| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : BEVERLEY ELLSBETH FOX and DAMIEN ALEXANDER FOX by his next friend and mother BEVERLEY ELLSBETH FOX -v- ACATINCAI [2002] WADC 82 CORAM : HH JACKSON DCJ HEARD : 8 & 9 NOVEMBER, 14 DECEMBER 2001 DELIVERED : 3 MAY 2002 FILE NO/S : CIV 1979 of 1998 BETWEEN : BEVERLEY ELLSBETH FOX and DAMIEN ALEXANDER FOX by his next friend and mother BEVERLEY ELLSBETH FOX Plaintiffs
AND
ION ACATINCAI
Defendant
FILE NO/S : CIV 2561 of 1999 BETWEEN : ION ACATINCAI Plaintiff
AND
INSURANCE COMMISSION OF WA
Defendant
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Catchwords:
Motor vehicle collision - Liability only - Negligence
Legislation: Nil
Result: Claim in Action No 1979 of 1998 succeeds - Claim in Action No 2561 of 1999 dismissed
Representation: CIV 1979 of 1998
Counsel:
Plaintiffs : Mr I Weldon
Defendant : Mr A S Stavrianou
Solicitors:
Plaintiffs : Lawton Gillon
Defendant : D'Angelo & Partners
CIV 2561 of 1999
Counsel:
Plaintiff : Mr A S Stavrianou
Defendant : Mr D R Sands
Solicitors:
Plaintiff : D'Angelo & Partners
Defendant : Marks & Sands
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Case(s) referred to in judgment(s):
Clark v Ryan (1960) 103 CLR 486
Weal v Bottom (1966) 40 ALJR 436
Case(s) also cited:
Eichsteadt v Lahrs [1960] Qd R 487
Joy v Phillips, Mills & Co Ltd [1916] 1 KB 849
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1 HH JACKSON DCJ: These two actions arise from a motor vehicle collision which occurred on 4 June 1998 at about 7.50 am on Toodyay Road at Red Hill. They came before me only as to liability.
2 Mr Acatincai was born on 22 March 1964 and was a truck driver. He was driving a Volvo FH12 prime mover (registration 8WG 942) hauling an empty trailer west on Toodyay Road downhill. 3 The deceased Mr Fox was driving a silver Volvo motorcar (registration 6YZ 801) east on the same road and going uphill. 4 There is no dispute about the road conditions. Toodyay Road at the relevant place is a bitumen carriageway with one westbound and two eastbound lanes. A continuous white line marks the edges of the road. The road width between those lines is about 11 metres, the westbound lane being some 3.9 metres and each eastbound lane some 3.5 metres wide. A continuous double white line separates westbound and eastbound traffic. 5 The road bends to the right for westbound vehicles. The speed limit is 80 kilometres per hour. 6 About 350 metres east of the site of the collision is a sign facing westbound vehicles reading Trucks Use Low Gear above another illustrating a steep decline. 7 A book of one plan and nine photographs is exhibit 1A-J. A large diagram of the road surface is exhibit 2. An aerial photograph of the area is exhibit 3. The aerial photograph was taken on or about 10 December 2000 to a scale of one to 20,000. 8 A police vehicle examination of the two vehicles found no defect of relevance in either. 9 Each driver was alone in his vehicle and there were no eyewitnesses to the collision.
Pleadings 10 In the first action, it is alleged that Mr Acatincai allowed his vehicle to cross the centre line of the road and to travel in a westerly direction in the eastbound carriageways of the road so that it collided head-on with the vehicle driven by the deceased.
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11 As a result, the deceased received injuries from which he died shortly afterwards at the scene.
