Mulcahy v Tomkins
[2007] WADC 212
•19 DECEMBER 2007
MULCAHY & ANOR -v- TOMKINS & ORS [2007] WADC 212
| Link to Appeal : | [2009] WASCA 228 |
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WADC 212 | |
| Case No: | CIV:750/2004 | 30 APRIL 2007, 1-4 MAY 2007 & 24 AUGUST 2007 | |
| Coram: | MARTINO DCJ | 18/12/07 | |
| PERTH | |||
| 35 | Judgment Part: | 1 of 1 | |
| Result: | CIV 750 of 2004: Judgment for Plaintiffs against First Defendants First Defendants' counterclaim dismissed CIV 136 of 2007: Plaintiff's claim dismissed | ||
| PDF Version |
| Parties: | COLIN DAVID MULCAHY COLIN DAVID MULCAHY and PAMELA GRAHAM as trustee for THE MULCAHY FAMILY TRUST t/as KAKODA HEAVY HAULAGE ANNETTA TOMKINS FREDRICK RISELY VENABLES MARGARET CATHERINE VENABLES NEIL GEORGE VENABLES LAURENCE ARTHUR DAVIES GRAHAM LESLIE OLIVER |
Catchwords: | Torts Negligence Liability for motor vehicle accident |
Legislation: | Nil |
Case References: | Adelaide Chemical & Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514 R v Golightly (1997) 17 WAR 401 Sibley v Kais (1967) 118 CLR 424 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- First Plaintiff
COLIN DAVID MULCAHY and PAMELA GRAHAM as trustee for THE MULCAHY FAMILY TRUST t/as KAKODA HEAVY HAULAGE
Second Plaintiffs
AND
FREDRICK RISELY VENABLES
MARGARET CATHERINE VENABLES
NEIL GEORGE VENABLES
First Defendants
ANNETTA TOMKINS
Second Defendant
- Plaintiff
AND
- ANNETTA TOMKINS
First Defendant
GRAHAM LESLIE OLIVER
Second Defendant
Catchwords:
Torts - Negligence - Liability for motor vehicle accident
Legislation:
Nil
Result:
CIV 750 of 2004: Judgment for Plaintiffs against First Defendants
First Defendants' counterclaim dismissed
CIV 136 of 2007: Plaintiff's claim dismissed
Representation:
CIV 750 of 2004
Counsel:
First Plaintiff : Mr J R Criddle
Second Plaintiffs : Mr J Criddle
Second Defendant : Mr M W Schwikkard
First Defendants : Mr T Lampropoulos
Solicitors:
First Plaintiff : SRB Legal
Second Plaintiffs : SRB Legal
Second Defendant : Jackson McDonald
First Defendants : Formbys Lawyers
- <mpr>
CIV 136 of 2007
Counsel:
Plaintiff : Mr B L Nugawela
First Defendant : Mr B C Sierakowski
Second Defendant : Mr B C Sierakowski
Solicitors:
Plaintiff : S C Nigam & Co
First Defendant : Brian C Sierakowski
Second Defendant : Brian C Sierakowski
Case(s) referred to in judgment(s):
Adelaide Chemical & Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514
R v Golightly (1997) 17 WAR 401
Sibley v Kais (1967) 118 CLR 424
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1 MARTINO DCJ: On 1 December 2003 at approximately 7.00 am Graham Oliver was driving a prime mover with a dolly and trailer attached north on Sues Road, south of Bunbury. A large green concrete silo was on the trailer.
2 Mr Oliver was accompanied by a police escort and three pilot vehicles. The police escort vehicle was driven by Senior Constable Grantley Keenan. Senior Constable Keenan and two of the pilot vehicles were in front of Mr Oliver's vehicle. One pilot vehicle, driven by Annetta Tomkins, was behind his vehicle.
3 There is a bridge on Sues Road, known as Sues Bridge, where the road crosses the Blackwood River. Mr Oliver had commenced crossing the bridge when his trailer was struck from behind by a truck driven north on Sues Road by Laurence Davies. Mr Davies was driving a Freightliner prime mover to which was attached a trailer loaded with woodchips.
4 The first plaintiff in action Civ 750 of 2004, Mr Mulcahy, was the owner of the vehicle driven by Mr Oliver. The second plaintiffs in that action, Kakoda Heavy Haulage, carried on business as haulage contractors using Mr Mulcahy's vehicle. The first defendants, FR & M Venables & Son, were Mr Davies' employers.
5 In that action Mr Mulcahy and Kakoda Heavy Haulage claim damages from FR & M Venables & Son and Mrs Tomkins. FR & M Venables & Son deny liability to the plaintiffs and counterclaim damages for damage to their truck. They also claim from Mrs Tomkins damages and contribution or indemnity for the plaintiffs' claims. Mrs Tomkins denies any liability.
6 The damages suffered by Mr Mulcahy and Kakoda Heavy Haulage have been agreed at $92,350.62 and the damages suffered by FR & M Venables & Son have been agreed at $153,651.98. In both cases those figures do not include interest.
7 In action Civ 136 of 2007 Mr Davies claims from Mrs Tomkins and Mr Oliver damages for personal injuries suffered in the same accident. Both defendants in that action deny liability to Mr Davies.
8 On 7 February 2007 the Principal Registrar ordered that the issue of liability in action Civ 136 of 2007 be determined as a preliminary issue, that the trial of the preliminary issue take place with the trial of action Civ 750 of 2004, that the evidence in each action stand as the evidence in the other action and that the findings of liability after trial be the findings
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- for both actions. As a consequence of those orders the allegations of negligence in each action need to be considered in both actions.
9 In these reasons I refer to the vehicle driven by Mr Oliver as Mr Oliver's vehicle and the vehicle driven by Mr Davies as Mr Davies' vehicle. In doing so I am referring the vehicle the driver was driving, not to ownership.
Sues Road
10 Sues Road runs in a northerly direction from Brockman Highway. It is a road that had been driven on many times by the truck drivers who gave evidence during the trial. It is used frequently by heavy vehicles associated with the local agriculture, mining and freight industries. There are bushes and trees on both sides of the road which throw shadows across the road.
11 For a driver travelling north on Sues Road the road descends down a hill as it approaches the Blackwood River. The precise distance between the crest of the hill and Sues Bridge was not established at the trial. Two experts called to give evidence had taken measurements and photographs at the accident scene. Dr Steven Chew, an engineer who was called as a witness by FR & M Venables & Son took a series of photographs of the approach to the bridge, commencing at 900 metres south of the bridge. Those photographs appear to indicate that the crest of the hill is approximately 800 metres from the bridge. In his report dated 12 July 2006 Mr Grant Johnston, an engineer called by Mrs Tomkins, wrote that there is a small crest approximately 650 metres south of the bridge.
12 As a driver travelling north approaches the bridge there is a right hand bend in the road of approximately 60 degrees.
13 There are two lanes on Sues Road, one for travel north and the other for travel south. From the peak of the hill to the bridge there are continuous double white lines in the centre of the road separating the two lanes.
14 Approximately 400 metres from Sues Bridge there is a road that leads off to the left of Sues Road. That road was described in evidence as a loggers' road.
15 To the south of the bridge there is a slip lane for drivers travelling north to turn left off Sues Road onto a road that leads to camping and
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- picnic areas. The slip lane commences approximately 400 metres from the bridge and terminates at the road leading to the camping and picnic areas, approximately 140 metres from the bridge.
16 There is one north bound lane and one south bound lane on the bridge.
17 The slope of the road from the peak of the hill to the bridge varies. Dr Chew measured its gradient as ranging from one to four degrees. Mr Johnston measured it as ranging from 1 per cent to 4 per cent. A one degree gradient is a gradient of approximately 1½ per cent, so there was a slight difference in the measurements of Dr Chew and Mr Johnston. Country roads are not perfectly smooth, level or consistent in their slope and in my view nothing turns on the slight difference in the measurements of Dr Chew and Mr Johnston.
18 Dr Chew has calculated that at the time of the accident the whole of the road at the bridge would have been in shade from trees and bushes at the side of the road. This evidence was not contested and I accept it.
Mr Oliver, his vehicle and escorts
19 Mr Oliver holds an MC class driver's licence which permits him to drive a multi combination of road transport machinery on roads. At the time of the accident he had been driving trucks for approximately 14 years and had been employed by Kakoda Heavy Haulage for approximately four years. He was familiar with Sues Road and Sues Bridge, having driven over them many times. He had driven the truck he was driving on the day of the accident for over five years.
