RGR Road Haulage Pty Ltd v Road Trains of Australia Pty Ltd
[2018] WADC 131
•12 OCTOBER 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: RGR ROAD HAULAGE PTY LTD -v- ROAD TRAINS OF AUSTRALIA PTY LTD [2018] WADC 131
CORAM: HERRON DCJ
HEARD: 26 FEBRUARY - 1 MARCH, 6-7 MARCH & 26 APRIL 2018
DELIVERED : 12 OCTOBER 2018
FILE NO/S: CIV 4102 of 2014
BETWEEN: RGR ROAD HAULAGE PTY LTD
Plaintiff
AND
ROAD TRAINS OF AUSTRALIA PTY LTD
Defendant
Catchwords:
Negligence - Head on collision - Single lane bridge - Apportionment of liability
Legislation:
Civil Liability Act 2002 (WA), s 5B, s 5K
Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA), s 4(1)
Result:
Each driver negligent and liability apportioned at 80% to the plaintiff and 20% to the defendant. The plaintiff awarded the sum of $27,932.29 and the defendant awarded the sum of $326,854.40
Representation:
Counsel:
| Plaintiff | : | Mr JR Criddle |
| Defendant | : | Mr PE Jarman |
Solicitors:
| Plaintiff | : | Integra Legal as agent for Walker Hedges & Co Solicitors |
| Defendant | : | Sparke Helmore Lawyers |
Case(s) referred to in decision(s):
Apostolic Church Australia Limited v Dixon [2018] WASCA 146
Moralee v Mosey (1990) 11 MVR 65
Nesterczuk v Mortimore (1965) 115 CLR 140
Wheatland v Dickson (Unreported, WASCA, Library No 950588, 3 November 1995); (1995) 22 MVR 431
HERRON DCJ:
Introduction
At approximately 8.30 am on Sunday, 21 July 2013 a collision occurred between two road trains on the Minnie Bridge, which is a single lane bridge on the Great Northern Highway between Broome and Derby, running approximately east-west. The plaintiff's road train was being driven by Mr Warwick Jobson who approached the bridge from the western or Broome direction of the bridge. The defendant's road train was driven by Mr Graeme Davidson who approached the bridge from the eastern or Derby direction. The two road trains collided towards the eastern end of the bridge, at a point approximately 6 m and 18 m from the eastern end, that is, at the end from which Mr Davidson was travelling.
The collision caused a fire and both road trains suffered significant damage. Each party pleads the other driver was negligent in causing the collision and consequent damage.
Quantum has been agreed in the sum of $139,661.45 in relation to the plaintiff's claim and in the sum of $408,568 in respect of the defendant's counterclaim. Therefore the issue is liability.
For the reasons which follow, I find Mr Jobson was principally at fault in causing the collision but Mr Davidson was also at fault. I apportion liability for the collision and resultant damages at 80% to the plaintiff and 20% to the defendant.
Background
The road trains
Each road train was comprised of a prime mover with two dollies and three trailers. The plaintiff's road train driven by Mr Jobson (the Jobson freight train) was carrying general freight from Perth and was travelling in a north-east direction. The Jobson freight train was approximately 50 m in length and had a combined weight of approximately 120 tonnes.
The defendant's road train driven by Mr Davidson was a cattle train carting 204 head of cattle heading south‑west from Derby to Broome (the Davidson cattle train). The Davidson cattle train was also approximately 50 m in length, carrying double deck cattle crates more than 4 m high. It weighed approximately 110 to 112 tonnes.
The drivers
At the time of the accident Mr Jobson was aged 55. He is now aged 60. As at July 2013 he had been employed by the plaintiff, RGR Road Haulage, as a truck driver for three years. He was an experienced truck driver having worked in that occupation for 30 years. As at July 2013 he had been driving triple road trains in the north‑west of Western Australia for 15 years. Mr Jobson had driven road trains and oversized trailers on the Great Northern Highway for about nine years.
On 19 July 2013, at about 7.00 pm, he left Perth with a co-driver driving a prime mover and two trailers. They picked up another trailer later that night at Wubin. The front trailer contained liquid cement and the second trailer, cardboard boxes of general freight. Mr Jobson could not recall what the third container, which they picked up at Wubin, contained. They picked up more freight at Port Hedland.
