Kimbers Pty Ltd v Commissioner for Main Roads

[1999] WADC 49

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   KIMBERS PTY LTD -v- COMMISSIONER FOR MAIN ROADS & ANOR [1999] WADC 49

CORAM:   WISBEY DCJ

HEARD:   9-11 AUGUST 1999

DELIVERED          :   27 AUGUST 1999

FILE NO/S:   CIV 1146 of 1994

BETWEEN:   KIMBERS PTY LTD

Plaintiff

AND

COMMISSIONER FOR MAIN ROADS
Defendant

EAMONN GAVIN
Third Party

Catchwords:

Negligence - Highway - Accident when prime mover and trailer left highway and struck water pipeline - Allegation that accident due to improperly constructed and unmarked culvert - Allegation by defendant that accident due to negligence of Third Party driver of vehicle.

Legislation:

Nil.

Result:

Claim dismissed.

Representation:

Counsel:

Plaintiff:     Mr A R Beech

Defendant:     Mr T Lampropoulos

Third Party                   :     Mr G C Richards

Solicitors:

Plaintiff:     Phillips Fox

Defendant:     Blake Dawson Waldron

Third Party                   :     Srdarov Richards

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

Clark v Ryan (1960) 103 CLR 486

March v E & M H Stramare Pty Limited (1991) 171 CLR 506

Case(s) also cited:

Buckle v Bayswater Road Board (1936) 57 CLR 259

Day v Commission of Main Road (WA) (1989) 9 MVR 471

Desmond v Mt Isa City Council (1991) 2 Qd R 482

Gorringe v Transport Commission (1950) 80 CLR 367

Hennessey v City of Fremantle and Commissioner of Main Roads (1995) 12 SR (WA) 360

Hodgson v Cardwell Shire Council (1994) 1 Qd R 357

McDonogh v The Commonwealth of Australia (1985) 9 FCR 360

McIntyre v District Council of Ridley (1991) 56 SASR 343

Nelson v John Lysaght (Aust) Ltd (1975) 132 CLR 201

Ryan v Etsa (No 1) (1987) 47 SASR 220

Thieleman v The Commonwealth [1982] VR 713

Watts v ACT (1997) 139 Fam LR 8

Wyong Shie Council v Shirt (1979) 146 CLR 40

1. WISBEY DCJ:  The plaintiff Kimbers Pty Ltd alleges in the statement of claim that it was at all material times the registered owner of a 1989 Kenworth prime mover 8BC181 and low loader trailer CA2217; and the fact that the prime mover was licensed in the name of the plaintiff is confirmed by a letter from Licensing Customer Services of the Department of Transport dated 4 August 1999 (exhibit 4).  In law and in fact however the plaintiff was not the owner of the prime mover or the trailer, but was the lessee of the prime mover from National Australia Bank Limited, and hirer of the trailer from Esanda Finance Corporation Limited, as evidenced by exhibit 10(a), (b), (c) and (d).  The plaintiff thus had an interest in each of the vehicles (the rig), and pursuant to its contractual obligations with the owner in each case, was obliged to keep the respective vehicles in good order and condition.  The plaintiff alleges that each of the vehicles was damaged on or about 29 March 1993 when Eamonn George Gavin the subcontract driver of the prime mover, steered it onto the southern side of Great Eastern Highway and into an unmarked culvert 2‑3kms east of Moorine Rock, whereupon he lost control of the prime mover which veered across the highway, left the road formation, and impacted with a water pipeline on the northern side thereof (the accident). 

2. The plaintiff alleges that the accident resulted from the negligence of the defendant, the Commissioner for Main Roads, which created the culvert and had the statutory care, control, and maintenance of the highway. 

3. The allegations of the defendant's breach of duty are:

   1.That the culvert was unmarked thus constituting a trap which presented a danger to users of the highway.

   2.The defendant having constructed the culvert and being responsible for its maintenance, necessarily created the trap that it constituted, particularly by its failure to mark the culvert.  Essentially the gravamen of the defendant's conduct which is said to constitute misfeasance on its part is that:

   (i)it constructed the highway and the culvert such that the culvert head wall was within the gravel shoulder of the highway, and thus created a trap for users thereof;

   (ii)it failed to provide any or adequate warning of the location of the culvert;

   (iii)the breaches as aforesaid were of a continuing nature.

