Proudlove by his next friends Kevin Lesley Proudlove and Patricia Proudlove v Burridge - [2014] WADC 156

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: PROUDLOVE by his next friends KEVIN LESLEY PROUDLOVE and PATRICIA PROUDLOVE -v- BURRIDGE [2014] WADC 156

CORAM: KEEN DCJ

HEARD: 4-8, 11-14, 27 & 28 AUGUST 2014

DELIVERED : 19 NOVEMBER 2014

FILE NO/S: CIV 1169 of 2012

BETWEEN: WARRICK TYLER PROUDLOVE by his next friends KEVIN LESLEY PROUDLOVE and PATRICIA PROUDLOVE
Plaintiff
AND
HARLEY MICHAEL BURRIDGE
Defendant

Catchwords:

Negligence - Traffic accident - Injury to passenger in motor vehicle - Motor vehicle colliding with a horse on a rural road at night - Standard of care - Causation - Burden of proof - Whether collision unavoidable or inevitable - Turns on own facts

Legislation:

Civil Liability Act 2002 (WA)

Result:

Plaintiff's claim dismissed

Representation:

Counsel:

Plaintiff: Mr T Lampropoulos SC with him Mr B Bradley
Defendant: Ms G Archer SC with her Mr T J Hammond

Solicitors:

Plaintiff: Bradley Bayly Legal
Defendant: WHL Legal Pty Ltd

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

Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420
Amaca Pty Ltd v Ellis (2010) 240 CLR 111
Burns v Pearce [2010] WASCA 214
Derrick v Cheung [1999] NSWCA 341
Fairchild v Glenhaven Funeral Services Ltd [2002] 3 WLR 89
Jockel v Jockel [1963] SR (NSW) 230
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 707
Manley v Alexander [2005] HCA 79
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Mobbs v Kain [2009] NSWCA 301
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254
Piening v Wanless (1968) 117 CLR 498
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
R v Horvath [1972] VR 533
R v Scott (2003) 141 A Crim R 232
Strong v Woolworths Limited (2012) 246 CLR 182
Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354
Thompson v Woolworths (Q'land) Pty Ltd [2005] HCA 19
Woods v Director of Public Prosecutions (WA) (2008) 38 WAR 217
Wyong Shire Council v Shirt [1980] HCA 12

