Birse and ANOR. v Aristocrat Leisure Industries Pty Limited
[2000] NSWCA 311
•8 November 2000
CITATION: BIRSE & ANOR. v. ARISTOCRAT LEISURE INDUSTRIES PTY. LIMITED & ORS. [2000] NSWCA 311 FILE NUMBER(S): CA 40284/99 HEARING DATE(S): 26/10/00 JUDGMENT DATE:
8 November 2000PARTIES :
KEITH SCOTT BIRSE and ENA BIRSE (Appellants)
ARISTOCRAT LEISURE INDUSTRIES PTY. LIMITED (First Respondent)
AMW PROJECTS PTY. LIMITED (Second Respondent)
SHAW'S DARWIN TRANSPORT PTY. LIMITED (Third Respondent)JUDGMENT OF: Powell JA at 1; Giles JA at 49; Rolfe AJA at 50
LOWER COURT JURISDICTION : District Court LOWER COURT
FILE NUMBER(S) :DC 2568/97; DC 4331/97; DC 6014/97 LOWER COURT
JUDICIAL OFFICER :Armitage DCJ
COUNSEL: D.F. Jackson QC/A.M. Gruzman (Appellants)
N.A. (First and Second Respondents)
I.G. Harrison SC/G. Curtin (Third Respondent)SOLICITORS: Keddies (Appellants)
N.A. (First and Second Respoondents)
Sparke Helmore (Third Respondent)CATCHWORDS: NEGLIGENCE - Motor vehicle accident - Car towing turning right across path of overtaking road train - Whether driver of car negligent in circumstances - Whether driver of road train negligent in circumstances - No question of principle ND DECISION: Appeal dismissed
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40284/99
DC 2568/97
DC 4331/97
DC 6014/97
POWELL JA
GILES JA
ROLFE AJA8 November 2000
BIRSE & ANOR. v. ARISTOCRAT LEISURE
INDUSTRIES PTY. LIMITED & ORS.JUDGMENT
1 POWELL JA: This is an appeal from a Judgment delivered and verdicts found by Armitage DCJ on 31 March 1999 in three actions which, since they all arose out of the same incident, were heard together. Although the orders which were sought in the Amended Notice of Grounds of Appeal (RAB 140-143) which were filed on behalf of the Appellants (Mr. and Mrs. Birse) in September 1999 were more extensive, the orders which, on the hearing of the appeal, were sought on behalf of Mr. and Mrs. Birse were less so as, so we were informed (T. 1) the proceedings had earlier been compromised between all parties except Mr. and Mrs. Birse and the Third Respondent, Shaw's Darwin Transport Pty. Limited ("Shaw's"). Despite that fact, the orders which are sought by Mr. and Mrs. Birse would involve the setting aside in each of the three actions of a verdict found by Armitage DCJ in favour of Shaw's against Mr. and Mrs. Birse.
2 In the first of the three actions (DC 2568/97) the Plaintiffs, Aristocrat Leisure Industries Pty. Limited ("Aristocrat") which was the manufacturer and consignor of 52 "Aristocrat" brand gaming machines and AMW Projects Pty. Limited ("AMW") which was the consignee of those machines, sought originally to recover from the First Defendant, Value Sweets Pty. Limited t/a Bennett Transport ("Bennett"), the Second Defendant, Shaw's and the Third Defendants Mr. and Mrs. Birse, damages which they claimed to have sustained when the machines were heavily damaged when a road train - owned by Shaw's and driven by one Korn, an employee of Shaw's - in which the machines were being transported overturned after the road train had, on 22 May 1996, collided with a Nissan Patrol motor vehicle - owned by Mr. and Mrs. Birse - and being driven by Mr. Birse, on the Barrier Highway outside Cobar.
3 The case - later discontinued - which Aristocrat and AMW sought to raise against Bennett, which case was based in both contract and negligence, arose out of the agreement said to have been made between AMW and Bennett for the carriage by Bennett of the machines from Aristocrat's premises at Rosebery to AMW's premises in Perth. The case which Aristocrat and AMW sought to raise against Shaw's was also based in contract and negligence but, in addition, was sought to be based on the fact that Shaw's, as the sub-contractor to Bennett of the contract of carriage, was a bailee for reward and had failed to deliver the goods in Perth in the same good order and condition as they were when received at Aristocrat's premises. The case which Aristocrat and AMW raised against Mr. and Mrs. Birse was based in negligence, it being said that the collision between the road train driven by Mr. Korn and Mr. and Mrs. Birse's Nissan Patrol was caused or contributed to by the negligent driving of Mr. Birse.
4 In addition to filing a Defence to the Statement of Claim, Bennett raised a Cross-Claim against Shaw's seeking contribution to, or indemnity against, any award of damages which might be made in favour of Aristocrat and AMW against it - at the time of Aristocrat and AMW discontinuing their claim against Bennett that company discontinued its Cross-Claim against Shaw's. In addition to filing Defences to the Statement of Claim, each of Shaw's and Mr. and Mrs. Birse raised a Cross-Claim against the others, or other, of them seeking contribution to, or indemnity against, any award of damages which might be made in favour of Aristocrat and AMW against it or them.
5 In the second action (DC 4331/97), Shaw's sought to recover damages against Mr. Birse in respect of the damage caused to the road train as the result of the collision, that claim being based in negligence. The particulars of negligence which were given were as follows (RAB 77):6 In his Defence to that action, Mr. Birse, in addition to denying the allegations of negligence and putting in issue the quantum of damages claimed asserted (RAB 83):
"6. As the Plaintiff's vehicle approached the Defendant's vehicle the Plaintiff's vehicle moved to overtake, however, at the same moment the Defendant's vehicle proceeded to cross the on-coming traffic lane in an attempt to turn right and caused the Plaintiff's vehicle to collide with the Defendant's vehicle.
7. The collision was caused by the negligence of the Defendant.
Particulars of Negligence
(a) Failing to indicate
(b) Failing to keep any or any proper look-out
(c) Failing to keep his motor vehicle under any or any proper control
(d) Failing to steer or control his motor vehicle so as to avoid a collision
(e) Breaking (sic) in a dangerous manner"
7 In the third action (DC 6014/97), Mr. and Mrs. Birse sought to recover from Mr. Korn, who was the first party-Defendant, and Shaw's, which was the second party-Defendant, damages in respect of the damage which they claimed had been sustained by the Nissan Patrol and the Viscount caravan which it was towing at the time as the result of the collision between the road train and the Nissan Patrol, the particulars of negligence on the part of Mr. Korn being said to be (RAB 95):
"6. Further and in the alternative the Defendant says that the collision occurred as a result of negligence on the part of the Plaintiff by the servant or agent, Gary Korn.
Particulars of Contributory Negligence on the part of the Plaintiff
(a) Driving at a speed which was excessive in the circumstances
(b) Failing to keep a proper look-out
(c) Failing to maintain control of the vehicle
(d) Failing to overtake with safety
(e) Failing to apply the brakes on the Plaintiff's vehicle in time to avoid a collision
(f) Failing to steer the vehicle so as to avoid colliding with the Defendant's vehicle/"
8 In the Defence which was filed on their behalf, Mr. Korn and Shaw's, in addition to putting in issue the allegations of negligence and the quantum of damages claimed by Mr. and Mrs. Birse, further alleged (RAB 99-100):
"1. Driving at a speed which was excessive in the circumstances.
