Dodd v Tamigi - [2008] WASCA 21

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: DODD -v- TAMIGI [2008] WASCA 21

CORAM: STEYTLER P
MILLER JA
BEECH AJA

HEARD: 17 DECEMBER 2007

DELIVERED : 17 DECEMBER 2007

PUBLISHED : 8 FEBRUARY 2008

FILE NO/S: CACR 29 of 2007

BETWEEN: EDWIN ALFRED DODD
Appellant
AND
VINCENZO GIUSEPPE TAMIGI
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :JOHNSON J
Citation  :DODD -v- TAMIGI [2007] WASC 42
File No  :SJA 1043 of 2006

Catchwords:

Criminal law and procedure - Appeal - Failure to restrain load on a vehicle with an appropriate restraint - Turns on own facts

Legislation:

Road Traffic (Vehicle Standards) Regulations 2002 (WA)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr J D Allanson SC
Respondent: Ms J C Pritchard

Solicitors:

Appellant: Altorfer & Stow
Respondent: State Solicitor for Western Australia

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

Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 6) (Court's "Allstate" Judgment No 33) (1996) 64 FCR 79
Dodd v Tamigi [2007] WASC 42
R W Miller & Co Pty Ltd v Krupp (Australia) Pty Ltd (1991) 34 NSWLR 129
Van Den Heuvel v Tucker [2003] SASC 110; (2003) 85 SASR 512

STEYTLER P: I have had the advantage of reading the judgment of Beech AJA. I agree with it. It reflects my own reasons for joining in the order of the court dismissing the appeal.
MILLER JA: At the hearing of this appeal, the appeal was dismissed. The court indicated that its reasons would be given at a later time. I have had the opportunity of reading in draft the reasons of Beech AJA and I agree with those reasons. I have nothing further to add.
BEECH AJA:

Introduction

The appellant was convicted in the Magistrates Court on a complaint that, on 4 November 2003, at Geraldton, he drove a motor vehicle when, at the time, the load on the motor vehicle was not restrained with an appropriate method of restraint, contrary to reg 12(2) of the Road Traffic (Vehicle Standards) Regulations 2002 (WA) (the Regulations). Johnson J dismissed an appeal against his conviction: Dodd v Tamigi [2007] WASC 42.
The appellant appealed to this court, by leave granted on 7 June 2007, against the decision of Johnson J (the primary judge). At the hearing of the appeal the court dismissed the appeal, indicating that reasons would be given later. These are my reasons for joining in the court's order dismissing the appeal.
The background facts and applicable regulatory regime were set out by the primary judge [4] ‑ [12] in terms which are uncontroversial, as follows:
The following facts were not in dispute. On 4 November 2003, the appellant was driving an International tabletop truck on Portway at Geraldton. The vehicle had a tray bordered by a [coaming] rail about an inch high and a headboard to the front. It was carrying a load of seven pallets of lime and cement. Each pallet of lime weighed about 960 kilograms and each one of cement about 1120 kilograms. The wooden pallets themselves additionally weighed about 40 kilograms each. The pallets were positioned on the tray in three rows of two pallets and then a single pallet, centrally placed at the rear, as depicted in instamatic photographs taken by a transport inspector at the time the vehicle was stopped. The height of the pallets themselves exceeded the height of the [coaming] rail.

Each pallet, with its load, was wrapped in plastic shrink wrap. The pallets were not lashed to the tray nor secured in any way, except that the leading side of the forward‑most pallets abutted the headboard and the second and third rows of pallets in turn abutted those ahead of them. Essentially the appellant relied on the shrink wrap plus frictional and gravitational forces to keep the pallets in position.
The regulatory regime applicable at the time of this event is as follows. Regulation 12(2) of the regulations is in the following terms:
'A person must not drive a motor vehicle on a road unless the vehicle complies with the requirements in Schedule 1 applying to the vehicle.'

Division 5 of Sch 1 of the regulations concerns the placing and securing of loads. Clause 12(3) of Sch 1 provides:
'An appropriate method must be used to restrain the load on a vehicle.'

