Big Transport Pty Limited v Hi-Tech Heavy Haulage Pty Limited

[2020] NSWDC 924

District Court

New South Wales

Medium Neutral Citation:	BIG Transport Pty Limited v Hi-Tech Heavy Haulage Pty Limited [2020] NSWDC 924
Hearing dates:	03-06 March 2020
Date of orders:	06 March 2020
Decision date:	06 March 2020
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	See [44], [45], [47]
Catchwords:	Motor Vehicle Law – Torts – Negligence – Collision between two prime movers towing trailers – Claims for property damage by owners of each prime movers – Quantum agreed – Assessment of the driving of each driver.
Legislation Cited:	Uniform Civil Procedure Rules 2005
Cases Cited:	Marien v Gardiner; Marien v H J Heinz Company Australia Ltd [2013] NSWCA 396
Category:	Principal judgment
Parties:	Plaintiff – BIG Transport Pty Limited Defendant – Hi-Tech Heavy Haulage Pty Limited
Representation:	Counsel: Plaintiff - D. Kelly instructed by Sparke Helmore Defendant - K. Rewell SC instructed by McInnes Wilson Lawyers
File Number(s):	2019/00009832
Publication restriction:	Nil.

Judgment

A collision between two trucks

1. HIS HONOUR: These proceedings arise out of a collision between two trucks on Ulm Avenue, Mascot on 16 October 2018 at approximately 12.10pm. The plaintiff's truck was a white 2016 Mercedes Benz Actros 2660 LS prime mover, registered number BIG 021. That vehicle was towing a shipping container trailer, registered number Y58271. A long empty shipping container was loaded on the trailer attached to the prime mover. That long shipping container was maroon in colour and bore the name Triton. The defendant's truck was a yellow 2007 4864 FXC Western Star prime mover, registered number BF 19 KL. That prime mover was towing an un laden yellow Drake Quad trailer or float, registered number Z60403. The plaintiff's motor vehicle was being driven by Mr Deance Petrevski, the plaintiff's employee. I shall refer to Mr Deance Petrevski as Mr Petrevski. The defendant's prime mover was being driven by Mr Travis Ernest Oliver Housler, the defendant's employee. I shall refer to this gentlemen as Mr Housler.

Collision site

2. Ulm Avenue, Mascot will be unfamiliar to almost every motorist in this State. It is clear from the street directory that it is part of a Commonwealth land holding, being Sydney Kingsford Smith Airport. It lies on the southern side of General Holmes Drive and the northern side of Foreshore Road, Mascot. To gain access to Ulm Avenue one must enter it from a roundabout at the western end of Foreshore Road. The exit to take at the roundabout is the first exit on the left as one drives from south to north on Foreshore Drive. The next exit left takes one onto General Holmes Drive. The ultimate location on Ulm Avenue is the Sydney Airport Fire Station. The best view of the relevant topography is contained in an aerial photograph that can be found on p 11 of exhibit 1, a report prepared by Mr William Keramidas dated 16 October 2019. The security fence that surrounds the actual runways of the airport follows the southern and eastern boundaries of Ulm Avenue. The fencing on the opposite side of Ulm Avenue, that is on its northern side, going from east to west, and on its western side, when travelling from north to south, is not airport security fencing but ordinary cyclone fencing. There are two access roads turning off Ulm Avenue in its final length, that as it runs from north to south culminating at the Sydney Airport Fire Station. The first service road gives access to what Mr Housler described as the Downer compound. The second more southerly access road gives access to a depot maintained by the plaintiff company, which can be shortly described as the BIG depot.

3. On the day of the accident Mr Housler had transported to the Downer compound a piece of plant which he called a "shuttle buggy". He described that piece of plant thus: "It's a machine that holds asphalt that goes into the shuttle buggy then goes into the paver. You fill the paver up and that's what paves the road." He said that he had been regularly attending what he described as the Downer compound for six months delivering plant. He went on to say this: "We were doing the main runway at the airport, so all that gear that we deliver there has to be taken out onto the airport and off the airport at the end of the shift." The inference to be drawn is that the Downer compound was a site where paving plant was kept during the day so that it could be used at night during the Sydney Airport curfew, probably to re-sheet the runways of the airport. Nothing turns on that other than to understand why Mr Housler was attending the Downer compound off Ulm Avenue daily in the course of his employment for some six months.

The rigs

4. A little more needs to be said about the two "rigs" involved in this collision. The defendant's expert, Mr Keramidas, had no independent records identifying either the plaintiff's prime mover and the trailer it was towing at the time of the collision. He relied on specifications provided by the report of the plaintiff's expert, Dr Shane Richardson. Dr Richardson's report bears date 10 September 2019. The Mercedes Benz had a wheel base of 4.5 metres. The height of its cab was 4 metres. The Western Star had a wheel base of 5.207 metres and the height of its cab was 2.933 metres. Dr Richardson assumed that the masses of the trucks and trailers were similar and, as I understand it, so did Mr Keramidas. The Western Star Prime Mover had a gross vehicle mass rating (GVM) of 28,000 kg and a gross combination mass rating (GCM) of 140,000 kg at 5% maximum gradient. The GVM of the Drake Quad Axle Low Loader, which was the float that the Western Star was towing at the time of the collision, had a GVM of 67,000 kg and a GCM of 79,000 kg. The Drake Quad Axle Low Loader could be hydraulically widened from 2.5 metres to 3.6 metres. On the day in question, after Mr Housler had dropped off the shuttle buggy he returned the width of his trailer from 3.4 metres to 2.5 metres. The precise weight of each truck and trailer is unknown and it was variously described in evidence that each were at least 20 tonnes, that is, each prime mover together with its trailer weighed at least 20 tonnes.

The drivers

5. Mr Petrevski had been driving heavy vehicles for about 20 years at the time of giving evidence on 3 March 2020, some 18 months after the collision. I accept that he had approximately 20 years experience in driving heavy vehicles at the time of this collision. In briefly describing his experience he referred to driving heavy rigid trucks and semi-trailers. He commenced working for BIG Transport in late 2016 so he was employed for about two years by the plaintiff prior to this collision. He had daily access to the BIG Depot on Ulm Avenue, Mascot, during a two year period. He told me that he would drive in and out of the BIG depot between five and ten times a day.

6. Mr Housler's experience of using Ulm Avenue was limited to about six months but he told me that he would drive in and out of the Downer compound "every night for five days." However, on the day of the collision he clearly was driving to the Downer compound and from it in the middle of the day, perhaps bringing the shuttle buggy back from its having been repaired or serviced or replaced. The important point is that he was regularly using Ulm Avenue and knew the roadway and knew about driving into and out of the Downer compound service road. He drove into and out of the Downer compound three or four times a day, between 15 and 20 times a week and perhaps between 400 and 500 times prior to this collision.

