Kennedy v Roads and Traffic Authority of New South Wales

[1999] NSWCA 74

CITATION:	KENNEDY v ROADS & TRAFFIC AUTHORITY OF NEW SOUTH WALES [1999] NSWCA 74
FILE NUMBER(S):	CA 40904/97
HEARING DATE(S):	24 March 1999
JUDGMENT DATE:	24 March 1999
PARTIES :	Robert Neil Kennedy Roads and Traffic Authority of New South Wales
JUDGMENT OF:	Mason P at 29; Giles JA at 1; Fitzgerald JA at 30

LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S) :	CLD 12940/93
LOWER COURT JUDICIAL OFFICER:	Hulme J

COUNSEL:	Appellant - P C B Semmler QC & R F Wilkins Respondent - R S McIlwaine SC
SOLICITORS:	Appellant - Kingston & Swift, Nelson Bay (Young & Cooke, Sydney agent) Respondent - Ferguson Holz, Sydney
CATCHWORDS:	NEGLIGENCE - truck rollover - whether excessive speed - whether excessive speed contributed to rollover; DAMAGES - injury in truck rollover - assessment of percentage of a most extreme case.
DECISION:	Dismissed with costs.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40904/97
SC 12940/93

MASON P
GILES JA
FITZGERALD JA

Wednesday 24 March 1999

KENNEDY v ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES

JUDGMENT

1 GILES JA: The appellant, Mr Robert Kennedy, was employed as a driver by the respondent, the Roads and Traffic Authority of New South Wales. On 1 May 1992 the appellant was driving a tanker comprising a prime mover and trailer from the respondent's depot in Broken Hill to a work site some distance out of the city. The tanker was a little under half full of bitumen. When the unit was turning right from Bonanza Street into Patton Street on the outskirts of Broken Hill, the trailer overturned, pulling the prime mover with it. The appellant was injured.

2 The appellant sued the respondent, alleging that the accident occurred as a result of its negligence. Hulme J held that the respondent had been negligent, in that it had required the appellant to take the tanker from the depot before the bitumen had been heated to a liquid state. At atmospheric temperatures bitumen is solid. When heated to 160-180 degrees Celsius it is a free flowing liquid. At intermediate temperatures it is viscous, described as being like honey, and it was known that it was dangerous to drive a tanker half full of bitumen in a viscous state because it tended to make the tanker unstable. On the afternoon prior to 1 May 1992 the appellant had asked his ganger, Mr McIntyre, if he could come in an hour earlier on the following day and heat the bitumen so that it would be hot enough to cart, but the request was refused. When the appellant checked the temperature of the bitumen on arriving at the depot early on the morning of 1 May 1992 it was 125 degrees Celsius, and he asked Mr McIntyre for an hour to heat the bitumen up, but Mr McIntyre refused. The appellant accordingly set out for the work site with the bitumen in a viscous state. The respondent’s negligence in requiring him to do so, his Honour found, contributed to the accident.

3 But his Honour also held that negligence on the part of the appellant had contributed to the accident. The appellant held a dangerous goods driver's licence, and knew of the danger I have mentioned. His Honour concluded that it was probable that he went into the corner at a speed which was excessive irrespective of the temperature of the bitumen. It was found that the respondent's negligence and that of the appellant both contributed to the accident and to the appellant's injuries, and that the responsibility should be apportioned two-thirds to the respondent and one-third to the appellant. So the appellant's damages were reduced by one-third. The damages included $49,000, before reduction, for non-economic loss, assessed at 25 per cent of a most extreme case.

4 The appellant appealed in relation to two matters, (a) the reduction of the damages by one-third by reason of contributory negligence; and (b) the assessment of non economic loss on the basis of only 25 per cent of a most extreme case. He filed detailed written submissions and presented oral submissions with slightly different emphasis in some respects. Important in the oral submissions were the propositions that there was no evidence on which his Honour could have found contributory negligence, that there was no proof that excessive speed materially contributed to the accident, and that his Honour had erred in concluding that excessive speed probably contributed to the accident. The emphasis in the oral submissions was on the issue of causation in relation to excessive speed. In what follows I endeavour to address the written submissions and the oral submissions in an amalgamated way.

