McAdam v Robertson No. Scgrg-97-1458 Judgment No. S6544

[1998] SASC 6544

McADAM v ROBERTSON

Magistrates Appeal
Olsson J

The appellant (who was plaintiff at first instance) appeals against the dismissal, by a stipendiary magistrate, of her claim against the respondent for damages for personal injuries.

At about 7.25pm on Tuesday 20 April 1993 the appellant, then a young woman 18 years of age who had only recently qualified for her Probationary drivers’ licence, was driving her father’s Volvo Station Wagon ("the Volvo") south along Bagster Road, Salisbury North.  She was returning home from a basketball training session at a venue in Elizabeth.

There were three other occupants of the Volvo.  The appellant’s brother Russell, then about 15 1/2 years of age, was a passenger in the front near side of the vehicle.  Two other young lads, Jeffery Dean and Daniel Micu (who were friends of Russell and also about his age) were passengers in the rear seat.

A collision occurred on Bagster Road between the Volvo and a Nissan tow truck driven by the respondent.  As a consequence the appellant sustained serious personal injury which has, inter alia, left her with permanent facial scarring.  Quantum was agreed by the parties at $60,000.

Bagster Road is a busy through road which, initially, runs roughly south west from Commercial Road at a roundabout in the latter.  However, about 82 metres prior to the point of impact between the two vehicles, it veers to the left at and across a railway line and proceeds in more of a southerly direction.  At the railway line, on the commencement of the curve left, there is a pedestrian crossing complex, a signal standard and a boom gate.  Immediately past it there is a raised median strip in the centre of Bagster Road, which terminates where Edith Road runs to the west, off it.

So far as I can determine from the material before me the approximate point of impact between the two vehicles ("API") must have been about 23 paces south of the end of the median strip.  (This appears to have been equivalent to slightly in excess of 11 metres, by reference to exhibit D9.)

According to a plan prepared by the attending police officer ("Vincent"), Bagster Road is about 16 paces wide.  It has a grass and footpath verge on its east side which, in its totality, is about 5 paces wide.  Exhibit D9 indicates that the width of the south bound carriageway, between the median strip near its south end and the kerb is 5.4 metres.  Once past the south end of the median strip that carriageway widens out again to the width of a two lane road in each direction, although it is not marked as a two lane road.  There is a single white line down the centre.

Prior to the accident the respondent had positioned the tow truck on the driveway of house premises at which he then resided, situated on the east side of Bagster Road.  He had then loaded a Holden motor car onto the top tray of it.  The overall length of the tow truck was said, by the respondent, to have been of the order of 30 feet.  The total weight of the laden truck was of the order of four tonnes.

The driveway virtually faced out towards the mouth of Edith Road on the far side of Bagster Road right adjacent to the south end of the median strip.  The south side of the driveway entrance was measured by Vincent to be only about 8½ paces north of the approximate point of impact ("API").  The API was about 5 paces out towards the centre line of the carriageway, measured from the east kerb alignment.

The evidence given by the respondent was to the effect that, when he loaded the Holden on to the tray of the tow truck, the front of that truck would have been about six feet back from the fence alignment.  In cross examination he testified that, initially, he drove out of the gate and, with the front of the vehicle slightly protruding into the carriageway, stopped to allow a couple of cars, coming from the direction of the roundabout, to pass.  These were, therefore, coming from his right, southbound along Bagster Road.

His evidence was to the effect that, because of a tendency of the rear end of the laden truck to "bottom out" when exiting the driveway across the kerb/gutter alignment, it was necessary for him to proceed out onto the carriageway relatively slowly.

At the point of exit where the respondent said he stopped, given the width of the road verge and footpath, the bulk of the truck must still have been within the yard of the house property from which the respondent was exiting.  He told the learned magistrate that he had his headlights illuminated.  It was dark at the time.  The truck did not have side lights, although there was a reflective surface on a small RAA sign affixed to the side of it.  The colour of the truck was somewhat similar to that of the front painted galvanised iron type fence of the house property.  It would therefore, to some extent, have tended to merge into the background of the property which it was exiting.

I here pause to note that, as the relevant photographs and my own view of the locus with counsel readily reveal, the respondent’s line of vision to his right was, to some extent, limited.  Due to the curve of the Bagster Road back to the east, just north of the railway line, he could not have been able, continuously, to observe the approach of oncoming vehicles from a point very far past that line.  The respondent himself testified that, even from an elevated position in the cab of the tow truck he could see "Only just slightly past the railway line."  The area was, of course, well known to him.  However, it was readily apparent from the view of the locus that, particularly at night, a vehicle with headlights illuminated would have been visible from what was said to have been the respondent’s location, at least intermittently, as soon as it turned off the road at the Commercial Road roundabout.

The roundabout which had to be negotiated by the appellant before approaching the railway line, was measured by one of the witnesses to be 103 metres to the north east of the railway line.

I pause to record that both the learned magistrate and I had the advantage of a view of the locus in quo.  Indeed, with the concurrence of counsel, I made several trips, as a passenger in the court vehicle, from the roundabout through to and past the approximate point of impact.  It is important to an understanding of the issues in this case that I recite the observations made during that exercise.  These were recorded in the appeal transcript.

