Nabil Saada v Graeme Byrnes

[2010] NSWDC 316

CITATION:	Nabil Saada v Graeme Byrnes and ors [2010] NSWDC 316
HEARING DATE(S):	19 - 21 April, 2010
JUDGMENT DATE:	23 April 2010
JURISDICTION:	Civil
JUDGMENT OF:	Garling DCJ
DECISION:	A finding of 50% contributory negligence. Verdict for the Plaintiff against each of the 1st, 2nd and 3rd Defendants in the sum of $450,000.00. 1st, 2nd and 3rd Defendants to pay the Plaintiff's costs up to and including 9/4/10. The Plaintiff to pay the 1st, 2nd and 3rd Defendants' costs from 10/4/10.
CATCHWORDS:	MOTOR VEHICLE ACCIDENT -liability only - circumstances of accident - prime mover transporting wide load with escort vehicle - whether second and third defendants liable under Motor Accidents Compensation Act or Civil Liability Act - contributory negligence - damages agreed - offer of compromise
LEGISLATION CITED:	Civil Liability Act 2002 Motor Accidents Compensation Act 1999
CASES CITED:	QBE Insurance (Australia) Ltd v Smith by his next friend Avard and anor 2005 NSWCA 130
PARTIES:	Nabil Saada (Plaintiff) Graeme Byrnes (First Defendant) Iain Olsen (Second Defendant) Australian Winch & Haulage Co. Pty. Ltd. (Third Defendant)
FILE NUMBER(S):	2008/320653
COUNSEL:	Mr Gray SC and Mr Hickey (Plaintiff) Mr Rewell SC and Mr Reynolds (Defendants) Mr Clark (CTP insurers of second and third defendants)
SOLICITORS:	Slater and Gordon (Plaintiff) T L Lawyers (First Defendant) Lee & Lyons (Second and Third Defendants)

JUDGMENT
1 HIS HONOUR: The plaintiff sues three defendants for damages for personal injuries arising out of a motor vehicle accident. The defendants deny liability and allege contributory negligence.

2 The first defendant was a driver of a Mack prime mover carrying a large load. The second defendant was the driver of the Toyota Hilux dual cabin ute travelling as an escort vehicle. The third defendant was the employer of the second defendant.

3 The plaintiff sued the first defendant pursuant to the provisions of the Motor Accidents Compensation Act 1999 and the second and third defendants pursuant to the Civil Liability Act 2002. On behalf of a motor accident insurer of the second defendant Mr Clark appeared to represent that insurer’s interests.

4 On 1 June 2006 in the morning the plaintiff was driving his vehicle, a VW van, in a north-easterly direction on the Kosciusko Road travelling between Jindabyne and Berridale. The first defendant was driving his heavy prime mover south-west on the same road travelling from Berridale to Jindabyne. This truck was of such a size that it required an escort vehicle, which was the vehicle driven by the second defendant which had a sign on its roof and flashing lights. The duty of that vehicle was to go up front of the truck and to warn oncoming traffic of the presence of the truck and the presence of the wide load. The third defendant, who was the employer, was vicariously liable for the acts of the second defendant and I will make no further mention of that defendant at this time.

5 On 1 June the first defendant’s truck was crossing Ironpot Creek Bridge when the vehicle driven by the plaintiff travelling in the opposite direction collided with the first defendant’s truck. As a result the plaintiff sustained serious injury. The first defendant’s truck was occupying the whole of the available space on the bridge or, to such an extent, that the plaintiff’s vehicle could not have passed as there was no usable road available.

6 There are a number of facts in dispute. The plaintiff gave evidence that he did not have a good memory. He suffered serious injury. The plaintiff was not familiar with this road. The speed limit was 100 kilometres per hour. He did not actually know what speed he had been travelling at before the accident but as a matter of habit he normally travelled about 10 kilometres under the speed limit. He had been on this road before because he had gone up in the opposite direction and therefore at some stage had crossed the bridge.