20 The silo had been loaded and secured the day before the journey. The silo had been raised to a height that allowed it to clear the railings on Sues Bridge.
21 There were oversize load signs at the front of the truck and the rear of the trailer and 30 centimetres by 30 centimetres red and green flags around the load. There was a flashing light on the top of the prime mover.
22 Senior Constable Keenan was attached to the police escorts section and was based at the Main Roads Department building in Welshpool. He had been attached to the police escorts section for 16 months and had also spent six months with the section in 1997. He had escorted hundreds of vehicles.
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23 In July 2002 Senior Constable Keenan completed an accreditation training course in the pilotage of oversize vehicles provided by Transport Forum WA Inc.
24 On the morning of the journey Mr Oliver, Senior Constable Keenan and the drivers of the pilot vehicles checked their radios, flashing lights and signs. Mr Oliver and Senior Constable Keenan walked around the prime mover and trailer and checked its lights, flags and signs.
25 He measured the load and the vehicle. The length of the overall vehicle, which I understand to be the total length of the loaded prime mover, dolly and trailer, was 25.8 metres. The concrete silo loaded on the trailer was 5.5 metres high and 8.65 metres wide.
26 I accept Senior Constable Keenan's evidence of these measurements and his evidence that the load was a very tight fit on Sues Bridge.
27 At the time of the accident the weather was fine and visibility was good, although there were the shadows on the road and the bridge from the trees and bushes beside them.
28 On 10 November 2003 Mr Mulcahy had obtained from the Main Roads Department a permit issued under the Road Traffic (Vehicle Standards) Regulations 2002 and the Road Traffic Code 2000 for the transport of the silo from Beenup to Bunbury. The permit specified the route that was to be taken and included Sues Road. It contained a condition that one police escort and three pilots were to be used. Another condition was that a pilot vehicle was to be at the rear of the transporting vehicle at a maximum distance of 150 metres from the vehicle.
29 Mr Oliver, the police escort and the three pilots could communicate with each other using UHF radios. They used channel 40 which is the channel generally used by truck drivers and their pilots. Mr Mulcahy also travelled on the journey. He drove a vehicle ahead of the prime mover driven by Mr Oliver. He also had a UHF radio tuned to channel 40.
30 Mrs Tomkins commenced working as a self employed pilot in the early 1990s. In 2001 she became an accredited pilot under the Road Traffic Code 2000 by successfully completing a training course in the pilotage of oversize vehicles provided by Transport Forum WA.
31 When she obtained her accreditation as a pilot Mrs Tomkins was provided with a Training Reference Manual. Exhibit 5 is a copy of that manual. It lists the criteria for a person to become an accredited pilot,
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- outlines the duties and tasks to be performed by accredited pilots and provides standardised procedures for pilots. It contains a section on bridge supervision which includes:
"Front and rear pilots should position themselves at the crest of the hill, if any on both sides of the bridge, or well before or after the bridge in the case of blind corners on the approaches to the bridge. This is so that all traffic approaching the bridge has adequate room to stop when the load carrying vehicle/s is on the bridge.
In addition, the lead pilot or front pilot must inform all traffic that is monitoring the radios in the area, that the bridge is closed for the passage of a wide or heavy load."
Warnings to road users before 1 December 2003
33 Mr Oliver and his pilots had been using Sues Road to transport other loads before 1 December 2003. His evidence was that in the days prior to 1 December when Mr Oliver and his pilots saw a truck on Sues Road they used their UHF radio to tell the driver of the truck that on 1 December they would be commencing to carry extremely big loads. FR & M Venables & Son was one of the trucking companies whose trucks Mr Oliver had seen. He used his radio to tell the drivers of those trucks of the loads to be transported on the road.
34 Ms Tomkins' evidence was in November 2003 she had made 12 journeys escorting loads from the Beenup mine to the Bunbury port and that when she saw trucks on the route she used her radio to warn drivers of the large load that was to be transported.
Mr Davies and his vehicle
35 Mr Davies obtained a licence to drive heavy combination vehicles on roads approximately two and a half to three years before the accident. He had been driving heavy haulage trucks for approximately five months. Approximately six weeks before the accident he had commenced working on transporting woodchips from a plantation to Bunbury. In the course of that work he had driven trucks along Sues Road approximately three times a day five or six days a week. He had also driven along Sues Road many times before commencing that job.
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36 Mr Davies estimated that his prime mover and trailer were approximately 20 metres long and that the total weight of the loaded vehicle was approximately 42-43 tonne. His UHF radio was tuned to channel 40.
Mr Oliver's approach to Sues Bridge
37 Mr Oliver's evidence was that he could see Sues Bridge when he was approximately 200 metres from it. He then slowed down to approximately 20 kilometres an hour. His highest speed before slowing down was 70 kilometres an hour. Immediately before crossing the bridge he slowed down to a crawling speed of approximately five kilometres an hour.
38 As Mr Oliver approached the bridge Senior Constable Keenan parked his vehicle north of the bridge and alighted from his vehicle with a hand held radio tuned to UHF channel 40. He stood ahead of Mr Oliver, on Mr Oliver's right hand side. He communicated to Mr Oliver through his hand held radio and told him that he was coming onto the bridge correctly. He also communicated to Mr Oliver by hand signals.
Communications between Mr Oliver and Mrs Tomkins
39 Mr Oliver's evidence was that as he was travelling down the hill approaching Sues Bridge he used his radio to suggest to Mrs Tomkins that she stay back at least 500 yards or 500 metres in case someone was coming up from behind. Mr Oliver wanted Mrs Tomkins to stay near the top of the hill to the south of the bridge. He received a response from Mrs Tomkins. He did not say anything else to Mrs Tomkins as he was concentrating on his approach to the bridge.
40 The distance that Mr Oliver asked Mrs Tomkins to move back is greater than the 150 metres maximum distance specified in the permit issued by the Main Roads Department. His evidence was that he knew the road and the speed at which people travel on the road and he wanted people approaching the bridge to have plenty of warning that he was on the bridge. In his view if Mrs Tomkins had been 150 metres from his vehicle she would have been too close.
41 In cross examination by counsel for Mrs Tomkins Mr Oliver agreed that in his communication with Mrs Tomkins he said words to the effect that he wanted Mrs Tomkins to move back as he did not want to wear a motor bike. Mr Oliver denied asking any of his pilots to help him line up his load or to check his load as he drove along.
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42 Mrs Tomkins' evidence was that as Mr Oliver approached Sues Bridge he asked her to line up the rear of the load with the bridge. She did as he asked and gave him directions over the radio.
43 Then Mr Oliver asked her to move back as he did not want to wear a motor bike. Mrs Tomkins evidence was that she was a safe distance back from the truck when Mr Oliver made that request. She started to reverse away from Mr Oliver's truck.
44 A police officer spoke to Mrs Tomkins at the accident scene on the day of the accident and recorded the conversation on videotape. Mrs Tomkins did not say to the police officer that Mr Oliver called her to line up the load on the bridge. Her evidence was that at the time she was in shock and did not mention a lot of things.
45 In written statements made on 19 March 2004 and 27 April 2004 Mrs Tomkins said that Mr Oliver asked her if the load was central on the bridge and that she gave directions to him over the radio. In the second statement she said that if she had not been called down she would have parked her vehicle on a slight angle at the top of the second crest, which would have been the safest place to park and be able to control the traffic. In evidence Mrs Tomkins admitted making that statement, but denied that it was correct. She was asked in cross-examination by counsel for FR & M Venables & Son if the second crest was the last crest before Sues Bridge and her evidence was that it was, as far as she could remember.
46 In his report dated 12 July 2006 Mr Johnston wrote that Mrs Tomkins' intended destination when she was reversing was the small crest approximately 650 metres south of Sues Bridge. His evidence was that this information came from Mrs Tomkins. Mrs Tomkins' evidence in cross-examination by counsel for FR & M Venables & Son was that if that is what she had told Mr Johnston then it must be true, but that as far as she was concerned she was still in a safe position when Mr Davies passed her.
47 Senior Constable Keenan's evidence was that as Mr Oliver was going down the hill towards the bridge he heard, on his radio, Mr Oliver ask Mrs Tomkins to hang back from him as he crossed the bridge as he would hate some idiot on a motorcycle to come flying down and run into the back of him. Senior Constable Keenan heard Mrs Tomkins reply that she would do so. Senior Constable Keenan could not recall hearing Mr Oliver
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- call Mrs Tomkins and ask her line up his vehicle on the bridge from the rear.
