjured evidence at the trial before the primary judge. The drawing of inferences on the balance of probabilities that involves the finding of such conduct should not lightly be done unless the evidence, particularly the circumstantial evidence, justifies such a course. That statement in Neat Holdings is consistent with the provisions of s 140(2)(c) of the Evidence Act which entitles the Court to take into account the gravity of the matters alleged in deciding whether a party’s case has been proved on the balance of probabilities.[23]

[22]Asim v Penrose [2010] NSWCA 366 [141].

[23]Ibid [179].

Nguyen v Tran [2018] NSWCA 215 involved a motor vehicle accident and conflicting accounts of who was in the vehicle. In discussing the trial judge’s misapplication of s 140, Beazley P stated that care must be taken when stating the requirements of s 140(2):

In accordance with s 140(1), ‘the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities’. Section 140(2) provides for the matters that a court may take into account in deciding whether it is so satisfied, including the ‘gravity of the matters alleged’, picking up the language of Briginshaw.
However, care must be taken when stating the requirements of proof in a case in which s 140(2) is invoked. The High Court was alert to this in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd in the passage I have extracted above. Whilst acknowledging that there were authoritative statements using the language of ‘clear or cogent or strict proof’, the plurality’s observations were in significantly more moderate terms, namely, that a court should not ‘lightly make [such] a finding’.
Nor does s 140 refer to a requirement that there be “‘clear or cogent or strict proof’ in order to make out on the balance of probabilities [the appellant’s] allegation”, as her Honour, at [125], considered was required. Rather, the nature of the defence, including the gravity of the denial that the respondent was in the car, was a matter for her Honour’s consideration in determining whether she was satisfied that the respondent had proved his claim.[24]

[24]Nguyen v Tran [2018] NSWCA 215 [62]–[64] (emphasis in original).

In Geyer v Redeland Pty Ltd [2013] NSWCA 338, a case in which the plaintiff sustained injuries after being knocked into by another person and falling down stairs, the principles of Briginshaw were expressly stated not to apply.[25]
[25]Geyer v Redeland [2013] NSWCA 338 [51]; See also Clark v Stingel [2007] VSCA 292, a civil claim for damages caused by rape, in which the jury charge upheld upon appeal drew a distinction between the grave allegations at hand, and deciding which of two motorists have been negligent in a motor vehicle accident.

Of final note, in Morley v Australian Securities and Investment Commission [2010] NSWCA 331, in the context of alleged contraventions of the Corporations Act 2001 (Cth), the Court of Appeal of New South Wales noted that the underlying allegation was essentially negligence with respect to the issue of a news release. Such conduct was not seen as equivalent to fraud, or crime, sexual abuse or dishonesty for the purposes of Briginshaw analysis. While a higher level of attention may have been required, given the particular commercial context of the news release, this level was seen as not necessarily attracting the principles referred to in Neat Holdings. Instead, it was the imposition of penalties and orders for disqualification which was said to justify the Briginshaw principles.[26] This discussion does not appear to have been the subject of criticism in the subsequent High Court appeal.[27]
[26]Morley v Australian Securities and Investment Commission [2010] 247 FLR 140, 174–5 [741]–[742]; appealed but not on this issue.
[27]Australian Securities and Investment Commission v Hellicar (2012) 247 CLR 345; see NOM v DPP (2012) 38 VR 618, 655 [121]–[122].

In this case, the defendant submitted that due to the grave nature of the allegations levelled against her, I should only be satisfied on the balance of probabilities by relying on ‘strong’ evidence which is cogent, unambiguous and compelling.

The defendant submitted that the severity of the allegations is clear by the fact that the plaintiff was charged by Victoria Police with dangerous driving causing death.[28] In addition, she pointed to the plaintiff’s ‘bizarre’ allegation that the defendant’s Hino had suddenly and without explanation veered into the opposing lane.
[28]Pursuant to Crimes Act 1958 s 319.

The defendant submitted that, while allegations of fraud are often used as an example of more ‘serious’ allegations, the requirement for ‘stronger’ evidence is not limited to those types of cases. Although the defendant could not identify a transport accident case in which the evidence was required to be ‘stronger’ than usual due to the seriousness of the allegations made, she maintained that the circumstances of this case are sufficiently serious so as to require stronger evidence.

The plaintiff agreed that this is a case in which I must feel an ‘actual persuasion’ of the existence of the fact in issue before it can be found.[29] However, the plaintiff submitted that this is not a case in which ‘stronger’ evidence is required as the allegations against the defendant are not analogous to allegations of fraud. The plaintiff submitted that the collision was unintended and not within the contemplation of any party, as opposed to fraud, where a dishonest act is deliberately perpetrated. The plaintiff referred to the High Court decision of Nesterczuk v Mortimore,[30] in which two motor vehicles were travelling along a road in opposite directions when they collided. Both parties said they were on the correct side of the road when the other party ‘swerved’ into their lane, causing the collision. Justice Kitto said, ‘in a civil case such as we have here it is enough if the tribunal, on a balance of probability, believes … that the fact is as alleged.’[31]
[29]Briginshaw (1938) 60 CLR 336, 361 (Dixon J); NOM v DPP (2012) 38 VR 618, 654–5.
[30](1965) 115 CLR 140.
[31]Ibid 149 (Kitto J).

In my view, the considerations in s 140(2) do not require stronger evidence than is usually necessary to conclude that the allegations in the current circumstances have been established. While the approach of Eames J in Pendrigh v Canon Australia Pty Ltd suggests that criminal conduct or dishonesty are not necessarily required to warrant caution regarding the strength of the evidence in the context of alleged negligence, it is of some note that such issues were of significance in Pallier v Solomans (No 2) and Asim v Penrose.

On the defendant’s version of events, the collision occurred within ten seconds of her seeing the BMW. There is no evidence that the defendant was intoxicated, fatigued, or texting while driving. It was not alleged that she engaged in criminal conduct. Nor is the plaintiff’s case suggestive of negligence ‘of an extremely high order’. Regrettably, the circumstances of this transport accident are not uncommon. Further, criminal charges were brought against the plaintiff, not the defendant. The seriousness of such charges cannot be imported into this proceeding, especially in circumstances where the plaintiff was not convicted of any crime. While the nature of the case is serious, and as such, a finding against the defendant would be significant, it could not be said that she engaged in ‘serious misconduct’. Additionally, the circumstances are distinct from the criminal conduct apparent in Pallier v Solomans (No 2) and Asim v Penrose.

My findings below have been reached by balancing the totality of the evidence, which includes contemporaneous notes made by independent parties, the plaintiff’s evidence, and the defendant’s evidence. I have had due regard to the factors set out in s 140(2) of the Evidence Act. The totality of this evidence does not provide a requisite level of satisfaction. As such, even if I am incorrect in concluding that the nature of the case and gravity of the allegations do not justify greater consideration of the strength of the evidence to establish the plaintiff’s claim, the claim would still have failed.

The evidence

The following witnesses gave viva voce evidence in this trial.

For the plaintiff

(a) Kyle Anedda, the plaintiff;

(b) Julie Anedda, the plaintiff’s mother; and

(c) Dr George Rechnitzer, forensic and safety engineer.

For the defendant

(a) Denise Horsey, the defendant;

(b) Detective Sergeant Dr Janelle Hardiman;

(c) Detective Leading Senior Constable Shane Miles;

(d) Senior Sergeant Jason Hullick; and

(e) John Barrie, mobile intensive care paramedic.

Plaintiff’s evidence

The day before the collision, the plaintiff started work at approximately 9:30am with his father in Port Welshpool. He left work at approximately 2:30pm and drove to his partner’s house, in Skye, near Carrum Downs. His partner had a baby who was one year old. That night, he went to bed at approximately 9:30pm. He slept in a separate room so as to avoid being woken by the baby.

On the day of the collision, 21 February 2013, the plaintiff rose between 5:00am and 5:30am. He left his partner’s house at about 6:30am. He drove his partner’s BMW, as she had asked him to do a mechanical check-up on it.

The plaintiff said that the drive from Skye to Welshpool usually takes him around two hours. On the way he stopped in Leongatha at a public toilet. Leongatha is approximately four kilometres from the collision site.

