Connector Drilling Pty Ltd v Altham

[2006] WADC 166

CONNECTOR DRILLING PTY LTD -v- ALTHAM & ANOR [2006] WADC 166

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WADC 166
Case No:	CIV:2863/2003	Heard:	10 & 11 NOVEMBER 2005 & 8 & 9 AUGUST 2006
Coram:	FENBURY DCJ	Delivered:	18/10/06
Location:	PERTH
No of pages:	32	Judgment Part:	1 of 1
Result:	Liability apportioned 70:30 against overtaking vehicle
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Parties:	CONNECTOR DRILLING PTY LTD RONALD JOHN ALTHAM SAMPSONS TOURS PTY LTD BENJAMIN HAROLD WHITMAN
Catchwords:	Negligence Liabililty Motor vehicle accident Overtaking vehicle colliding with vehicle being passed Turns on own facts
Legislation:	Nil
Case References:	Balcomb v Morris & Anor [2003] WADC 80; (2003) 32 SR (WA) 104 Dislieff v Connell (1998) 27 MVR 307 Knowles v Dubla (1997) 25 MVR 134 Wilson v Maywald [2000] SADC 84

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : CONNECTOR DRILLING PTY LTD -v- ALTHAM & ANOR [2006] WADC 166 CORAM : FENBURY DCJ HEARD : 10 & 11 NOVEMBER 2005 & 8 & 9 AUGUST 2006 DELIVERED : 18 OCTOBER 2006 FILE NO/S : CIV 2863 of 2003 BETWEEN : CONNECTOR DRILLING PTY LTD

Plaintiff

AND

RONALD JOHN ALTHAM
First Defendant

SAMPSONS TOURS PTY LTD
Second Defendant

FILE NO/S : CIV 236 of 2004 BETWEEN : SAMPSONS TOURS PTY LTD

Plaintiff

AND

BENJAMIN HAROLD WHITMAN
First Defendant

CONNECTOR DRILLING PTY LTD
Second Defendant

(Page 2)
Catchwords:
Negligence - Liabililty - Motor vehicle accident - Overtaking vehicle colliding with vehicle being passed - Turns on own facts

Legislation:

Nil

Result:

Liability apportioned 70:30 against overtaking vehicle

Representation:

CIV 2863 of 2003

Counsel:

Plaintiff : Mr P V Batros
First Defendant : Mr J P T Olivier
Second Defendant : Mr J P T Olivier

Solicitors:

Plaintiff : Jarman McKenna
First Defendant : Talbot Olivier
Second Defendant : Talbot Olivier

CIV 236 of 2004

Counsel:

Plaintiff : Mr G K Paull
First Defendant : Mr P V Batros
Second Defendant : Mr P V Batros

Solicitors:

Plaintiff : CCI Legal
First Defendant : Jarman McKenna
Second Defendant : Jarman McKenna

(Page 3)

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

Balcomb v Morris & Anor [2003] WADC 80; (2003) 32 SR (WA) 104
Dislieff v Connell (1998) 27 MVR 307
Knowles v Dubla (1997) 25 MVR 134

Case(s) also cited:

Wilson v Maywald [2000] SADC 84
(Page 4)

1 FENBURY DCJ: These actions arise out of a motor vehicle accident that occurred on 12 August 2002 on the Great Eastern Highway between Coolgardie and Southern Cross.

2 The Great Eastern Highway at the location of the accident consists of a bituminised single lane each way, with flat gravel shoulders. (See photographs exhibit 3 and exhibit 8). Each lane is about 3.5 metres wide. There is a broken white line down the centre of the road. Running along, but just inside both edges of the bitumen surface is an unbroken white line, presumably intended to show the edge of the bitumen at night.

3 The road was in good condition and relevantly straight but undulating. The weather was fine; it was early afternoon.

4 A convoy of three vehicles belonging to Connector Drilling Pty Ltd being the plaintiff in Action No 2863 of 2003 and the second defendant in Action No 236 of 2004 (Connector Drilling) was heading west travelling at about 85 kilometres per hour. The three vehicles were between about 100 to 150 metres apart to allow for passing.

5 At approximately 1 pm a 14 metre long, 48 seat passenger coach, 2.5 to 2.6 metres in width, weighing between 12 and 14 tonnes, with 11 passengers on board, approached the Connector Drilling convoy from the rear, that is, also travelling in a westerly direction. The coach was owned and operated by Sampsons Tours Pty Ltd, the second defendant in Action No 2863 of 2002 and the plaintiff in Action No 236 of 2004 (Sampsons Tours), and was driven by Ronald John Altham (the first defendant in Action No 2863), (Altham).

6 The first vehicle approached by the coach was a truck towing a trailer. This truck can be seen parked on the south side of the highway facing west in exhibits 3 and 8. The vehicle was driven by a man named Hasson who gave evidence at the hearing.

7 The coach passed Hasson in the truck towing the trailer without difficulty or incident. Having passed Hasson the coach then pulled into line in front of the truck and Hasson dropped back, allowing for between 100 and 150 metres between his vehicle and the coach.

8 The next vehicle in the line was a tandem axle caravan towed by a 1996 Toyota Land Cruiser utility with a composite tray back (the Land Cruiser) driven by Benjamin Harold Whitman (Whitman) who is the first defendant in Action No 236 of 2004.

(Page 5)

9 The caravan was not equipped with stabilisers. It was swaying from side to side occasionally and to various extents.

10 The caravan was wider than the Land Cruiser but by how much is difficult to say. The expert called on behalf of Connector Drilling estimated that the Land Cruiser was about 1.8 metres wide, and the caravan 2.3 to 2.4 metres wide which, at most, means the caravan was 30 centimetres or one foot wider than the Land Cruiser on each side. However, the expert witness, Mr Simms, never measured the vehicle. Mr Whitman was not asked about the matter.

11 As an approximation, given each lane was about 3.5 metres wide, and assuming the vehicle concerned is tracking down the centre of its lane, then the caravan had about 55 to 60 centimetres of unused lane space on each side of it and, similarly, the coach had about 45 to 50 centimetres.

12 Thus, given central tracking, there should have been, as the coach passed the caravan, between 90 and 110 centimetre space between them. It would have been a greater distance if each vehicle had moved as near as possible to its respective road's edge during the "overtaking manoeuvre".

13 It follows that there was plenty of room for the coach to pass the caravan safely providing both drivers exercised reasonable care and were paying attention to what they were doing.

14 The coach, driven by Altham, was behind the Land Cruiser and caravan, and Altham decided to pass the caravan. The caravan was swaying from side to side. Altham did not sound his horn. He tried to contact the driver of the Land Cruiser, Whitman, on CB radio but got no response.

15 As Altham passed pulled out to pass, he waited and tried to catch the eye of Whitman and make eye contact with him through the Land Cruiser's right hand wing mirror, but he was unsuccessful.

