DAVIES v Tomkins
[2009] WASCA 228
•18 DECEMBER 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: DAVIES -v- TOMKINS [2009] WASCA 228
CORAM: PULLIN JA
BUSS JA
NEWNES JA
HEARD: 5 NOVEMBER 2009
DELIVERED : 18 DECEMBER 2009
FILE NO/S: CACV 1 of 2008
BETWEEN: LAURENCE ARTHUR DAVIES
Appellant
AND
ANNETTA TOMKINS
First RespondentGRAHAM LESLIE OLIVER
Second Respondent
FILE NO/S :CACV 2 of 2008
BETWEEN :FREDERICK RISELY VENABLES
MARGARET CATHERINE VENABLES
NEIL GEORGE VENABLES
AppellantsAND
COLIN DAVID MULCAHY
First RespondentCOLIN DAVID MULCAHY and PAMELA GRAHAM as trustees for THE MULCAHY FAMILY TRUST trading as KAKODA HEAVY HAULAGE
Second RespondentsANNETTA TOMKINS
Third Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :MARTINO DCJ
Citation :MULCAHY & ANOR -v- TOMKINS & ORS [2007] WADC 212
File No :CIV 750 of 2004, CIV 136 of 2007
Catchwords:
Tort - Negligence - Duty of care - Motor vehicle accident - Standard of reasonable care - Breach of duty - Turns on own facts
Legislation:
Nil
Result:
CACV 1 of 2008
Appeal dismissed
CACV 2 of 2008
Appeal dismissed
Category: B
Representation:
CACV 1 of 2008
Counsel:
Appellant: Mr B L Nugawela
First Respondent : Mr J G Staude
Second Respondent : Mr J G Staude
Solicitors:
Appellant: S C Nigam & Co
First Respondent : Brian C Sierakowski
Second Respondent : Brian C Sierakowski
CACV 2 of 2008
Counsel:
Appellants: Mr T Lampropoulos SC & Mr J L H Formby
First Respondent : Mr J R Criddle
Second Respondents : Mr J R Criddle
Third Respondent : Mr M W Schwikkard
Solicitors:
Appellants: Formbys
First Respondent : SRB Legal
Second Respondents : SRB Legal
Third Respondent : Jackson McDonald
Case(s) referred to in judgment(s):
Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540
Illawarra Area Health Service v Dell [2005] NSWCA 381
Koehler v Cerebos (Australia) Ltd [2005] HCA 15; (2005) 222 CLR 44
Leishman v Thomas (1958) 75 WN (NSW) 173
Manley v Alexander [2005] HCA 79; (2005) 80 ALJR 413
Mulligan v Coffs Harbour City Council [2005] HCA 63; (2005) 223 CLR 486
Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341
Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty (The Wagon Mound (No 2)) [1967] 1 AC 617
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330
Sibley v Kais [1967] HCA 43; (1967) 118 CLR 424
State of New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486
Sydney County Council v Dell'Oro [1974] HCA 47; (1974) 132 CLR 97
Thompson v Woolworths (Q'land) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40
PULLIN JA: I agree with Buss JA.
BUSS JA: On 1 December 2003, Graham Oliver (Mr Oliver), the second respondent in appeal CACV 1 of 2008, was driving a prime mover, with a dolly and trailer attached, in a northerly direction on Sues Road, south of Bunbury. Mr Oliver was transporting a large concrete silo which was attached to the trailer. His vehicle was accompanied by a police escort vehicle and three pilot vehicles. One of the pilot vehicles was driven by Annetta Tomkins (Ms Tomkins), the first respondent in appeal CACV 1 of 2008 and the third respondent in appeal CACV 2 of 2008.
Also on 1 December 2003, Laurence Davies (Mr Davies), the appellant in appeal CACV 1 of 2008, was driving a Freightliner prime mover, with a trailer attached, in a northerly direction on Sues Road.
At about 7.00 am, while Mr Oliver's vehicle was on a bridge on Sues Road, known as Sues Bridge, Mr Davies' vehicle collided with the rear of Mr Oliver's vehicle. The bridge traverses the Blackwood River.
The vehicle being driven by Mr Oliver (which, for convenience, I will describe in these reasons as Mr Oliver's vehicle) was owned by Colin Mulcahy (Mr Mulcahy), the first respondent in appeal CACV 2 of 2008. Mr Mulcahy and Pamela Graham (Ms Graham) as trustees for the Mulcahy Family Trust, the second respondents in appeal CACV 2 of 2008, carried on business as haulage contractors under the name Kakoda Heavy Haulage. They used Mr Oliver's vehicle in the course of carrying on that business.
Mr Davies was employed by Frederick Venables, Margaret Venables and Neil Venables trading as FR & M Venables & Son (FR & M Venables), the appellants in appeal CACV 2 of 2008. They owned the truck being driven by Mr Davies. It is convenient, in these reasons, to refer to their truck as Mr Davies' truck. He was driving the truck in the course of his employment.
In District Court action CIV 750 of 2004, Mr Mulcahy and Kakoda Heavy Haulage (as first and second plaintiffs) claimed damages from FR & M Venables and Ms Tomkins (as first and second defendants) in negligence for loss allegedly suffered as a result of the damage caused to Mr Oliver's vehicle in the collision. FR & M Venables counterclaimed damages in negligence for loss allegedly suffered as a result of the damage caused to Mr Davies' vehicle. FR & M Venables also claimed
damages, and a contribution or indemnity in respect of the claims of Mr Mulcahy and Kakoda Heavy Haulage, from Ms Tomkins.
In District Court action CIV 136 of 2007, Mr Davies (as plaintiff) claimed damages from Ms Tomkins and Mr Oliver (as first and second defendants) in negligence for loss allegedly suffered as a result of injuries he sustained in the collision.
Orders were made in the District Court that the issue of liability in action CIV 136 of 2007 be determined as a preliminary issue and that this preliminary issue be determined at the trial of action CIV 750 of 2004. It was further ordered that the evidence adduced in each action also be evidence in the other action, and that the findings of liability made by the trial judge be findings in both actions.
The proceedings were tried before Martino DCJ. His Honour concluded that:
(a)the collision was caused by Mr Davies' negligence; and
(b)none of Ms Tomkins, Mr Oliver, Mr Mulcahy or Kakoda Heavy Haulage had been negligent.
Accordingly, the trial judge entered judgment in favour of Mr Mulcahy and Kakoda Heavy Haulage against FR & M Venables. His Honour dismissed the other claims.
In appeal CACV 1 of 2008 (Mr Davies' appeal), Mr Davies appeals against the trial judge's decision to dismiss his claim against Ms Tomkins and Mr Oliver. In appeal CACV 2 of 2008 (FR & M Venables' appeal), FR & M Venables appeal against his Honour's decision to dismiss their claim against Mr Mulcahy, Kakoda Heavy Haulage and Ms Tomkins. They also appeal against the finding of negligence made against them.
Sues Road and Sues Bridge
Mr Oliver and Mr Davies had driven on Sues Road on numerous occasions before the collision. Heavy vehicles used the road frequently.
From the perspective of a driver travelling in a northerly direction on Sues Road, the road descends from a hill as it approaches the Blackwood River. The precise distance from the crest of the hill to Sues Bridge was not established at the trial.
As a driver travelling in a northerly direction on Sues Road approaches Sues Bridge, there is a right‑hand bend of approximately 60 degrees.
Sues Road comprises two lanes, one for travel in each direction. From the crest of the hill to Sues Bridge, there are continuous double white lines in the centre of the road.
As a driver travelling in a northerly direction on Sues Road approaches Sues Bridge, there is a road, described in evidence as a loggers' road, about 400 m to the south of the bridge. The loggers' road leads to the left of Sues Road.
There is also a slip lane to the south of Sues Bridge. The slip lane enables a driver travelling in a northerly direction on Sues Road to turn left onto a road which leads to camping and picnic areas. The slip lane commences about 400 m to the south of Sues Bridge and terminates about 140 m to the south of the bridge, at the road which leads to the camping and picnic areas.
Sues Bridge comprises two lanes, one for travel in each direction.
At the time of the collision, the weather was fine and the visibility was good. However, the whole of the road at Sues Bridge was in shade from trees and bushes at each side of the road.