2. Failure to keep a proper lookout.
3. Failure to maintain control of the vehicle.
4. Failure to apply the brakes in time to avoid colliding with the plaintiffs' vehicles.
5. Failure to steer so as to avoid colliding with the plaintiffs' vehicles."
"3. In further or alternative answer to the whole of the Statement of Claim, the First and Second Defendants say that if the Plaintiff (sic)suffered loss and damage as alleged, (which is denied), such loss and damage was caused or contributed to by the negligence of the Plaintiff (sic)..
Particulars
(i) Failing to indicate
(ii) Failing to keep any or any proper lookout
(iii) Failing to keep his (sic) motor vehicle under any or any proper control
(iv) Failing to steer or control his (sic) motor vehicle so as to avoid a collision
(v) Braking in a dangerous manner."
9 The collision between the road train and the Nissan Patrol occurred at about 11.45 a.m. on 22 May 1996 on the Barrier Highway at a point about 65 kilometres to the West of Cobar and at a point approximately opposite the entrance to a roadside rest area.
10 The Barrier Highway, which commences at Nyngan, where it connects with the Mitchell Highway, extends from Nyngan to Gawler on the outskirts of Adelaide, via Cobar, Wilcannia and Broken Hill (Blue AB 88). In the general area where the collision occurred, the highway runs approximately East-West following the slightly undulating land surface, which land surface results in minor crests separating long shallow depressions. In the vicinity of the collision site, the highway comprised a two-lane undivided two-way road with one lane for each direction of travel. The carriageway had a bitumen bonded gravel seal with painted edge lines and centre line provided, the seal extending about 1.1 metre (approximately 3 feet 6 inches) beyond the edge line. The lanes at the collision site were said to be 3.1 metres (approximately 10 feet) wide, the road shoulders being said to have been 2.3 metres (approximately 7 feet 6 inches) wide, of which, as I have indicated, the first 1.1 metre was sealed while the remainder of the shoulder was unsealed.
11 The roadside rest area at the collision site appears to have been the first such rest area adjoining the Barrier Highway to the West of Cobar (Blue AB 14). It was situated on the Northern side of the Highway - that is, on the opposite side of the Highway for vehicle travelling West from Cobar - and had two entry/exit access points, the more Easterly of such access points being that adjacent to which the collision between the road train and the Nissan Patrol occurred. A sign reading "Rest Area" was located at right angles to but off the highway between the two entry/exit access points. At or near the point where each of the entry/exit access points adjoined the highway there was a "Give Way" sign.
12 At a distance of about 280 metres to the East of the Eastern entry/exit access point into the rest area is a slight crest. As one approaches that crest from the East, one travels up a slight - 3%-4% - upgrade over a distance of about 350 metres, part of which involves a slight curve to the left until one reaches a point about 100 metres to the East of the crest - about 380 metres from the Eastern entry/exit access point into the rest area - from which point the road is straight for a distance of some kilometres. Situated at a point on the Southern side of the highway at a distance which appears to have been estimated variously between 130 and 170 metres to the East of the crest - that is between about 400 and 440 metres to the East of the Eastern entry/exit access point into the rest area - was a sign reading "Rest Area 500 m". Beyond the crest as one proceeded West, the road sloped gently - 4% - downwards towards the collision site before rising again at some distance beyond it (Blue AB 9-13).
13 The speed limit on the section of the Barrier Highway in which the collision site was located was 110 kph for cars, 100 kph for speed-limited trucks and 90 kph for non-speed limited trucks.
14 At the time of the collision, Mr. Birse, who was then aged 70 years, and who was a retired motor mechanical workshop proprietor, and Mrs. Birse were touring in New South Wales, Mr. Birse driving their Nissan Patrol - a 4-wheel drive vehicle, 2-door model fitted with a fibre glass rear canopy - and towing a Viscount Grand Tourer caravan - the vehicle was equipped with substantial external rear vision (towing) mirrors, as seems to be required of vehicles towing caravans by some regulation in Queensland (Black AB 29) which was their home State.
15 Although, in his evidence in chief at trial (Black AB 25), Mr. Birse said that they had left Cobar at about 9.30 a.m. after having stopped for a short time in the town to buy some food, in a statement (Exhibit J (part) - Blue AB 19) made by him in August 1996, Mr. Birse said that they had left Cobar at about 11.00 a.m. travelling via the highway in the direction of Wilcannia. Given that, in his evidence in chief at trial, Mr. Birse said that they travelled at about 80 kph; given the distance of the collision site from Cobar; and given that the collision appears to have occurred at about 11.45 a.m.; the overwhelming probability is that they left Cobar at about 11.00 a.m.
16 In his statement, Mr. Birse said that, after leaving Cobar they noticed a sign indicating a rest area approximately 57 km ahead and that they decided to stop and have lunch at that location (Blue AB 19).
17 The road train which, at the time of the collision was being driven by Mr. Korn - one of the two drivers in the vehicle at the time, the other being Mr. Hines - comprised a 1995 model Kenworth T66 prime mover, to which were coupled in series two 1994 model Haulmark semi-trailers, with a Haulmark "dolly" linking the two trailers - according to Sgt. Pritchard, who investigated the collision at the time (Black AB 7):
According to Mr. Korn (Black AB 116) the prime mover was speed limited to 98 kph. The prime mover appears also to have been fitted with a device known as an Execulog, a device which apparently provides a sampled read-out at 30 second intervals of the progressive distance from the start of the vehicle's trip and the average speed of the vehicle over that part of the trip (Blue AB 73-113) - some of the evidence (see, for example, Exhibit S - Blue AB 110-111) suggests that, at the time, the Execulog was reading 9.42% fast. When fully coupled together, the road train was about 36 metres in length (Black AB 123). Although there was no evidence to that effect, it was suggested to Mr. Korn in the course of his cross-examination (Black AB 124) that, when fully laden, the road train weighed some 80 odd tonnes.
"A dolly's just a set of axles to couple the two trailers together which is then attached to the prime mover."
18 It would appear that Mr. Korn drove the road train from Dubbo (Black AB 140) where the road train had been made up (Black AB 129), the distance from Dubbo to the collision site, so it was suggested to Mr. Korn - but not accepted by him - being said to be approximately 380 kilometres (Black AB 140). The materials which are before the Court do not permit one to say when it was that the road train left Dubbo, or when it was that it passed through Cobar, although the matters to which I will now refer would suggest that it passed through Cobar some time after - perhaps not long - 11.00 a.m. when - as I have suggested - Mr. and Mrs. Birse left Cobar.
19 In the course of his evidence (Black AB 123), Mr. Korn said that he thought that after the road train left Cobar it was travelling at a speed of approximately 80 kph. He also said that, prior to reaching the crest to the East of the collision site, he had followed the Nissan Patrol for a distance of some kilometres and that he was slowly catching up to it (Black AB 115-116).
20 Although, in his evidence at trial (Black AB 45) Mr. Birse claimed that he checked his rear vision mirrors all the time, and although by the time the Nissan Patrol reached the crest to the East of the rest area, the road train would, in all probability, have been only about 100 metres or a little more behind, at no time prior to the collision did Mr. Birse observe it (Black AB 27).