7 The plaintiff remembers taking a bend “All I saw is the truck blocking all my way and I had no place to go. I slammed on the brakes.” He said the truck must have been on the bridge but he did not have a memory of exactly what happened. He had no memory of the escort vehicle with the lights flashing. He cannot remember seeing that. He cannot remember a notice “Oversized Vehicle Ahead”. His memory was obviously affected to some extent by the accident. I understand he subsequently was in a coma, which may have been an induced medical coma, for some time and he spent about three months in hospital I believe. The plaintiff was a fairly straightforward witness. He did not have a great memory of what happened but he seemed to be telling the court what he could remember.

8 The first defendant, Mr Byrnes, gave evidence. He had driven this road on other occasions. He had driven his wide load from Smithfield and was travelling along the Jindabyne road which he had driven along before, as I said. The truck was 4.5 metres wide. The escort vehicle driven by the second defendant had been with him all the journey and they were in constant radio contact with each other. He was aware of the bridge and he accepted that this was the only bridge of this type and of this configuration when driving on the road between Berridale and Jindabyne.

9 As he approached the bridge the weather was drizzly and the road wet. He said he had stopped his truck on the crest of a hill about 500 metres from the scene of the accident to allow vehicles to pass. The escort vehicle, as I understand it, had also stopped and then when the traffic cleared they proceeded on down the road. He said he had sent Mr Olsen, the second defendant, down ahead of him to warn any oncoming traffic and that he noticed Mr Olsen got a couple of hundred metres in front. He said that Olsen went across the bridge and continued on the road.

10 He said that as he was closer to the bridge Olsen had contacted him, I think they were in constant contact, and told him he was right to cross and then he was told that the car was coming and that “he didn’t think the bloke was going to stop”. He started to brake. When he looked up he saw the plaintiff. He was coming round the bend. He was travelling very fast, he thought about 100 to 120 kilometres an hour, but that of course was an estimate. The car went sideways and then straight and hit the front right hand side of the truck. At that time he did not see where Mr Olsen was. He said he hit his head and he could have been unconscious for a period before he was treated. He also was of the view that after a period Olsen had come back to the scene. He said the first time he saw the car was when he was just about off the bridge. He appeared also to be a witness trying his best, with some memory problems, but generally quite acceptable.

11 The second defendant Mr Olsen was a poor witness. He did not have a good memory of what happened and he appeared to change his mind on a number of occasions. He said he was the driver of the escort vehicle. He said he was driving a white ute. There was a sign on the top which read “Oversized Vehicle Ahead”, that was displayed on each side of the sign. He said he had flashing lights. He had driven along this route before. He said he and the truck stopped about 500 metres before the bridge. They left after the cars passed. He went across the bridge and up the road. The road was clear. He drove up a hill and sped up to get to the top of the hill to warn oncoming traffic. He said he was driving in about the centre of the road so as to attract people’s attention. A van came screaming over the hill. As he got towards the top he slowed. He moved out of the way and then he reversed back. He heard the van skidding and then he saw it hit the truck in his rear view mirror. When he saw the van he moved to his side of the road. He flashed his headlights to try and get the van’s attention. He said when the skidding started he might have been beside him or a little bit further back.

12 After the accident he reversed back down, parked his car and went to see how the driver was. He had also spoken to the truck driver on the radio before the collision and told him the car was not going to stop. He said that he first saw the van coming and a couple of seconds later realised the van was not going to stop and therefore warned the truck driver.

13 When he was cross-examined he agreed it was some time since these events occurred. He said the first time he saw the plaintiff was on his way up the hill. This then differed with other evidence he had given in other proceedings and it appeared to differ significantly from a statement he had given. He was asked about the statement he gave to police within hours of the accident. That statement was subsequently tendered and became Exhibit B. What he said was “I was a couple of hundred metres in front of the load. I came round the bend and saw a narrow bridge. I called Graeme on the radio and told him there was a narrow bridge. At the same time I saw a car coming down the hill so I accelerated across the bridge, I flashed my lights at the car, which was a light van which was white. I watched in the rear vision mirror as the van skidded and then he took his foot off the brake. At this stage Graeme was already on the bridge and the car then ran into the truck. I pulled up and went down to see if I could help. I heard the skid as he went past the window”. That, of course, was a significantly different version to that which he gave in his evidence in chief. The more he was cross-examined the more confused it all became.