Mr Oliver, his vehicle and escorts
At the time of the collision, Mr Oliver had been driving trucks for about 14 years. He had travelled on Sues Road and Sues Bridge on numerous occasions. Mr Oliver had driven the vehicle he was driving on the day in question for more than five years. He held the requisite licence permitting him to drive a multi combination of road transport machinery on roads.
The silo attached to the trailer of Mr Oliver's vehicle had been raised to a height which permitted it to clear the railings on Sues Bridge.
There were 'oversize load' signs attached to the front and rear of Mr Oliver's vehicle. Red and green flags had been placed around the vehicle. There was a flashing light on the top of the prime mover.
The police escort vehicle was driven by Senior Constable Grantley Keenan. He had previously escorted hundreds of vehicles. In July 2002, he had completed an accreditation training course in the pilotage of oversized vehicles with Transport Forum WA Inc.
On the morning of the journey, Senior Constable Keenan measured Mr Oliver's vehicle and its load. The overall length of the vehicle was 25.8 m and the silo, as attached to the trailer, was 5.5 m high and 8.65 m wide. According to Senior Constable Keenan, the load was 'a very tight fit' on Sues Bridge (ts 59)
On 10 November 2003, Mr Mulcahy obtained a permit under the Road Traffic (Vehicle Standards) Regulations 2002 (WA) and the Road Traffic Code 2000 (WA) for the transport of the silo from Beenup to Bunbury. The permit specified the route to be travelled. This included Sues Road. It was a condition of the permit that Mr Oliver's vehicle be accompanied by one police escort and three pilot vehicles. It was also a condition that one of the pilot vehicles be at the rear of Mr Oliver's vehicle and at a maximum distance of 150 m from his vehicle.
Mr Oliver, Senior Constable Keenan and the drivers of the three pilot vehicles carried UHF radios for the purpose of communicating with each other. They used channel 40 which is a channel used generally by truck drivers. Mr Mulcahy also accompanied Mr Oliver's vehicle. He drove in a vehicle ahead of Mr Oliver's vehicle. Mr Mulcahy also carried a UHF radio that was tuned to channel 40.
In the early 1990s, Ms Tomkins commenced work as a self‑employed driver of a pilot vehicle. In 2001, she completed a training course in the pilotage of oversized vehicles with Transport Forum WA Inc and became an accredited pilot under the Road Traffic Code.
On the morning in question, Ms Tomkins was driving a Nissan four‑wheel drive tray back vehicle. On its roof was a sign which read 'Oversize Load Ahead' in letters 600 mm high. On each side of the sign, there was an amber flashing light.
Mr Davies and his vehicle
Mr Davies had been driving heavy haulage trucks for about five months before the collision. For about six weeks before the collision, he had driven trucks on Sues Road about three times a day, five or six days each week. Before that period of about six weeks, he had driven on Sues Road on numerous occasions. For about two and half to three years before the accident, he had held a licence to drive heavy combination vehicles on roads.
Mr Davies' vehicle was about 20 m in length and its total weight was about 42 ‑ 43 tonnes. He carried a UHF radio that was tuned to channel 40.
Mr Oliver's approach to Sues Bridge
Mr Oliver gave evidence that he saw Sues Bridge when he was about 200 m from it. He slowed his vehicle to about 20 km an hour. He then slowed to about 5 km an hour immediately before entering the bridge.
As Mr Oliver approached Sues Bridge, Senior Constable Keenan parked his vehicle to the north of the bridge. He alighted with his UHF radio. Senior Constable Keenan used the radio to communicate with Mr Oliver. He told Mr Oliver that he was approaching the bridge correctly.
Communications between Mr Oliver and Ms Tomkins
Mr Oliver gave evidence that when he was travelling down the hill on his approach to Sues Bridge he suggested to Ms Tomkins, by UHF radio, that she should be at least 500 yards or 500 m behind his vehicle. He said he wanted Ms Tomkins to be near the top of the hill.
The distance suggested by Mr Oliver to Ms Tomkins exceeded the maximum (150 m) specified for the rear pilot vehicle in the permit issued by the Main Roads Department. However, Mr Oliver's view was that 150 m from his vehicle was too close for the rear pilot vehicle. According to Mr Oliver, he told Ms Tomkins, in substance, that he wanted her to move back because he did not want to 'wear a motor bike'. He denied asking any of his pilots to assist him in lining up his load or to check his load as he drove.
Ms Tomkins gave evidence that as Mr Oliver approached Sues Bridge, he asked her to line up the rear of his load with the bridge. Ms Tomkins said that she gave him directions, as requested, by UHF radio.
Ms Tomkins also gave evidence that Mr Oliver requested her to move back as he did not want to 'wear a motor bike'. She said that although she was a safe distance from the rear of Mr Oliver's vehicle when he made this request, she commenced reversing away from his vehicle.
Mr Davies' approach to Sues Bridge
Mr Davies gave evidence that he was travelling at about 100 km an hour on Sues Road. About 1 km before Sues Bridge he engaged the Jake brake. A Jake brake uses exhaust from the engine to provide a braking effect. Mr Davies said that, based on his experience, the Jake brake would hold the speed of the vehicle at 100 km an hour while it travelled down a hill.
Mr Davies estimated that when he first saw Ms Tomkins' pilot vehicle, it was about 200 m ahead of him. Her vehicle appeared to be in the middle of the road. It was either stationary or moving extremely slowly. He applied his brakes 'to a degree' while he assessed the situation.
Mr Davies said that he then heard a female voice on his radio warning that something was ahead. He decided that 'full heavy braking' was not the best course of action because the pilot vehicle was in the middle of the road and there was a right hand bend ahead on a descent. He knew there would be a danger ahead of Ms Tomkins' vehicle, but he could not see the danger.
Mr Davies said that he decided to avoid Ms Tomkins' vehicle by deviating around it in the slip lane. As he entered the slip lane, he was braking reasonably firmly. He had engaged the foot brake and, as he approached the rear of Ms Tomkins' vehicle, he also engaged the trailer brake. He said that he wanted to reduce speed without causing his vehicle to roll over or the trailer to jackknife.
According to Mr Davies, he had travelled about 200 m after hearing the first message on the radio when he heard a second message telling him to stop.
As Mr Davies passed Ms Tomkins' vehicle, he returned from the slip lane to Sues Road. He then saw Mr Oliver's vehicle on Sues Bridge. Mr Davies said that he was about 100 m ‑ 120 m from Mr Oliver's vehicle when he first saw it. He then applied his foot brake as forcefully as possible. He was, however, unable to stop before colliding with the rear of Mr Oliver's vehicle.
Senior Constable Keenan gave evidence that after he had alighted from his vehicle, to the north of Sues Bridge, he heard Ms Tomkins say on the radio words to this effect:
Good morning, northbound, I will get you to back it right down. We have got a wide one about to cross the bridge ahead of you. Prepare to come to a stop.
Senior Constable Keenan said that, about 20 seconds later, he saw Mr Davies' vehicle. He estimated the vehicle's speed to be between 90 km ‑ 100 km an hour. At about that time he heard, on his radio, Ms Tomkins almost scream 'slow down'. Mr Davies' truck then disappeared from Senior Constable Keenan's view, behind Mr Oliver's vehicle.
Evidence of distances: the trial judge's findings
Various witnesses who were driving vehicles on Sues Road in the vicinity of the collision gave evidence estimating the distance at material times between their vehicles and other objects or locations. The trial judge accepted that the witnesses gave these estimates to the best of their ability, but found that the estimates were not as accurate as measurements [117].
Evidence was also given of measurements taken after the collision. Although the trial judge accepted the accuracy of these measurements, they did not provide precise evidence as to the distance between a vehicle and an object on the day in question as a result of the inability of the participants to give precise evidence of the location of their vehicles at particular times [121].
Ms Tomkins' evidence: the trial judge's findings
The trial judge found that Ms Tomkins had been distressed by the collision and remained distressed by it at the time of the trial [123]. His Honour also found that this distress had affected her recollection of the events on the day in question, and made her recollection unreliable [124].
Radio coverage: the trial judge's findings
The trial judge found that the reception with the UHF radios on the day of the collision was good, but the coverage on Sues Road could be reduced by hills. In particular, when there is a hill between two radios, they may not be able to communicate with each other even though they are within the usual coverage range of 5 km ‑ 10 km [129].