21 In the statement which he gave to Sgt. Pritchard following the collision (Blue AB 1-2), Mr. Birse said:
"I was travelling west towards Broken Hill. I noticed a rest area sign. As I came over hill I saw the rest area. I was going about 60k. I started to brake, I put my indicator on and as I went to turn across the road into the rest area the truck hit me. At no time before the accident did I see the truck. The truck hit us and pushed us down into the table drain.
Q. Did you look in the rear vision mirror before you turned into the rest area? A. Definitely I didn't see him at all."
22 When he took the statement from Mr. Birse, Sgt. Pritchard asked him (Mr. Birse) to indicate the point at which, so he said, he activated his traffic indicator - that point Sgt. Pritchard estimated - by pacing it out - at about 153 metres from the point of impact (Black AB 10; Blue AB 5). The point of impact was indicated by Mr. Birse as being 1.5 metres from the Northern shoulder of the road (Black AB 11; Blue AB 5) and opposite the entry into the rest area.
23 In the statement which he made in August 1996, Mr. Birse said (inter alia) (Blue AB 19-21):
"5. Approximately ¾ hour after leaving Cobar, we came over the brow of a hill on a straight stretch of road and upon mounting the brow of the hill I observed the sign on the right-hand side of the road saying 'rest area'. The rest area was open to the road.
6. The rest area was accessed from the highway by a bitumen driveway extending out to the edge of the main road. The rest area was equipped with a water tank, a barbecue area, and a wooden shelter with benches. It was a cleared area, easily visible from the road without the aid of the sign.
7. I estimate that the turn into the rest area was about 100 metres from the brow of the hill. I recall that I was travelling at about 80 km per hour when I reached the brow of the hill. The gradient up the slope was not at all steep, and was not such as to affect the speed of one's travel.
8. My recollection is that immediately upon seeing the sign (which was at or about the same time as I reached the brow of the hill), I activated my right hand turn signal. At about the same time (perhaps a second or two afterwards) I applied my brakes in order to slow down in time to turn into the rest area. In retrospect it seems to me that this is a naturally dangerous location, because of the relatively short distance between the point where the rest stop first becomes visible and the actual point at which one must make the turn into the rest stop.
9. I specifically recall that I checked my wing mirrors immediately before applying the brakes. I regard myself as a very cautious driver, and I make it my practice to 'drive in the mirrors' along every part of the highway.
10. I recall also that I did not come to a complete halt once my vehicle had reached a point adjacent to the turn-off point. There was no on-coming traffic visible along a long straight stretch of road ahead of me. Again, I looked in my rear view mirror before turning. Even at that point, I could see no sign of any traffic movement behind.
11. As indicated by the photographs which I have attached to my statement, the marking of the road centre line on my side of the road was dotted and the parallel line was, for traffic headed in the opposite direction, a solid line.
12. I began to make the turn into the driveway. The front wheels of my vehicle had entered the approach to the rest area, the incline. I recall then two sensations, which were simultaneous. An enormous black object passed across directly in front of my vehicle. At the same time I heard a dreadful scraping noise and a loud crash. I felt no movement, not even a sensation of impact, or even of being pulled forward in my seat belt. I was conscious of the fact that although the motor of my vehicle was still running, it had stopped moving.
13. The blackness obscuring my vision in front was only momentary, and lasted a second or two. However, it was immediately replaced by a huge cloud of dust directly ahead. I involuntarily took my foot off the accelerator pedal. I retained hold of my steering wheel.
14. I looked up automatically to my left, simply because I could not see anything directly ahead. As I did so, I had a virtually uninterrupted view off to my left of a prime mover and trailer hurtling some yards down the highway, tipping over towards the opposite side of the road as it did so, and landing on its side upon the embankment. Facing in the opposite direction to which it had been travelling."
24 When Sgt. Pritchard arrived on the scene, he found the Nissan Patrol in the table drain on the Northern side of the road and at a distance of about 35 metres to the West of the point of impact (Black AB 15). At the time there were visible in the East bound lane skid marks over a distance of about 50 metres to the point of impact - there were also signs that the road train had then travelled into the table drain on the Northern side before becoming airborne (Black AB 15). The prime mover and the trailers were a further distance to the West of the Nissan Patrol, the prime mover and trailer No. 1 being overturned on the Southern side of the road with the prime mover - the front of which was 61 metres from the point of impact - facing the East, and the dolly and trailer No. 2 being overturned in the table drain on the Northern side of the road but facing West about 102 metres from the point of impact(Blue AB 15,30).
25 At trial, Mr. Birse gave the following (inter alia) evidence in chief (Black AB 26-28):26 Apart from the variations between the three versions of the incident given by Mr. Birse, there are, as it seems to me, inherent improbabilities in each of those versions which make it difficult for any of them to be accepted as correct. Thus:
"Q. As you approached within, say, a kilometre of the rest area how far was it, how far were you from the rest area when you noticed its particular location? A. It was immediately we went over the crest of the hill, it was quite obvious where the rest area was, there was a sign indicating 'rest area' on the right.
………
Q. And you say when you went over the crest of the hill you could see that that's where the rest area was? A. Exactly.
Q. And what did you do when you saw where the rest area was as you went over the crest of the hill? A. Immediately I went over the hill and seen the sign saying 'rest area' I immediately put the right indicator on and applied the brakes, which happens.
Q. Did you do it in that particular order? A. I wouldn't guarantee that I'd done it in that order but whichever way it happens just automatically.
Q. So you say within a short space of time …? A. Very short space of time.
Q. You know that, you've heard Sgt. Pritchard say that in your statement to him recorded in his notebook you say 'I started to brake, I put my indicator on'. Is there anything about that particular order that….? A. Well it …
Q. Is there anything about that particular order …? A. Well it happened simultaneously. I mean the blinker light could go on and the brake simultaneously at the same time.
Q. Now what sort of speed were you then travelling? A. I'd have got, over the crest of the hill, I'd have been braking back to at least 60 kilometres and then slowing down gradually to a very slow pace to take a right angled turn into the rest area.
………
Q. And when you say a very slow speed something greater than walking pace? A. Yes, yes, approximately a walking pace I'd say, yes.
Q. And was the slowing down from the point that you got to at 60 kilometres an hour down to the slow pace continuous and even? A. Yes, yes …
Q. Or was it sudden? A. No it wasn't sudden, it was just a gradual slow down and just a gradual turn, the vehicle never stopped rolling, it just kept rolling into the rest area.
Q. And did your indicator remain on? A. Yes it would have been on all the time.
Q. And what did you observe about the time you were about to do this or what observations did you make at about the time you were to turn into the rest area? A. I checked my mirrors and I did not see a sign of any other oncoming vehicle in either direction.
Q. And did you hear the sound of anything approaching, any warning horn or anything else? A. No I did not.
Q. So what did you do next? A. I just proceeded to go down the incline, a slight incline, fairly sharp gradient, down into the rest area. My vehicle was down, I'd say the four wheels of the vehicle were down the slight incline into the rest area and that's when I heard this terrible impact?