As one leaves the roundabout and approaches the railway line from the north east the terrain slopes up slightly to a peak or ridge at the railway crossing.  At that stage the carriageway is quite wide and marked in two full width traffic lanes, albeit that one is designated a turn right lane for traffic desirous of proceeding into Diment Road, immediately over the railway line.

On crossing the railway line Bagster Road proceeds on a steady downhill incline to the south, towards the API.

Seated in a motor vehicle heading south from the roundabout, it is virtually impossible, due to the ridge line effect, coupled with the bend in the road and the clutter of the pedestrian crossing, signal lights and boom gate at the railway line, to see down into and along Bagster Road until one is actually traversing the railway line.  Indeed, it is only at about that point that the presence of the median strip and an associated reduction in the width of the south bound carriageway becomes apparent.

Due to all of those factors and the "hump" created by the ridge line it is quite difficult to negotiate the bend at the railway line with comfort, at a speed as low as 60 kph.  In my opinion, it would be impossible for many drivers to get around the bend at a speed of 70-80 kph.

It was of interest to note, during the view, that the natural flow of traffic over and past the railway line seemed, on observation, to be at about 50-60 kph, dependent upon volume of traffic at a given point in time.  In most instances the noted time from moment of coming into view on transit of the railway line to the respondent’s driveway entrance was between 3 and 4 seconds.

On two runs in the court vehicle at, as nearly as may be, a constant speed of 60 kph, the time for that transit distance was measured at a fraction above three seconds.

The situation above described is highly significant in relation to the degree of care which had necessarily to be exercised in order to safely exit with a 30 foot truck and then straighten up on Bagster Road to travel south, without embarrassing traffic coming from Commercial Road.  It is patently obvious that the driver of such a vehicle would, first, have had to pull out to at least about the centre line of Bagster Road (if not beyond it) and then swing back to the left again, thereby effectively blocking virtually the whole of the southbound carriageway, not once but twice, in order to regain the near side of the road.  The potential dangers attendant on so doing, particularly at night, are obvious.  This was the more so on the night in question as the respondent said that the truck, having a diesel engine, did not accelerate rapidly.

In this regard it is of interest to note the recitation by the learned magistrate (with apparent acceptance) of the evidence of the appellant’s passenger Russell McAdam to the effect that, whilst the appellant’s vehicle was at point which, according to the measurements recorded in exhibit D9, must have been of the order of just over 40 metres away, he saw the truck with its rear end at the gutter and its nose at about a 45 degree angle to the road, out towards the centre of it.

The respondent conceded that Bagster Road was, to his knowledge, quite a busy route;  and that he knew from experience that oncoming traffic tended to come through in "spurts", because of the effect of vehicles negotiating the Commercial Road roundabout on the general traffic flow.

He said that, after the two cars had passed him, he could see no other oncoming traffic.  He then drove the tow truck out onto the southbound carriageway, at which point he was looking ahead along his line of travel, to ensure that it was clear.  His attitude at that point was that, if another vehicle approached across the railway line at (say) 60 kph, it had, in his estimation, about 100 metres within which to see him and safely pull up.  He considered that this was quite adequate.  He appears not to have appreciated the problem that, in fact, a driver crossing the railway line at 60 kph would only have a little over three seconds in which to assess the situation at night and then take effective evasive action.  Moreover, the natural initial focus tends to be on the existence and location of the north end of the median strip, when it first comes into view.  The distance to be travelled by an ongoing vehicle is, of course, only 82 metres to the API, i.e. it is somewhat less to the actual point of emergence of the vehicle onto the carriageway.  According to the plan exhibit D9 the north side of the respondent’s driveway is slightly more than 68 metres from the railway line crest.

The respondent seems, largely, to have ignored the problem of vehicles entering Bagster Road from Langford Terrace, which joins it, southbound, at a point well short of the railway line and only about 43 paces from the API.

Be that as it may, the respondent told the learned magistrate that, when the second car had passed him, he could not see anything else coming from his right.  He then proceeded to "pull out slowly ... swing wide to the left, staying on my side of the road, then proceeded straight down the road."

I once again pause to comment that this evidence seems to portray an impossible geometric situation.  Given the length of the respondent’s truck and the necessary wide swing caused by it, common sense (verified by observations at the view) indicates the probable impossibility of his vehicle staying on "his side" of the road at all times, at least in the sense of not occupying the full width of the south bound carriageway.  Indeed, it appears to me that it would be physically difficult (if not impossible) to carry out that exercise without the front of the 30 foot vehicle actually crossing the centre line.

The respondent’s suggestion is also inconsistent with the plan drawn by Vincent of the position of the truck after impact, for reasons to which I shall shortly come.

The respondent testified that, as his vehicle straightened up, he looked in his right hand mirror and "saw the Volvo coming off the median strip."   His evidence was that the Volvo hit a ‘keep left’ sign on the median strip and then headed back towards the left side of the road - apparently endeavouring to pass down the left side of his vehicle.  He tried to accelerate the truck.

Markings on the median strip noted by Vincent immediately after the accident indicated that the Volvo first contacted the median strip 15.5 metres from its southern end, proceeded along south, partly on top of it, and then off that end.  As I understand the plan exhibit D9 this must have placed the point of first contact with the strip slightly more than 36 metres from the API.  The Volvo did not leave any skid marks consistent with braking.