The plaintiff reached Foster North at approximately 7:45am. He described the roads as being ‘damp’ and ‘windy’.[32] He said the road approaching the collision site is hilly and can be slippery at times.[33]
[32]Transcript of Proccedings, Anedda v Horsey (Supreme Court of Victoria, S ECI 20018 00782, Zammit J, 16 July 2019 – 23 July 2019, 24 September 2019 – 4 October 2019, 21 October 2019) 7.6 (‘T’).
[33]T7.12.

The plaintiff was familiar with the stretch of road from Leongatha to the collision site and he had personally driven on it around ‘a hundred times’.[34] The speed limit on the SGH was 100 km/h. He said he would definitely drive slower if it was raining, and might drive a little faster if it wasn’t wet.[35]
[34]T7.25.
[35]T46.13–15.

The plaintiff recalled that the collision site occurred on a ‘straight’. Prior to the straight there was a bend, and before that was another straight. The road sloped downward from the bend to the collision site.[36] The plaintiff recalled seeing a car in his rear mirror as he drove along the straight before the bend.[37] The car he saw was the Toyota, whose driver died in the collision. He checked his speedometer and saw that he was travelling between 90 to 95 km/h. In cross-examination, he agreed he was travelling 90 to 95 km/h as he drove along the straight before the bend, maintained that speed after he saw the Toyota, and did not slow down from the time he looked at his speedometer until the collision.[38]
[36]T48.1–6.
[37]T47.1–2.
[38]T47.1–11.

The plaintiff’s evidence was that he saw a large red ‘Reduce Speed’ sign as he drove along the straight and towards the bend. He agreed that he did not reduce his speed in response to the sign.

In cross examination, he disagreed that he most likely picked up some speed during the downhill drive through the bend and into the straight where the collision occurred. He agreed that he didn’t look at his speedometer at that time and could not recall trying to slow his vehicle down in that stretch of road.[39]
[39]T48.8–18.

The plaintiff gave evidence that he first saw the Hino when he was 100 to 150 metres away from it.[40] At this time he was inside his lane,[41] and there was one vehicle sitting reasonably close behind him.[42] The plaintiff denied overtaking that vehicle at any stage.[43]
[40]T47.3–4.
[41]T10.20–21.
[42]T17.12–23.
[43]T17.24.

The plaintiff said that when he was approximately 20 metres from the Hino, it veered into his lane without warning.[44] The plaintiff said he did not have time to take evasive action and the driver’s side front of the Hino collided with his BMW.[45]
[44]T18.6–18.
[45]T18.23–31.

After the collision, the plaintiff said that the BMW driver’s door ended up against the guardrail on the south side of the road. He was unable to open the door and exited the BMW from the passenger’s front door. A man then approached him from the other side of the road. The man told him he had called triple zero and gave the plaintiff a phone to use. The plaintiff called his partner and his parents. He told his mother that he had been in an accident, that he was upset and could not really speak.[46]
[46]T21.4–5; 108–10.

The plaintiff sat on an embankment in front of the BMW. A couple who lived nearby stayed with the plaintiff until the ambulance arrived. The plaintiff noticed another person, an older female, standing on the northbound side of the road, yelling ‘why me, why me.’[47] The plaintiff observed the Hino was on top of the Toyota, ‘back up the road’.[48] The plaintiff saw cars driving through the collision site, including a B-double truck, a bus, and five or six cars.[49]
[47]T22.3–4.
[48]T21.7.
[49]T23.25–26.1

Just prior to the ambulance arriving at 8:15am, Sergeant Coates walked past the plaintiff, said ‘Oh, it’s you’, and continued walking.[50]
[50]T23.13–14.

Once the ambulance arrived, the plaintiff was inspected by a paramedic (John Barrie) while sitting on the embankment. He then walked over to the ambulance and went inside. While in the ambulance, Sergeant Coates asked the plaintiff if he wanted to do a breath test, which he completed.[51]
[51]T24.30–25.6.

In cross-examination, the plaintiff agreed that the paramedic asked him for his name, address, date of birth, and whether he was in pain, and he was able to respond correctly.[52] However, the plaintiff said he could not recall the paramedic asking him whether he remembered what happened.[53]
[52]T72.3–12.
[53]T71.13–14.

It was put to the plaintiff that the paramedic asked him what had happened and he responded that he could not remember.[54] The plaintiff conceded he may have said this.[55]
[54]T72.2–6.
[55]T72.2–9.

The plaintiff agreed that while he was ‘shaken up’ at the time, he was clear about what had happened and, if someone asked him what happened, he would have told them that someone had swerved onto his side of the road.[56]
[56]T71.22–27.

It was put to the plaintiff that Sergeant Coates asked him what happened and he said ‘I was coming down a hill and I’d seen a truck and clipped it, and don’t know if he hit me or I hit him.’ The plaintiff ultimately conceded that he may have said those words, however he did not recall Sergeant Coates asking him what happened.[57]
[57]T73.27–74.21.

The plaintiff could not recall having a conversation with Senior Sergeant Hullick while he was in the ambulance. He accepted that, in response to the Senior Sergeant’s question, ‘Do you remember what happened?’ he may have said, ‘I was coming down the hill and I saw a truck coming up the hill. Then I don’t remember much after that’.[58] He could not provide any reason why he would not have told Senior Sergeant Hullick that the Hino had swerved into his lane.[59]
[58]T76.10–15.
[59]T77.15–18.

In cross-examination the plaintiff said he believed he told a police officer at the collision scene that the Hino veered into his lane.[60] However, later in cross-examination his evidence was that he did not recall telling a police officer at the collision scene that the Hino veered into his lane.[61] He was asked:
[60]T81.10–31; 82.1.
[61]T90.30.

Question:Why did you say that yesterday if you don’t remember it?

Answer: I don’t know.
Question:I suggest to you that the reason is that you know that at the time of this accident you did not give a version at all of what happened, and you know that when you spoke to the police a couple of weeks later, you gave one version of what happened, and you’ve given another version to the court today. And you know that all that seems a bit strange, doesn’t it?

Answer: No. That’s your opinion.

The plaintiff’s evidence was that he was taken from the collision site to Foster Hospital, accompanied by a police officer. From Foster Hospital he was transferred to Dandenong Hospital. There was no detail in the hospital records, of either Foster Hospital or Dandenong Hospital, that the Hino had veered on the wrong side of the road.[62]
[62]T95.18; Exhibit D1.

In re-examination the plaintiff said he couldn’t recall anyone asking him which side the Hino was on,[63] where he thought the collision occurred, or whether he had overtaken shortly before the collision.[64]
[63]T100.20–26.
[64]Ibid.

The first record of the plaintiff saying the Hino had veered onto the wrong side of the road appears in the ambulance notes of his transfer from Foster Hospital to Dandenong Hospital sometime after 2:30pm:

22YOM [year old male] AT FOSTER HOSPITAL. IHT [inter-hospital transfer] TO DDH [Dandenong Hospital]. PT [Patient] STATES AT APPROX 0800AM HE WAS INVOLVED IN AN RTA — THREE VEHICLES. PT TRAVELLING APPROX 90 KM/HR WEARING SEATBELT. PT WAS HEADING TOWARDS FOSTER; TRUCK TOWARDS LEONGATHA. TRUCK HAS COME AROUND BEND; CROSSED DOUBLE LINES INTO PTS LANE; CLIPPED PT R FRONT PANEL AND DRIVER DOOR; AIRBAGS DEPLOYED; PTS CAR SPUN HIT RETAINING BARRIER ON DRIVER SIDE. PT GOT OUT OF VEHICLE HIMSELF. ANOTHER VEHICLE BEHIND PTS - TRUCK HAS ROLLED ONTO – PT 83…[65]

The plaintiff could not recall telling a paramedic of the details contained in that record.[66]

[65]Exhibit P9 (emphasis added).

[66]T108.5–6.

Television news stories on the day of the collision included footage of a police officer indicating that the collision occurred because the driver of the BMW had overtaken another vehicle across double white lines.[67] The plaintiff became aware of these news stories while he was at the Dandenong Hospital and, fifteen days after the collision, requested an interview with the police. A videotaped interview was conducted on 8 March 2013 at the Carrum Downs police station. In attendance were Detective Leading Senior Constable Miles and Detective Sergeant Sweeney.
[67]Exhibit P8.

In cross-examination, the plaintiff was taken to the police record of interview:

Senior Constable Sweeney:
…

Q303: Okay.
Answer: Apart from …
Q304:… and then she goes on, ‘And I first see it and it’s coming around a sweeping bend.’ She says, ‘It’s a good 20 metres away, and a good half, probably more, was over the double white lines.’

