Rawlings v Cawthorn
[2010] TASFC 8
•17 December 2010
[2010] TASFC 8
COURT: SUPREME COURT OF TASMANIA (FULL COURT)
CITATION: Rawlings v Cawthorn [2010] TASFC 8
PARTIES: RAWLINGS, Scott Peter
v
CAWTHORN, Wendy Margaret
FILE NO/S: FCA 19/2010
JUDGMENT
APPEALED FROM: Cawthorn v Rawlings [2009] TASSC 119
DELIVERED ON: 17 December 2010
DELIVERED AT: Hobart
HEARING DATE: 6, 7 May 2010
JUDGMENT OF: Blow, Porter and Wood JJ
CATCHWORDS:
Torts – Negligence – Road accident cases – Actions for negligence – Evidence – Onus of proof and sufficiency of evidence – Rollover of log truck – Collision with car – Cause of collision – Whether truck driver negligent.
Aust Dig Torts [103]
REPRESENTATION:
Counsel:
Appellant: K E Read and R B Webster
Respondent: C H Hobbs
Solicitors:
Appellant: Dobson Mitchell & Allport
Respondent: Blissenden Lawyers
Judgment Number: [2010] TASFC 8
Number of paragraphs: 58
Serial No 8/2010
File No FCA 19/2010
SCOTT PETER RAWLINGS
v WENDY MARGARET CAWTHORN
REASONS FOR JUDGMENT FULL COURT
BLOW J
PORTER J
WOOD J
17 December 2010
Order of the Court
Appeal dismissed.
Serial No 8/2010
File No FCA 19/2010
SCOTT PETER RAWLINGS
v WENDY MARGARET CAWTHORN
REASONS FOR JUDGMENT FULL COURT
BLOW J
17 December 2010
This appeal concerns the causation of a fatal log truck accident. It occurred before dawn, at about 4.45am on 30 August 2006, on the Lyell Highway between Granton and New Norfolk. The appellant, Scott Rawlings, was driving a Volvo prime mover towing two trailers, each fully laden with logs, west towards New Norfolk. The respondent's husband, Roger Cawthorn, was driving alone in the other direction in a Pajero four-wheel-drive vehicle. The Pajero came into collision with either the appellant's rear trailer, or with logs that had fallen from it, or both. Mr Cawthorn died at the scene. The respondent, Wendy Cawthorn, sued the appellant for damages. Agreement was reached as to the quantum of damages, but the parties went to trial in relation to questions of liability. Tennent J held that the appellant had driven the truck negligently, and that there had been no contributory negligence on the part of the deceased, and gave judgment accordingly: Cawthorn v Rawlings [2009] TASSC 119. In this appeal, the appellant contends that her Honour should not have made any finding that he was negligent.
At the trial, the case for the plaintiff (now the respondent) was that the second of the two log trailers (sometimes referred to as "the B-trailer") rolled over onto the Pajero's side of the road, either into the path of the Pajero or on top of it. The case for the defendant (now the appellant) was that the Pajero was driven by the deceased into the outer right rear wheel of the rear trailer, causing that trailer to capsize. The prime mover and the front trailer did not capsize.
The plaintiff's case as to negligence was based entirely on circumstantial evidence. The only people present at the time of the collision were the two drivers, one of whom was killed. The defendant was unable to say what caused the collision. When interviewed by a police officer, Sgt Carrick, six days afterwards, he said that he remembered going around a corner; that he remembered seeing a vehicle coming in the opposite direction; that he heard a bang; that he assumed that it was a tyre blowing out; that he looked in his mirror and saw logs and sparks going everywhere; that he realised that one of his trailers had gone over; that he rang 000 to say that logs were all over the road; and that he thereafter learned from another driver that another vehicle had been involved. He adhered to that version of events in his evidence at the trial.
The circumstantial evidence relevant to the issue of negligence consisted of the following:
·Evidence as to the road and its physical characteristics, including evidence of measurements.
·Photographs taken after the accident.
·Evidence of observations at the accident scene, including evidence as to marks on the road surface, the damage to the vehicles, and their final resting places.
·Evidence as to the log truck, its trailers, their load, and the means of securing the load.
·Evidence as to the defendant's speed and manner of driving prior to the rollover.
·Evidence as to the defendant's driving experience.
·Evidence as to the past behaviour of the log truck, and the behaviour of a similar truck, on the same stretch of road.
·Evidence from a Mr Reid who heard the collision when fishing nearby.
Three witnesses gave expert opinion evidence as to the cause of the collision – Sgt Carrick, Mr Jamieson, and Mr Elphinstone. Sgt Carrick is a police accident investigator who investigated this collision. He was called as a witness for the plaintiff, but in cross-examination gave opinion evidence favourable to the defendant. Mr Jamieson, a consulting engineer, gave expert evidence for the plaintiff, to the effect that the collision was caused by the negligence of the defendant. Mr Elphinstone gave expert evidence for the defendant. He had no academic qualifications, but was the manager of a business that had manufactured trailers for log trucks for over 30 years, and had investigated 30 to 40 trucking accidents, including about 15 high speed rollovers, most of them involving log trucks.
Sgt Carrick and Mr Elphinstone both expressed the opinion that the collision had been caused by the Pajero colliding with the outer right wheel on the rear axle of the log truck's rear trailer. There was substantial impact damage to the metal rim of that wheel. Mr Jamieson's opinion was that the collision had been caused by the rear trailer commencing to roll, and losing its load as the Pajero reached it.
The learned trial judge made findings that the rear wheels of the rear trailer crossed slightly onto the wrong side of the road; that the trailer began to roll onto its right hand side of the road prior to any impact with the Pajero; that its load came loose and logs began to spill onto the road; and that the Pajero then collided with it. She rejected arguments that the appellant had failed to keep a proper lookout, negligently failed to apply his brakes, negligently failed to take evasive action, driven at an excessive speed, driven on the incorrect side of the road, and driven in such a manner and at such a speed as to cause the rear trailer to cross onto its incorrect side. She found only one particular of negligence proven. That particular alleged that the appellant "drove in such a manner and at such a speed as to cause the second of the two trailers to roll over and into the path of the vehicle driven by the deceased".