Vincent testified that the two vehicles were in the positions in which they had come to rest after impact, when he arrived at the scene.  The front right corner of the Volvo "had gone underneath the rear left corner of the tow truck."  Both vehicles were on the north bound carriageway pointing generally south, with the rear of the Volvo projecting slightly back across the centre line.  The API was on the south bound carriageway, well out near the centre line, and some gouge marks looped around in a "U" shape from the API towards the rear of the Volvo.  The rear of the truck was just over 16 metres south of the API (exhibit D9).  That situation suggests that, to achieve an API where it was, the front of the truck must, initially, have swung out well across the centre line.  When it came to rest it was wholly in the north bound carriageway, with the front of it at an oblique angle to the western kerb alignment.  This seems impossible to reconcile with the evidence of the witness Dean, to which I will come.

The learned magistrate was faced with the problem that the appellant could not give any useful evidence as to the events immediately prior to impact, because of her condition of psychogenic amnesia.

The evidence of Russell McAdam was to the effect that, at about the time he first saw the truck, the appellant veered the Volvo to the right.  It first struck the median strip and an impact then occurred with the truck two or three seconds later.  He insisted that he saw no lights on the truck and that it then occupied the whole of the south bound carriageway.  It is fair to say that the learned magistrate was puzzled as to why Russell had not seen the truck by about the railway line, because he felt that, having regard to a view taken by the former, it ought to have been in plain view by at least that time.  The validity of that observation would, of course, have been dependent upon the speed at which the truck entered the carriageway, whether it did pause on the verge prior to doing so, and how well it could be seen - given the state of the street lighting, its colour, the fact that the truck had no side lights and whether the Volvo’s lights were on high or low beam.

The learned magistrate placed some stress on the fact that, after the accident, Russell passed a comment, apropos the appellant, "I don’t know why she was being so stupid."

Having heard his evidence the learned magistrate did not find the witness Dean reliable or particularly helpful.  This passenger said that he first saw the truck when it was of the order of 50 metres distant or a little further - after the Volvo had crossed the railway line and "just before" the median strip.  The truck was at an angle on the road.  He thought that the offside rear of the truck was near the centre line, with the front of it angled in towards the eastern kerb alignment.  (See his sketch on a copy of exhibit D9.)  This is quite inconsistent with the position of the truck when it finally came to rest.  As a matter of logic, if the Volvo struck the rear near side of it (as it did) whilst at such an angle, the impact would have tended to force the rear even further towards the northern carriageway.  On the other hand, it is significant that this witness professed to see the truck across the road in some fashion.

The learned magistrate was not prepared to place any reliance on the speed estimates given by this witness.  He rejected an estimate of 60 kph immediately prior to the impact saying, "I do not think that this is a lie, but how a child can re-construct four years later and then make an assessment, being blunt I know is absolute arrant  nonsense."  With all due respect there was no foundation whatsoever laid to support such a sweeping statement, which, as a matter of general knowledge, may well be open to serious challenge - at least as an all embracing proposition.

Having said that, he went on to reason in these terms:-

"... the enquiry becomes this, if it is accepted that at 60 kilometres an hour a motor vehicle which is being driven by an alert driver in reasonably good condition on a dry sealed roadway, will stop within 38 metres and at 50 kilometres an hour will stop in 29 metres, why is it, one may well ask, that this vehicle just didn’t stop at all, didn’t slow, didn’t swerve, didn’t manoeuvre, didn’t apply brakes, in 82 metres.  The answers are not in the singular.  The best possible versions on the witnesses’ evidence is that the truck the defendant was driving was not seen on the road until it was a minimum of 64 paces away.  64 paces and I know the maps drawn by Coulter are to scale, referring to Coulter’s map, 64 paces or where the dot is put on Exhibit D1(a) is a distance of about 50 metres and I allow for any inaccuracy on my part, from that point on the traffic island that abuts into Langford Terrace to the approximate point of impact.  According to Mr Dean that distance is something in the order of maybe 55 to 60 metres.  It is still begging the question if Louise McAdam on the plaintiff’s version, was travelling at 60 kilometres an hour, and could stop her vehicle and I have not heard any evidence to the contrary that this Volvo station wagon was in anything other than good mechanical repair, within 38 metres, without having to take any evasive action such as mounting kerbs or driving over median strips and the like, or if it was going at 50 kilometres an hour she could stop it in 29 metres, the question is why couldn’t she stop it within a minimum of 50 metres or a maximum of 60 metres.  What was it that caused this vehicle, if it was being driven properly and even accepting that the defendant was negligent, that he saw the plaintiff’s car, that he deliberately drove out on to the road in front of the plaintiff’s car, from 90 paces away, what is it that the defendant has done wrong on the plaintiff’s version and the plaintiff’s witnesses’ versions that caused this collision to occur and I will bear it in mind as I do and I must.  The Volvo hit the truck with such force that it drove underneath the truck and it wasn’t any ordinary truck, it was a 3 tonne truck carrying a 1 tonne load and impailed [sic] itself underneath the vehicle so that it had to be cut away to remove the injured plaintiff.  That is an incredible impact."

It must be noted that no expert evidence was given before him as to speeds, reaction times or stopping distances of particular types of vehicle.  It is not apparent how he arrived at his calculations, other than by reference to a document a copy of which he later supplied to me with his report, the provenance and accuracy of which is unknown.