KEEN DCJ: On 15 July 2011 the plaintiff, Warrick Proudlove, was a passenger in a 2004 Holden Commodore utility driven by the defendant, Harley Burridge, in a southerly direction on Albany Highway.
At a point approximately 10 km north of Mt Barker the motor vehicle collided with a horse on the road. The motor vehicle then veered onto the verge, up an embankment, along the embankment, across a side road and finally came to rest against a tree.
It is common ground that as a result of this accident the plaintiff suffered catastrophic injuries. He now claims damages.
The action before me was on the issue of liability only and the third party proceedings against Peter O'Neill and Natalie O'Neill, the owners of the horse, has been stayed pending the outcome of these proceedings.
The accident occurred in the hours of darkness, probably about 9.15 pm.
It is appropriate at this point to attempt to give some description of the scene. However to a great extent it is clearly depicted in photographs and plans that have been tendered.
The Albany Highway runs approximately north‑south. It has single lanes running in each direction. On either side of the road there is a gravel verge. The road has a bitumen surface. The centre line of the road is marked with double white lines or, in places, double lines broken on one side or the other. The outer extremity of the laneways is marked by white lines along the side of the road on the bitumen. The bitumen then extends for a short distance before meeting the gravel verge. On either side beyond the verge there is bush with trees.
There is a junction with Jutland Road which joins the Albany Highway on its eastern side. On the approach to Jutland Road heading south between the gravel verge and the bush, which contains a number of trees, there is a raised embankment running down to Jutland Road.
According to measurements taken by Dr Stephen Chew, whose evidence I will come to in due course, the highway from Jutland Road and heading north has an incline for approximately 325 m. The gradient of incline, according to Dr Chew, commences at about 1 degree dropping to zero degrees at the 325 m mark (the crest). Thereafter the road heading north goes into a decline. Accordingly, there is a crest in the road to the north of the junction with Jutland Road.
Apart from having the benefit of photographs and drawings of the highway, the court took the opportunity of inspecting the highway on 4 and 5 August 2014 both during hours of darkness and daylight respectively in order to more properly understand the evidence to be adduced in the trial (the view).
It is the plaintiff's case that on the night in question a Ms Susanne Tremayne was travelling on the highway heading north. As she got to Jutland Road she saw two horses on the roadway. She stopped her car leaving the dipped headlights on and activated its hazard lights.
She got out of the car and tried to shoo the horses off the road. She saw a vehicle coming from the north in the distance. She proceeded up the road and stood in the road. She removed her dark top. Underneath she was wearing a white long-sleeved T-shirt. She waved her arms to try to warn the oncoming vehicle. The vehicle went past her and collided with one of the horses. That vehicle was the vehicle driven by the defendant.
As I have noted previously, after colliding with the horse it appears that the vehicle mounted the embankment on the left, proceeded along it, crossed Jutland Road and came to rest against a tree.
The plaintiff's claim is that this accident and his injuries were caused by the negligence of the defendant. Before coming to the particulars of negligence and the defendant's answer to them I should note that it is common ground that the speed limit on this highway was 110 km per hour, the defendant was driving at or about that speed, the defendant did not see Ms Tremayne on the road nor did he see her car or the horse – I will return to this later.
The amended statement of claim, which was further amended at trial, alleges:
2.At about 9:20 pm on 15 July 2011 on Albany Highway approximately 10 kms north of Mount Barker:
[1]two horses which had escaped from a nearby farm were on the highway;
[2]One Susanne Tremayne ('Ms Tremayne') had parked her Toyota Yaris sedan ('the Toyota') facing north on the western verge of the highway and had left its low beam and hazard lights on;
[3]the Defendant was driving a Holden Commodore utility ('the utility'), registered number BY5853, in which the Plaintiff was a passenger, at 110 km/hr in a southerly direction towards the Toyota;
[4]Ms Tremayne had walked northwards and stood near the centre of the highway about 127 metres north of the Toyota and was there waving her arms to warn the Defendant of the hazard presented by the horses;
[5]the low beam and hazard lights on the Toyota were visible to the Defendant when his utility was about 235 metres north of the Toyota and thereafter;
[6]Ms Tremayne who continued to wave her arms was visible to the Defendant when his utility was about 143 metres north of where she was standing and thereafter;
[7]The Defendant continued to drive the utility southwards along the highway at 110 km/h after passing by Ms Tremayne;
[8]The Defendant's utility collided head on with one of the horses ('the first collision') in the south bound lane of the highway about 77 metres south from where Ms Tremayne had been standing;
[9]the Defendant's utility then left the highway, mounted the raised eastern verge and continued to travel southwards for about 150 metres before it collided with a tree ('the second collision') on the southern side of the intersection of Albany Highway and Jutland Road.
3.The first and second collisions were caused by the negligence of the Defendant.
Particulars
The Defendant was negligent in that he:
[1]failed to keep a proper lookout;
[2]failed to brake, slow down or stop in response to the lights of the Toyota;
[3]failed to brake, slow down or stop in response to Ms Tremayne's warning as pleaded in paragraph 2[4] above;
[4]failed to brake, steer or otherwise manoeuvre the utility so as to avoid the collisions;
[5]failed to see Ms Tremayne, the horses or the lights of the Toyota before collision;
[6]drove whilst tired in that he had been up since about 5:30 am on the day of the accident;
[7]drove the utility at about 110 km/hr when his windscreen was not clear and visibility was not clear;
[8]was distracted while driving by communications on his mobile telephone;
[9]drove at excessive speed in the circumstances which did not permit him to stop the utility within the distance illuminated by its headlights.
By his amended defence the defendant admits and avers as follows:
3.As to paragraph 2[1] of the Statement of Claim, the Defendant admits that some time before 9.20 pm on 15 July 2011, two horses ('the horses') had escaped from a nearby farm and had strayed on to Albany Highway, approximately 10 kilometres north of Mount Barker.
PARTICULARS
(a)The horses that had strayed on to the highway were owned by Mr Peter O'Neill ('the First Third Party') and/or Ms Natalie O'Neill ('the Second Third Party').
(b)One of the horses was a dark brown thoroughbred brood mare ('the mare').
(c)The other horse was a brown thoroughbred gelding.
(d)The horses were ordinarily kept on a 50 acre hobby farm owned, operated and controlled by the First and Second Third Party, which was and is located at 240 Jutland Road, Kendenup.
(e)On 15 July 2011, at some time prior to the first collision, the horses escaped from the hobby farm.
4.As to paragraph 2[2] of the Statement of Claim:
(a)the Defendant admits that at an unspecified time before 9.20 pm, Ms Tremayne had parked the Toyota on the western side of the highway;
(b)the Defendant otherwise does not admit paragraph 2[2].
5.As to paragraph 2[3] of the Statement of Claim:
(a)the Defendant admits he was driving the utility in a southerly direction along Albany Highway towards the Toyota;
(b)the Defendant admits he was travelling at, or slightly under, 110 kilometres per hour.
6.As to paragraph 2[4] of the Statement of Claim:
(a)the Defendant admits Ms Tremayne was trying to warn motorists of the hazard presented by the horses;
(b)the Defendant denies Ms Tremayne was standing near the centre of the highway;
(c)the Defendant says that he did not see Ms Tremayne prior to the collision;
(d)the Defendant otherwise does not admit paragraph 2[4].
7.As to paragraph 2[5] of the Statement of Claim:
(a)the Defendant repeats paragraph 4 of this Amended Defence;
(b)the Defendant denies that either low beam or hazard lights of the Toyota were visible to him at all.
8.As to paragraph 2[6] of the Statement of Claim, the Defendant denies Ms Tremayne was visible to him at all.
9.As to paragraph 2[7] of the Statement of Claim, the Defendant refers to and repeats paragraphs 5 and 6 of this Amended Defence.
10.As to paragraph 2[8] of the Statement of Claim:
(a)the Defendant admits the utility collided with the mare in the south bound lane of the highway;
(b)the Defendant otherwise does not admit paragraph 2[8].
11.As to paragraph 2[9] of the Statement of Claim:
(a)the Defendant admits that, after colliding with the mare, the utility left the highway, mounted the raised eastern verge and continued to travel southwards before it collided with a tree on the southern side of the intersection of Albany Highway and Jutland Road;
(b)the Defendant denies the distance between the first collision and the second collision was 300 metres, and says the distance was approximately 150 metres.
12.The Defendant denies the allegation in paragraph 3 of the Statement of Claim that the first collision was caused by the negligence of the Defendant.
PARTICULARS
(a)There were no street lights along the highway in the area where the accident occurred;
(b)The accident occurred at night-time;
(c)Just prior to the first collision, the Defendant saw what appeared to be tail lights of another car at some distance in front of him;
(d)Just prior to the first collision, the Defendant was driving either at or under the speed limit, being 110 kilometres per hour;
(e)Other than the tail lights, the Defendant did not see any vehicle lights prior to the accident;
(f)Other than seeing the tail lights in front of him, the Defendant was unable to see the road beyond the reach of the utility's headlights;
(g)Ms Tremayne and the horses were not visible to the Defendant prior to the accident;
(h)The Defendant did not see Ms Tremayne prior to the accident;
(i)The Defendant did not see the horses prior to the accident; and
(j)The horses were both dark in colour;
(k)Upon seeing the tail lights in front of him, the Defendant turned the utility's headlights from high beam to low beam;
(l)The accident occurred after the Defendant turned his headlights from high beam to low beam.
13.In the alternative, even if the Defendant was driving in a negligent manner (which is denied), the Defendant's negligence did not cause the first collision, as there was no prior opportunity for the Defendant to avoid or prevent it.
PARTICULARS
(a)There were no street lights along the highway in the area where the accident occurred;
(b)The accident occurred at night-time;
(c)The Defendant was unable to see the road beyond the reach of the utility's headlights;
(d)Just prior to the first collision, the Defendant was driving either at or under the speed limit;
(e)The horses were not visible in the illumination cast by the high beam lights prior to the Defendant switching the lights to low beam;
(f)The horses were both dark in colour;
(g)Just prior to the first collision, the Defendant saw what appeared to be tail lights of another car at some distance in front of him;
(h)Upon seeing the tail lights in front of him, the Defendant turned the utility's headlights from high beam to low beam;
(i)The horses were not visible in the illumination cast by the low beam lights prior to the first collision or, alternatively, would not have been visible to a driver in the Defendant's position at a distance that would have given the driver sufficient time to avoid the horses;
(j)Ms Tremayne and any lights on her vehicle were not visible to a driver in the Defendant's position or, alternatively, would not have been visible at a distance that would have given the driver sufficient time to avoid the horses.
14.The Defendant denies the allegation in paragraph 3 of the Statement of Claim that the second collision was caused by any negligence of the Defendant.
PARTICULARS
(a)The impact of the first collision was substantial, and caused significant damage to the utility;
(b)After the first collision had occurred, the Defendant had no opportunity to avoid or prevent the second collision.
During the course of the view it was accepted on behalf of the plaintiff that the impact with the tree was of low force. At trial it was accepted that the injuries sustained by the plaintiff occurred in the first collision, that is to say with the horse, and therefore the allegations in relation to negligence for the second collision, that is to say with the tree, fall away.
It does not appear to be in dispute that after the accident police and emergency services attended the scene. Police attending the scene marked the highway with spray paint to indicate items of interest. I will deal with these in more detail when dealing with the evidence, but it appears that what was thought or assessed to be the point of impact between the motor vehicle and the horse was marked with the letters 'IMP'. That position has been measured to be 150 m north of a datum point at the junction of Jutland Road and Albany Highway.
I will come to deal with the specific allegations of negligence in due course but the plaintiff's claim, as explained in opening, was, in essence, that the inference to be drawn from all the facts is that the defendant was not keeping a proper lookout. It is said that an ordinary person in his position could not help but see Ms Tremayne, her car and its lights and the horse and take steps to avoid the hazard. The defendant's position is that the collision was unavoidable and inevitable.