Counsel for the appellant submitted that that finding was inconsistent with the learned trial judge's rejection of the allegations that his client had driven at an excessive speed, driven on the incorrect side of the road, and driven in such a manner and at such a speed as to cause the rear trailer to cross onto its incorrect side.
At the hearing of the appeal, counsel for the appellant submitted that this Court should substitute its own findings of fact for those of the learned trial judge, in accordance with the principles discussed by the High Court in Fox v Percy (2003) 214 CLR 118; Suvaal v Cessnock City Council (2003) 77 ALJR 1449; Pledge v Roads and Traffic Authority (2004) 78 ALJR 572; Anikin v Sierra (2004) 79 ALJR 452; Commissioner of Main Roads v Jones (2005) 79 ALJR 1104; and Roads and Traffic Authority v Royal (2008) 82 ALJR 870.
Much of the evidence before the learned trial judge was uncontroversial and provided no support at all for any finding of negligence. There is no challenge to the facts as found by the learned trial judge in the following passages in her reasons:
"The defendant was employed as a log truck driver by a firm called Lloyds North. He had held a licence to enable him to drive the type of truck he was driving this day, for some four years. He had held a heavy vehicle licence for some time before that. On the day of the accident, he began work at 1am at the company's depot at Cooee. His role that day was to drive the B Double rig laden with logs from Cooee to the Norske Skög mill at Boyer. He had been doing the same trip five to six days a week for the previous eight months. On some occasions he drove alone. On others, another truck would drive the route with him. On this particular day, the defendant did the trip in convoy with another, slightly smaller, rig driven by Shaun Butler. The pair drove their trucks down the Midland Highway to Bridgewater. Because of the size of the defendant's rig, once he reached Bridgewater, he was unable to drive the most direct route to the Boyer mill. Instead, he had to cross the Bridgewater bridge and then turn onto the Lyell Highway and travel towards New Norfolk. Butler had the defendant's rig in his sight for most of the trip from Cooee, but did not have it in his sight at the time of the accident.
The Lyell Highway between Granton and New Norfolk runs approximately in an east/west direction. A vehicle travelling to New Norfolk is travelling in a westerly direction, while a vehicle travelling towards Hobart is travelling east. The highway runs more or less parallel to the Derwent River. The river is to the side of the Hobart bound lane and can be accessed, in the vicinity of the accident site, down a steep bank through bush. In that vicinity, the west bound lane of the highway is 3.6 metres wide, while the east bound lane is 3.4 metres wide. The lanes are divided by double unbroken white lines. In the west bound lane in the direction of New Norfolk, there is a sweeping left hand bend in the road. On the river side of the east bound lane, between the road and the river, at and just past the apex of the bend (looking towards New Norfolk), there is a gravel verge, then a low metal security fence with a gravelled area on the other side. That fence ends at a point just past the apex of the bend. After that, a wide gravel verge continues some distance along the side of the road to a large tree on the top of the river bank.
Vehicles travelling west into the sweeping left hand bend and just through it would travel slightly downhill. Through the bend, the road straightens out and flattens. The bend itself had what the police accident investigator Sergeant Carrick ('Carrick') called a positive camber, that is, it sloped down from the direction of the east bound lane towards the west bound lane and the southern side of the road.
…
Having regard to the evidence, I can be satisfied that the B Double the defendant was driving on the day of the accident was loaded with pine logs and had been driven from Cooee to the site of the accident in an unexceptional manner. The defendant had had no indication of any problem with his load. That load was secured by two air tensioned straps and one ordinary one. The total weight of the rig was slightly under that permitted. The defendant had not been seen to cross the centre of the road at any time. He was generally a safe driver. The vehicle he was driving had a speed limiter, which prevented the rig from being driven on the flat at a speed greater than 100 kph. Notwithstanding that limiter, it was possible to get the speed up to 105 kilometres per hour. On a downhill slope, the speed could be much greater and had indeed been up as high as 130 kph. The defendant concedes he might have hit that speed on Spring Hill.
The speed limit for the area of the accident was 80 kilometres per hour. The defendant told police he drove through the sweeping left hand bend immediately prior to the accident at between 80 and 90 kilometres per hour. … At the time of the accident it was dark. The weather was fine and the road surface was in good condition. On any version of events canvassed during the course of the trial, the impact between the B Double and the Pajero occurred after the exit from the bend."
Evidence suggesting negligence
The collision occurred after the truck had rounded the left hand bend and had commenced to travel along a section of the road that was practically straight. It is common ground that, as a result of the collision, the Pajero was forced backwards for at least 50 metres, and that it came to rest in a position off its side of the road, some 3.3 metres from the edge of the bitumen road surface at its closest point. It is convenient to describe the road and the marks on it by reference to the final resting place of the Pajero. The following information, all of which was unchallenged, can be derived from police photographs tendered on the trial, and from material prepared by Sgt Carrick, including diagrams, a scale plan, and an affidavit sworn by him for the purpose of an inquest into the death of Mr Cawthorn:
· The left hand bend ended 111 metres east of the Pajero.
· There were unbroken double white lines along the middle of the road from the bend, along the straight, to a point west of the Pajero.
· The furthest mark on the road surface east of the Pajero was a tyre mark that began 80 metres away from the Pajero, and 31 metres after the left hand bend.
· That tyre mark extended for 31 metres towards the Pajero. A diagram prepared by Sgt Carrick indicates that that mark ran along the double centre lines. As one travels in the direction travelled by the truck, the diagram shows that the mark commenced astride the left hand white line, curved out to the right slightly to a position where it was astride the right line, and curved back to its left, finishing astride the left line. On that diagram Sgt Carrick noted "scuff mark commences/conclude on dw lines". The mark can be seen in two photographs, nos 5 and 6. Neither of those photos shows the start or eastern end of the mark. They show the mark travelling along the right hand white line, and then veering to the left, onto the left line. At one point, where there are raised "cat's eyes" on either side of the double lines, part of the mark can be seen on the right hand "cat's eye" in photo 5, on the Pajero's side of the road. At the western end of this mark, it curved more sharply towards the truck's left side of the road.