14 An important issue between the parties was where the escort van was when the plaintiff passed it or, did the plaintiff indeed pass the escort vehicle and what warning did the plaintiff have? If one looks at that first statement it seems that the escort vehicle is coming round the bend, seeing a narrow bridge and sees the car coming down the hill, accelerates across the bridge flashing his lights et cetera and within a short time the plaintiff’s vehicle collides with the truck. I do not believe that happened. In the Local Court hearing one part of the transcript of this man’s evidence was tendered. He had another version. He indicated there that a few days before that hearing he had made another statement and he had himself some 200 to 300 metres from the bridge with the plaintiff’s vehicle starting to skid. Then reversing back some 50 to 100 metres. It became apparent that I could not have any confidence in his evidence. There was no pattern to it. It was all over the place. One part contradicted another. It seemed that he did not really know what happened or maybe he chose not to tell us what happened.

15 Miss Swan was driving behind the truck. The truck was travelling at about 60 kilometres per hour. She saw the truck move onto the bridge and saw the plaintiff’s van coming in the opposite direction. It was at the top of the hill when she first saw it. She did not see anything in front of the truck, that is, she did not see the escort vehicle. She thought the van was going fast and would not stop in time.

16 Dr Cocher, the local GP, was travelling along the road at the time. He came upon the accident after it had occurred and was not an actual eye witness. However, what he did say was this. He was driving along the road, it was wet. “I was going fairly slowly I think because of the bad weather but I passed the van that was on my right hand side across the road parked on the verge considerably off the road and as I went past just at the last second I saw a hand waving dramatically out the window. I didn’t know what it meant. I slammed on the brakes, I skidded and then I had time to stop to work out what was going on”. He thought it was a white or grey van. It has no lights on. He noticed down the bridge the semi-trailer was off the road and there had been a collision and he went down there and assisted as best he could. He was asked about it and said the vehicle he saw was a van or a utility and whilst he thought it was white it might be grey. He said at the time he passed it the van was about 300 metres from the bridge and he had stopped his vehicle about 200 metres from the scene of the accident and then walked down there.

17 There was also expert evidence which was of limited assistance. It was agreed by the experts that the distance from which the plaintiff could have first seen the truck or, I should say, the distance to the bridge, and I think to the deck of the bridge was 160 metres. If he was travelling at 100 kilometres per hour 160 metres would take about six seconds. At 90 kilometres per hour it would take a little longer. The perception time was 1.5 seconds which means during that time he would have travelled 37.5 metres. He then would have travelled a further 65 metres before stopping and that would have given a distance of about 102.5 metres. So if his line of vision was 160 metres he had in excess of 50 metres left after he could have stopped.

18 Mr Schnelling gave evidence. He was of the view that if the plaintiff had seen the escort vehicle and continued on at 100 kilometres an hour that that was too fast under the circumstances. Mr Simpson, the other expert, agreed with the 160 metres and agreed the plaintiff could have stopped prior to the accident scene.

19 When you take all that into account I then have to try and ascertain where Mr Olsen was at a point prior to the accident. I cannot rely on him. Was he more than 160 metres from the bridge, that is, over the top of the hill, or was he in some other position? Was he between the truck and the plaintiff’s vehicle when it came up and over the top of the hill? Mr Byrne said that Olsen was up the hill before the plaintiff’s vehicle came into sight and before he got the message it was not going to stop. Ms Swan says the plaintiff’s vehicle came into sight and at that time she could not see any other vehicle. Then you have the evidence of the doctor, which also seems to have the escort vehicle, if that is the vehicle he is referring to, up and over the top of the hill. The plaintiff does not see an escort vehicle at all and does not see that escort vehicle in the 160 metres before the accident.

20 On behalf of the plaintiff it is argued that the most reliable evidence would come from Exhibit B, and if you read that carefully you would have the escort vehicle not far over the bridge, seeing the plaintiff and then flashing its lights. If that is so that is not sufficient time for the plaintiff to do anything about it.

21 The defendants argued that, indeed, the escort vehicle was well in front of the truck. Its lights were on. Its sign was on. The plaintiff should have seen it but simply did not see it.