Oddly enough, although he rejected the evidence of the witness Dean on the basis above recited, the learned magistrate seems to have accepted that of the other passenger Micu, who was about the same age.

The latter witness recounted that he had, at an earlier stage, told the appellant to "chill out" (i.e. take it easy) when she had been driving at 70-80 kph on Commercial Road.  Micu estimated that the appellant accelerated over the railway line to about 60-70 kph.  She was driving in about the middle of the road and the car felt "very uneasy over the railway line".  He saw the respondent’s truck as the Volvo crossed the railway lines.  When he saw the truck it was "out on the road ... a fraction off straight".  Micu did not feel the brakes of the Volvo applied at any stage.  He recalled the Volvo becoming "airborne" and the Volvo initially pulling to its right and striking the sign on the median strip.  Impact occurred within a second or so of hitting the sign.

In a statement given by him to the police immediately after the accident Micu described the truck as being fully out on the carriageway when he first saw it and "at a diagonal angle to the road."  In his ex tempore reasons the learned magistrate recorded that, in a demonstration of the angle of the truck given by Micu in the witness box, that angle was indicated as about 45 degrees.

Given the length of the vehicle, this means that, of necessity, it must have obstructed much, if not most, of the south bound carriageway at the time.  That situation is consistent with both that of Russell McAdam and also the position of the vehicles after impact as noted by Vincent.  It is consistent with the evidence of Dean, to the extent that the vehicle was seen to be at an angle across the carriageway in some manner.

Micu’s estimates of speed given at the time of his statement are somewhat difficult to reconcile with what he later said in evidence.  Moreover, on my own experience at the view, I question whether anyone but a skilled rally driver could have negotiated the railway line and the bend at a speed of, or approaching, 70 kph.  It is only just possible at 60 kph.

Having traversed the facts the learned magistrate summed up his conclusions in these terms:-

"... On this particular evening the plaintiff drove over the railway lines in a southerly direction and never saw the defendant’s vehicle.  The defendant was obliged in law, as I have already mentioned, to check that it was safe to execute a manoeuvre that he was about to perform.  There is no evidence before me and learned counsel drew to my attention that he did not do that.  What else could he do when looking down the road to see that it was clear.  On seeing it was clear he executed his manoeuvre, he had completed his circle, was about to come on to the straight when he was hit in the rear.  The plaintiff’s speed must have been fast for him to travel that relatively short distance and for her to travel that substantially greater distance and hit with such force to the rear end.  Can the defendant’s actions be criticised at all and then to what degree.  He has checked back to the railway line, he has allowed two cars to pass, he did not see the third car, which happened to be the plaintiff’s car.  He was sitting in a high position, he could see past the railway lines, particularly at night because the lights of on oncoming vehicles are on.  He then addressed his mind to putting his truck into gear or dropping the clutch to engage the vehicle and move off.  His first duty at that time once he had put his vehicle out onto the road was to look out for vehicles travelling in a northerly direction along Bagsters Road.  Having assumed the position so to speak on the road and being satisfied that there was no oncoming traffic he then looked in his rear vision mirror and on his version he was suddenly confronted with a vehicle on the median strip crashing down the ‘give way’ sign heading straight towards his truck.  Of course it is absurd to even remotely suggest he could then do something to avoid a collision.  It obviously took a number of seconds for the defendant to drive out of his driveway and execute the manoeuvre to get his truck almost parallel to the kerb.  When one looks at Exhibit D4 one is constrained to observe that the collision occurred with the defendant’s truck wholly on the left-hand side of the centre of the road so that its rear wheels were at or near the centre of the road.  With the south bound lane some eight paces wide, and with the truck being three paces wide, that left the plaintiff some five paces within which to go around the truck.  It was defence counsel’s submission that the plaintiff must have been speeding, a speed of between 70 and 80 in fact fits the case.  That fits the scene because that would explain the moment of panic by an inexperienced driver flying over the railway lines, being presented with a vehicle in front of her, freezing at the wheel and doing absolutely nothing and the emphasis is on absolutely nothing, for some 97 paces or if you like 82 metres.  She just hung on for dear life until there was an almighty impact which drove the Volvo underneath the truck.

...

... Mr Robertson, had a duty to exercise considerable care in entering into the roadway and turning left, along the carriageway.  I do not think one can then go on to say ‘even if the driver of the Volvo should have seen the truck earlier, given that it was moving so slowly, he would have been entitled to assume that it would stop and let her pass’.  The problem with that is that of course Mr Robertson never saw the Volvo, the Volvo driver and passengers saw the truck.  Much was said by counsel for the plaintiff on the use by the defendant’s words in the record of interview with the police officers.  It is true that those words were used and I quote, this is what Mr Robertson said to the plaintiff some few hours after the collision, accepting he likewise might have been in shock, but I do not think it is suggested for a moment that anyone forced him to say this.

‘I loaded the car on to the truck in the driveway of number 70, I pulled forward and checked the road.  There was no on coming traffic.  I pulled out turning left.  I saw a red Volvo station wagon come over the railway crossing.  It looked to me to be out of control.  I would say it was going not less than 80 kilometres an hour.  I was on the road and travelled down Bagsters Road.  The car hit me on the rear left.  The force of the hit pushed me on to the wrong side of the road as well as me trying to avoid the car there was no other traffic whatsoever’.

