Cawthorn v Rawlings
[2009] TASSC 119
•21 December 2009
[2009] TASSC 119
COURT: SUPREME COURT OF TASMANIA
CITATION: Cawthorn v Rawlings [2009] TASSC 119
PARTIES: CAWTHORN, Wendy Margaret
v
RAWLINGS, Scott Peter
FILE NO/S: 191/2008
DELIVERED ON: 21 December 2009
DELIVERED AT: Hobart
HEARING DATE: 26-30 October, 2-3 November 2009
JUDGMENT OF: Tennent J
CATCHWORDS:
Torts – Negligence – Road accident cases – Actions for negligence – Evidence – Onus of proof and sufficiency of evidence – Rollover of log truck – Collision with car – Cause of collision – Was log truck driver negligent.
TNT Management Pty Ltd v Brooks (1979) 23 ALR 345 referred to.
Aust Dig Torts [103]
REPRESENTATION:
Counsel:
Plaintiff: C H Hobbs
Defendant: K E Read and R B Webster
Solicitors:
Plaintiff: Blissenden Lawyers
Defendant: Dobson, Mitchell & Allport
Judgment Number: [2009] TASSC 119
Number of paragraphs: 73
Serial No 119/2009
File No 191/2008
WENDY MARGARET CAWTHORN v SCOTT PETER RAWLINGS
REASONS FOR JUDGMENT TENNENT J
21 December 2009
At approximately 4.45am on 30 August 2006, a Mitsubishi Pajero 4WD motor vehicle, being driven by Mr Roger Cawthorn from New Norfolk towards Hobart on the Lyell Highway, collided with a Volvo prime mover towing two trailers ("the B Double"). The prime mover and the two trailers were each fully laden with logs. The prime mover was being driven by Scott Rawlings ("the defendant") in the opposite direction to the Pajero. Mr Cawthorn ("the deceased") died at the scene. This action was commenced by the wife of the deceased, Wendy Margaret Cawthorn ("the plaintiff"). She has sought damages under the Fatal Accidents Act 1934 and at common law arising out of the accident. The parties have reached agreement as to the quantum of damages. The only issue to be determined is liability.
The defendant was employed as a log truck driver by a firm called Lloyds North. He had held a licence to enable him to drive the type of truck he was driving this day, for some four years. He had held a heavy vehicle licence for some time before that. On the day of the accident, he began work at 1am at the company's depot at Cooee. His role that day was to drive the B Double rig laden with logs from Cooee to the Norske Skög mill at Boyer. He had been doing the same trip five to six days a week for the previous eight months. On some occasions he drove alone. On others, another truck would drive the route with him. On this particular day, the defendant did the trip in convoy with another, slightly smaller, rig driven by Shaun Butler. The pair drove their trucks down the Midland Highway to Bridgewater. Because of the size of the defendant's rig, once he reached Bridgewater, he was unable to drive the most direct route to the Boyer mill. Instead, he had to cross the Bridgewater bridge and then turn onto the Lyell Highway and travel towards New Norfolk. Butler had the defendant's rig in his sight for most of the trip from Cooee, but did not have it in his sight at the time of the accident.
The Lyell Highway between Granton and New Norfolk runs approximately in an east/west direction. A vehicle travelling to New Norfolk is travelling in a westerly direction, while a vehicle travelling towards Hobart is travelling east. The highway runs more or less parallel to the Derwent River. The river is to the side of the Hobart bound lane and can be accessed, in the vicinity of the accident site, down a steep bank through bush. In that vicinity, the west bound lane of the highway is 3.6 metres wide, while the east bound lane is 3.4 metres wide. The lanes are divided by double unbroken white lines. In the west bound lane in the direction of New Norfolk, there is a sweeping left hand bend in the road. On the river side of the east bound lane, between the road and the river, at and just past the apex of the bend (looking towards New Norfolk), there is a gravel verge, then a low metal security fence with a gravelled area on the other side. That fence ends at a point just past the apex of the bend. After that, a wide gravel verge continues some distance along the side of the road to a large tree on the top of the river bank.
Vehicles travelling west into the sweeping left hand bend and just through it would travel slightly downhill. Through the bend, the road straightens out and flattens. The bend itself had what the police accident investigator Sergeant Carrick ("Carrick") called a positive camber, that is, it sloped down from the direction of the east bound lane towards the west bound lane and the southern side of the road.
On the morning of the accident, at approximately the spot where the security fence described above ended, there was a red Commodore vehicle parked in the gravel between the fence and the river (it is depicted in photographs 1 and 2 of those which are exhibit P2). Its owner, Justin Reid, was fishing off a small jetty just below the car. He did not see the accident but heard noises consistent with a collision. Nobody, including the defendant, actually saw the collision which occurred. What has been presented to the Court is the evidence of a number of witnesses, from which I am being asked, if possible, to draw certain conclusions as to how this accident occurred.
The pleadings
The pleadings in this action are relatively simple. The plaintiff asserts that the accident was caused by the negligence of the defendant. There are six particulars of negligence relied upon. These are that the defendant:
(a) failed to keep any or any proper lookout;
(b)failed to brake or brake sufficiently or in time so as to avoid the collision with the motor vehicle driven by the deceased;
(c)failed to swerve or swerve sufficiently or in time so as to avoid the collision with the motor vehicle driven by the deceased;
(d)drove at an excessive speed;
(e)drove on the incorrect side of the road and/or drove in such a manner and at such a speed as to cause the second of the two trailers to proceed over the centre line and onto the incorrect side of the road and into the path of the vehicle driven by the deceased;
(f)drove in such a manner and at such a speed as to cause the second of the two trailers to roll over and into the path of the vehicle driven by the deceased.