12 Particulars of negligence are pleaded as being that the defendant was negligent in that without any reasonable cause, he allowed his vehicle to cross the centre dividing line of the road; that without any reasonable cause, he drove his vehicle for some distance westwards on the eastbound carriageways of the road; and that he drove his vehicle so as to collide with, or alternatively, failed to prevent his vehicle from colliding with the vehicle driven by the deceased. 13 The defendant denies each such allegation and denies that he was negligent. Further, the defendant pleads that the deceased caused or contributed to his own death by his own negligence. The following particulars, amongst others, are pleaded: 14 That he - "drove to a speed of between 85-95 kilometres per hour which speed was excessive in the circumstances; failed to keep any or any proper lookout; failed to exercise or maintain any or any proper control of his vehicle; failed to stay within the lane or lanes assigned to travel in an easterly direction; failed to maintain or exercise the reasonable care required when negotiating a curved bend on the road;" 15 In the second action, it is alleged that the Volvo sedan driven by Mr Fox drifted across the road from north to south into the path of the plaintiff's vehicle. 16 The plaintiff flashed his headlights at the deceased and applied his brakes and, by reason of the latter, the trailer being towed by the plaintiff "jack-knifed", pushing the plaintiff's vehicle to the northern side of Toodyay Road, to which side the deceased also changed course and a collision occurred. 17 The accident was caused by the negligence of the deceased in that the deceased drove to a speed of between 85-95 kilometres per hour, which speed was excessive in the circumstances; failed to keep any or any
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proper lookout; failed to exercise or maintain any or any proper control of his vehicle; failed to stay within the lane or lanes assigned to travel in an easterly direction; and failed to apply the brakes on his vehicle to avoid a collision. 18 In reply, the defendant says the plaintiff was negligent in that without any reasonable cause, he allowed his vehicle to cross the centre dividing line of the road; that without any reasonable cause he drove his vehicle for some distance westwards on the eastbound carriageways of the road; that he drove his vehicle so as to collide with, or alternatively, failed to prevent his vehicle from colliding with the vehicle driven by the deceased; that he drove his vehicle at an excessive speed in the circumstances; and that he applied the brakes of his vehicle in the knowledge that he would lose control as a consequence of such braking. 19 Alternatively, the defendant pleads contributory negligence. 20 The two actions were for obviously good reasons heard together.
Mr Acatincai's evidence 21 Mr Acatincai was, at trial, 37 years old and had been a truck driver for Giacci Bros since 1990. He holds A, B and C class licences, driving vehicles of various types including road trains. He was based in Bunbury where he lives. From time to time, the firm required him to work in Geraldton or Perth, usually staying in motels. It provided all mechanical servicing and required drivers to work no longer than 14 hours per day with at least 10 hour breaks. 22 In May or June 1998, he was staying at a motel in Cannington whilst working in a job which involved taking contaminated materials from a site in McCabe Street, North Fremantle to a tip or dump area at Red Hill. He was driving an eight wheeler Volvo truck with a 10 wheel trailer behind it. He had been doing this for about six weeks, usually five days per week. Typically, he would deliver three loads per day to Red Hill and then load the vehicle and drive it fully laden to the base or depot in Maddington, ready for the first trip the following morning. Sometimes, he would make four trips in a day. Each trip took three to 3-1/2 hours. 23 On 4 June 1998, he had left the motel at about 6.30 and had driven the fully laden vehicle from the Maddington depot to Red Hill and unloaded. The weather was inclement with intermittent heavy showers. The roads were wet. The truck was about 2-1/2 years old and in good
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condition. Visibility from the driver's position is very good; the driver is perhaps three metres above ground level. The vehicle has no bonnet, the engine being underneath the driver's seat. He used the same route for each trip, that being a condition imposed by Main Roads Department. He left Maddington at about 7.00 am to deliver the first load, arriving at the Red Hill weighbridge at opening time, 7.30 am. He then unloaded during heavy rain. He then drove back onto Toodyay Road. 24 He described the descent down Red Hill from east to west as steep. "On the crest of the hill there's a sign to say the trucks slow down." He said: "Actually before the sign I probably doing - I was in top here. I didn't exactly look at the speed but when you get to this sign the road actually goes a little bit like that and then comes down. It comes into a bit of a flat. It levels off, does it?---Yes, levels off. Is that what you are depicting?---Yes. It comes down like that and levels off and you actually got a little bit of parking on the left-hand side before the sign. If anything wrong with the trucks or the brakes or to check over all the truck, if necessary to - - - You can do something at that stage?---Yes. So when you got to that sign, what speed were you doing?---I was doing probably 65 kilometres an hour. Had you slowed down to 65 kilometres per hour?---Yes, I did and when I get to the sign I select the gear to come down the hill. And what gear - do you remember what gear you selected?---Yes, I dropped from 12 to 11 - one full gear. In the Volvo it's called sixth high to fifth high. Fifth high?---Yes. How many gears are there in this gear box?---It's a 13-speed gear box, 12 forward, one back.