48 Mr Davies' evidence was that he did not hear anything on his radio until he heard a female voice warning him of a load ahead.
49 Neither Mr Mulcahy nor the drivers of the two pilot vehicles ahead of Mr Oliver were called to give evidence. Mr Gavin Peacock, a truck driver who was arrived near the scene after the accident, did not hear any communications until he received a communication from Mrs Tomkins when he was near the scene.
Mr Davies' approach to Sues Bridge
50 Mr Davies' evidence was that he travelled at approximately 100 kilometres an hour on Sues Road. His truck had a governor that was set at just on 100 kilometres an hour. Approximately one kilometre before Sues Bridge, as he descended down the hills approaching the bridge, he engaged the Jake brake. A Jake brake uses the exhaust from the engine to provide a braking effect on the vehicle. Mr Davies' evidence was that the Jake brake prevents the vehicle picking up excessive speed as it descends down hill. From his experience the Jake brake holds the speed at 100 kilometres per hour.
51 His evidence was that at the time he engaged the Jake brake he had heard nothing on his radio. He had not heard before he commenced his journey that a large load was to be transported on Sues Road that day. Mr Davies estimated that Mrs Tomkins pilot vehicle was approximately 200 metres ahead of him when he first saw it. He marked with the letter X on photograph 6 of exhibit 10 his position at the time that he first saw the pilot vehicle.
52 Mr Davies' evidence was that the pilot vehicle appeared to be in the middle of the road. It appeared to be either stationary or moving extremely slowly. He applied his brakes to a degree while he assessed the situation.
53 As he applied the brakes and assessed the situation after he saw the pilot vehicle ahead of him he heard on his radio a female voice give a warning message that something was ahead. He was already assessing the situation. He decided that full heavy braking was not the best course of action. The reason for his decision was that there was a pilot vehicle in the middle of the road with a right hand bend on a descent. Mr Davies
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- knew that there would be a danger further ahead of Mrs Tomkins' pilot vehicle but he could not see what that danger was.
54 He decided to avoid the pilot vehicle by going around it in the slip lane. As he entered that lane he was braking reasonably firmly. He had engaged the foot brake and then, as he neared the rear of the pilot vehicle, he also engaged the trailer brake. He did that to try to take some speed off the truck without causing it roll over or the trailer to jack-knife.
55 Mr Davies had travelled approximately 200 metres after hearing the first message on the radio when he heard a second request. This was a panicking voice saying to stop.
56 As he passed the pilot vehicle he looked into his rear mirrors to ensure that he could return to the road off the slip lane without striking the pilot vehicle. He pulled back onto the road out of the slip lane, looked up and saw Mr Oliver's loaded vehicle on the bridge. Mr Davies estimated that he was approximately 100 to 120 metres from Mr Oliver's vehicle when he first saw it. He applied his foot brake as forcefully as he could. Engaging the foot brake in that way overrides the trailer brake. Mr Davies believes he slowed his vehicle down considerably. However he was unable to stop before colliding with the rear of Mr Oliver's trailer.
57 Mr Oliver heard on his radio Mrs Tomkins say, in a voice he described as a panicked voice, "Slow down, slow down, stop". He heard no response to her.
58 Very soon afterwards Mr Oliver heard the loud noise of Mr Davies' truck colliding with his trailer and felt himself launched forward by the force of the collision. Mr Oliver does not recall hearing a communication from Mrs Tomkins to a north bound travelling vehicle before he heard her call to slow down and stop.
59 Senior Constable Keenan's evidence was that after he had alighted from his vehicle north of Sues Bridge he heard on his hand held radio Mrs Tomkins say words to the effect of: "Good morning, north bound, I will get you to back it right down. We have got a wide one about to cross the bridge ahead of you. Prepare to come to a stop."
60 Approximately 20 seconds later he saw a Freightliner prime mover with a single trailer attached travelling in a northerly direction on Sues Road behind Mr Oliver. Senior Constable Keenan estimated the vehicle's speed to be between 90-100 kilometres per hour. At about that
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- time he heard, again on his radio, Mrs Tomkins almost scream "slow down". Mr Davies' truck then disappeared from Senior Constable Keenan's view, behind Mr Oliver's loaded vehicle.
61 Mrs Tomkins' evidence was that after Mr Oliver had asked her to move back she commenced to reverse her vehicle away from Mr Oliver's vehicle. She had travelled only a couple of car lengths when she saw through the right hand side mirror a white flash which she recognised as the top of a truck.
62 She immediately stopped her vehicle. She used her radio to tell the truck driver that he could not proceed as there was an over width load on Sues Bridge and the bridge was closed. She received no response. Mrs Tomkins saw that the truck approaching her appeared to be travelling at a reasonably fast speed and not to be slowing down. She made a second radio call to the driver, telling him firmly to stop. At that time the truck was in the slip lane at her left, just to the rear of her vehicle. Again she received no response.
63 The truck went past her in the slip road on her left side, went back onto the road in front of her and collided into the back of Mr Oliver's load. The driver's window of Mrs Tomkins' vehicle was down. She did not hear any noise of the truck braking. She did not see any brake lights on Mr Davies' trailer.
Location of Mrs Tomkins' vehicle when Mr Davies passed it
64 As I have noted Mrs Tomkins' evidence was that she stopped her vehicle as soon as she saw a truck approaching. Her evidence was that her vehicle was substantially on the left side of the road and that her right front tyre was on the double white lines in the middle of the road, at a position marked by her on photograph 13 of exhibit 1. It was also her evidence that the rear of her vehicle was slightly over the double white lines at a position at which a witch's hat is placed on the double white lines on photographs 2 and 3 of exhibit 11. The photographs in Exhibit 11 were taken by Mr Johnston when he visited the accident scene with Mrs Tomkins. The witch's hat is approximately 50 metres to the south of the road that leads to the camping and picnic area.
65 In cross-examination by counsel for FR & M Venables & Son Mrs Tomkins described this location as being parked in the middle of the road, with her right hand tyres straddling the middle white line.
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66 When Mrs Tomkins spoke to a police officer on the day of the accident, which conversation was recorded on videotape, she said that she had stopped in the middle of the road. In that conversation she indicated that she stopped her vehicle closer to Sues Bridge than the location of which she gave evidence, approximately at the camping and picnic area access road. Her evidence was that she was traumatised by the accident when she spoke to police officers.
67 Mr Davies' evidence was that when he first saw Mrs Tomkins' pilot vehicle it was a short distance before the road that leads to the camping and picnic area, approximately at a position marked "PV" by him on photograph 2 of exhibit 10. This position is south of that access road, closer to that road than the position indicated by Mrs Tomkins.
68 In a written statement to police officers made on 7 December 2003 Mr Davies said that on 5 December 2003 he returned to accident scene on Sues Road and that he estimated the rear escort pilot was about 300-400 metres from the rear of Mr Oliver's vehicle, which was on the bridge at the time.
69 In answers to interrogatories dated 27 October 2004 FR & M Venables & Son stated that Mr Davies was approximately 300 metres from Sues Bridge when he first noticed the rear escort vehicle and that he was approximately 200 metres from the rear escort vehicle when he first noticed it.
The point of collision
70 Mr Oliver's evidence was that the front of his vehicle was 3 metres beyond the expansion joint, or bridge plate, at the time of the collision and that he was shunted forward 41 feet, or approximately 14 metres, by the force of the collision. He arrived at this distance of 41 feet because after the accident the whole of his vehicle was over the bridge plate. In my view Mr Oliver's evidence of these distances as imprecise estimates only, and they are not a good guide to the point of collision between his vehicle and the vehicle driven by Mr Davies.
71 There was no evidence of the precise location at which the two vehicles ended after the collision. Following the accident there were gouge marks in the road near the accident scene, which appear to be the result of the collision. On the day of the accident Senior Constable Keenan took some photographs following the accident which are Exhibit 3. Photograph 10 of that exhibit shows a gouge in the road near
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- the southern end of Sues Bridge. Senior Constable Keenan did not measure the distance from the gouge to the bridge.
72 When Dr Chew visited the accident scene Mr F Venables showed him gouge marks on the road. Dr Chew measured the distance between the south edge of the gouge marks and the south end of the west railing on Sues Bridge as being 5.5 metres.
Mr Peacock's meeting with Mrs Tomkins after the accident
73 At the time of the accident Mr Peacock was driving a prime mover with a trailer loaded with woodchips from the same plantation from which Mr Davies was driving. Mr Peacock was following the same route as Mr Davies but was some 15 minutes behind him.
