Berveling v Insurance Commission of Western Australia - [2017] WADC 163

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BERVELING -v- INSURANCE COMMISSION OF WESTERN AUSTRALIA [2017] WADC 163

CORAM: SWEENEY DCJ

HEARD: 2-4 AUGUST 2017

DELIVERED : 21 DECEMBER 2017

FILE NO/S: CIV 2313 of 2016

BETWEEN: STEVEN MARK BERVELING
Plaintiff
AND
INSURANCE COMMISSION OF WESTERN AUSTRALIA
Defendant

Catchwords:

Motor vehicle accident - Unidentified driver - Negligence - Causation - Turns on own facts

Legislation:

Civil Liability Act 2002 s 5B, s 5C, s 5D

Result:

Judgment for the plaintiff

Representation:

Counsel:

Plaintiff: Mr G Droppert
Defendant: Mr D R Clyne

Solicitors:

Plaintiff: Slater & Gordon
Defendant: HBA Legal

Case(s) referred to in judgment(s):

Strong v Woolworths [2012] HCA 5
Westlake v Motor Vehicle Insurance Trust [1960] WAR 83
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

SWEENEY DCJ:

Introduction

On the afternoon of 8 October 2014, Steven Berveling, the plaintiff, was one of about 100 cyclists participating in a long distance timed ride between Perth – Albany and return. He is a very experienced amateur cyclist, used to riding on city and rural roads. The riders had come through Gnowangerup and were travelling on the Broomehill ‑ Gnowangerup Road on the return trip back to Perth.
At the time of the accident the plaintiff was riding strongly at about 32 km per hour and was alone, but there were riders a bit ahead of him and riders behind him, including Mr Gary Cairnduff, who was 100 m or so further back. The plaintiff approached a gentle right-hand bend at the same time as a truck with two trailers attached came up behind him. Due to the bend, the centre line of the road was marked by unbroken white lines for traffic going both ways, so the truck could not pull out to overtake him. It stayed in its lane and took up most of the width of the lane, and was bearing down on him at about 100 km per hour. It is not suggested that the truck struck him. Rather, the plaintiff left the road to take to the gravel verge, and very soon afterwards lost control of his bike and ploughed into the gravel, sustaining serious injuries.
The truck kept going, and it is assumed that the driver had no idea that an accident had occurred. No-one got the registration number of the truck, and so the driver's identity cannot be established. And the plaintiff has no recollection of the accident. His last memory is of stopping in Gnowangerup.
But there were two witnesses to the accident: Mr Cairnduff, the cyclist behind, and Mr Aaron Chilcott, a farmhand, who just happened to be sitting on a telehandler waiting to cross the road as both the plaintiff and the truck came towards him. From a combination of the two witnesses' accounts, and by drawing inferences from the objective evidence of the scene, and with the assistance of an expert witness, Dr Robert Casey, who gave evidence about the impact of the air pressures created by a truck upon an object it passes, it is possible to determine the likely cause of the accident. For the reasons which appear below, I find that the truck driver was at fault, and negligently caused the accident and the resulting injuries to the plaintiff. The truck driver being unidentifiable, the defendant is liable by statute.
Prior to trial, the parties had agreed the amount of damages in the event that I found the defendant liable. These reasons are therefore confined to the issue of liability.

The parties' respective cases

It is admitted by the defendant that the driver of the truck was under a duty to take reasonable care in the driving of the truck so as to avoid risk of foreseeable injury to the plaintiff. The plaintiff claims that the truck driver breached his duty by failing to keep an adequate look out, failing to safely overtake the plaintiff, failing to operate the truck safely, failing to create more space between the truck and the plaintiff when overtaking, failing to slow down and failing to pay due care and attention to the location of the cyclists on the road - particularly where the driver ought to have known of the danger of driving too close to the cyclist, potentially causing him to either lose control or be knocked from the bike by the backdraft caused by the truck.
The plaintiff's case, as pleaded, is that the truck was in close proximity to him when it overtook him, and that the aerodynamic pressures created by the truck and/or the simple close proximity of the truck materially contributed to him losing control of his bike. Further, it is the plaintiff's case that the bike travelled onto the gravel shoulder, losing traction and causing the plaintiff to fall.
While the plaintiff called an expert witness, Dr Casey, to testify as to the likely effects of the aerodynamic flow around a truck and the differing pressures created by the truck on any object it passes, the plaintiff's case is also sufficiently broad to encompass the plaintiff being forced to enter the gravel and having lost traction as a result.
The defendant does not admit any breach of that duty of care on the part of the truck driver. The defendant's case is that the truck driver manoeuvred the truck so as to allow the plaintiff as much room as was possible in the circumstances. It submits that the aerodynamic forces created by the truck ought to have had minimal effect upon the plaintiff, and that the plaintiff's case amounts to mere speculation as to the cause of him coming off his bike, such that there is no basis for concluding that the driver of the truck breached his duty and negligently caused the accident.
The case significantly turns upon the decisions of fact made by this court and the credibility of the two eyewitnesses.

Description of accident site

Unfortunately, neither party commissioned a scale plan of the scene. Photographs are very helpful, but they also tend to be quite deceptive given the laws of perspective. A scale plan gives context to photographs. Equally unfortunately, neither party provided a series of photographs drawing progressively closer to the accident site travelling west, the direction the plaintiff and the truck travelled.
Before the court are aerial photographs from Google Maps that appear to be images from 2017. One of the eyewitnesses, Mr Chilcott, lives in the area and works in the vicinity of the scene and testified that it has not changed at all since the accident. I have therefore placed reliance on the aerial photographs which give the most accurate view of the road, and the bend, and provide a scale. The only limitation on the aerial photograph is that, in superimposing road names on the satellite image, Google Maps has added a faint pale grey band (containing the names) on top of the image, and the band looks rather like a road, and obscures the true road underneath. The band makes the road look broad, with very straight, neat edges, but the road is in fact rather narrower.
Also before the court is a series of four photographs taken maybe 30 minutes after the accident by the eyewitness Mr Cairnduff.
And, finally, the court has a series of 22 photographs taken by the plaintiff the day prior to the trial commencing. Again, on the basis that the scene has not changed in the intervening three years, I have placed reliance on those photographs as well. Obviously there will have been some growth in the trees lining the road over a three-year period, and possibly some extra saplings have emerged, but the trees are natives dependent on rainfall only, so any change is unlikely to affect my findings. Some of the trees can be matched between the photographs as well, supporting the view that there has been no real change, apart from the odd emerging sapling.
All of the scene photographs have to be treated with some care because of the effect of the laws of perspective, and I have taken that into account as best I can.
The accident occurred on the Broomehill - Gnowangerup Road, and both vehicles involved, the plaintiff on his road bike and the truck, were travelling west. The relevant stretch of road has two lanes, and runs very broadly east-west. It is a typical Western Australian country road. It is not a major route, and does not have an unbroken white line delineating the outer edges of the lanes, or any audible edging, or an extra-wide shoulder outside an unbroken line to assist cyclists. For the most part, it has a typical gravel verge either side, a few metres wide.
The road appears to be flat. Perhaps it has the merest incline heading west, but not so as to impact on visibility at all. On the day of the accident conditions were fine and the road was dry.
The accident took place at an intersection of that road and a gravel lane. I will call it an intersection, but it is not in any sense a formal marked intersection. A driver on the Broomehill - Gnowangerup Road would barely register the gravel lane either side of the road. The gravel lanes are there because the road intersects a farm property, and Mr Chilcott, in a slow-moving farm vehicle, was using the gravel lane to get about on the farm and to cross over the road. At the very point of the intersection, the lane is roughly perpendicular to the road, although on the southern side of the intersection, where Mr Chilcott was, it runs a little more south-east from the road.
That gravel verge widens out noticeably in the vicinity of this intersection with the gravel lane, presumably because of the intersection. For traffic travelling west, the gravel verge starts to widen about 25 ‑ 30 m east of (or prior to) the point where the lane meets the road, and that wider area of gravel is clear of the usual eucalypts either side of the road, presumably to enhance visibility for someone wanting to use the lane to cross over. It would be a place where cars could conveniently pull over into the gravel to stop.
That intersection on the south side (the left side for traffic travelling west) is where the plaintiff came off his bike. Although, of course, there was a lead‑up to that event, when I refer in this judgment to 'the accident', I mean the point at which the plaintiff came off his bike, and when I refer to the 'accident site', I mean the area where the plaintiff came off his bike and hit the gravel. And when I refer to the 'intersection', I mean the precise point at which the gravel lane (the path and width of which can be judged from the aerial photographs) intersects the road on the south side, rather than the entire widened gravel shoulder surrounding that point of the intersection.
The intersection is pretty much at the mid-point of a bend in the road which, for traffic travelling west, is a right-hand bend. The photographs taken at ground level exaggerate the bend. The aerial photographs show that it is only a gentle bend, beginning about 50 m before the intersection and ending about 50 m after the intersection for traffic travelling west. There are a number of typical white markers with reflective patches in the left-hand gravel verge for traffic travelling west, to highlight the bend.
At the point of the bend, the road is marked by a double unbroken white line, making it illegal to overtake for traffic travelling in either direction. I infer that visibility was therefore limited to an extent, or there would not have been a need for an unbroken line. To the extent to which the defendant's written submissions might suggest otherwise, I reject that submission. Unfortunately, there is no photograph depicting the commencement of that double line on the approach to the accident site.
Because the intersection is pretty much at the mid-point of the bend, someone crossing over at that point must have good vision in both directions. That makes the widened out gravel verge at that location a place where cars might not only pull over, but pull over to do a U-turn. Tyre marks visible in the gravel suggest they do.
The road seems to be of typical decent quality. It is apparent from a number of the photographs that there is a narrow bituminised shoulder on the outer edges of the road. It is not delineated by a solid white line as one would generally see on a major country road, but is apparent because of a visible change in the camber, it having a more obvious slope away from the centre of the road, presumably for greater drainage to protect the edge from erosion. There is a visible line showing where the camber changes, and close‑up photographs show the bitumen surface to the left of that line is more sloping and is of lower quality, with visible cracking. The safest position for any vehicle would be inside (to the right of) the visible line, so as to avoid being too close to the edge and to have a stable surface. That would be particularly so for bicycles and motorbikes which have less tread on the road.
From photographs taken by the plaintiff the day prior to the trial, and measurements he took as part of that photography session, the left‑hand lane travelling west is about 3.41 m wide from the absolute mid-line between the two unbroken centre lines to the absolute outside edge. At points it is narrower, but I intend to work with that wider measurement. Given that the lane in fact does not include the unbroken white lines, the width is reduced by, judging from the tape measure, a minimum of 14 cm for a vehicle absolutely aligned with its wheels just adjacent to that inner line. That reduces it to 3.27 m. The bituminised shoulder takes about 34 cm from that width, reducing the total width of the stable lane surface to 2.93 m.
For traffic travelling west, there are at least three white reflector posts marking the bend in the road prior to the gravel widening out in the approach to the intersection. The evidence is that there are 27 paces, those paces being about a metre, between the posts. It is a challenge on the evidence to accurately judge how close to the intersection the closest reflector post is, but photographs B.16 ‑ 22 show that the closest reflector post marks the beginning of the gravel verge widening out. Judging from aerial photograph E.3, and the widening out of the gravel and the location of the trees, that marker is probably about 30 m back from the intersection. That makes the second marker about 57 m back from the intersection and the third marker about 84 m back from the intersection.