He and the co-driver shared the driving. While one drove, the other slept in the bunk bed in the cabin.
Mr Davidson has worked as a truck driver since January 2001. He has driven various types of road transport, from semis to rigid trucks to road trains to triple road trains. He drove for three winter seasons in the Kimberley for Road Trains of Australia (RTA) for approximately four months each winter.
On the day of the accident he started driving from a camp at Blina Station near Derby. He took on a load of 204 head of cattle. He was driving a Kenworth 904 and a triple trailer combination. He had been driving that combination for about five weeks (ts 92).
From Blina Station he proceeded onto the Great Northern Highway and headed south towards Broome.
Familiarity with the Minnie Bridge
Mr Jobson said that during the nine-year period he had been driving road trains on the Great Northern Highway he had driven across the Minnie Bridge two times a week. He had crossed it from both directions.
Mr Davidson did not give any evidence as to how often he had driven across the Minnie Bridge, except to acknowledge in cross‑examination that he had driven across the bridge many times from each direction (ts 105).
Minnie Bridge
The Minnie Bridge is a single lane bridge running approximately east‑west. Despite it being named in the pleadings as the 'Minnie River Bridge', the bridge crosses over the Fitzroy River. All of the witnesses referred to the bridge as the Minnie Bridge as did the police forensic collision report. I will therefore refer to it as the Minnie Bridge. Approaching the bridge from the western direction, that is, from Mr Jobson's direction, the road is a long sweeping left-hand bend extending for approximately 600 m until straightening up approximately 230 m from the western end of the bridge. For traffic travelling in the opposite direction, that is, from the eastern direction, the direction from which Mr Davidson was travelling, the road is relatively straight and flat with unobstructed views to the bridge for approximately 1.4 km.
The length of the bridge is 195.25 m with bridge railings of approximately 6 m on either end of the bridge. It has been agreed by the parties that the commencement of the bridge is the beginning of the rampart where the earth underneath falls away from the road surface. The measurement of 195.25 m is referred to in the police forensic collision report (exhibit 1.27), par 5 which is based upon a Main Roads 1966 drawing noting that the bridge span was designed to be 195.25 m (640 feet 7 inches) long. My calculation of the conversion from the imperial measurement to the metric measurement is 195.38 m rather than 195.25 m. Mr Davey in his report adopts a measurement of 195 m but notes that the measurement increases to approximately 205 m if adjoining guard rails are included. According to appendix 3 to the police investigation report a measurement of the bridge between the Chevron signs at either end, which includes the guard rails, is 220 m which accords with the measurement adopted by Mr Davey. The measurement of 40 m from the 'No Overtaking, No Passing' sign to the bridge entrance is to the Chevron sign before the guard rail.
The speed limit for road trains on the open highway is 100 km per hour.
Travelling from the west, traffic is first met with a 'Reduce Speed' sign which is 800 m from the bridge entrance. The next road sign is an 80 km per hour speed sign which is 520 m from the entrance to the bridge followed by a 'Narrowing One Lane' yellow sign which is 340 m from the bridge entrance. There is then a 'Prepare to Stop' red sign which is 240 m from the bridge followed by a yellow 'Pedestrian/Bicycle' sign which is 140 m from the bridge and then finally a 'No Overtaking, No Passing' sign which is 90 m from the bridge.
From the eastern direction the first sign warning of the approaching single lane bridge is a red 'Reduce Speed' sign 730 m from the eastern bridge entrance. The next sign is the 80 km per hour speed sign which is 490 m from the eastern end of the bridge followed by a yellow 'Narrowing One Lane' sign 330 m from the end of the bridge. The red 'Prepare to Stop' sign was 220 m from the end of the bridge followed by a yellow 'Pedestrian/Bicycle' sign. The 'No Overtaking, No Passing' sign is 40 m from the bridge entrance.
Neither of the yellow 'Pedestrian/Bicycle' signs are identified in the road diagram (exhibit 5).