16 Altham proceeded with the passing manoeuvre and the caravan and coach came into contact. Thereafter, somehow, both the coach and the Land Cruiser and caravan became attached and entangled, and all vehicles then veered off the road to the right and careered into the coach. The caravan and Land Cruiser became detached, and it appears the coach in some way or other, ran over the Land Cruiser at or about its tray back.

(Page 6)

17 Connector Drilling asserts in Action No 2863 of 2003 that the coach driver, Altham, was solely at fault. Sampsons Tours in Action No 236 of 2004 asserts that Whitman, the Land Cruiser driver, was solely at fault.

18 In Action No 2863 of 2003 Connector Drilling particularises its allegations of negligence against Altham as follows:

"The plaintiff further alleges that the accident was caused by the negligence of the first defendant for which the second defendant is vicariously liable.

Particulars of negligence of the first defendant

The first defendant was negligent in that he;

(a) failed to allow sufficient distance between the vehicle and/or caravan and coach such that the overtaking manoeuvre could be performed safely.

(b) failed to keep a proper lookout for the vehicle and/or concern being overtaken.

(c) failed to properly control the coach so as to avoid it colliding with the caravan or to avoid the caravan making contact with the coach."

19 In its Amended Defence, Sampsons Tours alleges the accident was caused or contributed to by the negligence of Whitman, Connector Drilling's driver.

20 In Action No 236 of 2004, Sampsons Tours Pty Ltd particularises its allegations of negligence against Mr Whitman as follows:

"The collision was caused entirely by the negligence of the first defendant and the second defendant by its employee, servant or agent.

Particulars of negligence

(a) failing to keep a proper look out;

(b) failing to keep as close as was practicable to the left boundary of the carriageway;

(c) failing to move to the left in favour of the plaintiff's vehicle;

(Page 7)

(d) failing to have proper control;

(e) driving at a speed which was, in the circumstances, excessive and which, inter alia, caused the said caravan to sway across the centre white line of the carriageway and into the path of the plaintiff's vehicle which was then overtaking;

(f) failing to stop, slow down and otherwise manoeuvre the vehicle he was driving so as to avoid the collision;

(g) driving without the appropriate valid drivers licence contrary to s 49(1)(a) of the Road Traffic Act;

(h) failing to train or instruct or ensure that the first defendant had been properly trained or instructed or otherwise was sufficiently experienced in the towing of the caravan;

(i) failing to ensure that the first defendant was properly licensed to drive before instructing him to drive the said Toyota utility and tow the said caravan."

21 As counsel for Connector Drilling Pty Ltd put it in par 5 of a statement of contentious issues filed on behalf of Connector Drilling:

"Thus the contentious issues on liability for the court to determine are:

(a) Was Altham negligent in causing or contributing to the occurrence of the collision?

(b) Was Whitman negligent in causing or contributing to the occurrence of the collision? and

(c) If yes to both (a) and (b) above, what is the appropriate apportionment of liability between them"

The evidence of the collision

22 Whitman, the driver of the Toyota Land Cruiser, gave evidence first in the proceedings. He was 27 years of age at the time of the accident and he had been driving for 12 to 13 years. He described himself as a cautious and good driver. He had had plenty of driving experience of four wheel drive motor vehicles. Connector Drilling provided the caravan as

(Page 8)

accommodation for its employees when they were drilling holes in isolated mine sites.

23 Whitman said that the Toyota Land Cruiser towed the caravan with a tow-bar and ball. The Land Cruiser had a two door cab and the back chassis was a steel tray with sides. Whitman said that he had been driving the Toyota towing the caravan for approximately the previous three months. He had towed the caravan about 1,500 kilometres.

24 As to handling, he said that it handled "quite good". He said there was some sway but it was minimal. He estimated this was about a foot or thirty centimetres either side and no more. He said the caravan had two axles.

25 On the day in question he had been in convoy with the other vehicles. They had lunched in Kalgoorlie having returned south from Menzies. They were on their way back to Perth. They had set out from Menzies at about 6.30 to 7 am. Inside the caravan was sleeping gear, kitchen gear and some spare tyres, including three or four rims. He said that the caravan was not heavily laden, and gear had been stowed securely.

26 Whitman said he was driving casually, there was no rush to head home, and they were heading for Bullsbrook, being a suburb of Perth. They were driving along the Great Eastern Highway. There was no need to deviate. The speed limit was about 110 kilometres per hour and he was driving at 80 kilometres per hour.

27 Whitman said he was driving between the lines, westbound. He said both vehicles were performing "fine". He said he had no reason to be concerned. He was driving along when he "felt a thud" and then his vehicle began pulling to the right. He tried to correct this but "it wouldn't go".

28 Whitman said he veered heavily to the right and the vehicle then rolled. As far as he could remember the thud came from the rear. He felt a great veering to the right immediately on hearing the thud. He said he took his foot off the accelerator but it made no difference. He became unconscious and suffered serious injuries.

29 Whitman said that he was not swaying over the centre line either with the Toyota utility or the caravan. He said that before the accident he was not aware of the coach behind him or of a coach over-taking him at all. He said he was driving properly and in a safe manner.

(Page 9)

30 Whitman said that he was a competent driver, but he admitted that he was not the holder of a valid motor drivers licence at the time. It had been suspended.

31 In cross-examination Whitman stated that the Toyota did not have extended rear vision mirrors on either side, but the mirrors were sufficient for him to be able to see Hasson who was driving the vehicle behind him. He said he looked in the rear vision mirror every five to ten minutes. He said that he could see the right hand rear of his van even though the van was wider than the utility.

32 Whitman said that he did not see the coach at all, and he denied ever nodding off and going to sleep. He did not see whether and to what extent the van was swaying immediately before the collision.

33 Whitman said that he felt rather than heard a thud.

34 The witness Hasson, as I have stated, was the driver of the vehicle following the Toyota Land Cruiser and caravan. Hasson was a 31 year old plant operator. He was driving about 100 metres behind the Land Cruiser and caravan. He said the coach passed him and pulled in front. When it did so he backed off further. He said the coach sped up to pass the Land Cruiser and caravan. Hasson said that the coach was too close to the white line in the middle of the road and that, in a split second, "all went wrong" and the vehicles went off into the coach. Hasson said he was 100 metres back when he saw this. He emphasised that the left hand wheels of the coach were actually on the white dotted line in the middle of the road. He said that Whitman and the Land Cruiser and caravan were in the centre of its lane. Hasson said that he looked at the coach for one to two minutes whilst it was attempting to pass the Land Cruiser and caravan, and that the coach's wheels were straddling the centre white line for about 10 seconds prior to impact.

35 Hasson said that whilst the coach was passing the caravan, the caravan moved from left to right and struck the coach whilst the left hand wheels of the coach were on the white line.