Interestingly enough, on page two of that record of interview he was later asked ‘when did you first see the other car’.  Answer, ‘as she was coming off the traffic island’.  Question, ‘What did you see the other car do’  Answer ‘I saw her headlights coming off the traffic island and swerving to her left’.  Those two answers as to when he first saw the Volvo are clearly contradictory.  Counsel for the defendant has said to me that there was a reason for that.  Whatever the reason is that is what he said.  I suppose if one wants to take the point literally if as he was pulling out and turning left he saw a red Volvo station wagon doing 80 kilometres an hour out of control over a railway crossing, he would have to be negligent in the extreme to go out on to the road.  That is one way of re-constructing what he said on p.1.  Of course obviously he had no idea it was a red Volvo station wagon coming over the railway crossing and to suggest at night-time with no other reference than a set of headlights to say that you can estimate or even guesstimate a speed let alone a speed of 80 kilometres an hour is nonsense.  To that extent all of that is just re-constructions and a presumption on Robertson’s part.  What he does say out of all of that is that there was no on coming traffic, that’s in one part, ‘And then I saw a red Volvo come over the railway crossing’.  It all depends on the commas and full stops and I don’t think at that hour of the night one should get too picky and say ‘look what you said that night, you’re saying something just a little bit different today four years later, which version is the truth’.  In a nutshell is the defendant entitled to say ‘I’m on the road, I have got a reflective sign, I have a number of sets of tail lights on my truck, as I swing left, a prudent driver can see I’m here and is going to stop or take evasive action’.  Must he also take into account that there just might happen to be on the road an 18 year old lass with very little driving experience whose been on Ps just a few weeks who goes into an absolute blind panic, who freezes at the wheel, who doesn’t apply the brakes, who takes no other evasive action except to mount the median strip and crash through the ‘keep left’ sign.  The answer is no.  Because the answer is no, on my own view is the plaintiff simply has not and cannot ever prove that the defendant has committed any offence - that’s the wrong word - the defendant has done anything wrong in his actions and the plaintiff has not proved on the balance of probabilities that the defendant is liable at all for this collision and accordingly the plaintiff’s claim against the defendant must fail in totality.

Costs to be taxed in default of agreement."

Some comment is immediately attracted by the content of those remarks.

It seems to me that the conclusion that the appellant "never saw the defendant’s truck" cannot be reconciled with the plain inference which compellingly arises from the evidence.  That evidence is to the effect that, when the truck, with its lack of side lights, must have been in view of the driver of the Volvo, she veered her vehicle to its right up onto the median strip.  Whether it thereafter veered back to its left because it was then out of control by reason of striking the median strip, or because the appellant attempted to get around the rear of the truck, is impossible to say.

Secondly, there was no basis whatsoever for attributing any specific level of speed to the Volvo.  In absence of expert evidence it might as reasonably have been said that the end result of the impact was just as consistent with the Volvo striking the truck at an unchecked speed of the order of 60 kph.

Thirdly, on the findings of the learned magistrate and the objective evidence, the respondent’s truck must have been right out in the centre of the carriageway at time of impact - leaving only about 3-4 seconds, at best, for reaction and subsequent evasive driving.  Clearly what appeared as an actual or near full blockage of the carriageway would have been a most daunting spectacle for even a very experienced driver.

Fourthly, as the roads cater for persons driving with widely differing degrees of experience, it is an over generalisation (fraught with a considerable degree of unreality) to say that anyone, in the relevant circumstances, would have had adequate space and opportunity to pass the truck on its left (or incorrect) side, on what appears to have been a relatively main through road, initially constricted to a virtual one lane situation by the median strip.  An inexperienced driver such as the appellant may, reasonably, have assessed that she had virtually nowhere to go.

Finally, it seems to be a somewhat extravagant and unfair statement, not supported by the evidence, to declaim, in effect, that the appellant was "an 18 year old lass with very little driving experience who’s been on Ps just a few weeks who goes into an absolute blind panic, who freezes at the wheel, who doesn’t apply the brakes, who takes no other evasive action except to mount the median strip and crash through the ‘keep left’ sign ..."  In all fairness it is not entirely clear whether this was intended to constitute a mere recitation of submissions of counsel for the respondent, or the learned magistrate’s concluded findings of fact.

The fact is that, on any view, a driver rounding the bend at (say) 60 kph at night, would have been confronted with an emergency situation in which there was relatively little time or scope for reaction and evasive action - given the position and angle of the tow truck on the carriageway, the fact that it had no side lights, and the presence of the median strip.

With the concurrence of counsel, and pursuant to SCR 97.14, I requested the learned magistrate to report to me the source from which he derived the mathematical figures cited by him as to braking/stopping distances and the extent to which they and the provenance of them had been discussed with counsel.

In a detailed response he informed me as follows:-

.        He has for many years had resort to a document titled "STOP - BUT CAN YOU?", the author of which he cannot now recall.

.        That document, a copy of which he supplied to me, is in the form of a chart which purports to indicate average stopping distances and other associated data at various speeds in relation to "an alert driver ... when driving a car which is in good condition, on a dry sealed roadway."