· Where that mark ended, a gouge/scrape mark began in the middle of the road on the double white lines. It extended for about 10 metres along those lines in the direction that the truck travelled.
· On the Pajero's side of the road, commencing 50 metres east of it, and running towards it, there were six marks described by Sgt Carrick as "distinct pine log marks running parallel with the roadway".
· Commencing 46 metres east of the Pajero, and extending nearly 30 metres towards it, there were a series of intermittent scrape and gouge marks, first on the road surface on the Pajero's side, and then in the adjacent gravel.
· On the double white lines, commencing where the first gouge/scrape mark ended, about 40 metres east of the Pajero, there were a series of wide black marks, described by Sgt Carrick as "circular tyre marks". They extended along the double lines towards the Pajero for about 15 metres, moving slightly towards the truck's left hand side of the road. Sgt Carrick gave unchallenged evidence that these marks were made by a tyre rotating on its side.
· The easternmost debris from the Pajero was found off the road, on the Pajero's side, in the vicinity of these circular marks, ie 25 to 40 metres from the Pajero.
· There was a fluid spill mark on the Pajero's side of the road, beginning 32 metres from it, and ending 30 metres from it.
· On the truck's left hand side of the road, commencing about six metres west of the end of the circular tyre marks, there were more scrape/gouge marks. They extended for more than 40 metres, past the Pajero, to a point beyond it. They were more or less in line with the circular tyre marks. They crossed the truck's lane, starting near the centre lines, and extending to the edge of the bitumen, after which there was damage to an Armco railing to the left of the bitumen, and damage to a speed sign to the left of the bitumen.
· On the Pajero's side of the road, on either side of that vehicle, there were two more scrape/gouge marks, each about five metres long.
It can reasonably be inferred that the rear trailer left the tyre mark that ran for 31 metres along the centre lines, the gouge/scrape mark that extended over the next ten metres, the circular tyre marks, and the scrape/gouge marks that then extended across the truck's side of the road to the damaged railing and speed sign. It can also be reasonably inferred that the Pajero was forced back towards New Norfolk, and left the scrape and gouge marks on its side of the road, commencing 46 metres from its final resting place, and extending along its side of the road surface and into the gravel. No one suggested otherwise at the trial.
Some of the evidence as to the damage to the Pajero was relied on by the plaintiff, and found by the learned trial judge to support a finding of negligence. Sgt Carrick described that damage in his affidavit as follows:
"There was extensive damage to the front of this vehicle which extended rearward and involved virtually every panel. The roof of the cabin area had been forced backwards and compressed. Each tyre on the vehicle was deflated. It was noted that the damage in the area of the right front corner appeared to be the subject of greatest force and displacement. The inside of the metal rim (front right wheel) including the bead had separated from the rim proper. The cylindrical shape of the rim in one area had been distorted. The right hand front tyre was out of shape and exhibited a significant lateral tear across the tread. There were pieces of pine wood embedded in two metal stays at the front of the vehicle. The rim of the left wheel had also separated. There were several scrape marks on the passenger side of the vehicle suggestive of it having been on that side whilst being forced backwards on the bitumen surface."
Later in his affidavit, Sgt Carrick said the following in relation to a log found in front of the Pajero:
"One log was noted to be directly in front of the vehicle. Towards the end of this log were two (2) deep indentations with areas of fresh wood exposed. These indentations were certainly suggestive of having been made by the two metal stays on the front of the vehicle referred to earlier."
The evidence established that the fisherman, Mr Reid, was in the vicinity of the western end of the left hand bend. In an affidavit sworn on the day of the collision, he said this:
"… I heard a large truck traveling [sic] past me on the highway in the direction towards New Norfolk. A couple of seconds later, I heard what sounded like chains rattling and then I heard a very loud bang which sounded like a collision. The bang was so loud that it shook the small wooden jetty that I was fishing from."
He was cross-examined at the trial. He gave evidence to the effect that he was sure he could tell, from the sound of the vehicle, the direction it was travelling on the road, and that the vehicle was at least a couple of seconds past him when he heard the collision. Counsel for the respondent submitted to this Court that the evidence that this witness heard the sound of one impact, not two, was consistent with the respondent's case, and inconsistent with the hypothesis that there were two impacts – one when the Pajero hit the truck's wheel, and another when the trailer and its logs rolled onto the Pajero.
In his interview with Sgt Carrick, the appellant was asked some questions about his observations of the Pajero. He said he saw it coming in the opposite direction. When asked how far away it was when he saw it, he said he did not know, but suggested 10 or 20 metres. He said that it had its headlights on, and that they appeared to be on low beam. He said he did not know how close it was to the centre line. He said there was nothing to indicate to him that the other vehicle was being driven in anything other than a proper manner when it went past him.
There was evidence at the trial that log trucks have poor rollover stability. The first exhibit tendered was a report entitled "Report on Survey of Heavy Vehicle Rollover Stability in Tasmania" by Transport Engineering Research New Zealand Ltd, dated October 2006, and prepared for Tasmania's Department of Infrastructure, Energy and Resources ("the TERNZ report"). That report contains a lot of information about the "static rollover threshold" ("SRT") of various types of heavy vehicles. The SRT of a vehicle is defined as "the maximum lateral acceleration that the vehicle can withstand before all the wheels on one side of the vehicle lift off the ground". The author of that report, a well qualified engineer, expressed the view that "The one category that clearly has a low average SRT is the log jinker …".
The TERNZ report explains the concept of lateral acceleration as follows:
"When a vehicle is driven through a curve it experiences a lateral (or sideways) acceleration. The magnitude of this lateral acceleration depends on the vehicle's speed and the curvature and cross-slope of the curve."