36 In cross-examination Hasson said that the caravan was wider than the Land Cruiser and that he could not see the Land Cruiser from behind. Hasson's prior statements including his police statement were put to him and tendered. A point was made that they had omissions. Hasson said that he was tired and distraught at the time that he made those statements and all he wanted to do was to go home.

(Page 10)

37 Hasson was emphatic however, that the coach's left hand tyres were straddling the centre white line. It needs to be observed, I think, that Hasson was in a vehicle travelling behind the coach at all material times. He was watching as the accident happened. He was in a very good position to see what occurred.

38 Altham started driving coaches in July 2001. At the date of the accident he had 13 months experience in that occupation all spent in the employment of Sampsons Tours and, it seems, on the Perth-Kalgoorlie route. He drove that route four to five times per week. He was not a very experienced coach driver but he was familiar with the road.

39 Altham stated that he came up behind the convoy and pulled in behind the truck and trailer driven by Hasson waiting for a chance to pass. He had to wait for another west bound vehicle in front of him and behind the convoy to pass the convoy. He called it a Land Cruiser but in fact it was a Nissan Patrol. When he decided to pass the truck he called up the truck on the UHF two way radio but got no response. He indicated and passed the truck on the right. He said his wheels were within one foot of the white line on his right, and he pulled back in after passing the truck. He was then behind the Land Cruiser towing the caravan.

40 Altham said that the caravan was swaying "but not swaying dangerously".

41 He pulled up behind the caravan and watched and waited for a while and then again spoke on the two way radio and again received no response.

42 He said the road was clear in front of him and he had plenty of clear vision. He put on his indicator and pulled out to pass. He went over onto the east bound carriage way as far as he could go and his right wheels were within 12 inches of the continuous white line.

43 As he drew alongside the caravan he tried to catch the eye of the Whitman in the Land Cruiser's right wing mirror but was unable to do so.

44 Altham continued to accelerate to go past until he heard one of his passengers call out. He then felt the coach getting pushed off the road and does not know how this occurred. He said it all happened very quickly.

45 At the time when he said he was trying to catch the eye of Whitman, Altham said the front of the coach was still "well behind the caravan".

(Page 11)

46 Altham said that he did not catch Whitman's eye in the mirror, even so, as he put it, "I just continued to accelerate and go past" (T287). He said he was as far to the right as possible. When asked what happened he said "Evidently there's been a collision accident".

47 Later, at (T288) he said "I got forced off the road to the right hand side". He said he concluded that it was the caravan and the Toyota that had caused this but when asked "where were the caravan and Toyota when you say you first realised it was them that were pushing you off to the right?" his answer was "I've got no idea".

48 Altham had little idea how the accident occurred but he was emphatic that the left hand wheels of the coach on no occasion crossed over the broken white line in the centre of the road.

49 In cross-examination by Mr Batros, Altham agreed that in executing the passing manoeuvre he needed to be extra cautious. He said that he would not have tried to pass the caravan if it had been over his side of the double white line. He said that he did nothing unsafe. He said the caravan appeared to be over to the left and swaying, but not alarmingly.

50 Altham said the maximum distance between the caravan and the coach would have been about 1.3 metres.

51 Counsel pursued a possibility that Altham was preoccupied with a looming threat of oncoming traffic and thus did not concern himself sufficiently with the dangers of the overtaking manoeuvre. Counsel made reference to exhibit 8 and, perhaps more clearly, exhibit 3, which shows a single white line prior to a rise which would have prohibited the coach from passing. The single line is in the distance, some way west of the accident scene. How far is not clear.

52 Altham denied the suggestion.

53 Counsel then dealt with Altham's observations of the behaviour of the caravan prior to passing. Altham agreed that he knew he was coming up to a hill. He looked at the rear of the caravan before deciding to overtake it. He commenced to do so having reached the conclusion that there was nothing about the caravan which caused him to think it would be unsafe to try and overtake it. He agreed that he knew the caravan was taking up "the vast majority of the western carriageway". He knew the width of his coach and the width of the eastern carriageway. He also agreed that he knew he was not going to be putting his right hand wheels off the bitumen to the right.

(Page 12)

54 In essence, Altham agreed that there was nothing in Whitman's driving of the Land Cruiser towing the caravan to put him on alert about the possibility of a collision.

55 As to his unsuccessful attempt to speak to Whitman on the radio, Altham agreed that the lack of contact required him to be extra careful during the overtaking procedure.

56 It was common ground Altham did not sound his horn.

57 Counsel put it to Altham at (T302) that he must not have been looking at the Land Cruiser and caravan as he was passing it, given his inability to explain what caused the accident. Altham said he was looking at the caravan until "the point of going past it". There was no reason to be alarmed at that time.

58 And then later, at (T304), Altham, in describing his thoughts as he passed the caravan said this:

"… I assessed the caravan, the caravan was safe and I went to overpass it, it's as simple as that. Once I had realised that I had overpassed it and that the caravan was safe, my vision focussed on the traffic coming on the other side of the lane.

Once your cab had passed the rear level of the caravan, you ceased being consciously thinking about the safety of the passing manoeuvre and you were focussing on the possibility of oncoming traffic? –-- That's correct yes.

It's your evidence, isn't it, that you saw absolutely nothing at all in the driving of the Land Cruiser on this day, 12 August 2002 nor the behaviour of the caravan which would put you on any notice at all that there was any danger in passing those two vehicles? –-- That's correct."

59 Altham's attention was then drawn to the question of whether he should have tooted his horn and/or flashed his headlights as he passed the caravan. He stated that his employers had, since the accident, instructed that headlights should be flashed during such manoeuvres. Altham agreed that the passing of the Land Cruiser and caravan, with the coach was "a bit of a tight squeeze" and that was why he tried to make eye contact with Whitman. Altham conceded that, in the circumstances, he should have tooted his horn. However, he said that it never occurred to him to do so.

(Page 13)

60 Altham rejected any suggestion that he, being concerned of the approaching blind rise in the road, misjudged and pulled his coach into the side of the Land Cruiser too early in the passing manoeuvre. He denied having misjudged it in the course of an abandonment of the overtaking manoeuvre (T308).

61 Towards the conclusion of his cross-examination Altham agreed that he always knew that the space between the left hand side of his coach and the right hand side of the caravan was a "pretty narrow" space, and that he was unsure whether Whitman knew that he was overtaking.

62 It was the gist of Altham's evidence that he knew that Whitman was unaware of his presence alongside his vehicle and to the right rear, in the coach. Nevertheless, he did not think it was a manoeuvre that was too dangerous to carry out.

63 In further cross-examination after questions from myself, Altham agreed that it would not have been unsafe for him to have put the right hand wheels of the coach on to the gravel as he was passing the Land Cruiser and caravan (T312). Altham also agreed that if he had put the right hand wheels of the coach off the bitumen on to the gravel, the accident may well have been avoided.

64 The next of three other witnesses called on behalf of Sampsons Tours was David Butko, a kangaroo shooter, who was the driver of the Nissan Patrol that passed the convoy immediately before Altham in the coach. He was travelling with his wife and son.