Quantum

7. Happily, the parties have agreed on quantum. The Mercedes Benz Prime Mover was damaged beyond the cost of commercial repair. The plaintiff's loss has been agreed to be $108,489.80 and the parties have also agreed that the interest on that sum is $7,369. According to the defendant's cross claim the defendant's Western Star Prime Mover "was unable to be operated and resulted in loss of income up to 8 November 2018." The defendant's loss is agreed to be $97,508 and it is agreed that the interest thereon is $7,166. I must point out that the plaintiff's loss is less than $10,000 over the monetary jurisdiction of the Local Court and the defendant's loss is less than the maximum monetary jurisdiction of the Local Court, but bearing in mind that the plaintiff commenced proceedings in this Court the defendant had to bring its cross claim in this Court. I also point out that it is likely that the cost of these proceedings will far outweigh anyone's loss, the hearing having taken three days. A very senior junior member of the bar was retained by the plaintiff and silk was retained by the defendant. Each of the parties qualified an expert from Melbourne. Dr Richardson generated a report which is 116 pages long. Mr Keramidas generated a report which is 147 pages long. The experts prepared a joint expert report bearing the date 25 February 2020 which is 24 pages long and has a nine page appendix. Each of the experts travelled from Melbourne to Sydney early on the morning of Wednesday 4 March 2020 and each gave evidence on the afternoon of that day, the morning being spent by their recalculating material in light of evidence given of which neither party was aware and because each of the experts wished to present an animation of the accident in electronic form, which eventually became exhibit D. They finished giving evidence about 4.40pm on Wednesday. They then would have had to fly back to Melbourne. The cost of that exercise may have been quite large. I mention these matters because sometimes there must be proportionality between a loss and the legal costs involved.

Joint evidence

8. Fortunately the giving of joint evidence by Dr Richardson and Mr Keramidas was fruitful in that the experts were on good terms with each other, respected each other and agreed on many, many things. The only disagreement that I could discern was as to the point of impact of the two vehicles. Mr Keramidas placed it 6 metres north of the site determined by Dr Richardson. To try to ascertain which was the better view I consulted photographs because it is clear from exhibits 5 and 6, full scale plans prepared by Mr Keramidas that the rear of the plaintiff's prime mover cab was at the same level as a floodlight and the floodlight can be seen in a number of the photographs. In particular it can be seen in figures 14, 36, 38 and 51 in Dr Richardson's report of 10 September 2019 and in the photographs in appendix A to Mr Keramidas' report, those photographs being photographs taken by Mr Petrevski. The photographs are those numbered, in particular, 1 and 10. It can also be seen in some of the photographs in appendix B, photographs taken by Mr Housler. Those photographs are numbers 1, 11, 12 and 20. The floodlight can also be seen in photographs in appendix C to Mr Keramidas' report. In particular the photographs at the top of p 81, the top of p 83, the top of p 85, the bottom of p 86 and the top of p 92. They can also be found in exhibit 2/181 and 2/191 and 2/192. Just to show that there is interconnectedness figure 14 in Dr Richardson's report is photograph 12 in appendix B to Mr Keramidas' report and photographs 11 and 12 in appendix B to Mr Keramidas' report are in fact exhibits 2/191 and 2/192. Doing the best I can, it appears to me that the photographic evidence confirms the positioning of the two vehicles after impact argued by Mr Keramidas. However, nothing probably turns on that.

The driving of the plaintiff’s rig

9. Mr Rewell SC, for the defendant, commenced his address by referring to the negligence of Mr Petrevski. Much to my surprise, Mr Kelly, for the plaintiff, approached the matter in exactly the same way. I shall accordingly proceed, as both counsel proceeded, by firstly considering the position of Mr Petrevski, the evidence he gave about the accident and what it shows. Mr Petrevski commenced giving evidence at 11.18am on 3 March 2020. The transcript of his evidence commences at p 9 of the transcript. Very early in his evidence he raised a critical issue. At the foot of p 10 this question commences and it is followed by this answer:

"Q. From your experience on that road prior to the date of this accident, what, if anything, were the things that you were conscious of when you drive down that road?

A. Well, really that corner, you have to be extra [cautious] because the way the fence is, the boundary line of the airport, we usually take it a bit wider than normal because the top of the fence of the airport, it comes out a bit more so that when you come around with the container and the trailer being so long you've got to be off it a bit more so that you can clear the corner and come around and not, you know, watch your left side, watch you don't take the fence out."

10. I should have preceded that quotation by explaining a few more things. Ulm Avenue is essentially shaped like an upper case gamma (Γ) from the roundabout on Foreshore Road. The avenue runs, in essence, from east to west and then turns to travel from north to south. The north to south path of the avenue is a straight. The east to west part of the avenue is not. It is "wavy". It first turns to the left and there is then a short turn to the right. This length of the avenue then straightens before taking a curve that leads to the straight north south path. On the inside of that corner is a mound of earth. That mound is, according to Dr Richardson, 3 metres high. According to Mr Keramidas 3.3 metres high. Grass grows on the mound and growing grass can increase its height but it is mowed from time to time, according to Mr Petrevski. The significance of the mound is that it does obscure the vision of cars travelling from the southern end of Ulm Avenue to take the right hand curve around the mound and obscures the vision of vehicles travelling left around the curve of vehicles that may be approaching from the opposite direction.

11. The basic mechanics of the current accident are that Mr Housler drove out of the Downer compound and came to a stop at the T intersection of the Downer compound service road and Ulm Avenue. He did not see any traffic coming in either direction along Ulm Avenue and then turned onto Ulm Avenue. Because of the length of his rig he needed to swing over the whole of the width of Ulm Avenue to get his rig onto Ulm Avenue and then he had to turn hard to his left in order to get on to the left hand side of the carriageway. As Mr Housler was making that left hand turn Mr Petrevski was driving around the curve that was on his left, the curve that took Ulm Avenue from its east west direction to its north south direction. The two rigs collided on Ulm Avenue before Mr Housler could manoeuvre the whole of his rig on to the left hand side of the carriageway, as he was required to do.

12. I return to the evidence given by Mr Petrevski. After the last piece of evidence that I quoted from him he was asked whether he drove in that way on the day of the accident and he said he drove exactly that way on the day of the accident as "we do every day." On p 12 of the transcript the witness gave this evidence:

"Q. As you were heading back to the depot, just describe what happened. Where were you and what happened?

A. Well pretty much I was on the last corner of coming into work and, like I always do, make sure I’ve got enough room on the left, looking at my left hand side, making sure I’ve got enough between my fence line and the actual truck and trailer coming around the corner. And just as I've come around the corner before, you know it, I've pretty much collided."

The fence that Mr Petrevski was referring to was the security fencing around the airport runways. That security fencing carries on its top a roll of razor wire and there are flood lights from time to time along its length, illuminating the fencing. On the interior side of the fence, that is within the airport runway area, there is a road running parallel to the fence, obviously to enable security guards to approach any area of the fence in question, perhaps part of a routine inspection or surveillance procedure. At p 14 Mr Petrevski gave this evidence:

"Q. What effect, if any, did the fence have in relation to your ability to see what might be beyond the fence?

A. Well once we're driving in towards that corner, we're making sure we're looking towards the left and making sure we've cleared that fence line to come around the bend. And then we can see a bit more in front of us, what's going on in front of us.

Q. As best you can, where were you in your truck when you first saw the vehicle being driven by Mr Housler?

A. Pretty much coming around the corner and just as it straightens up.

Q. When you first saw him, and we will need to break this down a bit, where was his truck and by that I mean the truck and the trailer, that is the prime mover and the trailer, where were they?

A. Well pretty much he was more on the opposite side of the road, my side, when I've come around the corner and pretty much just as I've come around the corner he was right there, pretty much in my face."