According to the TERNZ report, the three main factors that affect SRT are "tyre track width, vehicle centre of gravity height, and roll stiffness". It is clear from that report that the height of the centre of gravity depends on the height and distribution of the payload. It appears from the report that the SRTs of 11 B-doubles were calculated for the purpose of the report, and that their SRTs varied from 0.34g to 0.43g, where "g" represents the acceleration due to gravity (about 9.807m/s2). The evidence in this case was not sufficient for the SRT of the trailer in question to be calculated.
Although Mr Elphinstone, the defendant's expert witness, believed that an impact from the Pajero caused the trailer to capsize, a statement by him that was tendered as an exhibit contained some expert opinion evidence that could be regarded as supporting the plaintiff's case. Mr Elphinstone said this:
"From other studies I have done there is little doubt a lot of truck drivers are driving closer to the roll over limit than they realise; commonly within 5 to 10kms of the theoretical rollover point. I do not doubt that in this case …".
The opinions of Mr Jamieson
The plaintiff/respondent's expert witness, Mr Jamieson, wrote two reports that were tendered at the trial, gave evidence confirming he adhered to the opinions he expressed in those reports, and was cross-examined. The significant points made in his reports can be summarised as follows:
· The typical duration of a crash varies between about 0.1 and 0.2 seconds.
· He assumed that the Pajero was travelling at 85Km/h which equals 23.6 metres per second; and that the log truck was travelling at 90Km/h or 25m/s.
· On those assumptions, the "closing speed" of the vehicles was 48.6m/s.
· If the "engagement time" for this collision was about 0.2 seconds, each vehicle would travel about 9.7 metres during that period.
· If the Pajero sideswiped the outer rear wheel of the rear trailer, it would have done so at a shallow angle, and would almost instantaneously have commenced to rotate clockwise.
· Given the "closing speed" of the vehicles (about 48.6m/s), the likely short engagement time (about 0.2 seconds), and the fact that a sideswipe could be expected to result in the Pajero rotating clockwise, Mr Jamieson's opinion was that, if a sideswipe had caused the rollover, the Pajero would "almost certainly" have rotated out behind the rear trailer before that trailer rolled over.
· The police photographs showed that the Pajero had been crushed from above and "bulldozed" backwards to its final resting place.
· Mr Jamieson's opinion was that it was "almost certain" that the rear trailer had rolled on top of the Pajero, with the outer rear wheel rim being damaged during the rollover.
· In his opinion, if the truck was driven at about 90Km/h, around a 200 metres radius left curve, and had a high centre of gravity as suggested by the TERNZ report, then it would have been "on the very threshold of a rollover".
· The eastern most tyre marks, visible in photographs 5, 6 and 7, are "not inconsistent with a trailer commencing to roll over".
· He inferred that the gouge marks on the Pajero's side of the road opposite the circular tyre marks, and east of them, were made by the Pajero.
· In his opinion the six pine log marks east of the Pajero's gouge marks indicated that the logs had left the rolling trailer prior to any impact.
· He inferred that the rear trailer had rolled onto the Pajero, and had scraped along with the Pajero underneath it until the Pajero was expelled off to the north as the log truck veered to its left, or towards the south.
· In his opinion photographs 16 and 18 showed that the right front wheel of the Pajero had been crushed from the top, and that was inconsistent with the hypothesis that the Pajero had sideswiped the right rear wheel of the rear trailer.
· He considered it "quite likely if not almost certain" that the rear trailer had commenced to roll just as the rig was exiting the left hand curve.
If that last hypothesis is correct, and if the truck was travelling at about 80 to 90Km/h, or about 22 to 25m/s, it would have taken the front of the rear trailer and the escaping logs no more than about 3 seconds to travel about 62 metres from the exit of the curve to the start of the pine log marks on the roadway.
The learned trial judge was unimpressed by Mr Jamieson's performance as a witness. She said he did not perform well. She commented that he raised new possibilities during his cross-examination, and that criticisms of him made during closing speeches were "to a large extent justified". However she did not reject his evidence in relation to the cause of the rollover.
Counsel for the appellant submitted to this Court that Mr Jamieson's evidence was so bad that it should carry no weight. One criticism was that he lacked "specialist expertise". He gave evidence that he had investigated a few rollover accidents involving B-trailer rigs, but he did not say that he had ever been to the scene of any of those accidents, nor that he had previously investigated a log truck rollover. His curriculum vitae indicated that he had specialised knowledge and personal experience in relation to go-kart racing, outback car rally driving, and off-road motor cycle riding, but no similar claim was made in relation to log truck rollovers. His curriculum vitae included a page-long list of publications and presentations, but many of them had nothing to do with log trucks or rollovers. However, in my view, it makes no difference to his credibility as an expert witness that his areas of greatest specialisation are of no immediate relevance. I regard it as very significant that he was awarded a degree described as "Master of Engineering Science (Traffic and Transportation)" in 1976, and that a large proportion of his professional work since then has related to traffic safety and traffic engineering. The other expert witnesses have apparently had more experience of log truck accidents, but Mr Jamieson had unrivalled academic qualifications and a much greater breadth of professional experience than theirs.
Mr Jamieson was criticised for not measuring the superelevation of the road surface accurately. Under cross-examination he gave evidence to the effect that he was a qualified surveyor; that the superelevation could have been measured accurately using surveying methods; that he did not do that; that he instead measured the superelevation using an inclinometer; and that he assessed the superelevation to be about 2 to 4 per cent. At the trial, counsel for the defendant tendered an extract from "road geometry" records of the appropriate Government department which set out, amongst other things, the superelevation of the road surface, measured at 10 metre intervals, and apparently measured to the nearest 0.01 per cent. I accept that measurements to that degree of accuracy could have been undertaken, but I do not think that precise information as to the superelevation was significant.
Mr Jamieson accepted during his cross-examination that an appropriate formula for the calculation of the lateral acceleration of a vehicle was:
V2 – e.
rg
In this formula,
· V represents the speed of the truck, expressed in metres per second.
· r represents the radius of the curve, expressed in metres.
· g represents the acceleration due to gravity, which is approximately 9.807m/s2. (That is to say, when an object falls towards the Earth, gravity causes its downward speed to increase by about 9.807 metres per second for every second that it continues to fall.)