74 Immediately after the accident Mrs Tomkins drove to the accident scene. She handed a fire extinguisher to Senior Constable Keenan and then drove north on Sues Road, intending to go to Brockman road to prevent vehicles entering Sues Road. While Mrs Tomkins was travelling south on Sues Road Mr Peacock was travelling north on that road.
75 While Mr Peacock was approaching the bend on Sues Road before the bridge he received a radio call that there had been an accident and the bridge was blocked. Mr Peacock applied his brakes very heavily. He did that because he did not know where the accident was and he was approaching what he described as a blind corner. I understand that by his evidence of that corner Mr Peacock is referring to the bend in Sues Road. He identified photograph 8 of exhibit 1, which shows the bend, as where a person travelling north on Sues Road comes around the corner.
76 He went around that bend and saw Mrs Tomkins' vehicle in the middle of the road. He stopped at or near the loggers' road. There was a slight difference between the evidence of Mrs Tomkins and Mr Peacock as to where Mr Peacock stopped. Mrs Tomkins' evidence was that Mr Peacock pulled up on the loggers' road. Mr Peacock's evidence was that he stopped approximately two truck lengths past the loggers' road. I do not consider that anything turns on this difference. It is likely that Mr Peacock is correct as his evidence was that he reversed back to the loggers' road so that his truck could stay there while his brakes cooled.
77 After Mr Peacock had come to a stop Mrs Tomkins drove up to him. She told him that a truck had gone into the back of a heavy load. Mr Peacock told Mrs Tomkins that she was too close to the bottom of the hill and that she should be at the top of the hill. His evidence was that he
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- asked her why she was down that far. Mrs Tomkins replied that the truck driver had called her down to his vehicle to have a look at something or check something out.
78 Mrs Tomkins denied that she told Mr Peacock that the truck driver had called her down to check or look at something. There is no reference in Mr Peacock's police statement to Mrs Tomkins saying that the truck driver had called her down, but I accept his evidence as to the conversation. It is Mrs Tomkins' evidence that Mr Oliver did ask her to line up the rear of the load on the bridge. There is no source from which Mr Peacock could know of a request from the truck drive to look at something other than Mrs Tomkins.
Mr Peacock's meeting with Mr Davies after the accident
79 While Mr Peacock waited for his brakes to cool he walked to Sues Bridge. He saw Mr Davies and he asked him what had happened. Mr Davies told him that he got a radio call very late. Mr Peacock told Mr Davies that he did not look well and to sit down. Mr Davies said he did not want to sit down as he was concerned he might fall asleep. Mr Peacock was annoyed by the fact that Mr Davies was not receiving any attention.
Expert evidence
80 Each of Mr Mulchay, FR & M Venables & Son and Mrs Tomkins called expert evidence on the accident. The precise braking performance of Mr Davies' vehicle is unknown. It was not known before the accident. Following the accident the prime mover was dismantled so that it was not possible to test its braking performance. Dr Chew tested the brakes on another prime mover supplied to him by FR & M Venables & Son, which Mr Venables described to him as being identical to the prime mover involved in the accident, to which was attached a trailer with loads similar to the load at the time of the accident. While the vehicle Dr Chew tested was similar to the vehicle driven by Mr Davies it was of course not identical.
81 Mr Martin Simms is a consulting engineer with many years experience in investigating road accidents. He was instructed to prepare a report on behalf of Mr Mulcahy. Mr Simms did not visit the accident scene. Mr Simms' surname is incorrectly typed as Simmonds in the trial transcript.
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82 In his report dated 8 March 2005 Mr Simms expressed the opinion that Mr Davies' vehicle was travelling at a speed in the region of 30-40 kilometres per hour when it collided with trailer attached to the prime mover driven by Mr Oliver. However that estimate was based upon the assumption that Mr Oliver's load did not move significantly in the impact. Since preparing his report he had been told that it did move. His evidence was that information would raise his estimate of the speed of Mr Davies' vehicle at impact to some difficult to estimate degree. In cross-examination by counsel for Mrs Tomkins Mr Simms said that there is a good chance that a speed of 66 kilometres per hour is an approximate indication of the impact speed.
83 Based on the Vehicle Standard Regulations under the Road Traffic Act 1974 and the relevant Australian Design Rule Mr Simms estimated that under moderate braking Mr Davies' vehicle could decelerate at 0.2 g or 1.96 m/s2, under severe braking at 0.3 g or 2.94 m/s2 and under panic braking at 0.4 g or 3.92 m/s2. Mr Simms considered these to be conservative estimates.
84 In Mr Simms' opinion at a deceleration of 0.4 g the wheels on Mr Davies' vehicle would probably have locked and almost certainly would have left tyre skid marks on the road.
85 Mr Simms gave evidence of his opinion of Mr Davies stopping distances in a number of situations. If Mr Davies had observed Mrs Tomkins' pilot vehicle, slowed from a speed of 95-100 kilometres per hour to a speed of 90 kilometres per hour when he passed Mrs Tomkins' vehicle, then braked at a moderate rate of 2.5 m/s2 and had an available stopping distance of 100 metres until he reached Mr Oliver's vehicle then in Mr Simms' opinion Mr Davies would have collided with Mr Oliver's vehicle at a speed of approximately 40 kilometres per hour. Mr Simms' report contains a calculation for the situation of Mr Davies passing Mrs Tomkins at a speed of 90 kilometres per hour and then braking at a severe rate of 2.94 m/s2. It shows that if Mr Davies had an available stopping distance of 100 metres then he would have collided with Mr Oliver's vehicle at a speed of 22 kilometres per hour.
86 If Mr Davies had passed Mrs Tomkins at a speed of 80 kilometres per hour then braked at a moderate rate of 2.5 m/s2 he would have stopped in 99 metres and if he had braked at a severe rate of 2.94 m/s2 he would have stopped in 84 metres. If Mr Davies had passed Mrs Tomkins at a speed of 70 kilometres per hour then braked at a severe rate of 2.94 m/s2 he would have stopped in approximately 65 metres.
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87 If Mr Davies had passed Mrs Tomkins at a speed of 100 kilometres per hour, then braked at a severe rate of 2.94 m/s2 and had an available stopping distance of 106 metres until he reached Mr Oliver's vehicle then he would have collided with Mr Oliver's vehicle at a speed of approximately 44 kilometres per hour.
88 It is Mr Simms' opinion that reaction time is not a relevant factor in any of the situations to which I have referred because Mr Davies was aware of the presence of a hazard.
89 If Mr Davies had passed Mrs Tomkins at a speed of 90 kilometres per hour but did not recognise the hazard of Mr Oliver's vehicle then, in Mr Simms' opinion, a reasonable reaction time would be one second because Mr Davies' attention would have been heightened by the presence of Mrs Tomkins' vehicle. In this situation if Mr Davies did not notice Mr Oliver's vehicle until he was approximately 80 metres from it then he would have collided with Mr Oliver's vehicle at a speed in the range of 60-70 kilometres per hour. In his report dated 8 March 2005, Exhibit 8, Mr Simms expressed the opinion that a collision at that speed was unlikely because Mr Davies would probably have been killed if he had collided with Mr Oliver's vehicle at that speed. In his evidence Mr Simms was less certain about that opinion that such a collision would be fatal. The opinion in his report had been based on an assumption that Mr Oliver's vehicle was stationary at the time of the collision and had not moved after it.
90 It was Mr Simms' opinion that Mr Davies passed Mrs Tomkins' vehicle at an excessive speed and so had insufficient time to stop before colliding with Mr Oliver's vehicle. If Mr Davies had passed Mrs Tomkins' vehicle at a speed in the region of 70 kilometres per hour he would, in Mr Simms' opinion, have been able to stop before the collision.
91 In Mr Simms' opinion the absence of skid marks on the road and the recollection of Senior Constable Keenan that he did not hear heavy braking or the engine brake operating indicates that Mr Davies did not fully apply his brakes at any time before the collision.
92 Mr Grant Johnston is an engineer with many qualifications and years of experience in roads and accidents on roads.
93 Mr Johnston inspected the accident scene on 27 November 2005 at approximately 2 pm. He was accompanied by Mrs Tomkins. This inspection took place at a very similar time of year as the accident, but at a different time of day. He took photographs and measurements at
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- the scene and drove and walked north along Sues Road to Sues Bridge to familiarise himself with the approach along the road to the bridge. When carrying out his inspection Mr Johnston observed gouge marks at the southern end of Sues Bridge consistent with heavy vehicle impact at that location. In his opinion it is probable that the gouge marks relate to the accident and were probably caused by the substructure at the front of Mr Davies' vehicle after impact.