Answer: Nuh.
Q305:Okay. Do you have anything to say about what – what she says there, that – that your car was over the double white lines?
Answer:Other than no, I wasn’t, no. I remember goin’ past the front part of the truck.
Q306:Okay. Alright … she goes on to say that the black car is the car that – that’s hit her.

Answer:        Yes.
Q307:           Are you - …, is that your car, the car that hits the street sweeper?
Answer:        … yeah, the street sweeper collided with my car, yes.
…

Q311:Okay. Is it all possible that your car was on the other side of the road?

Answer: No. I don’t believe so.
Q312:Okay. Is it possible that being a right-hand bend there’s a chance you straightened out the corner to - - -?

Answer:        [No audible reply]
Q313:           Okay.
Answer:        I don’t believe so.
Q314:           Okay.
Answer:        I remember seein’ the truck the whole time.
Q315:Okay. How – describe for me – given you’ve already described the road, describe to me what – what – how – how you would describe someone that’s driving on the wrong side of the road in that area of the road?

Answer: Someone that’s driving on the wrong side of the road?
Q316: Yeah.
Answer:Well, you’d see it as you approach them if they were driving on the wrong side of the road.

Q317: Yeah.
Answer:As I approached that truck it didn’t – it wasn’t on my side of the road as I was coming to it.

Q318:           Okay.
Answer:        And I wasn’t on its side of the road …
Q319:           Yeah.
Answer:As I come to it. As I said, I remember being level with the door – the truck was about level with me …

Q320:           Yep.
Answer:        As it swayed, swerved …
Q321:           Okay.
Answer:        I dunno, onto my side of the road.
Q322:Explain … when it swerved, what do you mean?

Answer: Like …
Q323: So …?
Answer:I remember being – like, the front of my car was past the front of her truck as it seemed to have come towards me, and I closed my eyes as it comes. Like, it come towards me. I remember seein’ it, like, looking at the wheels and the – sort of, the fuel tank on the truck.

Q324:           Okay. Where were you looking …?
Answer:        As I …
Q325:           At – sorry keep – no, go on.
Answer:Well, as I – as I’m watchin’ the road and I just see in the corner of my eye just come towards me, like, sway towards me. And yeah.

Q326:           Okay.
Answer:        … as from there, I don’t remember to much at all …
Detective Leading Senior Constable Miles:
Q328:           Have you seen your car since the accident?
Answer:        Have I? No.
Q329:If I was to put it to you that the only dama-, or the main damage to your car is on the front quarter panel and it’s missing its front drive wheel on the driver’s side, what would you say to that?

Answer: What do I say to that? I have no idea. Well …
Q330:Can you explain to me how that is the only major damage to your car – or, visible damage to your car as a result of what you’re telling me how the collision occurs?
Answer:Yep. Trucks goin’ round there, I’m comin’ down the hill and it swerves across and I’m already past the car goin’ round the corner like that and it swerves across, nipping the front of my car with its back, - the back of its truck.[68]

[68]T61.9–62.14; T87.1–89.8; Transcript of Kyle Anedda’s Record of Interview, 8 March 2013, 45–48.

The plaintiff was also asked about his response to question 305. It was put to him that that the answer he gave in the police interview was different to what he had said in court in evidence-in-chief. In cross-examination, the plaintiff accepted that what he told the police in the interview on 8 March 2013 about how the collision occurred, and his evidence in court in this trial, were different:

Question:…To her Honour you’ve said the truck – you saw the truck before you reached it, veer onto the wrong side of the road. The police you said that you reached – you were level with the truck and it was still on its correct side of the road?

Answer:        Yes.
Question:       So you accept --- ?
Answer:        I accept it, yes.
Question:And then you go on to say … [s]o what you’ve told the police officers in this interview back in 2013 was that you saw the truck swerve out of the corner of your eye as you were passing it. You’d agree with that?

Answer: Yeah, I’d agree with that.
Question:Yes. Whereas what you’ve said to her Honour here in court is that you saw Mrs Horsey’s truck veer into your lane, right in front of you, out the front windscreen of your car. That’s what you’ve said to her Honour, isn’t it?

Answer: Yes.
Question:And you accept that’s another difference between what you told the police when you were asked in 2013 what happened and what you’ve said to her Honour?

Answer: Yes, I do.[69]

[69]T88.17–22; 89.13–16.

In cross-examination, the plaintiff was also asked about other inconsistencies in his recollection of events:

Question:… What I suggest to you, Mr Anedda, is that you were driving south along the South Gippsland Highway, approaching the area of the collision, that you were over the double while lines into the northbound lane?

Answer: No.
Question:And I suggest that you did not pass any part of Mrs Horsey’s truck before the collision occurred, but that the collision was a head-on collision. That is, the front driver’s side corner of your vehicle hit the front driver’s corner of the truck in the northbound lane?

Answer: No.
Question:And I suggest that you yourself don’t have a clear recollection of what happened on this day at all?

Answer: I do.
Question:And I suggest that any version that you’ve given to the court today is, firstly, an attempt to try and exonerate yourself and make Ms Horsey look at fault in the accident?

Answer: No.
Question:And secondly, is a cobbling together of a whole lot of information, including information, or including evidence that you heard during the criminal trial from two engineers who were talking about all sorts of different theories about how the accident occurred?

Answer: No.
Question:Well, you told her Honour yesterday that the reason that the version you’ve given in court is different from the version you gave to the police is because you’ve had time to think about it, spoken to people, sat through a two week trial and heard all the evidence?

Answer: Ah, I have, yes.
Question:And that is all information that you’ve used to arrive at the version that you’ve given in court about how the accident occurred, isn’t it?

Answer: That’s your opinion.
Question:Well, I’m asking you about it. I suggest to you that you have used all that information to try to come up with a story, and that that is what you’re saying in court now and trying to pass that off as what you recollect from the day of the accident?

Answer: No.
Question:You agreed yesterday that as well as police officers and ambulance officers at the scene, you were also asked at the Foster Hospital, when you were taken there, about what happened in the accident?

Answer: I don’t recall that.
Question:No. So you don’t recall anyone at the hospital asking you about what happened?

Answer:        No.
Question:       Do you recall telling anyone at the hospital what happened?
Answer:        No, I don’t.
Question:You said yesterday that from the time of the collision, you were very clear about the fact that Mrs Horsey’s truck had veered into your lane about 20 metres or so before the collision occurred. You said that was very clear in your mind, from the moment it happened?

Answer: I may have.
Question:No, you said yesterday that, from the moment that this collision occurred, you were quite certain about how it occurred?

Answer: I was, yes.[70]

[70]T91.5–92.31.

The plaintiff agreed that the only similarity between what he said at the police interview on 8 March 2013 and what he said in his evidence-in-chief in court was that the defendant had moved into his lane.[71] He denied that he had no actual recollection of the collision and that his evidence in court was coloured by the things that had occurred since the collision.[72] He denied that his evidence was a reconstruction, designed to make it clear that he wasn’t responsible in any way for the collision.[73]
[71]T79.9–12.
[72]T80.10–18.
[73]T82.22–27.

Defendant’s evidence

The defendant is employed by the South Gippsland Shire (‘the Shire’) to operate street sweeping trucks. She has been employed in this position for approximately 13 years. Prior to her employment with the Shire, she was employed by the City of Monash, where she drove rubbish compactors, utility vehicles, vans and light trucks.

When the defendant commenced her working with the Shire, she was required to drive a Hino with sweeping apparatus attached to the vehicle’s cab. The vehicle had the facility to switch between the left and right-hand drive. The left side of the vehicle was used for sweeping kerbs and channels, and the right side was used when driving between jobs.

The defendant said she did not drive on the left side for more than a kilometre, unless the Hino was in street sweeping mode. She always drove on the right-hand side of the Hino between jobs.[74]
[74]T489.31–490.1.

The Shire trained the defendant to drive the Hino. This involved being supervised by an operator for approximately three weeks while she drove the Hino.

In 2012, the Shire began to use a new Hino, being the vehicle that was ultimately involved in the collision. The defendant received further training in relation to the new Hino. This training initially involved her sitting in the Hino with an instructor, who took her through the controls. The instructor then accompanied her while she drove the new Hino, and explained how to use the vehicle controls.