· e represents the superelevation, ie the slope of the road, expressed as a decimal. (For example, if the curved roadway is cambered with a slope of 2 in 100, or 2%, the superelevation is expressed as 0.02.)
· The lateral acceleration calculated in accordance with this formula is expressed as a factor of g. (Thus, for example, a lateral acceleration of 0.2 or 0.2g is equal to 0.2 x 9.807m/s2.)
Since the evidence was insufficient for the SRT of the truck in question to be estimated with any precision, I think there was no need for Mr Jamieson to undertake a precise measurement of the superelevation. He said it was important to know what the superelevation was "within 1 or 2%", and that the inclinometer gave an estimate "plus or minus 1%". In my view that level of accuracy was sufficient in the circumstances. A variation of plus or minus 1% in the superelevation would result in a variation of only plus or minus 0.01g in the calculated lateral acceleration. I conclude that the criticism of Mr Jamieson's approach in relation to the superelevation was ill-founded.
Counsel for the appellant suggested that, for various reasons, Mr Jamieson's opinion evidence was unreliable. A 2007 edition of his curriculum vitae included an assertion he undertook regular investigations into specific crashes for a number of named clients, including the "Director of Public Prosecutors" [sic], but he conceded under cross-examination that he had not done any work for the Director of Public Prosecutions in his home State since 1999. In my view the inclusion of such an inaccurate claim in a curriculum vitae warranted a cautious approach to his evidence.
Mr Jamieson was criticised for advancing a "new and unproofed theory" during his evidence-in-chief. The transcript of the relevant part of his evidence reads as follows:
"I'm saying photograph 5 is consistent with a hypothesis that the driver of the combination – the log truck was rounding this left curve on the limit, it is my opinion that he probably would have let his rig run a bit wide on exit because of that speed, which is common, and I'm saying that course of action was prevented by the presence of the oncoming Pajero. He was then forced to pull back to his correct side of the road and in doing so tipped his B trailer on the Pajero."
In my view the theory that Mr Jamieson advanced in that passage was quite a plausible one. The truck could have rolled without its driver driving partly on the wrong side of the road, and without its driver swerving to avoid the Pajero, but one could not rule out the possibility that both those things happened. I think Mr Jamieson could validly be criticised for not having advanced that theory earlier. It would be wise to scrutinise a theory advanced at such a late stage with caution but, having done that, I have no reason to think that the theory was implausible. The language used by Mr Jamieson did not make it clear whether he was advancing a theory as to what possibly happened or a firm opinion as to what definitely happened.
Mr Jamieson's opinions were criticised on the grounds that he did not travel to the scene as early as the other expert witnesses did, and that he based his opinions on black and white photographs rather than colour photographs. I think it is fair to say that, ideally, a witness in his position should travel to the accident scene as early as possible, and should use colour photographs if possible, rather than black and white ones. However Sgt Carrick was meticulous in recording all that he could observe at the accident scene, and colour photographs were made available at the trial. As a result, I do not think it can be said that the timing of Mr Jamieson's visit to the scene and his viewing colour photographs made his evidence unreliable to any degree.
Mr Jamieson included in his first report a table showing the speed at which a sedan would lose traction on a curve with a 200 metre radius assuming various co-efficients of friction (from 0.1 to 0.8), and making different assumptions as to superelevation (0.01, 0.02 and 0.05). He was cross-examined at length by reference to that table. The appellant contends that that table and the evidence relating to it establish that the truck in question could not have rolled over without an external force having been applied to it. I do not think any such conclusion can properly be drawn from the evidence in question. In my view the table is of little use because it provides figures for a hypothetical sedan, not a log truck. The evidence establishes that a sedan being driven around a curve at an excessive speed will ordinarily behave differently from a truck. A sedan will tend to spin out horizontally, whereas a truck will tend to roll onto its side. Mr Jamieson also gave evidence that the co-efficient of friction for a truck will be greater than that of a sedan. He was only able to make a rough estimate of the co-efficient of friction for the truck in question. It is again significant that the SRT of the truck in question was unknown.
Mr Jamieson was cross-examined about the fact that the truck was equipped with a speed limiter which prevented it from being driven at a speed greater than 100Km/h on the flat. It was put to him that, because the speed of the truck was limited by that device, some external force must have caused the truck to tip. He responded to the effect that the limiter might not have been working but that, if it was, tightening of the cornering must have caused the truck to tip. He referred to the curved skid mark that can be seen in the photographs. In other words, he was saying that the course steered by the appellant must have involved a tighter cornering radius than 200 metres, with the result that the lateral acceleration of the truck exceeded its SRT. Counsel for the appellant criticised this evidence in their written appeal submissions. They said, "When pressed about his own maths he provided new theories that do not appear in his reports in order to bolster his opinion." It is true that Mr Jamieson said nothing in either of his reports as to the possibility that the course travelled by the truck involved a tighter cornering radius than the radius of the curve of the road. However there is no reason why that possibility should not have been considered at the trial. Although Mr Jamieson said something new in response to the cross-examination, it does not follow that what he said was wrong or unreliable. However it is fair to say that he could have been more thorough at an earlier stage.
Mr Jamieson was cross-examined about the proposition that a log truck incapable of travelling faster than 100Km/h, rounding a 200 metre radius curve with a superelevation of 2 per cent could not have rolled over without the application of some external force. In his answers, he pointed out that the suspension stiffness of the vehicle was unknown, that the position of its centre of gravity was unknown, and that its SRT was therefore unknown. In my view, those points were well made, and do not warrant criticism.
Counsel for the appellant made a number of criticisms as to Mr Jamieson's opinion that, if the Pajero had run into the outer right rear wheel of the rear trailer, it would have spun away so quickly that neither the trailer nor its logs would have fallen onto it. However those criticisms were not based on the laws of physics or any sort of scientific reasoning. It was argued that Mr Jamieson was not a log truck expert, that he said new things in his evidence-in-chief, that he said new things under cross-examination, and that he was evasive when cross-examined about the speed limiter. Essentially it was argued that, because he did not perform well as a witness, what he said in relation to fairly simple matters of physics should be given no weight. That does not follow. He no doubt had been taught more about physics than either of the other expert witnesses.