It is useful to set out the spreadsheet contained within par 5 of the police major crash investigation report into the collision:
Western Approach
Feature
SLK
Distance
Western end of bridge:
2284.88 km
0.00 m
No Overtaking, No Passing sign:
2284.79 km
90.00 m
Pedestrian/bicycle sign:
2284.74 km
140.00 m
Prepare to stop sign:
2284.64 km
240.00 m
Narrowing road/one lane sign:
2284.54 km
340 m
110/80 speed sign:
2284.36 km
520.00 m
Reduce speed sign:
2284.08 km
800.00 m
Eastern Approach
Feature
SLK
Distance
Eastern end of bridge:
2285.10 km
0.00 m
No Overtaking, No Passing sign:
2285.14 km
40.00 m
Pedestrian/bicycle sign:
2285.23 km
130.00 m
Prepare to stop sign:
2285.23 km
220.00 m
Narrowing road/one lane sign:
2285.43 km
330 m
110/80 speed sign:
2285.59 km
490.00 m
Reduce speed sign:
2285.83 km
730.00 m
*SLK – Straight Line Kilometres – MRWA distance measured from Perth along the Great Northern Highway.
The measurements are taken from the Chevron signs seen in the photographs annexed to the police investigation report and are also seen in the photographs taken by Ms Coudert immediately before the accident.
When Mr Jobson and Mr Davidson were cross‑examined as to how far he was from the bridge entrance, they were not asked and it was not clarified what they regarded as the bridge entrance. Therefore it is unclear whether when they spoke about the bridge entrance they are referring to the same point as the experts refer to. When I refer in these reasons to the bridge entrance I am referring to the distance as measured in the police report.
Mr Jobson's journey and approach to the bridge
About 65 km south of the Sandfire Roadhouse Mr Jobson's prime mover developed mechanical difficulties and he and his co-driver had to wait for about four hours for a replacement truck which was driven up from Port Hedland. The co‑driver then drove to the Roebuck Roadhouse, arriving at about 7.30 am in the morning. They were at the roadhouse for a short time. When they left the Roebuck Roadhouse Mr Jobson was driving (ts 50).
When he came to the bend in the Great Northern Highway before the Minnie Bridge Mr Jobson said he was travelling at about 98 km per hour. He was aware of the 'Reduce Speed' and 80 km per hour signs on the road. In evidence‑in‑chief he said that as he came around the bend he started slowing down. He also saw that the bridge was clear (ts 51 ‑ 52).
He could not recall the speed at which he was travelling as he came to the 'Reduce Speed' sign. He was travelling in the 18th gear, which is the top gear, in which he had been travelling since departing from the Roebuck Roadhouse. He did not recall the speed at which he was travelling as he came around the bend. He saw there was no traffic on the bridge which he described as being all clear. Neither did he see anything beyond the bridge. It was about 8.30 am in the morning. The sun was high and had no impact on visibility. He was wearing prescription sunglasses (ts 52 – 53).
Mr Jobson said that as he approached the bridge he was travelling at 75 to 80 km per hour. He had the truck idle itself from 98 km per hour to 75 to 80 km per hour. He started reducing speed just after he came out of the bend (ts 54).
Both Mr Jobson and Mr Davidson gave evidence that it is necessary to line up the road train to the bridge as you are approaching the bridge. To do that you move the truck from the left lane to the centre of the road to line up the road train with the middle of the bridge.
When Mr Jobson was asked how far back he was from the bridge when he lined it up, he said he was not sure. He said he thought it might be 10 m or something like that, but he was only guessing (ts 54).
When he lined up the bridge by moving into the centre of the road, the bridge was empty and he did not see anything beyond the bridge. He was unable to estimate the speed at which he was travelling at that point. As he entered the bridge he saw in the distance a truck coming towards him. He continued driving along the bridge (ts 55).
Mr Jobson then said that even before the bridge he saw a truck which 'looked like he was still coming'. The truck was in the distance. He said he was just about to enter the bridge when he saw the truck in the distance. As he drove onto the bridge he watched the other truck to see what it was doing, to see whether it was going to slow down or give way to him. He then saw the approaching truck line up the bridge like he was going to come across the bridge. He saw dust coming off the truck's wheels which he described as 'like he wasn't stopping'. He described the truck as being 'dead in line with the bridge' which is why he thought the truck was lining up the bridge. When he first saw the truck, it was travelling on the left side of the road and then moved into the middle of the road. Mr Jobson was unable to say or give an estimation as to how far from the other end of the bridge the truck was when he first saw it. He said the truck was far enough away so that he, Mr Jobson, was able to get across the bridge (ts 55 – 56).