Regulation 15(1a) provides:
'In proceedings for a failure to comply with Schedule 1 clause 12 (relating to loading a vehicle) before the Road Traffic (Vehicle Standards) Amendment Regulations (No. 2) 2005 come into operation, it is sufficient for the prosecution to prove that the load on the vehicle was not placed, secured or restrained (as the case requires) in a way that met the performance standards recommended in the "Load Restraint Guide" published by the Australian Government Publishing Service on 12 December 1994.'

The performance standards referred to are found in s D of the Load Restraint Guide ('the Guide'). It relevantly states:
'1. Performance Standards
Loads must be restrained to prevent unacceptable movement during all expected conditions of operation. The load restraint system should therefore satisfy the following requirements:
(i)The load should not become dislodged from the vehicle;
(ii)The load should not move relative to the vehicle except … [irrelevant] …

To achieve the above, the load restraint system must be capable of withstanding the forces that would result if the laden vehicle were subjected to each of the following separately:
(i)0.8 'g' deceleration in a forward direction;
(ii)0.5 'g' deceleration in a rearward direction;
(iii)0.5 'g' acceleration in a lateral direction;
(iv)0.2 'g' acceleration relative to the load in a vertical direction.

Note: 'g' (the acceleration due to gravity), is equal to 9.81 metres/sec/sec for the purposes of these standards.'

There was no suggestion that the appellant's load had moved during the journey. Rather, the prosecution sought to prove its case by utilising reg 15(1a) and by evidence that the load restraint system used by the accused did not meet the performance standards, in that it could not withstand the stipulated forces, at least in the rearward, lateral or vertical directions. For that proof it relied on the expert evidence of Mr Richard Larsen, a mechanical engineer specialising in load restraint systems.
Mr Larsen supplied a report which was tendered into evidence. He also gave oral evidence. Mr Larsen explained the practical operation of the requirements. For example, dealing with item (iv) above, a truck carrying a 10 tonne load required an extra two tonnes of restraint in the vertical direction to ensure no separation of tray and load, such as might otherwise occur where the truck travelled over a bump, such as a kerb. That extra restraint could be provided by tying down the load, as recommended in the Guide, having the effect of providing additional friction forces between the load and the vehicle.
At the conclusion of the trial, the Magistrate gave ex tempore reasons for finding the charge proved. He accepted the evidence of all witnesses on both sides. It is clear that he found that the accused's load was not restrained appropriately in terms of vertical displacement. He was content to rest his decision on that finding. However, it further appears, at least at one point, that the Magistrate was satisfied that neither was there sufficient lateral restraint. Both findings were certainly consistent with Mr Larsen's evidence. At any rate, the single finding as to vertical displacement was sufficient in terms of proof of the charge.

At trial the appellant argued that he had met the requirements in the first sentence of par 1 of s D of the Load Restraint Guide (the Guide). His argument fixed on the phrase 'all expected conditions of operation', contending that that phrase directed attention to the particular conditions expected on the trip being undertaken at the time of the alleged offence.
However, the magistrate construed the opening sentences of par 1 of s D of the Guide as being not exhaustive of the requirements of the paragraph. He construed the paragraph as meaning that compliance with the stipulated requirements in subparagraphs (i) ‑ (iv) was necessary to satisfy the Guide. (See magistrate's reasons, ts 122 ‑ 123).
The primary judge construed the relevant paragraph of the Guide in the same way. Her Honour stated [28] that the first sentence is in the nature of an introductory statement of principle; the obligation actually imposed is in the paragraph stipulating the forces required to be withstood.
Leave to appeal against that finding was sought (see proposed ground 6) but refused. There is no application to review the refusal of leave. In any event, the construction adopted by the primary judge and by the magistrate is, plainly in my opinion, the correct construction of the paragraph of the Guide.
Leave to appeal was granted in respect of grounds 1, 2(a), 4(a) and 5(a), (b) and (d).
In oral submissions the appellant abandoned ground 4 and, in effect, ground 5, accepting that ground 5 did not add to the point or points sought to be made in grounds 1 and 2. Thus it is necessary only to set out grounds 1 and 2(a), which were as follows:
1.The Learned Judge erred in law and in fact in finding that the evidence and report of Dennis Richard Larsen was decisive, did not usurp the Court's function and was admissible when:
(a)the evidence and report of Mr Larsen was his summary and interpretation of the provisions of the Load Restraint Guide;
(b)he gave his opinion that the load carried by the Appellant did not meet the performance standards as specified in the Load Restraint Guide giving his reasons for the opinion being an issue that the Court had to decide;
(c)he gave his opinion on the load carried by the Appellant without carrying out any tests including G force tests on a load of the same nature;
(d)he gave his opinion on the load carried by the Appellant without any knowledge, experience or expertise in the carriage of bagged cement and lime stacked on pallets, wrapped in heat sketch plastic and contained on the back of a truck resting on a steel checker base within coaming rails and blocked against a head board;
(e)he gave his opinion that the load was not restrained to prevent unacceptable movement that the load was likely to dislodge:-
(i)when he based his opinion on 2 photographs of the load;
and
(ii)he gave no regard to the conditions of the road the Defendant travelled, the level of traffic, the driver's experience in carrying the load and his manner of driving.
2.The Learned Judge erred in law in holding that in connection with the adequacy of the method of restraint of the load:
(a)Mr Larsen did not need to carry out tests of the load.