65 Mr Butko said that the caravan was "just wobbling all over the road, swaying" (T316).

66 He said the caravan "would have been doing six inches; a six inch sway".

67 Mr Butko overtook the caravan. He kept on travelling down the road but he looked in his mirror. He heard Altham call up on the radio. He saw the coach commence to pass. He then saw dust.

68 In cross-examination Mr Butko agreed that he was not able to tell, having passed the convoy and looking back in his rear vision mirror, where the coach's left hand wheels were in respect of the centre white line on the road immediately prior to the accident.

(Page 14)

69 Mrs Butko, who was travelling in the Nissan Patrol with her husband, said that the caravan was "swaying very significantly across the road" … "it was swaying enough for me to be scared …". Mrs Butko rejected the suggestion that the caravan was "swaying a little". She said it was "a bit more than a little".

70 The next witness called on behalf of Sampsons Tours was Michelle Nixon who was a passenger in the coach on the day in question. She was sitting two seats back from the front on the left hand side of the coach in a window seat. She was leaning on the window. She was reading, looking around and looking at the country side. Her reading was intermittent.

71 Mrs Nixon saw that the caravan towed by the Land Cruiser was swaying. She made this observation when she was "quite some distance behind" the caravan. Mrs Nixon was asked how far it was swaying and she said "well, the sway actually tranversed the centre line and would go right to the other side to the bitumen" (T331). She said the back of the caravan swung out over the centre line. Mrs Nixon was an experienced caravanner and she made the observation that there were no sway bars fitted to the caravan.

72 As Mrs Nixon put it:

"We eased out into the east bound lane and commenced to overtake and I saw the back of the caravan move in and come within … two or three inches of the mirrors because I'm leaning on the window and the coach hesitated. It didn't continue overtaking at that point. There was a moment of hesitation. The caravan swayed away and we continued and then there was a loud noise of a collision behind me."

73 At all material times Mrs Nixon said the coach was to the right of the centre broken line.

74 Mrs Nixon's evidence was that the position of the coach on the road in the passing lane, that is the east bound lane, did not change prior to or on the occurrence of the accident. It remained at all times on the east bound lane and no part of it was across the centre line.

75 In cross-examination Mrs Nixon agreed she did not see the collision.

76 She said that the caravan was swaying alarmingly. Her prior statement, which was inconsistent with that, was put to her. In that

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statement she said that the caravan was swaying "as it progressed along but not alarmingly".

77 Mrs Nixon's reliability as a witness was impeached, I thought, in cross-examination. Her view about the matter differs very significantly from that of Altham who had a better aspect.

78 The only other "civilian" witness to give evidence was Poata Puku, a gentleman travelling in the coach, sitting at a window seat on the left of the coach. Mr Puku's evidence was that the Land Cruiser and caravan "jack-knifed" on impact. Mr Puku's description of the accident was this:

"Well the coach as it comes to the right hand side, it started to go forward to do this job – to overtake, and all of a sudden, like you said, that the caravan towed by the four wheel drive slightly come into the middle of the white line then all of a sudden I could see something is going to happen and all of a sudden the caravan hit us".

79 There were some conceptual difficulties on the part of the witness in cross-examination by Mr Batros. He struggled with the notion that it might be difficult for him to see the white line immediately beneath him on the road whilst looking out of his own window of the coach. On the other hand, he could see the white line when looking out to the front of the coach.

80 I did not think either Nixon or Puku were impressive as witnesses. Mrs Nixon got flustered and upset. Mr Puku seemed to have difficulties in conceptual gymnastics. They had no reason to take note until the accident started to happen. Their evidence about pre-accident matters such as road position and the like suffers accordingly.

The expert evidence

81 The plaintiff called expert evidence from Martin E Simms, a chartered consulting engineer who produced a report which was exhibit 16. Central to a consideration of Mr Simms report are the nine photographs, being exhibits 1 to 9, and especially exhibits 3 and 8. Exhibits 3 and 8, and particularly exhibit 8, show a black line on the road that commences in the west bound lane and veers right across the east bound lane.

82 I find on the balance of probabilities, that the black line is a tyre mark that was made by one of the vehicles involved in the accident and,

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further, by either the coach or the Land Cruiser. I observed that in relation to exhibit 3 especially, the black line mixed with gravel scuffing appears generally to follow to the coach rather than the Land Cruiser which is well to the right of the coach, but that is not a strong connection.

83 Mr Simms's opinion is, and is based upon, his conclusion that the black line was made by the left front wheel of the coach.

84 Mr Simms makes the point, I think, that if the black mark was made by the Land Cruiser then, given that it commences about one metre inside the west bound lane measured from the centre line, then it must mean that the right hand side of the coach, having regard to other dimensions mentioned earlier, was off the road and onto the gravel at the time of contact. This is not in accordance with the evidence.

85 Mr Simms's opinion was that the dominant tyre mark was made by a tyre that was sliding as it was turning. It does not occur with mere rolling. The tyre was either being braked or it was being pushed sideways "out of its plane of rotation". Mr Simms said that the mark was left by the left hand front wheel of the coach as it was careering off the road.

86 In essence, his reconstruction about how the accident occurred is that, given the coach driver lost control of the coach and could not steer the coach, something happened to the front of the coach. Absent mechanical failure, the only possibility, according to Mr Simms, was that the Toyota Land Cruiser got "jammed" underneath the left hand front of the coach and at an angle and acted as a steering mechanism, the front weight of the coach being, in a sense, reduced by sitting on the right hand side of the Land Cruiser, and it was only that that could have forced the coach off the road as it did. This is said to have been more likely given the great weight of the coach. Mere impact would be unlikely to have achieved the same result.

87 The case on behalf of Connector drilling is that the coach hit the right hand side of the Land Cruiser somewhere towards its rear, and they became locked together and the Land Cruiser, being at an angle, accepted some of the mass of the coach upon it, especially on its left hand wheels, and it acted as some sort of skate like effect in forcing the front of the coach off the road no matter what the coach driver did to try and stop it. Mr Simms' theory seems to be because the Toyota has been hit at the right rear, the front then goes to the right and it bites the road with the left wheels and acts as a set of steering wheels for all three vehicles in spite of the coach wheels being turned to the left. It was the coach wheels being

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turned to the left and the driver's efforts to keep the coach on the road that left the very heavy black mark.

88 Thus it appears that Mr Simms's theory is that the coach was over the white line given where the black mark commences and therefore the driver of the coach was negligent in the passing manoeuvre and not the Land Cruiser, in spite of the caravan swaying.