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Had you done a similar thing on other occasions when you've come down that hill, namely slowed down when you got to that sign?---Yes, of course. And why do you slow down when you get to that sign?---You won't be able to travel fast. I was empty that time. Sorry?---That time I was coming down I was empty. I unloaded the truck and the speed limit is 80 kilometres and there's no way any vehicle of that size could do 80 kilometres coming down the hill, so he required to select the gear. At the same time he cannot change gears coming down the hill or going up the hill. And what were the weather conditions like at that stage, do you remember?---At this stage up to - coming down the hill it was still raining, drizzling. You said the road is winding. Is that right?---Yes. And in photograph number 1 there are three lanes and that's what is depicted, one going one way - one going west and two going east. Is that correct?---Yes. The road hasn't started being winding there. And so the lane going west is for traffic going down the hill?---Down the hill, yes. And the two going up the hill?---Up the hill. And there's a continuous white line as is depicted in the photograph?---Yes, continuing white line. Do you remember seeing anything as you came over that hill, the Red Hill road?---I first selected the gear and coming down the hill, probably 240 metres down, that's when I saw a car. Where was that car?---That car was coming towards me into my lane. He was travelling east, but on my side of the road. Right?---Yes. He actually went with his car over the white line with one set of wheels. ...
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Do you remember seeing that happen?---Yes, coming around the corner on that position, yes. Are you able to estimate the speed that that vehicle was travelling?---He could travel either to 90 kilometres. ... That's going up?---Yes. And your speed at that point was what, when you saw him?---65 kilometres an hour. Do you know what sort of vehicle that was?---I believe it was a Volvo. Now, the vehicle you mentioned was in your way?---Yes. Did you do anything at all when you saw the vehicle in your way?---Yes, of course. When I saw the vehicle coming towards me, I flashed my lights straight away to see what this man's doing and at the same time I applied my brakes. ... What would have happened if you kept on going and not applied your brakes?---If I would have kept going, we would have had a full-on contact. On which side of the road?---On my side of the road. ... Did you have a view of the Volvo and its position on the road?---Yes. What happened - did anything happen when you applied the brakes on your vehicle?---Yes. Once I applied the brakes and articulate what this man's doing, where is he going, the front wheel has locked up. The front wheel?---The front wheel on the truck locked up, actually the prime mover. It's air-operated brakes. All right?---When I started braking, the wheels would lock up.