Q. So you turned from lane 1, that is the left hand side of the road …? A. Left hand lane, yes ..
Q. … road? A. Yes.
Q. Across the road? A. Across the road.
Q. In a sort of 90 degree fashion? A. Exactly.
Q. And started to go over the other side of the road? A. Yep.
Q. The northern side of the road, into the entrance to the rest area. A. Exactly.
Q. And then you heard something? A. Yes.
Q. What did you observe? A. Well it happened so quickly, I just seen a terrific flash past the windscreen of a large object and then it was total blackout as far as the dust was concerned. I never seen another thing until I seen a section of the road train careering down the road through the rest area.
Q. Were you able to identify what part of the road train that was? A. Yes it would've been the dolly section.
Q. The last tray? A. The last tray.
Q. And did you then see something happen to the prime mover and the other trailer? A. Yes on looking out the passenger side window of my vehicle where my wife was sitting we seen the prime mover and the other section of the trailer almost totally airborne and rolling over in the opposite direction to which he was travelling and landing on its side almost in the water table.
Q. Is the table drain on the Southern side…? A. Table drain on the, yeah.
………
Q. Did your vehicle come to a stop instantly? A. Well the vehicle was stopped, that was it, end of story.
Q. And where did your vehicle stop in relation to the entrance into, of the rest area, into which you had been turning? A. I would feel perhaps about 20 metres, dragged down through the rest area.
and later (Black AB 30-31):
Q. So your 20 metres to the west of the entrance that you were turning into? A. Exactly."
"Q. Now you say you looked in the mirror, which mirror was that, prior to making the turn? A. I looking in both mirrors and particularly the one on the driving side.
Q. Is there any reason why you think that you didn't see this particular road train that was somewhere behind you? A. I could not give a reason for that but as my vehicle was down into the rest area, most of the vehicle was down into the rest area, looking in the mirror then I was looking back across the road, directly across the road.
………
Q. So when you're travelling along a straight bit of road and you look in your mirrors what can you see? A. Well you can see behind the caravan, you can see the white line on the right side of the road and the other white line on the left hand side of the road.
Q. And if there were some small object, like a motor cyclist, very close up behind your caravan could you see that? A. I wouldn't see it.
Q. And if there was a road train following behind your caravan would you be able to see that? A. Depending on how close the vehicle was to me.
………
Q. And what's the effect of the vision when you start to turn your vehicle? A. Well it certainly indicates anything that's close behind you, or even a distance back from you, a certain distance.
Q. But as in this situation when you started to turn your vehicle to the right, into what was intended to be a 90 degree turn, what do you then see in your mirrors when you're half way through that turn? A. I can see the rear end of the caravan coming around behind me and I can also see back past the caravan into a vacant area, if it's looking backwards across the road.
Q. And what would be your vision of anything that was following behind you at that point of time? A. I wouldn't have a vision.
Q. And what about from the driver's side mirror, what view or what vision would you have from the driver's side mirror when you're say 45 degrees through the turn? A. Same vision, I'd be looking back at the rear end of the caravan, the rear corner of the caravan, and looking back beyond that across the road.
Q. So you'd be looking at 45 degrees roughly across the road? A. Exactly."
27 In the statement (Blue AB 4) which he gave to Sgt. Pritchard at the scene, Mr. Korn said:
1. the photographs (Blue AB 7-14) said to be Exhibit C but in fact being the photographs contained in Mr. Schnerring's first report (Exhibit L - Blue AB 43, 69) would seem to indicate that, while it might be possible to see the rest area sign at a distance of 250 metres to the East of the Eastern entrance to the rest area, the sign would be inconspicuous and the entrance into the rest area would be inconspicuous, facts which are difficult to reconcile with Mr. Birse's assertion that he saw the rest area, or that he saw the rest area sign, as he came over the hill, or as he came over the brow of the hill.2. The fact that the crest of the hill is at a distance of about 280 metres to the East of the Eastern entry into the rest area makes it improbable that, as Mr. Birse asserts, it was at the time when he came over the hill he started to brake and activated his right hand traffic indicator - at a speed of 60 kph Mr. Birse would have had in excess of 16 seconds, and at a speed of 80 kph Mr. Birse would have had in excess of 12 seconds, within which to slow down to a speed sufficient to permit him to make a turn into the rest area;
3. Mr. Birse's assertion as to when he activated his right hand traffic indicator cannot be reconciled with what he indicated to Sgt. Pritchard was the point at which, so he said, he had activated his traffic indicator, which point, as I have already noted (para. 22 (above)) was about 153 metres to the point of impact, that is, 120 metres or more beyond the crest;
4. the point which Mr. Birse indicated to Sgt. Pritchard as that where he activated his right hand traffic indicator is difficult to reconcile with the estimate - about 100 metres - made by him in the statement which he made in August 1996 as to the distance from the brow of the hill to the entry into the rest area and with his assertion, in the same statement, that the location of the rest area was dangerous "because of the relatively short distance between the point where the rest stop first becomes visible, and the actual point at which one must make the turn into the rest stop";
5. given the speed at which the road train was travelling, the location of the skid marks in the East bound lane, the fact that the skid marks were straight and extended over a distance of 50 metres or thereabouts to the point of impact, it is inescapable that the road train had moved into the East bound lane to pass the Nissan Patrol and caravan at some earlier point of time - in his supplementary report Mr. Schnerring suggests (Blue AB 75) at about 200 metres from the point of impact - which makes it difficult to accept Mr. Birse's assertion that, prior to making his turn he looked in both mirrors, and particularly the one on the driving side, and yet did not see the road train;
6. the fact that Mr. Birse indicated to Sgt. Pritchard the point of impact as having been 1.5 metres from the Northern shoulder of the road cannot be reconciled with Mr. Birse's assertion in his evidence at trial (Black AB 28) that, prior to the impact, the four wheels of the Nissan Patrol were down the slight incline into the rest area; nor is it easy to reconcile that evidence with the description given by Mr. Birse of the incident in the statement which he made in August 1996.
"I was travelling West toward Wilcannia. I was going about 80 kph. I came over the rise. There was a caravan in front of me. I had seen it for a couple of km. About 100-150 mts from the rest area he put on the brakes and then put on his blinker to turn right. I was right on top of him. I put my brakes on, but I knew I couldn't stop in time so I came out to overtake him before he turned, hoping he would see me, but he just turned in front of me. I hit the 4WD. When I hit him it has thrown me & the rear trailer tipped & then the rest. There was nothing I could do. He didn't just put on the brakes, he jammed them on. It was as though he saw the rest area at the last minute and decided to pull in."
28 As he had done with Mr. Birse, Sgt. Pritchard asked Mr. Korn to point out where he said various things had occurred, and then, accompanied by Mr. Korn paced out the distance to those points - the distance from the point of impact to where Mr. Korn said the right hand traffic indicator was activated was 35 metres and the distance to where Mr. Korn said he first observed the brake lights illuminated was a further 50 metres and the distance from that point to the crest was a further 185 metres (Black AB 11; Blue AB 6). At the same time, Sgt. Pritchard noted - but whether or not by pacing it out is not clear - that the distance from the point of impact to the rest area sign beyond the crest to the East was 510 metres - if, in fact, Sgt. Pritchard had paced the distance to the rest area sign, other material - the report of J. Tighe Investigations (Blue AB 29-30) and Mr. Schnerring's first report (Blue AB 47) - which suggests that the distance to the sign is between 400 and 440 metres from the point of impact would cast a shadow of doubt over the accuracy of the measurements given by Sgt. Pritchard to the points which had been indicated to him by Mr. Birse and Mr. Korn.
