Dodd v Tamigi
[2007] WASC 42
•27 FEBRUARY 2007
DODD -v- TAMIGI [2007] WASC 42
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 42 | |
| Case No: | SJA:1043/2006 | 19 OCTOBER 2006 | |
| Coram: | JOHNSON J | 26/02/07 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | EDWIN ALFRED DODD VINCENZO GUISEPPE TAMIGI |
Catchwords: | Regulatory regimes for restraining loads on vehicles Meeting arbitrary standards Relevance of establishing that vehicle load secure despite being outside the standard Expert evidence "Ultimate issue rule" Whether examination of vehicle or load necessary before expert opinion evidence is received and relied upon |
Legislation: | Road Traffic (Vehicle Standards) Regulations 2002 (WA), reg 12(2) |
Case References: | R v Fowler (1985) 39 SASR 440 W Miller & Co v Krupp (Aust) Pty Ltd (1994) 34 NSWLR 129 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
VINCENZO GUISEPPE TAMIGI
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES' COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE S P SHARRATT
File No : GN 971 of 2004
Catchwords:
Regulatory regimes for restraining loads on vehicles - Meeting arbitrary standards - Relevance of establishing that vehicle load secure despite being outside the standard - Expert evidence - "Ultimate issue rule" - Whether examination of vehicle or load necessary before expert opinion evidence is received and relied upon
(Page 2)
Legislation:
Road Traffic (Vehicle Standards) Regulations 2002 (WA), reg 12(2)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr D L Armstrong
Respondent : Mr T C Russell
Solicitors:
Appellant : Altorfer & Stow
Respondent : State Solicitor
Case(s) referred to in judgment(s):
R v Fowler (1985) 39 SASR 440
W Miller & Co v Krupp (Aust) Pty Ltd (1994) 34 NSWLR 129
(Page 3)
- JOHNSON J:
Introduction
1 The appellant, Edwin Alfred Dodd, appeals against his conviction in the Magistrates Court sitting at Geraldton for driving a motor vehicle whilst its load was not appropriately restrained, contrary to reg 12(2) of the Road Traffic (Vehicle Standards) Regulations 2002 (WA) ("the regulations").
2 The following are the grounds of appeal on which the appellant relies:
"1. The trial Magistrate erred in law in receiving into evidence as an experts report the report of Dennis Richard Larsen which:-
(a) contained a summary and his interpretation of the provisions of the Local Restraint Guide.
(b) gave his opinion that the load carried by the Defendant did not meet the performance standards as specified in the Load Restraint Guide giving his reasons for the opinion being an issue that the trial Magistrate had to decide.
(c) gave his opinion on the load carried by the Defendant without carry out [sic] any tests including G-Force tests on a load of the same nature.
(d) gave his opinion on the load carried by the Defendant without any knowledge, experience or expertise in the carriage of bagged cement and lime stacked on pallets, wrapped in heat stretch 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) gave his opinion that the load was not restrained to prevent unacceptable movement and 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 drivers experience in carrying the load and his manner of driving.
- 2. The trial Magistrate erred in law in holding that:-
(a) it was sufficient for the Prosecution to prove the charge that the Defendant had not restrained the load in a manner that met the performance standards recommended in the Load Restraint Guide when the Guide itself recognised that alternative methods of restraint may be used.
(b) the Defendant had not restrained the load in a way that met the performance standards recommended in the Load Restraint Guide in that the load had no vertical or lateral restraints when there was no evidence that the load dislodged or moved unacceptably or at all during the journey, or that the load was not restrained so as to meet all expected conditions for the journey from the employers depot in Beaver Street along flat bitumen roads (apart from one section of road containing a slight decline) to its destination a few kilometres away in Ocean Street Geraldton on the 4 November 2003.
3. The trial Magistrate erred in law and in fact in finding the charge proved when:-
(a) at best it was the evidence of Mr Larsen that in extreme conditions the load may dislodge or move unacceptably.
(b) the Defence called expert evidence which contradicted the evidence of Mr Larsen.
(c) the method of restraint used by the Defendant had been used by him, his employer and another transport operator for many years without a pallet or its contents being dislodged or that the load had been subject to unacceptable movement in those years.