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What happened after that that you can remember?---Yes, as the wheel locked up I started sliding towards the gradient side of the road. Towards the opposite side of the road?---The opposite of the road. Off you side of the road is it?---Off the right-hand side of the road. I'm sorry, that's mine. ... When you braked, the front wheels on your prime mover locked?---Yes. And your motor vehicle slid - - -?---Start going to the right, to my right. Towards you right?---Yes. In other words, across the line on to the other side?---Across the double white line, yes. Did you try to do anything to stop this movement to stop this movement onto the right-hand side of the road?---Of course. What did you do?---I steer to the left. I try to direct the truck back into the right position, but there's a term called jack-knife - - - Yes?---The actual trainer jack-knifed the truck. ... So the truck is going in one direction?---Yes and cause - the trailer causes to go truck one direction and trailer itself onto a different direction. Right, so your explanation is the truck goes in one direction, the trailer is going in another direction. Is that right?---Another direction, yes, yes. Did you see the Volvo again?---Yes. What we - - -when did you see the Volvo?---Yes. I was wrestling with the steering wheel to bring the truck back to the left-hand side, and
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when I looked through the passenger window, a car was coming - is correcting itself and coming straight towards me. What do you mean correcting itself?---Well, obviously the Volvo - he was coming towards me. I flashed my lights to him, I applied my brakes and I lost control of the vehicle. The other car - he corrected itself to come on his side of the road. To the left - - -?---Yes, to his left. Right. In other words, the lane going up the hill?---Up the hill, yes, yes, and - - - What was the condition of the road like at the time? Can you remember?---Yes. It was very, very wet. Actually the - there was water - - - There was water?---Water pouring on - down the hill on the road, yes, yes. All right, and when you applied your brakes, did you get any impression as to the slipperiness or otherwise of the road at that time?---Well, I knew - I knew that once you apply the brakes on the condition, that it can go anywhere, yes. Right, and you mentioned that you saw the Volvo vehicle?---Yes, yes. And referred to it correcting?---Yes, correct himself. So then what do you remember after that?---Strike - when he corrected himself, I remember that he smashed into my side of the road - my side of the truck, so really on the fuel tank, and than after that I just went off because the truck actually - - - ... What happened to it?---I actually - I hit the windscreen with my head and actually caused the truck to roll over and - - - Can you remember anything else about the accident at that stage after that?---After the - he hit me? Yes?---No, I only remember when I got to the hospital. Yes."
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25 Mr Acatincai then agreed he had no recollection of the day after his head hit the windscreen. He did not recall speaking to the orthopaedic surgeon, Mr Batalin, about the matter that day.
26 He next remembered being in hospital eight or nine days later. His injuries included a fractured skull. He was in hospital for some three months. He was then asked: "Now, when you regained consciousness, did you have a memory of the accident?---When I regain, yes, I did. When you regained your consciousness?---When I regained consciousness, yes. How long after that did you get your memory?---Yes, it took me probably 6 months after to get - - - 6 months after to get your memory back?---Yes, after come back from the hospital, maybe - - - ... STAVRIANOU, MR: Well, when you woke up in the hospital - say you woke up, when you realised you were in hospital?---Yes. Could you remember the accident then?---No, I was a bit confused at that stage. So when do you think you got a clear memory of the accident back?---Yes, about 6 months later. WELDON, MR: Could I just ask 6 months after what? H.H. JACKSON DCJ: After he regained consciousness - about - about 6 months. ... STAVRIANOU, MR: And then when you regained your consciousness I think you told a number of doctors what had happened in the accident. Is that right?---Yes, yes. But initially you couldn't remember?---Initially I couldn't remember, no.
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27 Mr Acatincai agreed that he had "a fairly good recollection" of the events up to the point of collision and his head hitting the windscreen and his losing consciousness. He described the dump site as about two kilometres from the point of collision. He had been travelling at approximately 80 kilometres per hour in top gear prior to the sign indicating "Trucks Use Low Gear". 28 He agreed that prior to trial, he had returned to the scene several times and that on the first such visit, he had gone to "the wrong corner, wrong place". He said he had then been confused. 29 He said that travelling empty, he had gone from 12th gear to 11th at about the place of the sign and travelled at 65 kilometres per hour. If the vehicle had been loaded, he would have travelled at about 10 or 15 kilometres per hour in third gear. He confirmed that he had first seen the Volvo car at a point "about 240 metres" past the sign. 30 When he first saw the other vehicle, it was on his side of the road. "He come over the corner on that double white line ... He was crossed with one set of wheels over the double white line on my side of the road." He flashed his lights and braked. The collision was about five seconds later. 