13. One might be forgiven for thinking from that evidence that Mr Petrevski was driving his rig "on [his] side" of the carriageway, namely on its left hand side. Mr Petrevski then said that he "hit the brakes" and attempted to "pull to the left." That statement that he "tried to pull to the left" indicates that he thought there was room that he could pull to the left. In his preceding answer he explained that he was "trying to pull out of it” by turning the steering and then he said he tried to turn his steering to the left. He then pointed out that there was a collision on the front driver's side of his vehicle and that is where also the defendant's truck was struck. In other words the collision was between the front driver's side of each prime mover. There is no dispute about that fact. He then said he was pushed back a bit. It is common ground that he was pushed backwards about a metre or half a metre. It is common ground between the experts that Mr Petrevski saw the plaintiff's vehicle and applied his brakes hard and brought his vehicle to a halt. It stopped immediately before or at the time of the collision. Because it was stationary it was forced back by the momentum of the rig being driven by Mr Housler.

14. Mr Petrevski was then asked how far from him was Mr Housler's vehicle when he first saw that vehicle. The witness's answer was "Not even 5 metres, 5 to 10 metres." That is not precise, clearly. The first part of the answer indicates less than 5 metres but then there was a statement it could have been 5 metres, perhaps 10 metres. He then was asked a question to which he gave an unresponsive answer and to try to obtain a responsive answer I asked two questions. This evidence was given:

"Q. How far away was the front of his truck from you when you first saw him?

A. Well pretty much in our face, like it happened so quick pretty much.

Q. That doesn't help me very much, Mr Petrevski. You see in your face means you could be standing in front of a person nose to nose?

A. Well maybe 5 metres if that."

That appears to indicate that it was about 5 metres. The next question was put by Mr Kelly and obtained this response:

"Q. Where were you looking immediately before you saw the truck?

A. Pretty much like I do, to my left and I have looked up and there it was."

That answer was taken up by Mr Rewell in cross examination:

"Q. The reason you said I looked up was because up to that point you had been looking down as well as to your left, hadn't you?

A. No, not not down, to my left, to the road. Like I said to the kerb and the fence line, like I always do."

15. This aspect of the evidence was important because evidence was to be given by Mr Housler that, when he first saw the driver of the other vehicle, namely Mr Petrevski, he was looking to his left and down. Clearly there is admission by Mr Petrevski that he was looking down because only when one is looking down can one look up. The answer which Mr Petrevski gave in cross examination was a denial but then perhaps an avoidance, that if he were looking down was looking to the kerb of the road. However there was no kerb, nor was there any gutter. The evidence of Mr Petrevski is quite clear that as he was going around the curve, taking him from a westerly direction to a southerly direction, he was looking to his left. The inference he clearly wanted me to draw was he needed to look to his left to ensure that his trailer was clearing the security fencing of the airport such that the end of his trailer with its load would not collide with any part of the fence.

15. In cross-examination the witness was taken to a number of photographs appended to Mr Keramidas' report, photographs which can be found on pp 130, 131, 132, 133 and 134 of Mr Keramidas' report. Those photographs were shown to Mr Petrevski in chief. At p 20 Mr Kelly asked the witness this:

"Q. In relation to the photographs his Honour took you to from 130 through to 134, which of those, if any, is an indication, the best indication of where you were when you first saw Mr Housler's truck?

A. 134."

It is clear from photograph 134 itself that it was taken 75 metres north of the Downer depot service road entrance. However, it appears that the witness in fact saw the defendant's rig much later in his journey towards the collision site. Again on p 20 and 21 in his evidence in chief Mr Petrevski said that when he first saw the defendant's rig it was "more towards my side of the road" which leads to the inference that what he wanted me to accept that he was on his side of the road, namely the left hand side of the carriageway. A little later he reiterated evidence that he had already given about what he was doing as he went around the curve: "Well every time I approached that corner I looked towards my left, make sure that I've cleared the corner, the fence line, and of course in front of me what's happened you know." A little later this evidence was given:

"Q. So when you said as you were driving the truck through the curve you looked to the left, how far between looking straight ahead and looking all the way around 90 degrees to your left?

A. About halfway looking at the fence line and the road where actually I'm going with the truck."

The witness was then directed to other material indicating that the angle was about 50 degrees from straight ahead.

17. Very shortly thereafter cross examination of Mr Petrevski commenced. His attention was drawn to the photograph exhibit 2/181. That shows the rear of Mr Petrevski's trailer with its load and one can see the rear left hand side of his prime mover and the bulk of the float being towed by Mr Housler's prime mover, which float appears to have been in the middle of and on the left hand side of the road as far as Mr Petrevski is concerned. However, at first blush looking at this photograph, Mr Petrevski's rig appears to be in the middle of the carriageway. This question was asked by Mr Rewell and received a response which probably answers most of the questions raised in this case:

"Q. You didn't need to be anywhere near as far out from the airport side fence as that, did you?

A. Well, no. Sorry, I'll rephrase that. It looks like that in the photo but we're usually half a metre away from the fence line. So that photo does look like I'm over to one side."

The admission is that usually he could drive half a metre away from the fence line. A question was then asked and there was an objection. I sought to put the question in another fashion that would not draw objection. It is this:

"Q. ...this photograph, Mr Petrevski, seems to indicate a distance between, say your front nearside tyre of your prime mover and the end of the bitumen, the tarmac at as being roughly 4 metres. That is what is being suggested to you, do you agree with that?

A. No.

Q. What do you say that distance is?

A. Well I wouldn't know because of the position of the trucks and the way, like I said, we've approached the corner, it does look like I'm over to one side but really, if you look at it in another way it doesn't."

The photograph in question is in fact the first photograph taken by Mr Housler. It is also image 1 in appendix B to Mr Keramidas' report. The photograph was taken after the collision when the vehicles were both in situ. The plan made by Mr Keramidas, which is exhibit 6, contains a scale and when one applies a ruler to that scale and a ruler to the driver's left hand side of the Mercedes Benz Prime Mover and extends it to the red line which represents the tarmacadam or bitumen or asphalt, whichever term one wishes to use, the distance is exactly 4 metres. The same exhibit shows tyre marks from the Mercedes Benz drive tyres showing a slight deviation by those tyres to the left, consistent with what Mr Petrevski said, that when he braked he also tried to steer to his left. What it does indicate however is that before he commenced to brake and steer to his left Mr Petrevski's rig was even more in the middle of the road than photograph, exhibit 2/181 indicates. Furthermore, any person, even of limited intelligence, could make an estimate of the distance shown on the photograph in question. The photograph, amongst other things, shows two men standing on the roadway between the left hand side of the Mercedes Benz Prime Mover and the tarmacadam edge of the roadway and then the security fencing on the airport side of the road. It is clearly a distance of about 6 metres and the distance of the road is less but more like 4 metres. As I said, when an exact measurement is obtained by using the plan it was exactly 4 metres.

18. Mr Rewell continued his questioning. He then showed the witness photograph exhibit 2/183, another photograph taken by Mr Housler but looking at the front of the plaintiff's rig, the front of the Mercedes Benz Prime Mover, the left hand side, as far as that vehicle is concerned, of its trailer and load and one can see the end of the sealed road surface, a shoulder, which had clearly been driven on in the past, and then the security fence. Mr Rewell again suggested to the witness that the front tyre on the passenger's side of the prime mover he was driving was about 4 metres from the edge of the sealing of the road. He did not agree with that. This evidence was then given:

"Q. You said in your evidence that you were concerned by the razor wire and the fact that it protrudes beyond the vertical section of the fence?

A. Correct.

Q. But the extent of the protrusion is what, 30 to 50 centimetres at most. Would you agree?

A. Of which?

Q. Of the razor wire on either side of the vertical section of the fence, the protrusion would be 30 to 50 centimetres at most?