5 I deal first with contributory negligence.

6 It was submitted that his Honour had erred in finding that the appellant had gone into the corner at an excessive speed. Bonanza Street and Patton Street had continuous double separation lines leading into and away from the intersection. The appellant had cut the corner, there being no physical impediment to his doing so, and tyre marks showed the curved track which he followed. The tyre marks were not skid marks, but scuff marks caused by the outside edges of the near side and off side tyres on the trailer abrading on the road surface as a result of weight transfer. Any liquid in the trailer of the tanker would move laterally when the tanker turned a corner. The particular instability of a tanker half full of viscous bitumen was, according to Mr Simpson called as an expert by the appellant, because in a slow cornering situation, where the liquid is subjected to lateral acceleration over a longer period of time, the liquid will "climb" to a greater height than otherwise might be the case, but will then also take a longer period of time to flow back down to the bottom of the tank. The result in a right-hand turn would be not just that the weight transfer brought more downward force on the left-hand wheels than the right-hand wheels and a lateral force tending to cause the trailer to overturn, but that the weight transfer would build up during cornering in a manner enhancing the lateral force. But his Honour considered that the scuff marks were not wholly the product of this mechanism, saying -

"Scuff marks such as occurred here are not a normal incident of the negotiation of a turn by an articulated vehicle and in my view the marks, particularly their early part, indicate a probability that the plaintiff went into this turn at a speed which was excessive irrespective of the low temperature of the bitumen. In my view the existence of the scuff marks as early in Bonanza Street as they appeared, and the fact that they both commenced at about the same time indicates the probability that there was considerable transfer of weight to those portions of both near side and off side tanker tyres as were on the outside at the turn before there would have been any substantial transfer of the weight of the bitumen. Any significant transfer of the bitumen's weight would have tended to reduce the weight on the off side tyres."

7 His Honour was said to have erred in this respect for a number of reasons.

8 First, it was said that the evidence did not support that the scuff marks commenced at about the same time or sufficiently early that they indicated transfer of weight to the outside edges of the tyres prior to any substantial transfer of the weight of the bitumen. Photographs taken after the accident showed tyre marks, but did not give a clear indication of their commencement. Sketches drawn by Senior Constable Rosam were imprecise, although showing the tyre marks commencing at about the same time, but Senior Constable Rosam gave evidence that the tyre marks began "well back from the intersection" and "at roughly the same spot". Mr Simpson agreed that it was possible that when the scuff marks first occurred "it was more due to the turn and the speed of the turn and the weight of the trailer than the operation of the liquid in it", and that "a possible explanation for the inside scuff marks in Bonanza Street is that this truck was going relatively fast for the intersection." (The passages in which this agreement is found will be referred to later in these reasons.)

9 In my opinion, on the question of commencement of the scuff marks and what they indicated it was well open to his Honour to find as he did, and his finding was supported, if not dictated, by the scuff marks corresponding to the off side tyres on the tanker. The reasoning in his Honour's finding, and that it underpinned Mr Simpson's agreements to which I have referred, appears from the more full passages. The passages are as follows -

“Q. Your opinion, as I read it, involves the proposition that the viscosity of the liquid meant that its sideways force on the vehicle, at least sufficient to overturn the vehicle, only really arose well into the turn? A. Yes. It was increasing all the time.

Q. Does the position where that scuff mark seems first to appear indicate anything to you as to the forces then being applied to the rear wheels of the trailer? A. They were certainly considerable at that time. The trailer must have been turning. I am assuming that that mark is constant or very close to constant in its radius, which means that the turn had commenced well prior to the production of the skid mark.

Q. But given when I infer to be your understanding of the viscosity of this bitumen, at that stage it would not be applying - it would be applying a much smaller sideways force on the trailer than later. Is that right? A. Yes.
Q. Can scuff marks such as that occur even in the case of solid loads in the course of a turn? A. Yes.

Q. If one makes an assumption that this material was reasonably viscous, is it possible that when those scuff marks first occurred it was due more to the turn and the speed of the turn and the weight of the trailer rather than the operation of the liquid? A. Yes.”

“HIS HONOUR: Q. what is your explanation for the inside scuff marks as early as they seem to be in this photograph in Bonanza Street, that is photograph D3 (shown). What are the possible explanations for the inside scuff mark as early as it seems to be in Bonanza Street and then what is the most likely of those possible explanations. If you do not feel able to answer the question, of course say so? A. Well, on the assumption that they were in fact caused by the inside rear trailer wheels, or tyres, it can only mean that the truck was commencing or was turning at that point with sufficient acceleration to overload the outside of the tyres on both sides. In other words, it was starting to roll at about that point.”