31 Mr Weldon cross-examined Mr Acatincai extensively about his memory of these events. 32 Mr Acatincai agreed that on first recovering consciousness in hospital in Royal Perth Hospital, he had been confused and had no recollection of the collision, although he knew he had been in an accident. About four to six weeks after being transferred to Shenton Park, he had begun to think about the matter and to discuss it with visitors. 33 He agreed that he had not "pieced it together" but remembered only fragments by the end of July. He knew he had been driving the truck and that somebody else had been involved, "from other people telling me and,
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... I knew it was ... a traffic accident ..." In a statutory declaration made on 1 July, he said he had no recollection of the collision. He did not, at trial, recall making it. 34 On 30 July, he told a police officer, Constable Wisbey, truly, that he had no recollection of the collision or of anything else on that day. However, he agreed that by Christmas, he had a clear recollection of the matter. 35 He agreed that he had first seen solicitors in about September 1998. 36 In March 1999, Mr Sly Cohen, a clinical psychologist, reported that: "Mr Acatincai has returned to the accident site three times, staying for up to an hour in the hope of stimulating more memories of the accident. Although this is difficult, in a desire to provoke himself to try to remember as much as possible, gradually his memory for some of the time surrounding the accident has improved, but he still has no memories of the other vehicle or the accident itself." 37 Mr Acatincai agreed he had been having nightmares at that time. It is plain from the cross-examination on that report (at page 58 of the transcript) that Mr Acatincai's evidence on what he told Mr Cohen is unreliable. 38 In May 1999, Mr Acatincai's solicitors issued a writ and, in June, a statement of claim. He said that by May, he had a very good recollection of the events. In March or April, he had recalled the other vehicle's approximate speed "because he was coming very fast". He could not, however, give an exact speed. At about that time "probably" also he recalled changing gears and reducing his own speed from 80 to 65 kilometres per hour. 39 He said that he had travelled down the hill many times, always at 65 kilometres per hour and that he knew that if he braked suddenly on the hill at that speed in the wet, it would be dangerous. He said he had no reason to brake but for the other vehicle. There is a greater need for care with an unloaded vehicle in that situation. 40 He denied that he was reconstructing his speed and gearing from other trips. He said that that was a safe driving method and that even at lower speeds, given the circumstances which arose, the truck and trailer
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would have jack-knifed. Although he was more cautious in wet weather, the same gear and speed were used. 41 He was cross-examined about the place of the point of collision and of the point at which he had first seen the other vehicle. He said he saw it when he was between 220 and 240 metres past the sign "approximately, yes, it might have been more". 42 Cross-examined by Mr Sands, Mr Acatincai said his braking had been instinctive but he had also attempted to steer the vehicle to his left. 43 One of Mr Weldon's submissions is that Mr Acatincai's estimates of the speeds of the two vehicles and of the point at which he first saw the other vehicle cannot be correct given the agreed point of impact because his line of sight would have been obscured by the embankment and foliage on the north side of the road and the bend in the road. Mr Acatincai responded that when he had first seen the other vehicle, they were a "couple of hundred" metres apart and, at the relevant point, he estimated he could see 200 or 250, but not 300 or 400 metres ahead. He could see over the bushes from his position in the truck cab. He also suggested the bushes had been smaller at the time of the collision than when the photographs, exhibit 1, were taken. 44 Mr Stavrianou argued that Mr Acatincai was an experienced truck driver, familiar with his vehicle and with the road, and unlikely to take risks. That much I accept. He says that given the circumstances, he had to make an immediate decision to avoid an imminent collision. He was driving within the speed limit. He flashed his lights but then had to brake because of the behaviour of the other vehicle. 45 Making all due allowance for language difficulties, it remains very difficult to accept that Mr Acatincai has a real, let alone accurate, memory of the events of 4 June 1998.
Mr N J Batalin 46 Mr N J Batalin, spinal surgeon, spoke to Mr Acatincai at Royal Perth Hospital at about 4.00 pm on 4 June 1998. Mr Batalin did not have his detailed records with him at court, but recalled that Mr Acatincai was an articulated truck driver who had lost control of his vehicle on a hill in slippery conditions and that there had been a collision. Mr Acatincai was under narcotic sedation and the history was difficult to obtain.