A. Maybe a bit more, yeah, the fence."

I find it hard to understand what the witness meant by "a bit more." Was it 5 centimetres or 10 centimetres? In fact in my estimation the 50 centimetres estimated by Mr Rewell was a gross exaggeration. The evidence then continued thus:

"Q. What I'm suggesting to you is you could have gone around the curve, driving your truck at least 3 metres further left as you were looking at it, in other words at least 3 metres closer to the fence than you did. Do you agree or disagree?

A. Disagree.

Q. You see, we understand that when a vehicle such as this goes around a bend, the trailer may track a little inside the line of the prime mover. Is that your experience?

A. Yes.

Q. But it is only a little inside the track of the prime mover isn't it?

A. It depends on the bend.

Q. Well, certainly on that bend, I want to suggest to you, you could have gone at least three metres closer to the fence without there being any risk of the truck or indeed the container touching anything?

A. I disagree.

Q. As things were, your truck was either in a dead centre of the road or a little to the right of centre, that is on your incorrect side of the roadway wasn't it?

A. Yeah, it was pretty much right in the middle of the road.

Q. So that if there had been a centre line, that centre line would have gone under the middle of your bonnet?

A. No, not correct.

Q. You agreed a minute ago that you were in the centre of the road?

A. Yeah, the centre of the road with the driver's side on the centre of the road."

By applying the ruler again to exhibit 6 the width of the road is 9 metres. The medium line of 9 metres is 4.5 metres. That is theoretically where the middle of the road was. The width of Mr Petrevski's prime mover was 2.5 metres. He was 4 metres from the left hand edge of the carriageway, a half a metre of the width of his vehicle was on the correct side of the carriageway and 2 metres of his prime mover, which obviously includes the driver's seat was on the incorrect side of the carriageway. The answer that I last quoted from him is completely incorrect.

19. The questioning then continued thus:

"Q. I want to suggest to you that, if anything, you are a little closer to the right hand edge of the seal than the left hand edge of the seal from your perspective?

A. Okay, maybe it looks like that in the photos.

Q. It was like that wasn't it?

A. No."

That answer is also insupportable. A little later this evidence was given.

"Q. But simply by eye, you are, at best, in the dead centre of the road. But, at worst, a little further into the wrong side of the road, aren't you?

A. No, I don't agree with that.

Q. But there was no need to be there at all, was there? There was no need to be out that far?

A. Well there was because, like I said, with I do it every day, however many times a day and I do the same thing over and over again. It maybe looks more to one side in the photos but I do the same thing every day, five to ten times a day. Don't change it, don't change the speed, don't change anything."

The witness by this stage has descended to arguing his own case when there was a professional advocate appearing in his interests. Indeed the professional advocate, Mr Kelly, in his address argued along the same lines. Here there was a "professional driver", a term which does not endear itself to me: I prefer the words "career driver", arguing that he was merely doing what he had always been doing and therefore he could do what he did do.

20. The cross-examination continued making the same point and again obtained answers which I believe to be incorrect and also at times to obtained argumentative answers. For example this question and answer:

"Q. I'm accepting that the trailer may track a little inside the prime mover, but what I'm putting to you it's only a little. It's not 4 or 5 metres, it's just a little?

A. Well you don't know that."

The expert evidence

21. When Mr Rewell sought to elicit evidence from the experts about this issue a vehement objection was raised by Mr Kelly who pointed out that neither Dr Richardson nor Mr Keramidas had been a career truck driver and had any expertise to enable them to answer such a question. I allowed the question and both experts were able to comprehend and answer the question. Both Dr Richardson and Mr Keramidas agreed that it was a well-known characteristic of articulated vehicles, where prime movers towed trailers or floats, that when the vehicle goes around a corner or curve the trailer or float may track inside the path of the prime mover. Both gentlemen agreed the extent to which the wheels of the trailer or float track inside the prime mover depends upon the speed of the rig. Mr Rewell then put this question which was the subject of Mr Kelly's objection:

"Q. …I put to Mr Petrevski that at the speed that he said he was driving, let us now assume 35 kilometres an hour, he could have driven around the left bend in his rig without hitting any part of the fence separating it from the airfield, in just so long as he kept the wheels of the prime mover inside the fog line. Mr Keramidas do you agree?"

Objection was then taken. After I allowed the question, a different question was put "It's just physics, isn't it?" Mr Keramidas agreed with that proposition. Dr Richardson said this:

"...tracking is a combination of the location of the pin versus the trailer so when you've got a specific trailer length you can calculate it precisely. We need those types of calculations otherwise we won't be able to design kerbs, parking and loading bays, all that sort of thing."

Both Mr Keramidas and Dr Richardson had in the past done such calculations and analysis. The evidence then continued thus:

"REWELL: To return to the question I put to Mr Petrevski yesterday, that he could have driven safely around that curve without hitting any part of the fence at the speed at which he says he was travelling, just so long as he kept the wheels of the prime mover inside the fog line was I right?

KERAMIDAS: I think the neutral way of describing is there's no physical reason why his truck could not be contained within a normal traffic line. The off tracking at such a low speed would be 20 centimetres.

REWELL: Do you agree with that, Dr Richardson?

RICHARDSON: I don't know about the exact number, I wouldn't, I'd be reluctant to say the fog line is in the clear but it's going to be close to that. I certainly think if he's within a metre of the fog line I think you could get around that sort of there.

REWELL: Within a metre of the fog line would ensure that there was no contact with the fence, correct?

RICHARDSON: Yes.

REWELL: If he was within a metre of the fog line, the whole of his vehicle would have been on its correct side of the road, that is on the left hand side of the road, wouldn't it?

RICHARDSON: Yes, it would."

22. I should explain at this point of time that work had been done on Ulm Avenue after this collision. Firstly the avenue had been re sheeted. Indeed Mr Richardson conducted a view on 9 August 2019. He pointed out that the road surface had been "recently resurfaced." It is clear from photographs which he took on that day (see appendix B to his report) that there had been recent re-sheeting. However, there had been no line markings made by that time. Mr Keramidas conducted a view on 16 October 2018. It is clear from the photographs that he took that a fog line had been marked on at least the runway side of Ulm Avenue, that a centreline had been marked, that speed humps had been installed and painted and that advisory warning signs and advisory speed signs had also been erected. The fog line marked is essentially where it appears the former sheeting ended. A reference to the fog line can be taken to be a reference to the old edge of the tarmac, albeit that in certain places, as pointed out by Mr Keramidas, the old edge of the road surface can be seen in various places. However 1 metre from the fog line is still 1 metre from the edge of the seal that was present at the time of the collision. If Mr Petrevski had been travelling within 1 metre of the edge of the roadway then the whole of his vehicle would have been within the left hand side of the carriageway and indeed 1 metre from the middle of that carriageway and there clearly would have been, once he reached the straight of the road, the ability to travel closer than 1 metre to the fence. Indeed, the 1 metre provided by Dr Richardson appears to have been very conservative considering what was said by Mr Keramidas and probably one could travel more closely to the edge of the surface than 1 metre.

23. Dr Richardson and Mr Keramidas gave this further evidence about the path that Mr Petrevski could have taken in his rig:

"REWELL: …To go back to my question, it was well and truly possible for Mr Petrevski to navigate this curve whilst at all times remaining on his correct side of the roadway, that is the left side of the imaginary centre or the notional centre of the roadway, do you agree, Mr Keramidas?

