Balcomb v Morris
[2003] WADC 80
•14 APRIL 2003
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: BALCOMB -v- MORRIS & ANOR [2003] WADC 80
CORAM: HH JACKSON DCJ
HEARD: 20-23 JANUARY 2003
DELIVERED : 14 APRIL 2003
FILE NO/S: CIV 1248 of 2001
BETWEEN: HELEN MARGARET BALCOMB
Plaintiff
AND
DENNIS JAMES MORRIS
First DefendantQBE INSURANCE (AUSTRALIA) LTD
Second Defendant
FILE NO/S :CIV 2804 of 2001
BETWEEN :TERRENCE JOHN ABBOTT
HELEN PATRICIA ABBOTT
PlaintiffsAND
HELEN MARGARET BALCOMB
KAREN MAY BALCOMB
Defendants
FILE NO/S :CIV 68 of 2002
BETWEEN :DENNIS JAMES MORRIS
Plaintiff
AND
QBE INSURANCE (AUSTRALIA) LTD
Defendant
Catchwords:
Negligence - Motor vehicle collision - Inferences
Legislation:
Nil
Result:
Negligence found against semitrailer driver; not against deceased driver of car and caravan
Representation:
CIV 1248 of 2001
Counsel:
Plaintiff: Mr A D Black
First Defendant : Mr P K Walton
Second Defendant : Mr D R Clyne
Solicitors:
Plaintiff: Mr K B Rickards by his agent Jeffery Paul Simon Gore
First Defendant : Jackson McDonald
Second Defendant : Pynt & Partners
CIV 2804 of 2001
Counsel:
Plaintiffs: Mr P K Walton
Defendants: Mr G R Hancy
Solicitors:
Plaintiffs: Jackson McDonald
Defendants: Trevor G Darge
CIV 68 of 2002
Counsel:
Plaintiff: Mr P K Walton
Defendant: Mr D R Clyne
Solicitors:
Plaintiff: Jackson McDonald
Defendant: Pynt & Partners
Case(s) referred to in judgment(s):
Acatincai v Insurance Commission of Western Australia [2003] WASCA 39
Bennett v Minister for Community Welfare (1992) 66 ALJR 550
Bradshaw v McEwans Pty Ltd, unreported; HCt of Aust; 27 April 1951
Chappel v Hart (1998) 195 CLR 232; 72 ALJR 1344
Fairchild v Glenhaven Funeral Services Ltd (2002) 3 All ER 307
Holloway v McFeeters (1956) 94 CLR 470
Malik v Malik (2001) 34 MVR 417
Naxakis v Western General Hospital (1999) 197 CLR 269
Schellenberg v Tunnel Holdings Pty Ltd (2000) 74 ALJR 743
Case(s) also cited:
Anchor Products Ltd v Hedges (1966) 115 CLR 493
Bennett v Minister of Community Welfare (1992) 176 CLR 408
Branko Laic v Victor Shkolar [1993] ACTSC 57
Davis v Bunn (1936) 56 CLR 246
Doonan v Beacham (1953) 87 CLR 346
Etri v Eid (1998) 28 MVR 381
Houston v Queensland Railways (1994) 20 MVR 198
Jazairy v Najjar (1998) 27 MVR 498
Jones v Dunkel & Anor (1959) 101 CLR 298
Kalavrouziotis & Ors v Howell & Ors (1998) 27 MVR 367
Knott v Royal Exchange Assurance of London [1955] SASR 33
Lee v Russell [1960] WAR 142
Luxton v Vines (1952) 85 CLR 352
Mummery v Irvings Pty Ltd (1956) 96 CLR 99
Nettleship v Weston [1971] 2 QB 691
Piening v Wanless (1968) 117 CLR 498
Purkess v Crittenden (1965) 114 CLR 164
Sibley v Kais (1967) 118 CLR 424
TNT Management Pty Ltd v Brooks (1979) 53 ALJR 267
HH JACKSON DCJ:
Background
A road accident occurred approximately 77 kilometres east of Norseman on the Eyre Highway at approximately 1.00 pm on 20 September 2000. A Holden Commodore motor vehicle registered in New South Wales as number VBG 345 was towing a caravan east. It was driven by Stanley Balcomb and the only other passenger in the Commodore was his wife Helen Margaret Balcomb. The Commodore and caravan were being overtaken by a semi‑trailer registered in Western Australia as number WX‑94AG, driven by Dennis Morris and owned by Terrence John Abbott and Helen Patricia Abbott. Mr Morris was an employee of Mr and Mrs Abbott.
The highway runs from west to east in a generally straight line for more than 600 metres up an incline, variously described in evidence as a rise or hill to a crest slightly east of the collision area.
Prior to the long straight is a bend or curve which for vehicles travelling east is to the left. According to Senior Constable Parker as well as to Mr Morris there is an earlier right hand bend which turns into the left hand bend.
Travelling east around the bend the road is marked with double white lines which prohibit overtaking. Subsequently a single broken line allows overtaking in each direction. At a point about 225 or 250 metres prior to the resting point of the vehicles this line is replaced with an unbroken line prohibiting vehicles travelling east from overtaking but also a broken line permitting overtaking by vehicles travelling west. On either side of the two lane bitumen carriageway is a gravel shoulder.