The defendant denies that the accident was due to any negligent act on his part. He asserts however that, if he was negligent, the deceased caused or contributed to the accident by his own negligence. The particulars of the deceased's negligence are asserted to be that he:
(a) failed to keep any or any proper, sufficient or adequate lookout;
(b)failed to brake or brake sufficiently or in time or at all so as to avoid the collision with the Volvo prime mover and log truck trailers driven by the defendant;
(c)failed to swerve or swerve sufficiently or in time or at all so as to avoid a collision with the Volvo prime mover and log truck trailers driven by the defendant;
(d)drove at an excessive speed;
(e)drove on the incorrect side of the road and/or into the path of the second of the two log truck trailers attached to the Volvo prime mover driven by the defendant.
The onus is on the plaintiff to satisfy the Court that the accident was caused by one or more of the negligent acts asserted. If she fails in that exercise, that is the end of her case and judgment should be entered for the defendant. If she succeeds in establishing negligence on the part of the defendant, it may become necessary to consider whether any question of apportionment arises.
It is the case for the plaintiff that the second or B trailer behind the prime mover overturned onto the wrong side of the road into the path of, and on top of, the Pajero, dragging it back along the road and releasing it some distance from the point of impact. Counsel for the defendant conceded that, if I were satisfied as to that, then the plaintiff would be entitled to judgment without any apportionment. It is the defendant's position that the evidence could not possibly satisfy me that the trailer overturned as suggested. If, however, I were to be satisfied that the Pajero hit the rear wheel of the B trailer at a point either on the double white centre lines or just into the east bound lane, which impact caused the B trailer to roll, then, and only then, would I need to examine the conduct of the deceased to determine whether he contributed to the accident in any way. Ultimately, however, it was the defendant's position that the evidence produced was insufficient even to satisfy me that this was a centre line collision.
The evidence generally
A great deal of evidence was given on this trial. It took the form of photographs of the area around the accident scene, photographs of the vehicles involved, plans drawn by various people, a road geometry survey and evidence interpreting it, a number of affidavits and statements, transcripts of various interviews and oral evidence and reports from "experts". The word experts appears in quotes because of the approach taken to the evidence of these particular witnesses. The three witnesses who fell into this category were Carrick, the officer in charge of the police accident investigation service, Mr John Jamieson ("Jamieson"), a qualified engineer and principal of a firm of consulting forensic engineers from Sydney, and Mr Graeme Elphinstone ("Elphinstone"), who operates Elphinstone Engineering, the company which manufactured the A and B trailers attached to the prime mover in this accident.
Carrick and Jamieson were called by the plaintiff, while Elphinstone was called by the defendant. The capacity of each of them to give expert opinions about a range of matters relevant to this case was challenged. The plaintiff, despite having called Carrick, and relied on facts he was able to present, challenged his expertise to give certain opinions based on those facts. She put forward the opinions expressed by Jamieson to support her contentions as to what occurred and the cause of the accident. Ultimately however, apart from some material which was excluded from written material tendered through Elphinstone, all of the evidence of these witnesses remained before the Court, although both counsel made submissions as to the weight that I should give it.
The evidence of Jamieson was particularly problematic. He did not perform well under cross-examination. He failed at times to, in effect, justify some of his opinions and certain calculations he put forward in his report. He also produced, under pressure in his cross-examination, new theories to explain facts not previously canvassed and was then unable to support them by agreed or identified facts. His evidence as a consequence, while not to be wholly disregarded, must be treated with caution.
As to the evidence of Carrick, the primary challenge was to his lack of formal training, particularly in engineering and physics, and the recent nature of the formal accident investigation training he did have. While these challenges were factually correctly based, when considering his evidence as a whole, they did not take into account his extensive experience as a police officer, both generally and in the coronial area, and his experience in attendance at and investigation of accidents. As to the importance of formal qualifications, he made a number of calculations during the course of his evidence, clearly based on technical information he had acquired through his accident investigation training. That technical information might have been obtained by others in the course of formal training in engineering and physics. However, it was not suggested that his calculations were wrong because of a lack of that formal training. They were, for example, not put to Jamieson to correct by reference to his admitted formal qualifications. The challenge appeared more to be that Carrick did not have these formal qualifications, and therefore the evidence of Jamieson, who did, should be preferred.
As to Elphinstone, an objection to a number of opinions he expressed was made on the basis that he was not an independent witness. His lack of independence was ascribed to the fact that he had manufactured the trailers involved in this accident and would not therefore be able to give an unbiased opinion as to their performance. While counsel for the plaintiff conceded this may be more a question of the weight to be given to his evidence rather than its admissibility, during the course of closing addresses the issue was not mentioned. The opinions he did express were relevantly related to the performance generally of B-doubles, an area in which he clearly had extensive practical experience over many years. There has been no reason advanced otherwise why I should disregard his evidence.
Particular evidence – the micro-station plan
Carrick, in the course of a lengthy examination of the accident scene and the vehicles involved, made certain observations about marks on and adjacent to the road in the vicinity of this accident. Using specialised software, he created a computer generated plan, called a micro-station plan, showing these marks. Tendered to the Court were that plan, an enlargement of it (together these were exhibit P4) and that enlargement with hand written notations showing distances between some marks and points of reference (exhibit P24). A copy of that last-mentioned exhibit is annexed to these reasons.
That plan depicted the section of the highway on the New Norfolk side of the sweeping left hand bend first referred to in par3. The plan from right to left (that is from the perspective of the right hand of the person looking at the plan) depicted the highway from the direction of Hobart towards New Norfolk. On the right hand side of the plan, there was a handwritten notation at the top "To exit/entry of bend and red Commodore parked adjacent to jetty entrance 31 metres". The starting point of that 31 metre distance was the end of the low metal security fence which ended just past the apex of the bend.