4. In its defence the defendant:

   1.Puts the plaintiff to the proof of its proprietary interest in either vehicle, and that it suffered loss.

   2.Purports to put the plaintiff to the proof of the allegations concerning the happening of the accident (a position which is incompatible with its subsequent denial that the accident happened as alleged).

   3.Denies that the culvert constituted a trap; in the alternative stating that if it did, it was not the result of misfeasance.

   4.Denies that it had a duty of care to the plaintiff and/or that there was a breach of duty.

   5.Alternatively, pleads that if there was a breach of duty resulting in damage to the plaintiff, there was contributory negligence on the part of the driver Eamonn Gavin for whom the plaintiff was vicariously responsible.  The negligence alleged against Gavin is that he:

   (a)failed to keep a proper lookout;

   (b)drove onto the verge or shoulder of the road at a speed excessive in the circumstances;

   (c)drove onto the incorrect side of the road;

   (d)drove the prime mover in an excessively fatigued state, falling asleep, thus allowing the rig to move to the incorrect side of the highway and partially off the highway before veering back onto the highway and leaving it on the northern side, colliding with a water pipe. 

   (e)failing to wear a seat belt (contributing to the accident).

   6.The defendant also asserted primary negligence on the part of the plaintiff in failing to adequately instruct Gavin on the need to avoid driving the vehicle whilst excessively fatigued, and in failing to ensure that he took adequate rest breaks; but the issues raised by this plea were not pursued at trial.

5. In the event that the defendant was unsuccessful in establishing that the plaintiff was vicariously responsible for Gavin's conduct, it issued a third party notice against him seeking an indemnity or contribution as a consequence of his negligent conduct as particularised in the defence.

6. Gavin filed a defence to the statement of claim in the third party proceedings denying the allegations of negligence against him.

7. At the commencement of the trial I was informed that the parties had agreed quantum at $72,971.82, and consequently the issues for determination are the allocation of responsibility for the accident, and whether the agreed loss was suffered by the plaintiff.  To that end it is of course necessary to analyse the evidence.

THE PLAINTIFF'S EVIDENCE

Eamonn George Gavin

1. Mr Gavin, an experienced truck driver by occupation, commenced working with the plaintiff and/or its associated companies in 1993.  He stated that he agreed with the plaintiff that he would acquire the prime mover from the plaintiff and meet all the outgoings and expenses connected therewith including lease repayments, insurance, licensing, repairs, servicing, fuel, etc.  To this end the plaintiff invoiced him on a monthly basis for any expenditure it had incurred in respect of the prime mover, the understanding being that at the termination of the lease Gavin would pay the residual, and the plaintiff would facilitate the transfer of ownership in the prime mover from the lessor to Gavin.  Part of the arrangement was that in consideration of Gavin paying an agreed commission to the plaintiff, it would make cartage work available to him ‑ that is if and when the plaintiff's customers sought cartage services, the plaintiff would arrange for Gavin to carry out the work, the customers would pay the plaintiff, and after deducting commission and any expenses it had incurred in respect to the vehicles, and prescribed payment tax instalments, the plaintiff would distribute the balance to Gavin.  The plaintiff does not appear to have exercised any direct control over the manner in which Gavin performed the work, and would simply advise him of the pick up and drop off locations, the nature of the load, for whom the cartage was being undertaken, and in the case of cash jobs, the amount of money he was to collect.  The customer appears to have set the perimeters as to when the cartage was to take place.  Gavin did not have any holiday entitlement, nor did the plaintiff make superannuation contributions on his behalf.  Gavin stated the position succinctly when he said "they didn't stand over me ‑ they sat in the office".  He stated that he did not refuse jobs directed to him by the plaintiff as he was working for himself and had a financial imperative to perform the work.