10 As a facet of this submission, the appellant complained that his Honour had wrongly rejected Mr Simpson's evidence that the turn had commenced well prior to the production of the tyre marks (see the first answer in the first of the passages from the transcript just set out). What his Honour said was that Mr Simpson's basis for so saying was not revealed and that he was not persuaded that it was justified. His Honour expressed the view in general that his impression of Mr Simpson was that he was far too ready to find fault with the respondent and to minimise any responsibility of the appellant, and that he was not an objective witness. Bearing that in mind, read as part of the entire passage from the transcript I do not think that the appellant gains any comfort from what Mr Simpson said. That the turn had commenced prior to the tyre marks was consistent with tyre marks from both near side and off side tyres on the trailer due to excessive speed preceding any effect of movement of the bitumen, and Mr Simpson agreed in re-examination that the fact that the trailer had a viscous load delayed the weight transfer. The assumption made by Mr Simpson for the purpose of his remark about the turn commencing well prior to the production of the tyre marks was not to be assumed, and what was meant by well prior to the tyre marks was not established. In my opinion his Honour's observation was justified, and in any event the use the appellant seeks to make of this element of Mr Simpson's evidence can not readily stand with Mr Simpson's agreement at the end of the relevant passage from the transcript.

11 Then it was said that his Honour had erred in rejecting the appellant's evidence of the speed at which he took the corner. The appellant said that he had been travelling at about 30 to 35 kilometres per hour, and that he slowed down to about 10 kilometres per hour when approaching Patton Street. He said that he knew the speed was 10 kilometres per hour by looking at the speedometer, but the appellant had told Mr Simpson that the speedometer did not work at 10 kilometres per hour, and when Mr Simpson had asked something to the effect "would it be about a fast walking pace" the appellant had answered in the affirmative. It is not to be wondered that his Honour did not find the appellant's evidence of his speed acceptable, and also did not find the alternative extracted by Mr Simpson an impediment to a conclusion, if otherwise thought proper, that the appellant's speed was excessive in the circumstances. His Honour did acknowledge that the appellant's driving record was "pretty good", and that the appellant was aware of the need to drive cautiously, as indeed was readily acknowledged by the appellant. His Honour said that he nevertheless found the scuff marks and other matters to which he had referred compelling. I do not think that the error complained of has been made out.

12 Then it was said that his Honour had erred in drawing adverse inferences against the appellant on the basis that he failed to call evidence from any of the occupants of the truck driving behind him at the time of the accident. The truck carried what were described as "RTA boys", one of whom quickly smashed the windscreen of the prime mover and helped the appellant out of it. It was said that there was no evidence which would support the conclusion that the occupants of the truck saw the manner or speed of the driving of the tanker, and no reason to treat them as persons whose absence from the witness box should give rise to adverse inferences against the appellant.

13 What his Honour had said was that the appellant had given evidence that he got on well with the people he worked with and those in charge, and "it is a reasonable inference therefore that none of the 'RTA boys' would have given evidence corroborative of the plaintiff's evidence of speed". His Honour did not otherwise indicate that he drew inferences adverse to the appellant, or in any way comment on the absence of the RTA boys from the witness box. This is to be contrasted with his explicit reference to the respondent's failure to call Mr McIntyre as a fact "which makes it easier to accept the plaintiff's evidence of the circumstances which led to him carrying the half cold (as it was called) load, its dangers and of the defendant's knowledge thereof", and with his observation that the fact that the respondent obtained an expert's report but did not tender it or call the expert was something which made easier the acceptance of the evidence called by the appellant and the drawing of inferences. I am not persuaded that his Honour did relevantly draw inferences adverse to the appellant. He recorded the fact, and what may have been the reason for the fact, that there was no evidence of the appellant's speed from those who might have seen the accident. It was an explanation for a possible absence of evidence, not a process of reasoning adverse to the appellant.

14 Going then to the issue of causation, which as I have said was the prime focus of the appellant's oral submissions, it was submitted that his Honour had erred in that excessive speed in making the turn was not shown to have contributed to the accident - indeed, in the written submissions it was said that the tenor of Mr Simpson's evidence was that a slow and gradual turn increased the hazard rather than reduced it because there was a longer period of eccentric distribution of the load for the duration of the turn.