Whether Mr Davies was aware that a large load was to be transported: the trial judge's findings
The trial judge accepted Mr Davies' evidence to the effect that he was unaware that a large load was to be transported on Sues Road when he commenced his journey. Although his Honour accepted the evidence of Mr Oliver and Ms Tomkins that they had told truck drivers of the proposed oversized load before 1 December 2003, their evidence did not establish that Mr Davies was one of the drivers to whom they spoke [130].
Warning to road users on the day of the collision: the trial judge's findings
Ms Tomkins gave evidence that when the front pilot vehicles reached Sues Bridge, one of the drivers (Mr Chapman) broadcast on his UHF radio that the bridge had been closed. Mr Oliver and Mr Davies did not hear any such message. Senior Constable Keenan did not recall such a message. Neither of the drivers of the front pilot vehicles was called as a witness.
The trial judge found that Ms Tomkins was mistaken in her recollection that Mr Chapman had given notice of the closure of Sues Bridge [131]. His Honour found that the first radio notification heard by Mr Davies was Ms Tomkins informing him of the load ahead. According to the trial judge, Mr Davies heard this communication shortly after he saw Ms Tomkins' vehicle [132].
Whether Mr Oliver asked Ms Tomkins to line up the rear of the load on the bridge: the trial judge's findings
After reviewing the relevant evidence, the trial judge concluded that Mr Oliver did not request Ms Tomkins to line up the rear of the load on Sues Bridge [139].
Position to which Ms Tomkins was reversing: the trial judge's findings
Ms Tomkins gave evidence that when Mr Oliver asked her 'to move back a bit', she was already at a safe distance but she commenced reversing away from Sues Bridge. Mr Oliver did not tell her how far to move back and she intended moving back only a short distance, perhaps two or three car lengths.
After reviewing other evidence, the trial judge found that upon receiving Mr Oliver's request that she move back, Ms Tomkins commenced to reverse. His Honour did not, however, accept her evidence that she intended to move back only a short distance. His Honour found that she intended to move back more than two or three car lengths. It was likely she intended to reverse to the crest of the hill, about 650 m south of Sues Bridge [141] ‑ [142].
The location of Ms Tomkins' vehicle when Mr Davies first saw it and the location of her vehicle when he passed it: the trial judge's findings
The trial judge made these findings in relation to the location of Ms Tomkins' vehicle when Mr Davies first saw it and the location of her vehicle when he passed it:
On two matters there was a variation in the evidence of [Ms] Tomkins and Mr Davies as to the location of [Ms] Tomkins' vehicle. One was the distance of the vehicle from the road leading to the camping and picnic areas. The other was how far onto the centre of the road her vehicle was.
In a report to an insurance company completed on 4 December 2003 Mr Davies made a rough sketch of the accident scene which shows [Ms] Tomkins' vehicle as being closer to the road leading to the camping and picnic areas than the location of which he gave evidence. The sketch is clearly a rough one and does not purport to provide precise locations. It does not cause me to doubt Mr Davies' evidence.
The indication by [Ms] Tomkins in her conversation with a police officer on Sues Road on the day of the accident that Mr Davies passed her approximately at the road leading to the camping and picnic areas is clearly incorrect. Both Mr Davies and [Ms] Tomkins gave evidence that he passed her to the south of that road and that he travelled in the slip road as he passed her vehicle.
On 15 January 2004 Mr Davies attended the accident scene with Mr Neil Venables and the solicitor for FR & M Venables & Son. That solicitor made a file note a copy of which is exhibit 13. Mr Davies told that solicitor that he was unable [to] tell him where the escort vehicle was stopped.
In my view neither witness was able to give reliable evidence as to the distance of [Ms] Tomkins' vehicle from the road leading to the camping and picnic areas. The distance was not measured. While [Ms] Tomkins went back to the accident scene and indicated where she felt her vehicle was that was almost two years after the accident and I am not satisfied that her recollection was accurate. I find that Mr Davies passed [Ms] Tomkins to the south of the road that leads to the camping and picnic areas, but I am unable to find the precise location.
It is my view that Mr Davies was in a better position to observe the location of [Ms] Tomkins' vehicle on the road than [Ms] Tomkins. In my view [Ms] Tomkins' evidence in cross-examination that she was parked in the middle of the road, with her right hand tyres straddling the middle white line also tends to suggest that she was more towards the centre of the road than indicated by her evidence-in-chief. Mr Davies' evidence was that the pilot vehicle appeared to be in the middle of the road. I find that [Ms] Tomkins' vehicle was near the centre of the road when Mr Davies passed it.
[Ms] Tomkins' evidence was that she was reversing her pilot vehicle away from Sues Bridge and that she stopped as soon as she saw a white flash which she recognised as the top of a truck. Mr Davies' evidence was that when he first saw [Ms] Tomkins' vehicle it appeared to be stationary or moving extremely slowly. Mr Davies agreed in cross examination by counsel for [Ms] Tomkins in action Civ 750 of 2004 that it was more than possible that he told the solicitor for FR & M Venables & Son that the pilot vehicle was stationary when he first saw it and that it was obviously what he believed at the time. I find that [Ms] Tomkins' vehicle was stationary when Mr Davies first saw it.
When Mr Davies saw [Ms] Tomkins' pilot vehicle he would not have been concerned with identifying his location along Sues Road. While the position he marked with the letter X is his estimate of his position when he first saw the pilot vehicle in my view Mr Davies is unable to provide precise or accurate evidence as to his location at the time. I am unable to make a finding as to the precise distance between Mr Davies' truck and [Ms] Tomkins' pilot vehicle when Mr Davies first saw the pilot vehicle.
I am unable to make a finding as to the precise distances from which [Ms] Tomkins' vehicle and Mr Oliver's vehicle would have been visible to Mr Davies. Based on the evidence of Mr Johnston and Dr Chew I find that each of those vehicles would have been visible to Mr Davies when he was approximately 225 metres from them [143] ‑ [151]. (emphasis added)
Mr Davies' speed: the trial judge's findings
The trial judge made these findings in relation to Mr Davies' speed at material times and his application of the brakes:
I accept Mr Davies' evidence that he was travelling at approximately 100 kilometres per hour on Sues Road, that he was travelling at approximately that speed when he first saw [Ms] Tomkins' pilot vehicle and that he then applied his brakes and assessed the situation.
In the insurance company report of 4 December 2003 Mr Davies wrote that he spotted the escort vehicle and proceeded to brake heavily, that he was able to avoid the escort vehicle and that he collided with the rear of the truck. In his evidence Mr Davies said that he braked firmly, not heavily and his evidence was that the use of the word heavily was an interpretation and that he did not fully apply the brakes.
As I have noted Senior Constable [Keenan] estimated Mr Davies' vehicle's speed to be between 90 to 100 kilometres an hour when he saw it. His evidence was that he was standing on the eastern side of the bridge at the northern end and he could see a Freightliner prime mover with a single trailer attached. It is clear that he was giving evidence about Mr Davies' vehicle.
Senior Constable Keenan's evidence was that approximately 20 seconds after he heard on his radio [Ms] Tomkins asking a northbound vehicle to slow down he saw a Freightliner prime mover with a single trailer attached travelling in a northerly direction on Sues Road behind Mr Oliver. He could see just past the concrete silo and up onto the road. His evidence was that he has had extensive experience over 14 years in using laser and radar speed measuring equipment and that he is able to estimate accurately the speed of vehicles.
He became extremely concerned as to whether the driver of the Freightliner would be able to stop before colliding with Mr Oliver's load.
At about that time he heard, again on his radio, [Ms] Tomkins almost scream 'slow down'. Mr Davies' truck then disappeared from Senior Constable Keenan's view, behind Mr Oliver's loaded vehicle. Senior Constable Keenan estimated that he observed the Freightliner travel a distance of approximately 50 metres.
His evidence was that he could hear the engine of Mr Davies' prime mover and from the pitch he could tell that it was neither accelerating nor decelerating. From the sound it appeared to be maintaining more or less a constant speed. He was listening for any sound of braking from Mr Davies' vehicle, hoping to hear that sound, but there was none. Senior Constable Keenan could not recall hearing any noise from Mr Oliver's vehicle, although, he said in evidence, common sense would say that there must have been some amount of noise from it.