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Mr Batalin later reported in writing, 10 June 1998, to Mr Prosser, of Royal Perth Hospital: Mr R M Fox 47 Mr Fox, a then community corrections officer, was travelling to Wooroloo Prison Farm. He was driving a Ford Falcon sedan east on Toodyay Road alone at 80 kilometres per hour. There was very little traffic on the road. On a flat stretch between Talbot and Campersic Roads, a Volvo sedan was also travelling east some 300 metres or thereabouts behind him. The vehicle caught up to him after Dalgety Road, about a kilometre on from where he first saw it. The Volvo came a bit too close, so he touched the brakes and caused the other vehicle to back off. Further on, he climbed the hill and lost sight of the Volvo when Toodyay Road veers left. It had been raining and was cloudy or overcast. He could not recall any truck passing in the other direction. 48 Cross-examined, Mr Fox said the Volvo had been behind him on a single lane section of the road and had made no attempt to pass. Where Toodyay Road climbs the hill and becomes a double lane road going east, "the further I went up the hill, the further behind the Volvo seemed to drop off". It seemed the Volvo was making heavy going up the hill. Mr Fox estimated his own speed at 80 kilometres per hour, the limit in the area. The Volvo dropped back a considerable distance.
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Mrs J E Kinnear
49 Mrs Kinnear, a sales manager, drove a Holden Statesman east on Toodyay Road alone. She described the day as drizzly and cloudy. The sun was not a problem in driving. Just before the bend, another female waved her car down. She slowed and saw a truck overturned and part of it on top of a car. She stopped at a point about 60 metres higher than the vehicles and got out. The road surface was oily and wet and extremely slippery. It was drizzling.
Mr G L J Oliver 50 Mr Oliver, a plant operator, was driving east on Toodyay Road at about 7.50 am in the kerbside lane. The road was wet but visibility fine. After Newman Road, he saw "a semi trailer on its driver's side" blocking the two eastbound lanes. Further east, a trailer was above a car. The road surface was very slippery. There was often a lot of glare, with sunlight shining through mist, but on this day, it was overcast and had been raining. Travelling before the bend, the direction is south-east and glare was not a problem. The collision was soon after the bend. He was first to arrive on the scene. The truck wheels were still spinning. He described the bend as a blind bend. Coming down the hill, a driver can only see around the corner when approaching and at the corner, not from the top of the hill or at the sign.
Detective Senior Constable K J Wisbey 51 Detective Senior Constable Wisbey was, in 1998, a motor crash investigator in the police service. He arrived at the scene at 8.40 am and arranged for photographs to be taken at the scene. From gouge marks, he fixed the point of impact at STN 8 on the plan part of exhibit 1. The road surface was wet and more slippery than a wet road usually is. He said the truck had ended up about 50 metres downhill from the point of impact. 52 On 30 July, he spoke to the truck driver, Mr Acatincai, at Shenton Park Hospital. The questions and answers are recorded in handwritten and typed form: Exhibit 4. It reads in part:
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number 8WG 942 that was involved in a crash on Toodyay Road Red Hill on 4/6/98? I can't remember anything about the crash or anything that day. The earliest I remember was the Saturday before the crash. This Saturday I was in Bunbury. I can't remember much after the crash until I saw my friends at Royal Perth Hospital. 11. Have you driven up Toodyay Road before? Yes, many times with my work with GIACCI BROTHERS. 12. Can you remember what sort of load you were carrying on 4/6/98? I've been told that it was contaminated sands. 13. Can you remember what time you started work on 4/6/98? No, but I usually start at about 6.30am. The truck is usually preloaded. So on 4/6/98 I would have driven from GIACCI BROTHERS in Maddington to the rubbish top in Red Hill. 14. Do you travel up to Maddington from Bunbury each day? No, the company puts us in a hotel in Perth. 15. From your experience of driving trucks does the truck handle differently when coming down the hill when unloaded as to being loaded? You have to watch when you brake, the dog trailer can go anywhere, this will pull the truck the same way. 16. Have you experienced this before? Yes it happened before. 17. How did you keep control of the truck when this happened before? It depends were it happens, the camber of the road.
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... 21. Were you wearing a seat belt? I'm not sure, I think the law is that is you have a particular seat you don't have to wear a seat belt."