Brief comment on the witnesses generally

The plaintiff testified and also called Mr Cairnduff and the expert witness Dr Casey. The defendant called Mr Chilcott. It was not suggested to any witness that his evidence was untruthful. It was obvious that the two eyewitnesses were doing their best to give an honest and accurate account of the accident.
Mr Cairnduff is acquainted with the plaintiff and a fellow cyclist, and was taking part in the same event. He spoke to the plaintiff at Gnowangerup prior to the accident.
And as a cyclist, he might be expected to have some natural empathy with the plaintiff's position, particularly as the plaintiff was seriously injured. Nevertheless, Mr Cairnduff appeared to me to give a balanced view of what he recalled, and described the truck as giving him plenty of room as it overtook him prior to overtaking the plaintiff. He was not defensive in cross-examination. I found him to be a fair-minded witness.
Mr Chilcott was a truly independent witness. He just happened to be at the scene, and there is no suggestion he was acquainted with either the plaintiff or the truck driver. He struck me as a quite unsophisticated witness. I also found him to be a fair-minded witness, doing his best to recall what he saw and that, in broad terms at least, he had a fair recall of events.
As will appear later in my findings and reasons, I consider both witnesses to be inaccurate about some details, of timing and distances, and perception about the position of the truck and the bike. That is hardly surprising. In fact, it would be surprising if either witness could give a totally accurate and internally consistent account which accords with the objective evidence, let alone one which matches the other eyewitness.
What both witnessed occurred in a matter of about six seconds, involving rapidly moving objects, and both witnesses must have been a bit affected by what they witnessed. Mr Cairnduff watched the accident take place up ahead as the truck and the plaintiff were some distance off moving away from him, so that he saw it from behind, while Mr Chilcott was closer to the accident, watching it take place in front of him, but from an angle offset to the action. Both men had some impediment to their vision, bushes in the case of Mr Chilcott, and the truck itself in the case of Mr Cairnduff.
But there are certainly common threads in their evidence when analysed.
I have been mindful in this case of comments made in some cases involving unidentified drivers of the need to scrutinise the plaintiff's account. Virtue J, in Westlake v Motor Vehicle Insurance Trust [1960] WAR 83, 86 ‑ 87, cautioned of the need to scrutinise the evidence of a plaintiff who is alleging negligence against the driver of an unidentified vehicle with particular care:
At any rate when corroborative evidence of the existence of the vehicle in question, either by oral testimony or by the existence of physical signs of its presence at the scene is lacking, and I consider the same careful scrutiny should be applied to the evidence where, though the presence of an unidentified vehicle on the road at the time and place of the accident is established, the only testimony as to the negligence of the driver of the vehicle is that of the plaintiff, particularly in a case such as the present where no impact with the unidentified vehicle is alleged, and where the accident could quite reasonably have happened in the way it did without the intervention of another vehicle at all.
Clearly, the defendant has been denied the ability to call the truck driver, who might have contributed something to the evidence before the court if he recalled the cyclist. Equally clearly, the plaintiff himself is not the witness testifying as to the negligence of the truck driver. He has no recollection of the accident at all. And there are two eyewitnesses, both of whom confirm the involvement of the truck at the same time as the plaintiff coming off his bike and sustaining injuries. There is no need here to apply more scrutiny to the plaintiff's account than to any other witness in the case. I am quite satisfied that he was a truthful witness, and a reliable one, given the nature of the evidence he gave, which was of a more general nature about his usual practices in cycling.

The plaintiff's evidence

The plaintiff works as a barrister, and was 57 at the time of the accident. He has no recollection of the accident at all. He recalls participating in the event generally, which was an organised ride from Perth to Albany return. He was riding a road bike with aero bars attached on top. He said it was a timed event, but not a race. His last recollection was of the stop in Gnowangerup where he had something to eat, drank a coffee and also had a 20-minute nap before setting out again. He recalls riding out of the town. His next memory was being placed into a Flying Doctors Service plane.
He also gave evidence of his experience as a cyclist. He began cycling as a small child living in Holland, riding to and from school. His family came to live in Melbourne when he was 11 and he continued cycling. By the time he was at university, he was cycling competitively, in 20 km and 30 km road races. He started work as a lawyer in 1982. His work often took him interstate and he used to take his bike with him.
In 1985 he moved to Adelaide, joined a cycling club and participated in a number of longer rides. In 1989 he moved to Sydney and joined the Sydney cycling club. He used to ride with the club about four times each week. The plaintiff's particular focus in cycling was on endurance events and time trials. On Sundays they would ride out from the city to the town of Waterfall and return, an approximate 95-km trip. The time trials were held north of Sydney and consisted of either a 25-km route or a 43-km route.

Between 1996 and 2007 the plaintiff ceased riding for personal reasons, but resumed in 2007. In 2010 he participated in the Gay Games in Cologne. Nine hundred cyclists of widely ranging experience competed and the plaintiff was one of two cyclists to win three gold medals, competing in the individual time trial, the road race and the criterium. He has twice competed in the 640‑km Lake Taupo cycle challenge in New Zealand.
In 2011, 2012 and 2014, he participated as part of a team in the Race Across America, a 5,000‑km continuous race from San Diego to Annapolis, Maryland. He was planning to enter the 2015 Race Across America as a solo cyclist. He testified that, in the 35 years that the event has been held, only 359 people have completed it solo. The Perth to Albany event, in which he was injured, was to be part of his training. Notwithstanding his accident, in 2015 and 2017 he competed in the smaller sister race, the Race Across The West, a 500‑km race from San Diego to southern Colorado.
The plaintiff has also held positions in various cycling clubs and disciplinary committees and has been actively involved in assisting new cyclists to gain experience riding on the roads. He explained the challenges of riding in a bunch on the roads and explained how his club in Sydney arranges introductory rides for people to learn the skills to participate in bunch riding.
Riding in Sydney provides significant experience of riding along very busy roads including the freeway that goes to the airport, the Sydney tunnel, the eastern suburbs, the ride to Waterfall, riding to Wollongong and up north to Palm Beach. He said one of the routes that he rides in the eastern suburbs takes him down to Port Botany and there are often a lot of trucks, including semi‑trailers, along that route.
The plaintiff gave evidence about how he generally rides his bike. He said when he cycles he is very aware of the need to maintain his concentration, and be aware of both what is in front of him and what is happening behind him coming forward. He said he always has a light on at both the front and the rear of his bike, which flashes during the daytime. He wears reflective strips on his clothing and on the back of his cycling shoes and the bike itself also bears reflective strips.
The plaintiff testified that for this event he had a road bike with the standard drop down handlebars, which from his demonstrations place the hands at shoulder width, but he also had aero bars (also referred to as tribars) attached to the top of the handlebars, which place the elbows and hands in a more outstretched positon in the centre front. He therefore had different options for the position of his hands. Utilising the standard handlebars, he could place his hands on top of the brake hoods and levers, which would place his back in a semi-upright position. But he also had two more aerodynamic positions: he could shift his hands down to the bottom of the handlebars, lowering his torso at an angle of about 25º - 35º to the road, or he could use the central aero bars which again would drop the spine to about 25º - 30º from the road, but also narrow the arms and chest by stretching them out in front so that the torso is leaning further forward. The relevance of that evidence is that one of the eyewitnesses to the accident, Mr Cairnduff, described the plaintiff as being in that position as he was overtaken by the plaintiff just prior to the accident.
The plaintiff testified that it is still possible to look around and move your head while in an aerodynamic position. He explained, however, that one of the things a cyclist must be aware of is that moving the head causes the upper body to move with the head, which then causes the bike to move in the same direction. He said that natural movement must be counteracted by turning the hips in the other direction. He said that that is one of the things they teach new riders in the introductory rides held by his cycling club. He testified that in time, with awareness and practice, the action becomes automatic. He said he knows full well how to counteract by moving his hips.
During the Perth to Albany to Perth event, the plaintiff's bike was fitted with a Garmin bicycle computer, being a device which is attached to the front of the handlebars and records time of day, distance travelled, GPS location, altitude and speed, as well as cadence, power output, and kilojoules burned by means of a heart rate strap worn by the rider. The device records data every second. That evidence was unchallenged and I accept the readout as accurate.
It indicates that the accident occurred one hour and 38 minutes after the plaintiff pressed 'Start' on his Garmin device, which he believed he would have done when he set out from Gnowangerup, which makes sense given that he stopped there and rested. I do not have the complete printout – the extract I have starts at 1:32:00. About six minutes before the accident, the plaintiff had been travelling at about 18 – 20 km per hour at higher altitude, presumably climbing a slope, but he gradually picked up his pace and, at 1:38:14 hours into that segment of the trip, he was travelling at 32.5 km per hour at an altitude of 298 m with a cadence of 86 revolutions per minute.
At 1:38:15 both his power output and his cadence dropped to zero and never resumed. His speed increased to 32.6 km per hour, but the next second it dropped to 29.3 km per hour, then 6 km per hour in the next second, then zero at 1:38:18. The drop in both cadence and power output is consistent with the bike coasting momentarily and then losing speed altogether. I have no direct evidence as to whether the device continues to record a speed even if the bike has come to grief and the wheels are still spinning while slowing to a halt. Either it does, and that represents the 6 km per hour, or the plaintiff may have braked at the last.
The recording on the device then appears to have been interrupted after 1:38:19, because there is an almost 10-minute gap which is not consistent with its previous functioning. Then the bike has a speed of 3.4 km per hour for about four seconds and thereafter returns to a speed of zero. I infer that to be the result of a bystander wheeling the bike from the gravel, or possibly spinning the wheels to check their function, but more likely the former.
On 1 August 2017 the plaintiff returned to the accident site and took some footage, and a series of photographs. The footage is exhibit C and, from that footage, stills have been extracted which are exhibits B.16 – 22. The footage is taken from the accident site looking east, and shows a Scania prime mover with a lengthy trailer approaching in its correct left lane and rounding the bend, with its driver's side wheels firstly on the double white lines, then very slightly over them, then very slightly inside them or maybe just touching them.
It is not suggested of course that this is the same truck. The expert witness, Dr Casey, testified, however, that this Scania prime mover is 'almost certainly' 2.5 m wide. Given his evidence about his familiarity with trucks and his evidence (summarised later) concerning the width of heavy vehicles generally, I infer the Scania truck is 2.5 m wide.
Mr Cairnduff was asked in evidence to comment on the position of the Scania truck in B.16 – 22 and compare it to the position of the truck he saw on the day. I will detail that later.
The photographs taken by the plaintiff that day are exhibits B.1 - 16. Only one photograph depicts the road facing west, and that from the accident site, rather than the approach to the site. The photographs depict the accident site, the road facing east showing the three white road markers leading up to the accident site for those driving west, the quality of the road surface and the distinct difference in road surface between the bituminised lane and shoulder and then the gravel verge either side of the road. They show the gravel verge widening out considerably at the accident site itself, and they also illustrate a series of measurements of the width of the lanes taken by the plaintiff on that day using a tape measure. The details have been mentioned earlier. In summary, the left-hand lane travelling west is about 3.41 m wide from the absolute mid-line between the two unbroken centre lines to the absolute outside edge. That includes the bituminised shoulder, about 34 cm wide, and the space taken up by the white lines, reducing the roadworthy surface width for a cyclist to 2.93 m. I have no evidence as to the width of a cyclist on his bike, but obviously I am picturing a man's shoulders as the widest point. The plaintiff is not a large man. He has a cyclist's build.
What the footage does is visually demonstrate what the measurements of the lane tell me as a matter of logic: that a heavy vehicle of 2.5 m width takes up almost all the lane, even when its driver's side wheels are on the middle white lines. If one includes the cracking bitumen shoulder as part of the lane, there is precious little room for a cyclist to stay in the lane and the likelihood of physical contact between him and his bike and the overtaking vehicle is enormous. If one excludes the shoulder, there is no potential for the cyclist to be overtaken without physical contact with the overtaking vehicle.