The first mark recorded by Carrick was what he identified as a tyre mark which appeared to run along the centre of the road for a distance of 41 metres. No debris from either the log truck or the Pajero was found at any point prior to the commencement of that tyre mark and for a distance of 31 metres along it. Moving right to left through the plan, the next marks were those made by six pine logs from the log truck which appear in the east bound lane. Past those, but also in the east bound lane, Carrick identified scrape and gouge marks which started on the road surface and led towards and into the gravel verge on the side of the road in the direction of where the Pajero came to rest. In the middle of those marks, Carrick identified a fluid spill which he said came from the Pajero. In the centre and to the south side of the centre lines about opposite the fluid spill, a number of circular marks were identified which Carrick identified as marks created by the wheels of the B trailer on its side as they were spinning. A further set of scrape and gouge marks was identified on both sides of the road veering towards the south side of the road towards what was an Armco railing. That and a speed sign on that side of the road were damaged.
The plan identified various other distances between various marks and the final resting place of the Pajero. The observations of Carrick as recorded in the plan were not in any way challenged.
Particular evidence - photographs
Police officers took a series of photographs of the accident scene and the vehicles involved. The series began with a view of the sweeping left hand bend as the defendant would have approached it. Further photographs were then taken at various positions going through and after the bend. The marks identified by Carrick on the micro-station plan were to an extent highlighted on the photographs. The photographs also showed the site where the Pajero came to rest, the damage to the Pajero, the Volvo prime mover and trailers, and various other features in the area.
Photographs 1-3, part of exhibit P2, showed the entry to, apex and exit from the bend. Photographs 5 and 6 showed the tyre mark depicted as commencing to the right of the micro-station plan. However, none of the photographs showed precisely where that tyre mark began. The photographs generally showed that the centre white lines leading into the bend were worn. However, where the tyre mark was identified, the white line on the east bound side of the road was largely obliterated. This was particularly evident in photographs 5 and 6. It appeared from those photographs that the tyre mark was on and slightly to the right of the right hand side line of the two double centre lines. That is, if the tyre mark related to the defendant's rig, then one or more of its tyres were, to a degree, on the wrong side of the road at that particular point in time.
The photographs also showed a wide tyre mark leading from the tyre mark down the middle of the road, slightly back to the west bound lane before a number of circular tyre marks in the middle of and leading towards the west bound side of the road. They also showed a number of marks in the east bound lane. These are what Carrick identified as marks made by 6 pine logs which are parallel to the white line on the side of the road. Also depicted in the photographs were a number of logs strewn across the gravel verge and partly down the bank towards the river, both before and after the position where the Pajero came to rest.
Particular evidence – view and demonstration
A view of the scene was conducted on the first day of the trial. At a later point, a further visit to the scene was undertaken for the purpose of a demonstration by Carrick. That was for the purpose of his identifying, by reference to the actual roadway, where the tyre mark identified to the right of the micro-station plan actually began.
The view showed that the highway sloped very slightly downhill as the left hand bend was entered, which slope continued through the bend before the road flattened and straightened out.
Particular evidence – Carrick
When Carrick arrived at the scene, the photographs referred to above had already been taken. Nothing had been moved. He described the damage to the Pajero in the following terms:
"There was extensive damage to the front of this vehicle which extended rearward and involved virtually every panel. The roof of the cabin area had been forced backwards and compressed. Each tyre on the vehicle was deflated. It was noted that the damage in the area of the right front corner appeared to be the subject of greatest force and displacement. The inside of the metal rim (front right wheel) including the bead had separated from the rim proper. The cylindrical shape of the rim in one area had been distorted. The right hand front tyre was out of shape and exhibited a significant lateral tear across the tread. There were pieces of pine wood embedded in two metal stays at the front of the vehicle. The rim of the left wheel had also separated. There were several scrape marks on the passenger side of the vehicle suggestive of it having been on that side whilst being forced backwards on the bitumen surface."
Carrick also observed about the pine logs from the defendant's rig that:
"There were a number of pine logs on the gravel area to the east and also the west of the resting position of the vehicle. Some of these logs were over the embankment and in the river on the northern side of the road. One log was noted to be directly in front of the vehicle. Towards the end of this log were two (2) deep indentations with areas of fresh wood exposed. These indentations were certainly suggestive of having been made by the two metal stays on the front of the vehicle referred to earlier."
Carrick also observed debris from the Pajero including indicator glass and a weather shield on the embankment on the northern side of the road at the level of the circular tyre marks on the road.
Carrick identified that there were no marks relevant to the accident prior to or through the corner through which the B double was driven. The first relevant mark was the commencement of a tyre mark down the middle of the road commencing 31 metres from the end of the safety fence on the side of the east bound lane. He also identified that there was no debris relative to the accident at or anywhere near the commencement of that tyre mark. He expressed a number of opinions and agreed with certain propositions put to him by reference to his observations and experience. These were:
- it would be difficult to determine the cause of an accident from photographs alone without attending the scene;
- that this was not a high speed roll-over;
- that the initial force to the Pajero motor vehicle driven by the deceased was a horizontal one to the front right hand corner;
- the damage to the wheel rim of the B trailer tyre had to have occurred while the wheel was in an upright position as otherwise there would be grazing around the entirety of the wheel rim, which there was not;
- the point of impact between the Pajero and the B trailer was about the commencement of the tyre mark, that one commencing 31 metres from the end of the safety fence;
- at the point of impact, the Pajero's right front corner hit the rear wheel rim of the B trailer;
- immediately after impact, the Pajero has commenced to rotate clockwise but been trapped by the (by then) overturning B trailer;
- there was no debris at the point of impact he identified as a consequence of the way in which the Pajero became trapped under the B trailer. While the lack of debris was unusual, it did happen;
- whether a vehicle loses control on a corner is not solely governed by speed. It can also be affected by driver input;
- the speed of a truck with a high centre of gravity going round a corner safely would be less than that of a sedan; and
- he did not disagree that the point of impact could have occurred closer to where all the scrape and gouge marks were in the east bound lane on the road.