.        As to this he commented, "I know as a fact that the contents of the document are accurate and indeed they have never been disputed ...".

.        Relevant figures were debated with counsel, who did not object to their use.  (Reference was made to an incomplete transcript of addresses which was supplied to me.)

With all due respect to the learned magistrate it cannot fairly be said that counsel gave him carte blanche to consider and rely on the data related to stopping distances.  The figures actually adverted to counsel were no more than simple mathematical calculations of distances which would be travelled by a vehicle at a given speed in particular time frames.  This, of course, required no expert evidence.  It was no more than basic computation.

It is at once apparent that this material was unilaterally advanced by the learned magistrate himself from a completely unknown provenance in the late stages of the trial. It could not be tested as to its validity by counsel and it certainly did not meet the tests of admissibility in evidence adverted to by me in Casley Smith and Ors v F S Evans & Sons Pty Ltd and Anor (No 4) (1988) 49 SASR 339. The fact that the relevant figures may have been put to or discussed with counsel does not render them appropriate for consideration and use, absent the specific adoption of them by counsel and/or their consent to that course.

There are serious and quite obvious dangers in seeking to resort to use of material of this type, other than in the context of proper expert witness evidence, bearing upon and propounding it.  But a glance at the document supplied by the learned magistrate indicates that the figures contained in it do not take account of a series of variables which could profoundly affect those figures.  Moreover, they appear to be based on reaction times of "average" alert, experienced drivers and outcomes, at the expiration of those terms, resulting from a skilled response to a given situation.  The appellant was a very inexperienced driver, most unlikely to react in a highly skilled fashion and within a best case reaction time.  The evidence suggests that she did not do so.

I think that, as I will later demonstrate, this material strongly coloured the reasoning of the learned magistrate in an impermissible manner and resort to it demonstrated a clearly erroneous approach by him.

But the situation does not rest there.  Mr Gray QC, of senior counsel for the appellant, made a strong attack on the construct and content of the ex tempore reasons expressed by the learned magistrate.

Perhaps the first point to be made is that it was an extremely hazardous approach to attempt to give an ex tempore judgment in this case.  I reject the suggestion of Mr Krupka, of counsel for the respondent, that this was no more than a "simple rear end collision case".  It involved consideration of some days of evidence which extended over in excess of 300 pages of transcript.  There were significant inconsistencies as between the witnesses and inherent difficulties in relation to the legal and factual issues.  The claim potentially involved $60,000.  The parties were entitled to fully considered and carefully expressed reasons for decision.  As both counsel agreed, the ex tempore reasons actually expressed left a good deal to be desired in a number of respects.

Mr Gray QC pointed to what he termed fundamental glaring inconsistencies in the reasons.

There are contradictory findings as to whether the appellant saw the respondent’s truck prior to impact.  At page 19 of his reasons the learned magistrate says that she "drove over the railway lines ... and never saw the defendant’s vehicle."  At page 21 he says "... Mr Robertson never saw the Volvo, the Volvo driver and passengers saw the truck."

The two findings simply cannot stand together.  In fact, it is obvious that the appellant did see the truck, albeit after the Volvo had crossed the railway line, because he noted that she attempted evasive action and struck the median strip.

Mr Gray QC also pointed out that, at page 12 of the reasons, the learned magistrate asserts that the appellant did not ever swerve, or otherwise manoeuvre the Volvo, to avoid a collision, whereas, later in his reasons, he accepts that she clearly did swerve up onto the median strip.

He also directed attention to other difficulties arising from the findings expressed by the learned magistrate.

I have already recited the final summation of the learned magistrate as to his approach to the issue of liability. In essence, the learned magistrate appears to have adopted an approach which was plainly rejected by the High Court in March v E & M Stramare Pty Ltd and Anor (1990-1991) 171 CLR 506 ("March"). His reasoning appears to have been that the driving of the appellant was the effective cause of the accident. Ipso facto, no liability can be sheeted home to the respondent.

Such a concept was unequivocally rejected in March. It was there held that, where negligence is in issue, the question of causation is one of fact, to be answered by reference to common sense and experience. The practical test to be applied, as against a party, is not to determine whether the conduct of that party was the cause of the accident but whether it was a cause of it. (See Mason CJ at 509 and McHugh J at 530. See also Medlin v State Government Insurance Commission (1994-95) 182 CLR 1 at 7.)

These matters further demonstrate clear error on the part of the learned magistrate.

However, in my view, there is one, all important, factual aspect which constitutes the fallacy in his reasoning.

At the end of the day a vital issue was the correct factual inferences which ought to be drawn as to precisely how the collision came about.

The essential reasoning of the learned magistrate seems to have been that, even given the potentially dangerous manoeuvre performed by the respondent, he positively looked for further on-coming traffic from his right after two other vehicles had passed him, saw nothing and proceeded out on to the carriageway.  What more, it was declaimed, was expected of him?  Why should he anticipate the advent of an inexperienced driver who fails to appreciate the presence of the truck and take appropriate evasive action?

There are a series of obvious answers to those rhetorical questions.

In the first place the obvious and only inference to be drawn is that the respondent’s lookout must plainly have been defective.  But a moment’s consideration of the locus indicates, that from his position of height advantage, the presence of the Volvo with its illuminated headlights must have been intermittently visible from the time when it came through the roundabout.  Had the respondent proceeded as he said he did - had he carefully looked to his right - he must have seen the Volvo long before he did.