89 Mr Simms dealt with the scenario that the caravan, swaying dangerously or excessively, came into contact with the coach, the coach at all times being on its correct side of the road in the passing lane. At (T146) he explained it as follows:

"… if we work from the premise that the vehicles were initially travelling approximately parallel but the caravan was swaying to some extent, if the caravan had simply swayed whilst the Land Cruiser remained along its path – which is what normally happens – if the caravan had swayed over such that its rear right hand corner contacted the side of the coach, that impact, assuming it was consequential – that is not a light tap – that impact would have absorbed some of the energy in the caravan as it swung and would have halted it. It would have stopped it. It would then – because swaying occurs as a cyclic event, it would then simply have moved back, possibly to sway to the other side because swaying is just that – it goes from either side of the centre line – where it would have dampened it completely and it would have fallen back into line with the Land Cruiser. … what I'm simply saying is that the very fact of the caravan hitting the coach would not of itself have precipitated a loss of direction by the Land Cruiser. It would have simply gone bang, gone back either to the centre line or carried on swaying the other side."

90 I then asked the question:

"But if the end of the caravan had swayed and hit the coach, given their relative masses and the circumstances, that in itself wouldn't have caused the accident. Is that what you're saying? --- That's exactly what I'm saying, your Honour. Perhaps if I could explain – it might be useful for me to explain what causes swaying of a caravan just very briefly. The whole caravan sways about the tow hitch. So if you imagine the caravan as a pendulum, it oscillates in pendulum fashion, and it oscillates for

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much the same reasons that a pendulum does. Something disturbs it slightly – a puff of wind, or whatever it might be – causes it to offset. The wheels are not at an angle to its travel so they force it back. They impart some energy which usually makes it go slightly past the centre line. Under normal circumstances this damps out very quickly and the thing restores back to its steady state. But the swaying itself should be seen as a pendulum about the tow hitch, so the whole caravan is physically – and it tends to sway by rolling the tyres slightly and so on.

Thank you. While I'm asking and there's a pause – and is that so even if the coach is going faster than the caravan? --- Yes, I think it would be the same, provided there was no entanglement. In other words provided, for example, the caravan didn't penetrate the side of the coach and thereby become entangled with it, and had that happened, this accident wouldn't have happened this way in my view. It would simply, as it were, bounce of the coach because the normal degree of swaying of the caravan is quite small, and from all accounts it seems to me that that was the case in this instance. It was a relatively gentle swaying. It would have just simply gone bump, made a banging noise and gone back to its normal position."

91 As to his view about the final stages of the accident, and by reference to exhibits 1 to 9 inclusive, Mr Simms at (T139) described those final stages as follows:

"Basically as the vehicles left the road, the vehicles at this stage now I'm referring to all the vehicles, the coach, the caravan and the Toyota – have left the road together in combination. It's my opinion that the Toyota at that stage was to some lesser or greater extent wrapped around the front of the coach. They've left the road in combination in that format and have been separated after they left the road, so they haven't separated before they left the road. It's my view they separated after they left the road, and that the distortion of the chassis that can be seen occurred during that process that final separation process".

92 And then later at (T140) on the question of the "wrap around" of the Land Cruiser across the front of the coach, Mr Simms said this:
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"… the very fact that the vehicles have, as it were, swerved off the road to the right indicates that some force was being applied to them collectively to cause them to do so. The only other alternative would be that the coach driver steered the coach off the road, and the evidence in the other photographs is that that is not the case, the evidence being that the steering wheels of the coach are turned to the left rather than to the right. So the very fact of the vehicles being off the road to the right at the end of some curved skid marks said to me that forces were applied to the coach to cause it to go off in that direction. It is my opinion that the likely source of those forces is the Land Cruiser being progressively angled across the front of the coach, and what that means is that the coach has contacted the Land Cruiser towards the rear, causing it to turn to the right. The Land Cruiser is now turned to the right, and as a consequence is acting as, shall we say, defacto sort of steering wheels for the whole collection of vehicles and it's steering it in that direction."

93 As to the coach driver's inability to control the vehicle and the coach veering significantly to the right, and as to the consistency of that result with his theory, Mr Simms said:

"Yes, that's very consistent with my theory that the coach contacted towards the rear of the Land Cruiser, caused the rear of the Land Cruiser to be pushed to the left. That in turn caused the Land Cruiser to steer – swerve to the right. If you swing to the right, the instant – bearing in mind these vehicles at this stage are travelling probably something in the order of 80 plus kilometres per hour, the instant the vehicle veers to the right at all, that will be a self reinforcing process, so the more it goes to the right, the more it goes to the right, it'll veer across. The Land Cruiser has then, in my view, angled itself across the front of the coach and has steered the coach – in fact steered the whole group of vehicles collectively off the road to the right."

94 Mr Simms's theory about how the accident occurred seemed to me to be plausible. There is no doubt, and close examination of the photographs shows this, that the coach's front wheels are turned to the left, in spite of the fact that it veered to the right. Mr Simms's theory seems to support this.

95 In cross-examination counsel for Sampsons Tours suggested that Mr Simms's opinions had been reached with him turning a blind eye to

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any evidence that was not in support of his theory. Mr Simms dealt quite well with this. It was clear that Mr Simms's theory is very heavily based upon the conclusion that the heavy black rubber mark was made by the coach.

96 The line taken by counsel in cross-examination was that Mr Simms ignored those witnesses who had said that it was the caravan that swayed into the coach.

97 In cross-examination counsel for Sampson Tours put to Mr Simms that the Land Cruiser utility came across the road with sufficient force to force the coach off the road. Mr Simms's view was that the coach hit the Land Cruiser in such a way that the Land Cruiser was turned across the coach's path. He expanded upon this theory and explained that one needs to accept that the wheels of the caravan, in a sense, were the fulcrum of the force. Thus, if I understood his evidence correctly, it could have been that there was an impact on the right rear of the caravan which forced the rear of the caravan to the left swinging on the wheels, which in turn forced the front of the caravan at the hitching point, and therefore the rear of the Toyota to the right, upon which time and at which spot there was a collision with the coach. That impact forced the rear of the Toyota back to the left and it was then that the Toyota became a steering force for the front of the coach.

98 On behalf of the defendants Altham and Sampsons Tours Pty Ltd, expert evidence was called from William Jack Apgar who is a mechanical engineer. He wrote two reports which became exhibits 19 and 30. Mr Apgar appeared to be a well qualified expert. He appears to have had access to the same sources of information as did Mr Simms. He had witness statements and photographs provided to him.

99 I think it is worth noting that neither Mr Simms nor Mr Apgar attended the accident scene after it occurred nor have they since. Each was engaged by their respective clients well after the event. Each appeared to lament the lack of a properly prepared plan of the accident scene containing scale measurements of significant features and marks.

100 Mr Apgar emphasised that the collision and aftermath in this matter happened very quickly, within a few seconds. Given the estimates of speed are that the utility and caravan were travelling at approximately 80 kilometres per hour, and the passing coach at about 100 kilometres per hour, then Mr Apgar's observation can be accepted.