At the time of the collision the defendant was working full-time. Her working day started at approximately 4:00am and finished between 12:30 and 1:00pm.

On the night before the collision, the defendant went to bed at approximately 7:15pm. She got up at approximately 2:00am and left for work at approximately 2:40am. She drove to a depot in Leongatha and picked up the Hino.

The defendant proceeded to clean the median strips in Leongatha, the centre of the road on Yarragon Road, and the centre median strips in the CBD before parking the Hino, switching it off, and changing the drive side from left to right for the drive to Foster. It usually took approximately 40 minutes to drive from Leongatha to Foster.

The defendant drove to Foster and commenced street sweeping. She drained water from the Hino’s load at the depot in Foster, which took approximately 20 minutes.

She then decided to return to the depot in Leongatha because the wide sweep broom under the Hino was worn and needed to be changed.[75]
[75]T490.21–23.

When driving the Hino between towns, the defendant usually drove at approximately 80 km/h. This speed could differ depending on road conditions. The defendant’s evidence was that if it was wet, she would always drive slower.[76]
[76]T491.10.

The defendant drove from Foster to Leongatha in the Hino approximately twice a week for the entire period she had been employed at the Shire.

At approximately 8:00am, the defendant was driving along the SGH towards the intersection with Lundstroms Road. She was driving in a northerly direction and there was an uphill gradient. She said she was travelling no more than 45 km/h.[77]
[77]T491.29.

The defendant said the Hino was an automatic vehicle and, when it was travelling uphill with a wet load—as it was on the day of the collision—the Hino ‘usually drop revs’.[78]
[78]T492.1–3.

The defendant said she was driving as far to the left as she thought was safe.[79] She did not think her wheels were on the fog line, but was not able to say for sure whether the passenger-side wheels were on or near the fog line. The defendant said no part of the Hino was over the centre white line,[80] and at no time prior to the collision did any part of the Hino enter the lane for vehicles travelling in the opposite direction.[81]
[79]T492.6–7.
[80]T492.13.
[81]T492.8–16.

The defendant’s evidence during examination-in-chief was:

Question:As you were approaching the area where the collision occurred, were you looking?
Answer:As required, I have to watch the space around my truck. You check one mirror, you glance forward, you check the next mirror, glance forward, and each check should take no more than one second.
Question:As you approached Lundstroms Road, did you see any vehicle coming towards you from the opposite direction?

Answer:        Yes.
Question:       What did you see?
Answer:        I saw a black car.
Question:       How far away were you from the car when you first saw it?
Answer:        I’m not a good judge of distance.
Question:Are you able to say, do you have a belief as you sit here now about how far away the car was when you first saw it?

Answer:        My belief now is – at the time I said it was about 20 metres.
Question:       Is that still your belief now?
Answer:        No.
Question:       After this collision did you make a statement to the police?
Answer:        Yes, I did.
Question:Did the police ask you how far away the black car was when you first saw it?

Answer: Yes, they did.
Question: What did you tell them at the time?
Answer:I told them that – the 20 metres, and that I was not a good judge of distance.
…

Question:… how far away do you now say the BMW was from your vehicle when you first saw it?

Answer: Approximately 200 metres.[82]

[82]T492.17–493.13.

The defendant’s evidence was that she had been given interrogatories to answer in this case. She said she was under the impression that if she gave a wrong answer she ‘would be in trouble’.[83]
[83]T493.31.

In one interrogatory, the defendant was asked how far she was from the BMW when she first saw it. To answer that question, the defendant and her husband drove to the location of the collision. They stopped their car at the point where the defendant first saw the BMW. Using the GPS on her phone, they measured the distance from the location of the BMW, to the point of impact, to the location of the Hino when the defendant first saw the BMW. They determined that the total distance between the Hino and the BMW, at the time the defendant first saw the BMW, was 200 metres.[84]
[84]T494.1–26.

In the defendant’s answers to interrogatories she also indicated on a photograph of the SGH the positions of the Hino and BMW when she first saw the BMW.[85]
[85]Exhibit D6.

In cross-examination the defendant was asked about the evidence she gave at the committal hearing in relation to the distance from when she first saw the BMW. At the committal hearing she said she was approximately 20 metres away when she first saw the BMW. The defendant said she was not very good at judging distances and the evidence she gave at the committal hearing was her best recollection on that day.[86]
[86]T532.4.

The defendant agreed that her recollection at the time of the committal hearing was most likely to be accurate.[87]
[87]T532.5–8.

The defendant said that when she first saw the BMW it was straddling the double white lines and was definitely travelling faster than she was.[88] The passenger-side wheels of the BMW were still in the southbound lane, but the majority of the BMW was in the northbound lane.[89]
[88]T496.1–7.
[89]T496.8–11.

In evidence-in-chief the defendant said the BMW was in her line of sight for ‘seconds’ before the collision.[90] The driver’s side of the BMW was on her side of the road. The BMW did not change its position in relation to the centre white lines during that time.[91]
[90]T496.13.
[91]T496.14–15.

At that time, the defendant thought words to the effect of ‘Idiot, I hope you can get back on your own side of the road’.[92]
[92]T498.3.

The defendant did not change the path of her vehicle at any stage in those seconds. She said she was well over to the left side of the road, as far as she could go without going over the bank. The defendant said that at the time the two vehicles collided, no part of the Hino was touching the double white lines.[93]
[93]T498.14–16.

After the collision, the defendant had no way to veer the Hino into Lundstroms Road. She felt the back of the Hino move around. The Hino then rolled, came into contact with the Toyota, and slid down the road, before coming to rest on its side, nearly upside down. The defendant remained in the vehicle until it stopped. The defendant was able to exit the Hino by climbing through the windscreen.

She recalled having a discussion with a man who came over to see if she was okay. She recalled saying ‘why me?’[94]
[94]T499.22.

Once the ambulance and police arrived, the defendant agreed to undertake a breath test. At 8:51am, the defendant was questioned at the scene by Senior Sergeant Hullick.[95] The defendant told Senior Sergeant Hullick that she had been travelling up the hill at a low speed when she saw a black BMW which was halfway, or at least halfway, across the double lines.[96]
[95]T847.14.
[96]T847.24–29.

While she was in Leongatha Hospital, the defendant provided a statement to Acting Sergeant Sheppard who handwrote her statement and asked her to read and sign it, which she did.

The defendant’s statement records:

I was coming up an uphill gradient, probably lucky to be doing 45–50 km/h. Basically the road was wet, my truck being full, I consciously remember being more careful than usual. I was driving over to the left. I remember the painted line on the left. I wouldn’t have been driving over it but right on it.
Next thing I see this black car come around, coming toward me. I’m still coming uphill. I just saw this black car and it’s over double white lines, coming toward me. I first see it and it’s come around a sweeping bend, to me it’s a good 20 metres away and a good half, probably more was over the double white lines. I could see the passenger side was still over the double white lines on his side. It’s hard to describe the corner. I could draw you a diagram if you like.
…
As I said, the black car was a good 20 metres away when I first saw it. I’m not the best judge of distances. I remember seeing the black car and thinking ‘It’s double white lines you idiot’ and just hoping he would get back on his own side. I remember it came from nowhere. I really didn’t have time to judge his speed. I couldn’t say how fast he was going, I’m pretty sure it was a 100 km/h zone.
He was coming at me, he hit the driver’s side of my truck. Pretty sure it was right in front. I was on the right hand drive, the legal requirement, and I remember his car hit right in front of me. I was virtually looking at the driver’s side of his car as we hit. I don’t recall looking at the driver of the black car. It happened too quick …[97]

[97]Exhibit D8.

In cross-examination the defendant said that after the collision she spoke to the police in the ambulance. She also gave her phone to a paramedic, who used it to contact somebody on the defendant’s behalf before returning the phone to her immediately. The defendant denied using her phone at the time of the collision.[98]
[98]T513.31–514.1.

In her evidence at the criminal trial the defendant described the collision in the same terms as her police statement. She was driving from Foster along the SGH. As she approached the collision site, she was driving uphill at a speed below the 100 km/h speed limit. She was keeping the Hino as far to the left of her lane as was safe, very close or on the fog line. When she first saw the BMW, it was over the double white lines, into the northbound lane of the roadway. It remained so until the time of the collision At no time was any part of the Hino on or over the double white lines.[99]
[99]T492.8–16.