2. Gavin stated that approximately mid afternoon on Sunday 28 March 1993 he received a request from the plaintiff to travel to Southern Cross and collect a truck early the following morning.  He anticipated that the journey to Southern Cross would take something in the order of 5‑6 hours.  He began the journey at about 11.00pm on Sunday, driving to the plaintiff's yard in Belmont to collect the trailer, and then to a Shell service station in Kewdale for the purpose of fuelling and checking the prime mover.  Whilst engaged in the latter activity he noticed a slow leak from the water filter, and claimed that he purchased a new filter to take with him in case the problem became acute.  He claimed that the purchase price of the filter was debited to the plaintiff's account at the service station.  In the event Gavin left Kewdale at about midnight and proceeded on Great Eastern Highway to Tammin where he made a short stop.  He then proceeded to Kellerberrin where he made a comfort stop before continuing on to and through Moorine Rock.  Gavin stated that he was travelling at approximately 100‑105km/h, and was a short distance east of Moorine Rock when he observed that the engine of the prime mover was over‑heating.  As a consequence he decided to stop, changed down a gear, and having determined that his best option was to pull up on the southern or incorrect side of Great Eastern Highway, veered across the highway to so do.  It was about 5.00am, was still dark, and the headlights of the prime mover were on high beam.  The highway was straight at this point, and Gavin claimed he was doing approximately 70‑80km/h when he pulled off the sealed surface.  He was not aware of a culvert as he did not see any guide post or other sign indicating its presence.  Suddenly the right hand front wheel of the prime mover dropped into a culvert, the steering wheel was reefed out of Gavin's hands, he was flung across the seat (presumably because he was not wearing a seat belt) and he lost control of the prime mover which veered across to the northern side of the highway leaving the sealed surface, traversing the shoulder and verge, and impacting with the water pipeline.  Gavin got out of the prime mover, and a short time later a farmer from an adjoining farm arrived.  Gavin called Shane Jones, a director of the plaintiff, who arrived with Ray Jones 3 or 4 hours later.  After some discussion they apparently searched to ascertain whether a guide post had been in position marking the culvert.  They were unable to find a guide post, nor any evidence that one had been erected on the south side of the highway near the culvert.  Gavin said that an examination of the prime mover failed to reveal any damage to the bull bar consistent with it having impacted with a guide post.

3. When cross‑examined by his own counsel, Gavin stated that the plaintiff did not supply him with a uniform but provided an identifying badge which he was expected to wear.  The prime mover carried the sign "Jones Way Transport" indicating its connection with the plaintiff company.  He confirmed that it was expected that he would work almost exclusively for the plaintiff.  He confirmed his evidence in chief that he did not regard it as a viable proposition to drive off onto the northern shoulder of the highway because it dropped away, and that the speed of the prime mover was between 60 to 80km/h when it left the road.  He asserted that the right hand side wheels of the prime mover and trailer were between 1.8 to 2 metres south of the southern edge of the bitumen surface as he drove along the gravel shoulder.

4. When cross‑examined by counsel for the defence, Gavin stated that he got out of bed mid morning on Sunday 28 March 1993 and did not sleep between that time and the accident, but denied that he was fatigued, claiming that it was not uncommon for him to go for 24 hours or so without rest.  He stated that he noticed the water filter was leaking whilst doing his maintenance check at the Shell Service Station, Kewdale, and consequently purchased a replacement filter.  He claimed that he didn't change the filter at Kewdale because the engine was hot and he did not want to waste time waiting for it to cool down.  He stated that he was 2 to 3kms past Moorine Rock when he noticed that the engine of the prime mover was overheating.  At that time he could not see any other following or forward traffic.  Because of the potential for damage to the engine he wanted to get off the bitumen surface and bring the rig to a stop.  He did not think to bring it to a stop on the bitumen surface to assess the state of the gravel shoulder before driving off the sealed surface.  He claimed that the left hand wheels of the rig did not leave the bitumen surface before the prime mover hit the culvert, and stated that he was probably doing about 70km/h when he hit the culvert.  He considered the culvert was about a metre wide, 2 metres deep at the head, and about .3 of a metre deep at the point where the right front wheel of the prime mover entered it.  Gavin stated that the lights of the truck gave him appropriate driving vision, and denied that he had fallen asleep and run off the road.