General overview of the evidence

The following is intended as a general overview of the evidence. Further reference to the evidence will be made when dealing with the issues that arise.

Lay witnesses

Susanne Tremayne

On the night in question Ms Tremayne was driving from Kalgoorlie to stay with friends in Kendenup. Her journey took her through Mt Barker. She arrived at Mt Barker in her white Toyota Yaris at about 9.00 pm.
At Mt Barker she telephoned her friends, Shane and Belinda Stein, for directions to their property.
She then proceeded on the Albany Highway from Mt Barker in a northerly direction.
She was travelling at about 80 km per hour.
When she got to Jutland Road (on her right) she looked out of her right window and saw two horses which were in the middle of the road on the southbound lane heading north. She pulled onto the verge. She said she left her lights on low beam and put her hazard lights on and left the engine running. She then telephoned her friend Mr Stein to advise him of what she had seen.
She then said in evidence that she saw a car coming. She was wearing a black jacket which she took off. Under the jacket she was wearing a long‑sleeved white T-shirt.
Her evidence was that she walked up the middle of the road waving her arms trying to slow down the car and to get the attention of the driver.
The car coming towards her was driving normally and did not change speed. She said the lights on that vehicle did not change either. It passed her and struck a horse on the road.
She then went on to describe three other cars coming over the crest of the hill which she tried to intercept and slow down. All of these cars went past her.
Whilst at the scene she telephoned her friend Mr Stein. The telephone records show the time and it seems that the first call to Mr Stein was at 21:03, the second at 21:14 and there was a third call at 21:24.
Under cross‑examination she agreed that the horses were very hard to see when they were beside her. It was dark and both horses had dark‑coloured rugs on them. She said, 'I had been travelling very slowly before I saw them and I only saw them when I was right beside them. Had they been in my lane, I might have hit them'.
With regard to the other cars, she said that all four collided with the horse. She said that she was in the same position when all four cars came through and she was waving her arms above her head. She did not remember whether she had moved any distance in terms of north or south when the cars came through however she was in the same position relative to the centre line of the road. Earlier she had said that she was in the northbound lane almost in the middle of the road.
She said that all of these other cars were driving in a straight line and staying in their lanes.
When the defendant's vehicle hit the horse, the crash occurred slightly behind her.
She said that on the night in question the road was wet.
She did not see any of the four cars brake, that is to say she did not see any brake lights come on.
She was emphatic that she was at all times north of where she had parked her car and at no time had stood behind her car and jumped out from that position to try to warn other drivers.

When she was phoning Mr Stein she had the phone to her ear walking up the road and she was still on the phone to Mr Stein when the defendant's vehicle went past her.

Shane Stein

Mr Stein confirmed having received a phone call from Ms Tremayne at about 9 o'clock from Mt Barker.
About 10 to 15 minutes later he received a second call from her in which she explained that there were horses on the road. During the course of that conversation he described 'an almighty bang'. He said that he got off the phone to ring triple zero.
After he had rung triple zero he telephoned Ms Tremayne again. He described her as 'freaking out a little bit'. He tried to calm her down.

The defendant

The defendant's evidence was to the effect that on the day in question he was driving from Perth to Albany in his Holden utility with the plaintiff as his passenger.
He described in evidence stopping at Armadale and seeing some friends at a service station at Williams. Thereafter he commenced communication with them on his mobile phone while he was driving towards Albany.
He said that the friends who were travelling in a Magna car overtook him and he later overtook them.
As he approached the area where the crash occurred he said he was on high beam headlights. He saw some lights ahead and switched to low beam. He was unable to tell what colour the lights were. He thought it was a car ahead.
He said that after he put his lights onto low beam there was a bang. He had not seen any people on the road. He did not see any lights of any oncoming vehicle and he did not see what he had hit.
He said that he was not using his phone at the time.
In cross‑examination he said that whilst he was driving he was on the lookout for kangaroos and alert to that possibility.
The defendant agreed that he gave a visually recorded interview with police on the Sunday following the accident, namely 17 July 2011.
Apart from the plaintiff speaking to the defendant's mother over the phone during the journey it was the defendant who conducted all other conversations or texts with Mr Kieran Forrester in the other car.
He agreed that when the speed limit was 100 km per hour he travelled at that speed.
Under cross‑examination he thought that the lights that he saw ahead were tail lights and he turned his high beam off. When questioned further about the lights he said he did not remember what they were but they were not oncoming lights.
He confirmed that he did not see Ms Tremayne on the road nor did he see a Yaris motor vehicle parked off the side of the road facing north with its lights on nor did he see any hazard lights on a vehicle. He did not see either of the horses.

Karista Stevenson

(Throughout the case and in transcript her name has been spelt Stephenson. I have adopted the current spelling as it is consistent with the spelling on her signed statement (exhibit 24).)
Ms Stevenson was driving the Magna vehicle which was also travelling south on the night in question. She had a number of passengers, including a man called Fellon who was in the front passenger seat. There were three people in the rear passenger seat including Sophie Bradley, who was sitting in the centre, and Kieran Forrester.
In her evidence she spoke of overtaking the defendant's vehicle and he overtaking her.
Towards the end of the journey she slowed to about 100 km per hour as she was running low on fuel.
Some 10 to 15 minutes after the defendant had overtaken her, she said she saw brake lights in front of her. Her front seat passenger, Fellon, made a loud noise. She said she reacted to the noise and saw something on the side of the road but was not aware it was a horse.
She said that she swerved or jerked, corrected herself and then hit a horse.
With regard to the thing on the side of the road she said that she thought maybe it was the head and the front legs being half on the road but the majority was off to the left. It was just a split second between her reaction to that horse, which was alive, correcting herself after swerving, and then unavoidably colliding with the other horse in the road.
She then said she lost control of her car and it spun a couple of times and finished up about 200 to 300 m down the road.
She said that prior to seeing the two objects she did not see anyone in the road waving their arms. She did not see any oncoming headlights and she did not see a car parked on the opposite side of the road.
In cross-examination she said that after the defendant had overtaken her, she was on low beam. She was on low beam as she came over the crest just before the accident.
She said that the brake lights she saw were just in the middle of the road and then they veered to the left. She then corrected that to say she did not see them veer, but saw them in the middle of the road and then saw them on the side of the road. She assumed that the defendant had pulled over to park.
Having swerved and then steered back to her left, she tried to miss the object in the road but it was unavoidable. She said it was a dark object lying flat on the ground - it was a hump in the road. She saw it before she hit it but there was no time to avoid it.