Approximately five seconds later Senior Constable Keenan heard Mr Davies' vehicle collide with Mr Oliver's vehicle and saw debris being thrown onto the road from behind Mr Oliver's vehicle and steam rising up in the air. The front of Mr Oliver's truck moved forward a little and bounced.
In a statement on a police file on the accident made by Senior Constable Keenan on 17 March 2004 he estimated the period between his hearing [Ms] Tomkins' first call to the north travelling vehicle and seeing the Freightliner as being approximately 20-30 seconds.
I do not regard the fact that Senior Constable Keenan could not recall hearing noise from Mr Oliver's vehicle as surprising and I do not conclude from that fact that his evidence is unreliable or inaccurate. The noise from Mr Oliver's vehicle was noise he would have been expecting to hear and there is no reason for him to remember it. The noise of another truck approaching is something that I would expect to have attracted his attention and remember.
Both Senior Constable Keenan and [Ms] Tomkins gave evidence that they did not hear any braking sound from Mr Davies' vehicle. Senior Constable Keenan's evidence was that he did not hear any distinctive exhaust braking noise from the approaching truck nor anything resembling the squealing of rubber tyres on a bitumen surface. His evidence was that he was listening for those sounds because he was hoping to hear them, but he did not. I accept the evidence of Senior Constable Keenan and Ms Tomkins that they did not hear [a] braking sound from Mr Davies' vehicle.
Mr Davies' evidence was that from his experience the Jake brake held the speed of the vehicle at 100 kilometres an hour. The evidence of Senior Constable Keenan and [Ms] Tomkins that they did not hear the sound of braking is not inconsistent with Mr Davies' evidence that he engaged the Jake brake. If Mr Davies was travelling at a speed of less than 100 kilometres per hour as he passed [Ms] Tomkins and approached the bridge it may be that the Jake brake, although engaged, was not required to use the exhaust from the engine to keep the speed down.
I find that Senior Constable Keenan's estimate of the period of 20 seconds between hearing [Ms] Tomkins first call and seeing the Freightliner is not an accurate estimate. It is difficult to estimate accurately short periods of time, particularly when the person making the estimate is concerned about the possibility of an imminent collision. If Mr Davies was travelling at 90‑100 kilometres per hour for 20 seconds then he would have travelled 500-555 metres and it is likely that he travelled less than that distance between that call and Senior Constable Keenan first seeing him.
However Senior Constable Keenan appeared to me to be a careful witness who endeavoured to be as accurate as possible in his evidence. In reaching this conclusion I have not attached weight to the confident manner in which he gave his evidence. As a police officer he is by training and experience likely to be more familiar with giving evidence than other witnesses. I have reached the conclusion from the content of his evidence. His evidence that he did not recall hearing the sound of Mr Oliver's evidence [sic] is an example of evidence given as to his recollection, not as to what he expected to recall. I accept [Senior Constable Keenan's] evidence as to his estimate of the speed of Mr Davies' vehicle. I accept that it was a reasonably accurate estimate.
[Ms] Tomkins did not notice brake lights on Mr Davies' trailer, but it is likely that she was mistaken. [Mr] Davies was certainly aware of her vehicle, as he drove around it on the slip lane. [Ms] Tomkins' vehicle provided a clear warning of an oversized load ahead and it is likely that Mr Davies did apply his brakes to some extent. I find that Mr Davies did apply his brakes, but not heavily, and that it did not cause his speed to drop quickly. The reason he did not apply his brakes heavily, although he had a clear warning of the load ahead, was that he was concerned that if he did do so he might cause his vehicle to roll over or the trailer to jack knife, resulting in loss of control of his vehicle.
In my view the fact that the speedometer on Mr Davies' vehicle was jammed at 66 kilometres per hour does not indicate what the speed was at the time of the collision. How the speedometer became jammed is unknown. Nor do I regard Mr Johnston's calculation of the speed of Mr Davies' vehicle at the point of collision as being a reliable estimate. There are too many unknown factors for Mr Johnston's calculation to be reliable. These factors include how far the combined vehicles moved after impact, the extent to which the load moved separately to Mr Oliver's vehicle, the amount of metal contact there was on the road and the speed of Mr Oliver's vehicle at the time of impact. The fact that Mr Simms' opinion was that the speed of Mr Davies' vehicle at impact was greater than 30-40 kilometres an hour and that he considered there to be a good chance that 66 kilometres per hour is an approximate indication of the impact speed does not provide a basis for making a finding as to the speed of Mr Davies' vehicle at impact.
While I accept that it is likely that Mr Davies did apply his brakes heavily when he saw that he was to collide with the load in front of him the evidence of Senior Constable Keenan leads me to conclude that Mr Davies did not brake heavily until very shortly before the collision. I conclude that Mr Davies is mistaken in his belief that he slowed his vehicle down considerably [152] ‑ [168]. (emphasis added)
Where Mr Davies' vehicle collided with Mr Oliver's vehicle: the trial judge's findings
After reviewing the evidence, the trial judge found that the point of impact between Mr Oliver's vehicle and Mr Davies' vehicle was at about the southern most point of a gouge mark observed by Senior Constable Keenan on the day of the collision. The southern most point of this gouge mark was about 5.5 m to the south of Sues Bridge [169].
Braking performance: the trial judge's findings
The trial judge found that, 'on hard braking', Mr Davies would have been able to achieve a braking performance substantially the same as an expert witness, Dr Steven Chew, found on his testing of a vehicle provided to him. His Honour also found that a reaction time of two seconds was reasonable for Mr Davies in the circumstances [170].
The trial judge found that Dr Chew's calculation of a stopping distance of 167 m, if Mr Davies had braked hard, was approximately correct [171].
The trial judge's conclusions
The trial judge's conclusions were as follows:
When Mr Davies first saw [Ms] Tomkins he was travelling at a speed of approximately 95 to 100 kilometres per hour and [he] was approximately 225 metres from her. [Ms] Tomkins' vehicle had an obvious sign warning of an oversized load ahead and had two amber flashing lights on its roof. It therefore provided a clear warning of a danger ahead.
In my view in the exercise of reasonable care Mr Davies should have immediately braked hard. I am satisfied on the balance of probabilities that if he had done so he would have stopped before reaching [Ms] Tomkins' vehicle. This conclusion is based on Dr Chew's calculations of stopping distances.
I do not regard Mr Davies' failure to brake hard as a decision made in the agony of the moment which does not breach the duty of care he owed to other road users. [Ms] Tomkins' vehicle was clearly marked and had flashing lights and provided the clear warning of the danger ahead. In those circumstances, in my view, Mr Davies was in breach of his duty of care to road users in not braking hard. His conduct in driving around [Ms] Tomkins' vehicle in the slip lane was negligent.
I also conclude that Mr Davies was in breach of his duty of care to other road users in travelling on Sues Road at a speed of approximately 100 kilometres per hour. I bear in mind that in travelling at that speed Mr Davies was not exceeding the speed limit. However that is not definitive of his duty of care: Sibley v Kais (1967) 118 CLR 424. Mr Davies knew Sues Road and he knew that [sic] of the bridge and the bend as he approached the bridge. He also knew that there were hills and valleys on the road, that the radio reception was inconsistent and that there were trees and bushes on the side of the road which threw shade on the road at the time at which he was travelling on it. It was foreseeable that he would not receive radio warning of a danger on the road until he saw it, that he could come across that danger while he was going around a bend while going down a hill and that the shade on the road might affect his ability to appreciate a danger. The vehicle he was driving was a heavy vehicle which took time to bring to a halt. It had the potential to cause serious injury, death and property damage. In the exercise of reasonable care in those circumstances Mr Davies should not have been travelling at a speed of 100 kilometres per hour. He should have been travelling at a slower speed to enable him to come to a stop more quickly if he came across a danger on the road.
The sign and lights on [Ms] Tomkins' vehicle provided a clear warning both of her presence on the road and of Mr Oliver's vehicle ahead of her. When she saw Mr Davies' vehicle approaching her she used her radio to alert Mr Davies of the presence of Mr Oliver's vehicle on the bridge. [Ms] Tomkins' vehicle was in the centre of the road, but for two reasons I do not consider it unsafe for her to have been in that position. The first is that her vehicle was so clearly marked that it provided an adequate warning of its presence on the road that a driver could stop before reaching her. The second is that the slip lane provided a lane on which a vehicle could pass her.