Mr Jobson said that when he saw the other truck move into the middle of the road he continued onto the bridge and hoped that the other truck driver saw him on the bridge. He then noticed the other truck was not stopping and he started to brake by putting his foot on the pedal as hard as he could (ts 58). His truck started slowing down. He saw the other truck still approaching him. The two trucks collided on the bridge which he estimated was 5 m from the eastern end (ts 59). The trucks collided head on. The other truck was a little bit alongside Mr Jobson's truck and Mr Jobson's truck was on fire. The right front side of Mr Jobson's truck went slightly past the left front side of the other truck.
Mr Jobson saw the other truck hit the expansion joint of the bridge and turn slightly to his, that is, the other driver's, left. Mr Jobson's truck was nearer to the left side of the bridge. The left passenger door of the prime mover was up against the railing of the bridge.
Mr Jobson, together with the co-driver, managed to climb out of their prime mover, which was on fire. He suffered a gash above his left eye which he said the doctors classed as a scalping. He was taken to Derby hospital by ambulance and he remained in hospital overnight (ts 61).
Towards the end of his examination-in-chief Mr Jobson was asked questions whether he remembered the speed at which his road train was travelling. He said that he did not remember at what speed he was travelling as he approached the bridge. Neither could he remember the speed at which he was travelling when his road train was on the bridge. He could only remember he had his foot on the brake (ts 64). He said that he was travelling at 76 to 80 km per hour based on what he said in his police statement.
In cross-examination Mr Jobson agreed that as he travelled around the bend of the road from the western direction he had a good view of the road ahead which is a straight road after the bridge to the horizon.
He said he thought he was travelling at about 98 km per hour as he came out of the bend, but he was not sure (ts 76).
He confirmed when he came around the bend on the highway the bridge was clear and he thought it was okay to proceed without taking avoidance action. He also looked beyond the bridge but there was not anything. He confirmed his evidence‑in‑chief that he did not see the other road train until he was just coming onto the bridge (ts 78 - 79). He did not see the other vehicle as he came out of the bend. He did not see the other vehicle until he was on the bridge which was when it moved into the centre of the road. He was not able to say how far from the bridge the other road train was when he first saw it. He agreed he did not have a good recollection of the events of the accident – he only remembered little bits of it. He agreed that when he first saw the other road train it was already in the middle of the road (ts 80).
He agreed that if a road train moves to the middle of the road that indicates the driver is lining up the bridge and intending to cross it. He agreed that had he seen the other road train in the middle of the road lining up the bridge as he, Mr Jobson, came around the bend, he would have slowed down and pulled up on the side of the road to allow the other truck to cross the bridge (ts 81).
He agreed that if he first saw the other road train in the middle of the road when he was 150 m away from the bridge he would have stopped and let the other road train cross over the bridge (ts 81 – 82).
He agreed that sometimes when road trains cross over the bridge and pass a road train pulled on the side of the road they slow down to pass at a safe speed. He agreed they sometimes slow down to 20 km per hour which he regarded as a safe practice. He agreed he would take that action in that situation (ts 82).
He agreed that as he was approaching the bridge he did not check his speedo for his speed and that he was focusing on the bridge to line up the road train to cross the bridge because there was not a great deal of room on either side of the road train from the sides of the bridge which he agreed was about a metre on either side (ts 83). He agreed that he was guessing when he said he was travelling at 75 to 80 km per hour when he entered onto the bridge. He agreed that that was the speed that he usually approached the bridge.
He agreed that when he first saw the road train approaching from the opposite direction he did not know at what speed it was travelling (ts 84). He accepted he had difficulty in estimating distances. He did not know whether he could have been travelling at approximately 90 km per hour when he was crossing the bridge (ts 85).
He thought he started applying his brakes when he was about a quarter of the way across the bridge. He did not apply his brakes before that because he thought the other road train was stopping. He thought the other train was stopping because he was on the bridge before him and that he would give way to his, Mr Jobson's, road train.
Mr Jobson agreed that because of the engine breakdown he was at least four hours behind schedule but denied he was trying to make up time (ts 75).
In re-examination he agreed that given the road signs about reducing speed and a speed limit of 80 km per hour that he should be slowing down. He thought he did slow down but could not remember (ts 87).
When he saw the other truck in the distance that did not affect his manner of driving and what he was going to do because he thought he had time to get across the bridge (ts 88).