In summary, Carrick concluded that the point of impact between the Pajero and the B Double occurred at about the commencement of the tyre mark 80 metres from where the Pajero came to rest. He also concluded that the Pajero clipped the rear driver's side wheel on the B trailer at an angle and that this caused the trailer to roll onto the Pajero and drag it back along the road. From tyre marks on the road, he also concluded that, at a point close to where the circular tyre marks appeared on the road, the B Double was driven towards the southern side of the road where it hit the Armco railing and road sign already referred to, damaging them. The truck was then driven back onto the road and pulled to a stop some distance up the road on its correct side. At that point, it had been dragging the B trailer on its side for some distance.
While generally Carrick's opinions were a reflection of observed features from the scene, his opinion as to the point and mechanism of impact was not and was clearly challenged.
Particular evidence – Mr Rawlings, the defendant
The defendant was interviewed by police six days after the accident. He told police:
"I just remember going around the corner…I just remember seeing a vehicle coming in the opposite direction um I just heard…heard a bang, which I just naturally assumed was a tyre blow out um…and then um…just remember looking in my mirror um seeing logs and sparks going every where and that's sort of when I felt the truck sort of give its first…first um…ah….indication of like the trailer had gone over."
He then used his radio to warn the driver of the truck following that his trailer had overturned and there were logs on the road. He then said he:
"... pulled my B trailer up from the wrong side or the road um…to make one lane accessible ..."
At 4.49am he telephoned the 000 emergency number. In that, he reported an overturned trailer and logs on the road. A few minutes later, the following truck driver told him he had collided with the Pajero. The defendant was observed to be distraught. He telephoned 000 again and the accident was more fully reported.
In the vicinity of the accident, the speed limit was 80 kph. At the relevant time, it was dark, the weather was fine and the road was dry. By the time of the accident, the defendant had been on the road for close to four hours.
The defendant's rig, while fully laden, was within the weight permitted for such a truck on the road. There was no suggestion otherwise on the evidence, or that the loaded logs had been anything other than correctly loaded. The defendant told police at the time of interview that he had checked the straps holding the logs before he left Cooee and they were fine. He did not check them again during the course of the trip but nothing happened to suggest to him they were loose. When asked in Court if he had checked the straps, he could not remember. There was no suggestion he did not have adequate warning lights. The defendant was normally a safe and reliable driver and did nothing on this trip which was out of the ordinary.
The defendant's truck had a speed limiter which was designed to prevent the truck being driven at a speed of greater than 100 kph. The defendant initially told police, as to his speed during the trip from Cooee to the scene of the accident, that he drove at about 100 to 105 kph on the Midlands Highway, acknowledging that, with a tail wind, and even with the limiter, he could do this. He also acknowledged that, downhill, it was possible to go much faster, although he denied he availed himself of that capacity regularly. He told police at various times during his interview that he went down Spring Hill at 110, then 115 and then possibly 130 kph. However, he was adamant that, at the time of the accident, he was driving at a speed of between 80 and 90 kph. While he knew that he was driving over the speed limit, he did not believe that speed was excessive or dangerous.
When questioned about where his vehicle was relative to the centre white lines, the defendant said that, as he came round the corner, his truck was one to two feet on his side of the white line, and that he thought the trailer tracked on the same line. He then acknowledged that, depending on the corner, the trailer might track a distance of a quarter to a half a tyre width outside the truck. The tenor of his responses to police was that he was uncertain as to precisely how his B trailer tracked after the prime mover. Ultimately, he said as to whether he might have been travelling at an excessive speed:
"I don't know. There's possibility yeah I was…They normally track…don't track too bad, but yeah, it could be a possibility."
A more detailed questioning relating to the sequence of events after the defendant came round the corner revealed that he heard a bang; at that point he did not feel any sort of impact and did not believe the bang was him hitting the Pajero; he looked in his mirror and saw sparks and logs everywhere and then felt a jolt which is when he realised his trailer had capsized onto the wrong side of the road. He described the B trailer as leaving the bitumen and going into the gravel on the northern side of the road and going over the bank. He felt that the prime mover and A trailer were going to tip but then what he described as "the lurch" stopped, the rig sat down and he drove it back onto the bitumen. He did not identify anything untoward about the manner in which the Pajero was being driven as it went past him prior to the accident.
During the course of his evidence in Court, the defendant said that his maximum speed down Spring Hill may have been 115 kph. He denied he drove through the corner before the accident at greater than 90 kph and he denied deliberately taking the corner wide in order to traverse it more easily. He initially again denied that his truck or trailer went over the centre lines. When the police photos were shown to him, he agreed there were tyre marks on the wrong side of the road but did not believe he came round the corner on the wrong side. He denied the proposition that he had seen the Pajero coming and that he deviated to the left to give it more room.
Particular evidence – Shaun Andrew Butler
This witness was the driver of the truck in convoy with the defendant. He did not see the collision. His first knowledge of any problem was a radio call from the defendant to the effect he thought he had had a tyre blow out and his trailer had lost its load.
He had occasion to drive the defendant's rig after it was repaired. He gave evidence that the rig's handling was "good". He agreed the trailers were "good". After that, the following exchange occurred between the witness and the defendant's counsel:
"What determines that for you? Nice low beds and the whole of the load is nice and low, that's what you'd---
Yes, centre of gravity's the
The key to it
Yes"
Counsel for the defendant relied on this passage of evidence as evidence that the centre of gravity of the defendant's prime mover and trailers was low at the time of the accident. With respect, no such evidence was given by the witness. Further, he had nothing to do with the loading of the defendant's rig and gave no evidence about how it was loaded on the day.