KERAMIDAS: In terms of the geometry and the vehicle capacity, there is no reason why he could not do it.

RICHARDSON: I agree."

A little later Mr Rewell returned to this issue:

"REWELL: Gentlemen, can I simply put this to you. If Mr Petrevski

had driven around the curve, driving as near as practicable to the left side of the seal of the roadway and had continued to drive as near as practicable to the left side of the seal of the road from his perspective, there would have been no collision would there?

KERAMIDAS: I agree with that.

HIS HONOUR: Because if he reacted in the same way he would have pulled up where he did but over on to the left hand side, his left hand side of the carriageway?

KERAMIDAS: Yes.

HIS HONOUR: And there would have been no collision?

KERAMIDAS: No, that's correct.

REWELL: And moreover, if he hadn't pulled up at all but continued driving as near as practicable to the left hand edge of the seal, all other things being equal, there would have been no collision as those photographs demonstrate. Isn't that right?

KERAMIDAS: I'm not sure about that."

There was then a discussion as to whether there still might have been contact between Petrevski’s prime mover and Mr Housler's float. Mr Keramidas then said this:

"KERAMIDAS: I think there's two elements to this and I agree that there's as it sits there, there's a potential for there to be impact to the rear of the trailer. However, if Mr Petrevski was travelling on the left side of the roadway and Mr Housler went to regain the left side, to both these drivers this is not an unusual event for a truck to be pulling out. So there would be no need for alarm or panic on the part of Mr Petrevski. He would merely need to lift off so that the rear of the trailer clears him. There's no intersection between the two to the extent that we have in the actual collision and by the time he moves the trailer length further down, the trailer has moved and as it's moving forward it's moving to the left side of the road.

REWELL: So it's out of the way by the time he gets to the rear of the trailer?

KERAMIDAS: Correct. And it might have required that he lift of the accelerator.

HIS HONOUR: What I was going to ask you, by 'lift off' you mean that he stopped accelerating?

KERAMIDAS: Correct."

24. Later Mr Kelly asked the experts about this issue. This evidence was given.

"KELLY: …There was just finally there was a question you were asked questions about where he couldn't and shouldn't have been driving and I think it might have been Mr Keramidas mentioned a number of times this is airport territory. I think you'd both accept it's reasonable for him to have it insured and you assume that he says he was very conscious of trying to make sure he kept his container clear of the razor wire on this fence. Would you accept it's a matter for the judgment of the driver for this type of vehicle, of 20 years driving on this road five to ten times a day, five days a week for two years to make a decision as to the line he can safely take when negotiating that curve?

KERAMIDAS: I can certainly respond to it and unfortunately I need to be quite unkind about it. I would expect a driver with that experience in using this road every day to have a pretty fair idea of what his lines should be coming through here. If the lines of what I've seen Mr Petrevski take as a result of what we see at the collision then he shouldn't be driving trucks.

KELLY: You say that, Mr Keramidas, as someone who has never, ever driven trucks, correct?

KERAMIDAS: I can tell you when something is three and a half metres away from the obstacle you can drive a truck between where Mr Petrevski's truck was and the razor wire was."

25. There is photographic evidence which proves that very point. Mr Petrevski's photograph 10 found in appendix B to Mr Keramidas' report shows a tow truck passing between the Mercedes Benz Prime Mover still in situ after the collision and the razor wire topped fence. That it was a tow truck is clear from the photograph which is figure 51 in Dr Richardson's report on p 66 of that report. Figure 38 in that report on p 53 shows another truck, albeit smaller, than a prime mover passing between the razor wire topped fence and the Mercedes Benz prime mover in situ. In appendix C to Mr Keramidas' report there is a photograph at the top of p 86 which shows a car that has driven past the Mercedes Benz prime mover and driving between the end of the float being towed by Mr Housler's prime mover and the razor wire topped fence with a generous clearance between the rear of Mr Housler's float and a generous clearance between the near side of the motor car and the razor wire topped fence. A photograph at the top of p 92 of Mr Keramidas' report, again in appendix C to his report, shows another truck, albeit smaller, passing along the avenue between the prime mover being driven by Mr Petrevski and the razor wire topped fence.

26. On p 125 of the transcript the following evidence is recorded:

"KELLY: It necessarily involves this driver of taking a wide enough berth to ensure if you accept that, that his focus is to ensure that he does not contact with the 40 foot trailer, 40 foot container, the razor wire?”

To that question both Mr Keramidas and Dr Richardson agreed. I then ask Dr Richardson a question:

“HIS HONOUR: Do you agree, Dr Richardson that that still would permit him to keep within about a metre from what he's marked as the fog line?

RICHARDSON: If he was driving close to the fence, yes, that would be one position, yes."

In answer to further questions Dr Richardson said this: "I think he [Petrevski] was being extremely cautious by the position he was taking on the road. He could have been more to his left. The question of how much more to his left then becomes the subject of truck driving skill issue." I observe that Dr Richardson used the words "extremely cautious" as a judge would use in describing another judge's judgments as being "bold" or "brave" meaning so erroneous as to be clearly appellable. However Dr Richardson then agreed that he had given evidence that he believed that the curve could have been safely negotiated by Mr Petrevski’s keeping his nearside wheels about 1 metre from the edge of the seal of the road. There was then a further question by Mr Kelly indicating that in order to ascertain how far the driver of the Mercedes Benz would need to keep from the fence, one would need to conduct calculations. Mr Keramidas agreed with that proposition but conditionally. He said this:

"I think if we were trying to define it within a matter of 10 or 20 centimetres I would agree with you. A metre out from the edge of the roadway with a 40 foot container, 35 kilometres per hour, the off tracking I would expect to be about 20 centimetres. Let's say it's 40 centimetres. If he's a metre out, that's well clear of what I would describe as being a tight margin."

I would point out that 40 centimetres, double the width that Mr Keramidas thought necessary is pretty close to the half metre which is the first admission made by Mr Petrevski in cross-examination which I pointed out earlier today. It is really the answer to much of this case.

27. This evidence given towards the end of the witness conclave ought be noticed:

"KERAMIDAS: In my opinion the collision would not have occurred. There are two reasons, and I alluded to this earlier on, where I said if Mr Petrevski was travelling to the left side of the road, as...I would expect him to, to observe the manoeuvre Mr Housler was doing would be a normal course of events for him to merely to back off and lift off the accelerator, would be sufficient in time and distance for the rear of Mr Housler's trailer to clear...what is essentially the southbound portion of the carriageway. Now the position of Mr Housler's truck, as we see, is as a result of two things. One, that he has had some pre impact braking and two, as a result of the collision with Mr Petrevski's vehicle has come to a sudden and very abrupt halt. Which otherwise, if the two were approaching each other, that additional speed would mean that Mr Petrevski's trailer would be out of the southbound portion of the carriageway...in a very short space of time. If Mr Petrevski would have continued at 35 kilometres per hour throughout the whole thing, then I agree that there would be an engagement between the probably midpoint of Mr Housler's trailer and Mr Petrevski's vehicle, because of the need to do the very wide turn out. But all he needs to do is just lift off the accelerator.

REWELL: If he lifts off there is no collision. Is that the position?

WITNESS KERAMIDAS: That's it.

REWELL: Dr Richardson?

WITNESS RICHARDSON: At a metre from the fence line I think it's unlikely that there is a collision. I can't, without doing the analysis, I can't say definitely but I think it's less than likely."