29 At trial, Mr. Korn gave the following (inter alia) evidence in chief (Black AB 116-118):
"Q. As you came to the crest, which side of the road were you on, do you remember? A. Left hand side.
………
Q. Well do you remember at all the four wheel drive being some distance ahead of you as you came over the crest? A. No I don't remember how far it was.
Q. Do you remember whether you were catching up with the four wheel drive at all? A. Slowly yes.
Q. And did you see something happen with the four wheel drive? Did you see something on it? A. When I came over the crest or ..
Q. Yeah and as you came up to it? A. Well we were travelling along all right and then the first thing I seen was his brake lights.
Q. Did you notice anything about how quickly you were coming up to the four wheel drive after the brake lights came on? A. Yes, yeah.
Q. What do you remember noticing about that? A. I was - I was catching him…
HIS HONOUR: Q. Sorry, what? A. I was catching him really fast.
CURTIN: And what's the first thing you did when you saw the brake lights come on? A. Put my foot on my brake.
Q. Did you then come to a decision? A. Yes.
Q. What decision did you come to? A. I couldn't stop.
Q. Do you remember how far you were from the four wheel drive when you first saw the brake lights? A. No.
Q. Do you remember how far the four wheel drive was from the rest area when you first saw the brake lights? A. No I don't.
Q. You do remember the decision you came to? A. Yes.
Q. What did you then do after you came to this decision, that you couldn't stop? A. I tried to overtake him.
Q. What's the next thing you did in order to overtake? A. I accelerated.
Q. Did you stay on the left hand side of the road or? A. No I went to the right hand side of the road.
Q. I assume you're coming closer and closer to the four wheel drive when you moved onto the right hand side and commenced to accelerate? A. I was basically - I was instant sort of - as I come around him I was up beside him.
Q. Then did you see something else on the four wheel drive? A. Yeah I seen his blinkers.
Q. Where were you do you remember when you first observed the blinker? A. I was actually in the process of pulling out and going around him.
Q. Had his blinker been on before that? A. No.
Q. When you saw the blinker, did you decide to do something? A. Decided to keep going, hopefully he could see me when he turned in.
Q. And could you have stopped? A. No.
Q. What then happened? A. I was just going along, hopefully he'd see me and then he turned into the rest area.
Q. Did you see him commence his turn? A. Yeah.
Q. What did you do when you saw that? A. I hit my brakes and moved over the right.
Q. You were not able to avoid him? A. No."
30 Although it did not - at least did not in terms - form part of the particulars of negligence alleged against Mr. Korn (see paras. 6,7 (above)) much was sought to be made both at trial and on the hearing of the appeal of Mr. Korn's failure to observe what were said to be the number of signs along the highway to the West of Cobar indicating the existence of, and the distance to, the rest area into which Mr. Birse was seeking to turn at the time of the collision (Black AB 119-112). While it is true that Mr. Korn either did not observe, or took no notice of, the signs that were said to be there, this is a curious attack to have been made on Mr. Korn, for, although Mr. Birse, as I have earlier recorded, said that he observed the first of the signs outside Cobar and had decided to stop at the rest area to have lunch, he appears not to have noticed the rest area sign on the Eastern side of the crest before the rest area but claims to have noticed the sign at the rest area as he came over the crest.
31 Both at trial and on the hearing of the appeal much was also sought to be made of what was said to be the excessive speed at which the road train was being driven. That attack at trial produced the following evidence in the course of Mr. Korn's cross-examination by counsel then appearing for Mr. and Mrs. Birse (Black AB 138-139):
"Q. You were aware that the truck has installed in it a device for recording and measuring the speed of the truck …? A. Yes.
Q. … and working out average speeds and so on? A. Yep, yep
………
Q. Have you seen any printouts of it? A. No.
Q. Never seen a print out of the execulog? A. When I sat down with the insurance bloke he showed me where I braked and accelerated again.
Q. He showed you the report produced by the Execulog that showed the last 500 metres? A. Yes that's right.
Q. And that showed you going along at a speed of 100 kph and then about …
HIS HONOUR: Did you say that it was the last 500 metres was it?
GRUZMAN: Q. The last 500 metres, showed you then commenced to decelerate from a period of about 13 seconds or 15 seconds prior to the point of impact. You decelerated to about 60 kph and then accelerated again to about 85 kph and then decelerated again until the point of impact, is that right? A. I think so - I'm not too sure …
Q. Is that your recollection of what the person from the insurance company showed you as a report of the last 500 metres? A. Well I don't know, all I remember is that line going up and then down. I didn't - I don't remember any speeds.
Q. Well would you have a look at this document please. Is that the document that he showed you and explained to you? A. I think so.
and later (Black AB 148-149):
Q. Does that accord with your recollection that you slowed the truck from a speed of about 100 kph that you'd been travelling at in the last 500 metres prior to the impact to a speed of about 60 kph and then accelerated again? A. I don't remember any speeds all I remember is just to stop and accelerated again, I don't know what sort of speed it was."
"Q. You saw MFI 6 which was the Execulog print out for the last 500 metres and you accept that you slowed down to a speed of about 60 kph after coming over the crest and then accelerated to about 85 kph before the point of impact? A. I don't know what speed it was yes.
Q. You've no idea at all? A. No.
Q. Did you slow down from about 100 kph to 60 kph or do you just have no idea? A. I have no idea.
Q. But you certainly accelerated again and gained some extra speed before the impact? A. That's right.
Q. And are you able to say how much you accelerated before the point of impact, another 20 kph, 25 kph? A. I don't know how fast it was.
Q. Well you certainly must have been alert to have been able to make these decisions which you had to do fairly rapidly didn't you? A. That's right.
Q. And you made the decision to apply the brakes when you saw the caravan brake lights come on and then you, sometime later, made the decision to accelerate to try and go around the four wheel drive and caravan? A. Yes.
Q. Why didn't you make a decision to blow the horn on your truck? A. I was too scared to even take my hand off the wheel after I was going around it.
Q. After you'd gone around? A. As I was trying to get around it.
and later again (Black AB 150):
Q. But you see when you saw the caravan and started to slow down you made a decision to put the brakes on, on the truck and at the same time you could have blown the horn couldn't you? A. I was trying to stop."
"HIS HONOUR: Q. As I understand it, you're saying you had enough to concentrate on without worrying about blowing the horn is that right? A. That's right, things just happened.
Q. Trying to avoid what looked like a life threatening collision, is that right? A. That's right."
32 There is something odd about this passage in the evidence and, in particular, about what counsel seemed to suggest was revealed by the Execulog printout which, even if it were made an exhibit at trial, has not been included in the appeal papers. The cross-examiner's questions which I have set out earlier, appear to be to suggest that the printout recorded that, in the period of 13 to 15 seconds immediately prior to the collision, at the commencement of which period the road train was travelling at 100 kph, and during which period the road train decelerated from 100 kph to 60 kph, accelerated to 85 kph and then decelerated again, the road train travelled 500 metres. If this in fact what the print out recorded, one must necessarily question the accuracy of the Execulog if only because, even if it had maintained a constant speed of 100 kph, the road train would have required a little in excess of 18 seconds to cover 500 metres.