A number of photographs of the road and the general scene including the remains of the semi‑trailer are Exhibit 1. Two photographs, one showing the view east from the end of the continuous double white line after the bend and the other the tyre markings on the road surface, also facing east, are Exhibits 9 and 10.
As a result of the collision Mr Balcomb died, Mrs Balcomb and Mr Morris were injured and fire completely destroyed the car, caravan and semi‑trailer and the load that it was carrying, essentially a load of fertiliser from Perth to Adelaide.
In these proceedings in Action No 1248 of 2001 Mrs Balcomb claims damages against Mr Morris as driver of the semi‑trailer and against QBE Insurance (Australia) Ltd as the compulsory third party insurer for such purposes of her late husband pursuant to s 113 of the Motor Accident Compensation Act 1999 of New South Wales. Each of the first and second defendants have filed notices of contribution and indemnity against the other pursuant to O 19 r 8 of the Rules of the Supreme Court of Western Australia.
In Action No 68 of 2002 Mr Morris claims damages for his injuries from QBE Insurance (Australia) Ltd as such insurer and pursuant to such legislation.
In Action No 2804 of 2001 Mr and Mrs Abbott claim the loss of their vehicle and its load and other expenses against Mrs Balcomb and Karen May Balcomb as executrices of the estate of the late Mr Balcomb.
By order made in chambers by Deputy Registrar Harman of this Court on 20 August 2002 it was ordered that the issue of liability be tried as a preliminary issue in each action and the issue in all actions be listed at the same time and before the same judge with the costs being in the cause in the separate actions. The matter came on for hearing before me on 19 January 2003 and in the event that there was any uncertainty in the matter I ordered that the evidence given at the hearing be evidence in each of the actions. Thus the issue before me is simply the apportionment of liability for the collision.
In Action No 2804 of 2001 between Mr and Mrs Abbott and the executrices of the estate of Mr Balcomb the parties of the action have failed to consent to the District Court having power to hear and determine the action notwithstanding that the plaintiffs seek to recover damages in excess of $250,000, pursuant to s 50(1)(e) of the District Court of Western Australia Act 1969.
Pleaded particulars of negligence
In Action 1248/01 Mrs Balcomb sues both the driver of the truck, Mr Morris and the insurer of her late husband who was driving the car. The following particulars of negligence are pleaded.
On the part of Mr Morris:
"i.Driving at an excessive speed.
ii.Failing to overtake with safety.
iii.Failing to sound his horn or otherwise indicate the presence of his motor vehicle upon the roadway.
iv.Failing to steer or brake sufficiently or at all in order to avoid the collision.
v.Attempting to overtake another vehicle when it was unsafe to do so.
vi.Failing to keep any, or any proper lookout.
vii.The plaintiff relies on the doctrine of res ipsa loquitur."
On the part of the late Mr Balcomb:
"i.Failing to keep any, or any proper lookout.
ii.Failing to keep his vehicle on the correct side of the roadway.
iii.Failing to steer or brake sufficiently or at all in order to avoid the collision.
iv.Failing to heed the presence of the first defendant's vehicle upon the roadway.
v.The plaintiff relies on the doctrine of res ipsa loquitur."
In Action 2804/01 the owners of the semi‑trailer and its load plead the following particulars of negligence on the part of the late Mr Balcomb:
"(a)Failing to keep any or any proper lookout.
(b)Failing to keep his vehicle on the correct side of the roadway.
(c)Failing to steer or brake sufficiently or at all in order to avoid the collision.
(d)Failing to heed the presence of the truck upon the roadway.
(e)Failing to maintain any or any proper control over his vehicle.
(f)So far as may be necessary the plaintiff will rely upon the doctrine of res ipsa loquitur."
The executrices of the estate of the late Mr Balcomb allege by counterclaim the following particulars of negligence on the part of Mr Morris:
"...
3.1.1He commenced to overtake the car and caravan when the manoeuvre could not be completed safely or in conformity with the road markings that delineated where overtaking was permitted;
3.1.2The truck was overtaking the car and caravan when it was unsafe to do so in the circumstances in that the highway was narrow, there was little distance between the truck and trailer and the car and caravan, both vehicles were approaching a rise, and Mr Balcomb was not able to see whether there was any oncoming traffic on the other side of the rise;
3.1.3The truck caused air movement that de‑stabilised the car and caravan;
3.1.4He drove the truck on the wrong side of the unbroken white line that marked the centre of the highway and indicated that overtaking was not permitted;
3.1.5He drove at a speed that was excessive in the circumstances;
3.1.6He failed to keep a proper look out;
3.1.7He drove the truck on the wrong side of the road and struck the caravan or the car.
3.2Alternatively, the cause of the collision is a matter of speculation and might have been:
3.2.1Negligent driving by Morris;
3.2.2Tyre blow out on the car or the caravan;
3.2.3Sudden failure in the steering mechanism or suspension mechanism of the car;
3.2.4In the presence of strong winds the change in air flow on the car caused by the overtaking truck and trailer caused the car and/or the caravan to yaw towards the truck;
3.2.5Mr Balcomb lost control from the sudden onset of a medical condition including his death while driving.
...
7.The accident was caused by the negligence of Morris and the plaintiffs are vicariously liable for that negligence."