Evidence of Gary Cairnduff

Mr Cairnduff is a sports physiotherapist. He is acquainted with the plaintiff, but is not a friend. He too was participating in the ride from Perth to Albany and back.
He testified that he spoke to the plaintiff at the stop at Gnowangerup because they both came into the rest station at about the same time. The plaintiff told him that he was planning to have a rest, whereas Mr Cairnduff was planning to push on, and so he started out ahead of the plaintiff from Gnowangerup.
He said around 3.50 pm he was riding alone and the plaintiff, who was also riding alone, overtook him, riding 'strong and straight and he passed me with no effort. He – he was – he was riding well and smoothly'. He also said the plaintiff was down on his tribars when he overtook Mr Cairnduff and right up until the time the truck passed the plaintiff.
By contrast, Mr Cairnduff was 'struggling a little bit', riding 'relatively slowly and it was into a little bit of a head wind'. He estimated his own speed as about 25 km per hour at that point and the plaintiff's speed as around about 30 km per hour. The readout from the plaintiff's Garmin device shows that estimate to be accurate. For the 30 seconds prior to the accident, the plaintiff was riding around 28 – 30 km per hour. To give that context, Mr Cairnduff said a professional cyclist is capable of sprinting at 75 – 80 km per hour, and a middle-aged man at his best in a full out sprint may be capable of 40 – 50 km per hour.
Mr Cairnduff summarised the accident:
A short while later a road train overtook me and then a little further on the road the – the road train overtook Steven but didn't – didn't appear to deviate from, you know, his course and Steve was knocked off his bike onto the – onto the gravel and he rolled over it appeared twice and came to rest on the ground and – and then I tended to him at that stage.
He later clarified that he did not see the truck make contact with the plaintiff:
It didn't appear that he was startled. It also didn't appear that he was struck, but he was – he was somehow pushed straight onto the side. You know, he wasn't like – like pushed forward by the truck, it was a straight side but it didn't look like he started and then got a – got a fright, it was just a direct push.
He said that at the time the truck overtook the plaintiff he
couldn't see daylight between Steven and the truck. But neither could – could I say there was a – a blow either. When a – when a truck of that size overtakes you it – it – it – it – the wind effect actually pushes and pulls you. And so it looked like he – he was you know, he was pushed by the – by the wind you know, but it was very, very close. The truck was extremely close to him.
He described the plaintiff as being pushed directly into the gravel and said his bike flipped twice in close succession. He said the plaintiff went down onto his left side, and then flipped over, flipped again and that is where he came to a rest.
Mr Cairnduff described the truck as a three-carriage road train covered in brown hessian-like covering with no identifying marks at all. He did not believe it was only a two-carriage truck. He guessed its length at 20 m which, based on Dr Casey's evidence, would be far more consistent with a B-Double with two trailers. Not surprisingly, Mr Cairnduff did not notice a registration number. Prior to the accident he had no reason to look for one. He said there were no trademarks on the truck.
Mr Cairnduff said he could feel the truck as it came up behind him, because the vibration from a truck is deeper and louder than an approaching car. He said, 'You don't really hear them until very - very late and it's quite - they're surprisingly quiet. I felt – I felt it - it coming'.
He testified that, when the truck overtook him, he could see the plaintiff up ahead, approaching 'a very mild right-hand bend which then coursed slightly uphill'. He described himself as being probably 150 ‑ 200 m back from that bend as the truck passed him and said that, as it did so, it moved over onto the other side of the road, giving him plenty of space. He said the truck was travelling in the order of 100 km per hour.
He said, after the truck passed him, it 'then deviated back in to occupy the – the fullness of the left lane'. When asked whether the truck had slowed down or braked after it overtook him and approached the plaintiff, Mr Cairnduff said 'Not at all. There was – there was no braking, he just got into the left – the – the – the fullness of the left lane and stayed there'.
Mr Cairnduff was shown the bundle of photographs, which are exhibit B, taken by the plaintiff on the day before the trial. He recognised the accident location. In relation to photographs B16 – 22, the stills from the video showing the random truck negotiating the bend, with its right‑hand tyres over the white line, Mr Cairnduff commented: 'that is more space than was given to Steven'. He said that, from his perspective at the time of the accident, it did not appear to him that the truck had its wheels over the central white line.
Mr Cairnduff estimated that he was about 100 m behind the plaintiff when the truck overtook the plaintiff. He described the plaintiff's position on the road as being the same as his – that is, close to the edge but not right on the edge and 'maybe about, you know, 50 centimetres from the edge'. That would place him just inside the lane, the logical place to ride, and not in the bituminised shoulder.
When he arrived at the scene, Mr Cairnduff raced straight to the plaintiff who was unconscious and groaning. He said the plaintiff's feet had released from his pedals, so he moved the bike and then attended to his first aid.
He said that, luckily, there was a farmer on a tractor nearby (Mr Chilcott) and he motioned for him to help and asked him to call the ambulance and the police. People in cars stopped at the scene and helped. Mr Cairnduff said that one or two cyclists from their group came through maybe 15 minutes after the accident, and a larger group that were riding together came through probably about 20 minutes after the accident. He said the ambulance arrived about 40 minutes after the accident, and then the police.
Mr Cairnduff took a series of scene photographs that afternoon with his mobile phone (collectively exhibit D). Photographs D.1 - 3 face west, following the direction of travel of the plaintiff, Mr Cairnduff and the truck. The plaintiff is visible on the ground in D.1 and D.3 where he came to rest, with a number of people standing near him. The bike is not in situ. Mr Chilcott said that the cyclist's bike ended up 'not far from where he stacked it. Where – where he fell off his bike was where his bike landed ... just next to him'. It might be one of the objects in front of a blue car parked in the gravel, but that is clearly not where it came to land.
Photographs D.1 and D.3 depict the sweeping right-hand bend for traffic travelling west. Mr Chilcott's tractor is visible off to the left in the gravel verge in D3.
Photographs D.1 - 3 all depict a tyre mark in the gravel, on the left side of the road for traffic travelling west and in the gravel verge, with the plaintiff in the background further west of that mark. It runs broadly parallel to the side of the road but, if it was laid down by a vehicle (including a bike) travelling west, then it moved slightly further away from the road the further west it travelled. Mr Cairnduff said that he took photographs that afternoon of what he thought was relevant, and his guess was that the mark was about the position that the plaintiff came off the road, but said that he cannot say that the mark represents any of the plaintiff's tyre marks.
Photograph D.4 is a photo facing east, depicting the bend from the opposite direction and showing three white traffic marker posts which plainly highlight the bend in the road for traffic travelling west. In the foreground, the shadows cast by the photographer, and two people crouching near the prostrate plaintiff, reflect the hour: about 4.20 pm Mr Cairnduff said, about half an hour after the accident, by the time he took the photographs. He said that at the time of the accident the sun was higher in the sky than depicted in the photograph, and dismissed glare as a causative factor in the accident.
The mark in the gravel is not able to be distinguished in D.4 with confidence from numerous other marks in the gravel. The previously mentioned blue car belonging to someone who stopped to help is parked on the gravel verge on the same side of the road as the plaintiff and those helping him. The car is almost parallel to the road and is parked further west (so closer to the scene) than the last of the three road markers approaching the accident scene.
The same car appears in D.3, in the same position. The perspective is somewhat deceptive, but both parallel edges of the road and the wheels of the car converge at a similar vanishing point, indicating that the car is almost parallel to the road. Mr Cairnduff testified that the plaintiff 'certainly came off the road at a point which was about level with where the rear of that car is', referring to the blue car. Referring to the gravel mark mentioned a moment ago, he said the plaintiff left the road
… just let's say relative to the maybe the rear part of – of that car. We can see that there is a – a – that tyre track comes back past the car but it also seems to go onto the road so I'm not sure if that's Steven tyre mark or – or not, but Steven certainly came off the road at a point which was about level with where the rear of that car is.
Contrary to what his initial descriptions might have suggested, that evidence clearly suggests that Mr Cairnduff was not saying that the plaintiff fell off his bike while it was still on the bitumen road surface, but rather that his bike had left the road.
When it was suggested that the tyre mark was far too wide for a bicycle, Mr Cairnduff suggested that it was not too wide if the bike was skidding sideways or if the handlebars were slightly twisted so that the wheel would be pushed sideways, not forwards. In relation to the appearance of the skid as moving back towards the road at its end, however, and when asked whether the plaintiff ended up nearly on the road, he commented:
Yeah, that's right, so I'm not – I'm – I'm – I'm not saying that that's – that that's his tyre. I can't say for sure.
He agreed that the tyre mark could be 'wholly irrelevant'.
In cross-examination Mr Cairnduff testified that he feels that the plaintiff first 'came off' (which appears to have been understood by the witness to mean 'left the road') just prior to reaching the white marker post closest to the scene. He later confirmed that he believed the plaintiff first left the road just prior to reaching that marker post. The cross‑examination as to how much prior to that post he left the road was muddled. The witness may have agreed on 5 m, but it is not clear. He also said that the plaintiff came off the road just to the rear of the blue car, and those two descriptions are consistent with each other. They are also broadly consistent with his thinking on that day, as he obviously did, that the mark in the gravel was relevant.

