Liddell v Lindsay - [2000] WADC 148

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: LIDDELL -v- LINDSAY [2000] WADC 148

CORAM: HEALY DCJ

HEARD: 17 AND 18 MAY 2000

DELIVERED : 19 JUNE 2000

FILE NO/S: CIV 3287 of 1998

BETWEEN: NEIL DOUGLAS LIDDELL
Plaintiff
AND
JAYSON PAUL LINDSAY
Defendant
INSURANCE COMMISSION OF WESTERN AUSTRALIA
First Third Party

Catchwords:

Motor vehicle accident, liability, head on collision between fire tender and four wheel drive.

Legislation:

Nil

Result:

Judgment for plaintiff; no contribution.

Representation:

Counsel:

Plaintiff:     Mr K S Pratt
Defendant:     Mr G Droppert
First Third Party           :     No Appearance

Solicitors:

Plaintiff:     Michael Seaman
Defendant:     D G Price & Co
First Third Party           :     Not Applicable

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

Nil

Case(s) cited:

Feher v Perrett Trades Pty Ltd (1988) 6 MVR 433
March v E & M Stramare Pty Ltd & Anor (1990) 171 CLR 506
Moralee v Mosey (1990) 11 MVR 65
Morris v Luton Corporation [1946] 1 KB 114
Nesterczuk v Mortimor (1965) 115 CLR 140
Pennington v Norris (1956) 96 CLR 10
Sloan v Kirby (1979) 20 SASR 263
Wheatland v Dickson (1995) 22 MVR 431
Williams v Commissioner for Road Transport and Tramways (NSW) (1933) 60 CLR 264
Xenox v Curnow (1975) 12 SASR 301

HEALY DCJ: This matter comes before me for determination of the issue of liability, the amount of damages to which the plaintiff is entitled having been agreed. The plaintiff, Neil Liddell, (“Liddell”), was born on 20 October 1957 and was at the material time an active member of the Jandakot Volunteer Bush Fire Brigade, (“the Brigade”). He was injured on 30 June 1996 when the vehicle he was driving on Wilbinga Road, (“the road”), near Gingin was involved in a collision with the defendant’s (“Lindsay”) vehicle.
Counsel did not make final addresses, but made written submissions. Counsel for the defendant made submissions in reply. I did not deem it necessary to have counsel address me on those submissions.

Background

It was common ground that the road surface was limestone and sand. The road ran in a roughly east/west direction. In the vicinity of the collision it was about 5.2 - 5.6 m wide. It had bushy uncompacted shoulders of sand and limestone. The area where vehicles drove was compacted by the weight of the vehicles so that there were two distinct tyre tracks about one metre in width each. I refer to that area as “the hard stand”. The area of the road where the middle of vehicles would travel had in places a slight rise. The speed limit in the area was 110 kph.
Although it was accepted that the position of the vehicles was not correctly plotted on the plan Exhibit 1, the other distances from the start of the rise to the crest and the width of the road were not challenged. I accept that the skid marks from the rear of the Toyota measured 24.5 metres on the plan, but that they terminated at the rear wheels, rather than how they are shown on the plan.
The dual-cab Toyota Landcruiser fire tender, (“the tender”), driven by Liddell on this occasion was one he was very familiar with and he had driven it on numerous prior occasions. It was carrying a 1000 litre tank of water and the all up weight of the tender was some five tonnes.
The Toyota Landcruiser, (“the Toyota”), was being driven by Lindsay. Before the collision the tender was being driven in an easterly direction and the Toyota in a westerly direction. The collision occurred approximately 15 metres west of the crest of a hill or rise.
The parties agreed that the position of the vehicles after impact as shown on the plan Exhibit 1 was incorrect and that the vehicles were more in the position shown in Exhibit 11, drawn by Phillips.