Sophie Bradley

Sophie Bradley confirmed that she was sitting in the centre of the back seat of Ms Stevenson's car. She was asked what she had observed. She said:
Well just driving down to Albany and then one minute, well, like, yes, one second there's like a horse near the left side of the wheel. So I saw that, like a split second, and that's when Karista, like, swerved her car.
She indicated swerving to the right.
She then said that there was another horse on the road and Karista swerved and they swerved down the road and finally stopped.
She said that the horse that she saw was upright and she saw it for a split second. She said it was near the left-hand side of the front of the car.
She could not remember whether they hit the other object on the road.
Under cross-examination she described going down the road fishtailing.

Margaret Kenny

Ms Kenny was driving down the Albany Highway, this night, with her husband in the passenger seat. She did not see the collision between the defendant's vehicle and the horse.
She was asked to describe what happened as she approached the scene. She said:
I was travelling behind another vehicle so – I wasn't terribly close to him but I had my lights on low beam. He slowed down and pulled over to the side and I realised later he must – that must have been when he hit the horse. So I was – I was watching him pretty carefully and I slowed down and – because my lights were on low beam I didn't see the horse which at the time I thought was a kangaroo in the road. So I – I sought of tried to – diverge around it with – I thought actually that I'd probably just go over the edge of it. I didn't want to swerve too drastically. As you know, it was obviously much bigger than a kangaroo and our car got damaged.
She said that at the time she saw this object on the road, she was probably travelling at 80 or 90 km per hour. She did not want to swerve and upset the stability of the car.
She was asked if she braked and she said:
No, I – I think I was probably fairly close to it because – because my lights were on low beam and I – you know, I was going relatively slowly but I thought I could just edge over it and it'd be alright.
She was asked if she had seen any vehicles in the northbound lane or on the edge of the northbound lane. She said she had not. She did not see any headlights facing her as she approached the scene, nor did she see any hazard lights on the other side of the road. She did not see any people standing either in the middle of the road or in the northbound lane.
Under cross-examination she said that she approached the scene where the accident happened at about 108 to 109 km per hour. She was asked if there was another vehicle between her and the defendant's utility when she came over the crest just before the accident. She said she was travelling behind a car which she understood to be a Magna.
She confirmed that she was travelling on low beam because the Magna was in front of her. She said that she slowed down when she saw the brake lights come on on that vehicle.
She said that there was a dark object in the road. She was asked if it was flat on the road and she replied 'not as flat as I thought'. It was lying on the road, not standing upright.
She was asked how close to it she was when she saw it. She said she was not very good at distances, maybe 100, 150 m. She was asked whether she was close or some distance away and she said 'probably too close to brake but not sort of right on top of it'.
She said that her focus was on the brakes of the car in front of her and then she was focussed on the object in the road. However, she said she thought she would have noticed hazard lights. She did not recall seeing them.
As to oncoming lights she said there were not any and she would not have attempted to swerve if there had been oncoming traffic.

Michael Stevens

Mr Stevens was driving the fourth car that came down the Albany Highway that night.
He was driving on headlights with two spotlights on the car.
As he approached the crest in the road there were no vehicles in front of him. He then said:
Coming south towards Mt Barker, coming to the crest, I had my high beams on because there were no cars in front. And as I came over crest, I could see in front of me that there was a vehicle's lights on either side of the road or reflections and so I dimmed my lights and started to slow down.
He was asked what sort of lights he saw on the side of the road and he said that he remembered hazard lights and tail lights on the left but he was not sure on the right. Under cross-examination he was taken to a statement that he had given to the police on 19 July 2011. In that statement he said that he came over the crest and noticed two vehicles with hazard lights on. One was on the left and one was on the right. He was asked whether it was the case there were two vehicles, one on each side, and he said yes.
When he saw the lights, he started to slow down by going down the gears and easing on the brakes a little.
The next thing that happened as he approached the accident scene, was that there was a lady behind the vehicle on the right, on the Mt Barker side. As he was going past her, she jumped out. At that point he was travelling at about 60 km per hour and slowing down. He first saw her when he was nearly level with the vehicle which was off the road, on the gravel.
He said that when this lady jumped out she was waving her arms and yelling. He looked back to check a few times to establish what was happening, he looked forward and then hit the horse. It was a black blur on the road.
He pushed the clutch in but did not remember braking. He did not swerve.
He described the lady as wearing a white shirt.
Under cross-examination he said that apart from the hazard lights he did not recall seeing any other lights on on these vehicles. When he saw them he started to slow down straight away and dipped his lights. He agreed that when he was on the top of the crest he was on low beam.
He slowed down as a precaution.
Having seen the lady who came out from behind the car, he said he glanced back three times. At that time he was travelling at about 60 km per hour. On seeing the black blur in the road, he said he had a split second to decide what to do. He described the object as being about 30 to 50 m from him but he said it was hard to say.
Later, he was asked whether he noticed the distance between the horse on the road and the car where the woman jumped out to wave at him. He said that was between 20 and 50 m but it was hard to remember. The car was north of the horse.