15 Mr Simpson's report had included "speed of vehicle and corner radius" amongst the factors governing the likelihood of what was described as a low speed rollover, and in its summary had identified as the prime cause of the accident the movement of the bitumen within the tank caused by the lateral acceleration as the tanker negotiated the corner, that movement being enhanced by the lack of longitudinal baffling to the tank. At one point in the report Mr Simpson observed that it had been shown that where a rollover actually occurred at or after the corner, it occurred due to a vehicle travelling too slowly, referring at that point to a pendulum motion in tankers of a particular configuration. At the end of his report Mr Simpson said -

"Speed is an obvious factor but due to the increasing of the radius of the corner action of the plaintiff in 'cutting' the corner, together with the highly viscous bitumen "sticking" or "hanging on" on the sides of the tanker, it may well be the case that the speed was too low, not too high."

16 Mr Simpson's report referred to the state of the bitumen as the prime cause of the accident, thereby recognising the possibility of a subsidiary cause, and identified speed as an obvious possible other factor in the occurrence of the accident. It must be remembered that Hulme J found that the respondent's negligence had contributed to the accident, so also leaving open the contribution of some other factor or factors. His Honour did not specifically describe how he concluded that the excessive speed contributed to the accident. He referred to Mr Simpson's agreement that if the bitumen had been less viscous it would have been likely to cause the tanker to overturn earlier in the turn, and clearly enough reasoned that a speed which resulted in what he described as the early scuff marks was excessive, and that the excessive speed brought a transfer of weight with a lateral force tending to cause the trailer to overturn to which was then added the transfer of weight from the movement of the bitumen with the same tendency, so that both the speed and the state of the bitumen contributed to the accident.

17 But, the appellant said, the respondent had to prove contributory negligence, and had to do so on the balance of probabilities. Mr Simpson's evidence earlier referred to, according to the appellant, went no further than that excessive speed could have contributed to the accident, and was not proof on the balance of probabilities that it did contribute to the accident. Reliance on ordinary experience that excessive speed when cornering tended to bring overturning, if available, also went no further than that the excessive speed could have contributed to the accident. As the submission continued, such reliance was not available. It was not available because the factors relevant to the tanker overturning were complex, and included that too slow a speed rather than excessive speed could have contributed to the accident. Expert evidence positively supporting a contribution from excessive speed was required. There was none, and so the respondent had not discharged its burden of proof.

18 I do not think that this argument answered his Honour's reasoning. The reality was that his Honour had two potential causes, including causes in the sense of contributories, to the accident. Excessive speed was a potential cause despite what Mr Simpson said about too slow a speed, because Mr Simpson did not say that the speed was in fact too slow and that the slowness contributed to the accident. At best, too slow a speed was another potential cause, but in the absence of support from Mr Simpson and in the light of Mr Simpson’s agreement earlier mentioned excessive speed rather than too low a speed was the true other potential cause. It was not a case of finding one cause, the state of the bitumen, and then asking whether on the balance of probabilities another cause had been established, excessive speed. Rather it was a case of finding on the probabilities that the accident was the result of the two causes, each contributing. There was no clear evidence to the effect that given the two potential causes, the state of the bitumen and excessive speed, the accident would not have happened but for the excessive speed in the absence of the state of the bitumen, but equally there was no clear evidence to the effect that the accident would not have happened but for the state of the bitumen in the absence of the excessive speed. Given the two potential causes, and no clear reason to attribute the accident to one rather than the other, in my opinion it was open to his Honour on the evidence, in particular that of Mr Simpson in the passages from the transcript earlier set out, to reason as I have described. If he had not so reasoned, it may well have been necessary for his Honour to conclude that the appellant had not made out the causal link between the respondent's negligence and the accident. I do not think it has been shown that this Court should come to a different conclusion in relation to the excessive speed and its contribution.

19 Finally, it was submitted that even if there had been negligence on the part of the appellant causally related to the accident, the reduction for contributory negligence should have been minimal. It was submitted that the respondent's failure in its duty to the appellant as his employer, when through Mr McIntyre it twice refused the appellant's request to take a safe course by heating the bitumen up, was so extreme that the reduction for contributory negligence should be minimal. On the other hand, the respondent said, correctly, that the appellant was well aware of the need to drive cautiously in the circumstances, so that his negligence had a significance well justifying the apportionment made by his Honour.