Pleadings

On 30 June 1996 at approximately 4.40 pm Liddell was driving three passengers in the tender in an easterly direction up a hill on Wilbinga Road Gin Gin. Liddell claims that he was driving the tender on its correct side of the road at about 50 kph. Liddell’s view of oncoming traffic was obscured by the crest of the hill.
At or near the crest of the hill the tender collided head-on with the Toyota. Liddell alleges that Lindsay was driving at approximately 90-100 kph on his incorrect side of the road. Despite applying the brakes of the tender, Liddell collided with the Toyota. He received multiple injuries and a passenger in the tender was killed.
It is alleged that the collision was caused by the negligence of Lindsay in that he:
“(a)Drove on the wrong side of the road as he approached the crest of the hill.
(b)Drove too fast to avoid collision should he encounter oncoming traffic.
(c)Failed to brake, control or manoeuvre his vehicle so as to avoid a collision with the plaintiff.
(d)Failed to keep any proper or any proper lookout for oncoming traffic as he approached the crest of the hill.”
In his defence, Lindsay admits that he was driving in a westerly direction but denies that he was speeding. He further admits that his view of oncoming traffic was blocked by the crest of the hill. He says that he was driving to the centre-left of the road. He alleges that Liddell was driving the tender on the wrong side of the road. He alleges that when he saw the tender at the crest of the hill on the wrong side of the road he applied the brakes of the Toyota which caused the Toyota to move to its right, but was unable to avoid colliding with the tender.
Lindsay alleges that Liddell’s negligence contributed to the accident in that he:
“(a)Drove his vehicle on the wrong side of the road as he approached the crest of the hill.
(b)Drove too fast to avoid collision should be (sic) encounter oncoming traffic.
(c)Failed to brake, control or manoeuvre his vehicle so as to avoid collision with the Defendant’s vehicle.
(d)Failed to keep any or any proper look out for oncoming traffic so as to avoid collision with the Defendant’s vehicle.”

