Fatchen v Duff - [2010] SADC 160

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
FATCHEN v DUFF
[2010] SADC 160
Judgment of Her Honour Judge Bampton
17 December 2010
TORTS - NEGLIGENCE - CONTRIBUTORY NEGLIGENCE - PARTICULAR CASES - ROAD ACCIDENT CASES
Plaintiff injured in a motor vehicle accident on 8 June 2000, while travelling as a passenger in a deflectograph truck. Plaintiff was engaged in road surface survey test work at the time of the accident. Defendant admitted liability. Plaintiff admitted that he was not wearing a seatbelt contrary to Rule 265 of the Australian Road Rules under the Road Traffic Act 1961 ("ARRs"). Whether plaintiff, as a road worker, is entitled to the exemption from the obligation to wear a seatbelt pursuant to ARR 310. Held: plaintiff not exempt from obligation to wear a seatbelt. ARR 310 not enlivened. Evidence of a workplace culture of not wearing seatbelts. Plaintiff's agreed damages must be reduced pursuant to s35A(1)(j) of Wrongs Act 1936.
Wrongs Act 1936; Australian Road Rules under Road Traffic Act 1961, referred to.
Gray v Kennewell (1991) 161 LSJS 86; S v Channel Seven Adelaide Pty Ltd & Another [2009] SASC 6; Harris v AGC (Insurances) Ltd (1984) 38 SASR 303; Vines v Djordjevitch (1955) 91 CLR 512 ; Avel Pty Ltd v Multicoin Amusements Pty Ltd (1990) 171 CLR 88 , considered.

FATCHEN v DUFF
[2010] SADC 160
Introduction

These proceedings were commenced by Gregory Fatchen and Stephanie Fatchen against Ross Allan Duff (“the defendant”) on 4 June 2003.
Gregory Fatchen’s claim is for damages for personal injuries he suffered in an accident on the South Eastern Freeway on 8 June 2000. Stephanie Fatchen is Mr Fatchen’s wife. Mrs Fatchen’s claim for loss of consortium was finalised on 16 March 2006 when consent judgement was entered in her favour.
Mr Fatchen was, at the time of the accident, employed by the Department of Road Transport, as a Technical Officer. He was a passenger in a deflectograph truck (“the truck”) performing the duties of an operator in a road surface survey test. Mr Fatchen’s colleague, Peter Gregory, was the driver of the truck. Another colleague, Trevor Thompson, was driving the backup vehicle travelling behind the truck. Prior to the accident, Mr Fatchen, Mr Gregory and Mr Thompson were in the process of surveying a stretch of road between Hahndorf and the Callington exit on the South Eastern Freeway.
A deflectograph truck is a vehicle used in road surface survey tests. The deflectograph evaluates the structural condition of road surfaces. Data obtained from testing is used to determine what road surface maintenance is required. The role of the truck was described as follows:
“A Mercedes Benz truck loaded with steel ballast provides a rear axle load of 8.2 tonnes. Two measurement beams attached to a moving sled are placed on the road surface ahead of the space between the tyres of the rear dual wheels. Deflections are measured by displacement transducers as the wheels approach and pass the tips of the beams. The data is recorded on cassette tape by the operating system fitted in the driver’s cabin.
The deflectograph operator and driver share the front cabin of the truck to enable good communication and assist in collecting local road information. A signed escort vehicle travels behind the truck under test conditions …..
The testing speed is a constant 3km/h for asphalt and 4km/h on sprayed seals. The test data is collected in each wheelpath while the vehicle moves forward and the beam sled is left stationary. After the maximum deflections are recorded the sled is winched forward and stopped at the next site, several meters ahead of the previous position. These test cycles continue automatically as the deflectograph proceeds along the test section, and are monitored on a display by the operator”.[1]
[1] Exhibit D2
The Accident
Shortly after 11am on 8 June 2000, the truck was in the left hand lane of the carriageway on the South Eastern Freeway, nearing the Callington exit, and the back-up vehicle was in the emergency stopping lane. The defendant was the driver of a prime mover also travelling in the left hand lane behind the truck. The defendant drove past the back-up vehicle at a speed estimated to be 110 kilometres per hour and collided with the rear of the truck. Both Mr Fatchen and his driver suffered significant injuries as a result of the collision.
Mr Fatchen’s injuries were catastrophic. He suffered a fracture dislocation at T7/8 resulting in complete paraplegia below T8 with permanent impairment and loss of function below waist level and a closed head injury which has resulted in persisting cognitive impairment, depression and anxiety.
The Pleadings
The copy documents dated 12 March 2010 comprise copies of the Statement of Claim dated 4 June 2003, a record of a consent judgment entered in the District Court on 16 March 2006 and a copy of an order of Judge Tilmouth dated 18 May 2009, setting aside the consent judgment.
Paragraph 6 of the Statement of Claim pleads that, liability having been admitted on behalf of the defendant, Mr and Mrs Fatchen are entitled to have their damages assessed.
Consent Judgement
Consent judgment was entered on 16 March 2006 in favour of Mr Fatchen in the sum of $2,000,000.00 inclusive of interest but in addition to costs and disbursements fixed in the sum of $53,000.00. Consent judgment was also entered in favour of Mrs Fatchen in the sum of $20,000.00.
Significantly the following “Note” is recorded on the record of outcome for the consent judgment.
“That the judgment is on the basis of a 75/25% apportionment of liability in the first plaintiff’s favour, that is, a 25% reduction for failure to wear a seatbelt.”
Order to vary consent judgement
On 18 May 2009, with the consent of the parties, Judge Tilmouth set aside the consent judgment entered for Mr Fatchen. His Honour’s order is:
BY CONSENT THE COURT ORDERS that:
The judgment entered for the first plaintiff on 16 March 2006 is varied as follows:
1. Declare that the first plaintiff is to have judgment against the defendant;
2.Order that the first plaintiff’s damages are assessed in the amount of $2,666,667.00 inclusive of interest;
3.Order that the judgment for the first plaintiff in the sum of $2,000,000 stand as an interim award of damages;
4.Order that the action proceed to trial on the question whether the first plaintiff’s damages as assessed are to be reduced pursuant to s35A(1)(j) of the Wrongs Act 1936 (SA);
5.Order that the first plaintiff pay the defendant’s costs of and incidental to the application to vary judgment filed on 20 September 2006 on a solicitor/client basis, certified for senior counsel.
It is noted that:
1.The defendant has paid the first plaintiff the amount of $2,000,000 pursuant to the order of 16 March 2006;
2.The defendant has paid the plaintiff the sum of $53,000 on account of costs and disbursements pursuant to the order of 16 March 2006.
The defendant consented to the setting aside of the consent judgment, giving Mr Fatchen an opportunity to argue that he was exempt from the requirement to wear a seatbelt on 8 June 2000 as he was not aware, at the time he consented to judgement, of the exemptions for road workers from the requirement to wear a seatbelt prescribed by the Australian Road Rules under the Road Traffic Act 1961 (“the ARRs”)
Preliminary Issue
Mr Fatchen’s counsel, Mr Krupka, submitted that there is only one issue to be tried in this matter and that is the issue of contributory negligence. He submitted that the defendant bore the onus of proving contributory negligence and as a result should be dux litis.
Further, Mr Krupka submitted that, as there was no admission on the pleadings that Mr Fatchen was or was not wearing a seatbelt contrary to the provisions of the Road Traffic Act 1961, the defendant must be dux litis. He added that the evidence would be that neither Mr Fatchen nor his driver had any recollection of the immediate lead up to the accident. They both suffered post traumatic amnesia and in such circumstances it would be highly unfair to expect Mr Fatchen to prove either the wearing of the seatbelt or that not wearing a seatbelt were within the terms of the requirements of the Road Traffic Act 1961.
