Reed v Fleming - [2001] WADC 109

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: REED -v- FLEMING [2001] WADC 109

CORAM: VIOL DCJ

HEARD: 1 & 2 MAY 2001

DELIVERED : 16 MAY 2001

FILE NO/S: CIV 2461 of 1999

BETWEEN: ALAN REED
Plaintiff
AND
JAY DOUGLAS FLEMING
Defendant

Catchwords:

Negligence - Motor vehicle - Plaintiff's vehicle colliding with rear of defendant's truck - Effect of oil on road from truck - Whether plaintiff contributorily negligent - Turns on own facts

Legislation:

Nil

Result:

Defendant negligent - plaintiff 50 per cent contributorily negligent

Representation:

Counsel:

Plaintiff: Mr B G Bradley
Defendant: Mr J R Brooksby

Solicitors:

Plaintiff: Bradley & Bayly
Defendant: Greenland Brooksby

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

Nil

Case(s) also cited:

Maiolo v Hansen 10 MVR 200
Metropolitan Water Sewerage and Drainage Board (NSW) v Smith 11 MVR 189

VIOL DCJ: The plaintiff, who is a 30 year old brick paver, was injured in a motor vehicle accident ("the accident") on 23 June 1997. On that occasion, a Toyota Corolla van driven by the plaintiff collided with the rear of a prime mover truck and trailer ("the truck") driven by the defendant. The accident occurred in the north bound left hand emergency lane of the Roe Highway at Forrestfield. The plaintiff alleges that, because of the negligence of the defendant, oil leaked from the truck onto the surface of the highway and, thereby, created a hazard. It is said that the defendant was aware of the leaking oil for some 250 metres before the truck was brought to a standstill on the left verge of the highway. The plaintiff, who was driving in the same direction along the highway, says he lost control of the van and collided with the rear of the truck as a result of encountering the hazard in the form of the oil spilt on to the road. The specific allegations of negligence are set out in par 2(iv)(a) to par 2(iv)(i) of the Statement of Claim.
At trial, allegation 2(iv)(f) was not seriously proceeded with, although comment was made by counsel for the plaintiff on the failure alleged therein. Although, in his opening, counsel for the plaintiff suggested that allegations 2(iv)(a) and (g) were perhaps those in respect of which the evidence would concentrate, there were other allegations which were the subject of evidence and which were required, in the end, to be considered by me.
The allegation in sub‑paragraph (a) (ie. the defendant failed to properly and adequately fit the oil filter to the engine of the truck) and sub‑paragraph (b) (ie. failed to follow the directions of the oil filter manufacturer when fitting the oil filter to the truck) involved the two possibilities of either over tightening the oil filter or under tightening it ie. leaving it loose.
The defendant denied the negligence alleged and denied, in particular, that "he was aware that oil was leaking from his truck" and that "oil leaked from his truck on to the road". As to the latter, it was accepted by counsel for the defendant that this, in fact, took place.
The defendant alleged that the plaintiff was contributorily negligent in that he "lost control of his vehicle on the roadway and, as a result, collided into the rear of the defendant's vehicle" (par 6(a)) and "failed to properly manage and control his vehicle so as to avoid a collision with the defendant's vehicle" (par 6(b)).
As the evidence unfolded, the main issues at trial concerned the quality of the plaintiff's driving, the cause of the filter falling off the truck, and the extent to which oil from the truck and/or filter caused the plaintiff's vehicle to collide with the truck.
Questions of credibility and reliability of the witnesses also arose, particularly as to the plaintiff and defendant.
The issues can be dealt with in temporal order.
It is not disputed that the defendant fitted the filter to the truck on or about 19 March 1997 ie. some 12 weeks before the accident; in that time, the truck travelled some 11,000 kilometres. The defendant testified that he had fitted the filter in accordance with the manufacturer's instructions ie. giving it a three‑quarter turn, using his hand (or hands). He had also checked the filter (ie. tested it for looseness or otherwise and for any oil leaks) during the routine servicing between the dates above. As to the defendant's evidence, as I find later, it is my view generally that he was, in some important respects, unreliable. On the basis of my findings as to the defendant's evidence and in the light of the expert evidence and the facts generally, it is not possible for me to accept the defendant's evidence as to his installation of the filter.
This conclusion is strengthened and confirmed by the clear preponderance of the expert opinions. They were faced with the facts that the filter, because of metal fatigue, fell off the truck, that the fatigued areas of the filter were in and around the "female" flange into which the "male" part of the adaptor plate was screwed.