In Action 68/02 the semi‑trailer driver alleges the following particulars of negligence by the deceased car driver:
"5.In the course of the truck overtaking the car, the car collided with the truck ('the accident').
6.The accident was caused solely by the negligence of Stanley Raymond Balcomb.
PARTICULARS OF NEGLIGENCE
(a)failing to keep any or any proper lookout.
(b)failing to keep his vehicle on the correct side of the roadway.
(c)failing to steer or brake sufficiently or at all in order to avoid the collision.
(d)failing to heed the presence of the truck upon the roadway.
(e)failing to maintain any or any proper control over his vehicle.
(f)so far as may be necessary the plaintiff will rely upon the doctrine of res ipsa loquitur."
By way of defence the insurer pleads that the semi‑trailer driver was negligent in that he:
"(a)Drove at a speed which was excessive in all the circumstances;
(b)Drove without due care and attention;
(c)Failed to overtake the car with safety;
(d)Failed to sound his horn or otherwise indicate the presence of the truck on the road behind the car;
(e)Failed to steer, brake or otherwise manoeuvre the truck sufficiently or at all in order to avoid the collision;
(f)Failed to keep any, or any proper lookout."
Evidence
Of the three persons actually involved in the collision only the driver of the semi‑trailer was able to give evidence of its occurrence. The driver of the Commodore died, I find, in the collision. The widow has no memory of events other than of leaving Norseman and having mentioned to her husband that they had reached a point 70 kilometres east thereof, that is, about some seven kilometres short of the collision itself. There was a considerable amount of evidence accumulated after the event by police officers and evidence was given by a Mr McPhail and a Mr Large who happened on the scene whilst travelling east on Eyre Highway very soon afterwards. In addition, evidence was called from two consulting engineers with expertise in the area of motor vehicle and road accidents. Given the orders which had been made concerning evidence counsel commendably, agreed amongst themselves on the most expeditious way of adducing evidence from these various witnesses. Given that three actions are involved it is convenient to refer to persons by their name rather than their status in the proceedings.
Mrs Balcomb's evidence
At the time of the collision Mr and Mrs Balcomb, he having retired from employment, were returning to New South Wales after a trip around parts of Australia in the Holden Commodore car and caravan. The trip had taken some 11 weeks.
Mrs Balcomb gave evidence that their car was equipped on the driver's side with an overtaking mirror as well as the normal rear vision mirror. Her husband, who was born in 1935, had been in good health and had shown no difficulty in managing to drive the car and caravan. They had previous experience of windy conditions including strong cross winds. The caravan was equipped with two anti‑sway bars. Generally he drove at between 80 and 90 kilometres per hour.
On the day they had left Kalgoorlie at about 9.00 am. Her husband drove them to Norseman. They re‑fuelled and proposed to stop for lunch some 80 kilometres east of Norseman. She had no recollection after noting that they had reached a point 70 kilometres east of Norseman. She next recalled being in hospital in Perth suffering injuries.
Mr D J Morris
Mr Morris, the driver of the prime mover and trailer, lives in New South Wales. At the time he had been driving commercial vehicles for some 20 years and had been working for the firm of TJ & HJ Abbott for about nine months. He was living near Mandurah. He usually made two trips between Perth and the Eastern States each month. He had driven across the Eyre Highway numerous times. The prime mover and trailer were only a few months old and in good condition. He drove the prime mover daily. It had just been serviced. It had a speed inhibitor installed which limited its speed to 100 kilometres per hour. On the day of the collision the trailer was loaded with about 21 tonnes of chemicals. He left Perth at about 8.00 pm on 19 September travelling to Adelaide. On 20 September after sleeping en route he had breakfast at Coolgardie and coffee at Norseman. Visibility was good and the weather fine. After leaving Norseman and passing three or four caravans he was driving at 100 kilometres per hour when he first saw the car and caravan driven by Mr Balcomb. This was before the left hand bend. He was then 50 to 100 metres behind it. As they reached the bend he was travelling immediately behind them.
He estimated its speed at 70 to 75 kilometres per hour. The left hand wheel of the caravan was just off the left hand edge of the bitumen. It was picking up dirt and stones. It was not swaying.
"How far was the caravan in front of you as you rounded the left‑hand bend prior to the straight where the accident occurred?‑‑‑Approximately about 10 metres.
You understand there's a double continuous white line on that left‑hand bend?‑‑‑That's correct.
What view of the roadway did you have ahead as you rounded the bend?‑‑‑I could see at least 2, 1 and a half to 2 to 2 and a half kilometres ahead no worries whatsoever.
Were there any vehicles coming towards you?‑‑‑None whatsoever.
What did you do then?‑‑‑Just as I come around the bend, the double white lines finished. I just immediately started overtaking, no reason to back off for anything. There was nothing in the way, plenty of room. He was still on the left‑hand side of the road.
Did you have to slow down as you approached the caravan or was the position such that you could move up and move out to overtake without slowing down?‑‑‑Yes, I could move out, overtake without slowing down whatsoever.
How far do you say the caravan or the back of the caravan was in front of the prime mover at the time you commenced to overtake?‑‑‑I would say approximately about 10 metres.