Evidence

Liddell

Liddell in his statement Exhibit 9 set out his recollection of what he had done earlier on the day and what he recalled of the accident. At para 24 he stated:
“I had been travelling at approximately 50-60 kilometres per hour on the flat road and as I began to drive up the hill I dropped down to approximately 50 kilometres per hour. As I was approaching the crest of the hill I suddenly saw a white utility coming over the hill on his correct side of the road but moving at an angle towards my side of the road. I immediately hit the brakes as hard as I could. The white utility appeared by now to be coming directly towards the tender and almost immediately collided with it. I have no recollection of taking any evasive action, from seeing the other vehicle until impact was a matter of seconds.”
In evidence-in-chief Liddell disagreed with the way in which the Toyota was depicted on the plan Exhibit 1. He said that it should have shown the tray of the Toyota “coming more from the south”, that is skewed and not straight on as shown on the plan. I accept his evidence as to that for reasons which I will later give. He disagreed with the tyre marks shown on the plan as coming from the rear of the tender. He said that he was always on the “centre left of the hard stand”. Despite other reservations I have about Liddell’s evidence, I accept his evidence as to this because it is supported by other evidence, as will be seen.
The witness Gary Phillips, (“Phillips”), described the road surface in these terms, that there was one metre of “scunge”, one metre hard stand on which the right hand wheels could travel, one metre in the middle of the road, one metre in which the left hand wheels could travel and then a further one metre of “scunge”. He described “scunge” as being the soft sand and limestone rocks on either side of the carriageway. I accept his description as this was a road he was familiar with. His description corresponds with the appearance of the road in the photographs he took on the day and those taken by Basil Blee, (“Blee”) in March 1999.
In cross-examination Liddell was taken to what he had said in evidence at an earlier hearing as to the position of the tender. It was suggested that he had on the earlier occasion said things that he now did not agree with. This was done in order to undermine his credibility. What he said on the previous occasion was not his evidence, but can be used by me only as it affects my assessment of his credibility. The position of the tender on the south side of the road to go around an obstruction was no where near the point of impact and was well down the rise.
Liddell was also cross-examined on the tyre markings shown on Exhibit 1 and the fact that they appeared to commence on the south side of the road. On a prior occasion he had accepted that the plan was a fairly accurate representation of the direction of travel of the tender. I also accept his denial in cross-examination that at no time going up the rise was he on the south side of the road. His denial was supported by other evidence.
Any impact the cross-examination had on Liddell’s credibility was not significant in the context of the issues in this trial, because there was evidence other than Liddell’s in relation to the position of the tender on the road upon which I could rely with satisfaction. I refer to the evidence of the passenger Phillips.
Phillips
Phillips, was at the material time a self-employed, qualified and experienced 4 wheel drive instructor. He had been conducting a three-day course with the Brigade. He was a passenger in the tender as it was being driven in an easterly direction. The vehicle was travelling in the tyre tracks, which is usual for such a heavy vehicle. It is not good practice, in his opinion, to drive such a vehicle on the soft edge of the road. Phillips was very familiar with the road as he said that he saw it “every day”.
Phillips in his statement which was tendered as his evidence-in-chief as Exhibit 10 said at pp 2-3:
“We were proceeding in a cental position on the road which is the normal position for a vehicle of that weight, the edge of the road being soft in general.
We were heading up a hill east on Wilbinga Rd, the gradient was slight, the vehicle was lumbering up the hill, I would be surprised if it was travelling as fast as 50 kph.
I recall being something like 75 metres from the crest of the hill, … when I saw the white roof of a vehicle approaching over the crest of the hill.
I did not feel any sense of urgency, I was aware of our driver moving to the left-hand side of the road. Immediately after the move to the left our driver made an expletive.
When I first saw the roof of the other vehicle it was in the middle of the road. The vehicle headed to our left as it came over the crest of the hill. The vehicle was travelling very fast. Our vehicle changed direction to the right back to the centre of the road. I have no recollection of Liddell putting on the brakes, I consider Liddell was performing evasive action at this time.
The vehicles then collided. From seeing the roof of the vehicle to impact probably took no more than 3 seconds.”
Phillips initial expectation when he first saw the Toyota approaching was that it would pass to the south of the tender which was moving to the northern boundary of the road. He said that if he put his arm out the passenger’s window it would have been off the edge of the limestone, that is how far the tender had moved to the north. I accept his evidence as to that. Immediately before the collision he felt it deviate to the south in an evasive action, as I would expect in the agony of the moment. Phillips did not expect the Toyota would continue to move to the north as it did and collide with the tender.
In cross-examination he said that he did not remember Liddell being on the wrong side of the road and that “coming up the hill [our vehicle] was in the centre of the road”. He said that after he saw the roof of the Toyota he expected it to have gone south, not north. He said “I didn’t feel threatened by his [Liddell’s] driving” and “if we moved more to the south I would have felt uneasy and if I feel uneasy with a driver I make some remark, and I made no remarks”. The only inference I can draw from this is that he did not think that Liddell had put the tender in an unsafe position on the road as it drove up the rise.
Phillips tried to do what he could for those injured before leaving the scene to get help. When Phillips returned to the scene with Jackson he noted skid marks which he associated with the Toyota. He asked one of the police officers who were at the scene to look at those marks before they might be obliterated, but the officer said he was not part of the investigating team. Phillips said that as far as he could now recall “the marks started on the centre of the road going to the north. I checked the back of our vehicle and I could see no skid marks coming from it”. I accept his evidence as to those matters. As he had a camera he took photographs of the vehicles until he ran out of film, but did not take photographs of the skid marks he associated with the Toyota. The photographs he took were tendered as Exhibits 2 - 6 and 12 - 14.
Jackson
Michael Jackson, (“Jackson”), was at the material time driving south on Wanneroo Road. He was stopped by Phillips and told there had been a serious accident. He went to the scene of the collision and gave what assistance he could to the injured. He did not check for marks on the road. He did note that both vehicles were parallel to the verge and that the notional centre of the road would have passed under the centre of the cabin of the tender. Jackson recalled the police attending and that photographs were taken of the scene which he has since seen and they accord with his memory of the positions of the vehicles.
Blee
For Liddell, evidence was led from Basil Blee, who for some 21 years was in the Traffic Branch of the Western Australian Police Service, as it now is. For some eight years he worked in the major accident investigation section to try and determine causes of accidents which had occurred. He is now a consultant.
On 30 March 1999 he attended the scene of the accident with Liddell and officers of the City of Cockburn along with a tender and a Toyota Hilux utility, (“the Hilux”). He admitted that his evidence related to the conditions he found on that day and he could not say whether those conditions were the same as on the day of the accident.
The width of the road was some 5.2 metres. There were tyre marks only in the centre of the road. At that time the surface of the road was limestone and sand with soft verges on which were scattered limestone rocks. Over a period of about one hour he saw five vehicles drive along the road.
He took the photographs, Exhibits 7a-e and 8, but accepted that the positioning of the vehicles in those photographs were only approximations of where vehicles were on the date of the accident. He accepted that the 4 wheel drive shown was not the same make as the Toyota and that visibility can vary with tyre pressure, suspension, seat height and so on. The photographs were, at best, only guides to the appearance of the road on the day of the accident.
Blee also used a video camera to record the view as the Hilux proceeded at approximately 80 kph in a westerly direction towards the crest of the hill. I did not find that video helpful as he was operating the video camera and was unable to confirm the speed at which the vehicle was travelling.
Next he travelled in a tender in an easterly direction towards the crest at approximately 50 kph while the Hilux was being driven in an easterly direction at a lesser speed. The same comment can be made in relation to speed. To allow the vehicles to pass each other, each had to pull to its left.
Blee gave estimates based on a chart prepared by the Police Department as to how far a vehicle would travel in a given time at a given speed and the average reaction and braking time of an average driver. I accept that a vehicle travelling at 50 kph travels 39 metres in three seconds and that a vehicle travelling at 90 kph covers 75 metres in the same time. A vehicle travelling at 90 kph would travel a little less than 50 metres in 1.9 seconds.
I accept on this evidence that both drivers would have had almost no time to react and apply the brakes of the vehicles they were driving so as to avoid a collision.
Lindsay
Lindsay’s statement was tendered as part of his evidence-in-chief as Exhibit 19. In his statement Lindsay said that his vision was not affected by the sun, that he was not wearing sunglasses and his sun visors were up. He said that he was travelling at a speed between 90 - 100 kph. The speed limit in the area was 110 kph. At the area where the accident occurred the road was undulating. At paras 23 - 33 of the amended statement tendered as Exhibit 19 he said:
“23.My motor vehicle was position [sic] centre to left of the road.
24.If you were to draw a straight line down the centre of road the right side of my motor vehicle was just left to centre of the line.
25.[Deleted].
26.I was travelling within the speed limit.
27.I was travelling as far as I could to the left side of the road without driving on the soft sand on the side of the road.
28.The collision with the other vehicle just happened over the crest of a hill.
29.There was no warning sign on the road warning me to slow down upon approaching the crest.
30.I came over the crest of the hill and saw the other vehicle.
31.When I first saw the other vehicle it may have been 10 to 20 metres from my vehicle.
32.I do not really know how far the other vehicle was from my vehicle when I first saw it because the collision happened in a flash.
33.When I saw the other vehicle it was positioned directly in front of me.”
In his evidence he said that he was to the south of the centre of the road. Lindsay was familiar with the road, as he had driven on it one or two times a week for seven months before the date of the accident. He was aware of only once seeing another vehicle using the road, see Exhibit 19 paras 37 and 40. That did not allow him to assume that no one else used the road, Phillips used it “every day” and, according to Phillips, another vehicle came along after he had returned to the scene with Jackson.
At paras 43 - 46 Lindsay said that on this type of road:
“43.Usually you can see a vehicle approaching on these types of road by dust being thrown up on their wheels.
44.The other vehicle involved in the collision did not throw up any dust.
45.I think this was because it had rained not long before the accident.
46.I do not remember braking and I do not remember the collision occurring.”
In cross-examination Lindsay said he had no explanation for not slowing down when approaching the crest. He agreed that slowing down would be the safe thing to do, but he thought he was travelling at a safe speed. I do not accept his evidence that he was driving to the left of the road ‘just off the tracks’. It is more likely that he was driving on the hard stand. In the plan he drew, Exhibit 20, he positioned the tender entirely on its wrong side of the road. I cannot accept that to be correct, bearing in mind where the vehicles came to rest after the collision and the evidence of Phillips.
Sullivan
Constable Sullivan, (“Sullivan”), was at the material time attached to the crash inquiry section at the Joondalup Traffic Branch. He arrived at the scene at about 5.00 pm. He did not remember any conversation with Phillips or being asked by him to mark the skid marks at the rear of the Toyota, or Phillips asking for his number, as Phillips referred to in his evidence. In fact he must have made some identification of the marks associated with the Toyota because they appear on the plan Exhibit 1 prepared by Constable Williams, (“Williams”) of the Forensic Division.