Adam Gelfe

Mr Gelfe is a law enforcement liaison officer with Telstra Corporation Limited.
He produced mobile phone records relating to the telephones of the defendant, a Martyn Forrester, and Susanne Tremayne.
Telephone 0467 649 369 is registered in the name of the defendant. Telephone 0400 889 458 is registered in the name of Martyn Forrester. Telephone number 0419 423 810 is registered in the name of Ms Tremayne.
Mr Gelfe said that the recorded times for various calls meets industry standards and there could be a difference of perhaps one or two seconds.
The records that he produced in relation to Ms Tremayne's phone show that she made a call at 21:03:01. She made a further call at 21:14:25 for a duration of 66 seconds. She then made another call at 21:15:43 for 32 seconds. At 21:24:38 she received a call lasting 107 seconds. There appeared to be no dispute that these calls were between her and Mr Stein.
There appears also to be no dispute that the first of the calls was the one that she made at Mt Barker to obtain directions from Mr Stein.
Mr Gelfe also produced the call records relating to the defendant's phone. It is not necessary for me to go through all of those calls but it is clear that there was communication by way of calls and SMS between the defendant's phone and the number ending 458 registered to Martyn Forrester.
The records show activity on the defendant's phone from 18:01:59 with a number of other telephone numbers and also activity with Mr Forrester's phone from 19:36:57.
That activity on the phone with Mr Forrester's phone comprises calls and text messages both in and out of the defendant's phone.
The activity also included a number of other voice calls going to text messages when unanswered.
Accepting that the accident occurred when Ms Tremayne was on the phone to Mr Stein at 21:14:25 or 21:15:43, the last activity on the defendant's phone prior to that is shown as at 20:50:17 which is said to be a SMS from Mr Forrester to the defendant. This is some 25 minutes before the collision.
There is a SMS timed at 21:16:39 from Mr Forrester to the defendant which on the records is described as a terminating SMS for both phones. Mr Gelfe could only speculate as to why that entry is in that form, that is to say as a terminating SMS on both phones. He suggested that an earlier call may have failed. In any event, he said in evidence that it was most certainly sent from the phone number ending in 458 being Mr Forrester's phone.

The police witnesses

Michael Truong

Mr Truong is a detective who, on the night of the accident, attended the scene at about 10.00 pm.
He looked for markings on the road and used a spray paint can to mark various things that he thought were of interest.
In particular, he marked with the letters 'IMP' (which can be seen in exhibit 8.4 to the left of the highway, just beyond the 175 m mark). He said that that was his assessment of where the horse first came into contact with the first vehicle. He reached that conclusion because that was where the blood and markings on the road were. There were no significant markings prior to that point. Beyond that point were blood and pieces of the horse and vehicle.
He said that his purpose in marking this was that he was aware that Major Crash investigators would attend and he was concerned to preserve as much evidence as possible. He said in cross-examination that he marked it as an area of interest for further investigation and agreed he would not have the expertise to say that was the impact point.
With regard to the defendant's motor vehicle, he did not check the position of its instruments or switches and in particular the headlight setting.
He said in evidence that Ms Tremayne's vehicle was parked on the gravel off the bitumen facing north on Albany Highway adjacent to Jutland Road. He recalled the hazard lights were on but he did not recall any other lights.

Michael Jones

Officer Jones is a senior police constable. He was recalled to duty to assess the scene of this accident with Senior Constable Turner.
Officer Jones took a series of photographs on the day he attended the scene and the following day. He believed it was 17 July 2011.
The photographs that he took became exhibit 8 and comprise a series of 14 photographs.
In each of those photographs, there is a marker depicting the distance from a datum point being the centre of the intersection of Albany Highway and Jutland Road.
The series of photographs commence at a point of 250 m from the datum point and culminating at Jutland Road with a view towards the tree, where the defendant's motor vehicle came to rest.
Officer Jones was directed to markings shown on the road in those photographs. In particular, in exhibit 8.2 at the 225 m mark, there were white dotted points along the road. He said he put those marks there to denote the edge of tyre marks that he could see. He said that if he found tyre marks which he believed may be of interest he would mark them and then discount them if he could. Whether they were attributable to this specific crash, he was unable to say.
He identified in exhibit 8.4 at the 175 m mark markings showing areas of interest which included vehicle debris and biohazard material from the horse, being flesh and blood.
He confirmed that he did not write the letters 'IMP', which is an abbreviation for 'impact'. He uses the acronym 'POI' as 'point of interest'.
In exhibit 8.5, at the 150 m mark, he again identified and marked tyre marks and areas of blood and other material from the horse. The letters 'HB' represent 'horse blood'.
In exhibit 8.6 at the 125 m mark, he identified a large area of blood and he had written on the road 'HB main' signifying the main area of horse blood.
He also identified on the photograph a number of dotted lines which he said were tyre marks going off to the left, into the drainage ditch and up the embankment.
In photograph exhibit 8.9, he identified Jutland Road to the left. In the middle of the south bound lane of Albany Highway, there is a traffic cone which he said represents the zero point for all of the measurements that were taken.
Officer Jones also attended Mt Barker Smash Repairs and took a series of photographs of the defendant's utility. There are six photographs in the series showing the extent of the damage to the utility, and in particular to the front, bonnet, windscreen and roof that had been caved in.
The final photograph in that series is a photograph of the inside of the cabin on the driver's side. He said that the position of the light switches could not be verified because they could have been moved during recovery of the vehicle but the light switch appeared to be on automatic when he found it. In cross-examination he said it is always difficult to ascertain if anyone has actually moved a switch, and noted that recovery drivers would, for example, put the gear stick into neutral.
Under cross-examination he was unable to say whether the headlight stick was in high or low beam.
In cross-examination he was taken to the photographs at exhibit 8 and the marking of tyre marks. He agreed that he had marked two different sets of tyre marks. He was unable to link them to any of the four vehicles that hit the horse.
Officer Jones was also involved in obtaining a visually recorded interview with the defendant at the Albany Police Station on Sunday, 17 July 2011. I will return to that interview later.

Shane Robert Gregorini

Officer Gregorini is a senior constable attached to the Great Southern Traffic Enforcement Group at Albany. Whilst he has never worked for the Major Crash section, he has done an introductory crash investigator's course on ways to examine crime or crash scene.
On 15 July 2011 he went to the scene of this crash. He said it was deemed a crime scene so as to preserve as much evidence as could be preserved and documenting everything in situ.
He said that he and his partner marked various things at the scene including tyre marks, vehicle debris, where the vehicles were and the dead horse.
He said that on the night, there were braking marks on the road surface. The surface was wet and where the braking marks were the road surface had been cleaned away of debris. He said that it was quite visible at that point in time and continued off the road into the road verge, up an embankment and to where the final resting place of the utility was located.