Whereabouts did the overtaking manoeuvre commence relative to the end of the double white lines?‑‑‑Right on exactly. Virtually as soon as they stopped, I started."
The prime mover and trailer moved to the right so that the prime mover's right hand wheels were on the white line. The vehicles did not diverge to the left while overtaking.
There is a blind spot to the prime mover driver in the area of the front bumper or bullbar so that vehicles within about six feet are obscured.
Shortly after commencing the overtaking manoeuvre he felt a small bump on the left hand side in the area of the front bullbar.
"Did you take any action at that point?‑‑‑At that point I've moved over to the right‑hand side more, put the wheels just into the dust or into the dirt on the side of the road, take me foot off the accelerator which immediately the jake brake come on which was starting to slow me down.
What's the jake brake?‑‑‑It's compression for the motor which reduces your speed a fair, considerable amount.
At that point did you apply the footbrake of the truck?‑‑‑Not at that point, no.
Why didn't you do that?‑‑‑I'm more frightened of jackknifing it and rolling it over onto the car and caravan wherever they were. I didn't know whether they were. I lost sight of them."
Shortly after his vehicle went off the road to his right. He could see nothing in front of him except dust and concentrated on keeping the truck upright. After turning the ignition off and letting the dust settle, he got out of the truck and heard a noise in front. He walked to the front and realised the car and caravan were in front of his prime mover. The truck was hard up against the car door so he reversed the truck about a metre but it then bogged. He returned to the car and turned off the ignition. The driver was sitting upright, eyes open, right arm on the windowsill, left hand on the steering wheel. He left to get a crowbar to open the car door when someone yelled that the car was on fire. He tried to extinguish the fire. Whilst doing so he noticed the driver's right foot was fully on the accelerator. The driver never moved.
He said that at the time he commenced overtaking, given the view he had of the road and the speed of the vehicle, he could have completed overtaking prior to commencement of the continuous white line without difficulty.
Cross‑examined he said he was driving with care, that the rise was very slight and that he could see a long way ahead that the road was clear. He could not immediately see that the broken white line became continuous.
When he did become aware of it he had not thought that the driver of a vehicle sitting lower in height might not be able to see over the rise. Cross‑examined he said he knew the bump must have been from the two vehicles being in contact and that contact was near the front of his prime mover. He was already on the right of the carriageway and moved more off the tarmac. He tried to slow his truck. He was travelling on a road marked by a broken white line, a "fair way" before the line changed to an unbroken one. He took his foot off the accelerator. The truck then slows "very quickly" and he did not put his foot on the accelerator again. He braked when the driver's side wheel was on the gravel shoulder, perhaps a foot off the carriageway.
He agreed that he had given the police a statement later that day, Exhibit 8, and subsequently a videotaped record of interview on 4 October, Exhibit 14.
Under cross‑examination different statements made by Mr Morris were put to him by Mr Black. In the written statement made on 20 September Mr Morris said:
"I was about level with the car when I felt a bump on the front left of the truck. I immediately pulled to the right as I could not see the four‑wheel drive or caravan and went straight into the scrub."
The reference to a four‑wheel drive when the car was a Holden Commodore, which Mr Morris had been present at after the collision, is, he said, witness to the shock he was in.
When giving the videotaped record of interview on 4 October he said:
"About 600 metres before where you've ended up after the crash there's a left‑hand bend. Do you remember going around that, and then the straight where you pulled out to overtake?‑‑‑Before the crash?
Yeah. About 600 metres before the crash there's a left‑hand bend and then there's a long straight - - -?‑‑‑Before the straight, well, that's the bend I'm talking about.
Okay. So you've come around that bend?‑‑‑Yeah.
And then you pulled out?‑‑‑Yeah, right before - - -
Yes. How far past the vehicle do you think you would have got?‑‑‑When we were going past the caravan - - -
Yes?‑‑‑ - - - because you lose sight of the car.
Yeah?‑‑‑That's about all I can remember because I would have been just about level with the car but (indistinct).
Normally when you overtake when do they come back into your rear‑view mirrors?‑‑‑Probably round about three‑quarters of the way down the trail.
And they hadn't done that?‑‑‑No. No, definitely nowhere in view. Didn't even lay sight of them once I drew level with them at all.
So you've basically drawn level with them and that's when you felt the bump?‑‑‑Yes.
Okay. Do you remember where you were on the road then, bearing in mind this little rise in the continuous line?‑‑‑Yeah, I was still in my lane, I felt the touch I just moved over into the dirt straight - virtually - well, I wouldn't say straightaway. I mean, how long does it take to react to a bump, if you know what I mean.
Yes?‑‑‑But yeah, I moved over towards the shoulder and just went straight into the dirt.
And that's off the right side of the road?‑‑‑Off the right‑hand side, yeah."
It is also the case that in the video record of interview he said that after he felt a bump he took his foot off the accelerator and let the compression system slow the vehicle and that he only braked after leaving the roadway.
Mr Morris agreed these accounts differ from that he gave in evidence but explained by reference to his condition at the time and not then having had details of distances and plans and that he was simply doing his best to answer questions put to him. He denied changing his evidence because he had been driving on the incorrect side of an unbroken line.
He said he had not chosen to drive in a manner such that he could not return to the eastbound lane without being on the incorrect side of an unbroken lane.