The defendant’s evidence in this trial was that the time between when she first saw the BMW and the collision, was ‘seconds,’ and ‘[i]t would have been less than 10 seconds’.[100]
[100]T528.13–14.

The defendant said she had no chance to do anything after she first saw the BMW. She said she had a car close up behind her at the time. She did not recall braking prior to the collision. The defendant agreed that there was room on the road for her to move safely over to the left to some extent, and she could have put the passenger side wheels of the Hino over the fog line onto the bitumen or the gravel.[101]
[101]T534.1–4.

The defendant’s evidence was that the collision happened fast. It was the first time she had experienced an incident involving a car travelling towards her over double white lines, and it was the first time she had ever seen a car travel ‘that distance’ over the double white lines.[102]
[102]T535.4–7; 535.30–536.3.

The defendant said the BMW was in plain view to her. She denied that, during the short period time in which she saw the BMW, the Hino was slightly in the southbound lane.[103]
[103]T538.24–539.10.

The defendant said there were approximately three or four vehicles behind the Hino when she first saw the BMW. She said the vehicles were essentially queuing up behind her, waiting for the next overtaking lane.[104]
[104]T539.16; 540.2.

The defendant agreed that, based on her description of where she was on the roadway just prior to the collision, the car behind her had to be close to the double white lines for her to be able to see it in her right-side mirror.[105]
[105]T540.24.

She agreed that there was no evidence the BMW collided with any other vehicle, and there was no evidence that any vehicle behind the BMW stopped after the collision.

It was put to the defendant in cross-examination that there were no vehicles behind the Hino just prior to the collision. She maintained that there were at least four vehicles behind her.[106] In re-examination the defendant said she did not believe she was asked, at the time she gave her statement after the collision, whether there were any vehicles behind the Hino.
[106]T541.4–6; 541.19–21.

The defendant’s evidence-in-chief was that, after the collision, she tried to control the Hino but couldn’t. She also tried to veer the Hino into Lundstroms Road. It was put to the defendant that, at the committal hearing, her evidence was that she had tried to keep the Hino in the lane that she was driving in—the northbound lane—and she had not previously given evidence that she had been aiming for Lundstroms Road.[107] The defendant agreed she had not given that evidence at the committal hearing or the criminal trial.
[107]T547.17–31; 548.1–4.

Submissions relating to the plaintiff and defendant’s evidence
Plaintiff’s submissions

The plaintiff submitted that this is not a case in which the plaintiff and defendant are consciously attempting to mislead the Court.

The plaintiff contended that he was significantly shaken up in the aftermath of the collision and does not recall discussing the circumstances of the accident with anyone. He does not recall being asked questions to the effect of ‘What happened?’, nor does he recall making any exculpatory statements. While he could accurately answer questions about his name and address, the plaintiff submitted that this does not detract from his truthfulness as he was not explicitly asked about the circumstances of the collision.

Regarding the inconsistency between the plaintiff’s accounts of the position of the Hino at the time of the collision, the defendant submitted that any inconsistency is minor as it relates to ‘half a second’ of difference. The plaintiff submitted that he did not fabricate his evidence as to the position of the Hino; rather, he submits that he cannot recall the Hino’s position.

The plaintiff submitted that the Court should reject the defendant’s evidence, primarily on the basis that her evidence in Court that she saw the BMW 200 metres prior to impact is inconsistent with the evidence she gave on the day of the collision, and with her evidence at the committal hearing and criminal trial. The plaintiff submitted that the Court should reject the defendant’s evidence on the distance of 200 metres and accept her previous evidence of 20 metres. The plaintiff submitted that the latter measurement supports a suggestion the defendant wasn’t paying attention to the road in front of her immediately before the collision, she was on the wrong side of the road, and she only saw the BMW a split second before the point of impact.

Further, the plaintiff submits that it is difficult to reconcile the defendant’s evidence that when she first saw the BMW, 200 metres away, it was partially driving on the wrong side of the road, with her evidence that she maintained an unchanged speed, took no evasive action, and did not take any steps to warn the plaintiff.

Finally, the plaintiff submitted that, based on the objective evidence, the Court should reject the defendant’s evidence that there were four or five cars behind the Hino prior to the collision.

Defendant’s submissions

The defendant submitted that the plaintiff presented as an unimpressive and unreliable witness, whose account of the accident circumstances has changed over the years since the collision. The defendant contended that the plaintiff has been unable to provide any satisfactory explanation for the changes in his version of events, and submitted that there can be no valid explanation other than an attempt to tailor his evidence to maximise his chances of success in the current proceeding. The defendant noted that the plaintiff was present throughout the criminal trial in 2015 and heard all evidence that was presented, including the expert evidence, but did not give evidence at that trial himself. It is submitted that the plaintiff has no actual recollection of the accident and has manufactured his evidence in this trial to suit the opinion of his expert.

In contrast, the defendant submitted that her evidence about the collision has been consistent since the very first time she was asked about it. This includes her responses when questioned at the scene of the collision, in her statement provided on the day of the accident, in her evidence at the criminal trial, and in her evidence in this trial.

The defendant submitted that the Court should not accept the plaintiff’s suggestion that she was not paying attention to the road in front of her immediately before the collision due to discrepancies between her estimates of how far away the BMW was when she first saw it. The defendant noted that on every occasion when she was asked to estimate distance, she did so with caveats to the effect that she was not a good judge of distance. The defendant said she had explained why her previous estimate of 20 metres is unreliable, and submitted the Court should not accept that she first saw the BMW when it was only 20 metres away from her.

Findings in relation to the plaintiff and defendant’s evidence

The contemporaneous notes of discussions with the plaintiff, except for the inter-hospital transfer note, make no mention of the plaintiff saying that the Hino was on the wrong side of the road. This is despite the plaintiff’s evidence that if someone had asked him, he would have told them he was on his side of the road and the defendant was on the wrong side.[108]
[108]T71.24–31; 72.1.

While common sense tells us that the plaintiff and defendant would have been shaken up by the collision, there is no evidence that the plaintiff could not respond to questions asked. He agreed that he did not recall being asked at the scene about the circumstances of the collision by Sergeant Coates, or the paramedic, John Barrie. He accepted that he may have told Sergeant Coates, ‘I was coming down a hill and I’d seen a truck and clipped it, and don’t know if he hit me or I hit him’.[109]
[109]T73.27–31.

This is in circumstances where the plaintiff’s evidence was that, from the moment the collision happened, it was clear in his mind that the Hino had swerved onto his side of the road, and if anyone had asked him about the circumstances of the collision, that was what he would have told them.[110]
[110]T71.24–31; 72.1.

The plaintiff’s submission that he was not asked about his position on the road is not accurate. John Barrie, the paramedic who attended on the plaintiff, gave evidence that while he examined the plaintiff to see if he had had any loss of consciousness, he asked the plaintiff, ‘Are you the driver of the car, do you remember what happened?’[111] While they were at the scene in the ambulance, Mr Barrie told the plaintiff that there had been a fatality. Mr Barrie assessed the plaintiff’s Glasgow Coma Scale as 15, which indicated that his conscious state was unaffected by the collision. Mr Barrie said that in the course of talking to the plaintiff and conducting an examination, the plaintiff said he ‘couldn’t remember what had happened at the time’.[112]
[111]T743.7–8.
[112]T744.23–26.

Senior Sergeant Hullick gave evidence in relation to his interaction with the plaintiff and defendant at the scene. In relation to the plaintiff, he said that before he spoke to the plaintiff, he checked with Mr Barrie to make sure that there was no medical reason why he could not speak to the plaintiff. Once he was told it was fine, he spoke to the plaintiff at the rear of the ambulance. Senior Sergeant Hullick’s evidence in relation to his discussion with the plaintiff was as follows:

Um, I then asked for his current address. He replied 356 Port Welshpool Road, Port Welshpool. I then, ah, gave Mr Anneda what we refer to as a short caution. And I asked him if he understood that and he said, ‘Yep’. I said, ‘Were you the driver of a black BMW?’ He said, ‘Yep’. I said, ‘Do you know the registration?’ He said, ‘No, not sure’. I said, ‘Do you remember what happened?’ He said, ‘I was coming down the hill and I saw a truck coming up the hill, then I don’t remember much after that’. I said, ‘Where were you coming from?’ He said, ‘Just from Cranbourne’. I said, ‘Where were you going?’ He said, ‘To work at Port Welshpool’. I said, ‘What time did you leave home?’ He said, ‘Around 6 o’clock’. I said, ‘What time did you go to bed last night?’ He said, ‘About 9.30, quarter to 10’. I said, ‘How fast were you going down the hill?’ He said, ‘About 90 km/h per hour, 90 ks’. I said, ‘What were the road conditions?’ He said, ‘Yeah, it’s wet, just like it is now’. And that’s where the conversation finished.[113]

[113]T848.19–849.6.