Stephen William Underwood

1. At the material time Underwood was a field representative for City Panel Beaters, a firm which had a commercial relationship with the plaintiff.  He received a telephone call from Raymond Leslie Jones early on the Monday morning, and as a consequence travelled to the accident site.  He stated that he parked his car on the gravel verge on the northern side of Great Eastern Highway, some 10‑15 metres from the rig ‑ that is the car was parked on the verge which Gavin had assessed as not suitable for parking the rig.  Having spoken with Gavin, Underwood went over to the culvert to look for a white guide post, but was unable to find one.  He noticed skid marks crossing the highway marking the path apparently taken by the rig.  Underwood stated that he observed tyre marks coming through the culvert from the west on the south side of the road.  He took a number of photographs of the location generally (exhibit 2). 

2. In cross‑examination Underwood indicated that it was still dark when he received the phone call from Jones, and that it took 3 to 3½ hours to drive from Perth to the scene of the accident.  When he arrived at the accident scene, Ray Jones, Shane Jones, Gavin, and himself, were the only people there, but a police officer and a farmer arrived shortly after.  His recollection was that Shane Jones and he went looking for a guide post.  Underwood concluded that all the wheels of the prime mover and trailer left the bitumen surface before the prime mover struck the culvert.

Shane Arnold Jones

1. Mr Jones, a director of the plaintiff company at the relevant time, ran an associated business Day Night Towing.  He stated that he received a call concerning the accident from Gavin early on the Monday morning, and at the time it was still dark.  As a consequence he rang Underwood, Ray Jones, Gary Miller and the Southern Cross Police, and drove out to the accident site with the Ray Jones.  It was his recollection that the farmer and police officer were already present when he arrived.  He stated that he parked his vehicle near the rig and went back to the culvert looking for a guide post, but was unable either to find a guide post or evidence that it had been in situ.  His estimate was that the resting place of the rig was approximately 50 metres east of the culvert.  He indicated that the search for the guide post was deliberate and quite extensive.

Raymond Leslie Jones

1. Mr Jones was at the relevant time a tow truck operator with Day Night Towing, and following a phone call from Shane Jones accompanied him to the accident site.  He stated that it was daylight when they arrived, and that at that time only Gavin and a farmer were there, Underwood arriving shortly after.  He stated that he also looked for a white guide post from the gravel area east of the culvert, but was unable to locate one.  In addition he was unable to find any indication that a post had been erected on the south side of the highway near the culvert.

Larry Ronald Turner

1. Sergeant Turner who was stationed at Southern Cross, attended the accident site some time that morning.  He also looked for a guide post between the bitumen and the fence line but was unable to locate one, although it does appear that he did not walk into the grass area.  He considered that the distance from the southern edge of the bitumen to the head of the culvert was one metre, and that at its deepest point the culvert was approximately 1.5 metres.  He disputed the proposition put to him in cross‑examination that the culvert was only 60cms deep, but conceded that the tyre mark was not at the deepest point of the culvert.  His recollection was that tyre marks indicated that all the wheels of the prime mover and trailer went off the bitumen, and was of the impression that the left hand wheels in fact passed through the culvert, the left hand tyre marks being 1.5 metres in from the bitumen surface.

David Roy Axup

1. Mr Axup, a bachelor of arts (police studies) with a graduate diploma in highway and traffic engineering, gave evidence of his not inconsiderable experience in highway safety, as evidenced by his curriculum vitae (exhibit 7).  Mr Axup spoke to his report concerning the accident (exhibit 8).  For the purpose of his assessment he assumed that the sealed pavement was 7 metres wide, the culvert head wall on the southern side of the highway being located approximately 0.8 of a metre from the edge of the sealed pavement, and being located within the gravel shoulder or "clear zone".  It was his view that to comply with good road engineering practice as at the date of the accident, the head wall should have been located outside the shoulder, as it now is, being presently located apparently 2.89 metres from the edge of the sealed surface on the south side, and 3.6 metres on the north side.  Mr Axup was of the view that the culvert should have been marked by width restriction markers.  He drew attention to clause 3.2.4.4(f) of AS1742.2 ‑ 1986, and particularly subs (ii) which he seems to suggest would require the culvert to be marked by guide posts at either end.  There was some controversy during the course of his evidence as to whether subs (ii) or (iii) was applicable, but for practical purposes it matters little as both require the structure to be marked by guide posts at either end thereof. 