Mr Morris did not agree that his vehicle had ever been on the left hand side of the centre line after he had commenced to overtake.
He was adamant that as his vehicle passed the car it was entirely on the western bound southern half of the carriageway.
He agreed that caravans sometimes swayed when passed by large trucks and that if the car driver braked heavily that could increase the sway. He agreed that if a car driver thought he was being passed unsafely he might brake to let the passing vehicle return to the correct side.
He denied being in a hurry or running late.
Cross‑examined by Mr Clyne, Mr Morris said he had seen a glimpse of the caravan 500 or 600 metres ahead on a bend, but he maintained his evidence that on coming out of the left hand bend into the straight in question the caravan was of the order of 10 metres in front of him.
Even allowing for the difficulties of recall and memory after very traumatic events as well as for the passage of time and for Mr Morris' own limitations of language and expression, it must be said that his evidence on this matter is difficult to follow.
I do not accept Mr Morris' account that the overtaking occurred immediately after the left hand bend. The distance from there to the start of the tyre marks is too great.
Mr T A McPhail
Mr Hancy called Mr McPhail, a retired man who had been driving his car and caravan east on Great Eastern Highway with his wife, and who came across the vehicle involved in the collision very soon after they came to rest. A man came from the bush waving and sought his assistance. The car was in front of the prime mover but not attached to it. The engine was running. The truck driver reached in and turned the ignition off. Mr McPhail went to the car. The driver was sitting upright with his head slightly forward, his seat belt on and the window down. He seemed to be unconscious. His hands were on the steering wheel. Mr McPhail touched the driver's neck but found no pulse. He could see no breathing. There was no obvious injury. Mr McPhail spoke to him but there was no reply. The truck driver helped the woman passenger from the car. Later Mr McPhail returned to the car when it had caught fire in an unsuccessful attempt to remove the driver. The man's arms were rigid.
Mr M J Large
Mr Large, a school teacher from Victoria, was driving east on the Eyre Highway with his family in a station wagon towing a caravan. He came across the scene. The truck driver said, "I think they are dead." He walked to the car. There was a man in the driver's seat not moving. A woman was on the roof. He then noticed the car was on fire. They assisted the woman. He later had a conversation with the truck driver, who was very shaken and said, "They came out of (or 'from') nowhere" and that it was the first accident he had had.
Senior Constable Parker
Senior Constable S K Parker attended the scene on 20 September 2000 at about 2.30 pm whilst the vehicles were still on fire. The Holden Commodore was in front of the prime mover and straddling it. The caravan was to the side of the prime mover still attached to the car and angled towards the driver's side of the car. They were all off the roadway on the southern side. He noticed black marks on the road and marked them with yellow dots. He later prepared a plan of the area, Exhibit 2. The near side front corner of the trailer is some 13 metres south from the edge of the roadway. He paced the longest black mark to be 39 metres in length. The marks started some 110 metres from the commencement of the unbroken line for eastbound traffic.
He found no other items of significance such as gouge marks, debris or rubber on the roadway. He was not able to measure the width or match up the tyre marks on the road with the wheels of any one or more of the vehicles involved but the marks were of differing widths. A number of emergency service and other vehicles attended the scene and parked on both sides of the carriageway.
It seems that on 24 September the remains of the prime mover and trailer vehicles were removed from the scene and the surrounding area excavated because of chemical pollution worries.
Senior Constable Parker said that as he drove east towards the scene of the wreckage he had not been able to see over the rise or crest in the road further to the east. Standing on a Landcruiser fire truck at the lowest point in the road he still could not do so.
A photograph showing the vehicles on fire is Exhibit 6. One showing tyre imprints in the gravel is Exhibit 7.
Senior Constable Appleby
Senior Constable M G Appleby of the Major Crash Investigation Section attended the area on 26 September. The roadway is 6.6 metres in width. The gravel verge was approximately five metres wide on either side. The car and caravan were still on the scene. He prepared a sketch of them and of the road area, Exhibit 3. The caravan was approximately 2.2 metres wide with the body intact. From markings shown to him and Sergeant Hastie by Senior Constable Parker, Sergeant Hastie prepared a plan, Exhibit 4. Senior Constable Appleby agreed with it. He reconstructed the passage of the vehicles along the tyre marks left on the roadway and verge by following "the pattern of the tyre marks to the various wheels and drew them in varying positions along the skid marks to 'identify' which tyre had caused which mark". He explained that "the marks left by the truck were long, straight, sliding brake marks, as opposed to the rolling tyre marks left by the car and the caravan". The car had been rotating clockwise until it was in a position across the front of the truck and the caravan was swinging across the eastbound land and coming around.
He inspected the remains of the vehicles and various photographs. He noted some damage to the right rear quarter panel and right rear door of the car which appeared to be consistent with some large eye bolts in the bullbar and the upright beam on the left side of the prime mover. Their heights from the ground seemed to be the same. He inferred that the car had been across the front of the truck and had been pushed sideways. The left hand side of the car was badly damaged consistently with impact with a large object such as a tree.
He agreed he had found no fault in the car suspension, steering or wheels. The steering mechanism was intact.
He also confirmed that none of the tyre marks on the pavement were dual wheel marks, the prime mover and trailer having had dual wheels.