Conclusion on the driving of the plaintiff’s rig

28. The proposition maintained by Mr Petrevski, that he needed to be driving where he was in order to avoid a collision between his trailer and the razor wire topped security fencing around the runway of the airport, is untenable. It is clearly an excuse to explain why he was driving where he was which appears, with the utmost respect to Mr Petrevski, to be not only in the middle of the road but mainly on the incorrect side of the carriageway. If he had been travelling at the speed he was but at a half metre or a metre from the edge of the seal of the road when he saw Mr Housler's rig all he needed to do was lift off his foot from the accelerator and coast along and no collision would have occurred. I accept the formulation of Mr Keramidas and the concessions by Dr Richardson to the same effect. I am unable to accept the evidence of Mr Petrevski as being reliable or truthful.

29. The evidence recorded between line 33 on p 120 and line 35 on p 121 needs also to be considered. Essentially both the experts agree that the driver of the Mercedes Benz prime mover should have driven on the left hand side of the carriageway and that when he perceived the presence of Mr Housler's rig on the carriageway ought to have kept as far to the left as was possible in order to minimise the risk of a collision. Dr Richardson said he was unable to argue against any proposition to that effect. The basic principle of driving in this country is the requirement to keep to the left hand side of the carriageway. That is now embodied in Road Rule 129. That of course does not create a cause of action but merely encapsulates a principle in which all drivers in this country must observe and which Mr Petrevski failed to observe. I therefore have no hesitation in accepting that Mr Petrevski was negligent by failing to keep to the left hand side of the carriageway. That is a particular of negligence, pleaded in par 5(m) of defendant's cross-claim.

30. There are two other salient issues which also bespeak negligence on the part of Mr Petrevski. Firstly, he did not maintain a proper lookout. When he first saw Mr Housler's rig he applied the brakes heavily and came to a stop. According to Mr Keramidas' calculations his braking took two seconds. That is clear from exhibit 3 and from the more recent animation which is exhibit D when he was 35 metres from the point of impact. Mr Keramidas believed that the perception of reaction time of Mr Petrevski was one second and that the 35 metres were covered in three seconds so that the 35 metres that he travelled from his first seeing the defendant's vehicle to the point of impact took up the one second perception reaction time and the two seconds braking time. Dr Robinson thought there were 46 metres from when Mr Petrevski first perceived Mr Housler's rig to the point of impact and that those 46 metres were travelled in 3.6 seconds. He thought that the braking time was only 1.5 seconds. However, whether it was three seconds or 3.6 seconds, that appears to have been the last occasion when Mr Petrevski could have seen Mr Housler's rig to have reacted in the way that he did.

31. The more interesting point on this issue is that he was able to see Mr Housler's rig for a much longer period of time than he actually did. This evidence was given during the expert conclave:

"REWELL: Now, my next question is this. At what range could Mr Petrevski could first have seen that Mr Housler's rig was on the road anywhere, at what range? Have you calculated that based on the new proposition of [Housler's] moving out from a standing start because I think previously you were both between 80 and 100 metres?

KERAMIDAS: I think that's probably still right. These are clear observable points. We were looking originally at our I think Dr Richardson has 80 odd metres, I had 100 and there was a potential line of sight over the fence line of 110. But those figures still stand. The position or change that has occurred now is that Mr Housler's vehicle comes out at a slower rate initially and then picks up speed and does exactly the same thing as it did which just means that during the very initial phase Mr Petrevski's vehicle was a little bit further upstream [away]. As the two approached downstream [closer] that the physical line of sights available are still exactly the same which are essentially I think, I estimated 60 metres from impact for Mr Petrevski and 40 metres for Mr Housler. Dr Richardson had slightly different values to that. They were the first point of detection as opposed to

REWELL: Just pause there. First point of detection. If for whatever reason Mr Petrevski was approaching the curve well out from the airport fence and somewhere near the middle of the road and he detected that 60 or 80 metres away there was another truck on the road it would have been reasonable for him to simply go to where he should have been, that is to the left edge of the seal? Mr Keramidas?...

WITNESS KERAMIDAS: Yes, I would expect any driver on the centre of the road to move towards the left."

The point is that Mr Petrevski was looking to his left. Why he kept looking to his left is not explicable by having to observe the passage of his rig vis a vis the airport security fence. He was so far from out from it that there was no chance of any collision occurring. He appears to have been distracted by something to his left. If he had been looking ahead, as well as to his left and right as a driver ought to, then he would have seen Mr Housler's rig much earlier than he actually did. In other words I am persuaded on the balance of probabilities that he failed to keep any or any proper lookout. Again that is a particular of negligence pleaded in par 5(a) of the defendant's cross claim.

32. Finally, it follows from those two findings that Mr Petrevski failed to take any or any adequate evasive action by pulling over to the left earlier than he did and before it was necessary to brake. If he had taken earlier evasive action it probably would not have been necessary for him to brake at all, merely to ease off his speed by taking his foot from the accelerator, such that he proceeded of his own momentum and that would have avoided the collision entirely. Again that is a particular of negligence pleaded in par 5(i) of the defendant's cross claim.

The driving of the defendant’s rig

33. The question then becomes was Mr Housler himself negligent? The first thing to note is that there is no suggestion on the evidence that when Mr Housler brought his rig to a halt of the T intersection of the Downer compound service road and Ulm Avenue and then looked to his right, looked to his left and looked to his right again and proceeded to make his left hand turn that he could see or could have seen Mr Petrevski's rig. The top of Mr Petrevski's rig might have been visible above the mound but the security fencing on the airfield side of the road would have obscured any such vision. Mr Housler turned his vehicle on to Ulm Avenue. To do so he needed to take the front right hand corner of his prime mover essentially to the eastern side or the right side of the avenue's sealed road before turning back to the left hand side in order that the whole of his trailer could leave the access road through the gate. Having done that he then sought to straighten up by driving to his left so as to draw the whole of his vehicle onto the left hand side of the avenue. Before he did that however, he saw the plaintiff's vehicle approaching him.

34. Mr Housler adopted a cross placed on p 146 of Dr Richardson's report as being approximately where his prime mover was when he first saw the plaintiff's rig. Page 146 of Mr Keramidas' report is a one page size copy of the reconstructed scene diagram which is exhibit 5, made by Mr Keramidas. Essentially, at the time that he saw the plaintiff's rig, Mr Housler's prime mover was about 12 to 12.5 metres north of the northern end of the gate or the northern side of the Downer compound service road and in the middle of the carriageway. He saw the defendant's rig further along Ulm Street at the place where the words "Curve Radius" are and he agreed he could see it at where the letter C is, both on p 146 and what is now exhibit 5. He then had to do something. If he continued in the direction he was facing and the plaintiff's rig continued in the direction it was facing there might have been a head on collision. Mr Housler said that he looked at the driver of the other vehicle and could see that he was looking to his left and looking down. I can readily accept that Mr Petrevski was looking to his left, he continually told me that was so. I accept that he was also looking down, as Mr Housler said he was, because in his evidence Mr Petrevski admitted that he did have to look up, an issue discussed much earlier in these reasons. What distracted him, I know not. Nor clearly could Mr Housler.