94 The lawyers acting on behalf of Mrs Tomkins instructed Mr Johnston to comment on three alternative scenarios. The first scenario was that Mrs Tomkins' vehicle was positioned where she pointed it out to have been when she and Mr Johnston visited the accident scene on 27 November 2005, as shown by the witch's hat on the double white lines on photographs 2 and 3 of exhibit 11. In his report Mr Johnston described this location as being approximately 50 metres beyond the campground access road. That description was from the point of view of a person walking south from Sues Bridge. For a person travelling in the direction that Mr Davies' was travelling the location is approximately 50 metres before the road leading to the camping and picnic areas.
95 The second scenario was that the distances and speeds provided by FV Venables & Son in answers to interrogatories were accurate. In those answers, which are exhibit 4, Mr Davies was approximately 300 metres from Sues Bridge and 100 metres from Mrs Tomkins' vehicle, travelling at approximately 100 kilometres per hour, when he first noticed Mrs Tomkins' vehicle.
96 The third scenario was that at the time of the accident Mrs Tomkins' vehicle was to the north of the campground access road, approximately 110 metres from the rear of Mr Oliver's vehicle. This scenario was based upon what Ms Tomkins said to a police officer on the day of the accident which is recorded on videotape.
97 It is Mr Johnston's opinion that Mr Davies would have been able to see Mrs Tomkins' vehicle when he was approximately 225 metres from it and that he would have been able to see Mr Oliver's vehicle when he was approximately 240 metres from Mr Oliver's vehicle.
98 It is Mr Johnston's opinion that a vehicle with good brakes that had ABS capacity could achieve a deceleration of 0.5 g. This would run the risk of jack-knifing, which he regarded as an appropriate risk to take when faced with the prospect of Mr Davies' vehicle colliding with Mr Oliver's
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- vehicle. Mr Johnston agrees with Mr Simms that braking at above 0.4 g is likely to leave signs of braking.
99 Mr Johnston's evidence was that published data on driver perception reaction times was that the times varied from approximately 0.75 seconds for an alert and expectant driver to approximately 2.5 seconds for a less alert driver in a situation where the hazard is less clear. Road designs for rural and high speed roads typically adopt a reaction time of 2.5 seconds.
100 Mr Johnston generally agreed with Mr Simms' analysis of braking rates and that Mr Davies should have been able to achieve a braking rate of at least 0.4 g. Mr Johnston considers that a braking rate of 0.5 g would have been likely to be achievable, but it would have run the risk of jack-knifing. While that would generally be an undesirable consequence, the risk of a significant collision may make it an acceptable consequence in an emergency.
101 Mr Johnston's opinion is that if Mr Davies did not hear any radio transmissions before seeing Mrs Tomkins' vehicle then a reasonable response time on seeing it was approximately 2 seconds. If Mr Davies had passed her vehicle before braking then a reasonable response time would have been one second, as he would have been alerted to the danger by Mrs Tomkins' vehicle.
102 Mr Johnston calculated that if Mr Davies was travelling at a speed of 95 kilometres per hour and had a reaction time of two seconds then his total stopping distance would have ranged from 134 metres under braking of 0.5 g to 230 metres under braking of 0.2 g. For a reaction time of one second the stopping distances would have ranged from 97 metres to 203 metres.
103 It is Mr Johnston's opinion that in all of these scenarios Mr Davies had sufficient time to stop before colliding with Mr Oliver's vehicle.
104 Mr Johnson also provided his opinion as to the speed of Mr Davies' vehicle at the time of the accident. The speedometer on the prime mover was jammed at approximately 66 kilometres an hour after the accident. It is Mr Johnston's opinion, having regard to the damage suffered by the prime mover and the gouge marks on the road, that it was travelling at approximately 65-70 kilometres per hour at the time of the collision.
105 To estimate the stopping performance of Mr Davies' vehicle Dr Chew carried out two tests. In each of these tests he used the prime
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- mover supplied to him by FR & M Venables & Son with a trailer carrying a load to which I have referred earlier in these reasons.
106 Dr Chew's tests were not carried out on Sues Road but on a straight stretch of road between Bunbury and Donnybrook. In his first test Dr Chew found that the brakes of the prime mover and trailer had a braking co-efficient of 3.36 m/s2. On his second test Dr Chew found that the Jakes Brake had a braking co-efficient of 0.3 m/s2 and that it stopped functioning when the vehicle had slowed to 55 kilometres per hour.
107 These results provide an estimate of the braking capacity of Mr Davies' vehicle. They do not provide a precise measure because it was a different vehicle tested in different circumstances.
108 With the aid of a pair of binoculars and his measuring wheel Dr Chew estimated that from the south of Sues Bridge the west lane of the bridge is visible from the middle of the road at a distance of 271 metres from the bridge. He made this assessment from his standing eye level.
109 Dr Chew was asked to report on whether from when it became apparent to Mr Davies that the road was blocked by Mr Oliver's vehicle Mr Davies could have brought his vehicle to a stop. In his report dated 31 March 2005, exhibit 18, Dr Chew answered this question by reference to information provided to him by FR & M Venables & Son, including that Mr Davies was approximately 80 metres from the rear of Mr Oliver's vehicle when he first noticed it. Dr Chew calculated stopping distances using the braking deceleration he obtained in the tests on the prime mover and trailer provided to him by FR & M Venables & Son. Dr Chew made his calculations using reaction times of 0.5, 1.0, 1.5, 2.0 and 2.5 seconds and with initial speeds of Mr Davies' vehicle of 95 kilometres per hour and 100 kilometres per hour. Using an initial speed of 95 kilometres per hour Dr Chew calculated the stopping distance as being 115 metres for a reaction time of 0.5 seconds, 128 metres for a reaction time of 1.0 seconds, 142 metres for a reaction time of 1.5 seconds, 155 metres for a reaction time of 2.0 seconds and 168 metres for a reaction time of 2.5 seconds. Using an initial speed of 100 kilometres per hour Dr Chew calculated stopping distances for each of those reaction times as being 128 metres, 142 metres, 156 metres, 170 metres and 184 metres. In his report he wrote that the braking reaction time for foot braking is normally quoted to be between ½ to 1 second.
110 Dr Chew expressed the opinion that if Mr Davies' vehicle was approximately 80 metres from the rear of Mr Oliver's vehicle when
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- Mr Davies first noticed Mr Oliver's vehicle the results of Dr Chew's investigation are consistent with it not being possible for Mr Davies to stop in time to avoid the collision.
111 In that report Dr Chew also noted that he understood that Mr Davies would have steered his vehicle around Mrs Tomkins' escort vehicle, which was travelling in reverse towards him, before he was in a position to apply hard braking to the foot pedal. In those circumstances Dr Chew believed it would be reasonable to add ½ a second to the normal hard braking reaction time to allow for Mr Davies' vehicle to travel past Mrs Tomkins vehicle in the slip lane. On that basis the stopping distance would have been 128-142 metres if Mr Davies' initial speed was 95 kilometres per hour and 142-156 metres if the initial speed was 100 kilometres per hour. If at the time that Mr Davies' vehicle was going past Mrs Tomkins' vehicle her vehicle was 105-110 metres from Sues Bridge, as stated in Mr Mulcahy's defence to counterclaim that had been provided to him, then the rear of Mr Oliver's vehicle would have been approximately 99.5 to 104.5 from Mrs Tomkins' vehicle. In this scenario the results of Dr Chew's investigation are consistent with it not being possible for Mr Davies to stop in time to avoid the collision.
112 While giving evidence during the trial Dr Chew made further calculations. He calculated the stopping distance of Mr Davies' vehicle if it was travelling at 95 kilometres per hour 350 metres from the bridge taking into account the gradient on the road. He calculated a braking distance of 114.5 metres, without allowing for a reaction time. Allowing a one second reaction time provided a braking distance of 141 metres and a two second reaction time provided a braking distance of 167 metres.
Out of court statements
113 A statement which is part of a transaction may be part of the res gestae of that transaction and evidence of the truth of what was said as an exception to the rule against hearsay: Adelaide Chemical & Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514. It appears that the law in this State is that such a statement is admissible as evidence of the truth of what was said if it was made so spontaneously as to exclude concoction: R v Golightly (1997) 17 WAR 401.