Ms Powell QC for the defendant expressed surprise that Mr Fatchen had no memory of whether he was wearing a seatbelt. I was referred to the affidavit sworn by Mr Fatchen on 12 August 2008, filed in support of the application to set aside judgment. In particular at paragraph 2 where he deposes:
At the time of the collision I was not wearing a seatbelt. …. impractical for me to wear a seatbelt.
Ms Powell QC argued that the defendant’s insurer had been acting on the basis that Mr Fatchen had conceded that he was not wearing a seatbelt, particularly given that he had consented to the consent judgment with the 25% reduction and the fact that he had made application to set aside the consent judgment on the basis he had failed to raise any possible exemption from the automatic 25% reduction prescribed by the Wrongs Act 1936.
It was not in dispute that Mr Fatchen’s solicitor had notified Medicare of the consent judgement stating “in the settlement TAC applied the 25% reduction to Mr Fatchen’s failure to wear a seatbelt pursuant to the provisions of the Civil Liability Act 1936 as amended”.
The question is finely balanced. See S v Channel Seven Adelaide Pty Ltd & Another[2] and Harris v AGC (Insurances) Ltd[3].
[2] [2009] SASC 6 at [27] – [44]
[3] (1984) 38 SASR 303
Ultimately, in the exercise of my discretion, I concluded that Mr Fatchen ought to be dux litis. I took into account that Mr Fatchen has an evidentiary onus prescribed by the two limbs of ARR 310(1). ARR 310, set out at paragraph 29 below, provides exemption from certain ARRs to road workers in certain circumstances. I also took into account the concession made by Mr Fatchen that he was not wearing a seatbelt which is encapsulated in the consent judgment entered 16 March 2006. Clearly the defendant was not in any position to lead evidence as to the wearing of the seatbelt in light of the concession made by Mr Fatchen.
Order to File an Amended Statement of Claim and Defence
It became evident during Mr Krupka’s submissions in the dux litis argument and in his opening there was a possibility the defendant would be put to proof regarding the wearing of the seatbelt. Despite Mr Krupka submitting that order 3 of Judge Tilmouth’s order made it clear what issue had been referred to trial, nothing had been pleaded into issue regarding the wearing of the seatbelt. In order to clarify exactly the parameters of the issue to be tried, and to avoid adjournment of the trial, I ordered Mr Fatchen to amend his Statement of Claim and the defendant to file a defence so that the issue requiring determination would be clearly and unambiguously defined by the pleadings.
In his Amended Statement of Claim filed 15 March 2010, Mr Fatchen admitted that he was not wearing a seatbelt at the time of the accident. He further pleaded that this was not contrary to the requirements of the Road Traffic Act 1961 and that he was exempt from wearing a seatbelt pursuant to ARR 310. Mr Fatchen’s asserted entitlement to rely on ARR 310 is pleaded into issue by the filing of the defence on 16 March 2010.
Issue to be Determined
Upon the filing of the Amended Statement of Claim and the Defence, the issue for determination became clear. That is, whether Mr Fatchen, having admitted he was not wearing a seatbelt, was exempt at the time of the accident from the obligation to wear a seatbelt pursuant ARR 310.
Legislation
Section 35A Wrongs Act 1936
Repealed s35A of the Wrongs Act 1936 prescribes the principles applicable at the time of Mr Fatchen’s accident governing the assessment of damages in relation to injuries arising from motor accidents. In particular, s35A(1)(j) creates a statutory presumption that the injured person was negligent in not wearing a seatbelt.
Section 35A(1)(j) provides:
If the injured person (not being a person being under the age of 16 years) was, contrary to the requirements of the Road Traffic Act 1961, at the time of the accident, not wearing a seatbelt, the damages to be awarded must, on account of that contravention, be reduced by 25 per cent.
The defendant’s written submissions set out the history of legislative changes culminating in the enactment of s35A(1)(j) of the Wrongs Act 1936 in 1998 and the ARRs. The legislative history demonstrates that the exemption provisions of the Road Traffic Act 1961 and ARRs have become more limited in terms of the exemption to the requirement to wear a seatbelt. The Wrongs Act 1936 specifically operated in accordance with the legal requirements of the Road Traffic Act 1961. The seatbelt provisions of the Wrongs Act 1936 were punitive in nature as they did not require a causative connection between the failure to wear a seatbelt and the extent of the injury suffered.
Australian Road Rules under the Road Traffic Act 1961
ARR 264 mandates that a driver must wear a seatbelt properly adjusted and fastened unless the driver is:
(a) reversing the vehicle; or
(b) exempt from wearing a seatbelt under rule 267.
Relevant to Mr Fatchen’s situation as a passenger in the truck is ARR 265 which provides for the wearing of seatbelts for passengers 16 years or older.
(1)A passenger in or on a motor vehicle that is moving, or is stationary but not parked, must comply with this rule if the passenger is 16 years old or older.
Offence provision
Note—
Motor vehicle and park are defined in the dictionary.
(2) The passenger must occupy a seating position fitted with a seatbelt if:
(a)there is a seating position fitted with a seatbelt that is not already occupied by someone else who is not exempt from wearing a seatbelt; and
(b) The passenger is not exempt from wearing a seatbelt under rule 267
(3)If the passenger occupies a seating position fitted with a seatbelt, the passenger must wear the seatbelt properly adjusted and fastened unless the passenger is exempt from wearing a seatbelt under rule 267.
…..
ARR 267 provides exemptions from wearing seatbelts to persons who are exempt under another law, persons engaged in door-to-door delivery or collection of goods or collection of garbage or persons carrying a certificate issued under another law stating they are not required to wear a seatbelt. Mr Fatchen is not entitled to an exemption under ARR 267.
It is ARR 310, Mr Fatchen said, which exempted him from wearing a seatbelt. ARR 310 provides exemptions for road workers from wearing seatbelts as follows:
(1)A provision mentioned in subrule 2 does not apply to a person at the site of, or engaged in, roadworks if, in the circumstances:
(a) it is not practicable for the person to comply with the provisions; and
(b) sufficient warning of the roadworks has been given to other road users.
Note-
Roadworks is defined in subrule (4).
ARR 310(2) sets out the provisions that the exemption in ARR 310(1) applies to, including ARR 265 prescribing the wearing of seatbelts by passengers. ARR 310(4) defines roadworks to include works defined in subparagraphs (a) to (f). Relevant to this matter is ARR 310(4)(f) which includes a road surface survey test in the definition of roadworks.
Burden of Proof
Mr Krupka submitted that the defendant carries the burden of proof. He contended that the wording of s35A(1)(j) of the Wrongs Act 1936, goes some way to addressing the significant potential for unfairness to plaintiffs by placing the onus on the defendant of not only proving the non-wearing but also of proving that this was contrary to the provisions of the Road Traffic Act 1961.
He submitted that, pursuant to ARR 310, it is incumbent on the defendant as defacto prosecutor to disprove any defence. He ultimately submitted that the court should have regard to considerations of fairness and, accordingly, find the burden of proving that ARR 310 does not apply falls upon the defendant.
In response to those submissions, Ms Powell QC submitted that ARR 310 provides for the exemption from the application of specified rules (but not all of them) to persons at the site of, and engaged in, roadworks, if the two contingent circumstances are found to co-exist. If they do not, then there is no exemption from ARR 265. If Mr Fatchen’s work cannot bring him within both limbs of the ARR 310(1), then he has failed to comply with the mandatory requirement to wear a seatbelt prescribed by ARR 265.