The opinions of Mr Elphinstone and Sgt Carrick
Mr Elphinstone went to the accident scene about six hours after the collision. His statement, to which I have referred, set out his observations and opinions. It formed the core of his evidence-in-chief, and was supplemented by only a little oral evidence. The important points made in the statement can be summarised as follows:
· In his experience, if speed is the cause of a log truck rollover at a left hand bend, "you see black tyre marks leading into the corner and the two marks then become one really heavy mark just prior to the vehicle overturning. … The marks on the right hand side become progressively heavier and the marks on the left hand side become progressively lighter so when the vehicle rolls you only have marks on the right had [sic] side."
· In this case, if speed was the cause, he would have expected to see heavier black marks on the right hand side with lighter marks on the left hand side.
· Rollovers caused by speed start from the rear end of the vehicle. If the vehicle is a B-double, as in this case, the B-trailer tips first.
· The rollover occurs just as the vehicle enters mid-corner.
· In this case, there were no tyre marks on the roadway "leading into the corner or prior to rollover".
· In his opinion, it appeared from the markings on the roadway and his inspection of the scene that the B-trailer "actually rolled as the rear trailer was exiting the corner".
· He inspected the B-trailer. He did not find any mechanical fault. He found a deflated tyre on the right at the rear.
· There was a very big indentation in the rim of the right rear wheel of the rear trailer. The only other times that he had seen dents that big in rims were times when a wheel had had a major impact.
· There were no scrape marks on the rim at the point where it was dented, but the remainder of the rim had scrape damage. The right hand middle and right hand front tyres of the rear trailer also had scrape marks on them and scrape damage to their rims.
· The tyre with the dented rim did not have the same scrape marks. He inferred that that was because it was flat, and had not been inflated enough to scrape the side wall along the roadway.
· Inspection revealed that the tyre with the dented rim "had not been run flat".
· That tyre had marks on the tread "that indicated that it had been impacted very hard and there were scuff marks on the tread which indicated they had been made by something metal".
· He concluded that the rear trailer had rolled over because it was hit by the Pajero to the right rear wheel. He reached this conclusion because of "the absence of tyre markings moving into the corner and the fact that the rollover did not occur as the vehicle entered the corner or mid-corner but as it was leaving the corner".
· He observed some marks up the front side on the right hand end of the rear bolster of the rear trailer. Those marks indicated contact with metal. In his opinion such damage was "not really in keeping with trailer rollovers".
· In his opinion the trailer would not have rolled without an outside cause.
· In his opinion, at the point of impact, the trailer "would still not have recovered from rounding the corner and the impact of the Pajero hitting it would be enough to cause it to roll over".
· The damage to the Pajero was consistent with the trailer having rolled over as a result of the Pajero striking its right rear wheel.
Sgt Carrick interviewed Mr Elphinstone on 21 September 2006, about three weeks after the accident. A transcript of that interview was tendered as an exhibit. During that interview, Mr Elphinstone described similar observations and advanced similar opinions to those expressed in his subsequent statement.
Sgt Carrick's evidence as to the cause of the collision was given during his cross-examination and re-examination. The significant aspects of that evidence can be summarised as follows:
· There were no markings relevant to the collision on the approach to the left hand bend or on the bend itself.
· If the rollover had been caused by high speed, he would have expected to see tyre scuff marks on the approach to the corner, going towards the apex of the corner, in a curved pattern, getting wider as they proceeded towards New Norfolk, and extending onto the incorrect side of the road.
· He believed the damage to the right front corner of the Pajero was caused by a horizontal impact.
· He believed that the indentation to the damaged trailer wheel rim must have been caused when the wheel was in an upright position, and that otherwise there would have been grazing and damage to the entirety of the rim.
· He believed that the Pajero had collided with the rear wheel rim after the truck had exited the corner.
· He believed that impact occurred to the Hobart side of the furthest tyre mark from the Pajero.
· He believed that mark was made as a result of the impact with the Pajero, and consequent weight transfer onto the centre tyre of the tri-axle at the rear of the B-trailer. (The word "tri-axle" refers to the wheel assembly at the rear of the trailer, which comprised three axles, each with two wheels on the right and two wheels on the left.)
· He believed the Pajero commenced to rotate clockwise, but that it became trapped under the B-trailer and its falling load, so that it was dragged back towards New Norfolk rather than spinning off.
· In the days following the collision he returned to the scene and viewed log trucks and other traffic travelling towards New Norfolk and safely rounding the corner in question when travelling at the speed limit. He believed that one could safely negotiate that corner at a speed above the speed limit.
· He found it difficult to come to the conclusions that he reached about the point of impact, the location of the impact, and the like.
· It was a little unusual not to find any marks on the road surface for a distance after the point where a crash or collision occurred, but that did happen in some cases.
· If the impact occurred at the beginning of the first tyre mark, the marks on the road indicated that the trailer travelled 41 metres before it landed on its side on the road surface. In his opinion the trailer must have capsized sufficiently to trap the Pajero underneath itself within a very, very short period of time.
· In his opinion the impact occurred in the centre of the road.
Counsel for the appellant made submissions to this Court to the effect that Sgt Carrick's evidence as to the damaged trailer wheel rim suggested a significantly wider angle of contact than the shallow angle discussed by Mr Jamieson. Sgt Carrick did not express any opinion as to the angle between the two vehicles at the moment of impact but, in his re-examination, expressly disagreed with Mr Jamieson's hypothesis that sideswipe impact would have resulted in the Pajero rotating clockwise out behind the back of the trailer before it commenced to capsize to any significant extent.