Senior Sergeant Hullick said it did not appear to him that the plaintiff was having any difficulty answering questions or providing information.[114]
[114]T849.7–10.

I accept the plaintiff would have been distressed and shocked when Mr Barrie, Senior Sergeant Hullick and Senior Sergeant Coates spoke to him. However, I do not accept that he was unable to give responsive answers. He could give details about his speed, the time he left for work, what time he went to bed, and so on. Yet he did not say anything about the Hino being on the wrong side of the road, despite giving evidence that, had he been asked, he would have given that evidence. There could not have been any doubt in the plaintiff’s mind at the time he spoke to Mr Barrie, Senior Sergeant Hullick or Sergeant Coates that the position of the Hino and the position of his BMW was critical information. The evidence is consistent with the plaintiff not having a clear recollection of what happened.

At the Foster Hospital, where the plaintiff was taken immediately after the collision, he was seen by a triage nurse at 9:50am. At 11:53am he was examined by Dr Owen Casson, who noted that the plaintiff had a ‘near total recall of events’.[115] The plaintiff gave Dr Casson the following history:
[115]Exhibit D1.

driving three hours ago 90 kmh.
truck took off front right panel and driver door in part
then spun to hit retaining barrier on driver’s side.
near total recall for events.
airbags deployed.
got out of car.
ankle pain.
no neck pain.
ambulance to S.G.H.[116]

[116]Ibid.

At 2:15pm he was seen by Dr Dias at Foster Hospital. Dr Dias recorded:

22 year old man. MVA 8:00am 21/2/13. Patient was travelling 90 km/h chipped a oncoming truck.
No LOC, did not hit his head. Was wearing seat belt. Car then swerved onto railing. Car damaged front and passenger side. GCS 15 …[117]

[117]Ibid.

The history as recorded at Foster Hospital of what the plaintiff told the doctors is detailed, yet makes no mention of the defendant’s Hino being on the wrong side of the road. Again, in circumstances where his evidence now is that, he had been asked, he would have told the relevant people, it is difficult to accept that, given the importance of the detail about the Hino’s position, the plaintiff did not say anything when he had the opportunity to do so and was asked. As noted, the first and only mention of the position of the Hino is in the ambulance inter-hospital transfer note from Foster Hospital to Dandenong Hospital,[118] which includes ‘TRUCK HAS COME AROUND BEND; CROSSED DOUBLE LINES INTO PTS LANE’.[119]
[118]See [64].
[119]Exhibit P9.

It is difficult to reconcile the description of the collision in the ambulance inter-hospital transfer note with the histories provided in the preceding six hours. I find it unlikely in the circumstances that when the plaintiff was telling Mr Barrie, the police officers and the doctors about the circumstances of the collision, he did not mention the Hino being on the wrong side of the road. He told Dr Dias that he was travelling 90 km/h and chipped an oncoming truck. Yet he did not mention that the Hino was on the wrong side of the road.

Looking at the totality of the evidence, I consider it likely that at the point that the plaintiff first mentioned the Hino being on the wrong side of the road, during the ambulance inter-hospital transfer, he was attempting to reconstruct what had happened and in fact he did not have an actual memory of what occurred.

Perhaps even more troubling and difficult for the plaintiff is the evidence of the police interview on 8 March 2013, conducted at the plaintiff’s request and at a time when he had an opportunity to collect his thoughts. This was also in circumstances where the plaintiff had a very good reason to be concerned given the television reporting of the collision, which gave a very damning description of the plaintiff’s driving.

During the police interview, on numerous occasions the plaintiff was asked by the two interviewing police officers how the collision occurred. The plaintiff consistently described how the two vehicles impacted each other. That is, that the plaintiff’s vehicle was past the front of the Hino when the Hino veered into him. The plaintiff’s description in the police interview was unequivocal and unambiguous. He said that, as the vehicles approached each other, the Hino was not on his side of the road and his BMW was not on the Hino’s side of the road. He recalled being level with the door of the Hino, and then the Hino swerved onto his side of the road.

The plaintiff’s description of the collision in the police interview is in contradiction to his evidence in court. In court the plaintiff said he first saw the Hino when it was about 150 metres away from him, it was driving in its own lane, but as the vehicles approached each other and were about 20 metres apart, the Hino veered into his lane without warning. This was a new version of events from the plaintiff, not provided since the date of the collision. The plaintiff maintained that the version he gave in court had always been his clear recollection of the collision, from immediately after the collision until the time of his police interview,[120] and said he had told the police when interviewed about the Hino swerving into his lane before his vehicle reached it.
[120]T54.7–29.

In cross-examination, the plaintiff initially said the difference between what he said about the collision in the police interview was ‘slightly different’ to what he said in court.[121] He then agreed that it was materially different.[122] When asked in cross-examination about the differences between his descriptions of the collision in his police interview compared to his evidence in court, the plaintiff said he ‘had a lot more evidence to look at now’,[123] and his memory had sharpened ‘through sitting through another trial and actually seeing things’.[124] The plaintiff’s evidence was that having heard the evidence at the criminal trial from engineers and police reconstruction experts, he realised what he told the police on 8 March 2013 was not ‘a hundred per cent accurate’.[125]
[121]T58.4–5.
[122]T58.7–8.
[123]T78.11.
[124]T78.16–18.
[125]T79.1–2.

The plaintiff concedes that his own evidence in court was a reconstruction of events, not based upon his independent recollection of the collision.

I consider the plaintiff’s evidence in relation to the circumstances of the collision is unreliable. There are significant inconsistencies in his description of the collision from 8 March 2013 when he gave for the first time his version of how the collision occurred, to his evidence Court more than six years later. His memory of events has changed after hearing the evidence at the criminal trial. Further, the plaintiff was prepared to give evidence knowing it not to be true. As noted, the plaintiff initially admitted he may have told others at the scene that he was not sure what happened in the collision, and then in cross-examination maintained that he did in fact recall telling a police officer at the scene that the defendant’s Hino had veered into his lane.[126] The following morning in cross-examination, when pressed about his latter recollection, the plaintiff admitted he recalled no such thing. When asked why he had made a false statement in court about what he recalled, the plaintiff replied, ‘I don’t know’.[127]
[126]T81.2–13.
[127]T91.6.

As I have said, I do not consider the plaintiff’s evidence about how the collision occurred to be reliable. He has given inconsistent and unreliable evidence, and on his own testimony he has been influenced by the evidence given at the criminal trial, and he has, at least on one occasion, been untruthful.

In contrast, the defendant’s evidence in relation to the BMW being on the wrong side of the road and the BMW hitting the front driver’s side of her Hino, which corresponds with the damage to the two vehicles, has been consistent from the very first moment after the collision. What the defendant told Senior Sergeant Hullick at the scene is what she then provided in her police statement, and it is what she said in evidence at the criminal trial. The main attack on the defendant’s evidence was in relation to an estimation of distances. Each time the defendant was asked to provide a distance, she did so with the reservation that she was not good at estimating distances. This includes in her police statement at 2:20pm on the day of the collision, where she said ‘the black car was a good 20 metres away when I first saw it. I’m not the best judge of distances’.[128] On a number of occasions in court, her evidence was that she was not good at estimating distances.[129]
[128]Exhibit D8, 5.
[129]T527.18; 525.12; 525.19; 526.6.

[160]Exhibit D11, 5.

[161]T636.4–9.

[162]Exhibit D11, 5.

[163]T640.14–18.

Dr Rechnitzer disagreed with Dr Hardiman’s criticisms of the simulations. He stated that the aim of the simulation was to identify possible points of impact and the likely vehicle motions resulting from the crash, not a more complex purpose such as demonstrating how a vehicle is deformed. Given the purpose of his simulations, he said it was sufficient that the main parameters, including the vehicle dimensions, weight and velocity were within ‘reasonable bounds’ for the model.[164] Dr Hardiman, on the other hand, disagreed that it is sufficient for the simulation if the dimensions, weights and velocities are known and, regardless, said that those parameters are not known in this case.[165]
[164]T260.1–9.
[165]T652.24–29.