As submitted by the defendant, under the “less draconian” scheme, before the repealed s35A(1)(i) of the Wrongs Act 1936 could apply, it had to be shown the plaintiff was in breach of s162AB(1) of the Road Traffic Act 1961, and did not have “special reasons” justifying non-compliance or did come within the prescribed exemptions. The onus fell on the person asserting the existence of special reasons for not wearing a seatbelt to demonstrate those reasons. See Gray v Kennewell[4].
[4] (1991) 161 LSJS 86
ARR 265 prescribes a principle of liability intended to apply generally. ARR 310 provides “for some special grounds of excuse, justification, or exculpation depending upon new or additional facts”, attracting the principle in Vines v Djordjevitch[5]. The principle is explained by McHugh J in Avel Pty Ltd v Multicoin Amusements Pty Ltd: [6]
When a statue imposes an obligation which is the subject of a qualification, exception or proviso, the burden of proof concerning that qualification, exception or proviso depends on whether it is part of the total statement of the obligation. If it is, the onus rests on the party alleging a breach of the obligation. If, however, the qualification, exception or proviso provides an excuse or justification for not complying with the obligation, the onus of proof lies on the party alleging that he falls within the qualification, excuse or proviso: Vines v Djordjevitch
[5] (1955) 91 CLR 512 at 519
[6] (1990) 171 CLR 88 at 119
In my opinion this question falls to be determined having regard to the following factors:
·    Mr Fatchen has admitted that he was not wearing a seatbelt.
·    He does not come within ARR 267 exemptions.
·    He is therefore in breach of ARR 265.
·    It is for him to prove on the balance of probabilities that he can bring himself within the contingent ARR 310.
Mr Fatchen and his colleagues are the only witnesses who are able to give evidence about whether, in the circumstances, the wearing of a seatbelt was not practicable.
It follows that the onus of proof lies on Mr Fatchen, as the party alleging he is entitled to the ARR 310 exemption.
ARR 310
Mr Krupka submitted that the best reading of the ARR 310 is that the road survey worker is excused under ARR 310 from wearing a seatbelt if:
·He is at the site of a road survey test;
·He is performing a road survey test; and
·The duties that he had to carry out in the course of his shift are not reasonably compatible with the wearing of a seatbelt.
Mr Krupka submitted that the phrase “in the circumstances” should not be interpreted such that a road survey worker should be exempted or not exempted on “a moment by moment basis”.
An exemption under ARR 310 is not related to the title of the work engaged in, the position the worker holds or the vehicle used in the road works.
Further, the Minister of Transport had, as at 8 June 2000, not exercised his general power to grant exemptions from the Rules under Regulation 7 of the Road Traffic (Road Rules – Ancillary & Miscellaneous Provisions) Regulations 1999, under the Road Traffic Act 1961 to grant an exemption to deflectograph operators or in respect of work performed on deflectograph trucks.

An ARR 310 exemption concerns what is being performed at the time that the vehicle is travelling in road surface survey test mode, and, in this particular case, concerning the application of s35A(1)(j) of the Wrongs Act 1936, the circumstances of the road surface survey test and persons at the site of and engaged in it prior to the accident.
The issue of whether it is not practicable for a road worker to wear a seatbelt in the circumstances of his work is to be determined by reference to the established facts. So, too, the issue of whether sufficient warning was given.
The Macquarie Dictionary, Revised 3^rd Edition, 2001 defines “practicable” as:
Capable of being put into practice, done or effected, especially with the available means or with reason or prudence; feasible.
Parliament, in including ARR 310(4)(f) in the definition of road works, intended that there would be instances in which persons at the site of, or engaged in a road survey surface test, would, in the circumstances, find it was not practicable to wear a seatbelt.
Had Parliament intended that persons engaged in road surface survey work be exempted for all work at the site of and whilst engaged in a road surface survey test, Parliament would have legislated a blanket exemption for such persons. Parliament did not do so and it is therefore necessary to consider on a case by case basis whether, in the circumstances, it was not practicable to wear a seat belt.
The question then arises whether this involves an assessment of each of the tasks the operator must do during his shift. There are of course certain tasks that make it clearly impracticable to wear a seatbelt. For example, alighting from the truck to remove debris from the path of the truck or checking the operation of the sled.
Does “not practicable”, in the circumstances, suggest that the person has undertaken a comparative assessment by attempting to perform the task(s) whilst wearing a seatbelt and has found wearing a seatbelt in the circumstances is not practicable whilst performing the task(s)? Does he organise the cabin of the truck and the things he will need during a shift to make sure everything that can be made accessible is made accessible whilst wearing a seat belt, minimising the times he will not be wearing a seat belt?
The concept of “not practicable” is difficult to determine. However, it is one prescribed by Parliament. It raises the question as to whether one determines whether conduct is practicable in prospect or in hindsight.
In determining whether ARR 310 had been enlivened on the events of the accident, I am mindful of the potential pitfalls of considering the matter with the benefit of hindsight. As Debelle J warned in Hall v Foong[7]
It is important that the court does not allow hindsight to insinuate itself into its reasoning. Hindsight is no doubt useful in other contexts but, as a general rule, it must be avoided when determining liability. As Megarry J observed in Duchess of Argyll v Beuselinck[8]
In this world there are few things that could not have been done better if done with hindsight. The advantages of hindsight include the benefit of having a sufficient indication of which of the many factors present are important and which are unimportant. But hindsight is no touchstone of negligence. The standard of care to be expected of a professional man must be based on events as they occur, in prospect and not in retrospect.
[7] (1995) 65 SASR 281 at 304
[8] [1972] 2 Lloyds LR 172 at 185
If one were to ask in prospect before commencing work, “Is it not practicable to wear a seatbelt?” The answer may be – “Possibly, depending upon the function that will be performed at the time.”
The Evidence
In determining whether Mr Fatchen is entitled to the ARR 310 exemption, it is necessary to consider his evidence and that of his colleagues regarding the work of a road surface survey test operator.
Mr Fatchen
Mr Fatchen gave his evidence as best he could. His memory was clearly affected by the passage of time, the effects of his head injury, and, in his words, by stress. When he did not know an answer to a particular question he suggested one of his colleagues may be able to answer the question.
Mr Fatchen told me he could not recall any of the duties he performed on 8 June 2000 as an operator. He described the tasks he had performed as an operator prior to the day of the accident. Mr Fatchen’s evidence was that he had never worn a seatbelt whilst the truck was in test mode. He said that he had never tried to perform his duties whilst in test mode with a seatbelt and he was never told he had to wear his seatbelt in “work mode”.[9]
[9] T97.3 - 20
Mr Fatchen described that the computer was located to the right of the operator in the passenger seat of the truck. He said that when the truck was in test mode the operator looked for road furniture and maintenance markers etc. He had to mark on sheets of paper exactly what he observed in order that the road maintenance engineers could assess how best to fix the road surface.
Other members of the road survey team were the driver of the truck and the back-up vehicle driver. Mr Fatchen said that on a double carriageway like the South Eastern Freeway, a warning vehicle travelling in front of the truck was not required; only the warning vehicle travelling behind the truck. The warning vehicle carried warning lights and signs to alert other road users to the truck ahead.
Mr Fatchen said that he sat next to the driver and his role was to put information into the computer and be in contact with the back-up vehicle. Mr Fatchen said that he had driven the truck probably ten times, performed the duties of an operator probably ten times and been the driver of the back-up vehicle hundreds of times.
Mr Fatchen said that the duties of the driver in addition to driving were to help move the sled up and down and to make sure the truck travelled at a set speed.