2. In cross‑examination Mr Axup confirmed that he did not hold an engineering degree, and had not been involved in the designing of roads, but stated that his opinion was based upon studies undertaken by him, discussions with road design engineers and State road authorities, and his experience generally.  He was prepared to accept that in the constructions of roads, engineers were able to use professional judgment, and were not always bound by relevant standards.  He confirmed that in preparing his report he had been asked to assume that the prime mover was travelling between 60 and 80km/h when it struck the culvert, and that it left tyre marks which commenced some 47 metres west of the culvert, extending along the edge of the pavement and moving slightly to the north before coming into contact with the culvert.  He accepted that there would be thousands of culverts crossing Western Australian roads, and limited funds available for the construction and maintenance of roads.  He also accepted the obvious, that guide posts are erected to define the edge of road constructions.

1. Objection was taken to the admissibility of the evidence of Mr Axford essentially on the basis that he lacked the necessary expertise, and consequently I agreed to accept the evidence provisionally.  Much of what he said could be determined by the application of common sense and experience, but I do believe that some of the material did "require a course of previous habit, or study, in order to the attainment of a knowledge of it".  Clark v Ryan (1960) 103 CLR 486 at 491. Mr Axford had relevant study or experience, and I am prepared to receive the evidence.

Steven Mark Jones

1. Mr Jones, a director of the plaintiff, confirmed that at the material time it was the lessee of the prime mover and hirer of the trailer, and that prior to the accident the plaintiff had made arrangements with Gavin to provide "subcontract labour".  Gavin was to meet all expenses associated with the prime mover, including reimbursement of any lease payments required to be made by the plaintiff, the intention being that he would take over the plaintiff's responsibilities and at the conclusion of the lease be in a position to pay out the residual and become the registered owner of the prime mover.  Mr Jones' evidence confirmed that Gavin essentially worked exclusively for the plaintiff.  He produced the lease and hire purchase documents relating to the prime mover and trailer (exhibit 10a‑d).

Exhibits

1. Various documents relating to the subcontract arrangements, the ownership of the prime mover and trailer, and the construction of the culvert were received in evidence.  Also answers to interrogatories giving conflicting accounts of the finding and replacement of the guide post (exhibit 11).

THE DEFENDANT'S EVIDENCE

Trevor Eric Cockman

1. Mr Cockman, a maintenance foreman in the employ of the Commissioner of Main Roads, was at the material time a ganger on the maintenance truck stationed in Merredin.  He was a Main Roads employee of many years standing.  He stated that every Monday the maintenance truck would do a run from Merredin to Southern Cross carrying out general maintenance, including filling of pot holes and replacing guide posts.  It was a 106km run.  He confirmed that where a culvert crossed Great Eastern Highway, guide posts were placed inside the culvert head wall on either side of the highway, slightly forward of the culvert in the direction from which traffic was approaching.  On 29 March 1993, in company with the truck driver David Garwood, and a labourer Bruce Sandy, they left Merredin at about 8.00am, and as they passed the accident site at about 9.30am observed the rig in its resting place.  They did not stop, but on their return journey stopped at the scene at about 11.00am.  The prime mover had gone, and no one was present.  Cockman stated that they located two sections of a broken guide post in the grass on the southern side of the highway approximately 20 metres east of the culvert, the two pieces constituting the whole guide post.  He stated that whilst he and Sandy were collecting the pieces of the guide post, Garwood located the hole where it had been positioned, and a new guide post was erected before returning to Merredin. 