- (d) evidence adduced by the Defence namely a reconstruction of the journey taken by the Defendant and a tilt test done on the vehicle and load showed that the load was appropriately restrained and appropriately restrained for all expected conditions of operation.
(e) the load was on the 4 November 2003 for the journey to be to be undertaken by the defendant restrained with a combination of restraints which were appropriate methods of restraint for bagged cement and lime on pallets which restraints prevented the load from shifting, being dislodged or moving unacceptably."
3 It can be seen that the appellant's grounds of appeal raise issues concerning the proper interpretation of the instruments making up the regulatory regime and the admissibility of expert evidence as to restraining loads. The appellant also asserts that on the evidence before the Magistrate, which was accepted by him, it was not open to the Magistrate to find the charge proved.
Background
4 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 combing 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 combing rail.
5 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.
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6 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."
7 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."
8 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."
9 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;
(Page 7)
- (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."
10 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.
11 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.
12 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.
Grounds of appeal
13 The first ground of appeal questions the admissibility of Mr Larsen's evidence. It is said that in expressing an opinion that the load restraint system in use did not meet the performance standards, the witness was,
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- impermissibly, answering the very question which the Court had to decide.
14 This proposition raises issues of the ambit and status of the principle commonly referred to as the "ultimate issue rule", and whether, in any event, Mr Larsen's opinion addressed such an issue.
15 In "Cross on Evidence" 7th ed Butterworths, 2004, Heydon JD (ed) at 29105, the "ultimate issue rule" is referred to in this way:
"It is often said that the common law provides that an expert witness may not be asked the question which the Court itself has to decide."
16 The rule is subject to exceptions. For example, a psychiatrist may give evidence of his opinion as to the insanity of the accused at the time of the offence; a police officer may give evidence as to the drunkenness of a person charged with being drunk and disorderly. In addition, there seems to be a general exception when the evidence sought to be led is of particular assistance to the Court.
17 The rule has also been widely criticised: see for example, Jackson JD, "The Ultimate Issue Rule: One Rule Too Many" [1984] Crim LR 75; Freckleton I, Selby H, "Expert Evidence: Law, Practice, Procedure and Advocacy" 2nd ed Law Book Company, 2002 at 257; Samuels GJ, "Problems Relating to the Expert Witness in Personal Injury Cases", Glass HH (ed), "Seminars on Evidence" Law Book Company, 1970 at 139. Further, defining what is or is not an ultimate issue is often difficult: Jackson [1984] (supra). More recent formulations of the rule tend to confine its exclusionary effect to expressions of opinion which depend on the application of some legal standard: Samuels at 153 - 154; W Miller & Co v Krupp (Aust) Pty Ltd (1994) 34 NSWLR 129, 130 - 131; "Phipson on Evidence" 15th ed Sweet & Maxwell, 2000 at [37 - 12]. Of interest is the fact that the Evidence Act 1995 (Cth) s 80 abolishes the rule.
18 Mr Larsen's evidence was based on information given to him, including the instamatic photographs, in preparation for the furnishing of a report. He did not see the laden truck nor did he carry out any tests or take any measurements of it. To that extent his evidence was based on assumed facts.
19 Ideally, he should have been asked in the witness box to assume all the facts upon which his opinion was based: see R v Fowler (1985)
(Page 9)
- 39 SASR 440 at 442 per King CJ. However, the basis of Mr Larsen's opinion was clear from his report and his evidence, and that basis conformed with the undisputed evidence. Without independent proof of those facts, Mr Larsen's opinion would have fallen away. Whether those facts were satisfactorily proved was for the Magistrate to determine as was the issue of whether the accused was in fact driving the truck at the relevant time. Mr Larsen's evidence did not touch that issue. As I mentioned, there was no dispute about any of the evidence establishing these facts and they were accepted by the Magistrate. Nevertheless, the evidence offered by Mr Larsen went only to one element of the charge, being whether the restraint system described met the performance standards.
20 That said, it is true that in the way the charge was defended the only live issue was whether the method of restraint was appropriate. If the concept of ultimate issue is to be equated with the sole contested issue which, in my view, is unlikely, then the argument might be plausible. However, even then, I consider that it must fail.