As to how long the plaintiff travelled in the gravel from that point, Mr Cairnduff testified:
It – it was – it was really not very far at all, so, like I said, there were two flips, he's still travelling forward. If I had to guess distance, it – it actually might've been about 15 metres maybe, 20 metres maybe, not – but not – not that much. Once – once you hit the ground you're going to stop pretty soon.
When asked whether he was saying that the plaintiff was upright for 15 or 20 m, Mr Cairnduff responded:
No. No, no. He went straight down and – and – so, if you're asking the amount of time that he was travelling forward before coming off the bike ... between the time that he hit the ground and – and was buffeted by the – the – the truck, it might – it might have been five to 10 metres before he hit the ground and flipped.
Again, Mr Cairnduff said that he was probably about 100 m behind the plaintiff at the time he came off his bike. Once he was informed that the distance between the white marker posts was understood to be 27 m, Mr Cairnduff said that it was possible that he was between 50 and 100 m back, but said he had a clear view of the plaintiff the whole time.
He denied that the truck going past him caused a lot of dust, but said that when the plaintiff hit the ground there was a lot of dust created. His sense was that it was the plaintiff being knocked over that caused the dust, rather than the truck.
In cross-examination Mr Cairnduff said that, when the truck passed him, he would have judged that it was 'smack-dab in the centre of the roadway'. He said it was 'maybe a matter of – a matter of 20 seconds maybe' before it then passed the plaintiff, but said he was not timing it and said 'it didn't take long'.
At the rate of 100 km per hour, a truck would cover 27.8 m per second, and in 20 seconds would travel 556 m. Allowing that Mr Cairnduff was also moving, at around 25 km per hour he thought, that would put the truck 394 m ahead of him over 20 seconds. Unfortunately, no-one asked him to count to 20 in court to bring home to him the sense of that timeframe. Twenty seconds is an excruciatingly long time within the context of a traffic accident, yet he was describing something that he said did not take long. Mr Cairnduff conceded that he could have been further back on the road, but commented that:
The pictures you know, indicated that further back than that would mean that I wouldn't have had a clear line of sight. However, I can recall having a clear line of sight ... the entire time.
He agreed that it was possible that he was further than 100 m behind the plaintiff, but said that:
Given that a – you know, more than a hundred metres or so puts me completely out of the line of sight ... it makes that not – not probable.
Mr Cairnduff later said that it is very hard to judge timeframes in seconds and said he wasn't concentrating on the timeframes at the time. He also said he could only estimate the truck's speed, and the plaintiff's speed, but said he is quite used to estimating distances in terms of how far someone is away from him in a cycling race and whether or not he has the ability to catch them, and also distances on sporting fields.
As it happens, however, his estimate of the plaintiff's speed was pretty much spot on, as revealed by the readout from the Garmin recording device.
Mr Cairnduff said that, after the truck passed him, 'it moved back very promptly'. He said the truck moved back 'as soon as it had overtaken me' and said 'it was not like it – it dwelled on the other side'. When asked how far in front of him the last trailer of the truck had returned to the left‑hand lane, he replied:
All I can say it was very soon. It was not – it was not like it stayed out there for – for a long time.
He agreed that the truck did not put him into any jeopardy in that manoeuvre and said he would assume that it must have been some distance in front of him when the rear of the truck returned to the left‑hand lane, but said he would not be able to put a distance on it. He said it would have taken under five seconds to achieve that. Dr Casey later testified that a truck could deviate from its line of travel by a full truck width – 2.5 m – in about three seconds, admittedly if it swerved, but not violently so as to lose stability.
Mr Cairnduff insisted that he had the plaintiff in his vision the whole time and said 'I was actually observing what was going to happen to Steven'. He testified:
I remember involuntarily at – at the time when I saw the truck approaching him and then I saw him go off, I involuntarily yelled out, 'Steven'. And it wasn't at the back part of the truck. It was really within the first carriage, it – it seemed, or towards the first and second carriage where he was pushed off to the side. Like I said, I actually couldn't – I couldn't see daylight between the truck and Steven at that stage.
He agreed that it was his perception that the plaintiff had been pushed off the bike by the forces generated by the truck, rather than being struck by it, and that that had occurred at the junction of the first and second trailers.
He said he was unable to say whether or not the plaintiff had turned his head and looked at the truck as it approached him (as Mr Chilcott said). He said he knows the plaintiff did not change his position. He commented that a person riding behind someone riding in the tribar position might not be able to see if they turn their head. He commented that:
Those things happen very quickly. You know, once – once you're falling, you know, you don't really – it's not like you have time to adjust your hand position.
When it was suggested to Mr Cairnduff that, if the truck was as close to the left-hand side of the road as he had described, he would not have been able to see the plaintiff around the truck on the bend, the witness countered that one could not make that assumption from the photographs which were facing east.
The court, however, has the benefit of the aerial photographs, which enables a better assessment of sight lines to be made.

Evidence of Aaron Chilcott

Mr Chilcott is a 32-year-old farmhand who, for the past five and a half years, has worked on a farm which is in close proximity to the Broomehill ‑ Gnowangerup Road. Mr Chilcott said he still lives in the same area and knows the intersection, and it has not changed at all since the accident. He was shown the photographs taken the day before the trial (exhibit B) and said they depict the accident scene as it was at the time of the accident.
On that afternoon, he said at approximately 4.00 pm, he was driving a telehandler (similar to a tractor) on the gravel lane which intersects the road. He was planning to cross over the road to the corresponding lane on the other side. He was completely stationary, waiting for a clear opportunity to cross over. The telehandler can only do about 10 km an hour. He was not right at the edge of the roadside, and initially estimated he was 10 - 15 m back from the road. I assume he hung back from the road edge so that he could get up to full speed to cross.
The side of the road Mr Chilcott was waiting on is the same side where the plaintiff came to grief in the gravel verge. The conclusion of the incident therefore happened almost right in front of him, with the plaintiff and the truck moving closer to him, but also for the most part at an angle to him. That gave him a very different perspective from Mr Cairnduff, who watched from behind the action, as the plaintiff and the truck moved away from him. Mr Chilcott testified:
I was driving in a laneway, about to come across a crossroad. There's a – there's a long bend where I was about to cross and there was a group of cyclists come along prior to this truck heading to the corner. The cyclist was coming around the corner, as he was coming around the corner so was a truck. As the cyclist got to the middle of that gravel shoulder he glanced at the middle of the truck. As he glanced at the middle of his truck, looked over his right shoulder. He then went wobbly and ploughed into the gravel with his bike and himself.
He said that, from memory, the truck was a long-nose prime mover B‑Double, with a smaller trailer at the front and a big trailer behind. He also thought it was yellow and blue, and had a livestock crate, but could not remember whether it was loaded or not. He has driven trucks himself, including trucks with a trailer behind, although he has not driven B-Doubles.
As soon as he saw the accident he got out of the tractor and assisted.
He clarified that, as he approached the road, he first saw a group of cyclists pass and then the plaintiff riding his bike by himself. He said he was about 30 m away from the road when the group passed, and he continued to approach the road, coming to stop 10 – 15 m from the road. Given the slow speed of the telehandler, covering 2.7 m per second at top speed, that group of cyclists were well ahead of the plaintiff, by about 40 seconds if his estimate of his position is correct.
It is apparent from the aerial photograph of the scene that if his telehandler was pulled right up to the edge of the road, Mr Chilcott would have had an unimpeded view in both directions. He was, however, back from the road somewhat. Unfortunately, there is no photograph before the court which gives any sense of his line of sight.
His tractor is depicted in photograph D.3, to the front and side of the blue car parked on the verge, but the effect of perspective makes it difficult to judge how far from the road edge it is. It may be a bit less than 10 m, judging from the width of the road. It is not sufficiently close to the blue car to be shown in photograph D.4. Mr Chilcott said he had been 10 – 15 m 'away from him' – meaning the cyclist after he fell - 'and then I had just rolled forward that little bit from that 10 to 15 metres and then pulled up to assist with him'. That description was from the cyclist, not the road. If he was 10 – 15 m from the cyclist when he fell, then he was well back from the road, and ended up closer to the road post‑accident. He agreed that, at the time of the accident, his tractor was parked further away from the road than is shown in photograph D.3.
He was asked 'And is that 10 to 15 metres further back?' with which he agreed. That question and answer were ambiguous, but counsel followed up with some clearer questions and the witness did agree he was 10 – 15 m 'further back along the track'.
Utilising the scale on the aerial photograph, it is unlikely that he was as much as 20 – 30 m back from the roadway. In that case his vision would have been so impeded by vegetation as to be entirely inconsistent with any real view of the accident. He was, however, further back than is shown in photograph D.3. And while he said that there was nothing obscuring his vision of the cyclist as he approached, he said the trees and bush along the edge of the roadway were obscuring his vision of the truck a little.
The aerial photograph E.2 shows trees lining both sides of the road, from about 25 m east of the intersection, and continuing in an easterly direction. The aerial photographs appear to be from some time in 2017, but Mr Chilcott said the scene remained unchanged, and the trees are natives, not deciduous trees that might vary with the seasons. Further, while the wider gravel verge is treeless, there are some trees further back from the road and to the east of the gravel lane Mr Chilcott was driving along, so that those trees were between him and the approaching plaintiff and cyclist. Those trees are not dense and his view of the gravel verge and the approaching traffic from the east would depend on precisely where he stopped his telehandler. The aerial photograph of course shows the canopies of the trees from overhead, and a person near the ground may well have greater vision than the aerial view suggests, because they are looking underneath the canopies. But even as close as 10 m from the roadway, the aerial photograph does strongly suggest that his vision to the east was likely to be impeded to some extent by trees. And he said he was further back than that.
The very beginning of the bend for traffic travelling west is about 50 m from the intersection. The nature and density of the trees can be best gathered from a combination of the closer aerial photograph E.3, and photograph D.4, which shows the view west from the wider gravel verge itself, very near where the plaintiff came to rest. The trees are not of uniform height, or density. Some of the canopies are quite high, but a lot of the canopies are low, only 2 – 3 m from the ground, and others look to be in the 4 – 6 m high range. Although they are a bit patchy in places, they would be quite an effective barrier to vision if one was looking through them. Mr Chilcott did not have the view shown in D.4. He was further back from the road, enough that the trees impeded his vision, he said, to an extent, of the truck.
From 10 m back from the roadway, even allowing that his view under the canopies may have been better than the aerial photograph suggests, he could not have had a clear view of that truck approaching until it was within about 40 m of the intersection, although he would have glimpsed it through the trees approaching for possibly quite a distance. The cyclist, of course, was lower to the ground, and more likely to have been visible under the canopies of the trees. The further back Mr Chilcott was from the road, the less opportunity he had for a clear view.
He was under another disadvantage too. The road is not straight, but bends. And he was perpendicular to the road at the point of the accident, but the further east he looked, the narrower that angle became. And the effect of perspective on the view, as demonstrated in D.3, is to exaggerate the appearance of the bend, and to make objects in the distance seem closer to each other than they are. That may well have influenced his description of the plaintiff and truck approaching.
Back to his description: he said that when he first saw the lone cyclist, he was riding on the edge of the bitumen and was approximately 'about a hundred metres up that gravel road when I first spotted him'. I assume the reference to a gravel road is actually a reference to the bituminised road.
Comparing aerial photograph E.3, and its scale ruler, to that description, and bearing in mind where he said he was at the time of the accident, it is just impossible to accept that Mr Chilcott in fact saw the plaintiff from 100 m east of the intersection, or 100 m away from him. That description puts the plaintiff just off the edge of the aerial photograph. Had Mr Chilcott been waiting right at the edge of the road, he would have seen him at 100 m off, but not from a position 10 – 15 m back (or more) from the road.
He said that the next thing that occurred was that
the second – there's white posts further up, 30 metres away. As he approached that first he come off onto the gravel a bit and then he sort of came further – further into the gravel shoulder and he was halfway around that corner so was the truck, and that was when he glanced at the truck and lost control.
He was using the expression 'shoulder' to refer to the gravel verge.
From Mr Chilcott's vantage point, it would be difficult for a witness to have any precision about where the bend – which he calls the 'corner' – begins and ends. An aerial view is best. The laws of perspective exaggerate the bend in the photos taken at ground level.
It is hardly a 'corner'. It is a gentle bend beginning about 50 m from the intersection and ending about 50 m after the intersection for traffic travelling west. Halfway around the bend is actually about at the intersection.
Mr Chilcott annotated several of the photographs to show the route of the cyclist as he left the road, including exhibit B.3.
Exhibit B.3 depicts the road looking east, back the way the plaintiff and the truck came from, and shows a white reflector post to the right of centre of the photograph. To avoid confusion, I will refer to that as the third reflector post, meaning the third post in line for traffic travelling west, as the plaintiff and the truck did. Behind it, further in the distance, is the second marker post, and the first post they passed is off in the distance, only barely visible. As previously stated, the evidence is that there are 27 paces or metres between the posts and I judge the closest post to be about 30 m from the intersection, making the second post about 57 m from the intersection, and the first post they passed about 84 m from the intersection.
Mr Chilcott placed a '1' where he first saw the cyclist, which appears to be either level with or just closer than the first post off in the distance, and a '2' on the photograph to indicate the cyclist leaving the road surface and entering the gravel verge, which is level with the second post. From where Mr Chilcott said his telehandler was back from the road, it is doubtful he could even see the plaintiff as far back as the first post. He said that 'as the corner starts going around he – he started to move over onto the gravel then', indicating where he put the '2'. He said, once the cyclist was on the gravel, 'he just continued riding, riding along, moving across on the gravel more'. He was unable to remember whether the cyclist had kept peddling that whole time.
He said at the time the cyclist left the road and entered the gravel the truck was approaching him. He said:
It was just coming up – just coming up behind him, yeah, so, yeah, so the – where I've put the number two, the cyclist came onto the gravel and the – the truck is sort of up a little bit – coming towards him if you like, yeah.
He said the truck was approximately 20 m behind the cyclist when he went onto the gravel. That is not the only time Mr Chilcott's manner of expressing himself was incongruous to what he described. If the truck was only 20 m behind the cyclist, then it was not 'sort of up a little bit – coming towards him if you like'. It was a mere second behind him. On that version of events, the truck had already passed the third post in the distance by 7 m, as the plaintiff left the roadway at the second post.
Mr Chilcott said he could not estimate the truck's speed. It is notoriously difficult to estimate speed from a perpendicular or angled vantage point. Mr Cairnduff, however, was well placed to do that, given that the truck overtook him and then the plaintiff, and given that his estimate of the plaintiff's speed was accurate. He estimated the truck to be travelling at 100 km per hour.
In cross-examination, Mr Chilcott said the speed limit there was 110 km per hour, and it looked like the truck was driving at a normal speed. He agreed that would be in the order of 100 – 110 km per hour. At the speed of 100 km per hour, the truck would have covered that 20 m behind the plaintiff in less than one second. The plaintiff, at his pace, was covering 9 m per second.
When he was asked whether he saw any reason why the cyclist did that and whether the cyclist did anything, Mr Chilcott responded 'No. No, he was just riding his bike casually, normally, yeah'. Again that description seems incongruous with what he was describing. When asked whether the cyclist looked around at all, he responded:
Yeah, he sort of looked to his – looked over his right shoulder when the truck – when the truck was – was approaching him. I'm not sure whether he was looking at the truck or – I just couldn't tell from that sort of distance ... but I did sort of see, like, when – before he approached the corner he sort of looked to his right then as well, yeah ... That was sort of where the truck – the truck was sort of by that time 20 metres back from him type thing.
In response to my question as to whether the cyclist had looked over his shoulder twice or just the once, the witness responded 'I'm saying he looked over his shoulder twice'. To make sense of that, he had previously described the cyclist coming around the corner at the same time as the truck and glancing at the middle of the truck and losing control. So, on his account, the cyclist both looked to his right and left the gravel when the truck was about 20 m behind him, and then looked again at the middle of the truck as it passed, then the bike began to wobble.