Dr Rechnitzer also disputed Dr Hardiman’s views on the sensitivity of a number of inputs. For example:

(a) Dr Rechnitzer agreed that his input for the centre of gravity in the simulations was not high enough, but said that he would be ‘very surprised’ if it affected what he was trying to model.[166] However, Dr Hardiman, in her September 2019 report, stated that centre of gravity height is ‘one of the inputs of greatest sensitivity… [and] that even a small variation from the actual [centre of gravity] could greatly affect any simulation result’.[167]

(b) Dr Rechnitzer used a value for friction (or adhesion of the roadway) of 0.78Gs when Dr Hardiman’s tests at the site measured the values at 0.668 to 0.68Gs. While he agreed that friction affects the movement and behaviour of the vehicles post-collision, he was of the view that the impact of this difference would be ‘very little’.[168] Dr Hardiman, on the other hand, was of the view that ‘[t]his difference can have a significant effect on the post impact behaviour and distance travelled by the vehicles.’[169]

Summary of disagreement on simulations

[166]T358.9–19.

[167]Exhibit D11, 6.

[168]T360.21–361.23.

[169]Exhibit D11, 5.

The differences between inputs across simulations, in conjunction with the effect of unknown or incorrect input variables, caused Dr Hardiman to conclude that simulations were not a valid method of collision reconstruction in this case.[170] Dr Hardiman’s view is that Virtual Crash 4, in such situations, can only be used reliably to give a visual depiction of possible scenarios—that is, it can only be used to validate that a scenario could have happened.[171] The simulations could not be used to reliably determine which scenario actually occurred because it ‘fits best’.[172] In particular, Dr Hardiman said that even where a scenario with certain inputs matches with all the tyre marks left by the vehicles, as Dr Rechnitzer asserted, this does not exclude the possibility that other scenarios, depicting point of impact on other locations on the roadway, could also match all the marks if different input parameters are used.[173]
[170]Exhibit D11, 6.
[171]T651.31.
[172]Exhibit D11, 6.
[173]T651.31.

Dr Rechnitzer, on the other hand, reiterated that despite the issues with the simulations, they could still help to determine the post impact motion of the BMW and which position of the vehicles on the roadway at point of impact most closely matches the observed gouge and tyre marks.

Submissions relating to the expert evidence
Plaintiff’s submissions

The plaintiff submitted that the tyre marks are the key objective and reliable piece of evidence. The plaintiff submitted that the results of Dr Rechnitzer’s modelling in Virtual Crash 4 are unequivocal, showing close alignment in the modelling of the plaintiff’s hypothesis with the actual tyre marks. Further, the plaintiff submitted that Dr Rechnitzer’s iterative process and modelling, especially in Virtual Crash 4, involved acceptably approximate parameters. When applied to the defendant’s hypothesis of a point of impact inside the northbound lane, the simulation was inconsistent with the actual tyre marks. The plaintiff submitted that this was a persuasive piece of evidence. Further, the plaintiff submitted that the tyre marks were clearly mapped and photographed by police on the day of the collision, which indicates their importance to any reconstruction.

The plaintiff submitted that the Court should prefer the evidence of Dr Rechnitzer on the reliability of the alleged gouge marks. The plaintiff submitted it is appropriate to rely on Dr Rechnitzer’s evidence about the gouge marks given his experience, expertise and the fact that looking at the exhibits closely, even as a lay person, reveals that any obvious differences in depth from one end to the other are either missing, or so difficult to discern that great caution must be exercised in forming any conclusion based upon the markings. Further, the plaintiff noted that any decision on directionality can be complex, even where there is clear agreement that a mark is a gouge mark. The plaintiff submitted that an objective approach to the assessment of the markings is difficult for a number of reasons, including that depth measurement was not undertaken and that the photographs are not of sufficient quality to see the absence of depth or differentiation.

The plaintiff submitted that Dr Hardiman is an unreliable witness in relation to GM 1 for a number of reasons, including that Dr Hardiman has only been using Virtual Crash 4 for 12 months, she conceded that there were some errors in her initial opinion that the BMW had moved anti-clockwise post-impact and, on multiple occasions, she changed her evidence attributing the longest post-collision yaw marks.[174]
[174]See T699.8–11; 700.5–7; 704.18–23; 699.28–700.7; 701.2–3; 701.7–12.

Finally, the plaintiff submitted that DLSC Miles is not an expert in reconstruction and therefore, his conclusions as to which vehicle left the marks based on his observations of the directionality of the gouge marks should not be accepted by the Court.

Defendant’s submissions

The defendant submitted that Dr Rechnitzer’s evidence is of limited assistance to the Court as it was not formed by seeking to arrive at an opinion of what did, or most likely, happened in the collision, but rather to show that there were valid alternatives to the scenario put forward by Victoria Police at the criminal trial.

The defendant submitted that the Court should not accept Dr Rechnitzer’s evidence. The defendant noted that in this trial, Dr Rechntizer significantly and inexplicably departed from his considered and informed opinion given at the criminal trial, and he could not point to any additional evidence which led to his new opinions. The defendant submitted that Dr Rechnitzer did not explain why, in circumstances where he had previously said there was insufficient evidence to determine which scenario was more likely, he now felt that the same evidence was suddenly sufficient. The defendant submitted that Dr Rechnitzer’s explanation for his changed view was unconvincing, lacks credibility, and should be seen as his acting as an advocate for the plaintiff, rather than an independent expert.

The defendant submitted that the Court should prefer the evidence of Dr Hardiman in relation to the alleged gouge marks. The defendant noted that Dr Hardiman and DLSC Miles both saw GM 1 and GM 2 on the day of the collision, and both were of the clear view that the marks constituted gouge marks. In contrast, Dr Rechnitzer did not attend the scene and reached his conclusions on the basis of the photographs taken at the site. The defendant submitted that Dr Rechnitzer’s characterisations of GM 1 and GM 2 as ‘scrape marks’, based upon the photographs alone, was an unreliable method to form an opinion on their nature. As such, the Court should not rely on his views on this point.

In relation to the simulations prepared by Dr Rechnitzer, the defendant submitted that this collision is not an appropriate one to be simulated using Virtual Crash 4. The defendant submitted that the simulations do not assist the Court in determining whether the plaintiff’s allegations of negligence against the defendant are likely, as distinct from possible. In support of these submissions, the defendant pointed to the number of unknown variables in the collision, the mass difference between the vehicles, the fact that Dr Rechnitzer did not use the same inputs in the simulations of scenario 1 and scenario 2, and the fact that none of the simulations replicate the full post-impact movement of the BMW in accordance with all the tyre marks on the site plan.

Finally, the defendant submitted that any suggestion by the plaintiff that the investigative officers who attended the collision site, including Dr Hardiman and DLSC Miles, did not undertake a thorough investigation is without foundation.

Findings in relation to the expert evidence

I accept the evidence of Dr Hardiman and DLSC Miles that on the day of the collision, they were both of the view that GM 1 and 2 were gouge marks. I also accept their observations that GM 1 was deeper at the north end, likely left by a vehicle travelling south (the BMW) and GM 2 was deeper at the south end, likely left by a vehicle travelling north (the Hino). It is significant that two trained individuals, who independently observed the marks on the day of the collision, determined that the marks were gouge marks, and thus marked them for inclusion on the site plan.

Dr Rechnitzer did not attend the scene and did not observe these marks as they appeared on the day of the collision. I make no criticism of this fact. However, this means that his opinions of whether GM 1 and 2 are deep enough to be ‘gouge’ marks, or whether they are merely ‘scrape’ marks, are necessarily based on the photographs taken a week later[175] rather than direct observation. I accept the defendant’s submission and Dr Hardiman’s evidence that these photographs are not representative of what she, and DLSC Miles, saw as being the relevant marks on the day of the collision. I accept Dr Hardiman’s evidence that rain and vehicles driving over the marks likely reduced the distinctiveness of those marks, particularly in the photographs taken a week later.
[175]See Exhibits P12; P27; P30; P31; P38; D4; and D15.

Crucially, Dr Rechnitzer agreed that he could not determine the depth of the GM 1 and GM 2 based on the photographs. He therefore conceded that the term ‘gouge mark’ may have been accurate, as he was not able to conclude definitively based on the photographs that the marks were not at least 3mm in depth.[176]
[176]T314.15–26.