More importantly, knowing the area as he did, two things must have been patently obvious to him -

1. Manoeuvring a 30 foot, slow, laden truck out of a relatively narrow gateway onto a main through road in a manner which, for a time, would necessarily block the whole of the south bound carriageway was an inherently dangerous act which required great care at any time.

1. That inherent danger was exacerbated by the fact that oncoming traffic was most unlikely to be aware of the presence of any vehicle across the carriageway until it had traversed the railway line, when an oncoming driver may well have had a bare 3-4 seconds in which to react.  It is stating the obvious that, at night time, the problem of such a driver instantly assessing the situation for what it was and reacting appropriately to it, in a diminished lighting situation, aggravated the problem.

In short, but a moment’s consideration of the topography, as appreciated at the view, indicates that the presence of a truck a short distance down the incline from the railway line and around the bend, where there was also a median strip seriously limiting capacity to manoeuvre, constituted a serious trap to a person progressing along a normally busy main road.  There was simply no reason for such a person to anticipate that a large commercial vehicle would be exiting a private residence, particularly at that time of night.

The substantial risks involved in exiting the respondent’s house were readily capable of being minimised, if not abated altogether.

The obvious course would have been to obtain the assistance of another person to position himself or herself on the median strip near the crossing or at the crossing, to indicate when the road was clear of oncoming vehicles for sufficient time for a safe exit and/or to warn such vehicles of the presence of the truck on the carriageway.  Such a course would not have been a counsel of perfection, as contended by Mr Krupka.  On the contrary, it would have been plain common sense.

This was not done.  It seems to me to be divorced from reality to suggest that an inexperienced driver, placed in a situation in which, within 3-4 seconds, she had to both make a fundamental assessment of an emergency situation and also then execute effective measures to avoid a dark coloured truck exhibiting no side lights, blocking much of the roadway, when she had little or no space in which to manoeuvre, was solely responsible for the resultant impact.

During the hearing of the appeal a good deal of debate occurred concerning the fact that, by virtue of Regulation 5.04(a)(iii) of the Road Traffic Regulations, the respondent’s truck ought to have been fitted with side lights and was not.  It was argued by Mr Krupka that this failure was not pleaded and was not an issue at trial.  To that suggestion there are two obvious ripostes.  There is no doubt that it was a matter agitated at trial.  Not only was it adverted to in evidence, but the learned magistrate (inter alia) focused on it in the course of his reasons.  At page 14 of those reasons he said "... it did cause me I must confess some concern because the truck was not fitted with any side lights but it was fitted with an RAA [reflective] sign ....

Although, no doubt, it would have been preferable to plead this omission specifically, I agree with Mr Gray QC that it could readily be encompassed within the pleas of a failure on the part of the respondent to give any effective warning of the presence of the truck until it was too late.

Be that as it may, it seems to me that this was, in any event, something of a peripheral issue.  The real gravamen of the case against the respondent can be summarised in this fashion:-

1. By virtue of sections 66 and 62 of the Road Traffic Act the respondent was under a positive duty to give way to any vehicle south bound on Bagster Road. Moreover, as was said by Perry J in Butcher v Saunders and Anor (Full Court, 24 July 1997, S6252.2, unreported) a vehicle proposing to exit private property onto a public road has a duty to exercise considerable care.

1. This was the more so as:-

.        the respondent proposed to exit out onto a main through road;
.        he was exiting from a private home in a location where the emergence of a large, slow moving vehicle would not be expected;
.        the approach to the exit point was around a curve and across a ridge which had the effect of creating a blind corner from the point of view of approaching passenger cars;
.        the exit was, in point of time and distance, extremely close to the blind corner;
.        an emerging large vehicle would not only block the whole south bound carriageway for an appreciable period, but, due to the presence of the median strip, it would effectively constitute a "cork in a bottle", leaving approaching vehicles little or no room to get around it, even if they had time to react to its presence.

I have earlier made the point, and reiterate, that there was simply no acceptable evidence to establish that, on crossing the railway line, the appellant was travelling at a speed in excess of 60 kph.  Quite apart from the fact that it is problematical whether most drivers could possibly negotiate the terrain at a speed of upwards of 80 kph, the only suggestion that the appellant was doing so was the dubious statement of the respondent, which was actually rejected by the learned magistrate in his reasons.  The fact that she may, earlier, have attained that speed on Commercial Road, proves nothing.

I say that the evidence of the respondent is dubious for two reasons.  First, he vacillated over time as to when he first saw the appellant’s vehicle and the speed at which she was then travelling.  Second, it is obvious from the evidence, considered in light of the view, that he could not have been in a position to make any accurate assessment at all.

He first said to Vincent, immediately after the accident, that he pulled out turning left, when he saw a red Volvo station wagon come over the railway crossing.  It looked to him to be out of control.  It was going not less than 80 kph.

The respondent subsequently resiled from that version, in favour of the assertion that he first saw the Volvo coming off the traffic island and swerving to its left.  At page 269 of the transcript he said that he made this observation in his rear vision mirror and had, by then, virtually fully turned into Bagster Road.  If that be correct the Volvo must have been little more than a second from actual impact and passed out of his sight in a moment.  Plain common sense indicates that, if this be correct, he could not possibly have made any accurate estimate of her speed.  The learned magistrate was correct in rejecting that estimate, but it remains a mystery as to the evidentiary source upon which he based his conclusion that the appellant did approach across the railway line at 80 kph.