He later confirmed that, when the truck was about halfway past the cyclist, he glanced to his right at the middle of the truck, the bike then squiggled and he lost control and the bike and cyclist then ploughed into the gravel. He later said he had a clear image that, as the truck passed the cyclist, the cyclist looked across his right shoulder as the first trailer was travelling alongside him and emphasised that was when the cyclist was 'right in the middle of that truck'. He added:
So, where that big trailer joins onto the small one, he was right in the middle of that truck when he looked – he looked over his right shoulder into it and then ploughed into the gravel.
He agreed that the cyclist came to a halt very quickly after that.
In re-examination, he confirmed that the cyclist took two glances at the truck, 'his first glance at the truck when the truck was behind him approaching him' and then his second glance was when he was on the gravel and at the level of the first trailer, 'which is the middle of the truck'. He said that, before that second glance, the cyclist was already on the gravel but his bike was not wobbling but, after the second glance, the bike wobbled and he lost control of it very quickly and fell off. He said 'it all happened very quickly'.
As to the position of the truck as the cyclist left the road and went onto the gravel, Mr Chilcott said:
When the truck was coming down the road where it's straight the truck was in the middle of the road. As the truck came around the corner he was sort of on the blink of being next to the white line, not crossing it, and just moved over to allow for the cyclist.
He clarified that, by 'middle of the road', he meant middle of its correct lane. He said as the truck approached the cyclist, it was in its correct lane in the middle of that left-hand lane on the straight, but 'as the truck comes around the corner it's then on the blink of – on the edge of the white line, so it hasn't actually crossed that white line'. He said the right wheel was almost touching the white line, but not crossing it. Given the angle he was at, and the impediment to his vision presented by the bend and the trees, and the description quoted above, his evidence is consistent with the truck being already close to the cyclist by the time it began to move over in the lane. The bend in the road only begins about 50 m from the intersection.
Although the transcript does not quite pick it up, the witness marked a '2' on photograph B.3 as he described the cyclist approaching what he described as the 'second post', which is actually the post in the foreground, and therefore the third post. Shortly after that, he was asked to place a '2' where the cyclist began to move onto the gravel and he crossed out his initial '2'. On the transcript the witness did confirm that he had crossed out his initial '2' because he was putting a '2' on the post. He drew a dotted line to indicate the path of travel of the cyclist, and it indicates the plaintiff leaving the road level with the second post in the background and travelling in a straight line, passing the post in the foreground approximately mid-distance between the marker post and the outside edge of the bitumen road and then continuing in that line.
In cross-examination, Mr Chilcott agreed that the marker shown in the foreground in photograph B.3 (which is the third reflector post) was the closest marker post to where the cyclist ended up on the ground. He agreed with the proposition that
it's at about the point of that point and maybe just shortly before it that he lost control and then ploughed into the gravel.
He also agreed that it was about where that post is that the cyclist looked over his shoulder and looked at the middle of the truck and lost control. He said that was 'a bit beyond that post heading back west' (in other words, heading back towards the second post). Notwithstanding that, he then immediately agreed that it was 'a little bit forward of the post'. In the end, he agreed that he was 'talking a few metres either way' that the cyclist looked across his shoulder at the truck at the point at which the first trailer was passing the cyclist.
It is important to remember, in looking at these photographs, the effect of perspective. The marker posts all appear to be approximately equidistant from the edge of the road. Because of the effect of perspective in the photograph, which narrows those objects in the distance and broadens out the foreground, the post in the distance appears to be closer to the road than the one in the foreground. It is not. Were there a further post in the absolute foreground of the photograph, it would appear to be even further away from the road, although it is equidistant. The line depicted by the witness therefore does not in fact suggest that the cyclist was riding further and further away from the edge of the road into the gravel. Rather, it depicts him leaving the bitumen surface and then riding in a straight line along the edge of the road midway between the markers and the bitumen.
Mr Chilcott also annotated photograph B.11, which shows the same area, but the photographer is east of the accident scene, facing west. The two posts that were readily visible in photograph B.3 are in the background of the photograph, and the first post, farthest from the accident scene, is in the immediate foreground. On this photograph, the witness showed the plaintiff leaving the road quite a distance prior to even reaching the second post, and then riding on the gravel verge drawing ever closer to the edge of the road, then riding parallel to the edge until losing control just about level with the post closest to the intersection.
The drawing does not make a great deal of sense, in that it does not depict any sort of gradual line taken to leave the road but, rather, depicts the plaintiff magically commencing the route in the gravel about 80 cm away from the road's edge, and then drawing noticeably closer to the road. The witness' annotations on exhibits B.3 and B.11 are not very consistent, apart from the obvious broad consistency of the cyclist leaving the roadway and continuing on in gravel along the side of the road until he came to grief.
Mr Chilcott estimated that the cyclist had travelled on the gravel for approximately 30 m before he lost control. He defined the loss of control as when the bike started wobbling. He said, once the cyclist lost control, he then travelled
not very long at all, he was probably half a metre from his bike when he front flipped and lost control, landed on his back. He drove into the – he ploughed into the gravel, so did his bike.
He later agreed that, from the point the cyclist left the road and entered the gravel, to the point where he fell off, he travelled about 30 m. On that description, whatever precisely he meant by the plaintiff being 'probably half a metre from his bike', the loss of control and the fall was quick. And on that description, his annotations on exhibit B.11, showing the plaintiff leaving the road well prior to the second marker, cannot be right.
When shown exhibit D.2, which depicts the mark in the gravel roughly parallel to the road which Mr Cairnduff photographed that afternoon, Mr Chilcott said:
That's the skid mark from the bike where he's – where he's gone wobbly and his bike has ploughed into the dirt and himself ploughed into the dirt.
When he was asked why he said that, he answered:
Well, it's just – it – it's just – just obvious. From what I was looking at with the way he fell off and – and everything that's – that's why. It was just – just from where I glanced.
He said he recalled seeing that skid mark on the day, but when asked whether he had reached any conclusion about it on that day or whether his conclusion was based on looking at the photograph, he said:
I'm reaching a conclusion about it now because I was more interested in assisting the gentleman with help.
He later agreed that he had not thought much of it one way or the other at the time, but now thinks it to be a skid mark from the bike. He agreed that, in any event, it is in the right location. He also agreed that photograph D.3, which shows the tyre mark running along the gravel verge to the left of the road, 'represents the pathway that the cycle took as it left the – as it lost control'.
Mr Chilcott also annotated photograph D.4, another of Mr Cairnduff's photographs, to depict the route the cyclist took, once he entered the gravel verge. Again, he drew a straight dotted line, this time depicting the plaintiff entering the gravel some distance after passing the second post. While the immediate impression created is that, once the plaintiff rode onto the gravel verge, he did not follow the line of the curving road but simply drove in a straight line getting further and further away from the edge of the road, which is what Mr Chilcott said occurred (quite contrary to his drawings on B.11), the perspective of the photograph is such that that is not really what Mr Chilcott has drawn at all. The same blue car appears in photos D.2, 3 and 4. As earlier described, by working on the assumption that the sides of the road are parallel to each other and comparing the converging lines to the vanishing point at the horizon, one can see that the blue car is parked almost parallel to the road, though it does not appear so in photograph B.3. In photograph D.4, because of the narrowing of lines in the distance and the broadening of lines in the foreground, the dotted line drawn by Mr Chilcott is far closer to the side of the road than it superficially appears.
If Mr Chilcott did intend to convey that the cyclist veered further and further away from the side of the road, then that is the opposite of what he conveyed in his annotations on photograph B.11. Further, later in his evidence, Mr Chilcott said that the cyclist rode 'pretty much smack-bang in the middle' between the edge of the bitumen and the marker post.
In photograph D.4, he has drawn the cyclist riding in a straight line to pretty much the precise spot where the plaintiff landed, almost suggesting the plaintiff cycling past the point where he ended up on the ground. That annotation is also inconsistent with the tyre mark in the gravel which the witness thought was 'obviously' made by the cyclist at the time. Although there are lots of tyre marks shown in the gravel, a comparison of photographs D.3 and 4 make it plain the dotted line the witness drew on D.4 does not reflect the gravel mark in question.
After all of his annotations of photographs depicting how and when the cyclist had left the road, the following exchange took place in cross‑examination:
Would it be fair to say that as the truck was passing the cyclist - - -? – Yes.
- - - and he looked to his side, that's when the pushbike drifted to the left‑hand side of the highway and onto the gravel shoulder? – Further in, yes.
The truck didn't make contact with the - - - ? – No.
As soon as the cyclist's tyres into the gravel shoulder the bike began to wobble and became unsteady, you agree with that? – Yes.
The proposition that the bike began to wobble as soon as the cyclist entered the gravel is not consistent with his annotations.
He agreed it was difficult for him to remember precisely where the cyclist was and where the truck was in the lead up to the accident and agreed that his evidence was his best estimate.
Mr Chilcott agreed in cross-examination that most trucks are about 2.5 m wide. He also agreed 'that when the truck went past the cyclist he was within a metre of the side of the truck'. Obviously that answer is of assistance to the plaintiff's theory that he was affected by the pressures created by the passage of the truck in close proximity to him.
A bit later in his evidence, Mr Chilcott was shown photograph D.3 and agreed that 'at the bottom of the picture is ... about the point where the truck is passing the cyclist'. The bottom of the picture is east of (or behind) the blue car parked at the scene after the accident, and must be somewhere near to the white reflector post closest to the intersection. Mr Chilcott said 'That's where he glanced at the middle of the truck' and agreed that he then lost control. It was put to him that, if that is all correct, 'the cyclist must have been on or very close to the edge of the tarmac up until the point where the truck is passing him?', Mr Chilcott agreed. Again, that answer is significant.