33 But, even if the cross-examiner's suggestion was not that which I have earlier suggested, but, rather, was that the period of 13 to 15 seconds related only to the time from when the road train crossed the crest to the East, one would still have cause to doubt the accuracy of the printout. It is to be remembered that the distance from the crest to the point of impact was about 275 metres. If, when it crossed the crest, the road train were travelling at 100 kph it was covering 27.5 metres per second; at 90 kph the road train would cover 25 metres per second; at 80 kph it would cover 22 metres per second; at 70 kph it would cover 19.4 metres per second; at 60 kph it would cover 16.66 metres per second; and at 85 kph it would cover approximately 23.4 metres per second. Even if the road train were to have decelerated from 100 kph to 60 kph at the rate of 10 kph per second, it would have travelled in excess of 90 metres in 4 seconds; if the road train were to have accelerated from 60kph at a constant rate of 10 kph per second, it would have travelled in excess of 80 metres in 4 seconds, which would leave a period of about 6 seconds in which it had travelled at 60 kph. However, while this would fit with what I might call the alternative suggestion, I would doubt whether this would be a realistic description of how the road train was driven at the time.
34 Yet another odd feature of this passage in the evidence is pointed up by the following passage in Mr. Schnerring's supplementary report, written after he had been provided with a copy of the Execulog readout (Blue AB 73):35 Although a number of other witnesses were called to give evidence at the trial, the fact that Armitage DCJ based his Judgment primarily on his assessment of the evidence of Mr. Birse and Mr. Korn means that it is not necessary in this Judgment to consider the evidence of those other witnesses in any detail. However, it is convenient to record, at this point, that, in the supplementary report which he provided, Mr. Schnerring - to whose evidence Armitage DCJ did refer in his Judgment - wrote (inter alia) as follows (Blue AB 79):
"Based on the Execulog readout, the speed of the road train in the 7 minutes before the crash varied between 85 km/h and 100 km/h. The readout shows a peak reading before the crash of 100 km/h, but this appears to be about 1 minute before the crash. This peak reading would therefore be about 1.5 kilometres from the crash site.
Considering the road is slightly uphill 500 metres before the crash site, the road train was probably travelling slower than 100 km/h when it reached the crest in the roadway before the rest area. After the crest it could have started to accelerate. The Execulog only provides a sampled readout every 30 seconds, and appears to have been operating during and after the crash. The distance and speed reading taken during the crash and after it came to rest appear to have obscured the speed reading just before the crash."
36 When, in the course of his Judgment, having summarised the evidence which had been tendered, he came to deal with the question of negligence, Armitage DCJ wrote (inter alia) as follows ( RAB 130-135):
"3. SUMMARY AND CONCLUSIONS
The road train braked and left about 50 metres of skid marks in the East bound lane. These skid marks are essentially straight and consistent with a vehicle travelling ahead in that lane. Allowing 1.0 seconds of brake lag and 1.5 or 2.5 seconds of perception and reaction time for the driver of the road train, the road train would probably have been about 110 to 135 metres from the entrance to the rest area before the driver of the road train started to perceive and react to the 4WD and caravan breaking and/or indicating.
Allowing 90 metres to move into the East bound lane, the road train could have started to move into the East bound lane about 200 metres from the entrance to the rest area.
It is not known how hard the driver of the 4WD and caravan braked and it is not known exactly where he started to brake and/or indicate his turn.
If the driver of the 4WD and caravan started to brake where the driver of the road train said he did (100 to 150 metres from the entrance), then the driver of the road train probably could have stopped to avoid the collision, decelerating at 0.25g on the 4% downgrade (equivalent to braking at 0.29g on a level road), or at 0.31g (equivalent to braking at 0.35g on a level road). The former braking effort is the minimum requirement of the NSW Motor Traffic Regulations, the latter is less than the Australian Design Rule requirements.
It is also possible that the driver of the road train moved into the East bound lane after the driver of the 4WD and caravan started to brake and/or indicate.
If the driver of the 4WD and caravan started to brake and/or indicate 80 metres or less from the entrance to the rest area, then the driver of the road train would not have been able to stop to avoid a collision. In this case he could have been in the East bound lane before the driver of the 4WD and caravan started to brake and/or indicate.
One adds that, in the course of his oral evidence at trial (Black AB 104-106), Mr. Schnerring made it clear that, even if Mr. Birse had started to brake at 100 metres from the entrance to the rest area, at which time, so he calculated, the road train would have been about 190 metres from the entrance to the rest area, Mr. Korn would need to have been very alert for the collision to be avoided, as the stopping distance for an alert driver was calculated to be 190 metres, while the stopping distance for an unalert, but not inattentive, driver was calculated as being 215 metres.
It is unclear which of the above scenarios is more likely."
37 In the event, Armitage DCJ found the following verdicts and made the following orders:
"It is submitted by Mr. Carr and Mr. Gruzman that Mr. Korn has been proved to be negligent. It is contended that the brakes on the road train were defective, and in that regard the reports of Mr. Schnering, (sic) are relied upon. (I note in passing that Mr. Joy in his report expresses the view that if braking performance had met requirements the collision would have been delayed by about point three of a second and a more serious outcome for the occupants of the four wheel drive would have been possible.)
Mr. Gruzman and Mr. Carr submit that Mr. Korn was negligent for many reasons, including the following:
He should have known that a rest area was a short distance over the crest, and that the four wheel drive may have intended stopping at it;
He should have sounded his horn as soon as he saw that danger was imminent;
He should have been aware of a need for extra caution, as he must have known that a four wheel drive and caravan was likely to be driven by a person of mature years;
He should have substantially reduced his speed as he came to the crest;
He placed himself in a position where he did not have control of his vehicle, and was unable to sound the horn, and was unable to operate the emergency brakes.
Mr. Curtin and Mr. Carr submit that Mr. Birse was negligent for many reasons including the following:
He did not look in his rear vision mirrors after reaching the crest. His evidence that he did look, on four occasions, cannot be correct, for if he had he would have seen the road train;
He braked sharply as he became aware of the rest area and commenced to turn without any adequate warning by way of his indicator;
He failed to turn right with safety.
So far as the evidence of Mr. Korn is concerned, in spite of the fact that he is a young man, admittedly comparatively inexperienced in driving vehicles such as a road train, I was impressed with his evidence and the way he gave it. It is submitted by Mr. Curtin that he frankly conceded matters which he could not remember. I agree that that is so. I accept Mr. Korn's evidence of the braking system in operation on the road train and its maintenance. I accept that Mr. Korn himself, at Dubbo, connected up all forty-two braked wheels and tyres, and I accept there was nothing that indicated to him that the braking system was not working in a perfectly satisfactory manner. I also accept Mr. Shaw's evidence, in its entirety, as to the manner in which, and extent to which, the various components of the road train were maintained by Hi-Torque. It appears from the expert evidence that the braking system at the time of the collision was not operating as effectively as it should have been. Be that as it may, in my view that fact of itself proves no negligence on the part of Mr. Shaw or on the part of Mr. Korn.