The requirement in the permit issued to Mr Mulcahy that the rear pilot be a maximum distance of 150 metres from the vehicle does not determine where Ms Tomkins should have been in the exercise of reasonable care: Sibley v Kais (supra).
[Ms] Tomkins was reversing when Mr Davies approached her, but she stopped when she saw Mr Davies' vehicle and she was stationary when Mr Davies saw her. She was heading towards the crest of the hill that was south of the bridge, but she had not reached it. Mr Peacock felt that [Ms] Tomkins should have been at the crest of the hill. As soon as he received a radio call, before he saw [Ms] Tomkins vehicle he braked heavily to avoid a collision. He was clearly unhappy about [Ms] Tomkins' position on the road. If [Ms] Tomkins had been stationary at that crest when Mr Davies approached she would have provided Mr Davies with greater warning of the presence of Mr Oliver's vehicle ahead, but it does not follow that the warning she provided was inadequate.
The Transport Forum Training Reference Manual is a guide to pilots but it is not a code that determines negligence. The provision in it that drivers should position themselves at the crest of a hill on both sides of a bridge is a useful general statement, but it does not mean that the failure to do so is negligent. The important thing for a pilot to do is to provide adequate warning of the load ahead so that approaching [drivers] have time to stop.
In my view [Ms] Tomkins' clearly marked vehicle provided adequate warning of her own presence and that of Mr Oliver's vehicle. Mr Davies did have adequate time within which to stop before reaching [Ms] Tomkins' vehicle. I find [Ms] Tomkins was not negligent.
Mr Oliver's vehicle carried a large load which required him to cross Sues Bridge slowly. His vehicle was clearly marked and [Ms] Tomkins' vehicle provided a clear warning of it. Appropriate preparations had been made for the journey. The lead pilot did not notify the closure of the bridge on his radio, however in my view adequate visual warning was provided. In any event radio notification would not have been heard by Mr Davies, who did not hear any of the radio communications between Mr Oliver, Senior Constable Keenan or [Ms] Tomkins. In my view there was no negligence by Mr Oliver, Mr Mulcahy or Kakoda Heavy Haulage.
I find that Mr Davies was negligent and that his negligence caused the accident and that none of [Ms] Tomkins, Mr Oliver, Mr Mulcahy or Kakoda Heavy Haulage was negligent [172] ‑ [182].
Mr Davies' grounds of appeal
Mr Davies' grounds of appeal read:
1.The learned trial judge erred in fact and in law in not finding the First Respondent (Tomkins) negligent for positioning the pilot vehicle in a hazardous position on the road on a decline on a bend across double white lines where the speed limit was 110 kilometres per hour and to [sic] close too [sic] the load being escorted, rather than at the crest of the hill, or at a distance of approximately 500 metres behind the load so as not to be an obstruction and a hazard herself, and to be able to give adequate visual and radio warning to drivers travelling north towards the hazard ahead. Specifically:
1.1his Honour erred in failing to find that the First Respondent did not exercise reasonable care in the positioning of her vehicle;
1.2his Honour erred in finding (at Reasons [178], [180] and [181] of his reasons for decision) that the First Respondent provided adequate visual warning of her own presence and that of the Second Respondent;
1.3his Honour erred in effectively finding (at Reasons [176] and [178]) that the First Respondent provided adequate warning because the Appellant could have stopped before reaching her on one version of events (out of a range of possible versions); and
1.4his Honour erred in failing to apply the same considerations in paragraph 175 of his reasons for decision to the conduct of the First Respondent, effectively failing to consider the conduct of the First Respondent in all the circumstances.
2.The learned trial judge erred in law in not finding the Second Respondent:
2.1negligent for not properly planning and coordinating the movement of the oversize load and not properly instructing the First Respondent to ensure that when the load came to cross [Sues] Bridge, the First Respondent would position herself at the crest of the hill, or at a distance approximately 500 metres behind the load so as to give adequate warning to northbound traffic of her position and the load/hazard ahead, and so as to not make herself a hazard which first had to be avoided;
2.2negligent in effectively stopping the over width load on [Sues] Bridge without giving other road users adequate warning; and
2.3negligent in failing to ensure that his load was properly jacked up to enable adequate clearance of the bridge railings.
3.The learned trial judge erred in law and fact in finding the Appellant negligent in circumstances where:
3.1the learned trial judge failed to consider whether or not the Appellant had otherwise exercised reasonable care in the circumstances and in doing so misdirected himself as to the proper test for negligence;
3.2no precise or accurate findings were able to be made as to the location of the parties' vehicles at the time of the accident, the precise location of the First Respondent's vehicle to the south of the camping and picnic ground exit/entrance, the precise distance between the Appellant's truck and the First Respondent's pilot vehicle when the Appellant first saw the pilot vehicle and the precise distances from which the Respondents' vehicles would [have] reasonably been visible to the Appellant or were actually seen by the Appellant;
3.3the Appellant was driving at 95-100 kilometres per hour in the absence of any perceivable risk;
3.4the learned trial judge did not find that the Appellant failed to keep a proper lookout; and
3.5the Appellant used the slip-lane to avoid the First Respondent's vehicle.
4.The learned trial judge erred in law in concluding that the Appellant's speed was the sole or a legal cause of the accident when:
4.1the uncontradicted evidence was that the Appellant was travelling within the speed limit;
4.2there was no expert evidence demonstrating or estimating at what speed the Appellant would have likely safely avoided the accident;
4.3there was no finding/conclusion as to what speed the Appellant should have been travelling at in order to avoid the accident or reduce the risk of an accident.
5.The learned trial judge erred in law and fact in failing to find that the negligence of the First Respondent and/or the Second Respondent as described in grounds 1 and 2 above, caused or contributed to the accident.
Mr Davies' grounds of appeal do not challenge any of the trial judge's findings of fact. They are confined to assertions that his Honour made errors in his evaluation, based on the facts as he found them to be, that Mr Davies had been negligent and that Ms Tomkins and Mr Oliver had not been negligent.
FR & M Venables' grounds of appeal
FR & M Venables' grounds of appeal read:
1.The learned Trial Judge erred in law and in fact in finding that Laurence Davies (Davies) was negligent in attempting to steer around the Third Respondent (Tomkins) rather than attempting to brake and stop on the road before reaching Tomkins' vehicle in circumstances where:
(a)Davies was driving a loaded articulated vehicle (truck) at about 95‑100 kmh;
(b)he unexpectedly encountered Tomkins' vehicle on the road in a hazardous position;
(c)it was not immediately obvious and clear that if he braked as hard as he could on the sloping bend (without destabilising the truck) he would have stopped before reaching Tomkins;
(d)he had to make a quick decision in that emergency situation and in a state of uncertainty whether the safer course was to brake hard or attempt to steer around Tomkins' vehicle; and
(e)it could not therefore be said (without the benefit of hindsight) that Davies' quick decision was so unreasonable as to be negligent.
2.The learned Trial Judge erred in law and fact in:
(a)finding that Davies was in breach of his duty of care by travelling on [Sues] Road at a speed of approximately 100 kmh even though that was within the designated speed limit when Davies had no notice of any adverse risk factor which would have caused a reasonable driver to significantly reduce his/her speed;
(b) … not determining what a safe speed would have been in the circumstances; and
(c)not determining whether that lower speed would have avoided an accident.
3.The learned Trial Judge erred in law and fact in not finding Tomkins negligent for deliberately positioning the pilot vehicle in a hazardous location on the road across double white lines on a decline on a bend with obscured vision where the speed limit was 110 kmh, and in a position that was too close to the load being escorted, rather than at the crest of the hill, or at a distance at least 500 metres behind the load so as not to be an obstruction and hazard herself, and so as to be able to give adequate visual and radio warning to drivers travelling north of her position and of the hazard ahead, when it was foreseeable that loaded trucks could be travelling at about 100 kmh and not receive radio warnings of the danger on the road until they came across the danger unexpectedly whilst going around the bend, and that a driver in those circumstances might use the slip lane to pass her in an attempt to avoid a collision.
4.The learned Trial Judge erred in law and fact in not finding the negligence of Tomkins in positioning her vehicle where she did, rather than at the crest of the hill, and/or too close to the load, caused the accident.