Mr Fatchen described that the back-up vehicle travelled about 500 metres behind the truck and duties of the back-up driver were to be in two-way radio contact with the truck and to make sure that the truck was visible.
Mr Fatchen said that it was the duty of the operator and the driver prior to leaving the depot to check the sled, ensure the cables of the sled were tight and had friction, make sure the truck was clean and the lights were visible.
Mr Fatchen said that he and his colleagues were told by a supervisor which parts of a particular road had to be tested between particular maintenance markers. He said that the operator had to make sure he had enough floppy disks for the computer. He had to make sure there were enough signs and lights and all were in working condition. He said the truck had a “Slow Moving Vehicle” sign, four flashing lights and the flashing arrow bar.
Mr Fatchen described that once the truck had got to the test site, the sled would have to be lowered down and the road was marked with road marking paint to show the start point. The back-up driver travelled back as far as he could ensuring he was still within sight of the truck. They communicated by radio control to advise that they were about to start and check whether everything was in working order.
Mr Fatchen described that there were three cabins on the truck, the driver cabin, the sleeper cabin and the back cabin. The back cabin was only accessible through a door on the outside of the truck.
He said that once the testing started, his duties as an operator would include;
·    Operating the computer
·    Writing and filling in worksheets on the desk
·    Accessing a 3 drawer cabinet for pens and test sheets located behind his seat and inaccessible when he was sitting straight in his chair
·    Observing and noting maintenance markers and road furniture
·    Accessing his briefcase
·    Accessing the first aid kit
·    Accessing the storage compartment over windscreen
·    Accessing food and drinks for himself and driver from eskies etc in the sleeper cabin
·    Using the 2 way radio
·    Accessing wet weather clothing and safety clothing in the sleeper cabin
·    Getting off the truck to clear debris from the road
·    Getting off the truck to check operation of sled.
·    Getting off the truck to inspect cracking and seals on the road surface in order to be able to describe them accurately
He said that at the end of the testing, they would stop the truck, he would mark the road where the test had finished, pull down the signs, lift the sled up and proceed back to the depot.
Mr Fatchen described the seats in the cabin and he said that the seatbelt installed was a lap sash seatbelt. He said that it restricted his movements. He said that it kept him straight and he couldn’t move forward. The constant moving up and down of the seat caused problems. Mr Fatchen said that he had to lean forward to write on the desk which he described as being about an arms length away. He said that the computer was to the front and to the right of him at about 45 degrees. He said that he would lean towards it and the keyboard because it was rigid.
Mr Fatchen said that he could not effectively do the duties he was required to do on the computer if he was wearing a properly adjusted seatbelt. When asked whether he could effectively enter data onto the computer if he was wearing a properly adjusted seatbelt that held him back in the seat, Mr Fatchen answered:
“I don’t think. I never did. No, I don’t think you could.”[10]
[10] T84.8
Mr Fatchen described the cabin as his office. He said that if he wore a seatbelt he would be held rigid in an office sort of situation.
In cross examination, Mr Fatchen was asked about the evidence he gave at the criminal trial against the defendant. In relation to a question put to him by the defendant’s counsel regarding the wearing of a seatbelt, he said: “there was no need of a seatbelt”. He accepted that he had said this, but he said that he could not remember whether he said anything about not being able to do his job with a seatbelt on.[11]
[11] T105
It was put to him in this trial that the reason he did not wear a seatbelt was because he was of the view there was no need to. Mr Fatchen said that was still his view.[12]
[12] T107.11
He also said:
A.“It was a practice we didn’t wear our seatbelts because we were in work mode.”
Q. “And because you believe that when it was work mode, there was no need”
A.“That’s because we had to get out of the van, we had to turn around to get our lunch, we couldn’t have a- having a desk in front of you to write, you would have to lean forward to write as people have shown here”. [13]
[13] T107.21-28
In cross examination, Mr Fatchen said that he couldn’t remember whether or not he wore a seatbelt whilst travelling to the worksite.
Mr Fatchen was asked about his memory prior to the accident and the evidence he gave at the criminal trial to the effect that he recalled leaving the depot on 8 June 2000 and travelling to where the testing started. He described starting the actual test and he told the jury that his memory stopped before he was hit by the semi trailer at a point when he was looking at the computer.[14] Mr Fatchen said that at the time he gave the evidence, that probably would have been his recollection, but his memory had got worse since the criminal trial.
[14] T117 - 118
Mr Fatchen said he would have to get out of the truck, on average, about four or five times a day during testing.
Darren Holloway
Darren Holloway is a Servicing Technical Officer in the pavement construction section of the Department of Transport, Energy and Infrastructure. In the year 2000, he held the position of supervisor in the pavement construction section which conducts road survey tests. Mr Holloway said that he started road survey work around 1987. He gave evidence that the department purchased the truck in around 1981 – 1982. He said that the original truck remained in service until the accident. In addition to all the operator tasks identified by Mr Fatchen, Mr Holloway added making a coffee in the back cabin of the truck or getting one from a shop, accessing the air conditioning controls and occasionally hanging out of the cabin to check the sled.
He said that he originally drove the truck and then he was the operator. His evidence was that he did not wear a seatbelt as an operator or a driver even when travelling from and to the work depot.[15] It was also his evidence that there was only one operator in his experience who wore a seatbelt to and from the test site.
[15] T169.37-38
Trevor Thompson
Trevor Thompson was the driver of the backup vehicle on 8 June 2000. He had worked as an operator in the 1980’s. He said seatbelts were worn going to and back from the test site but not worn whilst in test mode in the 1980s.[16]
[16] T223.2-4
Peter Gregory
Peter Gregory was the driver of the truck on 8 June 2000. He had also worked as an operator and, in his experience, in the five years prior to the accident, neither driver or operator had worn a seatbelt whilst in test mode. Mr Gregory said that the need to look out the window to check for events was a reason for the operator not to wear a seatbelt, as well as the need to get to shelves and drawers and things stored behind the seat.
All of the witnesses gave their evidence in a straightforward and truthful manner. Mr Fatchen’s evidence was affected by lapses in his memory recalling events from 10 years ago and the difficulties he suffers as a result of his head injury. The defendant accepted that Mr Fatchen’s evidence was affected by these limitations. Where Mr Fatchen’s evidence varies or is contradicted by the evidence given by the other witnesses, I prefer their evidence. No evidence was called by the defendant.
The evidence of the witnesses is discussed in more detail by reference to each limb of ARR 310 under the headings of:
·1^st Limb of ARR 310- (a) it is not practicable for the person to comply with the provisions
·2^nd Limb of ARR 310- (b) Sufficient Warning of the roadworks has been given to other road users.
1^st Limb of ARR 310 - (a) it is not practicable for the person to comply with the provisions
In order to determine whether Mr Fatchen satisfied this limb it is necessary to examine the work he performed as an operator in the cabin of the truck.
Mr Fatchen, Mr Holloway and Mr Gregory all gave evidence that the operator could not perform his duties whilst wearing a seatbelt. Of all the duties, it was submitted that the need to exit the truck whilst it was moving to observe the movement of the sled, was perhaps the most urgent. It was submitted that whilst there is a natural reluctance to stop the truck for false alarms, failure to stop the truck quickly if the sled was out of alignment could result in significant damage to the deflectograph equipment, a forced abandonment of the day’s work and the possible need for extended repairs.[17] The only way that the operator could tell what was wrong with the sled was by getting off the truck and observing it whilst in operation.