Particular evidence - Colin Johnstone
This witness was a supervisor with Lloyds North at the time of the accident. He had driven trucks for many years and had driven B-doubles. He had also on occasion driven the B Double rig involved in this accident. He said the Elphinstone trailers tracked "perfectly". He maintained that it was almost impossible to overload a B-double with pine, and that at least 95 percent of company trucks went out under-loaded. He was not asked, nor did he give any evidence, about the centre of gravity of the defendant's rig or about how it was loaded.
He confirmed there had been no complaints about the driving of the defendant.
Particular evidence – Justin Reid
This witness was the fisherman. He made an affidavit on the day of the accident and this was tendered into evidence. In that, he said that he heard what he said was a truck driving west past where he was. He heard chains rattling and then he heard, a matter of a couple of seconds later, a very loud bang, which sounded like a collision. He was not questioned further about that statement in his evidence-in-chief. Under cross-examination he was adamant that he could tell which way the truck was going and that it was only a "couple of seconds" between the truck going past and the bang. The noise he heard of rattling he described as something hanging off the truck and creating a sound of metal on bitumen.
His evidence was relied upon by the plaintiff to support that of another witness, Jamieson, that the likely point of impact was beyond the point at which Carrick initially thought it might be.
Care needs to be taken in giving Mr Reid's evidence too much weight. His manner of giving evidence allowed for no possibility that any aspect of his evidence might have been wrong. Further, he did not see either of the vehicles prior to or at the point of collision. If, for example, his time estimate was out by even a second, its usefulness to support a point of impact contended for by Jamieson, as opposed to Carrick, is gone. There was also no evidence of the existence of any chains on the defendant's rig which could have produced the type of noise he described.
Particular evidence – The TERNZ Report
Prior to either Carrick or Jamieson giving evidence, a report, called the TERNZ Report, completed in October 2006, was admitted into evidence by consent. The report was commissioned to determine the current level of rollover stability of the heavy vehicle fleet in Tasmania, and to determine the possible implications of setting minimum standards for this. For the purpose of the report, the Static Roll Threshold (SRT) of 96 vehicles within the Tasmanian fleet was calculated. In the summary in the report, its author says:
"Because the tare weights of the vehicles were not known, generic values based on the type of vehicle were used. Similarly generic suspension data for the appropriate suspension type was used. The TERNZ SRT Calculator has been designed to give a conservative estimate of SRT (so that the user can be confident that the vehicle's performance is at least as good as predicted). Thus the generic suspensions embedded in the Calculator are less roll stiff than the average suspension.
Of the 96 vehicles analysed, 35 had SRT values below 0.35g which is the minimum level proposed by the National Transport Commission in their Performance Based Standards alternative compliance scheme. However 23 of these had SRT values between 0.32g and 0.35g. As mentioned above, the generic suspensions in the SRT Calculator are designed to give a conservative result. It is quite likely that many of the 23 vehicles with calculated SRT values between 0.32g and 0.35g would achieve the 0.35g level if the calculation were repeated with actual suspension data. This is not the case for the 12 vehicles with SRT values below 0.32g. This suggests that, at least, 12.5% of laden vehicle in Tasmania have poor rollover stability. These 12 vehicles comprised 1 stock truck, 1 chip bin truck and 10 log trucks. By configuration, there were 7 semi trailer or jinker vehicles, 3 truck and dog trailer combinations and 2 B-doubles.
Internationally, research has shown that vehicles with poor rollover stability have a higher rollover crash rate than other vehicles."
In the introduction to the report, at 5, the author says:
"When a vehicle is driven through a curve it experiences a lateral (or sideways) acceleration. The magnitude of this lateral acceleration depends on the vehicle speed and the curvature and cross-slope of the curve. SRT is the maximum lateral acceleration that the vehicle can withstand before the wheels on the inside of the curve lift off the ground. This is the beginning of rollover. For passenger cars the SRT is normally so high that the vehicle's tyres will lose road adhesion before the SRT is achieved and the vehicle will slide out of the curve. For laden heavy trucks on good road surfaces rollover will occur before the truck slides out. Good driving practice would, of course, result in the selection of a speed to go through the curve that is well below either the rollover limit or the loss-of-adhesion limit."
The report also concluded that vehicles with lower SRT have a higher risk of being involved in a rollover crash.
Some comment needs to be made about the use made of this report during the course of examination of the witness Jamieson in particular. The intent behind the examination was to have the witness agree that, as a result of the likely SRT of the B Double, and its likely speed, it could not have rolled without an external force being applied to it. By reference to Table 3 in the report, counsel for the defendant put to Jamieson that the average B-double SRT was .38. That figure was then used as a starting point for other calculations.
What needs to be understood however is that that figure was a statistical result produced after an examination of 11 vehicles. It was produced using what was called the SRT Calculator. That method of calculation required some basic vehicle parameters, some of which were easy to obtain. Where those parameters were difficult to obtain, generic values were used. For example, generic suspension data was used. The Calculator could also only be applied to individual vehicle units. For B-double combinations which were roll-coupled, the SRT of the combination was calculated by taking the weighted average of the SRTs of the individual vehicle units. The authors of the report noted that, in most cases, this produced a reasonably accurate result, but that if the suspension roll characteristics of the individual vehicle units were significantly different from each other, there may be some error.
Other data required was the gross and tare weight at each axle group of the combination. Gross weights were measured in the survey but tare weights were not. Assumptions were made as to those. In the present case, there was no evidence as to the tare weight of the B Double. The only evidence was that the gross weight was 66.1 tonnes. The authors of the report commented that, while a variation in the tare weight from that assumed would affect the SRT value, if the tare weights were reasonable estimates of the average for the particular vehicles studied, then over the sample the errors would average out.