He agreed that the prime mover and trailer were some 19 metres in length. The car and caravan in combination were almost 11 metres in length.
He measured from the beginning of the unbroken white line travelling east to a position adjacent to the vehicles as 375 metres. From the end of the double white lines after the bend to the start of the unbroken white line was 225 metres.
A mark measuring some 31.5 metres appeared to have been left by the front left wheel of the prime mover. Another mark measuring some 39.4 metres crossed or merged with it, both ending at the edge of the bitumen. He saw no evidence that the right hand wheels of the prime mover and trailer had been on the verge off the bitumen a considerable distance further back towards the bend.
The mark which appeared to have been left by the left rear wheel of the car commenced on the eastbound lane and went to the right hand edge. The two wheels of the caravan left marks consistent with rotation.
Senior Constable Appleby conducted the videotaped record of interview with Mr Morris on 4 October: see Exhibit 14.
Sergeant P Hastie
Sergeant Hastie, from the Forensic Surveying Unit, attended the scene of the collision on 26 September 2000. He prepared a plan, Exhibit 4, but did not attempt from the road markings to identify which vehicles caused specific marks.
Mr T J Park
Mr Park, a police vehicle examiner, prepared a report, Exhibit 11. He found no defects in the car, caravan or prime mover. They and the trailer had been burnt and the car heavily damaged consistent with the left side being pushed through bush and against a tree. The right rear quarter panel was buckled inwards. Indentations and gouging on the left lower portion of the bullbar of the prime mover corresponded approximately in height to the quarter panel and the damage seemed consistent with contact between them.
Mr G L Johnston
Mr Johnston, a professional consulting engineer, and an expert in motor traffic engineering, collisions and safety, prepared a preliminary report, Exhibit 12 and a report, Exhibit 13, at the request of the solicitors for Mrs Balcomb. The report is based on material collected and provided by the various investigating police officers and the written statement made by Mr Morris. He had recently visited the scene.
Working back from the marks left on the road surface he estimated that the first contact between the two vehicles had been about 30 metres prior to their commencement. Probably initial contact had been between the side of the caravan and the prime mover during the overtaking process. There had probably then been a second impact when the car became hooked to the prime mover with the vehicles moving to the right across and off the roadway and the verge. The front of the prime mover had never become level with the front of the car. Mr Johnston made a number of calculations, using the respective speeds of the two vehicles given by Mrs Balcomb and Mr Morris and Mr Morris' statement to police, to indicate how long in distance and time it would take the semi‑trailer to pass the car and caravan. A number of variables are, however, involved. His opinion was that it was not possible for the semi‑trailer to have got safely past the car and caravan prior to commencement of the unbroken line given the point on the roadway and the relative positions of the vehicles when they first came into contact and their respective speeds. He also confirmed from his own observations that the car driver could not have seen over the approaching crest. Nor did he think the first impact likely to have been at a point soon after the end of the double white lines, that is, soon after the bend.
Dr S Chew
Mr Walton for Mr Morris and Mr and Mrs Abbott, called Dr Stephen Chew, consulting engineer. He prepared a report dated 31 July 2002, Exhibit 15. His conclusion is that:
"There was a collision between the prime mover driven by Mr Morris and the Commodore driven by the deceased, on a straight stretch of road at a location approximately 110 metres to the east of the start of a double white line on the mid‑width of the road, with the line on the north being a solid white line, and the line on the south being a broken white line when the prime mover and semi trailer driven by Mr Morris was in the process of overtaking the Commodore driven by the deceased towing a caravan.
The start of the solid white line was located approximately 420 metres east of the end of a left hand bend in the road."
He set out six "possible" causes. However, of these, he says there is no positive evidence to establish any one or more:
"(a)During the early phase of the overtaking manoeuvre, and prior to the collision between the Commodore and prime mover at where the tyre skid marks were observed on the road, there was a collision between the Commodore or the caravan it was towing, and the prime mover driven by Mr Morris, due to misjudgement by Mr Morris or mis‑judgment by the deceased, or simultaneous mis‑judgement by Mr Morris and the deceased. This collision caused the deceased to lose steering control, and the Commodore to move across to the south half of the road and collide with the prime mover.
(b)During the overtaking manoeuvre, and prior to the collision between the Commodore and prime mover at where the tyre skid marks were observed on the road, there was a tyre blow out on the Commodore or the caravan, which caused the deceased to lose steering control, and the Commodore to move across to the south half of the road and collide with the prime mover.
(c)During the overtaking manoeuvre, and prior to the collision between the Commodore and prime mover at where the tyre skid marks were observed on the road, there was a sudden failure in the steering mechanism, or the suspension mechanism, of the Commodore, which caused the deceased to lose steering control, and the Commodore to move across to the south half of the road and collide with the prime mover.
(d)In the presence of strong wind, in particular strong cross wind from the right hand side (relative to the two drivers of the two vehicles) of the road, the change in airflow pattern on the Commodore, caused by the prime mover/trailer overtaking it, resulted in transient aerodynamic lateral forces which have the tendency to cause the Commodore and/or its caravan to yaw towards the prime mover. The deceased failed, or was unable, to counter the yawing tendency of the Commodore and/or caravan by the Commodore's steering control, which resulted in the Commodore moving across to the south half of the road and colliding with the prime mover.