The evidence of the appellant
As I have said, Sgt Carrick conducted an interview with the appellant six days after the collision. He told Sgt Carrick that he was travelling at a speed between 80 and 90Km/h; that his truck was within a foot or two of the white centre lines, on the left hand side of the road; that the wheels of his truck or trailer did not at any time cross onto or over the white lines, to his knowledge; that he believed the trailer wheels would have followed in the same line as the truck wheels; and that he believed that, rounding the left hand bend, the wheels of the B trailer would have moved out to the right, but only by about a quarter of the width of a wheel (a quarter of about 10 inches). At the trial he gave evidence that he had told the truth in his interview; that when he entered the corner he did not take any line different from that which he had taken previously; that he was not going at a higher speed than usual; and that there was nothing different about his load in its behaviour. He denied moving towards the centre of the road in order to proceed around the left hand bend. He gave evidence to the effect that he maintained a uniform speed. He denied that it was possible that his vehicle was traversing the centre line. He denied altering his steering prior to the impact. He said this:
"I never deviated on that corner in a perfect line within a foot to two foot of the side of that white line. I never deviated. I went around that corner in a perfect line within a foot to two feet on that side of that white line, I never deviated anywhere."
He evidently gave his evidence in a credible manner. He was cross-examined about his speed, the position of his vehicle in relation to the centre lines, and the possibility of altering his steering. He was unshaken as to his speed and steering, but made concessions as to the position of his vehicle in relation to the centre lines. After being shown the police photographs during his cross-examination, he accepted that his right rear tyre had gone onto the wrong side of the road, said that he did not know "what went on back there", and said that the rear trailer might have "tracked out". However he denied that he had taken a "wide berth" when rounding the left hand bend.
Why the trailer capsized
The learned trial judge rejected the hypothesis that the trailer capsized because the Pajero collided with its outer right rear wheel. In my view she was right to reject that hypothesis, for the following reasons:
· As her Honour found, the front of the wheel with the dented rim was no more than a metre from the rear of the trailer. It appears from Sgt Carrick's scale plan that the Pajero was about 4 metres long. If the combined speed of the two vehicles was anything like 48.6m/s, as estimated by Mr Jamieson, the trailer could not have rolled to its right quickly enough to trap the Pajero and cause the damage that it did. According to the appellant's evidence, he might have been travelling as slowly as 80Km/h, and there was no evidence at all of the Pajero's speed. Even if their respective speeds had been 80Km/h (or 22.2m/s) and 60Km/h (or 16.7m/s), their combined speeds would have been 38.9m/s. On any realistic estimate of the speeds of the two vehicles, the trailer could not have rolled to its right quickly enough to trap the Pajero if the first impact was with the trailer's outer right rear wheel.
· If Mr Elphinstone and Sgt Carrick were correct, the trailer and the Pajero travelled more than 30 metres after impact before leaving any scrape marks, gouge marks, or debris on the road surface. That was not impossible, but I consider it most unlikely that no such marks or debris would have been left over so long a distance.
· The pieces of wood observed by Sgt Carrick that were embedded in the two metal stays at the front of the Pajero, and the corresponding marks observed by him in the log in front of the Pajero, suggest that one or more logs had fallen from the capsizing trailer to that level before the front of the Pajero hit anything. If the front of the Pajero had passed the front of the logs that fell from the rear trailer before any collision occurred, there would be no sensible explanation for these pieces of evidence.
· The fact that there were six pine log marks on the Pajero's side of the road to the east of any debris from the Pajero, to the east of the fluid spill mark, and to the east of the two scrape/gouge marks on that side of the road, suggests that logs had fallen from the capsizing trailer before the Pajero hit anything.
· Mr Jamieson had superior academic qualifications to Mr Elphinstone and Sgt Carrick. Mr Jamieson had a master's degree in engineering science, had studied physics, and had over 30 years' professional experience as an engineer. Mr Elphinstone had no tertiary qualifications and had not studied physics. Sgt Carrick had successfully completed courses relating to crash investigation, reconstruction and speed analysis. After many years as a police officer, with experience attending road accident scenes, he was trained in accident investigation from 2001 to 2004, and became the officer in charge of Accident Investigation in that year. Mr Jamieson's superior qualifications in the field of physics provided good reason to prefer his opinions to those of the other experts, particularly as to how the Pajero would have behaved if the first impact had been with the rear trailer's outer right rear wheel.
· There was nothing in the evidence to suggest any reasonable explanation for Mr Cawthorn to have driven the Pajero into the outer right rear wheel of the rear trailer. There was speculation at the trial as to whether he might have swerved to avoid an animal. The chances of him having swerved to avoid an animal and misjudged the position of the rear of the trailer are very remote. Motorists rarely swerve into the sides of oncoming trucks. It is inherently improbable that Mr Cawthorn did so on this occasion. It is significant that the appellant saw no swerve, and that the impact must have occurred within a fraction of a second after the two drivers passed one another. The chances of Mr Cawthorn having swerved into the side of the trailer, not at a shallow angle as discussed by Mr Jamieson, but at a much wider angle as Sgt Carrick's evidence arguably suggested, are particularly remote.
Once one excludes the possibility that the trailer capsized as a result of the Pajero colliding with the right rear tyre, I think one must conclude that it capsized because of the speed at which it was driven and/or the manner in which it was driven. The uncontroversial evidence does not leave any other rational hypothesis open. That is to say, there is no other sensible explanation for the trailer having capsized.
It is clear from the TERNZ report and Mr Jamieson's evidence that a log truck or a log trailer that rounds a corner will begin to roll over only when its lateral acceleration exceeds its static rollover threshold SRT. At the moment when that occurs, the wheels on one side start to leave the ground.
The SRT of the trailer in question would have remained constant throughout its journey, at least so long as its load remained stable. The load was held in place by the straps that the learned trial judge referred to in the passage from her reasons that I have quoted above. According to Mr Elphinstone's evidence, those straps would have given way at the time of the accident, not before. It was not suggested at the trial that any direct external force caused the straps to fail. It appears to have been common ground that the straps failed because the trailer was capsizing. The SRT of a loaded log trailer depends on the height of the load, the distribution of the load, and the vehicle's suspension. There was no precise evidence as to those matters, no doubt because measurements could not be made after the load was spilled. The logs did not just fall onto the road. Some went down the embankment and even into the river.