2. In cross‑examination Cockman confirmed that he had replaced a considerable number of guide posts over the years, and that although the number of guide posts used on a maintenance run was recorded, no record was made of having replaced a guide post on the day of the accident.  He stated that it was some 12‑18 months after the accident that he was first asked to recall the circumstances thereof.  He stated that he did not record the use of a guide post on the maintenance sheet because he only made a notation when 5 or 6 guide posts had been used.  He could not recall telling anyone that they had re‑used the guide post that had been knocked down, and was emphatic that the post located was broken and could not have been re‑used.  Mr Cockman stated that the hole where the guide post had been positioned was filled with gravel and was located by Garwood using a crow bar and an identification nail on the bitumen surface.  He stated that guide posts were about 900mm in length of which 300mm was set into the ground.

David Lloyd Garwood

1. Mr Garwood, an employee of the Commission of Main Roads for 25 years, was at the relevant time a truck driver in the maintenance team referred to by Cockman.  Essentially he confirmed the evidence of Cockman concerning the discovery of the broken guide post, and its replacement.  He confirmed that it was usual to record the use of guide posts, but notwithstanding that there was no such record on the day in question, was emphatic that the broken guide post was located, and replaced.  He could not understand where Wilson, a representative of the defendant, got the information that the old guide post had been re‑used.

Norman George Fox

1. Mr Fox a civil engineer, is the defendant's regional manager in the wheatbelt north area with responsibility for that part of Great Eastern Highway where the accident occurred.  His responsibilities included management of the road network within his area, including maintenance and upgrading of highways and main roads.  He confirmed that there were 19,000kms of highway and main roads in the State under the control of the defendant, and that funding for their maintenance was restricted.  Mr Fox stated that Great Eastern Highway was in road terms nearing the end of its life in the early 1990's and in need of upgrade, and that there have been ongoing works since about 1994.  He described the highway as having a sealed surface with a gravel shoulder extending from the bitumen to the edge of the formed surface.  He stated that there were over 3,300 culverts passing under roads in the area under his control.  He confirmed that in respect of the culvert in question the head wall was at the material time in the shoulder of the road, and stated that there were other culverts similarly constructed.  Since the accident the culvert in question, and seven others, had been extended so that the head walls were outside the shoulder.  He noted that in his experience this was the only accident that had occurred at a culvert location on Great Eastern Highway. 

2. In cross‑examination Mr Fox acknowledged documentation relating to cost estimates and remedial work on Great Eastern Highway, as documents produced by and belonging to the defendant (exhibit 12).  He was vague as to whether certain works identified as being required to be carried out by that documentation had in fact been undertaken.  He acknowledged that guide posts were removed and replaced when road widening was carried out.  He further confirmed that present day culvert construction design required the head wall to be located outside the batter ‑ where the shoulder slopes away.

Laurence Richard Hartley

1. Professor Hartley, the Professor of Psychology at Murdoch University, has considerable experience with, and a special interest in human fatigue.  At the request of the defendant's solicitors he produced a report (exhibit 14) in which he put forward a number of propositions, many of which were self‑evident.  In short summary his report suggests that:

   1.Long hours of work and/or absence of sleep results in tiredness.

   2.Drivers of vehicles who were excessively tired had the potential to fall asleep at the wheel, and have accidents.

   3.Night driving by persons who usually sleep at night and work during the day, gave rise to a potential for fatigue.

Exhibits

1. The defendant tendered an accident report (exhibit 3) and an operations circular (exhibit 9).

Findings of fact

1. The evidence establishes:

   1.That on 29 March 1993 at approximately 5.00am when it was still dark, the rig driven by the third party Gavin, in an easterly direction on Great Eastern Highway, 2 to 3kms east of Moorine Rock, crossed the west bound lane onto the shoulder on the southern side of the highway.  It passed over a culvert before veering north east traversing both lanes of the highway, and impacting with a water pipeline running parallel to the highway some distance north of the shoulder of the highway.

   2.When the rig left the sealed surface of the highway it was travelling at a considerable speed, having regard to the fact that Gavin had been driving at 100‑110km/h before the rig left the sealed surface, and also to the distance the rig travelled before impacting with the water pipeline over which the prime mover passed before coming to a stop.