When he was a quarter of the way across the bridge he saw the other truck line up the bridge. He was unable to say how far back from the bridge the truck was when he saw it line up the bridge (ts 88).
He said he moved to line up the centre of the bridge when he was about 20 m to 40 m from the bridge which he clarified by saying where the dual line goes into one line which is when he always moves into the middle of the road (ts 90).
Mr Jobson agreed he was four hours behind schedule but denied he was trying to make up time (ts 75, 78).
Mr Davidson's journey and approach to the bridge
In examination-in-chief Mr Davidson said that prior to approaching the Minnie Bridge he crossed over the Willare Bridge which was about 5 km from the Minnie Bridge.
By the time he got to the 80 km per hour sign he was backing off his speed using the auxiliary brakes. After he passed the 80 km per hour sign he continued to wind his speed off it as he approached the bridge (ts 93).
He started winding his speed off 700 m from the bridge (ts 94).
When he was approximately 300 m from the bridge he straddled the white line so as to mark the bridge.
His intention was to enter the bridge at 60 km per hour.
He noticed a truck come around the bend from the other side when he was about 150 m to 200 m from the bridge. He estimated he was travelling at about 65 km per hour at that time. He was continuing to wind speed off using the auxiliary braking system or the Jake brakes.
After he saw the other truck come around the bend he continued towards the bend intending that he would exit the bridge at about 20 to 25 km per hour because he anticipated the other truck, which was a triple road train, would pull up on the other side of the bridge. He said that if you came past a pulled over truck at 60 to 70 km per hour you risked flicking your trailer into the cab of the other truck. You therefore have to be well below the regulated speed limit (ts 95).
He had the other road train in his sight from the time he saw it come around the bend.
Initially, until the other truck actually came onto the bridge, it looked to him like the truck was pulling up to stop. When he saw the truck come across onto the bridge he stood on his brakes as hard as he could (ts 95). The truck was coming towards him a lot faster than it first appeared. He saw smoke from the locked tyres of the other truck and it seemed as though the truck was coming towards him 'hard'. He thought he would have been lucky to be doing 15 to 20 km per hour by the stage of the impact (ts 95).
Mr Davidson said his practice when approaching single lane bridges was to mark the bridge by straddling the white line from approximately 250 m out (ts 97).
In cross-examination Mr Davidson said that he applied his foot brake approximately 30 to 40 m from the entrance to the bridge. At that time the other truck was on the bridge. He disagreed that he did not line up the bridge until he was within 100 m of the bridge and said he lined up the bridge from approximately 250 m away. He disagreed that he only moved his truck to the centre of the road to line up the bridge when he was approximately 40 m to 50 m from the bridge.
When he got to the 'Prepare to Stop' sign he estimated he was doing 75 km an hour. He had come down from around 100 km per hour (ts 99).
When asked about a statement he made to police after the accident he agreed he told police that he was about 100 m to 120 m away from his end of the bridge when he saw the other truck coming which he said was an approximation. He said it was a traumatic time when he gave the statement to police.
When asked what distance he now thought was more accurate, the 100 m to 120 m or 150 m to 200 m, he answered 150 m and then repeated, in answer to a question whether it was 150 m which he thought was more the distance it would have been, that it was 150 m and that 200 m was the outer limit (ts 101).
Mr Davidson was later further cross-examined about the inconsistency in his police statement dated 22 July 2013 in which he told police that he was 100 m to 120 m away from his end of the bridge when he saw the other truck coming around the bend and his evidence that he was about 150 m away. He reiterated that what he said in the police statement was not correct and that he was 150 m away from the bridge when he saw the other truck come out of the bend. When he first saw the other vehicle he was travelling at about 65 km an hour (ts 119).
Mr Davidson agreed that if he was between 700 m to 300 m from his end of the bridge, if a truck was at that point coming around the bend, he would have seen it. However, he did not see the other truck come around the bend until he was about 150 m away. By that time he had already lined up the bridge and was travelling in the centre of the road. When he moved to line up the bridge he was travelling at about 60 to 65 km per hour.