Grounds 1 and 2 - evidence of Mr Larsen

These grounds make various complaints about the receipt by the magistrate of the evidence and report of Mr Larsen.
First, it is said that Mr Larsen's evidence should have been excluded because it expressed an opinion on the issue which the court had to decide. In other words the appellant says that Mr Larson's evidence infringed the principle known as the ultimate issue 'rule' and was thereby inadmissible.
The primary judge made observations on the law on the ultimate issue 'rule' [15] ‑ [17]. Those observations were not criticised by the appellant.
The precise scope of the rule and its exceptions is by no means clear. See, for example, Heydon JD, Cross on Evidence (7^th Aust ed, 2004) [29105] ‑ [29125].
The primary judge referred to more recent formulations, including in R W Miller & Co Pty Ltd v Krupp (Australia) Pty Ltd (1991) 34 NSWLR 129, 130 ‑ 131, as confining the exclusionary operation of the principle to expressions of opinion involving the application of a legal standard such as negligence. Cross [29125] supports the analysis in R W Miller & Co Pty Ltd v Krupp (Australia) Pty Ltd, 130 ‑ 131. See also Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 6) (Court's "Allstate" Judgment No 33) (1996) 64 FCR 79, 84; Van Den Heuvel v Tucker [2003] SASC 110; (2003) 85 SASR 512 [60] ‑ [61].
For reasons which follow, it is not necessary to attempt, in this case, a broad statement of the principle known as the ultimate issue 'rule'. On any view of the scope of the principle, it did not require the exclusion of the evidence of Mr Larsen upon which the magistrate acted.
The learned Magistrate did not admit the whole of the evidence of Mr Larsen. At ts 57 ‑ 58, the magistrate ruled that he would not receive evidence as to Mr Larsen's opinion on whether the steps taken complied with the Guide, ruling that that was a question for the court. Thus the magistrate did not receive the evidence, in par 27 of Mr Larsen's report, to the effect that the loading of the pallets on the truck 'clearly did not meet the performance standards as specified in the Guide'.
The limited extent to which the magistrate relied upon the evidence of Mr Larsen in reaching his decision is revealed in his reasons at ts 123 ‑ 124. He relied on the evidence of Mr Larsen that friction by the weight of the object would not always be sufficient, in that a combination of forces could dislodge or move the object. This evidence of Mr Larsen is to be found at ts 58 ‑ 59 and 85.
Consistently with that, the primary judge held that the essence of Mr Larsen's critical opinion was to the effect that, assuming the relevant facts, the load restraint system, such as it was, on the laden vehicle would not be capable of withstanding the forces which would result if it was subject to 0.2 g acceleration in a vertical direction [21].
As her Honour held, such evidence was open to be given by an expert, did not usurp the court's function and did not involve the application of a legal standard.
In oral submissions, the appellant put his submissions on grounds 1 and 2 on a basis which depended upon a particular construction of the word 'withstanding' in par 1 of s D of the Guide. He accepted that a construction of the Guide to the effect a load was not 'capable of withstanding' a vertical force of 0.2 g if, upon application of such force, the load moved at all, must result in the appeal being dismissed. However, the appellant submitted that more than mere movement was required before the load was not 'capable of withstanding' the force. What was said to be required was that there was 'unacceptable movement', or that the load was dislodged from the vehicle.
Thus the attack, on the basis of the ultimate issue rule, on the reliance by the magistrate on Mr Larsen's evidence was admittedly founded upon a particular construction of par 1 of s D of the Guide.
That construction was not advanced before the magistrate or, evidently, before the primary judge. Moreover, that construction was not consistent with the construction adopted by the primary judge (see reasons [21], [23]) and was not the subject of any ground of appeal in respect of which the appellant has been granted leave.