114 Mrs Tomkins' statement to Mr Peacock that the truck driver had called her down to his vehicle to have a look at something or check something out and Mr Davies' statement to Mr Peacock that he got a radio call very late were both made on the day of the accident and shortly after
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- it occurred. However in my view neither statement was a part of the accident. They were conversations that occurred after the accident. There was sufficient time between the accident and each statement for thought to be given by the maker of the statement as to what had occurred. Neither statement was so spontaneous as to exclude concoction. No doubt there were many other conversations about the accident on the day. In my view the statements by Mrs Tomkins and Mr Davies were not part of the res gestae of the accident and are not evidence of the truth of what was said.
115 In an insurance company report of 4 December 2003 Mr Davies attributed the blame for the accident to the position of Mrs Tomkins' vehicle. In my view the view expressed by Mr Davies in that report does not assist in the determination of any issue in this case. It is not surprising that a party to an accident may attribute responsibility for it to someone else soon after the accident.
Findings of fact
116 I have already in these reasons given my findings of fact on some matters where it has been appropriate to do so. I will now give my findings on other matters.
Evidence of distances
117 Drivers of vehicles on Sues Road gave evidence of their estimates of the distance of their vehicle from other objects or locations when events occurred. I accept that all of the witnesses gave their estimates to the best of their ability, however their estimates are not as accurate as measurements.
118 After the accident both Mrs Tomkins and Mr Davies returned to the accident site and they have attempted to assess the distances by reference to measurements taken on or following those visits. However evidence of distances following those visits is also an approximation only. That is because at the time of the accident and the events immediately preceding it none of the participants were studying their location on the road by reference to precise landmarks and so their estimates of where they were at the time an event occurred is not precisely accurate.
119 On 28 November 2004 Mr Frederick Venables swore answers to interrogatories delivered by Mr Mulcahy. In those answers Mr Venables deposed that the truck that Mr Davies was driving was approximately 80 metres from Sues Bridge when Mr Davies first noticed or observed
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- Mrs Tomkins' escort vehicle. For the reasons I have just given I do not regard that evidence as precise. For the same reasons I do not regard estimates of distances given in police statements or insurance claims as precise.
120 During the trial I allowed Mr Mulcahy and Kakoda Heavy Haulage to amend their defence to FR & M Venables & Son's counterclaim so that they added to the pleading that Mrs Tomkins' vehicle was at least 110 metres from Sues Bridge a pleading that Mrs Tomkins' vehicle was not more than 200 metres from the bridge. I do not regard this amendment as affecting the credibility of any of the witnesses called by Mulcahy and Kakoda Heavy Haulage. For reasons I have given I do not regard any estimates of distances as being precise.
121 Evidence was also given of measurements taken after the accident and while I accept evidence of measurements of fixed items on or beside the road that evidence does not provide precise evidence as to the distance between a vehicle and an object on the day of the accident due to the inability of the participants to give precise evidence of the location of their vehicle at specific times.
122 There were also many photographs of Sues Road and the accident scene tendered into evidence. The photographs taken at or near ground level provide a two dimensional representation of their subject and to that extent are of assistance in understanding the scene and the road. However there was no evidence as to the focal length of any of the cameras that took the photographs and I bear in mind that photographs do not always give an accurate representation of the distance between objects. There were also aerial photographs which provide a view of the bend in the road, but not from the perspective of a road user.
Mrs Tomkins' evidence
123 Mrs Tomkins gave evidence that on the day of the accident she had been traumatised by having witnessed it and that she remains traumatised by it. At times when she gave evidence she appeared anxious. I conclude from her evidence and from the way in which she gave her evidence that Mrs Tomkins has been distressed by the accident and remains distressed by it.
124 I find that her distress has affected her recollection of the events on the day of the accident. I do not find that she has been intentionally untruthful at any time. However I do find that thinking of the accident causes her to become distressed and that this reaction has affected her
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- recollection of events on the day, continues to affect her recollection of events of the day and has made her recollection unreliable
Radio coverage
125 The coverage of UHF radios is approximately 5-10 kilometres. Mr Oliver's evidence was that reception was worse in hilly areas and that on occasions when travelling on hilly roads he would lose contact with other radio users on the road.
126 Senior Constable Keenan's evidence was that radio reception on the day of the accident was very clear.
127 Mr Davies' evidence was that the radio reception on Sues Road was very inconsistent, the hills and valleys on the road causing reception to drop in and out of range. That had been his experience on his many trips along the road.
128 Mr Peacock's evidence was that the reception is "up and down" in that area but in proximity to the bridge it is okay.
129 I conclude that the radio reception on the day was good but that the UHF radio coverage on Sues Road can be reduced by hills and that when there is a hill between two radios they may not be able to communicate with each other when they are within the usual coverage range of 5-10 kilometres.
Whether Mr Davies was aware that a large load was to be transported
130 I accept Mr Davies' evidence that he was unaware that a large load was to be transported on Sues Road when he commenced his journey on 1 December. While I accept the evidence of Mr Oliver and Mrs Tomkins that they had told truck drivers of the proposed load before 1 December 2003, the evidence does not establish that Mr Davies was one of the drivers to whom they spoke.
Warning to road users on the day of the accident
131 Mrs Tomkins' evidence was that when the front pilots reached Sues Bridge Mr Chapman, one of the front pilots, notified the closure of the bridge on his radio. Mr Oliver did not hear any such message on his radio. Mr Davies did not hear any message. Senior Constable Keenan did not recall hearing such a message. Neither of the drivers of the front pilot vehicles was called as a witness. I conclude that Mrs Tomkins is
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- mistaken in her recollection that the front pilots notified the closure of the bridge.
132 I find that the first radio notification that Mr Davies heard was that of Mrs Tomkins informing him of the load ahead. He heard that communication shortly after he saw Mrs Tomkins' vehicle.
Whether Mr Oliver asked Mrs Tomkins to line up the rear of the load on the bridge
133 Mrs Tomkins gave evidence that after Mr Oliver asked her to line up the rear of the load she did so by giving Mr Oliver directions on the radio. Mr Oliver denied asking any of the pilots to line up his load. His evidence was that his only communication with Mrs Tomkins was to ask her to stay back. Senior Constable Keenan could not recall hearing Mr Oliver ask Mrs Tomkins to line up his vehicle on the bridge.
134 The fact that Mrs Tomkins did not say to police officers on the day of the accident that Mr Oliver asked her to line up the rear of the load does not lead me to doubt her evidence that he did do so. It is not a matter so closely connected with the accident that I would expect her to say it when not specifically asked about such a communication by police officers on the day. I have found that Mrs Tomkins said to Mr Peacock that the truck driver had called her down to check something, so Mrs Tomkins' evidence of a request from Mr Oliver is not a recent invention.
135 The fact that neither of the two forward pilots, Mr Mulcahy nor any other truck driver gave evidence about hearing the communication from Mr Oliver of which Mrs Tomkins gave evidence does not assist me in determining the question. They may have been out of radio range.
136 However Senior Constable Keenan was within radio range. Mr Davies gave evidence that if more than one person was communicating on the radio at the same time it might not always be possible to hear both as they normally override each other depending on signal strength.
137 While it may be possible for one radio transmission to override another when they are made at the same time it seems to me unlikely that Senior Constable Keenan would not have heard at least part of the communications of which Mrs Tomkins gave evidence if they had occurred. Nor is it likely in my view that he would forget hearing such communications. If he was giving directions to Mr Oliver from the front
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- directions from Mrs Tomkins at the back would have been closely connected with what he was doing.
138 As Mr Oliver was receiving directions from Senior Constable Keenan at the front of his vehicle it is my view that it is unlikely that he would have wanted communications from Mrs Tomkins at the rear. Such communications would be likely to be a distraction as he was going onto the bridge.
139 I conclude on the balance of probabilities that Mr Oliver did not request Mrs Tomkins to line up the rear of the load on the bridge.
Position to which Mrs Tomkins was reversing
140 Mrs Tomkins' evidence was that when Mr Oliver asked her to move back a bit she was back at a safe distance and she started to reverse away from Sues Bridge. Mr Oliver did not tell her how far back to go and she only intended to move back a short distance, perhaps two or three car lengths.
141 However, as I have noted, Mrs Tomkins told Mr Johnston that her intended destination when she was reversing was the small crest approximately 650 metres south of Sues Bridge. Mr Oliver's evidence was that when he asked Mrs Tomkins to stay back he intended her to stay at the top of the hill before the bridge.