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101 Having heard Mr Apgar and considered his evidence with that of Mr Simms, it seems to be common ground that the mechanism of the vehicles going off the road and ending in a tangled mess was that the Toyota utility, towing the van, got caught up with and under the front of the coach. In seconds the utility steered/forced the coach off the road to the right. Once the utility reached the dirt or gravel verge, greater surface resistance occurred and the coach reared up and then ran over the rear half of the utility.

102 It is the respective locations on the roadway of the utility with caravan, and the coach, that are contentious. Each party alleges the other was over the centre line when contact occurred between the coach and caravan and coach and utility.

103 As will be apparent in my remarks about the evidence of Mr Simms, the theories about the position of the respective vehicles on the road are based to a significant extent, although not entirely, upon a view about the causation of the making of a black tyre mark on the roadway. This tyre mark, which is prominent, is visible in two photographs, namely exhibit 3 and exhibit 8.

104 Mr Simms' opinion was that the tyre mark was made by the left hand front wheel of the coach as it travelled towards the right whilst being turned towards the left.

105 Mr Apgar's view is that the mark is left by the left hand rear tyre of the utility when, with the weight of the front of the coach bearing down on the tray, and when the utility got caught under the front of the coach, and it slid partially sideways as the tangle went off the roadway.

106 As will be apparent in these remarks the significance of the nomination of a particular vehicle as being the cause of the tyre mark is put as the basis for an inference as to the position of that vehicle on the road prior to the collision. At least this is the way the case was fought although how one can be certain about the behaviour of vehicles travelling at this speed is quite problematic to my mind.

107 In forming his view that the dark tyre mark was made by the left hand rear wheel of the utility and in explaining why he reached that view, Mr Apgar placed some significance upon the fact that the tyre mark was a single mark. At T390, at about C Mr Apgar put it as follows:

"The major unusual feature about this particular case is the fact that there is one single dark tyre mark, very, very dark

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striations, unusual, and the only circumstance that I could think of where that is possible is if the vehicle that made the mark was at a sufficient angle so that the front tyre didn't make a mark, because it steered into the motion. So the angle wasn't large at the front, that the back tyre only is making a – is a large slip angle and that it's being possibly pushed to one side, possibly has engaged the coach enough that its actually getting some of the weight of the coach on it, because it is an exceptionally dark mark. I make this point; that because the tray is wider than the chassis of the utility, it would tend to tip up until the coach bumper would bear on the chassis. So that's another reason to believe that if you push on it you would tip it up. Again, it would lift these tyres up and would push the other tyres down. (He referred there to the right hand tyres versus the left hand tyres). So you have a situation – we have an exceptionally dark mark, and only one, and that's unusual."

108 In further explaining the behaviour of the coach Mr Apgar pointed out that the "steering is quite slow. You have to turn the wheel quite a few times – the steering wheel – to get a significant steering angle".

109 Mr Apgar pointed out that once the coach driver was aware that the coach was being moved to the right, allowing for reaction time and the slowness of the steering, it is not clear when the front wheels would have commenced to counteract and turn left. All that one can say is that the driver was attempting to steer to the left before the "final position of the coach" (T392).

110 In Mr Apgar's view, Mr Simms' opinion that the black mark is from the left hand front tyre of the coach "going – yawing or sliding down the road, turning left and going right" is unlikely to be so because, given the weight of the coach, his view was it was unlikely the coach would not overcome the push from the utility. He said: "Its unlikely that if he had steered left that he would have not gone left." He clarified at T394:

"If the driver of the coach steered left early in the piece he would have gone left, if he hadn't already been pushed out of line by the utility; in other words the time delay between…so by the time he had already gone off the shoulder he was probably still turning the steering wheel but initially you wouldn't have expected him to have developed much of an angle with his steering to left; therefore if you were trying to steer to the left a

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clear indication to me is that it was the utility pushing him off to the right.

111 In other words Mr Apgar does not think that the left hand inclination of the front wheels of the coach would be likely to have started to be relevant until the slow steering of the coach had impacted upon the incident and, factoring in the driver's reaction time, this is a period of sufficient time for the coach to be already off the road. Thus it is unlikely to have left the black mark. As he put it at T394 following a question from counsel:

"Well why in the context of this case on your theory would you not expect to have marks from both (ie coach and utility).

Again, we're getting into theoretical things which may not be relevant at all. What it appears to me is that the driver did not have time enough to create a large enough angle to resist the force applied by the utility; therefore there was no mark. But had they been continuing for quite a long distance and without going off the road that may have been possible. But that's all speculation."

112 Mr Apgar, by reference to exhibit 8 being the more distant photograph of the dark tyre mark, explained that the commencement of the making of that mark would have occurred some time after there had been initial contact between the vehicles. As a "guesstimate" (T396) Mr Apgar's view was that contact between the vehicles would have occurred about 30 metres before the black tyre mark commenced to become visible. Mr Apgar explained this as follows (T396):

"In your opinion does the tyre mark commence precisely at the point of impact, or does it commence at some other time.

Again, with tyre marks, including skid marks, you always have a period at which you have to heat the tyre up. … In the case of a tyre that is developing a large slip angle, you have a cooling effect; in other words, the tyre is rotating so you don't have that localised heating, you don't have the small mass that is heated and at the same time you have the tyre rotating. So a tyre with a diameter of about 700 – well, over 2 metres of circumference to help cool the tyre – its like a disc brake. You have most of it not in the brake. That's why they're so effective at cooling. So it takes a while to heat the tyre up. The process could also be progressive in that the angle is increasing. You would expect

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that the initial impact would have happened some time before the commencement of the tyre mark."

113 Mr Apgar explained that a distance of about 30 metres would take about a second for the vehicles to travel in the circumstances.

114 The witness was then taken to the question of the position of the coach and utility on the roads and this was initiated by a question, clarified by myself at T399 as follows:

"Your case is (addressing Mr Oliver) if that mark is made by the left rear tyre of the Ute, therefore the left side of the coach (? right side) was well over the white line on the right hand side as it was passing and, in fact, so far over, would you say, that the right hand part of the coach must be just about off the road – off the bitumen that's what you are saying?---I am."

115 Mr Apgar was then asked where he thought the right hand wheels of the coach would have been at the point of the initial collision and he said at T339:

"Again following that line, I would estimate, or roughly calculate, that the left side of the utility or left rear tyre would have been about, say, 700, 750 millimetres to the left of the centre line. Therefore, that would place the coach well to the right, just inside the right lane line. So the right side of the coach would be just inside the right lane line. Again, stacking that all up, projecting back that kerb line, the point of impact would have started when the tyre position that created that dark line was about a third or a quarter of the way into its line, so that the majority of the vehicle was over the line at the point of impact.

Of which vehicle?---The majority of the utility. If it had come across at an angle the majority of the utility would have already crossed the centre line."

116 Mr Apgar's view was that the right hand wheels of the coach at the time of initial impact were near the "right or northern most lane line, the side of the – the edge of the lane line – the solid white line".