Mr Alan Smith is an experienced chartered engineer with relevant experience, both theoretical and practical. It was his view that the filter had been "over tightened" when screwed on to the adaptor plate - this causing (with normal working load) the thin female thread to suffer fatigue failure causing cracks which ultimately led to the thread failing and the filter falling off the truck. He would not concede that the filter had been fitted too loosely. Mr Smith, as with the other expert witnesses, was a very credible and reliable witness.
Dr Stephen Chew, a mechanical engineer with considerable relevant experience, agreed with the opinion of Mr Smith ie. that at the time of the installation, the filter had been over tightened. He was unable to confirm (without further tests) the "less probable chance" that the fatigued cracking had been caused by a manufacturing defect. Dr Chew agreed that fatigue could have been caused to the screw by the filter being fitted too loosely (ie. less than the manufacturer's instructions). He thought, however, that if this had been the case, oil seepage would have been visible before the filter fell off and would have worked itself loose under vibration, and, therefore, also possibly visible or, at least, could be ascertained on feeling it.
Mr Martin Sims, called by the defendant, was a well qualified and, again, credible and reliable witness with considerable relevant experience. He concluded that the filter had been loose, thus imposing larger stress ranges than normal on the thread region leading to fatigue followed by tearing and the ultimate falling off of the filter. The filter had been, he opined, "insufficiently tensioned". He also accepted the possibility that the filter became loose due to the thread tearing, possibly due to over tightening, although he gave a more technical definition of that term. He discounted the possibility of manufacturing fault - as to this, in his evidence he suggested that any enquiry into the possible manufacturing defects would involve considerable speculation.
The expert opinions must be looked at with the background that the manufacturer's instructions as to the extent of tightening required are clear - the filter has markings on it showing the "turns" required. They are very specific and, obviously, are intended to confirm the underlying need for the filter to be screwed on exactly - not too loose and not too tight.
The extent of the expert opinions provide a strong basis to conclude that the filter was either over tightened or significantly under tightened - whichever it was, I am satisfied that the filter was installed contrary to the manufacturer's clear instructions. Further, I am not satisfied that the defendant either checked or corrected any problem during the maintenance in the period between the installation and the accident.
Because of these failures, the evidence established that approximately 500 metres from the accident, the filter fell off the truck. Although the defendant said that he found the filter about 160 to 200 metres from the intersection of Roe and Tonkin Highways, Constable Jones measured the oil track for about 500 metres from the accident scene and towards that intersection. There would have been an initial and considerable loss of oil and, thereafter, a steady loss due to the continued operation of the truck's pump until the oil and filter was emptied. There was an amount seen under the truck where it came to rest at the accident scene and the photographs show some oil tracks for approximately 40 metres on to the road. As previously mentioned, Constable Jones said that he saw an oil track up to 500 metres from the accident scene. Surprisingly, none of the other witnesses confirmed this but, it is clear, none of them were specifically looking for the oil track as Constable Jones was, in the course of his enquiry into the accident.
The oil track would not have been particularly wide or voluminous - assuming (as seems reasonable) five litres or so dropped out at the start and the same amount dropped at the end, this leaves approximately 20 to 25 litres to be dropped over a distance of 500 metres ie. 0.05 a litre per metre. The oil track on the evidence would have become less as the accident site got closer - at 100 metres, it would seem a reasonable conclusion that the oil track would have been approximately the same as that shown in photo A1 and photo A2.