It is clear from the TERNZ report and Mr Jamieson's evidence that the lateral acceleration of the trailer depended on the slope or "superelevation" of the road surface, the speed of the vehicle, and the radius of the curve around which it was travelling. Thus the faster a truck is driven around a corner, the greater its lateral acceleration becomes. There was evidence in the extract from the departmental records that the slope or superelevation of the road surface became less as one travelled out of the curve and onto the straight. And the further a vehicle's steering wheel is turned to the left when rounding a left hand curve, the smaller the relevant radius becomes, and the greater its lateral acceleration becomes. It must follow that it rolled over because its lateral acceleration increased to such an extent as to exceed its SRT, and that that can only have happened as the result of three possible factors: the speed at which the appellant drove, and/or the course that he steered, and/or the reducing slope of the roadway as the truck moved into the straight. From one perspective, the appellant must have turned the steering wheel too far to the left for the vehicle not to roll at the speed at which he was travelling. From another perspective, he must have travelled too fast for the vehicle not to roll, having regard to the tightness of the left hand turn that he was making.
Although the appellant denied altering his steering prior to the collision, the evidence of tyre marks on the wrong side of the road, and his concession that those marks had been left by his rear trailer, tend to support a hypothesis that he in fact did turn his steering wheel to the left shortly before impact, thereby increasing the lateral acceleration of the trailer at a critical time. The evidence is not strong enough for a finding to be made to that effect, but the hypothesis appears to be a realistic one.
Counsel for the appellant submitted that the evidence as to the actual or possible speed of the vehicle, the radius of the left hand bend, and the superelevation of the road surface established that the vehicle's lateral acceleration could not have exceeded its SRT without the application of an external force, ie, that it would not have capsized unless an external force had been applied to it. I disagree. Although the appellant said he was travelling at 80 to 90Km/h, it is not impossible that his speed was about 100Km/h, or 27.777m/s, at the exit from the left hand bend. The departmental road geometry records reveal that the bend had a radius of 195 metres, and that the superelevation was 6.27 per cent at the last measured point on the bend, and 4.26 per cent at the first measured point on the following straight, 10 metres further west. Applying the formula
V2 – e
rg
the lateral acceleration of a vehicle travelling at 27.777m/s around a 195 metre radius curve when the superelevation is 0.062, is calculated as follows:
27.7772
195 x 9.807
– 0.062 = 0.341g.
If the SRT of the vehicle had been 0.34, and if it had been travelling at 100Km/h, following the curve of the road, it would have commenced to capsize at the exit from the corner. If the appellant had not been following the line of the road, but had been cornering more tightly, it would have commenced to capsize at a lower speed, or despite a higher SRT. If the appellant had still been steering to the left to the same extent at the point where the superelevation was only 4.26 per cent, the lateral acceleration would have increased by 0.02g. This calculation demonstrates only that a rollover without the application of an external force was possible. If I am correct in concluding that the rollover occurred without the application of an external force, this calculation suggests that the appellant's evidence was incorrect as to his speed and/or his steering.
The evidence of Sgt Carrick and Mr Elphinstone strongly suggests that this was not a typical log truck rollover. Both of those experts would have expected to see tyre marks leading into the bend. Both would have expected the trailer to capsize at or near the apex of the bend. In my view, their evidence strongly suggests that log truck rollovers normally result in the sorts of road markings that they would have expected to find, and that this was not a typical rollover. Mr Jamieson suggested a number of possible explanations for the trailer capsizing at a later stage, in relation to the rounding of the bend, than would ordinarily have been expected. One relevant factor is that the appellant might have "run out of" superelevation as he rounded the corner and as the road became flatter. The less the slope or superelevation, the greater the lateral acceleration. Another is the possibility as Mr Jamieson suggested, that the appellant swerved or steered to the left at a late stage in the rounding of the corner, possibly because of the approach of the Pajero. That was no more than a hypothesis. Of course the appellant denied swerving or steering to the left. One can only speculate as to why this rollover was atypical. But the fact remains that the only sensible explanation for the rollover is that, because of the SRT of the trailer, the slope of the road, the speed of the vehicle, and the course along which it was steered, its lateral acceleration exceeded its SRT, and it therefore capsized.
I am unable to make precise findings as to the speed of the truck or the course steered by the appellant, and I accept that there are good reasons to approach Mr Jamieson's evidence with caution, but I am satisfied that he was correct about the cause of the capsize of the trailer.
Was the appellant negligent?
The appellant was an experienced professional log truck driver. He was not cross-examined about his knowledge of the risk of a log truck capsizing. This accident occurred before the publication of the TERNZ report. However it was no doubt reasonably foreseeable on his part that a rollover could occur if he went too fast around a bend, or steered too tightly to one side for the speed at which he was travelling. Plainly, he did not allow a sufficient margin for safety and instead, in the words of Mr Elphinstone, drove "closer to the rollover limit" than he should have. I therefore think the learned trial judge was right to conclude that he was negligent in that he "drove in such a manner and at such a speed as to cause the second of the two trailers to roll over and into the path of the vehicle driven by the deceased".
There is no need to determine whether her Honour should have found any of the allegations in the other particulars of negligence proven.
Conclusion
Counsel for the appellant did not contend that there should be any reduction for contributory negligence if the learned trial judge's finding of negligence was affirmed by this Court.
I would dismiss the appeal.
File No FCA 19/2010
SCOTT PETER RAWLINGS
v WENDY MARGARET CAWTHORN
REASONS FOR JUDGMENT FULL COURT
PORTER J
17 December 2010
I agree with the reasons for judgment of Blow J and would also dismiss the appeal.
File No FCA 19/2010
SCOTT PETER RAWLINGS
v WENDY MARGARET CAWTHORN
REASONS FOR JUDGMENT FULL COURT
WOOD J
17 December 2010
I have had the advantage of reading the reasons for judgment of Blow J. I agree with those reasons and would also dismiss the appeal.
Key Legal Topics
Areas of Law
-
Negligence & Tort
-
Evidence
Legal Concepts
-
Negligence
-
Causation
-
Duty of Care
0
12
0