117 Mr Apgar then agreed with the view of Mr Simms that at the commencement of the tyre mark, which would have been about 400 millimetres to the left of the central dividing line, that the front of the

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coach at that spot would have been "going off the paved surface. It would have definitely been to the right of the right most lane line" (T402).

118 But Mr Apgar's view was that "impact would have occurred earlier at a time when the right wheels would probably have been on the paved surface".

119 Thus it was that Mr Apgar's evidence was to the effect that at the point of collision the utility was well over the centre line and therefore the collision occurred as a result of the negligence of the driver of the utility.

120 In cross-examination Mr Apgar stated that in spite of the lack of accurate police diagrams and an opportunity to inspect vehicles himself, that he had:

"Made it very clear that I have not had enough information to draw up firm conclusions, but what I have attempted to do is put together the information that's available in such a way that other persons can make decisions about whether its that accurate or that useful or not."

121 He felt that the conclusion he had reached "fits pretty well" with the materials that he was provided, such as they were. He had a "fairly high confidence level" that his view fairly reflected what had occurred.

122 Counsel then put to Mr Apgar that he had set aside the evidence of Mr Hasson who was driving in a following vehicle, where he had stated that the coach had tried to pass the Toyota utility and caravan at too close a distance. Mr Apgar seems to agree and it is clear that his view is inconsistent with the evidence of that eye witness.

123 Mr Apgar agreed that the facts supported the proposition that it was the caravan that first impacted with the side of the coach before the utility was involved (T412).

124 Counsel then put to Mr Apgar, Mr Simms' theory that "the coach pulled to its left and struck somewhere around the right rear of the utility tray" which Mr Simms sees as "resulting in a jack knifing, and a wrapping of the utility around the front of the coach".

125 Mr Apgar agreed that he had a different theory and counsel then put that if Mr Simms' theory was correct:

"it explains…why the vehicles ended up on the right side of the road, off the right side of the road doesn't it?---Yes.

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Can you explain on your theory why the vehicles end up going off onto the right side of the road?---Again both theories are possibly correct. I mean either theory is possibly correct."

126 That response from Mr Apgar seems to me to reveal the essential difficulty about the expert evidence in this case. That is a difficulty which is exacerbated by the lack of accurate information in the form of plans and measurements and the like.

127 In explaining how the two theories could both be correct Mr Apgar said this at T417:

"Again, with the model, if the vehicle, if it impacted the right rear of the utility against the left front of the coach, it is conceivable that the driver was able to hold it off for the two or three seconds or four seconds that it took to leave the road – sorry leave the very dark tyre mark. It could have been coming across. It could have done what made the mark that was observed. What – made the mark that was observed. It would have then come across in front of the coach. It could have stayed there for the two, three or four seconds necessary. In my theory it could have also done the same thing; stayed there and moved across and only then come across entirely after it hit the softer material. So both theories could produce the same result; one I have a little problem with because I think once you start a jack knife it happens very very fast. But it is conceivable that the driver was able to steer into it and hold it without recovering for the two, three or four seconds it took.

Which driver?---The driver of the utility."

128 Mr Apgar at T421 then gave a further explanation about how the two vehicles ended up on the right hand side of the road when he said:

"I think its pretty well accepted from the statements that the caravan hit the coach first. Now, if he realised that both vehicles are moving laterally when the caravan hits, there is going to be a bit of a bounce and a recoil, whatever, and if it bounces off of the coach, its going to abruptly push the rear of the utility to the left, and if the driver of the utility is not alert he is going to be suddenly pointing to the right. So Yes, this initial impact is going to tend to cause him to rotate or yaw to the right and suddenly he is going to the right, and even though he attempts to steer to the left he still goes to the right."

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129 Mr Apgar was then cross-examined on Mr Simms' suggestion that the driver of the coach had miscalculated the distance between himself and a single central white line prohibiting passing that was coming up on an approaching rise. The theory there was that out of concern at not being able to see what was coming behind the rise the coach driver prematurely turned into the utility and caravan.

130 I think this is an unlikely event in all the circumstances of the case. There is no evidence from any witness to support this manoeuvre.

131 I then raised a question of the effect of the passing speed of the coach upon the assumptions (at T424):

"We have been discussing the caravan hitting the coach. Does the amount by which the speed of the coach is exceeding that of the caravan – for the sake of the discussion, say 20 kilometres – does that differentiation in relative speed have any effect upon the behaviour of the caravan coming into contact with the coach – that is, the coach is moving past at 20 kilometres an hour, say?---It's a good question, in that if there is a differential of speed then what you do is you project the force generated –

Does it have any effect upon the behaviour of the caravan after impact?---If there's engagement, you could – the coach moving faster could actually cause a caravan to move to its left; in other words it tends to – the force is parallel to its centre line but to the right of its centre of mass, so therefore it would tend to cause it to rotate to its left – to its left. So Yes, if…

Which would yaw the rear of the Ute to its left and the front of the Ute to its right?---Correct.

132 Counsel for Connector Drilling then embarked upon a challenge to Mr Apgar's interpretation of the materials provided. I do not propose to detail the methodology but counsel suggested Mr Apgar had been over-speculative and that he had not based his views on soundly thought through assumptions.

133 Mr Apgar agreed at T440 that if the observations of Mr Hasson were correct, then his [Mr Apgar's] theory about how the accident occurred is "scuttled".

134 In re-examination Mr Apgar made a further interesting observation about the source of the tyre marks and why he did not think the prominent

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mark was made by the left hand front wheel of the coach. His view was that if the coach had made that mark, there would have been more than one tyre mark.

135 As to this I must say that if it is accepted that the utility is going sideways or partially sideways somehow or other under the front of the coach, then it is difficult to see if the dark tyre mark was made by the coach, how the utility did not leave any significant tyre marks. The coach was not going sideways but its left front wheel may have been turned to the left whilst going to the right. Yet the utility is to some or other extent going sideways on the bitumen with some of the weight of the front of the coach upon it. Conversely of course some of the weight at the front of the coach is off its front wheels.

136 Having heard the two experts give their evidence it is to be observed that each of them seems to me to have done their best given what was provided. They are comparably qualified and experienced as witnesses but have reached very different views as to the source of the tyre mark.

137 On balance I prefer the opinion of Mr Apgar that the very dark tyre mark was made by the left rear wheel of the utility "steering" the front of the coach across to the right as the utility was pushed to some degree sideways, being caught under the front of the coach.

138 However it is difficult to extrapolate from the estimated commencement of that tyre mark, where the utility was on the roadway. By the time the mark appears there has been contact for a relevantly lengthy period of time and probably some movement to the right.

139 And further it is difficult to be certain why the utility moved to its right. However, it must be related, it seems to me, somehow or other, to the contact between the coach and the caravan. Where the coach and caravan are on their respective lanes in the last moment before that contact is uncertain.