Be that as it may it is, with respect, obvious to me that the inferences drawn by the learned magistrate as to what occurred cannot possibly be correct.  But a cursory view of the locus, in association with the evidence, reveals compellingly that it could not be so.

The true logical inference was that the look out of the respondent must have been grossly defective in failing to observe any indication of the approach of the Volvo from the area of the roundabout, if, indeed, the respondent did stop and look at all, as he said he did.  The ultimate positions of the vehicles after impact strongly indicate that the respondent did not ever nearly regain its correct side of the carriageway, as the respondent suggests that it did.  Manifestly the truck was still at a significant angle to the carriageway and must have been obstructing much of it, just past the southern mouth of the median strip.  As has been seen, the evidence of the Volvo passengers clearly confirmed that situation - even given the differences in what they actually saw.

The plain fact was that the appellant was confronted with a most unexpected, agony of the moment, decision making process, which would have sorely tested and alarmed most experienced drivers.  To suggest that she had ample time in which to react and brake, or swerve to avoid an impact, is totally unrealistic.

True it is that she was an inexperienced driver, but, bearing in mind the nature of Bagster Road, the onus was patently on the respondent to drive defensively. (See Griffiths v Wood (1994) 62 SASR 204 at 214-5.) The respondent was bound to bear in mind, in any event, that he was not entitled to assume that all other drivers would proceed with the greatest circumspection (Cook and Anor v Sheppard (1979) 53 ALJR 591 at 593, Sibley v Kais (1967) 118 CLR 424 at 427.)

I have dwelt upon the foregoing matters at some length because it was, with respect, a quite unfair summation to reject the appellant’s claim by saying that there was no duty on the respondent to "take into account that there just might happen to be on the road an 18 year old lass with very little driving experience whose been on Ps just a few weeks who goes into an absolute blind panic, who freezes at the wheel, who doesn’t apply the brakes, who takes no other evasive action except to mount the median strip and crash through the ‘keep left’ sign."

Such a statement is not a fair and accurate resume of what happened (inter alia, in that, not only is there no evidence that she "froze" at the wheel and because it also ignores the agony of the moment situation  - in which she had to make a split second decision as to what she should do in a highly difficult and dangerous situation, mainly of the respondent’s making), nor is it an accurate reflection of the law.

It is, of course, true that, once he pulled out on the road, there was, as the learned magistrate said, little that the respondent could do, having regard to the size and speed of his vehicle, to avoid a collision once the Volvo crossed the railway line.  However, that is not the point in this case.

The fundamental issue was whether the respondent was ever justified in proceeding out onto the carriageway as he did at the time, and whether his look out was defective.

I am constrained to comment that the practical Achilles heel in the approach adopted by the learned magistrate is that he says that he, personally, stood at the railway line and noted that there was a clear view down Bagster Road in a southerly direction (Reasons p7).  He then reasoned, on the basis of his chart (to which he was not entitled to refer) that, at 60 kph, the appellant ought to have been able to pull up in 38 metres, well short of the point of impact.  Contrary to Mr Krupka’s submissions, the chart reference thus formed an important basis of his reasoning.

Had he conducted the view in the manner adopted by me he would have realized the fallacy of that reasoning.  His observation completely omits consideration of the perspective of an occupant of a vehicle approaching from the roundabout, as earlier described;  and the fact that, on crossing the railway line, the appellant had, at best, little more than 3 seconds to react and take what very limited evasive action was feasible in the physical circumstances.  To suggest that she could and should have come to a halt in 38 metres is totally divorced from actual reality in the particular circumstances.  It highlights the danger of resorting to inappropriate data.  I venture to suggest that no reasonably skilled driver could possibly have achieved the result suggested by the learned magistrate.

In my opinion the compelling inference to be drawn was that the respondent was negligent in substantial degree and that his negligence played a major causative role in relation to the accident which actually occurred.

That is not to say that the appellant was not also negligent - although it is important to avoid succumbing to undue wisdom after the event.

It was, after all, night time and she was an inexperienced driver.  She was coming to what was, largely, a blind curve in the road and mounting a ridge line at what was, for any driver, an uncomfortable speed.  I think that the inescapable conclusion was that she drove too fast and denied herself an opportunity of maintaining an adequate look out, so as to be able to react appropriately and safely to an emergency situation.  She simply did not know what lay ahead until she negotiated the railway line, after which she had, first, to react to the presence of the median strip and the narrowing of the road.  She should have proceeded with more caution.

On the other hand it is undeniable that the conduct of the respondent virtually invited the disaster which actually occurred.  Contrary to the assessment of the learned magistrate, his was, by far, the greater negligence.  I would apportion 70% of liability against him.

The learned magistrate’s decision was plainly erroneous for the reasons which I have indicated.  His finding was not reasonably open on the evidence.

The appeal must be allowed and the order of dismissal of the appellant’s claim set aside.  In lieu there will be judgment for the plaintiff in a sum equal to 70% of the agreed quantum of $60,000.  I will hear counsel as to interest and costs.