As to the generic suspension data used, generally they were less roll stiff than the average suspension of their type and thus would result in a conservative estimate of SRT. In Tasmania, the authors view was that, given no actual data was available, calculated SRT values would tend to be lower than actual ones. The generic suspension value used for the survey was 780,000 Newton metres/radian. In this particular case, there was evidence that the actual suspension data for the B trailer was just over 1,200,000 Newton metres/radian. The authors of the report commented that typically, increasing the suspension roll stiffness to 1,200,000 Newton metres/radian would increase SRT by about 10 percent. Further in the report, the authors referred to a possible increase of between .02g and .04g due to stiffer suspensions. It was that increase which was used by counsel for the defendant in his calculations. There was no evidence as to suspension data for either the prime mover or A trailer in this matter.
The report noted that there were three vehicle characteristics that had a significant impact on SRT. The two most fundamental were tyre track width and centre of gravity height. The third factor was the roll stiffness of suspension and tyres. There was no accurate evidence in this case of the tyre width track and there was no evidence at all about centre of gravity height. In par3.4, the authors noted:
"For most heavy vehicles and particularly for trailers the centre of gravity height of the whole vehicle is largely determined by the centre of gravity height of the payload. This is controlled by both the load bed height and the load height. For log trailers the typical load heights are not high compared to other heavy vehicles (most are below 4m) but the typical load bed heights are high (in some instances more than 1.8m). When a vehicle drives through a curve there is a tendency for the vehicle body to roll outwards. This has the effect of moving the centre of gravity outboard and effectively reduces the track width which reduces stability. Greater roll stiffness of the suspension and tyres reduces the body roll and enhances stability."
The report noted that there were means by which poor SRT levels could be improved. These included increasing the roll stiffness of the suspension, lowering the centre of gravity height of the vehicle through loading and lowering the centre of gravity height of the vehicle through design. The report concluded that most of the vehicles studied which had poor SRT values had already been fitted with high roll stiffness air suspensions, and that the principal cause of the poor SRT values was a high centre of gravity height of the payload caused by a high load bed height.
The above comments represent no criticism of the survey or its results. The comments are to illustrate that, in the absence of a great deal of actual data relating to the B-double combination involved in this accident, extreme care needs to be taken in simply taking average figures appearing in the survey and relying on them to produce a precise calculation capable of satisfying the Court as to a particular conclusion in relation to the B Double.
Particular evidence – John Jamieson
Jamieson accepted the contents of the TERNZ Report and relied on material in it for some of his opinions. In essence, his view was that the B trailer of the B Double commenced to roll at around the point being the commencement of the tyre mark on the right hand side of the plan annexed to these reasons. It began to roll on to the east bound lane. It began to lose its load and then at some point the Pajero collided with it, hitting the rear wheel and causing the damage to the rim identified. On impact, the B trailer rolled onto the Pajero starting at the right front corner and going over onto the top of the Pajero, trapping it and dragging it back along the road. The reasons given for that view were that:
- the tyre marks on the road indicated a weight transference from the inside to the outer wheels of the trailer consistent with the beginning of a roll over (Jamieson expressed this view based on an inspection of poor quality black and white copies of police photographs but did not resile from it when shown the colour versions. He had not seen the actual scene);
- there was evidence of logs in the east bound lane of the highway prior to there being any evidence of debris from the Pajero or any gouge or scrape marks on the road, indicative of a roll or partial roll before impact;
- there were fragments of pine logs jammed into the front grill of the Pajero indicating logs were already down before the front of the Pajero hit anything;
- had the Pajero sideswiped the B trailer at the point of the rear wheel of the trailer which had the damaged rim, the Pajero would have spun out and away from the B trailer because that wheel was no more than a metre from the rear of the trailer. There was no evidence the Pajero had sideswiped the trailer and been snagged.
The challenge to this view was based on:
- the evidence from Carrick to the effect that, while it was unusual that there was no debris at the commencement of the tyre mark (where Carrick believed the first impact had occurred), it could happen;
- the evidence of the defendant to the effect his speed at the relevant time was between 80 and 90 kilometres per hour;
- that it was an impossibility for the B trailer to have rolled without an external impact given the evidence about SRT values.
Jamieson, as a witness under cross-examination, it could be said, was ambushed and did not appear to perform well. However, he maintained his disagreement with Carrick's assessment of the point of impact and the cause of the accident. He raised new possibilities about factors which might have contributed to the collision, not raised in his report. He was criticised for that. He also maintained under cross-examination that there were factors which could affect the B trailer's SRT value which were not being discussed. He referred to the centre of gravity height. Counsel for the defendant maintained that was not relevant to SRT, a position not consistent with the TERNZ Report.
The criticisms of this witness by counsel for the defendant in his closing address were to a large extent justified. Counsel for the plaintiff even accepted that, to a large degree, the witness's evidence had been compromised during the course of cross-examination. However, with respect, a number of his conclusions were consistent with the objective evidence which did exist.
Particular evidence – Graeme Elphinstone
Elphinstone was the proprietor of the company which manufactured the B trailer. He had had extensive experience in observing the operation of log trucks, driving log trucks and designing, manufacturing and repairing trailers. He had also attended a number of accident scenes involving log trucks and trailers. He had no formal qualifications in engineering, physics or accident investigation and reconstruction. His attendance at scenes was for the purpose of determining whether any faults in his trailers might have caused a problem and whether any redesign might be warranted to improve performance of his trailers.
In this case there was no suggestion that there was any fault in the B trailer or any aspect of its linkage to the A trailer and prime mover which might have contributed to the accident.
Assessment of evidence and conclusions
Counsel described the burden of proof to be applied to my findings differently. Counsel for the defendant submitted that I needed to be affirmatively satisfied as to any findings made. Counsel for the plaintiff quoted a passage from the judgment of Gibbs J (as he then was) in the High Court case of TNT Management Pty Ltd v Brooks (1979) 23 ALR 345, at 349, where his Honour said:
"If it were necessary for the respondent to prove, as a matter of scientific certainty, that the semi-trailer had been travelling on its correct side of the roadway she would have failed in her endeavour. Such may be the complex interaction of forces in a collision that deductions of the kind which I have made cannot attain scientific certainty. But that is not necessary. The principle to be applied was stated by this court in Bradshaw v McEwans Pty Ltd (1951; unreported) in a passage cited in Luxton v Vines (1952) 85 CLR 352 at 358: 'Of course, as far as logical consistency goes, many hypotheses may be put which the evidence does not exclude positively. But this is a civil and not a criminal case. We are concerned with probabilities, not with possibilities. The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while in the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture
… But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise.'