[17] T241.26-37 & T243.l4-10
Mr Krupka submitted that the regularity of the need to get out of the truck varied. When asked for an average of how many times a day one would alight from the moving truck, Mr Holloway said:
…I can’t take a guess at it, because there were days when we would have a lot of things go wrong and you would be in and out all day. [18]
[18] T189.22-24
Mr Fatchen gave evidence that cables would break at any time. Mr Gregory also gave evidence that the need for the operator getting out of the vehicle varied. He said:
…Well once again it could be – one day you might be hopping out of it quite often, another day you might not. It’s just one of those things…[19]
[19] T255.9-11
It was submitted that as the operator had to be prepared to alight quickly to inspect the sled at any time, wearing a seatbelt was inconsistent with his duties at all times.
It was submitted that stopping the truck involved shutting down the computer, marking the last part of the road tested, requiring both the driver and operator to get under the truck to lift up the sled by hand and hook the two beams up off the road and then get back into the truck to move it off the road. When commencing again, all this had to be done in reverse. The truck would be moved back onto the road where it had stopped, the arrow boards would be checked, the sled and beams would be manually lowered and the computer restarted.[20]
[20] T243.15 - T244.3 & T166.16 - 25
Mr Fatchen estimated that the whole procedure including packing and unpacking the sled would take about half an hour.[21] As a result, stopping was avoided wherever possible.[22]
[21] T90.30
[22] T93.8, T93.24, T93.37
It was submitted considering the evidence as a whole, that there are many duties that the operator had to perform that were not reasonably workable if he was required to wear a seatbelt. It was submitted that the driver’s cabin was in fact the operator’s office, with multiple storage areas and many items needed for the performance of the duties, and it was not practicable to access these items whilst wearing a properly adjusted seat belt.
Mr Krupka submitted that whilst it may have been possible to perform some duties while wearing a seatbelt, for example, leaning forward to write or leaning to the side to operate the computer, it was not practicable to do these things for an extended time due to discomfort and occupational health and safety considerations,[23] particularly on days when the team was in the truck for 13 hours.
[23] T160.6 & T161.23-28
It was submitted that the operator’s seatbelt available to Mr Fatchen on the day of the accident was not problem free. It tended to lock if one moved quickly[24] and the locking could not be predicted.[25] As his seat moved independently of the seatbelt, the seatbelt became very uncomfortable after a while.[26] Mr Holloway said that complaint was made about the seatbelts when the air seats were installed but nothing was done about it.[27]
[24] T153.34
[25] T153.38 – T154.2
[26] T154.26 & T170.10 - 22
[27] T199.8-17
I will now consider the main duties or tasks identified as incompatible with wearing a seatbelt.
Operating the Computer
The defendant submitted that the first matter to be noted with this task, as with others involving either a turning of the head or body of the operator within the truck, is that the seatbelts fitted were retractable seatbelts[28] which locked into a fastener on the floor.
[28] T153.30-31 & D1 (two photographs of the interior of damaged truck)
Section 5 of the Road Traffic Act 1961 defines “seatbelt” as “a belt or device fitted to a motor vehicle and designed to restrain or limit the movement of a person who is seated in the motor vehicle if it suddenly accelerates or decelerates”.
The defendant submitted that there is nothing in the definition to suggest that there is the requirement that the belt not allow any movement to the right or left, forward or backward. It was submitted that I can take judicial notice of the movement permitted by the retractable seatbelts.
In cross examination, Mr Fatchen agreed that the seatbelt in the truck allowed him to move without being held rigidly against the back of the seat.[29]
[29] T99.33
Mr Fatchen also agreed that the seatbelt would not have stopped him from using the computer.[30] The computer was located, according to Mr Holloway, 300mm from the operator’s right side at an angle of 45 degrees.[31] The defendant contended that the operator’s right arm would not be restrained by the seatbelt.
[30] T136.10-30
[31] T155.15-18
Mr Holloway’s evidence was that the main problem with the seatbelt was when the truck was travelling to the test site. [32]
[32] T153.15-26
It is noted that there is no exemption available to persons travelling to and from a road surface survey test site. The ARR 310 exemption is only available to persons at the site of and engaged in a test, subject to the ARR 310 criteria being satisfied. If the main problem with wearing a seatbelt is whilst in ordinary travel mode as stated by Mr Holloway, then the arguments put forward against seatbelt wearing whilst in test mode are less persuasive.

The defendant contended that the issue is not one of practicability. Rather, the issue is the perception of comfort, ease and lack of restriction.
Writing and filling in worksheets on the desk
Mr Fatchen agreed that the extendable seatbelt would have allowed him to lean forward to write on the desk.[33]
[33] T136.9-11
The defendant submitted that despite Mr Fatchen’s evidence that the desk was an arm’s length away, Mr Holloway said that the desk could be moved forward and back and was maybe 300 millimetres away from the operator.[34]
[34] T154.31 – T155.1
The defendant said that the seatbelt did not prevent Mr Fatchen from leaning forward and, as such, it was not impracticable to wear a seatbelt whilst undertaking this duty.
The defendant referred to Mr Holloway’s evidence regarding this duty:
Q.Could you easily perform all your writing duties whilst back in your seat restrained by a properly adjusted seatbelt.
A.Yes, it’s possible but it was uncomfortable.[35]
[35] T161.23-26
Accessing Equipment, Food, the 3 Drawer Cabinet and Other Items in the Cabin Behind the Seats
The defendant said that this could be done by the operator while wearing a seatbelt.
More importantly, the defendant said that because the operator never wore a seatbelt, the equipment, food etc, had not been arranged or stowed in such a way as to render the tasks easier to perform while wearing a seatbelt. Mr Holloway agreed, in cross examination, that the organising of the items needed to perform the operator’s duties had not happened because the operator never wore a seatbelt.[36]
[36] T198.18 – T199.7
Making Observations
The defendant said that wearing a seatbelt while making observations was not impracticable as borne out by Mr Holloway’s answers to questions on this topic:
Q.And you could have made the observations of the road furniture as you were required to do, including the maintenance markers and the streets and the bridges and that sort of thing. You could do that with your seatbelt on, couldn’t you.
A. Yes.
Q.And when the new seats came in that all remained the same, except we now had the added discomfort, is that right.
A. Yes.[37]
[37] T194.25-31
Operating Radios and Air Conditioner
Mr Fatchen gave evidence that he could not access the two-way radio to communicate with the back-up vehicle while wearing a seatbelt[38] and, in cross examination, he said that he would probably have to stand up to use the radio.[39]
[38] T88.32 - T89.2
[39] T136.31 – T137.2
Mr Holloway said that the radio was on the driver’s side. In cross examination he said that when he was the driver, and if he remembered, he would place the two-way radio microphone within reach of the operator.[40]
[40] T197.36 - T198.17
Mr Thompson’s evidence was that when he acted as a back-up driver, it was always the driver he had contact with on the radio.[41]
[41] T222.6-9
Mr Gregory said that when he was the driver, he was the one to talk to the back-up driver.[42]
[42] T254.3-17
The defendant submitted that Mr Fatchen’s evidence about the use of the two way radio is disquieting as the evidence demonstrated that it was not the operator’s duty to talk into the two-way radio for 99% of the time.
Mr Holloway’s evidence about the air conditioning controls was that they were not accessible to the operator wearing a seatbelt but “they would have been in the same position as the two-way radio”.[43] The defendant said that this meant that they would have been accessible to the person in the driver’s seat and there was no need for the operator to have access.
[43] T168.14-15
The Requirement of the Operator to get in and out of the Truck.