   3.I reject Gavin's evidence that when the rig proceeded onto the southern shoulder of the highway it was as a result of him consciously steering the prime mover to that position.  I find his account thereof improbable because:

   (a)his evidence is to the effect that the rig must have been doing at least 80km/h as it left the sealed surface and went onto the gravel shoulder.  To drive the rig in that manner would have been foolhardy having regard to its dimensions, and the fact that it was dark and Gavin would not have been able to make a proper assessment of the integrity of the shoulder and its appropriateness as a place to bring the rig to a stop.  Also to the fact that it would be unusual for him to proceed across to the incorrect side of the road to bring the vehicle to a stop, rather than to bring it to a stop on the shoulder on the northern side of the highway.  One would think that an experienced driver would reduce the vehicle's speed before leaving the sealed surface, thus enabling him to make a realistic assessment of the appropriateness or otherwise of parking on the shoulder of the highway.

   (b)I have difficulty accepting Gavin's account of the problem that he encountered with the engine overheating.  If in fact there was a leak in the cooling system, as indicated by him, and that leak was discovered at the pre‑journey maintenance check at Kewdale, it is unlikely that he would have embarked upon the journey without attending to it, particularly having regard to his evidence that he was fastidious in the care of the prime mover.

   (c)Gavin denies that there was a guide post located near the culvert head wall, and yet following the accident he looked to see whether there was damage to the front of the prime mover consistent with it having struck a guide post, and searched the area for the whereabouts of the guide post.  In this respect I accept the evidence of Cockman and Garwood that on the day of the accident, and subsequent to the accident, they located the broken guide post and replaced it.  I accept that they found the broken pieces of guide post some distance east of the culvert; a position where it could only have ended up if struck by a vehicle proceeding east, and crossing onto its incorrect side of the road.  It is improbable that event occurred on a prior occasion.

   (d)I do not accept that Gavin was not wearing his seat belt, and consider that it is improbable that if he had driven into the culvert in the manner described by him, he would not have been able to exercise more control of the prime mover and bring the rig to a halt prior to it travelling the distance it did before coming to rest.

   4.Having rejected the evidence of Gavin concerning the circumstances giving rise to the accident, the most probable inference to be drawn from the objective evidence is that the rig left the sealed surface of the highway accidentally, either as a result of momentary inattention by Gavin, or as a consequence of driving fatigue.  The latter is the more probable, and provides an explanation as to why Gavin was unable to bring the rig under control and prevent it following the course it did upon leaving the sealed surface. 

   5.Applying a common sense approach to the issue of causation as that concept is explained in March v E & M H Stramare Pty Limited (1991) 171 CLR 506 I am not persuaded by the evidence to the degree required for civil judicial persuasion that the location, construction, or identification of the culvert over which the rig clearly passed, made any contribution to the calamity the subject of the controversy requiring my determination. It is also to be observed that counsel for the plaintiff quite properly conceded that if I reached the conclusion that I have as to the circumstances of the accident, the plaintiff would have failed to establish its case.

2. The conclusions that I have reached effectively dispose of all aspects of the case and in all the circumstances I dismiss the plaintiff's claim

3. Although it is unnecessary to decide the consequences that would flow from an acceptance of Gavin's evidence, namely that he intentionally drove the rig off the south side of the highway at a speed of the order of 80km/h intending to bring the rig to a halt on the southern shoulder, and that as a consequence of driving into an unmarked culvert lost control of the rig, it would be necessary to conclude in those circumstances that Gavin was negligent, and that his negligence was a cause of the accident. 

4. Gavin's negligence would be that:

   (a)he failed to keep any or proper lookout so as to appreciate the presence of the culvert;

   (b)he left the sealed surface at a speed clearly excessive in the circumstances.  A speed which having regard to the fact that it was dark and that he was proceeding onto the gravel shoulder on the incorrect side of the road without having had the opportunity to assess its integrity, was foolhardy.

   (c)he failed to wear a seatbelt and that failure on his own admission meant that when the prime mover hit the culvert he was thrown to the passenger's side and was thus unable to exercise any control of or attempt to control the movement of the rig.  It was in effect driverless.

5. Gavin's departure from the standard of care to which he was required to conform for his own protection, if the situation had been as outlined by him, was of a very high order.  As I have indicated however I reject his account of the accident.