142 I find that following Mr Oliver's request that she stay back Mrs Tomkins commenced to reverse. I do not accept her evidence that she intended to move back only a short distance. I find that she intended to go back further than two or three car lengths. It is likely that she intended to go to the crest of the hill south of the bridge.
Mrs Tomkins' vehicle when Mr Davies first saw it
143 On two matters there was a variation in the evidence of Mrs Tomkins and Mr Davies as to the location of Mrs Tomkins' vehicle. One was the distance of the vehicle from the road leading to the camping and picnic areas. The other was how far onto the centre of the road her vehicle was.
144 In a report to an insurance company completed on 4 December 2003 Mr Davies made a rough sketch of the accident scene which shows Mrs Tomkins' vehicle as being closer to the road leading to the camping and picnic areas than the location of which he gave evidence. The sketch is clearly a rough one and does not purport to provide precise locations. It does not cause me to doubt Mr Davies' evidence.
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145 The indication by Mrs Tomkins in her conversation with a police officer on Sues Road on the day of the accident that Mr Davies passed her approximately at the road leading to the camping and picnic areas is clearly incorrect. Both Mr Davies and Mrs Tomkins gave evidence that he passed her to the south of that road and that he travelled in the slip road as he passed her vehicle.
146 On 15 January 2004 Mr Davies attended the accident scene with Mr Neil Venables and the solicitor for FR & M Venables & Son. That solicitor made a file note a copy of which is exhibit 13. Mr Davies told that solicitor that he was unable tell him where the escort vehicle was stopped.
147 In my view neither witness was able to give reliable evidence as to the distance of Mrs Tomkins' vehicle from the road leading to the camping and picnic areas. The distance was not measured. While Mrs Tomkins went back to the accident scene and indicated where she felt her vehicle was that was almost two years after the accident and I am not satisfied that her recollection was accurate. I find that Mr Davies passed Mrs Tomkins to the south of the road that leads to the camping and picnic areas, but I am unable to find the precise location.
148 It is my view that Mr Davies was in a better position to observe the location of Mrs Tomkins vehicle on the road than Mrs Tomkins. In my view Mrs Tomkins' evidence in cross-examination that she was parked in the middle of the road, with her right hand tyres straddling the middle white line also tends to suggest that she was more towards the centre of the road than indicated by her evidence-in-chief. Mr Davies' evidence was that the pilot vehicle appeared to be in the middle of the road. I find that Mrs Tomkins' vehicle was near the centre of the road when Mr Davies passed it.
149 Mrs Tomkins' evidence was that she was reversing her pilot vehicle away from Sues Bridge and that she stopped as soon as she saw a white flash which she recognised as the top of a truck. Mr Davies' evidence was that when he first saw Mrs Tomkins' vehicle it appeared to be stationary or moving extremely slowly. Mr Davies agreed in cross examination by counsel for Mrs Tomkins in action Civ 750 of 2004 that it was more than possible that he told the solicitor for FR & M Venables & Son that the pilot vehicle was stationary when he first saw it and that it was obviously what he believed at the time. I find that Mrs Tomkins' vehicle was stationary when Mr Davies first saw it.
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150 When Mr Davies saw Mrs Tomkins' pilot vehicle he would not have been concerned with identifying his location along Sues Road. While the position he marked with the letter X is his estimate of his position when he first saw the pilot vehicle in my view Mr Davies is unable to provide precise or accurate evidence as to his location at the time. I am unable to make a finding as to the precise distance between Mr Davies' truck and Mrs Tomkins' pilot vehicle when Mr Davies first saw the pilot vehicle.
151 I am unable to make a finding as to the precise distances from which Mrs Tomkins' vehicle and Mr Oliver's vehicle would have been visible to Mr Davies. Based on the evidence of Mr Johnston and Dr Chew I find that each of those vehicles would have been visible to Mr Davies when he was approximately 225 metres from them.
Mr Davies' speed
152 I accept Mr Davies' evidence that he was travelling at approximately 100 kilometres per hour on Sues Road, that he was travelling at approximately that speed when he first saw Mrs Tomkins' pilot vehicle and that he then applied his brakes and assessed the situation.
153 In the insurance company report of 4 December 2003 Mr Davies wrote that he spotted the escort vehicle and proceeded to brake heavily, that he was able to avoid the escort vehicle and that he collided with the rear of the truck. In his evidence Mr Davies said that he braked firmly, not heavily and his evidence was that the use of the word heavily was an interpretation and that he did not fully apply the brakes.
154 As I have noted Senior Constable Keenan's estimated Mr Davies' vehicle's speed to be between 90 to 100 kilometres an hour when he saw it. His evidence was that he was standing on the eastern side of the bridge at the northern end and he could see a Freightliner prime mover with a single trailer attached. It is clear that he was giving evidence about Mr Davies' vehicle.
155 Senior Constable Keenan's evidence was that approximately 20 seconds after he heard on his radio Mrs Tomkins asking a northbound vehicle to slow down he saw a Freightliner prime mover with a single trailer attached travelling in a northerly direction on Sues Road behind Mr Oliver. He could see just past the concrete silo and up onto the road. His evidence was that he has had extensive experience over 14 years in using laser and radar speed measuring equipment and that he is able to estimate accurately the speed of vehicles.
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156 He became extremely concerned as to whether the driver of the Freightliner would be able to stop before colliding with Mr Oliver's load.
157 At about that time he heard, again on his radio, Mrs Tomkins almost scream “slow down”. Mr Davies' truck then disappeared from Senior Constable Keenan's view, behind Mr Oliver's loaded vehicle. Senior Constable Keenan estimated that he observed the Freightliner travel a distance of approximately 50 metres.
158 His evidence was that he could hear the engine of Mr Davies' prime mover and from the pitch he could tell that it was neither accelerating nor decelerating. From the sound it appeared to be maintaining more or less a constant speed. He was listening for any sound of braking from Mr Davies' vehicle, hoping to hear that sound, but there was none. Senior Constable Keenan could not recall hearing any noise from Mr Oliver's vehicle, although, he said in evidence, common sense would say that there must have been some amount of noise from it.
159 Approximately five seconds later Senior Constable Keenan heard Mr Davies' vehicle collide with Mr Oliver's vehicle and saw debris being thrown onto the road from behind Mr Oliver's vehicle and steam rising up in the air. The front of Mr Oliver's truck moved forward a little and bounced.
160 In a statement on a police file on the accident made by Senior Constable Keenan on 17 March 2004 he estimated the period between his hearing Mrs Tomkins' first call to the north travelling vehicle and seeing the Freightliner as being approximately 20-30 seconds.
161 I do not regard the fact that Senior Constable Keenan could not recall hearing noise from Mr Oliver's vehicle as surprising and I do not conclude from that fact that his evidence is unreliable or inaccurate. The noise from Mr Oliver's vehicle was noise he would have been expecting to hear and there is no reason for him to remember it. The noise of another truck approaching is something that I would expect to have attracted his attention and remember.
162 Both Senior Constable Keenan and Mrs Tomkins gave evidence that they did not hear any braking sound from Mr Davies' vehicle. Senior Constable Keenan's evidence was that he did not hear any distinctive exhaust braking noise from the approaching truck nor anything resembling the squealing of rubber tyres on a bitumen surface. His evidence was that he was listening for those sounds because he was hoping to hear them, but he did not. I accept the evidence of
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- Senior Constable Keenan and Ms Tomkins that they did not hear braking sound from Mr Davies' vehicle.
163 Mr Davies' evidence was that from his experience the Jake brake held the speed of the vehicle at 100 kilometres an hour. The evidence of Senior Constable Keenan and Mrs Tomkins that they did not hear the sound of braking is not inconsistent with Mr Davies' evidence that he engaged the Jake brake. If Mr Davies was travelling at a speed of less than 100 kilometres per hour as he passed Mrs Tomkins and approached the bridge it may be that the Jake brake, although engaged, was not required to use the exhaust from the engine to keep the speed down.
164 I find that Senior Constable Keenan's estimate of the period of 20 seconds between hearing Mrs Tomkins first call and seeing the Freightliner is not an accurate estimate. It is difficult to estimate accurately short periods of time, particularly when the person making the estimate is concerned about the possibility of an imminent collision. If Mr Davies was travelling at 90-100 kilometres per hour for 20 seconds then he would have travelled 500-555 metres and it is likely that he travelled less than that distance between that call and Senior Constable Keenan first seeing him.