22 The only way I can analyse all this is on the basis – well, on the first basis the plaintiff cannot help - I do not think it could be said that the escort vehicle was not somewhere on the road, it was. Was it between the top of the hill and the truck? The plaintiff cannot say that, he does not say he saw it. Was it over the top of the hill in such a position that when the plaintiff passed it he should have been put on warning? I think that is probably more likely. Whilst I understand the argument about Miss Swan that perhaps she may simply have missed seeing the escort vehicle in front of the truck, I have real doubts about that. This escort vehicle had flashing lights and I would have thought would not have been difficult to see or to pick up. I think it more likely, when I analyse Mr Byrne, Miss Swan and the doctor’s evidence, that the escort vehicle was over the top of the crest of the hill. I am unable to say how far, but I can say that it was further than 160 metres away from the bridge and, if the plaintiff had seen it, it would have alerted the plaintiff to the fact that there was a problem in front.

23 Now it seems to me that the truck was travelling at 60 kilometres per hour and then slowed. I get that from Miss Swan’s evidence. It is probably pretty reliable, she was impatient and she wanted to get to work and this big truck was holding her up. I do not think that matters all that much, but if there is a dispute I would prefer her evidence and also Mr Byrne’s evidence.

24 It seems to me, when you analyse what happened, that the plaintiff driver, for whatever reason, did not see the escort vehicle. It is drizzly. The plaintiff’s vehicle is probably being driven at about 90 kilometres per hour, it might have been slightly faster, I do not think it would have been any less. He comes over the crest 160 metres away, he can see the truck. At some stage he reacts to the danger, puts on his brakes and obviously skids, I think Mr Byrne describes what happened, and eventually goes down the hill and collides with the truck because he cannot stop in time.

25 The plaintiff alleges in an amended statement of claim that the first defendant was negligent in a number of ways:

(a) he was occupying the east-bound lane on the Kosciusko Road without first ensuring that the east-bound lane was clear of oncoming traffic for a sufficient distance ahead to enable his truck to safely cross the road.

26 I do not accept that. I accept that, at the time he went into that area, there was no traffic coming his way and it was not until he was probably exiting that area that the plaintiff came down and collided with him.

(b) failing to ensure that the second defendant gave him an all-clear for sufficient distance ahead to enable the Mack and wide loader to cross the bridge.

27 The evidence before me is that he was told by the escort driver that he could do so.

(c) failing to wait until there was a sufficient gap in the traffic.

28 I believe he did wait for a sufficient gap. (d) and (e) are of a different type and I will return to them.

29 The other allegations are: “Failing to vet the proposed route before travel.” The evidence before me is he knew the route and he knew about this bridge and he knew where it was. “Failing to identify the proposed route that passed through a critical location.” I believe he did that and I would not think he was negligent in that way. “Failing to travel with two pilot vehicles.” I thought the evidence was he only did that at night and I would not find negligence in relation to that.

30 There are two areas (d) and (e) which I want to return to. As far as the second defendant was concerned the allegations are that he failed to ensure that the east-bound lane was clear of oncoming traffic for a sufficient distance ahead to enable to the truck to move into the east-bound lane and cross the bridge safely; that he failed to stop traffic in the east-bound lane for so long as was necessary to enable the truck and the low loader to move into the east-bound lane and cross the bridge safely; that he failed to instruct the first defendant to wait until the plaintiff had crossed the bridge before giving him the all-clear to occupy the east-bound lanes. There are those others (l), (m) and (o). In relation to (l) and (o), I do not believe he breached any of those for the reasons I previously gave.

31 What it really now comes back to is this. If you leave out (d) and (e), I do not believe the first defendant was negligent in anything he did. The critical questions, in my view, are (d), (e), (f), (g) and (h) of the amended statement of claim. As I have indicated I am satisfied that the escort vehicle has got up to the top of the hill, it has got flashing lights and it has got a large sign. What it does up there is difficult to know. On Mr Olsen’s evidence I could not really be satisfied of anything he said. I could not be satisfied that he was driving in the centre of the lane and I certainly cannot be satisfied he was flashing his lights. But I am satisfied his vehicle was up there, whether it was travelling forward or what I do not know, but I do not really think the doctor is right in identifying that vehicle as Olsen’s vehicle because it does not appear to have its lights on and it just seems bizarre whatever happened. That may have been another vehicle who knew something had happened and was warning people, I do not know.