He agreed that you do not have to line up the bridge from 300 m away. He accepted you can line up the bridge safely from 50 m away but not when you are travelling at 80 to 70 km per hour because of the weight of the triple combination. You could line the bridge up at 50 m away if you were travelling at approximately 40 km per hour to 50 km per hour. He explained that a cattle freight train, especially a triple road train configuration, is a top heavy load and you would not line up a bridge from 50 m away if you were travelling at 80 km per hour (ts 101 – 102). If you did, the third trailer would probably clip the bridge. He thought it was inevitable that the trailer would hit the bridge travelling with a live load at 80 km per hour if you tried to line the bridge up from 50 m away (ts 102).
He entered the bridge just after the other road train entered the bridge (ts 103).
He was approximately 25 m to 40 m away from the entrance of the bridge when the other vehicle entered the bridge. He disagreed that he was 140 m back from the entrance to the bridge when the other vehicle entered the bridge (ts 104).
Mr Davidson thought that he had marked the bridge clearly. He confirmed that when the other vehicle came around the bend he was 150 m from the bridge and the other vehicle was still in its own lane which is why he believed he had claimed the bridge (ts 106).
When he was 53 m from the bridge he thought the other vehicle was pulling up on the left lane on the other side of the bridge. He did not think the other vehicle was travelling at speed when he thought it was pulling up but 'didn't have a huge gauge on his speed' (ts 107). It was only when the road train came out of his lane and onto the bridge that he thought there was going to be a problem at which point he applied his foot brakes. He applied his foot brakes as soon as the other truck came onto the bridge (ts 108).
After the 'Prepare to Stop' sign the white dividing line changes from a single broke white line to a continuing white line which continues until the 'No Overtaking, No Passing' sign (which is 40 m from the bridge). He did not accept that he did not move out to the centre of the road to line up the bridge until after the 'No Overtaking, No passing' sign. He said that from the black marks on the road the culture is to move into the centre of the road before the No Overtaking, No Passing sign. The road markings do not impact upon where he moves to line up the bridge and straddles the white line. When he moved into the centre of the road to line up the bridge he had a clear run to the bridge (ts 111).
He reiterated that he did not accept that he was more than 100 m back from his entry to the bridge when the other vehicle entered the bridge (ts 112).
He thought the impact between the two vehicles occurred approximately 25 m to 30 m on the bridge from his, the eastern end. He thought the impact point was slightly further than 18 m from his end of the bridge but was prepared to accept that if the photographs demonstrated the point of impact was 18 m onto the bridge that is where the point of impact was (ts 112).
Mr Davidson denied that he saw Mr Jobson's vehicle when his, Mr Davidson's vehicle was 500 m from the bridge (ts 121). He accepted that if a truck had come around the bend when he was 300 m to 700 m from the eastern entrance to the bridge that he would have been able to see the other truck (ts 125 – 126).
He did not see Mr Jobson's vehicle coming around the bend when he, Mr Davidson's, vehicle was 200 m from the bridge (ts 127). He did not accept that his vehicle was still in the left lane when Mr Jobson's truck became visible after it came around the bend (ts 128). He reiterated that he did not move to the centre of the road when he was within a 100 m of the bridge (ts 129). He denied Mr Jobson's vehicle was about half way across the bridge before he applied his brakes (ts 129).
He accepted that if he was a 100 m from his end of the bridge and had seen the other truck enter the bridge he would have stopped (ts 130).
He estimated his speed as he was about to enter the bridge and before he applied his brakes to be 50 km per hour. He said he estimated that at that speed it would take approximately 75 m to 100 m to stop his vehicle under safe braking (ts 131 – 132).
He agreed that until he applied his foot brakes when he was about 30 m, to 40 m from the bridge he did not have his foot on the brake pedal (ts 132).
The pleadings
The amended statement of claim pleads that the Jobson freight train was approximately three quarters of the way across the Minnie Bridge when the Davidson cattle train was driven onto the bridge. The statement of claim pleads that the defendant, through the negligence of its employee Mr Davidson, was negligent in that Mr Davidson drove his road train onto the single lane bridge when it was unsafe to do so and failed to allow the Jobson freight train to complete its crossing of the bridge by failing to stop before driving onto the bridge.