(He commented: The mathematics involved in the determining the effect of these transient forces on the stability of a vehicle are complicated, and would need to be done by a specialist in motor vehicle aerodynamics. Currently there are insufficient data available for a mathematical modelling of possible aerodynamic scenarios for this accident).
(e)During the overtaking manoeuvre and prior to the collision between the Commodore and prime mover at where the tyre skid marks were observed on the road, the left wheel(s) of the Commodore and/or the caravan was driven onto the gravel shoulder on the north side of the road. This caused the deceased to lose steering control of the Commodore, and resulted in the Commodore moving across to the south half of the road and colliding with the prime mover.
(f)During the overtaking manoeuvre and prior to the collision between the Commodore and prime mover at where the tyre skid marks were observed on the road, the deceased lost control of the Commodore due to the sudden on‑set of a medical condition, which resulted in the Commodore moving across to the south half of the road and colliding with the prime mover."
Dr Chew accepted that Exhibit 5, the vehicle position drawing prepared by Senior Constable Appleby, is a probable general representation of the vehicle positions at the stages shown by the tyre marks left on the road.
There may have been contact between the vehicles before the prime mover started pushing the car and the tyre marks on the road commence.
"The plan that Senior Constable Appleby prepared is perfectly consistent with the prime mover and trailer being pulled to the right and going straight into the scrub, isn't it?‑‑‑Yes.
The account that Mr Morris gave at the time was that when he felt a bump on the front left of the truck, he immediately pulled to the right and went off the road?‑‑‑Yes, he did.
If that account was accepted to be accurate then you would conclude that the bump that he spoke of occurred within the reaction time and distance of the commencement of the marks indicating the vehicle going to the right and off into the scrub. Is that correct?‑‑‑Yes, if taken literally the word 'immediately' that would be so."
Given a reaction time of about one to two seconds and a speed of 100 kilometres per hour that would mean the prime mover would travel about 25 to 56 metres before veering to the right and place the point of impact well after the start of the unbroken white line. Where the skid marks commence the two vehicles were "generally side by side".
As with Mr Johnston, Dr Chew was asked to make arithmetic calculations as to passing times and distances. Each was asked to assume the speeds and lengths of the respective vehicles. Assumptions also involve the adoption of reasonable space to allow the passing vehicle to pull out and then back in again. These assumptions cannot be regarded as based on established facts but each of the two experts put the whole manoeuvre as occurring within an approximate range of at the extremes 225 to 425 metres: see Exhibit 13 and Exhibit 16. Of course here the prime mover was never in front of the car so that the total distance travelled to the point where the vehicles came together was much less. I accept that soon after that the tyre marks on the road surface probably commenced.
Conclusions
This is a case where the evidence is incomplete, uncertain and circumstantial. It is important to recall that the onus of proof lies on the plaintiff in each claim and counterclaim and that the standard is the civil test of the balance of probabilities. If the Court is so satisfied it cannot dismiss a claim merely because there nevertheless remains a significant lack of certainty. In Holloway v McFeeters (1956) 94 CLR 470 the majority of the High Court of Australia said, at 480 ‑ 481:
"It is clear that it is a mistake to think that because an event is unseen its cause cannot be reasonably inferred: Jones v Great Western Railway Co (1930) 144 LT 194 at 197. Inferences from actual facts that are proved are just as much part of the evidence as those facts themselves. In a civil cause 'you need only circumstances raising a more probable inference in favour of what is alleged ... where direct proof is not available it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference; they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture: see per Lord Robson, Richard Evans & Co Ltd v Astley (1911) AC 674. All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant's negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood'. These passages are extracted from the unanimous judgment of this Court (Dixon J, as he then was, Williams, Webb, Fullagar and Kitto JJ), in Bradshaw v McEwans Pty Ltd."
In Schellenberg v Tunnel Holdings Pty Ltd (2000) 74 ALJR 743 at 765, Kirby J said:
"Fourthly, the burden of establishing a claim in negligence rests on the plaintiff throughout the proceedings. That burden requires the proof of a preponderance of evidence in favour of the plaintiff's case. This does not necessarily mean proof by direct evidence. The facts necessary to establish liability may be inferred from the proof of other facts. A plaintiff is not obliged to exclude all possibilities inconsistent with the defendant's liability. However, if at the end of the evidence the plaintiff has proved the negligence of someone but not identified the defendant as the person responsible (or has left it equally possible that some person other than the defendant was negligent or that some cause consistent with reasonable care brought about the plaintiff's damage) the claim must be dismissed.
Introduction of res ipsa: The incantation of the phrase 'res ipsa loquitur' cannot alter any of the foregoing general propositions. The adoption of the Latin tag may have given the process of reasoning described the appearance of legal 'doctrine'. But as this Court has repeatedly emphasised, both from its origin and its purpose, all that is involved in the maxim is a description of a 'general method' of reasoning by which the decision‑maker can infer 'one or more facts in issue from circumstances proved in evidence.' "
What we know is that the car and caravan were driving safely and correctly in front of the semi‑trailer. That semi‑trailer collided with them while passing them whilst approaching a rise which was marked in advance by a no‑passing line. Given that the truck was passing the car and caravan the obligation to do so safely was on the truck driver. That necessarily involves passing in such a way, allowing for factors such as speed, passing distance and road conditions and traffic. Given a car and a caravan combination width of 2.2 metres and a truck width of 2.45 metres the road width of 6.6 metres between the outside edges of the outside white lines should have allowed the vehicles to pass without difficulty if their outside wheels were on or about those lines, that is without either needing to use the gravel verge.