… However, the position and state of the vehicles after the collision do provide a basis from which a reasonable inference can be drawn as to the position of the vehicles before the collision. In my opinion it is reasonable to find on the balance of probabilities that the pantechnicon was, to some extent at least, on its incorrect side of the roadway at the time when the collision occurred. If that was so it should further be concluded that its driver was guilty of negligence."
Clearly, whatever words are used, if there is to be a conclusion drawn, it must be based on more than simply a random choice between two otherwise equal hypotheses. There must be a factor or factors accepted by the Court which support one more than the other.
Counsel for the defendant reduced his closing address to writing and spoke to it. Counsel for the plaintiff gave an oral address. Counsel for the defendant urged me to make a number of findings of fact and cross-referenced his submissions to pages in the transcript of evidence or exhibits. With respect, some of those references did not support the contentions that he put forward, nor was I able to find other evidence about the particular matters from which the conclusions urged upon me could be drawn.
For example, I was urged to make a finding that the defendant's prime mover and trailers had a low centre of gravity. Evidence of Shaun Butler and Colin Johnstone was relied on. Neither, however, gave that evidence about this particular rig. Neither conducted any sort of examination of the defendant's load of logs before or at any time during the trip the defendant made that day. I was also urged to find that the defendant's load "could not come loose without having struck something". Evidence from the defendant's police interview was relied on for this contention. The defendant did not express that opinion.
Having regard to the evidence, I can be satisfied that the B Double the defendant was driving on the day of the accident was loaded with pine logs and had been driven from Cooee to the site of the accident in an unexceptional manner. The defendant had had no indication of any problem with his load. That load was secured by two air tensioned straps and one ordinary one. The total weight of the rig was slightly under that permitted. The defendant had not been seen to cross the centre of the road at any time. He was generally a safe driver. The vehicle he was driving had a speed limiter, which prevented the rig from being driven on the flat at a speed greater than 100 kph. Notwithstanding that limiter, it was possible to get the speed up to 105 kilometres per hour. On a downhill slope, the speed could be much greater and had indeed been up as high as 130 kph. The defendant concedes he might have hit that speed on Spring Hill.
The speed limit for the area of the accident was 80 kilometres per hour. The defendant told police he drove through the sweeping left hand bend immediately prior to the accident at between 80 and 90 kilometres per hour. Notwithstanding that he was exceeding the speed limit, there was no suggestion on the evidence that the particular bend could not be traversed safely at that speed, or that speed was the cause of the accident. At the time of the accident it was dark. The weather was fine and the road surface was in good condition. On any version of events canvassed during the course of the trial, the impact between the B Double and the Pajero occurred after the exit from the bend. The first mark found on the highway indicative of trouble was a tyre mark commencing 31 metres after the apex of the bend.
The tyre mark commenced at a point through the apex of the sweeping bend and at a point where the road was very close to being straight. An examination of the photographs taken of part of the tyre mark (in particular photograph 5) showed that tyre mark on top of and slightly to the right of the centre white lines. The photographs showed the tyre mark then moving across the white lines towards the left hand side of them, and, following that, the circular tyre marks which are the tyres of the trailer spinning against the road surface after or during its capsize. I am satisfied in the circumstances, notwithstanding the evidence of the defendant to the effect that he believed his rig was on the correct side of the road when he went through the bend and other evidence as to likely "perfect" tracking of the trailer behind the A trailer and prime mover, that, at some point shortly after exiting the bend, the B trailer at least was partially on the wrong side of the road. It is not possible to make a determination as to whether the defendant drove his whole rig wide such as to cross the lines, only the trailer went there, or whether the defendant drove through the whole corner with part or all of his rig on or over the lines. The photographs, however, provide objective evidence of the position of the trailer after the exit from the bend which the defendant was unable to explain.
It does not automatically follow that, because the wheels of the B trailer were on and slightly over the centre lines at a particular point, the defendant's manner of driving was negligent and causative of the collision. However, it is a factor which could lead the Court, when combined with other evidence, to that conclusion.
Another 31 metres from the commencement of that tyre mark, but about ten metres before the circular tyre marks appear on the road, there are a number of parallel marks in the eastbound lane parallel to the white line on the side of the bitumen. These were identified without challenge by Carrick as marks made by pine logs from the defendant's rig. Almost immediately after those parallel marks, there is a scrape or gouge mark in the middle of the east bound lane. To their left, in the middle of the road and just before the circular tyre marks, there are scrape or gouge marks. To the right of the circular tyre marks in the east bound lane, there was a fluid spill identified as being from the Pajero with further scrape and gouge marks proceeding down the east bound lane. Those scrape or gouge marks proceed off to the side of the road, and there are then further marks tracking back across the eastbound lane and across the west bound lane to the southern side of the road at the point of the damaged Armco railing. There was no debris from the Pajero at all until well past the point where the parallel marks made by the pine logs appear.