The defendant submitted that the plaintiff’s evidence on the requirement to get in and out of the truck was couched in conditional terms of what could or could not happen. For example, he “could probably” hop out of the truck and check the seal of the road.[44] He said that sometimes he would have to get out of the truck to describe cracking on the road surfaces and “probably had to” get out to identify different types of seal.[45] He said that sometimes there were abnormalities on the computer screen and he would know what caused them and “sometimes you have to go out and investigate”.[46]
[44] T67.36
[45] T70.17-27
[46] T68.31
In answer to whether there were times when he needed to get out of the truck quickly, he identified only what might happen – “…if you’re going over train lines you’d probably have to…”.[47]
[47] T69.17
Mr Fatchen was asked whether there was a policy with regard to stopping the truck. He said that there was no policy, it was up to the team. He went on to say that the only time they “would stop was if there was debris on the road in front and that would never happen on the freeway; it probably would be a case of limbs falling off trees but it almost never does that”.[48] This suggests that there was less reason to get off the truck during testing on the Freeway.
[48] T93.20-28
Mr Fatchen said, in cross examination, that he may have to get out of the vehicle on average four or five times in a 7.5 hour shift.[49] The defendant submitted, by reference to the evidence at T131.7, that Mr Fatchen seemed to be speaking from what people had told him rather than from his memory.
[49] T130.27-29
Mr Holloway said that the operator would get out of the truck between three to five times during a 7.5 hour shift. He said that when he was an operator, sitting in the passenger seat all day became very uncomfortable. He would get out, pick up cans, stretch his legs to relieve the boredom.[50]
[50] T169.27-32
Mr Thompson said that when he was an operator in the 1980’s he would get out three or four times per day.[51]
[51] T223.29-34
Mr Gregory said that he would agree that the operator might get out on average about four times in a 7.5 hour shift.[52] Mr Gregory said that there were probably one or two occasions he could recall needing to get out of the truck quite quickly when the sled had been run over.[53]
[52] T255.23-30
[53] T255.37 – T256.5
The defendant did not dispute that, from time to time, it was necessary for the operator working in the truck to get out of the truck and then return to his position as a passenger. However, it was submitted this was not a case where the operator had to get out of the truck regularly,[54] and the evidence does not correlate the work of the operator to that of a door to door delivery person or garbage collector.
[54] Opening T26.3
Finding Regarding 1^st limb of ARR 310
It was obvious that on the occasions when the operator had to get off the truck, to check the sled, remove debris from the path of the truck or access the back cabin, so that it was not possible to comply with ARR 265, he would be entitled to the ARR 310 exemption. I find that the requirement to get off the truck was not so frequent or constant as to make it not practicable to wear a seatbelt at all other times. To put it another way, using the Macquarie Dictionary definition of practicable, it has not been demonstrated that wearing a seatbelt was not feasible or capable of being done with the “available means or with reason or prudence”.
I find that Mr Fatchen has not established that, on 8 June 2000, whilst engaged in the road surface survey test, in the circumstances, it was not practicable to comply with the requirement to wear a seat belt. As the first limb of ARR 310 has not been enlivened ARR 310(1)(b) does not need to be considered. If I am wrong, I set out the evidence and my finding with respect to ARR 310(1)(b).
2^nd Limb of ARR 310- (b) Sufficient Warning of the Roadworks has been given to other road users
Trevor Thompson and Peter Gregory gave evidence about the warning to other road users on the day of the accident.
Mr Krupka submitted that sufficient warning of the roadworks was given to other road users on 8 June 2000 and that this was a case of the defendant falling asleep at the wheel.
Mr Thompson said that the truck had a sign above the roof saying “Slow Test Vehicle Pass With Care”.[55] He said that the sign was above an electric arrow flashing on and off, pointing, in this case, to the right, because the truck was testing the left lane.[56] Mr Thompson said there was another sign saying “Slow Test Vehicle” that would have been above the tailgate of the truck.[57] He said that there were flashing lights, one on each side of the top sign and another two mounted on the tailgate.[58]
[55] T208.33
[56] T209.7
[57] T209.15
[58] T209.33 & T210.10
Mr Thompson gave evidence that all signs and lights on the truck were working prior to the accident.[59]
[59] T210.29
Mr Thompson also gave evidence that the backup vehicle he was driving was similar to a Toyota Hi-Ace. He said that it had a flashing electric arrow, as on the truck, a sign on the tow bar saying “Slow Test Vehicle Ahead” and flashing lights either side of the electric arrow.[60] Mr Thompson said that he drove in the emergency stopping lane of the South Eastern Freeway staying about 500 meters behind the truck.[61]
[60] T210.34 – T211.13
[61] T211
Mr Thompson gave evidence that the accident occurred at about 11.15am on a clear day in circumstances where the truck was visible from at least one kilometre behind.[62]
[62] T210.16 – T213.9
Mr Thompson said that the defendant’s prime mover passed at approximately 110 kilometres per hour. After it passed him, and prior to colliding with the rear of the truck, Mr Thompson observed that there was no change in speed and no change of direction by the defendant’s prime mover.[63]
[63] T215.18 – T216.2
In cross examination he agreed, that on 6 July 2000, one month after the accident, he had given a statement to a Major Crash Investigator typed into declaration form and signed by him on 10 October 2000. He agreed that he had said to the police that the sign on the back-up vehicle on 8 June 2000, read “Slow Test Vehicle” rather than “Slow Test Vehicle Ahead”. He said, in evidence, that this was just an “unintentional omission”.[64] It was submitted by the defendant that I might find it is likely that he had a better memory and was more reliable in the weeks and months following the accident rather than ten years later.
[64] T231- T232
The defendant submitted, if I was to find on balance, or not be satisfied on balance, that the sign Mr Thompson said in this trial was mounted on his vehicle, did not in fact read “Slow Test Vehicle Ahead”, but rather was the sign reading “Slow Test Vehicle” he had described to police in July 2000, then that sign would be an insufficient warning. It would be insufficient because road users travelling in the left hand lane, having passed the back-up vehicle, might well be of the view that they had already passed the slow test vehicle and were permitted to remain at the speed limit in the left hand lane.
Mr Gregory said that there was definitely a sign up high on the truck but he was unsure of what it said. He said that there was a flashing arrow to the right and “two road safety flashing lights up high”. He said that underneath the arrow board was a sign saying “Slow Test Vehicle” and two more rotating flashing lights on the truck.[65] Mr Gregory said that he tested the signs in the yard before the truck went on the road on the day of the accident and they were all in working order.[66] Mr Gregory also gave evidence about the signs and lights on the back-up vehicle. He said that there was a flashing arrow similar to that on the truck, two flashing rotating lights and a sign which said “Test Vehicle Ahead” or “Slow Test Vehicle Ahead”.[67]
[65] T247.13-24
[66] T247.28-30
[67] T284.3-4
Mr Holloway said that the truck was fitted with four rotating flashing lights. He said that there were two on the rear top cab and two underneath the tray at the rear. He said that there was also an arrow board with a directional arrow, which directed traffic left or right and there were magnetic signs on the back which read “Slow Test Vehicle” and a big sign on the roof. He couldn’t recall exactly what it said, but said it was something like “Testing Vehicle”. He said that the rear escort had two rotating flashing lights, an arrow board and a sign on the back that informed people “Test Vehicle Ahead”.[68]
[68] T173.19-29
Mr Holloway said that when contacted by Major Crash Investigators following the accident, the control box with the arrow board was removed from the truck and plugged into another vehicle, and it demonstrated that the arrow was pointing to the right. He said that the arrow board on the truck had been destroyed and couldn’t be tested.