Expert evidence of Dr Robert Casey

Dr Casey prepared a report for the court dated 28 April 2017 and also testified. His qualifications and experience were placed before the court and there was no challenge mounted to his expertise. I am satisfied that he possesses expertise in a recognised field of science, namely fluid mechanics and thermodynamics associated with heavy vehicles.
Initially, aspects of his report were objected to by the defendant on the ground that there was to be no evidentiary basis for some of the factual assumptions underpinning his conclusions based, as they were, on a witness statement from Mr Chilcott, whom neither party was planning to call. Partway through the trial, however, the defendant announced that Mr Chilcott was in fact available to testify and so the objection largely fell away.
Objection was maintained to a couple of aspects of the report, the resolution of which was left to this judgment. The first was to Dr Casey's comments about the width of the truck (which are dealt with later in this judgment). The second was to an inference in his report to the effect that the truck driver 'would have an impetus to remain within the normal trafficable lane to avoid the potential of a collision with oncoming traffic'. It is merely part of his reasoning, and not a conclusion expressed as to the final question before the court. I consider it admissible, but with the obvious caveat that matters of fact are ultimately for the court to decide. I also consider his reasoning to be obvious in any event. It is hardly speculative to presume that a truck driver would be motivated to obey the law and avoid a head-on collision. Such logic cannot trump evidence from an eyewitness, of course, as to the position of the truck on the road. Both eye witnesses placed the truck within the normal trafficable lane.
Much of Dr Casey's evidence and his report served to explain aerodynamic flow around a large truck. His evidence was clear, credible and uncontroversial and I accept it.
He explained that, as a truck travels forward, the broad vertical surface of the front of the truck necessarily pushes air out of the way in order to pass through, requiring that displaced air to flow over the top of the truck, around the sides or underneath it. The action of pushing the air out of the way generates positive pressure, resulting in a force that pushes backwards, acting to slow down the truck. The highest positive pressure is generated at the centre front of the truck and at the front of the truck generally. As the air flows around the truck, the positive pressure decreases. At the rear of the truck, the airflow that was displaced by the front of the truck must flow back in behind the truck once it passes, creating negative pressure, with the result that air is sucked in to the space immediately behind the truck. That negative pressure also generates a force that is pushing backwards, and retarding the forward motion of the truck and forms part of the aerodynamic drag on the truck.
Dr Casey testified that as well as the front of the truck, which creates the most positive pressure, any part of the truck that is facing forwards into the airflow can generate positive pressure, for example, the leading face of each trailer and the front face of the tyres. There are, therefore, a number of points down the side of the truck that can create positive pressure.
Because of that, the air velocity (the rate of motion of air) running along the side of the truck, and consequently the pressure too, alters because the aerodynamic forces change quickly, creating a blustery effect. He explained that if the truck is overtaking another object, the object being passed is subjected to
positive pressure, slightly less. Positive pressure, slightly less. Positive pressure, slightly less. In turn, each time one of the high pressure areas moved past. And that variation between positive pressure and something slightly less creates the blustery effect. Blustery effectively means changing quickly. It refers to airflows that change quickly.
Dr Casey testified that if a cyclist is travelling at 30 km per hour, and a passing truck is travelling at 100 km per hour, and if the truck is a B-Double, then it will take about 1.4 seconds for the truck in its entirety to overtake the cyclist, and those pressure variations would occur across that 1.4-second timespan. He testified that if the truck is a B-Triple, being a truck with three trailers, then it will take about 1.7 seconds for the same thing to occur.
The effect of these forces, Dr Casey explained, is that as the front of a truck drives past an object, those pressures generated near the truck's nose act to push the object away from the truck, out towards the side of the road. As the truck passes, the blustery effect occurs and, as the rear of the truck passes, the negative pressures act in the opposite direction and act to suck the object in towards the centre of the road.
He explained that two significant factors affect the level of aerodynamic force exerted by the truck. The first is the distance between the truck and the object being passed, because the aerodynamic flow around the truck reduces back to normal if the object is sufficient distance from the truck. At a distance of 1 m away from the truck the positive pressure generated is reduced to much less than half the maximum pressure generated, and at a distance of 2 m away from the truck, the positive pressure generated at the front of the truck is reduced to very minimal levels.
Dr Casey pointed out that these two points align with requirements implemented by some road authorities, including both Australian and US road authorities, in which vehicles overtaking cyclists must preserve a minimum safe passing distance of 1 m or 2 m, depending on the authority. He was not suggesting that such a requirement was in fact in place at the time of this accident, but was simply explaining the rationale behind such recommendations or requirements. As this judgment nears completion, new regulations have just been announced in this State, effective from 30 November 2017, requiring vehicles on a road with a posted speed limit of 60 km per hour to provide a minimum passing distance of 1 m from any cyclist, which increases to 1.5 m on roads with a posted speed limit exceeding 60 km per hour.
The second significant factor is the relative speed difference between the object and the truck. At the time at which he prepared his report, Dr Casey had no information on the speed of the truck. The court, however, has the evidence of Mr Cairnduff that the truck was travelling approximately 100 km per hour.
It is worth quoting Dr Casey's detailed analysis of two potential factual scenarios in full. He testified:
As I understood it, the inference was that Mr Berveling fell off the truck [sic, bike] just as the truck had passed him. I took that to mean at the rear plane of the truck as he became unstable at that particular point. That being the case, that indicated to me that any sort of aerodynamic effect at the front of the truck, he had managed to cope with it or deal with it in such a way that he didn't become unstable at those earlier points, and it was only once he became aligned with the rear of the truck that it became unstable. So, that indicates to me that in order to deal with the effects towards the front of the vehicle he must have adopted some form of countermeasure to deal with them. In other words, as the very front of the truck passes by Mr Berveling it would try to push him towards the side of the road. That follows because at the front of the truck there's a large area of high pressure and that high pressure would act outwards to push him towards the outside of the road. If he didn't get pushed towards the outside of the road he must have taken some form of countermeasure, such as counter‑steering or leaning or some other measure to deal with that and if he - - -
SWEENEY DCJ: And you're saying that, that he must have taken some sort of countermeasure notwithstanding that you're saying the truck would have taken about one and a half seconds to pass him? ‑ I need to cover that point as well. Because that does change things. So – when I prepared my report the speed of the truck, I had no indication as to what the speed of the truck was - - -
Yes. This is, of course, a hypothetical, it's just what we put to you earlier - - - ? ‑ I understand. I understand. So I intentionally left that particular area alone and left it open. So, if it is the case that the truck was travelling at 100 kilometres an hour and Mr Berveling was travelling around 30 kilometres an hour, the difference in speed between the truck and Mr Berveling would be 70 kilometres an hour, and as I pointed out that means that the truck in its entirety would take somewhere between 1.4, 1.7 seconds to pass him. That's so short that the truth is that it's still possible on that basis that an influence at the front of the truck could cause him to become unstable but because it takes him a short amount of time to deal with that instability it could still be present further down the truck. If the truck was passing him very, very slowly, for example, the opposite end of the spectrum, then you'd expect that he would have had plenty of time to deal with instabilities at the front of the truck to stay upright. But if the truck passes him very quickly it may not be the case that he had properly dealt with everything at the front of the truck. He may have been still dealing with it when other parts of the aerodynamic effects were influencing him.
MR DROPPERT: And on your original assumption that he left the roadway and came off his bike just as the rear of the truck had passed him, what effect then would the low pressure zone at the back of the truck have on a moving object, such as the cyclist? ‑ The low pressure at the rear of the truck would tend to suck him towards the centre of the road. If that was in conjunction with countermeasures where he was already trying to steer towards the centre of the road it could cause him to become unstable. In other words, if that's put in place alongside countermeasures that he had adopted earlier it may be enough to explain why he became unstable.
Now, if you were to assume there's a different assumption about where he came to leave the roadway and that was at the end of the first trailer - - -? ‑ Yes.
- - - what effect would that have on your analysis of the forces involved, given your expertise? ‑ If he started to leave the roadway towards the end of the first trailer several factors would then come into play. The first would be that travelling from the front of the prime mover to the end of the first trailer there would be a number of effects that he would have been exposed to, including the high pressure zone at the front of the truck, and the buffeting effect as he travels down the truck, particularly the effects from the prime mover's wheels and the trailer's wheels as well as from the front face of the second trailer. All of those would cause buffeting so each would be a rapidly changing force. The second aspect is that if it's accepted that the truck was travelling at 100 kilometres an hour then all of that would have occurred very, very quickly. It's around about maybe 12 to 15 metres or so to the back of the front trailer, and at a relative velocity of 70 kilometres an hour, that would take much less than one second to have passed him. Because it's so short, less than one second, it may well be the case that although he actually started to travel off the road when the read [sic: lead] of the front trailer had passed him, he may well still have been dealing with instability that occurred because of the forces at the front of the truck. So, in other words, because it's less than a second he may well still have been unstable by what was occurring at the front of the truck, or, it may well have been a combination of the fact that there was a buffeting effect subsequent to that as well, or some combination of that.