165 However Senior Constable Keenan appeared to me to be a careful witness who endeavoured to be as accurate as possible in his evidence. In reaching this conclusion I have not attached weight to the confident manner in which he gave his evidence. As a police officer he is by training and experience likely to be more familiar with giving evidence than other witnesses. I have reached the conclusion from the content of his evidence. His evidence that he did not recall hearing the sound of Mr Oliver's evidence is an example of evidence given as to his recollection, not as to what he expected to recall. I accept his evidence as to his estimate of the speed of Mr Davies' vehicle. I accept that it was a reasonably accurate estimate.
166 Mrs Tomkins did not notice brake lights on Mr Davies' trailer, but it is likely that she was mistaken. Mrs Davies was certainly aware of her vehicle, as he drove around it on the slip lane. Mrs Tomkins vehicle provided a clear warning of an oversized load ahead and it is likely that Mr Davies did apply his brakes to some extent. I find that Mr Davies did apply his brakes, but not heavily, and that it did not cause his speed to drop quickly. The reason he did not apply his brakes heavily, although he had a clear warning of the load ahead, was that he was concerned that if
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- he did do so he might cause his vehicle to roll over or the trailer to jack knife, resulting in loss of control of his vehicle.
167 In my view the fact that the speedometer on Mr Davies' vehicle was jammed at 66 kilometres per hour does not indicate what the speed was at the time of the collision. How the speedometer became jammed is unknown. Nor do I regard Mr Johnston's calculation of the speed of Mr Davies' vehicle at the point of collision as being a reliable estimate. There are too many unknown factors for Mr Johnston's calculation to be reliable. These factors include how far the combined vehicles moved after impact, the extent to which the load moved separately to Mr Oliver's vehicle, the amount of metal contact there was on the road and the speed of Mr Oliver's vehicle at the time of impact. The fact that Mr Simms' opinion was that the speed of Mr Davies' vehicle at impact was greater than 30-40 kilometres an hour and that he considered there to be a good chance that 66 kilometres per hour is an approximate indication of the impact speed does not provide a basis for making a finding as to the speed of Mr Davies' vehicle at impact.
168 While I accept that it is likely that Mr Davies did apply his brakes heavily when he saw that he was to collide with the load in front of him the evidence of Senior Constable Keenan leads me to conclude that Mr Davies did not brake heavily until very shortly before the collision. I conclude that Mr Davies is mistaken in his belief that he slowed his vehicle down considerably.
Where Mr Davies' vehicle collided with Mr Oliver's vehicle
169 Senior Constable Keenan identified and photographed a gouge mark on the day of the accident. Mr Johnston's opinion was that the gouge marks he saw on the road relate to the accident and were probably caused by the substructure at the front of Mr Davies' vehicle after impact. I find that the gouge mark observed by Dr Chew was caused by the collision and that the point of impact between the two vehicles was approximately at the southern most point of the gouge mark on Sues Road, approximately 5.5 metres to the south of Sues Bridge.
Braking performance
170 There was very little difference between the evidence of the three experts as to maximum braking performance. None of them purported to give precise evidence of the actual braking performance of Mr Davies' vehicle. I find that on hard braking Mr Davies would have been able to achieve a braking performance substantially the same as Dr Chew found
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- on his testing of the vehicle provided to him. In my view a reaction time of two seconds is a reasonable reaction time for Mr Davies in the circumstances.
171 I conclude therefore that Dr Chew's calculation of a stopping distance of 167 metres if Mr Davis had braked hard is approximately correct.
Conclusions
172 When Mr Davies first saw Mrs Tomkins he was travelling at a speed of approximately 95 to 100 kilometres per hour and she was approximately 225 metres from her. Mrs Tomkins' vehicle had an obvious sign warning of an oversized load ahead and had two amber flashing lights on its roof. It therefore provided a clear warning of a danger ahead.
173 In my view in the exercise of reasonable care Mr Davies should have immediately braked hard. I am satisfied on the balance of probabilities that if he had done so he would have stopped before reaching Mrs Tomkins' vehicle. This conclusion is based on Dr Chew's calculations of stopping distances.
174 I do not regard Mr Davies' failure to brake hard as a decision made in the agony of the moment which does not breach the duty of care he owed to other road users. Mrs Tomkins' vehicle was clearly marked and had flashing lights and provided the clear warning of the danger ahead. In those circumstances, in my view, Mr Davies was in breach of his duty of care to road users in not braking hard. His conduct in driving around Mrs Tomkins' vehicle in the slip lane was negligent.
175 I also conclude that Mr Davies was in breach of his duty of care to other road users in travelling on Sues Road at a speed of approximately 100 kilometres per hour. I bear in mind that in travelling at that speed Mr Davies was not exceeding the speed limit. However that is not definitive of his duty of care: Sibley v Kais (1967) 118 CLR 424. Mr Davies knew Sues Road and he knew that of the bridge and the bend as he approached the bridge. He also knew that there were hills and valleys on the road, that the radio reception was inconsistent and that there were trees and bushes on the side of the road which threw shade on the road at the time at which he was travelling on it. It was foreseeable that he would not receive radio warning of a danger on the road until he saw it, that he could come across that danger while he was going around a bend while going down a hill and that the shade on the road might affect his
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- ability to appreciate a danger. The vehicle he was driving was a heavy vehicle which took time to bring to a halt. It had the potential to cause serious injury, death and property damage. In the exercise of reasonable care in those circumstances Mr Davies should not have been travelling at a speed of 100 kilometres per hour. He should have been travelling at a slower speed to enable him to come to a stop more quickly if he came across a danger on the road.
176 The sign and lights on Mrs Tomkins' vehicle provided a clear warning both of her presence on the road and of Mr Oliver's vehicle ahead of her. When she saw Mr Davies' vehicle approaching her she used her radio to alert Mr Davies of the presence of Mr Oliver's vehicle on the bridge. Mrs Tomkins' vehicle was in the centre of the road, but for two reasons I do not consider it unsafe for her to have been in that position. The first is that her vehicle was so clearly marked that it provided an adequate warning of its presence on the road that a driver could stop before reaching her. The second is that the slip lane provided a lane on which a vehicle could pass her.
177 The requirement in the permit issued to Mr Mulcahy that the rear pilot be a maximum distance of 150 metres from the vehicle does not determine where Ms Tomkins should have been in the exercise of reasonable care: Sibley v Kais (supra).
178 Mrs Tomkins was reversing when Mr Davies approached her, but she stopped when she saw Mr Davies' vehicle and she was stationary when Mr Davies saw her. She was heading towards the crest of the hill that was south of the bridge, but she had not reached it. Mr Peacock felt that Mrs Tomkins should have been at the crest of the hill. As soon as he received a radio call, before he saw Mrs Tomkins vehicle he braked heavily to avoid a collision. He was clearly unhappy about Mrs Tomkins' position on the road. If Mrs Tomkins had been stationary at that crest when Mr Davies approached she would have provided Mr Davies with greater warning of the presence of Mr Oliver's vehicle ahead, but it does not follow that the warning she provided was inadequate.
179 The Transport Forum Training Reference Manual is a guide to pilots but it is not a code that determines negligence. The provision in it that drivers should position themselves at the crest of a hill on both sides of a bridge is a useful general statement, but it does not mean that the failure to do so is negligent. The important thing for a pilot to do is to provide adequate warning of the load ahead so that approaching driver's have time to stop.
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180 In my view Mrs Tomkins clearly marked vehicle provided adequate warning of her own presence and that of Mr Oliver's vehicle. Mr Davies did have adequate time within which to stop before reaching Mrs Tomkins' vehicle. I find Mrs Tomkins was not negligent.
181 Mr Oliver's vehicle carried a large load which required him to cross Sues Bridge slowly. His vehicle was clearly marked and Mrs Tomkins' vehicle provided a clear warning of it. Appropriate preparations had been made for the journey. The lead pilot did not notify the closure of the bridge on his radio, however in my view adequate visual warning was provided. In any event radio notification would not have been heard by Mr Davies, who did not hear any of the radio communications between Mr Oliver, Senior Constable Keenan or Mrs Tomkins. In my view there was no negligence by Mr Oliver, Mr Mulcahy or Kakoda Heavy Haulage.
182 I find that Mr Davies was negligent and that his negligence caused the accident and that none of Mrs Tomkins, Mr Oliver, Mr Mulcahy or Kakoda Heavy Haulage was negligent.
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