Mr S G Cohen 53 Mr Cohen, a clinical psychologist, first saw Mr Acatincai on 15 March 1999 for treatment purposes. He prepared five reports, exhibit 7A to exhibit 7E. In March 1999, he diagnosed Mr Acatincai as suffering post-traumatic stress disorder. He did not then have a detailed recollection of the accident. Such a situation is not unusual. People with post-traumatic stress disorder, depending on the severity of the accident, may "have in early stages a degree of denial". 54 Cross-examined as to the passage from his report I have referred to earlier, Mr Cohen commented. "Well, I guess one of the difficulties that we have in this matter was that Mr Acatincai - unlike where you've remembered something and then it decays, you actually still have the personal experience of the event, so you did actually have a period of remembering it. Obviously one of the difficulties that he had was that, for example, he didn't even know that the man had died till his friends told him in hospital and there was a question mark between what he'd been told by various people and what he couldn't actually remember himself, that's part of what he was tormented by. So, for example, I believe that ... when he ... went, the first time, to the site of the accident he told me that he went with a friend and said, 'Well, here was the accident,' and the friend said, 'No, it was a kilometre down the road.' So therein sort of lies the difficulty and also there's the complication that he obviously went through obviously giving some kind of statement to the police, some discussion with the police, all that other stuff that has gone on which may have coloured, tainted, given him information which, as I say, is - what I saw that he was suffering the greatest amount was because people were telling him this stuff but it just wasn't there for him and so he wasn't sure whether this was really what happened. As I say, the location of the accident was probably a prime example of that."
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Mrs B E Fox
55 The widow of the driver of the Volvo sedan, Mrs Fox, said that her husband had been born on 23 September 1945. They had a son, Damian, now 18 years. Her husband, by occupation, had been an airline pilot. Mrs Fox had not been employed. They had acquired some 280 acres at Toodyay on which they had intended to grow olives. They planned to retire to the property and visited it at every possibility. 56 On 4 June 1998, Mr Fox decided to leave early and drive to Toodyay alone. He was driving a four cylinder 1980 Volvo sedan which Mrs Fox described as "very heavy and very slow going up hills, but all right on the flat". She described her husband as having been "a very careful driver. He was just a careful driver. We tried to stay within the speed limits. We always drove on the left-hand side of the road in the slow lane when we were going up hills because everything wanted to pass us. He was just a very careful driver". 57 Asked about the particular section of road on which the collision occurred, she said: "Well, we always drove up on the inside lane. It wasn't a very pleasant part of the road. It had a blind corner, so we always stuck to the inside lane. H.H. JACKSON DCJ: Next to the kerb?---Next to the kerb, yes, sir. WELDON, MR: Have you ever known him to have any collision or crash or traffic incident whilst you were with him?---No. No, I do not. On the day of the collision, when he left home, was he - what was his manner?---He was just in a very good mood. He was very eager to get up and get what he wanted done finished and get home again. Was he under any pressure or - - -?---No, he wasn't under any pressure. He was just very keen to get the work done on the farm. ...
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Was there anything at all before obviously the collision, prior to that was anything at all out of the ordinary or different about that day?---No. No, nothing. Nothing extraordinary at all. ... H. H. JACKSON DCJ: Well, on the occasions on which Mrs Fox was with him, going up that particular section of road, was there a pattern of speed - - -?---The car slowed." 58 He had left at about 7.00 am. Depending on traffic, the trip from their home to the farm took 1-1/2 hours to two hours. He was to meet the share farmer there but not at an appointed time.