He was asked whether the vehicle's wheels had locked up at any time. He said it appears they had but because the road was wet no rubber was left on the road surface. There was a shiny type appearance on the road and the dirt and debris under that area was clean so it was quite visible.
He also examined the defendant's utility and described that it had major damage to the front end, to the passenger side and the roof being caved in predominantly over the passenger area. He said he would have inspected the settings of the switches, but he could not recall what position they were in.
As to the marking 'IMP' on the road, he was asked which officers had the expertise to determine the point of impact. He said that he would himself, along with Senior Constables Turner and Jones.
Officer Gregorini was asked whether he saw Ms Tremayne's car on the night. He said he would have, but he could not recall exactly where it was parked.
On Sunday, 17 July 2011 he attended the yard at Mt Barker where the defendant's utility was. He did not check the switches and settings in particular the headlight settings, which were left to Major Crash or vehicle examiners.
In cross-examination as to the braking marks on the road, he agreed that what he was describing was just clean portions of the road. He said 'basically any water that was on the road had been removed as well as the dirt and debris that would have been lying on the top' and so it gives a shiny appearance.
In re-examination he was asked where those braking marks were in relation to the marking 'IMP'. He said:
Prior to the impact point there were braking marks on the road surface for which could be seen through torch light and it continued past the impact point onto the road verge, the embankment to where the vehicle finally came to rest.
As that question did not strictly arise out of cross-examination, further cross-examination was permitted. Senior counsel for the plaintiff suggested that those marks before the impact point did not line up with the lines south of the impact point. Officer Gregorini replied:
No, the marks that I could see on the night continued past the impact point to the left onto the verge where it continued on. There were other marks that lined up with the other vehicles that were involved.
He went on to say:
The marks on the night were quite clear. They continued prior to the impact point and continued in a straight line to the left onto the verge, up the embankment to where the vehicle ended up. There were other marks on the night which could be visible further south where the other vehicles had hit the horse as well.
Officer Gregorini was asked how many braking marks there were north of the impact point. He said:
There was the major one that you could see which lined up with Mr Burridge's vehicle and there were other ones that were similar nearby as well. But due to the poor lighting, it was very hard to determine on the night.
He could not remember exactly how many marks there were from different vehicles.
His assessment was that some of the tyre marks before the 'IMP' point lined up with the tyre marks south of the 'IMP' point and continued off the road onto the eastern side. He was asked if he followed them. He said that he did on the night and those marks were marked with paint by himself and Constable Truong.

The expert witnesses

Jacob Martin

Mr Martin was called by the defence. He holds a Bachelor of Science in pure and applied mathematics and a Bachelor of Engineering in mechanical engineering.
His role was to carry out research into various papers and articles following receipt of an expert's report from Dr Chew which I will come to shortly.
Mr Martin's work comprised a review of various literature in the light of Dr Chew's report and he reported on such matters as perception reaction time in the context of motor vehicles.
He identified four stages of perception reaction time as including detection, identification, decision and response.
In his report dated June 2014 (exhibit 20), he went on to deal with each of those stages. He identified under 'detection' that there were a number of factors to take into consideration including headlight luminance, expectation of an obstruction, and object location. Having identified each of those factors, he then went on to deal with them in his report.
Under the heading of 'Identification' he noted two factors:
1.The impact of night driving on identification of a hazard; and
2.The effect of glare from headlights.
Under the heading of 'Decision' he dealt with factors comprising driving conditions, and what he described as choice determination and the 'toll booth problem'.
Reference was made by him to various publications including Human Factors: The Journal of the Human Factors and Ergonomics Society paper on Perception – Response Time to Unexpected Roadway Hazards by Paul L Olson and Michael Sivak, 1986.
In his conclusion, Mr Martin formed the view:
I believe that there are considerable differences between Olson and Sivak's experimental set up and the incident, and that these differences do not support the direct application of the perception reaction time derived from the experiment to this case.
Mr Martin was examined and cross-examined at length, further detail of which will be dealt with in analysis later. However, in relation to the toll booth problem he identified that that was an effect where a visual stimulus has a specific pre-determined response. He identified another phenomenon which is called 'avoidance‑avoidance' where there are potentially multiple things that a driver will have to decide across a spectrum of appropriate responses which have to be weighed before the appropriate response is made.

Dr Steven Chew

Dr Chew is a chartered mechanical engineer and certified ergonomist. He produced for the plaintiff an initial report dated 8 January 2013 (exhibit 12).
He then produced a subsequent report dated 16 March 2014 (exhibit 13).
Two further reports were prepared dated 31 July 2014 (exhibit 14) and 5 August 2014 (exhibit 15).
For the purpose of his first report (exhibit 12), Dr Chew attended the site of the accident for an inspection. He took various photographs of the road and points of interest. He took measurements of visibility and identified them by photographs of the road at relevant points. In addition, he performed mathematical analysis to estimate speed and distance calculations and braking distances.
In addition, he reviewed reports from police and other investigators.
He was specifically requested to identify the point at which a driver of a vehicle travelling south at night along Albany Highway towards the intersection with Jutland Road could first see a person standing on the highway at a point where Ms Tremayne was said to be standing immediately prior to the collision. He was to measure that distance.
He was also asked to do a similar exercise with regard to emergency lights on the Toyota Yaris and also in relation to the low beam lights of the Toyota Yaris.
On 21 November 2012 he attended at the accident site to undertake his investigations. He established, for the purposes of his investigation, a zero reference point (ZRP). That ZRP was an imaginary line passing through the south culvert on Jutland Road at its junction with Albany Highway. That is not the same place as the other datum point referred to. It is approximately 6.5 m north of the tree where the defendant's vehicle came to rest. Accordingly, adjustments are made from time to time to take account of the difference in the datum points used by different persons.
Dr Chew met Ms Tremayne on site and she identified to him the location where she was said to be standing when attempting to wave down the defendant's motor vehicle on the night of the crash. Dr Chew marked that position, not in the centre of the road where she indicated but to the side of the road at that appropriate distance.
She also identified where her Yaris motor vehicle was stopped on the gravel verge and again he marked that position.
As I have noted previously, he also dealt with and measured gradients from the 'IMP' heading north.
Dr Chew had an assistant wearing a white long‑sleeved shirt. He had his assistant stand in the position Ms Tremayne had indicated and Dr Chew then proceeded north, taking photographs at various points until he got to the limit of daytime visibility, which he said was 534 m north of his ZRP. Those photographs taken at various points are comprised within his report.
For the purpose of preparing his report he also conducted tests at night‑time using a similar Holden Commodore utility and a similar Toyota Yaris. The Yaris was parked in the location identified by Ms Tremayne.
Dr Chew also conducted test runs at night to ascertain whether he could see the assistant under the throw of headlight beams at a speed of 110 km per hour.
In the vehicle was Mr Aaron Johnston, a camera operator, who took a video‑recording of the test runs.
According to Dr Chew, in his first test run, there was a lapse of five seconds between the time the assistant became visible and the vehicle passing him.
On test run number 2, a similar time lapse was obtained.
A third test run was made, this time to test the effects of light braking and to see whether the vehicle could be stopped prior to reaching the impact point. Dr Chew applied light braking, approximately two seconds after first seeing the assistant.
In this test he observed that the utility was travelling at 82 km per hour as it travelled past the impact point.
A fourth test run was done to see the effect of firm (but not hard) braking. On this occasion, using the same delay before braking, the utility stopped approximately 20 m before the impact point.
A fifth test run was carried out to establish the location where the assistant became visible and the location at which the Yaris' low beam headlights became visible. This test was not recorded on the camera. To conduct this test, Dr Chew drove at a slow speed of 10 to 20 km per hour on high beam. As soon as he saw the assistant waving his arms above his head, he applied hard braking, stopped and measured the distance. He established that he could see the assistant from 370 m mark or nearer. Given that his assistant was at the 227 m mark, he was visible from a point 143 m north of his position. The defendant has noted that detection distance is not the same as visibility which is the distance over which there is headlight illumination. Bearing that in mind, I am satisfied that what Dr Chew is here talking about is detection of his assistant waving his arms.
Conducting a similar experiment, he established he could see the Yaris' headlights from the 335-m mark.
In his report Dr Chew then carried out an analysis to estimate the braking coefficient of the utility in test runs three and four, and also an analysis the estimated speed of the utility at impact point, having regard to various time delays before applying the brakes, with varying coefficients of braking, and produced a table.
In his report under the heading of 'Discussion and Options' Dr Chew then responded to a number of questions that were put to him by the plaintiff's solicitors. These will be dealt with in greater detail later.
In his second report (exhibit 13), Dr Chew commented on braking reaction time from the Olson and Sivak 1986 publication. He also dealt with other material comprising a paper by Heikki Summala, 1981, on 'Driver/Vehicle Steering Responses Latencies' dealing with times for test subjects to react to stimulus.
He also dealt with the position if the headlights on the utility had been switched to low beam when it was more than 143 m from the location identified by Ms Tremayne. He said that such a person would only be illuminated by the low beam headlights at between 70 m and 80 m and he adopted the average of 75 m. Having regard to the throw of the headlights, he again analysed, by way of a table, whether or not the vehicle could have stopped, applying various time delays and coefficients of braking. His conclusion, on that basis, was that if the driver of the utility reacted within 1.6 to 2.5 seconds and applied hard to moderate braking, after seeing a person standing at Ms Tremayne's location, under illumination by low beam, the speed of the utility would have been between 0 km per hour and 75 km per hour at the time of the collision. He opined that the consequences of the crash could have been avoided or mitigated.
In his final report (exhibit 14), Dr Chew commented upon the report of Mr Martin and the literature discovered by him.
Dr Chew attended the site again on 3 August 2014 and produced his final report dated 5 August 2014 (exhibit 15). He conducted tests at night-time with the vehicle on both high beam and low beam to ascertain the visibility distance of an assistant standing on the point where Ms Tremayne said she was, but laterally in different positions across the northbound lane, they being close to the centre double white line; at mid‑width of the northbound lane; and close to the side of the road.
In his report he produces the various results.