The obligation necessarily involves avoiding causing the drivers of other vehicles to be alarmed or to take evasive action and avoiding causing vehicles such as caravans to sway dangerously either by the direct result of passing or by causing other drivers to brake heavily. In the present case it is put by Mr Black that Mr Balcomb, being in a position where he could not see oncoming traffic because of the rise, probably braked to allow the truck to pass and thereby caused the caravan to sway. That is not the only possibility – another is that the truck was much closer to the car laterally than Mr Morris thinks.
There seems, I accept, to have been impact by the front bullbar of the truck on the right rear side of the car. Neither that fact nor the tyre marks left on the road together or individually establishes the point or cause of impact.
Adopting the approach referred to in Bradshaw v McEwans Pty Ltd, unreported; HCt of Aust; 27 April 1951 and Holloway v McFeeters (supra), I find, on the balance of probabilities from the accumulation of facts and possibilities, that the cause of the collision was Mr Morris' negligence. I reject his evidence as to where he pulled out to overtake. Whilst I am satisfied that Mr Balcomb was dead before being incinerated, I think the probability is that he died following the collision, not that he died, thus losing control of his vehicle.
There is no evidence of tyre blowout or other mechanical failure in the Commodore or the caravan.
Nor is there positive evidence of any wrongful driving or error of judgment on Mr Balcomb's part. At most he may have made a wrongful decision when faced with a rise accompanied by an unbroken white line on the wrong side of which he was being passed by a very large loaded semi‑trailer.
Of course merely to find that Mr Morris was driving on the wrong side of the unbroken white line forbidding overtaking while travelling east in that area is not determinative of the issue. Breach of duty of care and causation remain the issues.
Notwithstanding Mr Walton's submissions there is no reason to infer that Mr Balcomb, an experienced driver, drove inexplicably across the path of the faster and larger semi‑trailer whilst it was passing him and in the face of a rise which he could not see past. Such behaviour would be entirely irrational unless he was unaware of the presence of the semi‑trailer. That is both speculative and unlikely.
Alternatively Mr Walton argues that Mr Balcomb drove the car and caravan too far left onto the gravel shoulder unnecessarily to avoid the passing semi‑trailer and thereby lost control and braking heavily or swinging to the right in an effort to correct but causing his vehicle to move into the westbound lane.
I am conscious that at the start of the tyre marks left by the vehicles the car is partly on the wrong side of the road. But I accept the evidence that given speeds and reaction times that the impact was probably 30 to 45 metres west and that the marks show that the semi‑trailer was already pushing the car off its course when they commence.
Counsel for both Mr Morris and for the insurer of the late Mr Balcomb urged me, although from opposing perspectives, to make inferences of negligence on the basis of res ipsa loquitur reasoning. For recent examples, see Acatincai v Insurance Commission of Western Australia [2003] WASCA 39. Another is Malik v Malik (2001) 34 MVR 417.
In my view such reasoning cannot be applied against Mr Balcomb. There are a number of possible and realistic explanations for the collision consistent with the known facts which are not dependent upon his having been negligent.
Mr Black urged me to adopt the view that the facts of this case come within the passage by McHugh J in Chappel v Hart (1998) 195 CLR 232 at 244; 72 ALJR 1344 at 1350, adopted by the House of Lords in Fairchild v Glenhaven Funeral Services Ltd (2002) 3 All ER 307 at 331 and by other members of the High Court of Australia in Naxakis v Western General Hospital (1999) 197 CLR 269 per Gaudron J at 279 and Callinan J at 312:
"If a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant's conduct has materially contributed to the injury that the plaintiff suffers whether or not other factors also contributed to that injury occurring. If, however, the defendant's conduct does not increase the risk of injury to the plaintiff, the defendant cannot be said to have materially contributed to the injury suffered by the plaintiff."
He also referred me to the analysis of causation in Bennett v Minister for Community Welfare (1992) 66 ALJR 550 per Gaudron J.
The issue in the present case, it seems to me, is whether the driving by Mr Morris did or did not increase the risk of injury to persons in the car. I think it did. The risk was that the driver of the car might brake or swerve given the oncoming crest thereby losing control of his vehicle. That may have happened even though, of course, it is not the only possibility.
Results
In Action 1248/2001 the plaintiff is entitled to judgment against the first defendant but her claim against the second defendant is dismissed.
In Action 2804/2001 the plaintiffs, Mr and Mrs Abbott have failed to establish negligence on the part of the deceased Mr Balcomb and therefore the claim against the defendant executrices of his estate is dismissed. The counterclaim succeeds on liability, for the reasons given in Action 1248/2001, the plaintiffs in the proceedings being vicariously liable for the actions of Mr Morris in his employment as a driver of the semi‑trailer.
In Action 68/2002 the defendant is entitled to have the claim by the plaintiff dismissed.
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