Having regard to all the evidence, I am satisfied that the wheels of the defendant's B trailer were on the wrong side of the road and that the trailer began to roll onto the east bound lane prior to any impact with the Pajero. I am also satisfied that, as it was rolling, its load came loose resulting in logs beginning to spill on the road. As the trailer has rolled into the east bound lane, the Pajero has collided with it at or about the point on the micro-station plan where the first set of scrape/gouge marks appear with the trailer overturning fully onto the Pajero and dragging it back. The Pajero has been hit in the front right corner, with the trailer then coming down and over it, causing the Pajero to also be pushed over onto and be dragged along on its side, before being released as a result of the defendant's manoeuvre in attempting to pull his trailer back from the northern side of the road and keep his prime mover and A trailer upright. The facts to which I have had regard in reaching that conclusion are as follows:
- both Carrick and Jamieson agreed that, had the first impact of any description been the Pajero clipping the outside rear wheel of the B trailer, the Pajero would have commenced to rotate clockwise away from the B trailer. Carrick determined the Pajero was trapped by the overturning trailer preventing it from rotating out, although gave no particular reason for reaching that conclusion. Jamieson determined that because of how close that rear wheel was to the rear of the trailer, the Pajero would have to have spun out.
- the front of the rear wheel of the trailer is shown in the police photographs to be no more than a metre, if that, from the rear of the trailer. Accepting for this purpose the evidence of the speed of the B double as given by the defendant, and the assumption as to that of the Pajero, and the evidence from witnesses as to the time frame for any collision, even had the Pajero in some way become snagged on the trailer, it is not a reasonable inference that the trailer overturned as quickly as it would need to have done to trap the Pajero and cause the damage it did.
- the angle of the damage to the Pajero suggests the first point of impact was with its front right hand corner. The evidence of Carrick was that the initial impact was horizontal. The Pajero damage as shown in the police photographs and as described by Carrick is consistent with the trailer impacting with the Pajero to its front right corner at an angle and then rolling over the top of it and rolling the Pajero itself partially onto its passenger side.
- there were marks indicating logs spilled on the road to the east of the first gouge and scrape marks on the road. There were no scrape or gouge marks identified on the road to the east of the logs. The possibility that the Pajero was dragged underneath an overturned trailer for a distance of some 21 metres (the distance from the start of the tyre mark and Carrick's suggested point of impact to where the pine logs were) without any gouge or scrape marks being made on the road is not consistent with the existence of such marks in other places.
- there were pieces of pine log embedded in the front grill of the Pajero indicative of logs being already off the trailer and down to the level of the grill before the grill impacted with anything.
- there was a pine log found in front of the Pajero with marks consistent with impact with the front of the Pajero.
- there was no debris of any description from the Pajero found anywhere near the commencement of the tyre mark. The only debris was found much further down the road. While it could be accepted that such a thing can happen, it is, in my view, inconceivable given the damage to the Pajero that, had impact occurred with the front of the Pajero at the commencement of the tyre mark, there would not at least have been some glass from smashed headlights found at or near that point.
In reaching this conclusion, I am mindful that there is no explanation for the logs coming off the trailer as I have found that they did, in circumstances where they were secured by two air tensioned straps and a third strap and there had been no apparent means by which any strap was broken. However, in my view, the other factors identified lead to the conclusion that I have reached even in the absence of evidence as to precisely how the logs came loose.
This list of matters does not of course have regard to the hypothesis pursued by counsel for the defendant that the B trailer could not have rolled without an external impact. While there is no onus on the defendant to prove that scenario, if it were accepted on the evidence, then the complexion of the case would alter. It therefore requires comment.
Counsel for the defendant went to a lot of trouble to present to the Court evidence to support the proposition that, in the circumstances of this collision, it was impossible for the B trailer to have rolled without an external impact. Counsel's hypothesis was that that impact could only have been the Pajero hitting the rear tyre of the B trailer. The proposition that it was impossible for the B trailer to roll absent a prior impact is largely dependent on an acceptance of the defendant's evidence and the calculations of the SRT of the B Double prepared by counsel for the defendant.
As to the defendant's evidence, I accept that in large part there was nothing to suggest his evidence should not be accepted. However, there was one aspect of his evidence which was inconsistent with other objective evidence. The defendant was adamant that he drove his truck on the correct side of the road at all times and that he did not deviate to the left when the Pajero approached him. The tyre marks on the road after the sweeping bend, as depicted in the photographs before the Court, suggest otherwise. Clearly, at least by the time the rig was through the bend, its tyres had crossed onto and slightly over the white lines. The photographs also show a tyre mark going from that position back across the lines to the correct side of the road before the B trailer had rolled sufficiently for its spinning wheels to mark the road. The defendant's evidence as to the position of his rig after the bend cannot in those circumstances be accepted.
As to the evidence about the SRT of the defendant's rig and the conclusion urged from it that this B trailer could not have rolled absent external impact, the conclusion urged is only supportable if the figures upon which the value was based are accurate for this particular rig, and the defendant's evidence as to his vehicle at all times being on the correct side of the road is accepted. There was evidence from Jamieson to the effect that driver input could impact upon the likelihood or otherwise of a rig such as this rolling, a fairly obvious conclusion. Not only do I not accept that aspect of the defendant's evidence, but also there is no conclusive evidence the SRT calculations upon which the defendant's counsel relied were entirely accurate for this rig. It is not possible in my view to conclude that it was an impossibility for this rig to roll absent an external impact.
Particulars of negligence
Returning to the particulars of negligence asserted by the plaintiff by reference to the numbering in the pleadings:
(a)there is no evidence to support this particular. There was no evidence the defendant was in any way distracted from his driving such that he failed to keep a proper lookout for another driver. The defendant saw the Pajero and saw it start past him;
(b)there is no evidence that had the defendant applied his brakes this collision could have been avoided;
(c)there was no evidence that the defendant had any opportunity to take evasive action and that had he done so the collision would have been avoided;
(d)there was no evidence that the speed at which the defendant drove in itself, notwithstanding it was likely to have been over the posted speed limit, caused or contributed to the collision;
(e) this is not made out;
(f)this particular, for the reasons appearing in par66 has been made out.
In all the circumstances, I am satisfied that the manner of driving of the defendant on this morning was negligent and that it caused the collision with the Pajero. There will be judgment for the plaintiff. There will be no apportionment.
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