Mr Holloway gave evidence with respect to exhibit D3, a book published by Transport SA dated January 2000 titled “Work Book Basic and General Workzone Traffic Management”.[69] His evidence was that, as at the date of the accident, the work book set out the relevant practices required to be followed. He agreed that at the bottom of the information on page 3 of the book, reference is made to the work book being a guide only and not intended to replace the Australian Standard 1742.3, Manual of uniform traffic control devices, Part 3: Traffic control devices for works on roads.
[69] T177
Mr Holloway’s evidence was:
“With road works the Australian Standard set out – and that’s the minimum requirements that you must follow to set out a road works sign, you can exceed the standard, you can put extra things in place, but you can’t go below the minimum of what the standard says, that’s my understanding.”[70]
[70] T177.31-36
Exhibit D4 was also shown to Mr Holloway. Exhibit D4 comprises 7 pages of extracts from a Handbook titled the “Field Guide for Traffic Control at Works on Roads, part 3: Mobile Works”. The second page of Exhibit D4 is headed “Preface” and states:
This Handbook is intended to provide guidance for personnel engaged in mobile works. It is applicable to any works carried out by constantly moving vehicles and covers works on all types of roads including expressways and freeways.
and it purports to
….contain only those provisions of AS1742.3 that are considered to apply in particular cases with which it deals, and for convenience reproduces them in summary form.
Exhibit D4 includes diagrammatic descriptions of what the requirement was for traffic control in individual mobile work situations. Mr Holloway agreed that figure 14 of Exhibit D4, being the relevant diagram for test or survey vehicles on a multi-lane road, would be the standard with respect to the South Eastern Freeway.[71] He said that Exhibit D4 would be well known to his operators and it would have been kept in the back-up vehicle “at the time”.[72]
[71] T179.33-36
[72] T179.37 – T180.18
Figure 14 depicts the backup vehicle or the tail vehicle travelling behind the test vehicle and states that the backup vehicle “always travels in the same lane as the work vehicle”.
Mr Thompson said that he was travelling in the emergency stopping lane behind the truck. In cross examination he was asked to look at exhibit D4 figure 14. He said that was not the way the back-up vehicle operated on 8 June 2000. When asked if it ever did it, he said:
We did it that way when there wasn’t any opportunity to be off to one side for safety reasons.[73]
[73] T228.1-24
He also said in examination in chief that he was instructed to drive in the emergency stopping lane, staying approximately 500m behind the truck:
“…but not to just keep crawling along at the same speed as the truck; I had to move forward to about 400m away and then stop and put the van out of gear and then, when the truck was about 600m or so away, I would move forward again.”[74]
[74] T211.32-38
With respect to the placing of a fixed sign, Mr Thompson agreed that “We could have if we wanted to…”.[75] Accordingly, it is submitted by the defendant there was not sufficient warning of road works given to other road users.
[75] T233.30- T234.29
The defendant submitted that, to the extent that the supervisor Mr Holloway said that the Standard provided a minimum requirement in respect of roadworks signage for mobile works, then that minimum requirement was not complied with in the facts of this case.
Mr Krupka argued that Exhibit D4 was not an Australian Standard. It was an unknown author’s interpretation of the Australian Standard and it is of no evidential value.
Finding regarding 2^nd limb of ARR 310
I accept, having regard to Mr Thompson’s evidence about what he had been instructed to do as the driver of the back-up vehicle and why he drove in the emergency stopping lane, his vehicle was in the correct position. Having regard to the evidence of Mr Holloway, Mr Gregory and Mr Thompson, I accept the sign on the back-up vehicle read “Test Vehicle Ahead” or “Slow Test Vehicle Ahead”. I am prepared to accept that the signs and lights on the truck and back-up vehicle provided sufficient warning. The defendant was not called to give evidence that the signs were not in place and the lights were not working. I find that sufficient warning was given.
Culture of Not Wearing Seatbelts on the Truck
The defendant submitted that the failure to wear seatbelts by both the operator and the driver, on the day of the accident, had nothing to do with it not being practicable and everything to do with the culture of not wearing seatbelts in the truck that had become entrenched over many years. The defendant urged me to find that seatbelts were not worn by either the driver or the operator on 8 June 2000, or for the years leading up to that date, while driving in ordinary mode from the depot to the place where the road surface testing commenced. I am urged to find this despite Mr Fatchen’s evidence in chief that belts were worn.[76]
[76] T95.10-12
In cross examination, Mr Fatchen changed to not being able to remember whether seatbelts were worn in transit to the testing site.[77] On this issue, I prefer the evidence of Mr Holloway and Mr Gregory.
[77] T112.15-18
Mr Holloway’s evidence was that, as an operator, he did not wear a seat belt “… especially when we were travelling”.[78] He said that when he was working as a driver, Bevan McDermott was the only operator who wore a seatbelt to and from the worksite.[79] In cross examination Mr Holloway said that prior to the air seats, he did not wear a seatbelt as either a driver or an operator.[80] When he was asked why he did not wear a seatbelt on the way to the site when he was a driver before the new seats were fitted, he answered “Because they were restrictive”.[81] He said that when the air seats were installed between 1997 and 2000, he attempted to wear the seatbelt while working as an operator and driver. However, as the air seats would compress up and down, the seatbelt would lock across the shoulder.[82] As a result, seatbelts were not worn.
[78] T169.38 & T170.1-9
[79] T171.15-17
[80] T191.34-38 & T192.1-29
[81] T193.18
[82] T153.15-22
Mr Gregory’s evidence was that he spent five years up to the year 2000 working 80% of the time as a driver and 20% as an operator on the truck. He said that drivers never wore a seatbelt whilst driving to the test site or while testing and neither did the operators including Mr Fatchen.[83]
[83] T248.26 – T249.20
I agree with the defendant that, whilst not wearing seatbelts while travelling to the test site is not decisive of the issue with respect to ARR 310, the fact that seatbelts were not worn indicates a disregard for ARR 265. As far as the operator wearing a seatbelt while the test is being undertaken, Mr Fatchen gave evidence that he did not and there was no need to.[84] Mr Holloway, as an operator, never wore a seatbelt.[85] No other operators or drivers, in his experience, either before or after the new seats were fitted, wore seatbelts.[86] Mr Thompson said that seatbelts were not worn while testing when he was an operator in the 1980’s.[87] Mr Gregory said that in the five years leading up to 2000, neither he nor any driver or operator wore seatbelts while testing.[88] The defendant submitted that this was due to the culture that had evolved of not wearing seatbelts, rather than by reason of it not being practicable. The defendant said that this is demonstrated by the following passage from Mr Holloway’s evidence:
Q.Would you agree with me if I put this to you: really, up until 2000, in respect of the work of this deflectograph within the truck itself, that is operator and driver, there was really just a culture, wasn’t there, of not wearing seatbelts.
A.I can’t answer that for about other people, no.
Q.Well from what you observed from when you were doing the job.
A.Yes, and you will still see if now. If you look at a lot of them driving heavy vehicles, a lot of them don’t wear seatbelts.
Q.Whether they are breaching the Road Traffic Act or not.
A. Yes.[89]
[84] T105.1-28
[85] T169.36
[86] T192
[87] T223
[88] T248.36 - T249.19
[89] T195.37-196.11

The defendant said that further evidence of the culture of not wearing seatbelts is found in the following answers Mr Holloway gave regarding the ability to perform the various tasks of an operator while wearing a seatbelt:
Q.In terms of where you stored things, like putting your lunch behind your seat and having forms in the drawers rather than out and ready, perhaps, in a folder on the table –
A. yes.
Q.- they were all matters of aspects of the job which developed, did they not, because, I suggest to you, the operator or the driver didn’t wear seatbelts. Do you understand what I mean.