Sullivan said that he drew a mud map at the scene, but that map was not produced, though the police file was in court and searched by Sullivan. Nor did he produce his police notebook.
Sullivan gave evidence that he marked tyre marks which ended at the rear wheels of the tender by gouging with his heel and by placing rocks along their course. However when Williams gave evidence of attending at the scene with Sullivan the following day, he could not recall any distinguishing marks, apart from gouge marks marking the four corners of the vehicles. He could not recall whether Sullivan did or did not walk heel to toe to measure the length of the alleged tyre marks for the purpose of preparing the plan.
I have grave doubts that any tyre marks caused by the tender survived the run off of water from the tank on the tray of the tender.
Jones
Constable Jones, (“Jones”), was at the material time attached to the major crash investigation section of the Police Service. He attended at the scene on 30 June at about 6.00 pm. It was almost dark when he arrived and torches were used to provide some illumination. He arranged for a colleague, Constable Walters, (“Walters”), to take photographs. He recalled Sullivan pointing out wheel marks on the road surface. He referred to one set of marks going from the southern side of the road in a direct line to the northern side to where the Toyota came to rest. He said he saw tyre tread marks on the road that led to the rear of the tender. He concluded that those marks had be left by the rear wheels of the tender. He was unable to pick out these wheel marks when he examined the photographs Exhibits 5 and 21a.
In cross-examination he agreed that the tracks he saw in Exhibit 21c could possibly have been made by another vehicle which had driven in that area. Sullivan did not mark out the tyre tracks when he was there and if Sullivan had done that before he arrived, he did not see any marking of the tyre tracks.
Williams
Williams produced the plan Exhibit 1 after attending at the scene on 1 July with Sullivan. He made some measurements and relied on what Sullivan told him in relation to the position of the vehicles and which tyre tracks were made by each vehicle. The marks he drew to the rear of the tender were tyre marks as opposed to skid marks. He had been told this by Jones. The marks associated with the Toyota were skid marks. Sullivan did not point out gouge marks or stones associated with the tyre marks of the tender.
Walters
Walters was the police photographer who took photographs at the direction of Constable Jones. Her evidence did not add anything significant.