I would reject the attempt by the appellant to advance a different construction of par 1 of s D of the Guide, not advanced before the magistrate or before the primary judge, and not the subject of a ground of appeal before this court. As the different construction is admittedly the foundation of the complaint based on the ultimate issue rule, that complaint falls with the rejection of the attempt to advance the different construction.
In any event, I do not accept the alternative construction advanced in oral submissions. In support of the alternative construction the appellant relied on the reference in the Guide to 'unacceptable movement', in particular in the first sentence of par 1 of s D. However, for the following reasons, I do not accept the appellant's construction.
First, as a matter of ordinary language, a load withstands a force only if the application of the force does not cause movement of the load. A characterisation of the degree of movement as 'acceptable' is not necessary - if the load moves, at all, it has not withstood the force.
Secondly, the objectives in the second sentence include, in subparagraph (ii), that the 'load should not move relative to the vehicle'. There is no qualification of that by reference to the character or degree of the movement as being 'unacceptable'. (The proviso qualifies only the exceptions, and so does not detract from the point of present relevance.)
Thirdly, the construction advanced by the appellant would mean that the application of the performance standard involved a value judgment, on which views may well differ, as to whether movement resulting from one of the forces stipulated in subparagraphs (i) ‑ (iv) was 'unacceptable'. That is an unlikely intention in the context of the stipulation of specific quantitative requirements in the last sentence of the paragraph (which is, as the primary judge held, the critical part of the paragraph imposing the obligations).
Thus the complaint on the ultimate issue ground failed.
Next, the appellant complained that Mr Larsen gave his opinion without carrying out tests on the load in question or a load of the same nature and did not have specific expertise in relation to the carriage of bagged cement and lime stacked on pallets wrapped in heat sketch plastic.
For the reasons given by the primary judge [23], no testing was required in order that Mr Larsen could give the evidence upon which the magistrate relied. No testing was required in order to determine that the restraint system failed to meet the vertical requirement, because once the friction force was broken, for example by the truck hitting a significant bump, the extra force required by the standard, above the weight of the load itself, was absent.
Given the nature and subject matter of Mr Larsen's evidence upon which the magistrate relied, it was not necessary that he had specific expertise in relation to the carriage of bagged cement and lime. His evidence was founded upon general principles, primarily derived from physics. The material before the magistrate did not give rise to any reasonable basis to conclude that bagged cement and lime departed from these general principles.
Finally, these grounds also complained that the evidence of Mr Larsen did not have regard to the conditions of the road on which the defendant travelled, the level of traffic and the experience of the driver in carrying the load. Mr Larsen was not required to have regard to those matters. His opinion related to whether the load was capable of withstanding the forces specified by the performance standard. That was not a question sensitive to the particular conditions of the road to be travelled or other matters relied on by the appellant.
While not raised by the grounds, and not mentioned in oral submissions, the appellant's written submissions also asserted that Mr Larsen's opinion was not based on fact. Mr Larsen's report sets out what are factual assumptions, but expresses them as assertions of fact. Although it would have been preferable had those factual matters been expressed in terms of assumptions rather than assertions, in the circumstances of this case, that did not occasion any injustice. The magistrate did not take Mr Larsen's report as evidence of the factual assertions, or assumptions, within it. The factual assumptions made by Mr Larsen were, in any event, uncontroversial. See the reasons of the primary judge [19].
For these reasons, grounds 1 and 2 failed.

Conclusion

For the reasons given, I joined in the order of the court dismissing the appeal.