Senior Constable D J Gaull 59 Senior Constable Gaull attended the scene soon after 8.00 am with Detective Senior Constable Wisbey and other police. It was overcast and the road was wet, but visibility was clear. Apart from making road markings, he walked down the hill on foot down the westbound lane in a position approximately "where a driver would be sitting but obviously lower". He started from a point "probably 2 or 3 hundred metres prior to the impact point". He spent time making observations about angles and distances. The road bends to the right. From the impact point looking west the road turns to the right some 40 or 50 metres ahead. He described the verge, embankment and vegetation to the north of the eastbound carriageway. The vegetation seemed to him "almost identical" then and in the relevant photographs as it was when he visited two days before trial. From a point 90 metres back from the point of impact, he estimated that on foot, he could see 30 or 40 metres past the point of impact or less. 60 Although there was oil on the road below the point of impact, he did not notice that above the point of impact.
Scientific evidence and expert opinion 61 A good deal of time was spent at trial dealing with the evidence of two experts, Dr S Chew, an engineer, called by the plaintiff and Mr W J Apgar, an engineer, called by the defendant. No criticism can be made of their expertise or of their evidence. It did not infringe the principles laid down in Clark v Ryan (1960) 103 CLR 486 by the High Court of Australia. Nor is it evidence of the sort admitted in Weal v Bottom (1966) 40 ALJR 436. I do not intend to recite it here for
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the simple reason that in each case, it is built upon the application of scientific, mathematical and physical principles to a set of assumptions as to the underlying facts of the collision which I do not accept and which, in addition, attempt to regard Mr Acatincai's assertions as better than the approximations he himself accepts that they are. 62 It does not help me in the fact finding process. 63 The plaintiff tendered a letter from the Perth Observatory and one from the Bureau of Meteorology: Exhibit 6A and exhibit 6B, by consent.
Conclusions 64 I do not accept the evidence of Mr Acatincai as to the circumstances of the collision as being reliable. Even on his own account, it is not possible to be precise as to speeds or distances. I make it clear that I make no finding on the submission by Mr Weldon that a driver in Mr Acatincai's position could not have seen the approaching Volvo at the position described - the evidence does not either enable such a finding or rule it out. But much more importantly, his evidence is that Mr Acatincai only recovered a memory of events months later, at which time he was being spoken to by friends and by people in authority. He agrees that on his first visit, he was wrong about the place where the collision occurred and had to be shown. 65 His evidence, furthermore, is inherently unlikely. Mr Fox was a middle aged air pilot driving an old four cylinder sedan up a steep hill. Mr Acatincai says he saw that vehicle with its driver's side wheels over the double white lines, two lanes from the left hand kerb and travelling at more than the speed limit of 80 kilometres per hour. 66 That is also inconsistent, not only with the admittedly generalised evidence of Mrs Fox, but with that of Mr R M Fox. 67 For Mrs Fox, Mrs Weldon argues that even if Mr Acatincai's evidence were accepted, the manner and method of his driving was, in any event, dangerous or at least negligent. Mr Weldon argues that his speed was too fast and his selection of gears too high in the circumstances of a steep hill and wet road. Mr Sands also argued that the evidence including that of where the truck finished suggested it was travelling at an excessive speed. There would be some force in that, although on Mr Acatincai's evidence, the immediate cause of his braking and thereby jack-knifing the vehicle was the fact that the other vehicle was partly over the double lines
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and speeding. Mr Weldon put his own theory of what had occurred, which Mr Acatincai rejected. 68 In the circumstance that I do not accept Mr Acatincai's evidence, it is not necessary to deal further with those matters. 69 There is, of course, besides Mr Acatincai, no evidence other than the evidence of Mrs Fox and of Mr R M Fox as to the driving of the late Mr Fox. I am prepared to infer that the Volvo to which Mr Fox referred in his evidence was that involved soon after in the collision. 70 The circumstances are that at the point of impact, his vehicle was clearly in its correct lane close to the kerb. Given that and the general evidence that the oncoming truck had crossed not only out of its own lane, but across the centre, eastbound lane, the steep hill, the wet road, the age and nature of both the vehicle concerned and its driver, I cannot attribute any negligence to the late Mr Fox. 71 Mr Sands, for the Insurance Commission, suggested that it would be open to me to dismiss both claims, or alternatively, to find each driver negligent. 72 In my view, the correct position, however, is that Mr Acatincai's claim must be dismissed and that of Mrs Fox succeed.
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