Credibility

As to credibility, Liddell was badly injured in the accident and trapped inside the tender for some time before the emergency services were able to free him. I have made reference above to challenges to his credibility in cross-examination. To my mind that did not seriously affect his credit. However, in my opinion his recollection has been affected by the injuries he suffered and the trauma of losing a fellow volunteer whom he described in his statement Exhibit 9, para 25, as a “close personal friend”. For these reasons in my opinion his evidence was more in the nature of reconstruction than recollection. Thus I cannot rely on all that he said in relation to the lead up to the collision. Where his evidence differed from that of his passenger Phillips, I prefer the evidence of Phillips.
I found that Phillips was a convincing and credible witness who had the advantage of having experience in 4 wheel drive vehicles. He was the least injured in the collision. He had no direct interest in the outcome of the proceedings. It was not suggested that he was other than an independent witness. I have no hesitation in relying on his evidence.
At the scene Jackson was more interested in trying to render assistance and where his evidence and diagram as to the position of the vehicles differ from that of Phillips, I accept the evidence of Phillips.
I did not find Sullivan at all a credible witness. I did not accept his evidence as to the tyre marks he allegedly saw to the rear of the tender being of the same tread as those of the tender. In cross-examination he was evasive. I found it odd that he did not have his notebook and the mud map he drew on the afternoon that he said should have been with the police file was not found there. He said he made gouge marks along the length of the tracks, but Williams from the forensic section said that he only saw gouge marks at the commencement and end of the tracks. Sullivan was shown the photographs taken by Phillips while there was still daylight and agreed that he could not see the alleged tyre marks. I have only his word that the tyre marks were of the same tread pattern as the tyres on the tender and I am unable to accept his evidence as to that.
One factor which militated against the tracks being those of the tender was the fact that the water escaped from the tank on the rear of the tender. The photograph Exhibit 21F appears to show a tyre track that has been partially washed away, which confirms that some water from the tender ran away downhill. There are also other photographs of the road at the rear of the tender which appear to show signs of dampness on the road and scour marks on its surface which Phillips said occurred when the water from the tank ran off.
As Jones and Williams relied on Sullivan pointing out the tyre tracks and as I have rejected Sullivan as a credible witness I also reject their evidence. In any event Jones was examining what he saw in the dark with the aid of flashlights. If Jones and Williams did see tyre tracks, I am not satisfied on the balance of probabilities that the tracks were associated with the tender.
I do not accept what Lindsay had to say about where the Toyota was when he was driving on the road before he first saw the tender. His evidence was likewise a matter of reconstruction rather than recollection, as he too was badly injured in the accident.