32 What I think is clear is this. The second defendant, when he went up the hill, relied purely on the fact that vehicles travelling along would see him, would take some notice of the warning and would be careful. The actual fact of what happens, as I see it, is this. The first defendant is driving a truck with an extremely wide load. He knows he is coming to an area where there is a narrow bridge and in which, if he drives onto it, another vehicle will not be able to pass on the bridge whilst he is on there. He knows that, he has been there before and he indicated he knew that.

33 The escort vehicle had also been there before and he knew that the first defendant’s vehicle was going onto that bridge and once he was on that bridge it would block all traffic. They would no doubt also know that there was a fairly limited sight distance, 160 metres, but despite knowing that nothing further was done other than send the escort vehicle. I believe that both of these defendants are, to a degree, negligent. The first defendant simply because he is driving this wide load and driving it into an area where, if a vehicle comes the other way, that vehicle could not pass and in doing that creating a danger. But particularly the second defendant who, in my view, could have done a number of things and I would have expected him to do that. This is a very unusual circumstance, this is not the circumstance you usually see where there is a wide load and vehicles might have to move out of the way or over to the side of the road or something like that. This is actually a wide load blocking a road which obviously has a fair degree of traffic on it. In my view the second defendant had an obligation to actually either stop the traffic or to take such action that anyone travelling along that road knew, as a matter of certainty, there was a large problem ahead if vehicles kept proceeding at the pace they were going. That, in my view, is not a difficult matter. What I believe the second defendant should have done was to drive to an area over the crest of the hill and to get into such a place that oncoming traffic could clearly see him, to activate his lights, to put his vehicle somewhere in the centre of the road, to get out of that vehicle, and I believe this is crucial, to stop the traffic. He only had to stop it for a short time, it was going to take the large load only a very limited time to get over this bridge, but stop it. Once the first defendant’s vehicle was over no doubt the second defendant would have got a message on the radio, he moves out of the way and the traffic continues. Even if that is thought to be too much, he should at least have stopped his vehicle, in my view, in such a position, got out of his vehicle, put himself in a safe position and signalled in such a way as you often see that there was danger. This is not uncommon that you will see someone out of a car signalling to other vehicles that there is a problem coming up in front of you and people realise that. I believe that by not doing that the second defendant was clearly negligent.

34 The first defendant I believe is negligent to this extent, he had control of the large truck, he obviously did not come to an agreement with the second defendant that the second defendant would stop the traffic whilst he was crossing the bridge and wait until the second defendant said “I have stopped it all, you can cross the bridge”, or something to that effect. I believe, as a result of that, he was also negligent.

35 The question of contributory negligence arises and, in my view, the plaintiff certainly contributed to this accident. The plaintiff contributed by firstly failing to see a vehicle with a clear warning on it. I think he admitted that he did not. It is commonsense that if you see such a warning you know that there could be a problem, you are not sure where it is or what it is, but you would at least slow down and be very vigilant. He failed to do that. He continued travelling at the speed of about ninety kilometres per hour, so as when he got to that area at the top of the hill where he first could have perceived there was a problem he did not immediately react because he obviously was not being extremely vigilant, he was slower to react and by that time, under the conditions, he could not control his vehicle and he subsequently collided with the truck.

36 How does one assess all that contributory negligence? The fact is, in my view, the two defendants did what I have said they did, they had control of the situation and so are significantly liable but, on the other hand, this is not one of those cases where there is minor contributory negligence. In my view, there is significant contributory negligence because, for whatever reason, the plaintiff just keeps continuing at such a pace that he cannot control his car. Therefore, doing the best I can, I have assessed contributory negligence at fifty per cent.

37 The other question which arose was an interesting question. The plaintiff had sued the second defendant pursuant to the Civil Liability Act. It is argued that, in actual fact, he should have sued the second defendant pursuant to the Motor Accidents Compensation Act. I think it was agreed that, if I was to find that that was so, I could not find a verdict for the plaintiff against the second and third defendants because it would come under a different Act with different rules and matters of that nature. “Motor accident” is defined in the Motor Accidents Compensation Act 1999 in this way:

“Injury means personal or bodily injury caused by the fault of the owner or driver of a motor vehicle in the use or occupation of the vehicle if and only if the injury is a result of and is caused during:
(1) The driving of the vehicle, or
(4) such use or operation by a defect in the vehicle.”