I now turn to the accident itself. In doing so, I will consider the quality of the plaintiff's driving. The plaintiff said that his van was in good condition and that he was driving in the right hand lane on Roe Highway to Swan View at about 10.00 am on 23 June 1997. It was a straight section of road and it was a fine dry day. There was a 100 kilometre limit and there was a steady flow of traffic. He decided to move lanes, passed some traffic and went back to the left hand lane. He was travelling at about 100 kilometres an hour. Before he moved, he looked in his rear vision mirror, began to change lanes and the car lost all control - it would not steer, he could not brake ie. the brakes would not work. Suddenly, he saw the truck in front and hit the back corner of the truck's trailer. He said the ground to the left of the truck was hard and compact next to where he had stopped. In cross‑examination, the plaintiff said that the accident was about 600 to 700 metres from the traffic lights at the intersection of Tonkin Highway and Roe Highway and that he decided to change lanes about 400 to 600 metres after the lights. After he got into the left hand lane, he was about 50 to 70 metres from the back of the truck. He could not remember if he indicated, although he thought he usually did. He could not be sure whether there were any cars behind him in the right hand lane. Whilst he was in the right hand lane, he did not apply the brakes. As to the truck itself, he said the first time it registered to him was when he knew he was going to hit it. At that time, the truck was stationary in the emergency stopping lane. He had lost control of the truck between 50 and 80 metres from the truck, probably closer to 50 metres. He denied braking heavily in the right hand lane. He also denied losing control in the right hand lane. During his cross‑examination, I gained the strong impression that his answers were aimed at avoiding any liability for the accident on his part and that he was rather a "smart" witness. He agreed that he could have lost control about 120 metres from the truck and knew that he had lost control when he got into the left hand lane but did not know the exact distance.
Graham Alan Hardman is a mechanic and was in the left hand lane, driving his utility at approximately 100 kilometres an hour. He said that a car in front of him ie. the plaintiff's car, was in the right hand lane going approximately the same speed several cars ahead of him. The plaintiff's car started to merge over into his lane and then it "veered towards" the emergency stopping lane and then hit the truck. He did not see anything abnormal at first about the plaintiff's vehicle's movements but then it began to veer. He thought it was about 200 metres from the truck when the plaintiff's car started to change lanes. He thought the oil on the road was roughly to the middle of the left lane but did not trace back how far it went. The truck and the trailer, he thought, were over the white line in the emergency stopping lane and no part of the truck protruded over the white line.
He said that initially, the plaintiff's car seemed to execute a normal manoeuvre into the emergency stopping lane. He thought that the plaintiff may have been looking for the truck and was going to park behind it. He said that the plaintiff's car began to act abnormally when it was about to hit the truck and it was only then that the brake lights came on when the wheels were over the white lane. Mr Hardman said the plaintiff left it too late to brake to park behind the truck. His own car handled normally the whole time (and was apparently unaffected by any oil). Once he saw the collision, he swerved to miss both vehicles and was half over the left and right lanes. In cross‑examination, Mr Hardman said he was about 200 metres from the truck when the plaintiff began his manoeuvre to pass him. Mr Hardman was required to reduce his speed to allow the plaintiff extra room and the plaintiff's car was initially two to three car lengths from him when it began to change lanes. This suggests that the plaintiff began the change of lane quite quickly. In Mr Hardman's view, the plaintiff left it too late to brake and, at that point, Mr Hardman thought that there was going to be an accident. In his view, there was a very small trail of oil left by the truck.
Senior Constable Jones attended the accident and said that the defendant's truck was parked three to four inches to the left of the white line ie. completely off the road. The oil slick was 500 metres in length. It was not a huge oil slick and was more or less in the centre of the left lane. The width of the oil train was no greater than one metre, if that, and was gradual and it tapered out towards where the accident occurred. The one metre wide was at its longest point about 500 metres from the accident scene.
The defendant said that he was driving his prime mover about 90 to 95 kilometres an hour and noticed oil coming out of his truck by looking in the rear right driver's mirror and seeing it on the fuel tank. He checked the oil pressure gauge and saw it was dropping and turned the motor off, leading him, in due course, to run on to the left hand side of the road and then pull off the road and park two feet inside the white line. He got out of the truck, checked under it and saw that "there was a problem with the filter". There was a reasonable traffic flow and he felt, in the 15 minutes or so he was parked before the accident, about 100 cars went past. He decided to put out his emergency triangles and had to look for some rocks to put on top of the signs - which, apparently, had the tendency to blow over in strong winds and with the creation of wind by cars coming past. He heard the squealing of brakes and saw the defendant's car sliding towards the back of his truck. At that point, he was about 40 feet from the rear of the truck on the median strip looking for the rocks. He said the car was in the right hand lane when it braked and began to veer and seemed to veer left into the left hand lane and then went into the back of the truck.