Findings

I will not set out the legal principles involved in these types of cases, they were well summarised in the counsel for the defendant’s closing submissions.
In making findings I do so on the basis of the burden of proof of negligence being on Liddell and the standard of proof being on the balance of probabilities. In addition to the findings made above, I make these findings.
Although there was no evidence that the whole 1000 litres of water in the tank on the rear of the tender was discharged in the collision, I am satisfied that some of that water did escape from the tank and run down the hill behind the tender. This had the effect of washing away any tyre tracks behind the tender. None of the witnesses were able to identify any tyre tracks at the rear of the tender and the likely cause of this was that the tracks had been washed away by water spilling from the tender.
Speed of vehicles
The tender was being driven at between 50 - 60 kph and I am unable to find that, even if Liddell had the opportunity to apply the brakes, that the brakes had any time to take effect and reduce that speed. The reasons for making that finding are the evidence of Liddell and Phillips and that Phillips would have noted any unsafe speed as Liddell approached the crest and told Liddell to slow down. That he did not indicates to me that there was nothing unsafe in the speed at which Liddell approached the crest.
I accept Lindsay’s evidence that his speed was about 90 - 100 kph when he first saw the tender
Position of vehicles on road approaching the crest
The tender was positioned about the centre of the road travelling on the hard stand. The Toyota was likewise travelling on the hard stand.
Position of vehicles immediately prior to point of impact
The tender had pulled over towards the northern boundary of the hard stand and there was a momentary movement to the south before the impact. I accept Phillips’s evidence as to this. I do not accept Liddell’s evidence that the tyre tracks deviated to the north as he approached the crest and that he was following those tyre tracks. If that is what he was doing and the tracks took that course, then I would have expected Phillips to give evidence as to that and he did not.
If as counsel for Lindsay submitted in his written closing submissions, that it was more probable that the tender was wholly on the southern side of the road when Lindsay saw it, I find it hard to understand how both the vehicles could have ended up after the collision, namely on the northern half of the road.
As the Toyota approached the crest it did not reduce speed nor move to the south, but continued in the centre of the road. No evidence was led as to the plea in the defence that the application of brakes caused the Toyota to move to its right. This is no occasion for guessing, speculating or conjecturing how the Toyota came to move to the north of the road, but move to the wrong side it did. A driver has an obligation to drive at a speed at which in all the circumstances is safe. Lindsay fell below this standard.
I find that the collision occurred as set out in the evidence of Phillips referred to above.
In my opinion the cause of this collision was the speed at which Lindsay approached the blind crest. Common prudence would dictate that one does not approach a blind crest without reducing speed. Lindsay was familiar with the road and knew that the area was hilly and that he could not see over the crest and was thus driving blind as he approached the crest. He also knew that he would not have the warning signal provided by dust thrown up by an approaching vehicle because it had rained earlier. I have no hesitation in finding that to approach this blind crest at a speed of 90 - 100 kph was negligent. It is clear that his vehicle came to rest on its incorrect side of the road. There was nothing that Liddell could do to avoid the collision. If Lindsay been driving at a lesser speed then it is likely that Liddell and Lindsay could have done something to avoid the collision.
I realise that the skid marks of the Toyota on Exhibit 1 commence on the south side of the road, but that does not prove where the Toyota was further east approaching the rise. All that the plan can show is where the skid marks commenced. I have no doubt that the Toyota was being driven in the centre of the road and I reject Lindsay’s evidence to the contrary, my opinion being that his evidence was based on reconstruction rather than recollection, as I have said.
I do not accept that the position of the vehicles after the collision is correctly depicted on Exhibit 1, which shows the vehicles to have collided head-on. The reasons why I do not accept the position in Exhibit 1 are because I accept the evidence of Phillips and the sketch done by him, Exhibit 11, which indicate that the Toyota was at an angle when it hit the tender. Further, his evidence corresponds with what can be seen in the photographs Exhibits 12, 13 and 14. I say that because, if the collision had been head-on, one would have expected to see the other vehicle extend in line with the vehicle shown. All that can be seen of the other vehicle is only a small fraction of what one would expect if the collision was head-on. I reject the sketch of Jackson, Exhibit 16, in preference to that of Phillips for the reasons referred to above, namely that he paid no particular attention to the position of the vehicles. However, it is of interest that even Jackson’s sketch does not correspond with the angle of the vehicles shown on Exhibit 1.

Summary

I am unable to find that particular of negligence (a) has been made out. However, particulars (b), (c) and (d) have clearly been made out.
As to contributory negligence, I am unable to find that any of the particulars have been made out, Liddell was not driving the tender on the wrong side of the road; he was not driving too fast in all the circumstances; he had no opportunity to brake or manoeuvre the tender to avoid the collision, nor did he fail to keep a proper lookout.
On the issue of negligence, therefore, I find for Liddell, with no reduction for contributory negligence.