38 What is argued is this, that in actual fact what the second defendant was doing at all times was driving a vehicle and that, even though the vehicle was being also used as an escort vehicle, he was driving a vehicle. The argument which I think is brought on behalf of the defendants, it is argued, is supported by QBE Insurance (Australia) Ltd. v Smith by his next friend Avard and anor. 2005 NSWCA 130. That is a case, as I recall, where a man was driving along with his son in his vehicle, he stopped the vehicle as he had to turn into his property with a gate, he directed the son to get out of the car and cross the road and open the gate and the son was struck by another vehicle and sustained injury and the Court of Appeal was satisfied what the father did in causing or allowing his son to cross the road fell under the provisions of the Motor Accidents Compensation Act. Her Honour Judge - I think it was in the judgment of Justice Hodgson - said at para 38:

“In my opinion, the strategy adopted by a driver for bringing about the passage of a vehicle through gates which bar its way, including the placing of the vehicle and the arrangements made for causing the gates to be open, is a feature of the driving of the vehicle. In this case, the positioning of the vehicle, on its own, would not have amounted to negligence if combined with proper steps to ensure that the plaintiff could safely cross the road; but the positioning of the vehicle actually effected by Mr. Smith did create an unreasonable risk of harm if those proper steps were not taken, as in fact they were not.”

39 In this case what I have found is that, in my view, the negligence which occurred was that the second defendant did not stop his vehicle, get out of his vehicle and, whilst on the roadway, slow or stop the traffic so as they would not in effect come into collision with a large truck crossing the bridge. I would add that, had the case of QBE Insurance not have been decided the way it was, it was thought that this was a fairly easy question and it did not come under the Motor Accidents Compensation Act. However, that decision, of course, it is argued does affect the way one considers these matters. However, having given it careful thought, I have concluded that what the second defendant should have done and therefore the negligence of the second defendant was not in the driving, was not in the use or operation of the vehicle caused during the driving of the vehicle. To me it is a totally separate matter, that is, driving a vehicle to a certain place, having responsibility to take care for another vehicle on the road and those other road users, and stopping, getting out and in fact acting as a traffic warden and stopping the vehicles. Therefore, I do not find that it comes under the provisions of the Motor Accidents Compensation Act. I simply return a verdict for the plaintiff against the first, second and third defendants and find contributory negligence of 50 per cent.

40 The offer of compromise made on behalf of the defendants was a proper offer of compromise under the circumstances and the plaintiff failed to better that offer of compromise.

41 I say that for this reason. The history, as I understand it, of this matter is this. The parties took part in a mediation some three weeks or more before the offer was made. The facts in the case were ventilated and, as I see it, the facts in this case have been known for at least that period. It has always been a case in which there is a significant dispute on liability.

42 The offer was made on 9 April. The case was to commence on 19 April. The offer was to remain open until 4pm on 16 April. Putting that into context, 16 April at 4pm was the Friday before the case commenced on the Monday. I am satisfied that the facts, sufficiently for the plaintiff to make an informed decision, were there. The problem is that senior counsel for the plaintiff was overseas and, whilst he concedes he was aware that an offer had been made, there was no way he could have had a conference with the plaintiff or discussed the matter with the plaintiff. There is no doubt that, as a result of that, the plaintiff would have been at a disadvantage.

43 However, having said that, the plaintiff is represented by very experienced solicitors and on the first day of this hearing another very experienced counsel stood in and it was a matter I believe that the plaintiff’s solicitors, even with the absence of their counsel, could have sufficiently dealt with either by themselves or with advice from another counsel, and either accepted or not accepted the offer. Having said that, I understand the difficulty of the matter but I think from a practical point of view that is the answer I have to give.

44 The defendants are to pay the plaintiff’s costs up to and including 9 April 2010. The plaintiff is to pay the defendants’ costs from 10 April 2010. None of this includes the costs of Mr Clark or his attendance in this court.

45 I simply enter a verdict for $425,000 against all three defendants and that order for costs I made. I dismiss the notice of motion with no order as to costs.

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