He said that before he stopped, he drove along the emergency stopping lane for about 100 metres so that he could find a reasonably wide limestone verge for his truck to rest on, at least one wheel. This was because of the weight of the truck which was, at that time, about 59 to 60 tonnes. He could not use his gears to slow down because, having turned the engine off, he had no power steering and had to be very careful with the manual steering.
Ultimately, he had to get the truck towed to a mechanic but, on the way back to pick up the truck, he saw the filter about 150 to 200 metres from the corner of Tonkin Highway ie. 750 to 800 metres from the accident. In fact, when he started his truck, he found that the motor turbo had been damaged, due to it not being slowed down according to the protocol required by the manufacturer. He spoke of putting the filter in correctly and checking it during his servicing approximately two or more times between March and the accident. He said there was no oil on the hard shoulder behind the truck, it was underneath, and said there was not oil directly behind the truck - I cannot accept this statement as there was clearly oil on the road behind the truck in the photographs when taken a few days after the accident. He said that there was oil in the left lane and he looked there up to 40 to 50 feet while he was looking for the rock. Once again, I am unable to accept this in the light of the evidence generally and, in particular, Constable Jones. Further, he said that when he returned to come along again in the same direction along Roe Highway, he did not see any oil on the road - once again, I find this difficult to accept. His evidence that he was on the median strip at the time he heard the accident was contrary to a statement he had given previously on 25 July 1997; in that statement he said that he was walking back along the verge at the time the accident took place. In addition, he did not say in the statement that he was in the median strip at the time of the accident. Additionally, there was no mention in the statement that he shut down the engine when he saw the oil in the rear vision mirror.
The defendant said that he was unable to stop in the cleared area left of the emergency stopping lane because of the possibility that the truck could have rolled over as it was slowing down. If it had been sealed, he would have driven on to it further off the road because it would have been safer there. I accept the defendant's evidence in relation to the position where he stopped.
He agreed that the oil was still dripping from the truck when he had stopped, which confirms my view that he must have seen some oil from the truck up to the position at which the truck stopped. The defendant was credible in some areas of his evidence but, generally, he was a person who, in my view, was unreliable, in the sense that he appeared to be intent on avoiding any liability for the accident, particularly in relation to the filter and the oil spill.
Ms Linda D'Cunha was driving in the right hand land and following the plaintiff. There was a steady flow of traffic and she was driving at about 100 kilometres an hour. She said the plaintiff's car (without indicating), suddenly swerved to the left and started to slide in the left hand lane - the swerve was quickly to the left. The driver was trying to regain control and then went into the back of the truck. Ms D'Cunha said that the plaintiff's car was still in the right hand lane when it swerved. She had no trouble handling her car on the highway and she saw nothing on the road to cause the vehicle to swerve - she had no idea why it swerved. She said that the plaintiff's car swerved to the left from the right hand lane about at least 100 metres before it hit the back of the truck. In cross‑examination, Ms D'Cunha said that the plaintiff's car crossed diagonally into the left land and was gliding, with the plaintiff frantically trying to correct the steering on the vehicle, which continued to move across. She had always been in the right hand lane and, in fact, stopped on the verge in the right hand lane with her hazard lights on.
In a situation where I have some reservations as to the reliability of both the plaintiff and the defendant, it is not an easy task to make findings as to exactly what occurred at the time of the accident, what caused the accident and, of course, the quality of driving of the plaintiff.