35. What, I ask myself, could Mr Housler do? Only two suggestions have been made. The first is that he put his foot down as much as he could, accelerate, and bring his rig wholly onto the left hand side of the carriageway in the pious expectation that he would be seen by Mr Petrevski and Mr Petrevski would take similar evasive action, and in that fashion a collision would be avoided. The alternative was to brake hard and bring his vehicle to a halt which may have left his vehicle slantwise across the avenue blocking it almost entirely. Mr Housler took the first course of action and eschewed the second. The reason that he said he took the first course of action was because he feared personal injury. After all, each driver was driving a rig weighing at least 20 tonnes travelling at speed and a head on collision could have been fatal for both drivers. Understandably and naturally Mr Housler was concerned with injury to himself rather than injury to the other driver. Mr Housler's action has been vehemently criticised by learned counsel for the plaintiff. Indeed the language used by learned counsel for the plaintiff involved so much hyperbole that one might think he is considering standing for Parliament. Some of the terms he used in describing Mr Housler's actions were "irrational", "entirely unreasonable", "grossly negligent", "bizarre story", "suicide mission."

36. The question is to what extent ought I believe Mr Housler? I have already indicated that I have grave difficulty with most of the evidence of Mr Petrevski. When listening to his evidence I formed the view that he was being argumentative and combative as well as advocating his own cause. On the other hand, although there is a number of things said by Mr Housler which are incorrect or implausible, I formed the view that he was a very nervous witness, completely unused to being in a court and to being cross questioned. Indeed it became clear early on that the witness was challenged in his numeracy and he had to admit later during evidence that his ability to read and write was also challenged or inadequate. For example, Mr Housler said that when he looked up and saw the other driver he was looking to his left and downwards. I am prepared to accept that. However, he said that that is the position that Mr Petrevski maintained up until the very time of the collision and that therefore Mr Petrevski never saw him. That cannot be accepted because there is objective evidence that Mr Petrevski did see Mr Housler, hence his braking to come to a stop and a slight deviation to the left which I have already mentioned. However, I did not form the view that the witness was trying to mislead me but, rather, that was what he perceived, that that perception stayed in his me memory and that is what is lived in his memory rather than other further detail. In other words, although what the witness said about Mr Petrevski's subsequent appearance is unacceptable, it appears to me to represent an image frozen in his memory rather than a continuing recollection of what happened after he made his initial assessment. Once he made his initial assessment and initial decision his attention would have been turned to getting over to the left as quickly as he could.

37. Another area of evidence which concerned me was his perception of how busy Ulm Avenue was. I went into some detail at the commencement of these reasons to show what was on Ulm Avenue and where it was, to show that there were only three places which would generate traffic, the Downer compound, the BIG depot and the Sydney Airport Fire Station. The fire station might generate traffic probably at the end of each shift when workers are coming on to shift and others leaving the fire station after having completed a shift. Trucks might call from time to time but the essential service of the Airport Fire Station was to provide fire fighting facilities on the airport, in particular in case of any crash or fire affecting an aeroplane. It appears that the Downer compound was used mainly at night and therefore the major generator of any traffic would have only been the BIG depot and one could not accept that it generated a lot of traffic on Ulm Road other than perhaps when trucks start being driven at 7am and when they retire for the evening sometime between 4pm and 6pm or 7pm. No doubt acting on instructions, learned counsel for the plaintiff put to Mr Housler that Ulm Avenue did not have a lot of traffic and the witness disagreed. That may have been his perception but I cannot accept that. Perhaps his view was prejudiced by what happened on 16 October 2018 and the necessity for him to come to court.

38. There are a number of answers given by Mr Housler which I cannot accept. For example this passage from p 50 of the transcript:

"Q. Did he continue to do that for the entire time until the collision took place? [Look to the left and down]

A. Correct.

Q. So for the entire time after he came into your view, which is right at the other end when he came round the line of the fence, up until the collision, he was simply looking at the passenger's foot well of his truck?

A. That's correct.

Q. And again, whether that's 20, 40, 60, whatever the distance is for the entire length of that?

A. Correct.

Q. So on your observation he never saw you at all?

A. Correct.

Q. You have been driving for a long time big trucks, are you able to recognise when a truck is under brake?

A. Correct.

Q. Did you recognise his truck under brake or not?

A. No.

Q. On your version, he never braked?

A. On my version, no.

Q. He just kept coming?

A. Correct."

All those answers are wrong and I cannot accept them. However, it is based on a recollection of what Mr Housler saw when he first observed Mr Petrevski, which appears to have been seared into his memory and has obsessed him. I cannot accept any of that evidence, yet I do not believe that the witness has intentionally sought to mislead me. Again at p 58 the witness said that the speed of the truck, that is of Mercedes Benz prime mover, did not change at all and he agreed. Again that is incorrect. Mr Keramidas pointed out that in applying the brakes of the Mercedes Benz Prime Mover as Mr Petrevski did would have generated smoke from behind the wheels which might have been observable. It is clear to me that Mr Petrevski did not see that smoke probably because he was concerned with the cabin of the other vehicle looming up in front of him. He was not looking behind to see whether the smoke was coming from the wheels.

39. If, however, Mr Petrevski saw the defendant's vehicle earlier and had been driving on the correct side of the carriageway, or if he saw him at an earlier possible time and went on to the correct side of the carriageway and eased off, this accident would not have occurred. The circumstances of the accident must not be judged with the benefit of hindsight but from the point of view of the drivers of the vehicles looking forward.

Principles

40. Principles relating to accidents of this type are conveniently found in Marien v Gardiner; Marien v H J Heinz Coy Australia Ltd [2013] NSWCA 396 in the judgment of Meagher JA with whom Macfarlan J and Emmett JA agreed between [33] and [41] of his judgment:

33. The duty of the driver of a motor vehicle to users of the roadway, including pedestrians, is to take reasonable care for their safety having regard to all the circumstances of the case: per McHugh J in Vairy at [26]. Under the common law and the Civil Liability Act, the standard by which reasonable care is measured is an objective and impersonal one: Cook v Cook [1986] HCA 73; 162 CLR 376; s 5B.

34. The question whether there has been a breach of that duty is to be addressed prospectively and by reference to what a reasonable driver in the appellant's circumstances would have done, if anything, by way of response to any foreseeable risks of injury or sources of danger to other road users: Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 at 47-48; Vairy at [60], [105], [124] and [126]; New South Wales v Fahy [2007] HCA 20; 232 CLR 486 at [57]. A person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, not insignificant and a reasonable person would have taken those precautions in those circumstances: s 5B(1).

35. Whether reasonable care has been exercised is not determined by asking if different conduct could have produced a different outcome and avoided a collision or accident: Derrick v Cheung [2001] HCA 48; 181 ALR 301 at [13]. The exercise of reasonable care requires, as the majority observed in Manley v Alexander at [11], "reasonable attention to all that is happening on and near the roadway that may present a source of danger". That in turn requires "simultaneous attention to, and consideration of, a number of different features of what is already or may later come to be, ahead of the vehicle's path".

36. The driver is not required, however, to know or predict every event which happens in the vicinity of the vehicle so as to be able to take reasonable steps to react to such events. As Hodgson JA (Ipp JA and Gyles AJA agreeing) said in Hawthorne v Hillcoat [2008] NSWCA 340 at [47], the driver is only required to take reasonable steps to be in a position to know what is happening or might happen in the vicinity of the vehicle.

37. Nor is the driver required to be in a position where he or she can react to everything which may happen in the vicinity of the vehicle. The driver is not required to travel at a speed which is within the "limits of visibility and control" so as to be able to react to whatever ventures into the vehicle's path: per Ipp JA (Heydon and Santow JJA agreeing) in Cole at [61], citing Grove v Elphick (1985) 2 MVR 74 and Morris v Luton Corporation [1946] 1 KB 114. Derrick v Cheung was such a case. An unattended infant child emerged from between two parked cars and darted into the path of the vehicle. The driver was not negligent despite the fact that he was travelling at a speed which did not enable him, upon seeing the child, to avoid the collision.