140 The caravan had been swaying and of that there is no doubt. And it seems to me the coach was passing close to the centre line. As I have already commented earlier in these remarks, assuming each vehicle was travelling in the centre of its own lane during the passing manoeuvre, there should have been between 90 and 110 centimetres between them. There would have been a greater distance than that if one or both vehicles had moved to the outer edge of its own bitumen in its lane. There clearly was plenty of room for a safe passing manoeuvre.

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141 Because there was the contact about which the evidence speaks then one or both of the drivers was driving too close to the centre lane. One or other may have been over that line. The question is does my acceptance of the opinion of Mr Apgar bear upon the conclusion as to where these vehicles were in their lanes at the time of contact.

142 In my view the following observations can be made.

143 At the time of the incident all vehicles were travelling at a significant speed. The coach was overtaking at approximately 100 kilometres per hour. The utility and caravan were travelling at between 80 and 85 kilometres per hour.

144 The incident of the vehicle's contact, entanglement, and veering off the sealed road occurred over a very brief time, perhaps only a few seconds.

145 The "behaviour" of all three vehicles following that initial contact between the coach and the caravan was unforeseen, indeed unforeseeable, and I think this does colour witnesses' observation.

146 The direction the front end of the Toyota utility was facing at the moment its left hand rear tyre commenced to leave a tyre mark on the road is uncertain. The utility was travelling due west prior to contact. Upon contact between the coach and the caravan the evidence suggests the direction of the utility was affected. There may have been correction or over-correction by the driver. Presumably by the time the coach struck the right hand side of the utility such as to become entangled with it, the front of the utility was facing some degrees north of west.

147 To say that because the left hand rear tyre mark of the utility is 400 millimetres south of the centre line, and therefore the right hand side of the utility was "longitudinally" over the line (ie the front of vehicle facing west), is to ignore the effect of the contact between the coach and the caravan in the very brief period before the tyre mark started to be left on the road by the utility's left hand rear wheel.

148 The tyre mark was made during the happening of the collision. I am not convinced where the utility was facing at the time of collision. It may have been being driven too close to, or over the centre line. Or it may have been forced there as a result of the dynamics or mechanics of the accident itself.

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149 It is difficult to see how it can be inferred that the location of the Toyota on the road by reference to the centre line can be inferred merely from the location of the tyre mark. That is because it is not possible to say where the utility was at the time of contact which is some significant albeit brief time before the tyre started to leave the mark.

150 In his submissions counsel for Connector Drilling, observed that, overall, the evidence of the expert witnesses Messrs Simms and Apgar was of limited value to either of the parties.

151 I am inclined to agree with that submission for the reasons I have already spelt out. Counsel urged me to place weight on the evidence of the eye witnesses and his submission was, that the most important witnesses were Whitman, the driver of the utility, Altham, the driver of the coach and Hasson who was following the vehicles at the critical time. Counsel urged me to place little weight upon other witnesses, especially passengers, in that apart from variations between their evidence and their prior statements, they had little reason to pay attention until events were unfolding. Counsel submitted that the evidence of Hasson should be given great weight in my deliberations and the Court should accept that the coach was driving with its left wheels on the centre line whilst passing. Counsel also drew particular attention to regulation 124(a) of the Road Traffic Code which obliges a driver of an overtaking vehicle to:

"pass the vehicle at a sufficient distance to avoid a collision with that vehicle or to avoid obstructing the path of that vehicle."

As counsel put it, if the evidence was accepted, then Altham the driver of the coach, did not allow sufficient room while passing. Therefore, Altham was primarily at fault.

152 Counsel for Sampsons Tours, the operator of the coach made his submissions upon the basis that the acceptance of Mr Apgar's evidence was determinative of the matter. For the reasons I have already stated I do prefer Mr Apgar's evidence, his theory, over that of Mr Simms but I do not think it is determinative.

153 Counsel stressed that Altham was a professional driver and that he would know where he was on the road. He dismissed the evidence of Hasson because he was some distance behind and was a friend of the driver of the utility. He appeared to accept the evidence of passengers in the coach as to the location of the coach.

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154 Counsel asserted that even if the position of the coach's wheels were found to be on the centre line this was not fatal to his case because of the Ute driver Whitman's ignorance of what was behind him and his failure to keep a proper lookout.

155 In my view this accident was caused by a combination of factors each of which amounts to some degree of negligence of both the Toyota utility driver Whitman and the coach driver Altham.

156 Mr Whitman was not keeping a proper lookout, and he was oblivious to the presence of the coach until contact was made. He was also not making sufficient allowance in his position on the road for the fact that his caravan was swaying.

157 Mr Altham of course was driving a vehicle which was overtaking. He had a statutory obligation to pass the Toyota utility and caravan at a sufficient distance to avoid a collision with those vehicles.

158 Indeed, given there were two vehicles that Mr Altham was seeking to pass "a high degree of care" was required by Mr Altham. (Dislieff v Connell (1998) 27 MVR 307).

159 At common law it would seem that Mr Altham's duty of care to keep Mr Whitman under observation as he contemplated and executed his passing manoeuvre significantly exceeded Mr Whitman's duty to check for vehicles behind him (Knowles v Dubla (1997) 25 MVR 134).

160 The overtaking driver should also consider the possibility the other driver may be surprised. Balcomb v Morris & Anor [2003] WADC 80; reported in (2003) 32 SR (WA) 104 the Court considered the situation of a truck overtaking a car and caravan and in the trial Judge's comments on the obligation of the truck driver to pass safely his Honour said:

"The obligation necessarily involves avoiding causing the drivers of other vehicles to be alarmed or to take evasive action and avoiding causing vehicles such as caravans to sway dangerously either by the direct result of passing or by causing other drivers to brake heavily."

161 As I have said Mr Altham was a professional driver albeit of modest experience. He knew the road well. He had passengers. He had passed Hasson's truck and trailer some short time before the collision. He was the passing driver.

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162 Mr Altham, without making sure that Mr Whitman knew he was there, commenced to overtake whilst driving too close to the caravan. He knew the caravan was swaying. He drove so close to the caravan that the caravan hit the coach as he drove through and this was the triggering event of the entanglement that comprised the collision. Precisely how this occurred is unclear but the collision was unexpected by Mr Whitman and the utility was either forced or over-corrected across the road into the path of the coach resulting in the entanglement. There is no doubt that if the coach had been driven by Mr Altham more to the north of the utility as it passed, perhaps if its wheels had even left the bitumen, then there would not have been any accident.

163 In my view liability should be apportioned in this matter because both Mr Whitman and Mr Altham were guilty of negligence.

164 In my view an apportionment of liability to the extent that Sampsons Tours Pty Ltd is 70 per cent responsible and Connector Drilling is 30 per cent responsible for the accident would be a reasonable apportionment.

165 Given the variety of relief sought in these two actions, I shall hear from counsel as to appropriate orders.