5.The learned Trial Judge erred in law and fact in not finding the First and Second Respondents (the Mulcahys):
(a)negligent for not properly planning and coordinating the movement of the over size load and slow moving pilot vehicles and in not properly instructing the rear pilot (Tomkins) to ensure that when the load came to cross [Sues] Bridge, Tomkins would position herself at the crest of the hill, or at a distance at least 500 metres behind the load so as to give adequate warning to northbound traffic of her position and the load/hazard ahead, and so as to not make herself a hazard which first had to be avoided;
(b)liable for the negligence of their driver (Oliver) in effectively stopping the over width load on [Sues] Bridge without ensuring that other road users were given adequate warning, and that the rear pilot was properly positioned to provide adequate visual and radio warning of her position and the load;
(c)negligence caused or contributed to the accident.
6.Further, and in the alternative to Grounds 1 and 2, the learned Trial Judge erred in law and fact in not apportioning liability as between the Appellants, and the First, Second and Third Respondents on the basis that the greatest responsibility for the accident should be attributed to the Respondents having regard to the following:
(a)the degree of departure from the duty of care owed by each;
(b)the deliberate actions of Tomkins in her positioning of the pilot vehicle and creating a hazard;
(c)the failure of the Mulchays [sic] (and Oliver) in planning and coordinating the movement, to properly instruct Tomkins and thereby allowed a hazard to arise;
(d)Davies was attempting to avoid a hazard created by the Respondents in circumstances where he had been given inadequate notice, and had to make quick decision about an appropriate course of action having regard to various conflicting risk factors.
Like Mr Davies' grounds, FR & M Venables' grounds of appeal do not challenge any of the trial judge's findings of fact. Rather, as with Mr Davies' grounds, FR & M Venables' grounds of appeal assert that his Honour erred in his evaluation, based on the facts as he found them to be, that Mr Davies had been negligent and that Ms Tomkins, Mr Mulcahy and Kakoda Heavy Haulage had not been negligent.
There is very significant overlap between Mr Davies' grounds and FR & M Venables' grounds.
The duty of care owed by the driver of a motor vehicle to other road users and the standard of care
At common law, the driver of a motor vehicle is under a duty to take reasonable care to avoid injury or damage to other road users or motor vehicles. This duty requires the driver, relevantly, to exercise reasonable care to avoid a foreseeable risk of injury or damage to other road users or vehicles.
A risk of injury or damage will be reasonably foreseeable if it is not far-fetched or fanciful. The risk may be reasonably foreseeable even though it is unlikely to occur or is remote. See Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, 48 (Mason J); Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty (The Wagon Mound (No 2)) [1967] 1 AC 617, 641 ‑ 643. The test of reasonable foreseeability, as stated in Shirt, must be applied without hindsight. The test is, however, undemanding. See Koehler v Cerebos (Australia) Ltd [2005] HCA 15; (2005) 222 CLR 44 [54] (Callinan J); Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 [213] (Callinan & Heydon JJ).
It is unnecessary that a defendant should have foreseen the precise risk of injury or damage, or how it occurred. It is sufficient if the risk is within a class of risks that the defendant should, in a general way, have foreseen. See Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 [87] (McHugh J).
In State of New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486, there was discussion as to whether the correctness of Shirt (in particular, the well-known statement of principle by Mason J) should be reconsidered. The Court decided that the circumstances of the case before them did not require reconsideration of Mason J's statement of principle.
The standard of care (that is, the measure of the discharge of the duty of care) applicable to the driver of a motor vehicle is what, if anything, a reasonable person in the driver's position would have done by way of response to the foreseeable risk that another road user or motor vehicle may suffer injury or damage as a result of a particular act, omission or circumstance.
The determination of what, if anything, a reasonable person in the driver's position would have done involves an assessment of what would have been reasonable and practicable for the driver to have done. This enquiry is not to be undertaken in hindsight. See Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341 [93] (Hayne J); Vairy [126] ‑ [129] (Hayne J); Mulligan v Coffs Harbour City Council [2005] HCA 63; (2005) 223 CLR 486 [50] (Hayne J). It is necessary to look forward to identify what a reasonable person would have done, not backward to identify what would have avoided the particular injury or damage. See Fahy [57]. As Gummow and Hayne JJ explained in Fahy [58]:
It is only if the examination of breach focuses upon 'what a reasonable man would do by way of response to the risk' (Shirt (1980) 146 CLR 40 at 47) (emphasis added) that it is sensible to consider 'the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have' (Shirt (1980) 146 CLR 40 at 47 ‑ 48). (original emphasis)
Reasonableness may require no response to a foreseeable risk. See Thompson v Woolworths (Q'land) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234 [36] (Gleeson CJ, McHugh, Kirby, Hayne & Heydon JJ); Mulligan [3] (Gleeson CJ & Kirby J); Fahy [7] (Gleeson CJ). The occurrence of a foreseeable risk does not establish unreasonableness. See Illawarra Area Health Service v Dell [2005] NSWCA 381 [85].
In Manley v Alexander [2005] HCA 79; (2005) 80 ALJR 413, Gummow, Kirby and Hayne JJ said in relation to the standard of care applicable to the driver of a motor vehicle:
[T]he reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events [12].
In any case, whether a particular act or omission is a breach of the defendant's duty of care is always a question of fact and never a question of law. See Sydney County Council v Dell'Oro [1974] HCA 47; (1974) 132 CLR 97, 119 (Jacobs J).
Mr Davies' appeal: the merits of ground 1
Ground 1 of Mr Davies' appeal asserts, in essence, that the trial judge's conclusions that:
(a)the position of Ms Tomkins' vehicle in the centre of the road was not unsafe [176];
(b)the position of Ms Tomkins' vehicle on the road 'provided adequate warning of her own presence and that of Mr Oliver's vehicle' [180]; and
(c)Mr Davies had 'adequate time within which to stop before reaching [Ms] Tomkins' vehicle' [180],
were not open.
The trial judge based these conclusions on the following evidence and findings of fact:
(a)Mr Davies gave evidence that Ms Tomkins' vehicle appeared to be in the middle of the road. His Honour found that her vehicle was stationary when Mr Davies first saw it and was near the centre of the road when he passed it [148] ‑ [149].
(b)Based on the expert evidence of Mr Grant Johnston (an engineer with many qualifications and years of experience in roads and accidents on roads) and Dr Steven Chew (also an experienced and well‑qualified engineer), his Honour found that each of Mr Oliver's vehicle and Ms Tomkins' vehicle was visible to Mr Davies from a distance of about 225 m [151].
(c)Based on the evidence of Mr Davies, his Honour found that Mr Davies' vehicle was travelling at about 95 km ‑ 100 km an hour when he first saw Ms Tomkins' vehicle [152], [172].
(d)It was common cause that Mr Davies did not stop before reaching Ms Tomkins' vehicle. He passed her vehicle by entering the slip lane from Sues Road and then exiting the slip lane onto Sues Road [54]. Mr Davies said in evidence that he 'glided into' the slip lane to 'get around' Ms Tomkins' vehicle (ts 193). Plainly, it was not a difficult manoeuvre. It was similar to changing lanes on a highway.
(e)His Honour gave two reasons for finding that it was not unsafe for Ms Tomkins' vehicle to have been in the centre of the road. First, 'her vehicle was so clearly marked that it provided an adequate warning of its presence on the road that a driver could stop before reaching her' [176]. Secondly, 'the slip lane provided a lane on which a vehicle could pass her' [176].
(f)His Honour found that the slip lane commenced about 400 m to the south of Sues Bridge and terminated about 140 m to the south of the bridge, at the road which leads to the camping and picnic areas [15].
(g)His Honour found that at all material times Ms Tomkins' vehicle had 'an obvious sign warning of an oversized load ahead' and two amber flashing lights on its roof, and that the sign and lights provided 'a clear warning of a danger ahead' [172].
(h)Based on the evidence of Dr Chew (who was called by Mr Davies' employer, FR & M Venables), his Honour found that if Mr Davies had braked hard he would have been able to stop his vehicle in 167 m [171].
The findings of fact I have enumerated are unchallenged. These findings constitute a sound foundation for the trial judge's conclusions that the position of Ms Tomkins' vehicle in the centre of the road was not unsafe, the position of Ms Tomkins' vehicle on the road provided adequate warning of her own presence and that of Mr Oliver's vehicle, and Mr Davies had adequate time within which to stop before reaching Ms Tomkins' vehicle. The conclusions in question were open to his Honour and were not vitiated by any material error of fact or law.