The speed of the truck is critical. It gained almost 19 m per second, every second, on the plaintiff. If the plaintiff left the road as far back as level with the second marker as Mr Chilcott said, which is approximately 57 m from the intersection and about 50 m from the point at which I estimate he came off his bike, and the truck was 20 m behind him when he left the road, and passed him to the extent of 13 m so that he was at about the mid-point of the truck when he began to lose control, then the truck would have covered that 83 m to the point at which the plaintiff came off in 2.9 seconds, while the plaintiff would have used those 2.9 seconds to cover 26 m, and just make it to the third post.
If the truck was 40 m behind him when he left the road at the second post, applying the same logic, then the truck would have taken 3.7 seconds to cover that distance, while the plaintiff would have used those 3.7 seconds to travel 33 m, making it to 6 m past the third post.
If the truck was 50 m behind him when he left the road, applying the same logic, then the truck would have taken four seconds to cover that distance, while the plaintiff would have used those four seconds to travel 36 m, making it 9 m past the third post when he was passed. It is close, but not close enough, to sync those two events.
If the plaintiff left the road midway between the second and the third reflector posts, which would be approximately 43.5 m from the intersection, and therefore about 36.5 m from the point at which I estimate he came off his bike, and the truck was 20 m behind him when he left the road, and the truck passed him to the extent of 13 m so that he was at about the mid-point of the truck when he began to lose control, then the truck would have covered that 69.5 m to the point at which he came off in 2.5 seconds, while the plaintiff would have used those 2.5 seconds to cover 22.5 m, again making it to 9 m past the third post when he was passed.
If the truck was 40 m behind him when he left the road mid-way between the second and third posts, it would have covered the 89.5 m in 3.2 seconds, while he covered 27 m, making it to 13.5 m past the third post, only 10 m – or one second short – of where I estimate he came off the bike. Once he began to lose control he must have gone down quickly, and that is consistent with the account of both Mr Chilcott and Mr Cairnduff, and it seems reasonable to allow around a second for that event. If he was able to hold it for more than a second, then that puts the truck closer behind him when he left the road. I will allow that second. If that is generous, that only puts the plaintiff closer to the third post when he left the road. Allowing for that short gap in time between the bike beginning to wobble and it actually flipping on the cyclist, that scenario - which is very close to what Mr Chilcott described, given the speed at which things happened and allowing for some understandable inaccuracy in his estimates – makes sense of his overall account.
And there is Mr Cairnduff's evidence that the plaintiff came off the road around the third reflector post travelling 'really not very far at all, so, like I said, there were two flips, he's still travelling forward. If I had to guess distance … 15 metres maybe, 20 metres maybe'. He said the plaintiff was not upright for that distance, because he went straight down and may have been upright for 5 – 10 m before he hit the ground and flipped twice.
Mr Cairnduff did not have the vantage point of Mr Chilcott. And he also must have lost sight of the plaintiff as the truck approached him and therefore may well not have seen the entirety of the plaintiff's time in the gravel. But still, he did have some view, and his impression of the time the plaintiff was in the gravel and travelling before going down was rather more brief than Mr Chilcott's account.
I find the accurate picture lies between their two accounts, and indeed the plaintiff's likely departure point off the road lies between the second and third reflector posts, mid-way or perhaps as bit closer to the third post. I find the plaintiff was in the gravel for about four seconds, during which time he could have travelled 36 m – no more - before he went down and was propelled forward. That is how quickly this occurred, and that gives some perspective to the difficulties any witness would have in being pinpoint accurate about what he saw.
I do not accept the truck was a mere 20 m behind the plaintiff when he left the road. The plaintiff would not have left it so close, not when the truck was closing that distance in one second. And if it had been literally that close, it is unlikely the plaintiff would have been able to stay upright in the gravel at all, as he did. Nor would it have been as far back as, say, 60 m behind him, when he left the roadway. Apart from the fact that allowing 60 m would be tripling Mr Chilcott's estimate of 20 m, the speed of the bike in the seconds prior to the fall speaks of the real urgency of the situation. Rather than having seen the truck coming and taken the fairly obvious precaution of slowing himself down before entering the gravel, the plaintiff actually sped up. He did not have time to reduce his speed before entering the gravel. He was trying to gain time. He just needed to get off the road. And a gap of 60 m again does not allow for Mr Chilcott's image, which I accept is real, of the plaintiff losing control just after the middle of the truck passed him and his landing where he did.
I accept the truck was already close to the plaintiff and gaining by the time he felt the vibration of its approach and turned to look at what was coming. And by the time he had seen it, and turned back to speed up and get off the road, that distance between the two must have rapidly decreased, by nearly 19 m per second.
A mere 40 m behind at the point at which he left the road, double what Mr Chilcott estimated, is extremely close, when the truck was gaining at that rate. Based on an acceptance of Mr Chilcott's evidence, but accepting that his estimate was too close, I am satisfied that the truck was about 40 m (possibly a bit less) behind the plaintiff when he first left the road.
It follows from that scenario that, two seconds after the plaintiff's wheels moved off the bitumen and into gravel, the front of the truck drew level with him and passed him. In those two seconds he travelled 18 m, which represents fully half his journey in the gravel before he came off his bike. The tyre mark, even though I do not have the entirety of it, indicates a bike riding in a straight line gradually moving deeper into the gravel. That accords with common sense, because the plaintiff could not, at that speed in gravel, afford to do anything else. The furthest he got away from the road's edge was about 80 cm, and at the halfway mark then, I infer he was about 40 cm away from the road surface as the truck passed. He could only have been fractionally further from the edge as the middle of the truck passed him a little over half a second later.
I have already found that the width of the left lane for traffic travelling west is about 3.41 m wide from the absolute mid-line between the two unbroken centre lines to the absolute outside edge. The truck did not have its driver's side wheels at the absolute midline. Nor were they at the white line. They were, according to Mr Chilcott, 'on the blink of being next to the white line, not crossing it'. He was very well placed to judge that position and I accept that evidence over the evidence of Mr Cairnduff who, from his position, felt the truck stayed in the middle of its lane. Of course, it must be said that there is not a great deal of difference, given the size of the truck, between it being in the centre of the lane and being close to the centre white line.
To accommodate that description, exhibit B.5 enables me to judge that from the 3.41 m width, I must subtract then 20 cm to place the truck's wheels just near the white line. The truck took up 2.5 m of the lane, rendering the passenger's side wheels therefore 71 cm from the edge of the road.
When the plaintiff's wheels were 40 cm away from the road's edge in the gravel as the front of the truck passed him, the truck's wheels were, I find, 1.11 m (or very close to that) away from him, at a point at which the respective speeds of the two were very different, the truck driving at three times the speed of the bike, and the bike was not on stable road surface, but on gravel. At the absolute end point of the tyre mark left by the plaintiff, he was no more than 1.51 m from the truck's wheels.
I turn now to Dr Casey's evidence concerning the effect of the pressure variations caused by a truck moving through air. In essence, he said as the front of the truck passes the object, the positive forces generated at the front and the side push the object away from the truck, then as the truck passes by, the blustery effect occurs and finally, as the rear of the truck passes, the negative pressures act in the opposite direction and suck the object in towards the centre of the road.
He also said that the aerodynamic flow around the truck reduces back to normal if the object is sufficient distance from the truck. At a distance of 1 m away from the truck the positive pressure generated is reduced to much less than half the maximum pressure generated, and at a distance of 2 m away from the truck, the positive pressure generated at the front of the truck is reduced to very minimal levels.
I have just found that the bike must have been 1.11 m away from the truck's tyres when it passed. So, at such a distance, the positive pressure generated was much less than half the maximum pressure generated. That does not mean there was no pressure generated. And the plaintiff was on a bicycle. In gravel.
At the very point at which the truck drew level with the plaintiff, the positive pressure would have operated so as to push the bike away from the road. The plaintiff was already leaving the road, and I have already inferred that he could not afford to do anything other than try to hold his bike steady and in a straight path as he entered gravel at 32.5 km per hour. It is inevitable that the positive pressure must have had some impact on the bike in those circumstances, although he was able to keep it upright.
As the truck passed him, he must have encountered the blustery effect as the pressures changed along the side of the truck. As the mid‑point of the truck passed him a mere .66 seconds after the front of the truck passed him, he must have encountered the change in pressure generated by the front of the second trailer at the same time as the negative pressure of the rear of the trailer in front of it, hence the blustery effect. He would have been marginally further away from the truck by then. A mere .66 seconds later, by which time he was still not 80 cm from the edge of the road, the back of the truck passed him, sucking the bike back towards the road.
I accept that the pressures exerted by the passing of the back of the truck would have been less, given that he must have moved further away from the road's edge, getting close to 1.51 m, which is the approximate width he reached at the end point.
But, nevertheless, I am persuaded on the balance of probabilities that the changing pressures generated by the truck did cause the plaintiff to lose control of the bike, in the circumstances he was in, namely cycling on gravel at a fair clip.
Firstly, I take into account the exact coincidence in time between the passage of the truck and the loss of control of the bike. That is a very compelling reason to draw a causative link between the two events.
Second, I have already found that the plaintiff did not lose control simply because he cannot cycle in gravel. He is an experienced and obviously capable cyclist and he managed to hold that bike sufficiently steady that the wheels remained in perfect alignment, as shown by the tyre mark left, until the last point. That does not mean, however, that cycling in gravel at some speed did not present him with a rather more challenging scenario than cycling on stable, smooth bitumen.
Third, the time taken for the truck to pass the plaintiff is so short - 1.33 seconds - that it is entirely superficial to separate out the impact of the positive pressure both before and as the front of the truck drew alongside him at a distance of 1.11 m away, from the blustery impact as it passed alongside him, to the negative pressure as the rear of the truck passed and overtook him. I consider it almost inevitable (and therefore at least likely) that, as the middle of the truck passed him, the plaintiff would still have been in the mode of dealing with the first pressure changes he had encountered from the front of the truck a mere .66 seconds earlier, and then the rear of the truck passed a mere .66 seconds after that, creating the opposite pressure effect.
In those circumstances, while the impact of the negative pressure at the rear of the truck must have been less because the bike must have drawn further away from the road in those 1.33 seconds, that negative pressure must have hit at a time when he was counteracting pressure pushing him away from the road, such that the negative pressure sucking him back towards the road would likely have encountered less resistance from him, as there was so little time in which to adopt the opposite countermeasures.
That is borne out by the tyre mark left by the plaintiff. The end of the tyre mark left by him, which I have already found to be the gouged part of the mark – not the wider shallower mark which intersects it and re‑enters the roadway - does veer back towards the road, and it is at that point that the bike clearly flipped and the plaintiff and his bike were propelled forward and deeper into the gravel verge.
I can reject the possibility that the change in direction towards the road at that point was a deliberate manoeuvre on the plaintiff's part. He had plenty of time in which to negotiate a gradual return to the road without attempting to execute a noticeable turn on a gravel surface at speed. I do not accept that he would have adopted so risky a manoeuvre. I am satisfied the bike moved that way without his cooperation, consistent with the gouged appearance of the tyre mark at that point.
Had the plaintiff been cycling on a good bitumen surface at the time the truck passed within 1.11 m of him, he may well have had more ability to deal with these changeable forces. And even more significantly, had the relative speed between the bike and the truck been closer, and had the truck been travelling much, much slower, the plaintiff would have had more time in which to successfully deal with the changeable forces, and those forces would have been less in any event. I am satisfied that the bike was affected by the changing aerodynamic forces, and the plaintiff was unable to keep control of the bike in the gravel at that pace on account of those forces.
I am unable to reach a firm conclusion about the final moment that the bike was upright. The Garmin recorder shows the bike lost speed from 29.3 km per hour down to 6 km per hour, before the final reading of zero. That increased width in the tyre mark and the gouged appearance coinciding with it may represent a skid at 29.3 km per hour, following which the plaintiff and bike flipped over each other and the wheels continued to record a slowing speed as they spun in the air. Alternatively, that gouged wider mark may represent the plaintiff braking at the last, and being propelled off the bike. The cadence of the bike tells me nothing because there was no cadence in the last four seconds anyway.
I have no evidence about whether that Garmin recorder continues to record wheels spinning in air, and whether or not they did spin in air. Mr Chilcott gave no evidence suggesting heavy braking on the part of the plaintiff, but nor would I expect a witness watching a bike lose control to be able to dissect the event in that way.
But nor do I consider that anything meaningful turns upon whether or not the plaintiff braked. I am quite satisfied that he did not brake heavily just because the truck passed him, or because he felt like stopping. If he braked hard, then I infer it was because he knew he was losing control of the bike and felt it beginning to return to the road and, in that split second, he reacted. He had just had an intense few seconds of speeding up to get off the road in time before the truck endangered or killed him, and he must have been very aware of the proximity of the truck as his bike began to lose control. If he braked, I consider that no more than an understandable, human reaction in a split second of trying to control the bike.
There is no allegation of contributory negligence on the part of the plaintiff. The defendant's case after all is that the cause of the accident cannot be determined and is wholly speculative, in which case an allegation of contributory negligence would likewise be speculative. The onus at all times remains on the plaintiff to prove his case. But I am satisfied that, irrespective of whether he braked heavily in the last moment or not, he was losing control of his bike in that moment. Any reaction on his part in braking, if he did so react, was not the cause of the loss of control. It does not detract from the operative cause, which was the effect of the proximity of the truck, at speed, to the bike and the impact of the changeable pressures generated by that truck.
Similarly, I commented earlier that nothing turns upon whether or not the plaintiff glanced at the truck as it passed him. I do not accept the evidence that he did. That level of detail given by Mr Chilcott given his angle to the incident is not convincing. I consider it far more likely that all Mr Chilcott actually saw was the movement of the plaintiff as he began to lose control and as the bike began to flip.
But even if the plaintiff did glance at the truck, and that increased his vulnerability to the forces generated by the truck, again, I consider that no more than an understandable, human reaction in a split second of trying to control the bike in a dangerous situation not of his making. It also would not detract from the operative cause of the loss of control. Even if the loss of control was on account of his glancing and failing to keep control of the bike in those circumstances, rather than an increase in his susceptibility to the forces exerted by the air around the truck, that still would not detract from the operative cause of the loss of control which was that he was placed in that dangerous situation by the proximity of the truck, at speed.
I am satisfied that, but for the passing of the truck at a speed of 100 km per hour in close proximity to the plaintiff, as I have found to have occurred, the plaintiff would not have suffered harm.
I am also satisfied that the plaintiff had no choice but to leave the road, and no safe means once on the gravel, and in the very brief time frame available, by which to avoid the changeable pressures exerted on the bike by the passing of the truck at speed in proximity to the bike. He could not safely steer the bike well away from the road. He had insufficient time to do so, without risking suffering harm by loss of control of the bike by other means.
I am positively persuaded that the proximity of the truck, at speed, to the bike and the impact of the changeable pressures generated by that truck caused the loss of control of the bike. It was a necessary condition to the plaintiff losing control of the bike. But for that, he would not have been forced to leave the road, and he would not have lost control of his bike.
The defence case is that, whatever may have caused the accident and the injury to the plaintiff, it cannot be proved that the truck driver actually did anything wrong. The change in law requiring a driver to leave at least 1.5 m between his vehicle and a cyclist in areas where the speed limit exceeds 60 km per hour was not in operation at the time of this incident and I have not imposed it on the truck driver as a legal obligation at that time.