20 The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for loss involves a comparison both of culpability, that is of the degree of departure from the standard of care of the reasonable man, and of the relative importance of the acts of the parties in causing the damage. The whole conduct of each negligent party in relation to the circumstances of the accident must be subjected to comparative examination. Hulme J's finding as to apportionment was a finding on a question not of principle or positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involved an individual choice or discretion as to which there may well be differences of opinion and different minds, and the finding is not lightly reviewed. These propositions which are taken from the decision of the High Court in Podrebersek v Australian Iron and Steel Pty Ltd (1985) 57 ALR 529, are well established.

21 In explaining the apportionment to which he came Hulme J said that he was influenced amongst other things by the position of the respondent as an employer and a traffic authority and Mr McIntyre's disregard of instructions properly to be given to its employees as an incident of the retention of a dangerous goods driving licence, but also by the fact that the appellant knew and was conscious of the danger yet drove at an excessive speed. In my opinion the apportionment at which his Honour arrived, by reason of these factors and on the whole of the evidence, was well open to him, and no reason has been shown to interfere with it.

22 I go then to the damages for non economic loss.

23 The appellant suffered a compound fracture of the left elbow and a non-bony injury to his left shoulder. The elbow was reduced and repaired, and some skin grafting was required, but the appellant was left with significant restriction of movement. The elbow could only be bent to 80 or 110 degrees and extended to 15 or 20 degrees, depending upon which medical report is taken, and had locked three or four times over the year prior to the hearing before Hulme J for periods of one to two days. When locked it remained bent at an angle and was painful. Osteoarthritic changes were apparent and at least one of the medical reports forecast an increase in disability. Movement of the shoulder was also restricted to a marked extent. There was muscle wasting and the shoulder ached if the appellant lay on it at night.

24 These restrictions on the use of the appellant's left arm and shoulder were the more significant to him because he already had restricted movement of his right arm, the result of a motor vehicle accident at a much earlier time. There was limitation in bending and extension of the right elbow, and the right shoulder was stiff so that the right arm could not be elevated above shoulder level. In addition, the appellant had experienced pain in the lower back for many years which he attributed to having been a shearer, and problems with his hips became apparent some years after the accident, in early 1995, as a result of which he had two hip replacements. He could go back to driving, but with restrictions, and could not undertake heavy lifting activities on a regular basis.

25 Hulme J accepted that the accident "has had a major impact on the plaintiff's life". He said that the possibility of satisfaction from employment had been severely limited, whilst elsewhere accepting that the appellant had some earning capacity albeit one affected by the later appearance of the hip problems. His Honour continued -

"On the other hand one must recognise that the injury to the plaintiff occurred when he was 38, did not result in any other medical, psychological or psychiatric conditions, and is one which physically deprived him of (only) partial loss of use of his left arm, albeit this was, accepting the decision of the Compensation Court, 55 per cent. I do not, of course, intend to trivialise the injury but it is very easy to concentrate on the loss to the plaintiff and ignore the respects in which, by comparison with a most extreme case, the plaintiff was not injured. In my judgment, by comparison with a most extreme case the plaintiff's non economic loss should be assessed at 25 per cent.”

26 The appellant submitted that, given his disabilities unrelated to the accident, the functions of his left arm and shoulder were all the more precious, and when taken away were subjectively more upsetting and objectively created greater total disability than would have been the case for someone else. For this reason, and because it was found that the disability in the left elbow was likely to increase, it was said that the figure of 25 per cent was too low, and that it was not justified by the appellant's age at the time of the accident or by the absence of other medical, psychological or psychiatric conditions. On the contrary, it was repeated, the impact of the appellant's other disabilities became all the greater because of the disability in his left elbow and shoulder. It was submitted that the proper percentage should be in the region of 35 per cent to 40 per cent.

27 Hulme J had to undertake a judgmental exercise, comparison of the appellant's case with a most extreme case. It was submitted that he had illegitimately reduced the percentage because other parts of the appellant's body had not been injured in the accident. I do not think that is what his Honour did, and I see no error in his pointing out that in the judgmental exercise it must not be forgotten that what is involved is not evaluating the loss to the plaintiff but comparing the plaintiff's case with a most extreme case, and so giving thought to the plaintiff's non-injuries as well as his injuries. In my opinion the assessment of 25 per cent of the most extreme case was within the range available to his Honour in the judgmental exercise and, no reason has been shown to interfere with it.

28 For these reasons I propose that the appeal be dismissed with costs.

29 MASON P: I agree.

30 FITZGERALD JA: I agree.

31 MASON P: The appeal is dismissed with costs.

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