A.I don’t – really that had nothing to do – it was just you took that stuff out there and it was – that’s where it was put because that was the only place you could put it.
Q.But let me put that reverse, the other side of the coin of that. If, in fact, you were wearing the retractable seatbelts at all times when you were moving in the vehicle, it would have been easy within the cabin of that truck to rearrange the things that you needed so that they could be within very easy reach, couldn’t it.
A.You could, yes.
Q.And what I am suggesting to you is that things were arranged as they were in the truck not because that was the only way you could do it, but that was because this culture had developed of people not wearing seatbelts. Did you understand what I mean.
A.Yes, I understand, yes.
Q.Would you agree with that.
A.Yes. [90]
[90] T198.18 –T199.7
Mr Gregory also gave evidence of the culture that had been built up in respect of wearing seatbelts in the truck:
Q.    And did you wear your seatbelt while you were backing up for the test.
A.    I did.
Q.    Was that because the – was it always the Toyota Hi-Ace.
A.    No, I actually drove a Toyota Camry station wagon we had for a while as well.
Q.    As well.
A.    Yes.
Q.    Was it because the Toyota Camry and the Toyota Hi-Ace felt more like a car.
A.    Correct.
Q.    Whereas the truck cannot feel like a car.
A.    That’s fair.
Q.Because it is not as though you had some conscientious objection to seatbelts. When you were driving in your own vehicle you would wear your seatbelt.
A.Correct.
Q.And you would always do so in the backup vehicle.
A.Correct.
Q.Would you agree with me if I said this: within your division or your part of Transport SA, and particularly in respect of the operation of the deflectograph, they build up a bit of a culture over the years that you didn’t wear your seatbelt in the truck.
A.I think you are probably right.
Q.Because nobody ever made any comments about it.
A.No.
Q.Nobody ever gave you any directions about it.
A.No.
Q.You never sought to go to any supervisor about it.
A.No.[91]
…
Q.And nobody said anything about the seatbelts because it was just a given that you didn’t wear seatbelts in the truck. Would that be fair.
A.That would be fair.[92]
[91] T249.30 – T250.22
[92] T251.30-33
The defendant submitted that the evidence about culture is sufficient to establish, on balance, that Mr Fatchen’s failure to wear a seatbelt on 8 June 2000 had nothing to do with it not being practicable, and had everything to do with the culture that had developed. The defendant did not deny that there may have been some inconvenience in wearing a seatbelt, and some restriction, but that did not amount to it not being practicable.
The defendant asked that it be remembered that Mr Fatchen, while giving evidence in chief, talked about how he could not perform the various tasks in the conditional sense. He said “He could not have or he would not have been able to….”. It is submitted that the reason Mr Fatchen gave these answers is apparent in the following evidence.
Q.Do I understand you – when you were describing what your duties were and you answered a number of questions of Mr Krupka yesterday, when you said things like you would “probably not be able to lean forward and write on the desk” and you would “probably not be able to use the computer” if you had your seatbelt on – you really don’t know whether you could or you couldn’t.
A.I have never tried.
Q.You have never ever worn the seatbelt-
A.I have worn the seatbelt in the truck going to and from.
A.But you have never tried to do your duties with a seatbelt on.
A.I was never told that in work mode you had to wear your seatbelt.
Q.I understand that. I am not suggesting that you were being disobedient to orders, I am just saying that’s the fact. You never tried to do your duties with your seatbelt on.
A.No.[93]
[93] T97.4-22
The defendant also referred to the following evidence as demonstrating that Mr Fatchen still held the view at time of the trial that there was no need to wear a seatbelt:
Q.Is it your view to this day, when you reflect back on your job as an operator on the deflectograph truck that you didn’t wear a seatbelt while you were working because there was no need to. Is that still your view.
A Yes.
Q.That is still your view. And that’s the reason why you didn’t have a seatbelt on. It wasn’t anything to do with not being able to do your job, was it. It was because it was the culture of those who worked in the deflectograph truck that there was no need to wear a seatbelt.
A.No.[94]
[94] T107.7-18
The defendant contended that Mr Fatchen has failed to discharge the evidentiary onus imposed by the first limb of ARR 310 or, in the alternative, the defendant has established on balance that it was not impracticable for Mr Fatchen to have failed to comply with ARR 265 on 8 June 2000.
Conclusion
Mr Krupka submitted that, in effect, the driver cabin of the truck was Mr Fatchen’s office and that it would be no more practicable for a Judge to wear a seatbelt in chambers than it would be for the operator to wear a seatbelt in the truck. It was submitted that discomfort can not be ignored, as discomfort over an extended period of time can make a duty impracticable.
However, if his cabin is seen as his office, it is a mobile office. It is an office in transit, in this case on a freeway where vehicles are permitted to travel up to a speed of 110 kilometres per hour. It is a freeway which frequently carries large road trains, buses and all manner of other vehicles. Further, the road surface survey test vehicle had to carry warning signs and lights to alert other road users to its presence on the road. Simply put, the truck is an impediment or a road hazard or as Mr Fatchen said a “menace” to the free flow of traffic on a freeway constructed to enable the efficient flow of traffic.
There is no doubt that the wearing of a seatbelt is uncomfortable whilst travelling a long distance and would be uncomfortable if, in the operator’s situation, one needs to reach to obtain things from the cabin behind and perform the tasks described by Mr Fatchen. In my view, this becomes an occupational health and safety issue. It becomes a work place issue. It is a matter that should have been taken up with supervisors, managers and those who gave directions to the road survey team in order that the cabin, the “office”, could be made a more comfortable work place. The fact that this was never done, gives support to the argument that a work place practice or culture of convenience had developed whereby seatbelts were not worn. The argument is reinforced by the evidence that seatbelts were not worn to and from the test site. Mr Fatchen and his colleagues went about their work as if they had a blanket exemption from ARR 264 and 265.
The safety of the occupants of a vehicle on a road is paramount. I am not satisfied that the evidence established that apart from the occasions when the operator needed to get out of the truck to check the sled or remove debris or access the back cabin, it was not practicable to wear a seatbelt.
Taking into account the fact that the number of times an operator may have to alight from a truck may vary, I am not satisfied that the evidence established that the number of times was such that it rendered wearing a seatbelt “not practicable”.
There is no evidence that Mr Fatchen was about to or needed to alight the truck just prior to the accident.
I have found the first limb of ARR 310 has not been satisfied and, whilst as a result of that finding the second limb does not need to be considered, I have indicated that I am satisfied that, in the circumstances, sufficient warning of the roadworks had been given.
Irrespective of this finding, I find that a workplace culture of not wearing a seatbelt existed at the time of the accident which had nothing to do with a consideration of circumstances provided for by ARR 310.
The evidence of culture in this matter, of in effect, the driver and operator performing their duties as if they had a blanket exemption from ARR 264 and ARR 265, make it unnecessary to determine this matter pursuant to ARR 310.
It seems to me that ARR 310 creates for both employee and employer, significant difficulties in determining which circumstances make the wearing of a seatbelt “not practicable” in prospect. It may be that Parliament ought to reconsider the exemptions applicable to road surface survey work and provide more specific guidance.
I find that as ARR 310(1) has not been enlivened, Mr Fatchen is not exempt from the obligation to wear a seatbelt.
Accordingly his damages must be reduced pursuant to s35A(1)(j) of the Wrongs Act 1936.
Noting that Mr Fatchen’s damages are agreed in the sum of $2,666,667 inclusive of interest, judgement will be entered for Mr Fatchen for $2,000,000.00 inclusive of interest being the agreed damages reduced by 25% for failure to wear a seatbelt.