Clearly, the truck driver was operating under the limitations of the road itself. He could not, with any safety, cross over the unbroken double white lines. He could not take the risk of imperilling the drivers of oncoming vehicles.
Although one of the plaintiff's particulars of negligence is that the truck driver failed to steer or otherwise manoeuvre the truck so as to create more space between it and the plaintiff, if the truck driver chose to overtake the plaintiff with the truck's wheels actually on the unbroken white line, the most room he could give the plaintiff was 90 cm room on the road, on the basis that the cyclist was on the outer edge of the road. It was not enough room. At a speed of 100 km per hour, it was patently not enough room.
Driving with the driver's side wheels on the white lines would have courted a different danger, given that oncoming traffic might consist of a truck of similar width. If the truck driver chose to overtake the plaintiff with the truck's wheels just 'on the blink' of the white line, just a few centimetres inside that unbroken line, the most room he could give the plaintiff was 71 cm, on the basis that the cyclist was on the outer edge of the road. It was patently not enough room to safely overtake.
The truck driver was not in a position to get a tape measure out and measure the lane width before he passed the plaintiff. But the obvious size of his truck compared to the width of the lane cannot have escaped him.
And yet, in those circumstances, he chose to overtake the plaintiff. And he chose to do so at 100 km per hour.
In fact it was not safe for the truck to attempt to overtake the plaintiff at all. There was simply insufficient room for the truck to overtake the plaintiff travelling around the bend where the truck was confined to its own lane. In closing submissions the plaintiff submitted that the truck driver ought not to have overtaken the plaintiff at all until there was a safe opportunity to do so, and his pleadings were certainly broad enough to encompass that submission.
The risk of misadventure and harm to the plaintiff should have been obvious to the truck driver. A cyclist has almost no protection in an accident. And there can be no contest between a cyclist and a B-Double truck in which the cyclist comes off well. It is not reasonable for a truck driver to work on the premise that, in such circumstances, the cyclist must leave the road and retreat to the gravel verge. A cyclist has a right to ride on the road surface, designed for that purpose, graded, stable and safe.
Further, the truck driver should have slowed down, right down. He needed to do so if he was not to overtake the cyclist until he rounded the bend and could allow more room.
Given that the truck driver chose to overtake the plaintiff, then the evidence is clear that the impact of the pressure forces generated by a truck as it passes an object is increased by the greater relative speed of the truck. A decrease in the truck's speed would have seen a relative decrease in the impact of the forces on the bike. That decrease in speed needed to be considerable. I would consider a safer speed to be around 40 km per hour, given the size of the truck and the pressure forces generated by it, and the fact that it was to be passing a cyclist.
Further, a decrease in the truck's speed would have given the plaintiff more time in which to take evasive action so that he could slow down himself and enter the gravel at a lower speed. Of course, the plaintiff should not have had to enter the gravel at all. But if the truck driver had slowed down considerably, at least the plaintiff could have taken the evasive action he took with more time and therefore more safety.
It is no answer to say that a truck cannot slow down quickly. It is for the very reason that a truck cannot slow down quickly, nor manoeuvre as responsively as a car, that any competent driver of a truck with trailers attached has to anticipate the conditions ahead, including vehicles ahead, for a considerable distance.
Turning to the factors set out in s 5B of the Act, I am satisfied that the truck driver saw, or ought to have seen, the plaintiff cycling up ahead before he overtook Mr Cairnduff. This was a long straight road and there was no impediment to visibility. The presence of Mr Cairnduff should have alerted him to the possible presence of cyclists on the road and any competent truck driver would, in any event, have been looking at the road ahead. The plaintiff was well within range of vision range. There is no reason why the truck driver would not have seen the plaintiff if he was paying basic attention to the road ahead. I am also satisfied that he saw, or ought to have seen, the approaching bend from a considerable distance away, before he overtook Mr Cairnduff and, as he drew closer, the unbroken white lines.
I am satisfied that the truck driver knew, or certainly ought to have known, the width of the truck he was driving and the fact that the truck occupied most of the lane.
I find that any competent truck driver would have basic awareness of the forces exerted by his truck on objects he is passing. At the very least, any truck driver taking reasonable care on the roads ought to be aware of that phenomena, and the basic fact that increased speed increases the impact of those forces. He need not have had Dr Casey's level of understanding, but any truck driver ought to have basic awareness of the forces exerted by his truck on objects he is passing.
I am satisfied that it was foreseeable that, if the truck driver drove past any cyclist riding along that stretch of the road and could not deviate from his lane, then the cyclist would have inadequate room in which to ride safely, and any passing truck would thereby pose a risk of serious or fatal harm to the cyclist if the cyclist stayed on the road surface. That risk was significant.
It is plain that the truck driver was aware of the risks his truck posed to cyclists travelling on the road, demonstrated by his pulling out of his lane and straddling the white lines in order to overtake Mr Cairnduff. He also pulled closer to the centre lines when he approached the plaintiff, indicating that he was well aware of the need to give space to the cyclist.
Given the width of the lane, and the fact that no extra provision had been made for cyclists, the risk was obvious. It ought to have been obvious to the truck driver in this case.
The driver did not reduce his speed at all as he approached the plaintiff. That is indicative of a positive decision to not reduce his speed, as opposed to a failure to look ahead and anticipate the need to brake until he was too close to the plaintiff to slow down enough. There was no attempt to slow the truck. Clearly, the truck driver decided that he was overtaking the cyclist at speed irrespective of the very limited room that allowed the cyclist.
I am satisfied that the truck driver's manner of driving, firstly, in overtaking the cyclist at all when there was not the room to enable that to occur safely and, secondly, by his failure to even slow down to overtake the plaintiff, was unreasonable. It shows that he was simply not prepared to suffer the inconvenience of a loss of speed.
A reasonable driver, taking reasonable precautions, would have slowed right down to the plaintiff's speed to avoid overtaking him and harming or forcing him off the road.
The burden of taking such a precaution was a few minutes inconvenience. It is inconvenient for a large truck to slow right down to such a slow speed until an opportunity presents to safely overtake a slow vehicle. A truck takes a long time to be able to regain such lost speed, and one can understand a truck driver feeling frustration at the prospect. But that is simply what a driver of any vehicle must do upon encountering a very slow vehicle which cannot be safely overtaken. I am satisfied that, if there is insufficient room in which to safely overtake a cyclist, then the driver of a vehicle must wait for an opportunity to safely overtake the cyclist, even if that vehicle is a large truck.
Of course, if the cyclist in such circumstances is willing to retreat to the gravel as a slow vehicle, to enable the faster vehicle to ease past, then that can occur. But that is not what happened here. The plaintiff had no choice but to leave the road because of the speed at which the truck was approaching and the lack of space within which the plaintiff could cycle safely. It follows that I reject the submission for the defendant that, if Mr Chilcott's version of events is accepted, there was no breach of duty on the part of the truck driver because 'he moved to the right to the maximum extent within his lane and did not need to go further over because the cyclist was off the bitumen and on the gravel'. It was the truck driver's actions in approaching the plaintiff at high speed, in circumstances where there was insufficient room to overtake, that forced the plaintiff into the gravel, with precious little time for that manoeuvre to occur on account of that speed and the truck's position on the road. Indeed, if I were to accept Mr Chilcott's version as suggested, with the estimate of 20 m between the truck and the plaintiff as he left the road, then the plaintiff managed to leave the road a mere second before the truck took his place. I have largely accepted Mr Chilcott's version, allowing for inaccuracies in his estimates and other matters, but I draw quite a different conclusion from that submitted by the defendant.
In circumstances where a truck passes a cyclist leaving the rider insufficient room, and does so at high speed, the risk of harm, in terms of s 5B(1)(b), is not insignificant. That is an understatement in this case. The risk to the cyclist was very high. And the likely seriousness of that harm was also high. The likely scenarios encompassed the cyclist being, in effect, forced off the road onto gravel and losing control and falling and suffering injury, as happened here, possibly very serious or fatal injury, or actual contact between the passing truck and the cyclist, the outcome of which could only have been fatal. Those scenarios were entirely predictable at the time, not merely in hindsight.
That informs the degree of inconvenience which a reasonable driver, taking reasonable precautions, should have been prepared to endure. The loss of a few minutes time was a minor irritation, and does not compete with the likely risk to the cyclist in these circumstances. There is no particular social utility in the activity of the truck driver that merits consideration here.
I am satisfied that the driver of the truck breached his duty of care to the plaintiff in both overtaking him at all, which represented a failure to operate the truck safely and a failure to safely overtake and, in addition, in failing to slow down considerably. His breach of care in overtaking the plaintiff was made more serious and was compounded by the speed at which he overtook the plaintiff. I find that, but for the truck driver negligently overtaking the plaintiff in circumstances where it was unsafe to do so, and negligently increasing the risk attendant upon overtaking by executing that manoeuvre at 100 km per hour, the plaintiff would not have suffered the harm. Causation is established.
I consider the plaintiff had no choice whatsoever but to enter the gravel and, if any aspect of his ability to manage that manoeuvre was wanting (and I have not found it was), that does not detract from the conclusion that he would not have been placed in that position but for the truck driver's negligence. The plaintiff's case was broad enough to encompass a scenario whereby the plaintiff, forced into the gravel, simply lost traction in the gravel and thereby lost control of his bike and fell. Had I found that he had simply lost traction as a consequence of being forced into the gravel with no time in which to slow down and execute the manoeuvre more safely, I would still have found that he would not have been placed in that position but for the truck driver's negligence, and that causation is established.
It is not suggested that, if this court found the truck driver to have caused the harm by negligent driving, there is any reason why it would be inappropriate for the scope of the truck driver's liability to extend to the harm suffered.

Conclusion

It follows, by extension, that the defendant is liable.