38. In considering whether the appellant was negligent in not using high beam the primary judge focused on two matters. They were the absence of natural light and effective street lighting ([125]) and the fact that the appellant was travelling at about 50km/h. Those factors meant that, with a maximum head light throw of about 28m, the appellant was restricted in her ability to detect objects in her path: [126]. The reference to "ability to detect" must, I think, be understood to be to the appellant's ability to detect and react to objects in the path of the vehicle. Taking those matters into account the primary judge considered that high beam should be engaged where a motorist "cannot see obstacles in his or her path using low beam at the speed they are travelling, and high beam is not contraindicated". That conclusion also is to be understood as turning on the position being that the motorist cannot see and react to obstacles in his or her path.

39. Underlying that conclusion, expressed as it is in absolute terms, is the proposition, rejected by this Court in Cole at [61], that the exercise of reasonable care requires a driver to travel at a speed where he or she can react to whatever ventures into the path of the vehicle. The decision in Cole also is inconsistent with that being a correct statement of what the standard of care requires. In that case the driver was held not to have been negligent even though she was driving at night at a speed which meant that she could not stop or manoeuvre her vehicle to avoid a collision with Ms Cole who was standing on the roadway.

40. The question for the primary judge was whether the appellant was exercising reasonable care in the circumstances as they presented to her. Under s 5B(1)(c), which reflects the position under the common law, that question was to be answered by reference to what a reasonable person in her position would have done by way of response to any foreseeable risk of harm to a user of the roadway: Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540 at [192].

41. The appellant was aware that the stretch of Centenary Avenue on which she was driving was used by locals who walked on either side of the roadway at different times of the day and night when going between their homes and places in and around the Hume Highway intersection and beyond. The roadway itself had residences on one side and, after 5.00am, especially on a weekday, people might be expected to start moving about. Viewed prospectively, the probability of the appellant coming across a pedestrian using the roadway at that time in the early morning, and particularly one who was walking out from the kerb in the same direction as the oncoming traffic and with his back to it, would have been regarded as unlikely. Nevertheless it was one which could not be dismissed as never likely to happen, even at that early hour; and the driver must take account of the possibility of inadvertent and negligent conduct of a pedestrian: see McLean v Tedman [1984] HCA 60; 155 CLR 306 at 311; Clarke v Freund [1999] NSWCA 197; 29 MVR 361 at [15]. This is particularly so where any collision could result in serious injury or worse to the pedestrian. In my view, in the language of s 5B(1) and (2), the risk of harm to a pedestrian on the roadway was foreseeable and not insignificant. It was therefore something which the driver was required to take reasonable steps to avoid.

As stated by his Honour at [41] "The matter must be viewed prospectively, not retrospectively." As his Honour also pointed out, the common law in this regard and the provisions of the Civil Liability Act 2002 s 5B(1)(c) are identical. "The question is to be answered by reference to what a reasonable person in the position of a driver would have done by way of response to any foreseeable risk of harm to another user of the roadway."

Conclusion on the driving of the defendant’s rig

41. When Mr Housler turned left on to the carriageway of Ulm Avenue there was no reason for him to perceive that there was any danger. In doing what he commenced to do he cannot be criticised. The real cause of this accident was the fact that the plaintiff's vehicle was being driven, either in the middle of the road or partly in the middle of the road and partly on the incorrect side of the carriageway by a driver who was not paying any adequate attention to what was in front of him, by a driver who was failing to keep any proper lookout. He noticed Mr Housler late and then did not take adequate evasive measures by steering to the left hard enough. In braking he cannot be criticised but he should not have been in a position in which he was when he commenced to brake. Had he been driving on the correct side of the carriageway, a metre out from the seal, and travelling at the speed he says he was travelling then this accident could have been completely avoided by his merely easing off his speed, by letting the vehicle proceed under its own momentum. There would have been no collision. We are trained as drivers in this country to keep to the left and one's automatic reaction in seeing something approaching from head on is to turn to the left. If both drivers turn to the left a collision will be avoided. The fact here is that Mr Housler was doing what he was permitted and taught to do and the effective cause of this accident was the driving of Mr Petrevski. I am not persuaded on the balance of probabilities that the driving of Mr Housler was negligent.

42. Strictly speaking therefore, the question of contributory negligence by Mr Housler does not arise. But if it did, what was said by Meagher JA in Marien at [48] and [49] must also be taken into account. The question is whether Mr Housler had taken the degree of care for his own safety that an ordinary reasonable person in his position would take. I am persuaded that faced with one of two choices he took a choice. He made a valid choice. Unfortunately it did not end up avoiding the collision because essentially the Mercedes Benz rig did not take the course which a reasonable driver of it would have taken.

43. It follows from those findings that there must be a verdict and judgment for the defendant against the plaintiff as far as the statement of claim is concerned and as far as the cross claim is concerned there must be a verdict and judgment for the cross claimant against the cross defendant.

44. For those reasons, I give verdict and judgment for the defendant against the plaintiff. I order the plaintiff to pay the defendant's costs.

45. I give verdict and judgment for the cross claimant for $104,674 against the cross defendant. I order the cross defendant to pay the cross claimant's costs.

Costs

46. There is some argument about costs was there?

ABBOUD: Your Honour, there has been offers of compromise in this matter. Not in relation to the figures because obviously quantum was agreed but in relation to liability. If it suits your Honour, perhaps we'd have liberty to come back to you in 14 days if there can't be agreement between the parties.

HIS HONOUR: I'm at circuit all next week.

ABBOUD: I'm in your hands.

HIS HONOUR: I don't want to have to come back to it. I can still deal with it now. Have you got the offers of compromise?

ABBOUD: I do, your Honour, thank you. I have two offers to hand up. There were two offers made by the defendant/cross claimant, one of 19 February 2019 and one of 21 January 2020. I will let your Honour look at them but they're for apportionments of 90/10 and 75/25.

HIS HONOUR: Thank you.

EXHIBIT #7 COPY LETTERS FROM MCINNES WILSON LAWYERS TO SPARKE HELMORE LAWYERS DATED 19/02/19 AND 21/1/20, ADMITTED WITHOUT OBJECTION

What do you say, Ms Tang?

TANG: Your Honour, we're in your hands.

HIS HONOUR: Okay, thank you. It was clear there was an offer made on 19 February for the plaintiff to be 90% responsible, defendant be 10% responsible. If you'd accepted that you'd be much better off than you are now.

TANG: Your Honour, might I propose on behalf of the plaintiff that in view of the offer of compromise that the parties could probably discuss sensibly amongst themselves the costs, like our own costs.

47. HIS HONOUR: What I'll do is I'll make the order which I believe should be made and give you liberty to reply in case. All right? That's the easiest way of doing it.

1. Pursuant to UPCR 42.15, I order that the plaintiff pay the defendant's costs on the ordinary basis until 19 February 2019 and thereafter on an indemnity basis.

2. I order that the cross defendant pay the cross claimant's costs of the cross claim on the ordinary basis until 19 February 2019 and thereafter on an indemnity basis.

I grant the parties’ liberty to apply on three days' notice to my Associate.

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Decision last updated: 22 September 2021