I have the advantage in this case, however, of evidence from independent witnesses who appeared to be giving their evidence honestly and to the best of their memory. What is clear is that the plaintiff's car was in the right hand lane and was travelling at approximately 100 kilometres an hour. The plaintiff's vehicle then veered into the left hand lane. Although Mr Hardman said that the plaintiff's vehicle moved into the left hand lane rather than veering, I prefer Ms D'Cunha's evidence because she was directly behind the plaintiff's vehicle, had a very good view of it and was very firm in her memory of the movement. Further, I got the impression from Mr Hardman that the plaintiff's vehicle moved to the left quicker than was appropriate in the circumstances. I am unable to determine what exactly caused the plaintiff's vehicle to swerve into the left hand lane, however, what is clear is that it was not caused by any oil spill from the defendant's truck. The clear conclusion from the facts is that the plaintiff made a movement to the left which evidenced a failure to properly manage and control his vehicle at that point - the movement to the left was not the movement of a vehicle of which the driver was in proper control.
Having veered into the left hand lane, it is a reasonable inference to draw from the evidence that the vehicle was not travelling in a straight line but continuing with the veering, the wheels were turning at an angle to the road itself. At this point, it can be accepted on the evidence that the plaintiff's wheels, whether it be one or more, came into contact with the oil track from the filter. At this point, the plaintiff, for a reasonably short period, lost control of the vehicle completely, saw the truck and panicked, and then forcefully applied his brakes. By this time, the vehicle was within 50 to 60 metres of the defendant's vehicle and was moving at the same time in a line albeit to a degree sideways, towards the rear of the defendant's vehicle. At a distance from 50 to 60 metres from the defendant's vehicle, the plaintiff's vehicle was, in effect, under the influence of the oil slick and the plaintiff was unable to correct the sliding motion of his vehicle.
From this analysis and factual finding as to the cause of the accident itself, it is clear that there were two major causes of the accident. The first was the initial movement by the plaintiff from the right to the left lane which, as I have already found, involved a failure to properly control the vehicle but, thereafter, the plaintiff became unable to correct the vehicle which was then placed in a position where the plaintiff could not hold it in a straight line in the left hand lane as a result of contact with the oil.
It is, therefore, the position, in my view, that although the defendant had been negligent for failing, inter alia, to properly install the filter, the plaintiff was also contributorily negligent.
As to the negligence of the defendant generally, it is appropriate to consider each of the allegations of negligence in par 2(iv).
It is clear from my findings already, that allegations (a), (b) and (c) have been made out. As to allegation (d), I am not satisfied that the defendant continued to drive the truck forward on the highway for an excessive distance after becoming aware that the oil pressure in the truck was dropping. Nor am I satisfied that the defendant failed to bring the truck to a prompt standstill on the verge of the road as alleged in sub‑paragraph (e). In my view, that part of the defendant's evidence as to the actions he took immediately upon finding that the oil pressure was dropping, were appropriate and consistent with the circumstances including the type of truck he was driving and the weight of the truck.
As to sub‑paragraph (g), I am satisfied that the defendant placed his truck in the emergency stopping lane in a position which was safe and appropriate in all the circumstances. Notwithstanding that there appeared to have been some green grass on the verge between the emergency stopping lane and the bush on the left hand side, the defendant knew he was driving a truck with a considerable weight on it and was appropriately concerned to stop his truck in an area where he thought it would be in no danger of rolling over or causing some other difficulty. Sub‑paragraph (g) is not made out.
As to sub‑paragraph (h), I have already said that I have doubts as to the defendant's evidence that he walked across the road to the median strip to find some rocks. Notwithstanding this, it is clear that the defendant had hazard signs which were inadequate in that he knew that they would not remain upright in the normal course of use on the road and required rocks to prop them up. There was a failure, in my view, to promptly erect adequate hazard signs and properly warn approaching motorists as alleged in par (h).
As to par (i), I do not find that this allegation has been made out on the basis that the defendant did check his rear vision mirror in the normal course of his driving and saw the oil leakage and, it seems that he checked his oil filter as regularly as one would in the normal course of driving as an experienced truck driver.
In general terms, therefore, I find that the defendant was negligent in the failure to properly install the oil filter and in the other particulars already mentioned. This negligence, I find, was a substantial contributing cause to the accident.
As to the plaintiff, I confirm that it is my view that the plaintiff failed to control his vehicle properly as alleged in par 6(a) of the Defence. Insofar as there was a failure to properly manage and control the plaintiff's vehicle in the right hand lane, sub‑paragraph (b) of par 6 has also been made out in the sense that there was a failure as alleged in that lane, but that, thereafter, the oil slick became the dominant feature with which the plaintiff had to contend after the vehicle moved into the left hand lane.
In my view, there was negligence on the part of the defendant and contributory negligence on the part of the plaintiff in this matter.
As to the extent of such contributory negligence, this is often a difficult task to determine. However, in the present case, where the precipitating factor leading up to the accident was the plaintiff's inappropriate and incorrect movement from the right to the left lane and that, thereafter, there was an inability of the plaintiff to control the vehicle caused by coming into contact with the oil slick, it is appropriate that the plaintiff be found contributorily negligent to his extent of 50 per cent for the accident.