The process of reasoning which underpins ground 1 is flawed. The mere fact that the collision may have been avoided if Ms Tomkins' vehicle had been positioned differently does not mandate a conclusion that she breached her duty of care. Similarly, the mere fact that Mr Davies failed to respond properly to the warning of danger does not require the conclusion that the warning was inadequate.
It is immaterial that Ms Tomkins was proposing to reverse her vehicle to the crest of the hill if, in the course of commencing to undertake that manoeuvre, the presence of her vehicle in the middle of the road, with the warning sign and flashing lights, was safe, and provided an adequate warning to Mr Davies of her own presence and that of Mr Oliver's vehicle.
Similarly, it is immaterial that it may have been 'safer' or 'preferable' if Ms Tomkins had positioned her vehicle at the crest of the hill. The critical point is whether or not Ms Tomkins breached her duty by positioning her vehicle at the location where it was in fact positioned when Mr Davies first saw it. In any event, whether or not it may have been 'safer' or 'preferable' for Ms Tomkins' vehicle to have been positioned at the crest was not explored satisfactorily in evidence at the trial.
As to the specific points raised in ground 1:
(a)For the reasons I have given, the trial judge did not err as alleged in pars 1.1, 1.2 or 1.3 of the ground.
(b)His Honour's reasoning at [175] supported his further conclusion that Mr Davies breached his duty of care by travelling on Sues Road at a speed of about 100 km an hour. There is no merit in Mr Davies' contention that his Honour erred in failing to apply this reasoning to Ms Tomkins' conduct. The issue of whether Ms Tomkins breached her duty of care by, relevantly, positioning her vehicle in the centre of the road or failing to provide adequate warning of her own presence and that of Mr Oliver's vehicle, raised issues of fact for evaluation that were, to a material extent, different from the issues of fact to be evaluated in determining whether Mr Davies had been negligent. There is no merit in the criticism embodied in par 1.4 of the ground.
Ground 1 fails.
Mr Davies' appeal: the merits of ground 2
Ground 2 of Mr Davies' appeal asserts, in essence, that the trial judge erred in not finding that Mr Oliver breached his duty of care by:
(a)failing properly to plan and coordinate the movement of his vehicle and failing properly to instruct Ms Tomkins where to position her vehicle;
(b)stopping his vehicle on Sues Bridge without giving adequate warning to other road users; and
(c)failing to ensure that there was an adequate clearance between his load (that is, the silo attached to his trailer) and the railings on Sues Bridge.
The trial judge found, or it was not in dispute at the trial, that:
(a)Ms Tomkins was an accredited pilot for the purposes of the Road Traffic Code and was therefore empowered to direct and control traffic [30].
(b)Mr Oliver was towing the oversized load pursuant to a permit issued to Mr Mulcahy (a representative of Mr Oliver's employer, Kakoda Heavy Haulage), and it was a condition of the permit that Mr Oliver's vehicle be accompanied by one police escort and three pilot vehicles [28].
(c)Ms Tomkins was engaged to act as a pilot driver in respect of Mr Oliver's vehicle (ts 240 ‑ 241).
(d)Mr Oliver requested Ms Tomkins to 'stay back' further than the maximum distance of 150 m specified in a condition to the permit in order to give 'plenty of warning' that he was on Sues Bridge [39], [40].
(e)The oversized load had been set at a height which permitted it to clear the railings on Sues Bridge [20], notwithstanding that the load was 'a very tight fit' on the bridge [26].
(f)Immediately before crossing Sues Bridge, Mr Oliver was driving at 'a crawling speed of approximately 5 kilometres an hour' [37].
These findings of fact are unchallenged.
It is impermissible to infer a breach of duty from the mere fact that an injury or damage has occurred. See Vairy [126] ‑ [129] (Hayne J); Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330 [65] ‑ [69] (Gummow J); Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301 [13] (Gleeson CJ, Gaudron, Kirby, Hayne & Callinan JJ).
The trial judge was entitled to find, on the basis of the facts as he found them to be, that Mr Oliver was not negligent, as alleged.
Further, and in any event, his Honour's conclusions that the position of Ms Tomkins' vehicle in the centre of the road was not unsafe, the position of Ms Tomkins' vehicle on the road provided adequate warning of her own presence and that of Mr Oliver's vehicle, and Mr Davies had adequate time within which to stop before reaching Ms Tomkins' vehicle, require the rejection of the complaints set out in pars 2.1 and 2.2 of the ground.
Ground 2 fails.
Mr Davies' appeal: the merits of ground 3
Ground 3 of Mr Davies' appeal asserts, in essence, that the trial judge's conclusion that Mr Davies was negligent was not open.
The trial judge based this conclusion on the evidence and findings of fact set out at [56], [57], [59] ‑ [61] and [77] above. As I have mentioned, his Honour's findings of fact are unchallenged.
In my opinion, the trial judge was entitled to conclude, on the basis of the facts as he found them to be, that Mr Davies had been negligent.
Mr Davies should have seen Ms Tomkins' vehicle from a distance of 225 m. A reasonable and careful driver in his position, upon seeing Ms Tomkins' vehicle in the middle of the road with its warning sign and flashing lights, would have applied the brakes hard and immediately so as to enable him or her to stop before reaching Ms Tomkins' vehicle; alternatively, to slow to a speed which would enable his or her vehicle to be brought to a stop safely before Sues Bridge.
Mr Davies was driving a large, heavy vehicle. He travelled a distance of at least 365 m after he first saw Ms Tomkins' vehicle until he collided forcefully with the rear of Mr Oliver's vehicle. The distance of at least 365 m comprises the sum of the distance from which Mr Davies first saw Ms Tomkins' vehicle (about 225 m) and the distance from the termination of the slip lane to Sues Bridge (about 140 m). The distance of at least 365 m does not include part of the length of the slip lane (which has a total length of about 260 m). Ms Tomkins' vehicle was positioned at an indeterminate point on the road adjacent to the slip lane when Mr Davies passed her. The trial judge found that Mr Davies was travelling at about 95 km ‑ 100 km an hour when he first saw Ms Tomkins' vehicle. His Honour found, based on Senior Constable Keenan's evidence, that Mr Davies was travelling at about 90 km ‑ 100 km an hour when the police officer (who was standing on the eastern side at the northern end of Sues Bridge) first saw him [154], [165]. Mr Davies was likely to have been in the vicinity of the slip lane when Senior Constable Keenan first saw him.
The trial judge found that if Mr Davies had braked hard he would have been able to stop his vehicle in 167 m. Mr Davies did not stop, and he did not slow his vehicle to any material extent until after he had exited from the slip lane and was about 140 m from Sues Bridge.
In the circumstances, a conclusion that Mr Davies had been negligent was inevitable. It was based on overwhelming evidence.
As to the specific points raised in ground 3:
(a)The trial judge did not make any material error of law or fact in evaluating whether Mr Davies had exercised reasonable care in the circumstances or not. His Honour decided that the exercise of reasonable care required Mr Davies to have braked hard immediately when he first saw Ms Tomkins' vehicle and, if he had done so, he would have stopped before reaching her vehicle [172] ‑ [173].
(b)The absence of findings as to the precise locations of the relevant vehicles, the precise distances between the vehicles, or the precise distance from the vehicles to Sues Bridge or the crest, did not preclude his Honour from making a finding of negligence. He made and was entitled to rely on reasonable estimates of location and distance.
(c)Although Mr Davies may not have perceived any risk until he saw Mr Oliver's vehicle, a reasonable person in Mr Davies' position, exercising due care, would have braked hard and immediately so as to stop before reaching Ms Tomkins' vehicle. Alternatively, a reasonable person in his position, exercising due care, would, at least, have slowed to a speed which would have enabled him or her to stop safely before reaching Sues Bridge.
(d)The mere fact that the trial judge did not find that Mr Davies had failed to keep a proper look out is irrelevant. The absence of such a finding did not preclude his Honour from deciding that Mr Davies had been negligent.
(e)The mere fact that Mr Davies deviated into and out of the slip lane did not preclude the trial judge from deciding that he had been negligent. On a fair reading of his Honour's reasons as a whole, his Honour did not confine his conclusion of negligence to Mr Davies' failure to stop before reaching Ms Tomkins' vehicle. The gist of Mr Davies' negligence, as found by his Honour, was his failure immediately to apply his brakes hard so as to enable him to stop before reaching Ms Tomkins' vehicle; alternatively, to slow to a speed which would have enabled him to stop safely before reaching Sues Bridge.