Mr. Curtin has annexed to his written submissions a copy of a decision of the NSW Court of Appeal in El Sleiman v. Holt and Anor unreported, 22 September 1998. That case was concerned with a motor vehicle accident in which the appellant, aged four, was knocked down by a vehicle in conditions of darkness in a quiet suburban street. At page 4 the Court said this:
'It needs be said, as it sometimes is in these cases, that the whole exercise in which the Court is engaged has an artificiality and unreality about it. The witnesses gave their evidence in August 1995. The accident happened in May 1990, over five years beforehand. The critical events could not have occupied more than fifteen or twenty seconds, possibly less. Yet the law's procedures are such that detailed questioning of witnesses as to matters of minute detail occurs. The strain imposed on human recollection is considerable. Witnesses are placed in a situation where they have trouble in distinguishing recollection from reconstruction. Too much is expected of them. Indeed, in this case, one counsel had the grace to ask questions almost apologetically because of the pedantic nature of them. Judges trying these cases are, of course, aware of the problems. They have to bring, and do bring, reality back into the Court room. A broad view has to be taken and a decision given that reflects reality and commonsense.'
In my view those remarks are pertinent to the present case, particularly as to the alleged failure of Mr. Korn to act in a certain manner, in the heat of the moment, in the very few seconds after he had come to appreciate the existence of danger. He said he did not sound the horn because he was afraid to take his left hand off the wheel to pull a chain above head level. That fear on his part, and his failure to act, does not amount to negligence. He was driving a huge vehicle on a comparatively narrow road and in front of him was a vehicle with its brake lights on. His desire, in that situation, to hang on to the steering wheel with both hands, was perfectly understandable, and the sense of it was borne out by the need, just a few moments later, to move the vehicle to the right in an effort to overtake. It may well be, of course, that had he sounded the horn the four wheel drive may have moved off quickly resulting in death or injury Rather than nothing more than damage to property.
As to the criticism levelled at Mr. Korn that he should have been paying attention to rest area signs, as other road users may have intended stopping at them; and that he should have given thought to the possibility of a mature aged person being the driver of the four wheel drive vehicle, that criticism is moving into the realms of fantasy. It has no real bearing upon the manner in which an ordinary everyday driver upon the highways of this State may reasonably be expected to drive and control his vehicle, albeit that that vehicle is somewhat out of the ordinary. It is my opinion that as Mr. Korn approached and drove over the crest he was in control of his vehicle and was driving it at a proper speed in all the circumstances. I should add that I accept his evidence as to speed rather than what I find to be the suspect evidence of the Execulog.
In suit 2568/97 I find no negligence on the part of the second defendant.
In suit 6014/97 I find no negligence on the part of either the first or second defendant.
I turn to the evidence of Mr. Brise. In my view, although he probably made no conscious effort to deceive or mislead, his evidence is patently unreliable. He contradicted himself as to the occasions on which he allegedly looked in his mirror or mirrors after reaching the crest. His evidence is that he did not see the road train at all at any time whilst driving over the sixty or so kilometres leading up to the crest, yet he insists he frequently looked into his mirrors over that distance. There is no doubt that Mr. Korn saw Mr. Birse's vehicle; it follows that Mr. Korn's vehicle was there to be seen if Mr. Birse had chosen to look. Having said that I must emphasis that Mr. Birse's failure to see the road train at some earlier point of time is, for the purpose of the present exercise, of no real significance. What is important is what he did, and where he looked, as he passed over the crest and approached the rest area.
On the evidence before me I am satisfied that Mr. Birse, if he looked in his mirrors at all, looked only at a point of time when his own vehicle had commenced turning right, thus making it impossible to see, because of the angle and the presence of the caravan, any vehicle approaching from behind. I do not accept that Mr. Birse slowed 'continuously and evenly' as he said he did. In my view the evidence points to a sudden stop and a sudden decision by Mr. Birse, after having seen the rest area late, to make a right hand turn. I accept Mr. Korn's evidence that it was only after he moved out to overtake that Mr. Birse's right hand turn indicator became operative.
In suites 2568/97 and 04331/97 I find negligence on the part of Keith Scott Birse.
It follows from the remarks I have made that in my opinion Mr. Korn was guilty of no contributory negligence.
It is also plain from the factual findings I have made in respect of Mr. Korn and Mr. Shaw that the second defendant is not liable to the plaintiffs in suit 2568/97 either for breach of duty as a bailee or for breach of contract. As to alleged breach of duty as a bailee, I am satisfied that the loss or damage to the goods here in question occurred without failure to exercise due care on the part of the second defendant."
38 In the Amended Notice of Appeal filed on their behalf, the following - not entirely intelligible - grounds of appeal were taken (RAB 141):
1. In DC 2568/97
(a) Verdict for Aristocrat and AMW against Mr. and Mrs. Birse for $192,194.00 together with interest in the sum of $57,965.83 a total of $250,159.83.
(b) Verdict for Shaw's against Aristocrat and AMW.
(c) Shaw's Cross-Claim against Mr. and Mrs. Birse reserved.
(d) Verdict for Shaw's on Cross-Claim by Mr. and Mrs. Birse.
(e) Mr. and Mrs. Birse to pay costs of Shaw's.
2. DC 4331/97
Verdict for Shaw's against Mr. and Mrs. Birse in the sum of $157,251.55, the question of interest being reserved.
3. DC 6014/97
Verdict for Shaw's and Mr. Korn against Mr. and Mrs. Birse.
39 By the time the appeal came on for hearing the orders which were sought on behalf of Mr. and Mrs. Birse were as follows:
"1. His Honour erred in finding that the driver of the Appellants (sic) motor vehicle was negligent.
2. Alternatively, his Honour erred in not finding that the driver of the Respondents (sic) vehicle was guilty of contributory negligence.
and the following Orders were sought:
3. His Honour erred in finding that the Appellant (sic) had not discharged his (sic) obligation to make out on the balance of probabilities that the respondents were careless as to their own safety."
"1. The appeal be allowed.
2. The verdict and Judgment be set aside in each of the actions …
3. In lieu thereof Judgment be entered for the Appellant (sic).
4. Alternatively, there be a finding of contributory negligence by the Third Respondent.
5. Alternatively, damages awarded to the Respondents be re-assessed.
Despite the Orders which were sought, Mr. Korn was not joined as a party-Respondent to the appeal.
6. The Respondents pay the Appellant's (sic) costs of the appeal and of the trial."
"1. Appeal allowed.
2. Verdict for Appellants on Appellants' Cross-Claim against Third Respondent in proceedings DC 2568 of 1997.
3. Verdict for Appellants on the Third Respondents' (sic) Cross-Claim against Appellants in proceedings DC 2568 of 1997.
4. Verdict for Appellant (sic) on Third respondent's claim in proceedings DC 4331 of 1997.
5. Verdict for Appellants in proceedings DC 6014 of 1997.
Alternatively
6. Appeal allowed.
7. Verdict for Appellant (sic) on Appellants' Cross-Claim against Third Respondent in proceedings DC 2568 of 1997 with liability apportioned to such extent as the Court thinks fit.
8. Verdict for Appellant (sic) on Third Respondent's Cross-Claim against Appellant (sic) in proceedings DC 2568 of 1997 with liability apportioned to such extent as the Court thinks fit.
9. Verdict for Appellant on Third respondent's (sic) claim in proceedings DC 4331 of 1997 with liability apportioned for contributory negligence to such extent as the Court thinks fit.
10. Verdict for Appellants in proceedings DC 6014 of 1997 with liability apportioned for contributory negligence to such extent as the Court thinks fit."