Raymond Cook

Mr Cook is an expert called by the defence. He produced a report dated October 2013 (exhibit 28).
In that report, he also produced a detailed curriculum vitae. In a nutshell, it appears that he has over 25 years' experience in traffic management, road safety and transport planning having worked in Australia, New Zealand, United Kingdom and the Middle East.
In his report he set out the material that he had reviewed for the purposes of his investigations.
His site investigation was carried out over two days on 4 and 5 September 2013 including both daytime and night-time investigations in clear weather.
He also utilised other vehicles for the purposes of his experiments. He had a white Toyota Yaris and a Holden Commodore sedan (not a utility) which was a newer model than the defendant's vehicle.
For the purposes of his report, he identified the particular measurements from Dr Chew's report.
In his report, he dealt with issues relating to sight distances by reference to Austroads Guide to Road Design (exhibit 22). He said that stopping sight distance comprised two components; reaction distance and braking distance.
By reference to Austroads he applied a reaction time for an unalerted driver of 2.5 seconds, and adopted various diagrams and tables from that publication.
He produced a table of 'vertical curve sight distances'. Case 3 was a driver's night-time visibility on an unlit roadway using high beam which he said was restricted to 120 to 150 m. For low beam, it was restricted to 70 to 80 metres.
Unlike Dr Chew, he was not prepared to conduct an experiment at night with his assistant standing in the roadway for safety reasons.
His calculation of night-time visibility of the Toyota Yaris was 285 metres from his reference measurement point (RMP) being the eastern edge of Albany Highway, perpendicular to the southern edge of Jutland Road. As has been noted, this RMP is different by 6.5 m to Dr Chew's ZRP.
He said that he was unable to perceive accurately at speed what the night‑time visibility of Ms Tremayne would have been in her alleged standing location.
He identified what he called a 'critical aspect' as being that he was able to identify the alleged location of Ms Tremayne before conducting distance measurements, because he knew they had something to look for. He noted that someone driving at high speed, in a rural area at night, under 'un-alerted' driving conditions, might fail to perceive a small object ahead until it was much closer and obvious.
He then went on to deal with a number of sight observations at various distances from the RMP. In daylight in figure 4.5 the assistant could be seen as a dot in the distance at 370 metres from the RMP – 143 m from the alleged standing position of Ms Tremayne. That would represent 4.7 seconds of travelling time at 110 km per hour.
At figure 4.6 the Yaris parked on the verge came into vision. This was approximately 108 m north of the alleged standing position of Ms Tremayne – a travel time of 3.5 seconds at 110 km per hour.
Mr Cook then compared the measurements taken by himself and Dr Chew and noted that there were differences which might be explained by the level of alertness for different drivers, how fast a driver perceives an object, and the eyesight of the observer.
Mr Cook went on to deal with headlight illumination and produced a diagram of the throw of low beam headlights sourced from an American publication and also opined on the relevance of headlight glare and masking effects.
In his commentary on survey outcomes, he noted that it was very difficult to pinpoint precisely when a person would become visible even during daytime, let alone at night. There were a number of factors which would come into play, relevant to driver characteristics, vehicle characteristics, whether the driver is actually looking for a hazard, road conditions and whether or not it was raining or the road was damp, the vehicle speed, headlight glare of oncoming vehicles and masking effects, and other road environment distractions.

Aaron Johnston

I have indicated that Mr Johnston was the cameraman during the course of the experiments carried out by Dr Chew. The video which was presented in evidence as exhibit 11 was shot in full HD with the focus set to infinity. The lens was a standard lens of 24 mm to 105 mm at F4.
The camera was set at a sensitivity reading of 2,000 ISO.
Mr Johnston said that for the purposes of the exercise he tried to get as close to possible to vision with the human eye. For this purpose, he used a zoom length of 24 mm.