Ground 3 fails.
Mr Davies' appeal: the merits of ground 4
Ground 4 of Mr Davies' appeal asserts, in essence, that the trial judge 'erred in law' in concluding that Mr Davies' speed was 'the sole or a legal cause' of the collision.
Counsel for Mr Davies sought to support this ground by arguing that:
(a)at all material times, Mr Davies was travelling within the speed limit;
(b)there was no expert evidence demonstrating or estimating the speed at which Mr Davies 'would have likely safely avoided the accident'; and
(c)there was no finding or conclusion as to the speed at which Mr Davies should have been travelling 'in order to avoid the accident or reduce the risk of an accident'.
These arguments are unmeritorious.
First, the mere fact that Mr Davies was travelling within the speed limit did not (as a matter of law or otherwise) preclude the trial judge from concluding that Mr Davies' speed was the cause of the collision. His Honour's reasoning was as follows:
Mr Davies knew Sues Road and he knew that [sic] of the bridge and the bend as he approached the bridge. He also knew that there were hills and valleys on the road, that the radio reception was inconsistent and that there were trees and bushes on the side of the road which threw shade on the road at the time at which he was travelling on it. It was foreseeable that he would not receive radio warning of a danger on the road until he saw it, that he could come across that danger while he was going around a bend while going down a hill and that the shade on the road might affect his ability to appreciate a danger. The vehicle he was driving was a heavy vehicle which took time to bring to a halt. It had the potential to cause serious injury, death and property damage. In the exercise of reasonable care in those circumstances Mr Davies should not have been travelling at a speed of 100 kilometres per hour. He should have been travelling at a slower speed to enable him to come to a stop more quickly if he came across a danger on the road [175].
His Honour was entitled, for the reasons he gave, to conclude that Mr Davies breached his duty of care by travelling at a speed of about 100 km an hour, even though he was not exceeding the speed limit. See Sibley v Kais [1967] HCA 43; (1967) 118 CLR 424, 426 ‑ 427.
Secondly, the absence of expert evidence or a finding as to the speed at which Mr Davies should have been travelling in order to avoid the collision or reduce the risk of a collision, did not preclude his Honour from concluding that Mr Davies' speed was the cause of the collision. His Honour's reasons on this issue must be read and understood in the context of all of the relevant evidence and findings of fact; in particular, see [56], [57], [59] ‑ [61] and [77] above.
Ground 4 fails.
Mr Davies' appeal: the merits of ground 5
Ground 5 of Mr Davies' appeal merely asserts that the trial judge erred in failing to find that the negligence of Ms Tomkins and Mr Oliver, as alleged in grounds 1 and 2 of the appeal, caused or contributed to the collision.
I am satisfied, for the reasons I have given in the context of grounds 1 and 2, that neither Ms Tomkins nor Mr Oliver was negligent. It follows that ground 5 must fail.
Mr Davies' appeal: conclusion
I would dismiss Mr Davies' appeal.
FR & M Venables' appeal: the merits of ground 1
Ground 1 of FR & M Venables' appeal asserts, in essence, that the trial judge erred in finding that Mr Davies was negligent in attempting to 'steer around' Ms Tomkins' vehicle rather than attempting to brake hard and stop before reaching her vehicle.
For the reasons I have given, in the context of considering the merits of ground 3 of Mr Davies' appeal, I am satisfied that the trial judge was entitled to conclude, on the basis of the facts as he found them to be, that Mr Davies had been negligent in failing immediately to apply his brakes hard so as to enable him to stop before reaching Ms Tomkins' vehicle.
As to the specific points raised in ground 1:
(a)It is true that Mr Davies was driving a large, heavy vehicle at about 95 km ‑ 100 km an hour and that he unexpectedly encountered Ms Tomkins' vehicle. However, for the reasons I have given in the context of considering the merits of ground 1 of Mr Davies' appeal, the position of Ms Tomkins' vehicle in the centre of the road was not unsafe or hazardous.
(b)The assertion in par (c) of the ground that 'it was not immediately obvious and clear that if [Mr Davies] braked as hard as he could on the sloping bend (without destabilising the truck) he would have stopped before reaching Tomkins' must fail in the face of the trial judge's unchallenged findings of fact that Mr Davies should have seen Ms Tomkins' vehicle from a distance of 225 m and if Mr Davies had braked hard he would have been able to stop his vehicle in 167 m. Further, I am satisfied that a reasonable and careful driver in Mr Davies' position, upon seeing Ms Tomkins' vehicle in the middle of the road with its warning sign and flashing lights, would have applied the brakes hard and immediately so as to enable him or her to stop before reaching Ms Tomkins' vehicle. It would have been 'immediately obvious and clear' to a reasonable person in his position, upon seeing Ms Tomkins' vehicle in the middle of the road, that he or she should stop before reaching her vehicle.
(c)Mr Davies was not confronted with two inconsistent courses of action, namely, either braking hard or attempting to steer around Ms Tomkins' vehicle, as asserted in par (d) of ground 1. On the trial judge's unchallenged findings, Mr Davies could and should have stopped before reaching Ms Tomkins' vehicle. But even if he did not discharge his duty in this respect, he should have slowed to a speed that would have enabled his vehicle to be brought to a stop safely between the commencement of the slip lane and Sues Bridge. The trial judge found, correctly in my view, that Mr Davies' failure to brake hard was not a decision made in the 'agony of the moment' [174]. The expression 'agony of the moment' was discussed by Street CJ in Leishman v Thomas (1958) 75 WN (NSW) 173, as follows:
This so called principle of acting in the 'agony of the moment' is merely an application of the ordinary rule for ascertaining whether or not the conduct of any party has been negligent by looking to all the surrounding circumstances and ascertaining whether the defendant behaved in such a fashion as a reasonably prudent man, in the light of those circumstances, would not have behaved. It is a circumstance, and one possibly of great importance, that the defendant charged with negligence, may have been forced to act in a sudden crisis or emergency, unexpected and unheralded, without that opportunity for calm reflection which makes it easy after the event to suggest that it would have been wiser if he had done something else. The jury are required to judge his conduct in the light of the happenings of the moment, and a man is not to be charged with negligence if he, not being the creator of the crisis or emergency which has arisen, finds himself faced with a situation which requires immediate action of some sort and if, in the so called 'agony of the moment', he makes an error of judgment and takes a step which wiser counsels and more careful thought would have suggested was unwise (175).
(d)His Honour did not employ impermissible reasoning based on hindsight to conclude that Mr Davies had been negligent. The process of reasoning employed by his Honour, which I have examined in considering ground 3 of Mr Davies' appeal, was not vitiated by any material error of law or fact.
Ground 1 fails.
FR & M Venables' appeal: the merits of ground 2
Ground 2 raises, in essence, the same issues as raised by ground 4 of Mr Davies' appeal. For the reasons I have given, in the context of considering ground 4 of Mr Davies' appeal, ground 2 fails.
FR & M Venables' appeal: the merits of grounds 3 and 4
Grounds 3 and 4 raise, in essence, the same issues as raised by ground 1 of Mr Davies' appeal. For the reasons I have given, in the context of considering ground 1 of Mr Davies' appeal, grounds 3 and 4 fail.
FR & M Venables' appeal: the merits of ground 5
Ground 5 raises, in essence, the same issues as raised by grounds 2 and 5 of Mr Davies' appeal. For the reasons I have given, in the context of considering grounds 2 and 5 of Mr Davies' appeal, ground 5 fails.
FR & M Venables' appeal: the merits of ground 6
Ground 6 is redundant in view of my conclusions in relation to grounds 1 ‑ 5 of FR & M Venables' appeal. No question of apportioning liability arises because, in my view, the trial judge's findings that Mr Davies was negligent and Mr Oliver, Ms Tomkins, Mr Mulcahy and Kakoda Heavy Haulage were not negligent should not be disturbed.
FR & M Venables' appeal: conclusion
I would dismiss FR & M Venables' appeal.
Summary of the outcome
For the reasons I have given, both of the appeals should be dismissed.
NEWNES JA: I agree with Buss JA.
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