40 When the appeal came on for hearing, Mr. D.F. Jackson QC appeared with Mr. A.M. Gruzman for Mr. and Mrs. Birse while Mr. I. G. Harrison SC appeared with Mr. G. Curtin for Shaw's.
41 Neither in the Written Submissions which were provided to the Court prior to the hearing or in the oral submissions made by Mr. Jackson on behalf of Mr. and Mrs. Birse at the hearing was any challenge made to the primary findings of fact which had been made by Armitage DCJ in his Judgment; rather, the case which was made on behalf of Mr. and Mrs. Birse was that, given his primary findings of fact, Armitage DCJ erred in not finding, as a consequence, that Mr. Korn caused, or at least contributed to, the collision: it following that Mr. and Mrs. Birse ought, either, to be indemnified by Shaw's in respect of the verdict found in favour of Aristocrat and AMW, have Shaw's proceedings dismissed and recover a verdict against Shaw's in DC 6014/97; or, alternatively, that Mr. and Mrs. Birse should receive from Shaw's contribution towards the verdict recovered against them by Aristocrat and AMW and that appropriate verdicts - reduced to such extent as the Court thought appropriate - should be recovered by Shaw's in its proceedings and by them in DC 6014/97.
42 The general manner in which this case was advanced is conveniently encapsulated in the Written Submissions which were provided to the Court prior to the hearing, which Written Submissions, so far as is relevant, were as follows:43 On the hearing, a particular attack was made upon that part of Armitage DCJ's Judgment where he wrote (RAB 133):
"3.1 The driver of the road train knew that the Appellant's (sic) vehicle was in front of it and that the road train was travelling at a faster speed than the Appellant's (sic) vehicle and would therefore catch up with it (and probably have to overtake it).
3.2 The driver of the road train should have driven at a speed in the circumstances that ensure that it was able to stop if danger threatened when passing over the crest.
3.3 It was reasonably foreseeable that the Appellants would turn right into the rest area.
3.4 The driver of the road train should have sounded his horn when moving out to overtake the Appellants' vehicle or when he saw that danger was imminent or that there was a possibility of danger.
3.5 The driver of the road train should have maintained proper control of his vehicle in the circumstances.
3.6 It is submitted that in the Judge's finding were against the evidence (sic) and:
(a) in the circumstances the Appellant (sic) was not negligent or alternatively, was negligent only to a minor degree;
(b) it is submitted that Korn was entirely to blame for the collision which occurred, and which could have been avoided by reasonable care on his part. As a following, and then overtaking, vehicle he had a duty to keep clear of the vehicle being overtaken, and to warn that vehicle he was overtaking."
This passage attracted the following attack by Mr. Jackson (T.7-8):
"As to the criticism levelled at Mr. Korn that he should have been paying attention to rest area signs, as other road users may have intended stopping at them; and that he should have given thought to the possible of a mature aged person being the driver of the four wheel drive vehicle, that criticism is moving into the realms of fantasy. It has no real bearing upon the manner in which an ordinary everyday driver upon the highways of this State may reasonably be expected to drive and control his vehicle, albeit that that vehicle is somewhat out of the ordinary."
"His Honour's observation at p.133P at the criticism that he should have been paying attention to road signs because other people might utilise them was in the realm of fantasy is one which in our submission was inappropriate as a matter of reasoning. The whole purpose of having road signs is that people will take notice, first of all, of them and secondly, of the thing which they should signify to an ordinary, prudent driver. If one takes on a road like this the rest area 500 metres sign, it indicates an area where, inherently, there is a possibility of vehicles either entering it or leaving it. The vehicles entering it or leaving it are, in the nature of things, likely to be travelling at a speed lower than those travelling straight along the road. The vehicles entering or leaving the rest area may be cars, caravans, trucks, articulated vehicles or the larger of that, the road train. It may be that people have gone in there for a variety of reasons, whether it be that they have what they call lunch at 11.30 or whether they stop for a cup of tea and have morning tea.
If a vehicle, whatever kind it might be, is turning into the rest area, it might well have remained stationary on the road for another vehicle to pass going the other way before it can turn in, or be stationary to allow another vehicle to leave the rest area before it can get in. We'd submit to say, as the Judge said at 133Q, that it's moving to the realm of fantasy to say that a person driving a vehicle of the kind Korn was driving should have been observing road signs."
44 With great respect to the submissions which have been advanced by Mr. Jackson with his usual skill, I am unable to accept that Armitage DCJ erred in the ultimate conclusions to which he came.
45 So far as the particular attack made upon his Honour's Judgment, to which I have earlier (para. 43 (above)) referred is concerned, that submission is as I have earlier suggested (para. 30 (above)), a rather curious one, for it is clear enough that, despite the fact that it was located on the Southern side of the road at - depending upon whose estimate one accepts - 510, 440 or 400 metres from the entrance into the rest area, Mr. Birse did not see it. Nor, on his Honour's finding, did Mr. Birse see the rest area sign at the entrance into the rest area until he was a comparatively short distance from it - even if one were to accept, in preference to his estimate of 100 metres from the rest area, contained the statement which he made in August 1996, the estimate of 153 metres paced out by Sgt. Pritchard, Mr. Birse was well down the slope from the crest before he observed the rest area sign at the entrance to the rest area; and the estimate of 85 metres paced out by Sgt. Pritchard to the point indicated by Mr. Korn as the point at which the caravan's brake lights were illuminated places Mr. Birse even closer to the entry into the rest area before he observed the sign which was located there.
46 Quite apart from this however, it seems to me that to impose on the ordinary user of a country road the obligation to observe signs such as the rest area sign and to appreciate that a mature aged driver such as Mr. Birse or, indeed, any other driver, and, in particular, holiday makers, might suddenly, and without adequate warning, seek to turn into the rest area is to impose upon such a driver far too high a duty of care; such a driver is entitled to expect that other users of the road will act with due care for their own safety.
47 Nor do I consider that Armitage DCJ erred in the other respects suggested. His Honour's findings that Mr. Birse did not slow continuously and evenly, that he saw the rest area late; that he braked suddenly to make a right hand turn into the rest area, all point to the fact that the point at which he commenced to brake was between 100 and 80 metres from the entrance into the rest area and that the point at which he activated his right hand traffic indicator was even closer to the rest area. As Mr. Schnerring's calculation would indicate, the probability is that, at the point when Mr. Birse commenced to brake, the road train had already moved to the East bound lane for the purpose of overtaking and must have been visible to Mr. Birse if he had checked his rear vision mirrors prior to commencing to turn. Despite this, as his Honour has found, Mr. Birse did not check his rear vision mirrors prior to commencing his turn, at the time when, so Mr. Schnerring's calculations would indicate, Mr. Korn had no hope whatsoever of avoiding the collision. In those circumstances, so it seems to me, his Honour was right to conclude that Mr. Birse should bear the sole responsibility for the collision.
48 For those reasons, I propose that the Appeal should be dismissed with costs.
49 GILES JA: I agree with Powell JA.
50 ROLFE AJA: I agree with Powell JA.
**********
Key Legal Topics
Areas of Law
-
Negligence & Tort
-
Civil Procedure
Legal Concepts
-
Negligence
-
Appeal
-
Causation
-
Duty of Care
-
Damages
0
0
0