21 If Mr Larsen's critical opinion was to be distilled to its essence it would be to the effect that, assuming the relevant facts, the laden vehicle would not necessarily be capable of withstanding the forces which would result if it were subject to 0.2 'g' acceleration relative to its load in a vertical direction. Viewed in that way, the evidence is plainly such as may be given by an expert. Such an opinion does not usurp the Court's function and does not purport to apply a legal standard. It is, essentially, an application of principles of physics to a given set of facts in order to arrive at what is tantamount to a measurement and, in my view, is clearly admissible.
22 A further aspect of this ground of appeal was the contention that the expert evidence lacked a proper basis due to the fact that Mr Larsen did not examine or test the truck or its load and he had no knowledge of the route taken by the accused on the day of the offence.
23 I consider this argument misconceives both the nature of Mr Larsen's opinion and the regulatory regime. Mr Larsen's opinion was ultimately a simple one. He acknowledged that frictional forces of the shrink wrap and the weight of the load would have the tendency to restrain it against movement and that, for unexceptional driving conditions, it would be adequate for that purpose. But the real question was whether the load was capable of withstanding the forces specified by the performance standards. That the restraint system failed to meet (at least) the vertical
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- requirement was self-evident, because once the friction force was broken by, for example, the truck hitting a significant bump, the extra weight required by the standard, over and above the load itself, was lacking. No testing was needed to reach that conclusion.
24 That conclusion did not rely upon, and indeed had no relationship with, road conditions or topography. The standards provided are arbitrary. To attempt to demonstrate that they are needlessly demanding for the trip in question is without purpose, except perhaps in terms of penalty.
25 Ground 2 and ground 3 may be considered together. They raise questions of interpretation of the Guide, together with arguments as to the sufficiency of the prosecution evidence, especially having regard to the weight of the defence evidence. In effect, both grounds assert that there has been a miscarriage of justice.
26 It was submitted that the Magistrate misinterpreted the performance standards set out in s D of the Guide. This argument focussed on what might be called the preamble to the recitation of the minimum standards required, as set out earlier. The particular sentence relied upon was this:
"Loads must be restrained to prevent unacceptable movement during all expected conditions of operation."
27 The appellant submitted that the notion of "expected conditions of operation" comprehended the roadways intended to be travelled and the conditions applicable to the journey. As to those, the appellant pointed to a videotape admitted into evidence showing the accused's truck, laden as on the day in question, undertaking without incident the relevant journey, as well as more onerous terrain and exercises. The appellant then referred to evidence given in the defence case by experienced truck drivers, including the accused, who had used the same system of restraint over a number of years and found it to be satisfactory. The purpose of this evidence was to prove that the method used to restrain the load was "appropriate", as required by cl 12(3) of Sch 1 of the regulations.
28 I consider that, again, the argument misunderstands the provisions. The sentence under consideration 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. Plainly the requirements of the Guide could not be interpreted so as to vary from locality to locality and trip to trip. The object must have been to provide certain minimum standards to be applied universally, pitched, as
(Page 11)
- Mr Larsen said, to provide protection against the one in twenty year event which might otherwise be disastrous.
29 Moreover, setting out to prove that the restraint system used was "appropriate" in the qualitative sense was pointless. That is so because the Guide itself effectively defines that word quantitatively, by setting out the minimum requirements. Therefore, contrary to the submission, the defence evidence did not contradict Mr Larsen's. It merely demonstrated that the requirements imposed were stringent ones.
30 Further, counsel for the appellant correctly submitted that the Guide comprehended that methods of restraint other than those recommended in the Guide might be used. In a section at page iv of the Guide, ahead of the "Table of Contents", there is such an observation. However such alternative methods are clearly stated to be available only if "they meet the performance standards outlined in s D1".
Conclusion
31 For these reasons I find that none of the allegations of error are made out. Furthermore, a fair reading of Mr Larsen's evidence against the background of the regulatory regime demonstrates that the decision reached by the Magistrate was well open to him. Mr Larsen's evidence was impressive. It seems that not only is he familiar with load restraint systems in a general sense, but he bore a major responsibility for the writing and compiling of the Guide. I agree with the Magistrate that, whilst there was no reason to doubt the reliability of the defence evidence, it did not in any way contradict or undermine Mr Larsen's evidence. Not only is no miscarriage of justice demonstrated, but on the evidence I would have reached the same decision as the Magistrate.
32 I would dismiss the appeal.
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