The plaintiff submitted that DLSC Miles is not an expert in reconstruction and therefore, his conclusions as to which vehicle left the marks, based on his observations of the directionality of the gouge marks, should not be accepted by the Court. While this is correct as to the conclusions from his observations, I accept that DLSC Miles did observe the marks and noted them to be deep enough to be considered gouge marks. His evidence on this point is limited to his observations of the marks, rather than his consequent inferences as to which vehicle left the marks.

DLSC Miles has over 13 years of experience as an investigator with the MCIU; in 2013, he had over seven years’ experience in the role. His job involves making observations at collision sites about what he considers to be significant or relevant, and recording these observations. A reconstructionist is also present and they make a separate determination about the inferences and conclusions that can be drawn from those observations.[177] While I do not rely on his conclusions as to directionality and the vehicles that left the marks, his experience underpins the reliability of his observations on the day of the collision about the depth of the marks, which is also consistent with Dr Hardiman’s observations on the day.
[177]T809.1–14.

The plaintiff further submitted that Dr Hardiman is unreliable, particularly with respect to her assessment of GM 1, and having made mistakes in her report about the BMW’s post-collision rotation. However, I found Dr Hardiman to be a measured witness who was prepared to make concessions on her opinion. There seemed to be a suggestion that Dr Hardiman had been influenced by the information she was given when she arrived at the scene, and therefore, that her conclusions were influenced by that information.[178] I reject this submission. Dr Hardiman said that ‘quite often’ she receives information about a case when she arrives at a scene, which she later determines is wrong or forms a contrary view to.[179] Dr Hardiman gave her evidence in a credible and reliable manner. She was in the best position, along with DLSC Miles, to assess the marks and determine whether they were gouge marks. At no time has Dr Hardiman resiled from her view, either at the criminal trial or in this case.
[178]T664.16–18; 688.15–20.
[179]T582.25–583.3; 583.13–15. See also T727.10–19.

In contrast, Dr Rechnitzer’s explanation for his changed view from the criminal trial, where he was unable to say whether scenario 1 (BMW across white lines) or scenario 2 (Hino across white lines) was more likely, to his evidence in this Court that scenario 2 was more likely, was unconvincing. His evidence was that between the criminal trial and this trial, he did not recall doing any further work in relation to the collision and he had no reason to think about this case. He later said in cross-examination that, on the previous evening, a colleague had reminded him that he had recently presented this case to other experts a number of times at various seminars and workshops.[180] I consider Dr Rechnitzer’s evidence on this point cannot be explained by forgetfulness, but rather, displays disarray and a lack of candour.
[180]T349.4–14.

The failure to measure the gouge marks is regrettable, but not fatal to Dr Hardiman’s opinion. It was not police practice at the time to measure the depth of gouge marks and the failure to measure does not mean that their observations were not accurate.

Having concluded that the relevant marks are gouge marks, the next question is what those marks can tell us about the vehicles at the point of impact.

Dr Hardiman gave evidence that she could determine which vehicle caused GM 1 and 2 based on their directionality. However, the plaintiff submitted that any inference on directionality can be complex, even where there is clear agreement that a mark is a gouge mark. The plaintiff submitted that an objective approach to the assessment of the markings is difficult for a number of reasons, including that depth measurement was not undertaken and the photographs are not of sufficient quality to discern depth.

Despite these difficulties, I prefer Dr Hardiman’s expert evidence of reconstruction based on directionality, that the BMW left GM 1 and the Hino left GM 2. While Dr Rechnitzer’s evidence is that all of the gouge marks in the northbound lane, being GM 1, 2 and 3, were left post-impact by the Hino’s street sweeping apparatus, his evidence was only that these marks, and in particular GM 1, could have come from the Hino, rather than any definitive or probable evidence about specific parts of the Hino that did leave GM 1. This is not sufficient for the plaintiff to prove, on the balance of probabilities, that the Hino left all the marks in the northbound lane.

Whether the gouge marks were made at the point of maximum engagement or post-collision is also significant point of disagreement between the experts. While Dr Rechnitzer pointed to, and made markings of,[181] the relevant parts of the Hino’s street sweeping apparatus that could have left GM 2 on the northbound lane, he did not give any evidence that this was more likely than the front chassis of the Hino causing GM 2—aside from noting that the sweeping apparatus may have been closer to the ground than the front of the Hino. Dr Hardiman, similarly, was unable to determine which part of each vehicle caused these gouge marks.[182] However, she was of the view that the front of the Hino could have left GM 2 as there was ‘force downwards’ at the point of maximum engagement.[183]
[181]See Exhibits P26 and P35.
[182]T608.29–31; 609.26–29.
[183]T681.1–7.

The expert evidence from Dr Hardiman and Dr Rechnitzer on whether the gouge marks were created at the point of maximum engagement or post-collision is equivocal. There are parts of the Hino on the front chassis, as well as on its undercarriage, that could have caused the marks. However, the burden of proof remains with the plaintiff at all times. While, as the plaintiff submits, GM 2 (and the other gouge marks in the northbound lane) could very well have come from the Hino’s apparatus, this is not sufficient to discharge the plaintiff’s onus of proof.

Further, I accept the defendant’s submission that even if, as Dr Rechnitzer contended, GM 1, 2 and 3 were created by the damaged street sweeping apparatus of the Hino post-collision, this does not, by itself, mean that the collision did not occur in the northbound lane.

In respect of the Virtual Crash 4 simulations, Dr Rechnitzer and Dr Hardiman have a fundamentally different view as to the utility and reliability of the simulations in assisting the Court to determine which collision scenario is more likely to have occurred. I accept Dr Hardiman’s evidence on this point, given the following:

(a) The lack of known inputs/variables and the use of incorrect values, including the centre of gravity height and masses of the vehicles.

(b) The likelihood that any resulting simulation would differ based on small changes in values, including the centre of gravity height and the friction value.

(c) The sensitivity of the results given the large mass differential between the two vehicles.

(d) Dr Rechnitzer’s own admission that the collision modelled by the scenario 1 simulation (BMW across white lines) differs from the collision modelled by the scenario 2 simulation (Hino across white lines), beyond simply changing the position on the roadway, in that the angle of approach of the vehicles is different.

I accept that an important, if not fundamental, issue with the Virtual Crash 4 simulations is that they are dependent on input variables. I am concerned that Dr Rechnitzer’s simulations do not contain some form of sensitivity analysis, which examines how differing variables can affect the result, and do not provide an estimated margin of error in the conclusion of the analysis. While the Virtual Crash 4 simulations can provide valuable insights into vehicle collisions, in this case because of the shortfalls identified by Dr Hardiman, they are of limited assistance.

I tend towards the view that the Virtual Crash 4 simulations, while more helpful than the ARAS 360HD animations, cannot be used in order to validate that scenario 2 was more likely than not to have occurred. At most, they indicate the collision may not have occurred in the northbound lane, and that his scenario 2 could have happened.

Dr Hardiman’s evidence presents a cohesive case theory, in which GM 1 and 2 are gouge marks, and were caused at the point of maximum engagement. GM 1 was deeper in the northern end and became shallower along its length, likely caused by the BMW travelling south. This places the BMW in the northbound lane at the point of maximum engagement.

On the other hand, while Dr Rechnitzer does give evidence responsive to Hardiman’s analysis and highlighting its limitations, does not put forward a persuasive case about why scenario 2 is more likely than not to have occurred. Therefore, I am not satisfied that the plaintiff has discharged his onus of proof on the balance on probabilities.

In summary, I have concluded that the plaintiff was on the wrong side of the roadway when the vehicles collided, based on my finding of fact above as between the plaintiff and defendant’s evidence. However, even in the absence of this factual finding, I am still not satisfied in light of the expert evidence, on the balance of probabilities, that the defendant was in the incorrect lane at the time of the collision.

Conclusion

The plaintiff has not established any negligence on the part of the defendant. He has failed to show that the defendant breached her duty to take reasonable care in the driving and management of her vehicle so as to not injure the plaintiff. Based on my findings above, the plaintiff has failed to establish that the defendant was across the double white lines on the roadway, resulting in the collision.

The proceeding must be dismissed. I will hear the parties on costs and the appropriate form of order.

ANNEXURE 1 – Exhibit D12: Site Plan of South Gippsland Highway, Foster
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[2019] VSC 729

14 November 2019