Issues arising

A number of issues arise in connection with this matter. The principle issues or questions to be decided comprise:
1.Where was Ms Tremayne on the roadway;
2.Where was her Toyota Yaris parked;
3.What did she do to try to warn motorists proceeding down the highway;
4.What lights were displayed on the Toyota Yaris;
5.As to the general nature of the defendant's driving leading up to the accident and its relevance;
6.What lights was the defendant using at any particular time;
7.Was the defendant driving on dipped headlights and if so, when did this occur in relation to the collision;
8.Did the defendant see anything on the road and if so, what?;
9.If the defendant did see something, what did he do, for example brake, steer or swerve;
10.In a rolled up sense, should the defendant have seen Ms Tremayne, the horses, or the lights on her vehicle, and if so;
11.Could the defendant, and should the defendant, have reacted; and if so, how;
12.Whether the collision with the horse could have been avoided or mitigated;
13.Where was Ms Tremayne when the three following drivers came through the scene; and
14.What was she doing on each occasion; and
15.What happened in respect of each of those drivers;
16.In respect of each of those other drivers, what impact does that have in the sense of informing as to what the defendant or a reasonable person in his position could or should have done in all the circumstances.
Some of these issues will be rolled up into one composite issue for the purposes of analysis and fact‑finding.

The legal issues

The legal issues that arise in this matter are, as a mixed question of law and fact, was the defendant negligent in the manner described in the statement of claim?
If so, was the defendant's negligence causative of the injury to the plaintiff?

Legal principles

It is trite that at common law, a driver of a motor vehicle is under a duty to take reasonable care to avoid injury or damage to others including a passenger. The duty requires the driver to exercise reasonable care to avoid a foreseeable risk of injury or damage.
The risk of injury or damage will be reasonably foreseeable if it is not farfetched or fanciful and may be reasonably foreseeable even though unlikely to occur or remote: Wyong Shire Council v Shirt [1980] HCA 12.

The evidence of Dr Chew was to the effect that the higher the energy (speed) the more damage will be caused on impact with a stationary object. It is not possible to calculate the speed at which the defendant's motor vehicle would have struck the horse had the defendant braked but I am satisfied that it would have been reduced.
All of the foregoing is predicated on the detection of Ms Tremayne at up to 143 m, a reaction time of about two seconds and braking capacity of the defendant's vehicle at 0.40 and not knowing the precise position of the horse relative to Ms Tremayne.
However, it appears that the distance of something being detected may be substantially overestimated according to the work of Olson, Dewar and Faber (2010) and Hyzer and Hyzer (2001).
According to Mr Martin the algorithm propounded by Hyzer and Hyzer (2001), to which I have referred earlier, for calculating the effect of expectation on test observations was endorsed by Olson, Dewar and Faber as 'a simple and effective means for approximating the range of visibilities to be expected from representative drivers in a real world encounter with an unexpected hazard'.
The algorithm is expressed as follows:
•First, multiply the observed distance by 0.67 to approximate the distance that would be expected of a median subject in a structured test;
•Second, multiply the result by 0.5 to account for expectancy;
•Third, identify the likely range as +/- 0.33 of this distance.
Mr Martin described it as a 'rule of thumb' – as a way of conceptually transferring from an experimental set-up to a real life situation. He was not challenged on this aspect of his evidence. The study was not put to Dr Chew. This is not surprising given his acceptance of lack of expertise in such matters.
The upshot of applying this 'simple and effective means' to the optimum finding of Dr Chew of 143 m results in a perception distance under high beam illumination of between 32 and 64 m (143 x 0.67 x 0.5 = 48; 48 x 0.33 = 16; so the range is 32 (48 – 16) to 64 (48 + 16)).
It is possible that this may be further reduced because, having regard to the evidence of Mr Cook, driving at a slow speed (as in Dr Chew's test run 5) is not the same as driving at 110 km per hour. Dr Chew did not dispute the proposition that perception distances decrease with increasing speed.
As expressed, as an approximation, this provides a range for representative drivers in a 'real world encounter' and there is no other evidence which would undermine that approach.
In this case a great deal of weight has been accorded to the works of Olson and Sivak and later Olson, Dewar and Faber, albeit with cautionary comments relative to results obtained from alerted drivers. On that basis, in a case such as the present where it is impossible to accurately reconstruct events and where there are so many imponderables, there is no reason not to adopt that cautionary approach to such findings as can be made.
This does not alter my finding that the defendant should have seen Ms Tremayne and commenced his braking. What it does mean is that he was likely to have observed her at a much closer distance than Dr Chew (143 m.). Accordingly, his passing speed would have been higher. Whilst there is evidence of braking from Senior Constable Gregorini, there is no evidence to show it resulted in any appreciable slowing of the vehicle before impact. This is highlighted by the fact that after colliding with the horse the vehicle crossed the gravel verge, climbed the embankment, proceeded along and down the embankment and across Jutland Road before coming to rest against the tree – a not inconsiderable distance.
Even if the defendant could have swerved at that high speed and I have some doubt about his ability to do that, given that Ms Stevenson did so and lost control of her car with it spinning around twice, it is highly conceivable that while still travelling at high speed and braking a reasonable person, in the agony of the moment, might not swerve but just continue to brake. Even if the defendant could have swerved it has not been demonstrated to me that the collision could have been avoided or lessened to any appreciable extent.
It is not for the defendant to prove that his action did not cause or materially contribute to the collision and the plaintiff's injuries. Section 5D makes it quite clear that the plaintiff also bears the onus of proof of any fact relevant to the issue of causation.
Given my findings, it is not possible to make the leap across the gap to show that just because the defendant failed to keep a look out and observe Ms Tremayne and brake sooner, he caused or materially contributed to, as a matter of fact, the collision or that it is an appropriate case to apply the section. Whilst it is true that in many cases the failure to keep a proper look out and take evasive action would result in a defendant being liable for the damage that ensues following a collision, each case must be considered on its own factual circumstances. As I have noted, the factual circumstances in this case do not lead me to the conclusion that this accident could have been avoided. I am unable to reach that conclusion, adopting either a common sense approach or applying the 'but for' test.
Adopting what was said in Adeels Palace, even if the defendant had been keeping a proper lookout and might have seen Ms Tremayne earlier and reacted to her, that is not reason enough to conclude that this is an 'appropriate' case where responsibility should be imposed on the defendant under s 5C(2) of the Act.
The evidence does not, in my opinion, demonstrate the necessary causal connection, i.e., did the defendant's negligence cause the collision and the plaintiff's injury.
That being the case I am left in the position where I am not satisfied that the defendant's negligence in failing to observe Ms Tremayne's warning and then to brake and perhaps swerve to avoid the horse did cause the collision with the horse and the injuries to the plaintiff that followed.
This would appear to be a collision that was unavoidable or inevitable.

Conclusion

For the reasons expressed the plaintiff has failed to satisfy me that the defendant's negligence was causative of his injuries and the action must therefore be dismissed and there should be judgment for the defendant.