By its defence the defendant admits that a collision between the two road trains occurred on the bridge but denies Mr Davidson drove negligently and pleads that at all material times he acted reasonably in attempting to avoid the collision in that he (par 11):
(a)slowed his vehicle on the approach to the bridge to a speed of approximately 53km per hour;
(b)moved his vehicle to the centre of the duel carriageway, signalling to oncoming vehicles that he intended to enter the bridge and thereby 'claiming' the bridge;
(c)observed that the plaintiff's vehicle, which was approaching the bridge from an easterly direction, remained in the left lane of the carriage way and had not moved to the centre of the carriageway, or entered the bridge; and
(d)entered the bridge continuing to apply his breaks [sic] and slow his speed;
(e)commenced heavy breaking [sic] when he saw the plaintiff's vehicle enter the bridge; and
(f)turned the defendant's vehicle left in an attempt to avoid the collision.
Further, at par 12 the defence pleads that the collision was caused by Mr Jobson's negligence in that he:
(a)Failed to keep a proper look out for and to give way to oncoming vehicles;
(b)entered the bridge after Davidson had moved the defendant's vehicle to the centre of the dual carriageway thereby 'claiming' the bridge;
(c)entered the bridge when his vehicle was travelling at a speed of approximately 75 km per hour, which speed was excessive having regard to the following matters:
(i)the maximum speed limit was 80km;
(ii)he was driving a prime mover in road train configuration and towing loaded trailers, which he knew or ought to have known would require additional distance to stop at a higher speed of travel; and
(d)drove his vehicle across the bridge at an excessive speed and failed to apply his brakes and slow his vehicle in time to have avoided the collision with the defendant's oncoming vehicle.
The defendant counterclaims against the plaintiff for the loss and damage suffered to its vehicle by reason of the collision.
The law
The Civil Liability Act 2002 (WA) applies to the determination of who is at fault in causing the collision. It is accepted that each driver owed the same duty of care to the other driver.
The plaintiff's submissions
The plaintiff's counsel submits that the Jobson freight train was visible when the Davidson cattle train was at least 400 m from the eastern entrance to the bridge which, it is submitted, is consistent with the evidence of the witnesses to the accident. It is submitted that Mr Davidson's evidence that he was approximately 150 m from the eastern entrance of the bridge when he first saw the Jobson freight train come around the bend must be rejected because it is contrary to the evidence of the witnesses to the accident. It is also contrary to and inconsistent with the evidence of the experts Mr Upton and Mr Davey regarding the speed at which the Jobson freight train would have had to travel to arrive at the point of collision at the same time as the Davidson cattle train. It is submitted that based upon the evidence of Mr Davey the closest that the Davidson cattle train could have been to the eastern end of the bridge when the Jobson freight train came around the bend was 190 m.
It is also submitted that I ought to reject Mr Davidson's evidence that he lined up the bridge when he was approximately 300 m from the eastern end of the bridge.
It is submitted that Mr Davidson was negligent by failing to apply his foot brakes sooner than he did or by failing to stop his road train before the eastern entrance to the bridge and allow the Jobson freight train to cross over the bridge. It is submitted that the Davidson cattle train moved from the left lane to the middle of the road to line up the bridge when the Jobson freight train was already on the bridge. It is submitted I ought to accept the evidence of Mr Davidson that he only applied his foot brake when he was approximately 30 m to 40 m from the eastern end of the bridge by which time it was too late to brake as by then the Jobson freight train was more than half away across the bridge.
I accept that if the Jobson freight train was already on the bridge when Mr Davidson started to line up the bridge, depending upon Mr Jobson's speed at the time he entered the bridge, it must follow that Mr Davidson was negligent, either by proceeding onto the bridge when it was unsafe to do so, or by not stopping before the bridge to allow the Jobson freight train to cross over the bridge. I also accept that if the Davidson cattle train was 400 m from the eastern entrance to the bridge when the Jobson freight train exited the bend, there was sufficient distance and time in which, Mr Davidson, had he been exercising proper care, could have and should have, pulled over and stopped before the bridge to allow Mr Jobson to cross over the bridge.
The defendant's submissions
Counsel for the defendant submits that Mr Davidson had already lined up the bridge by moving into the middle of the road before the Jobson freight train came around the bend. At that point Mr Davidson was approximately 150 m to 200 m from the eastern entrance to the bridge. Mr Davidson had been reducing his speed from about the 'Reduce Speed' sign which was 730 m from the bridge entrance. At the time Mr Davidson moved his vehicle to line up the bridge he was travelling at a speed of approximately 60 to 65 km per hour.
The reason, defence counsel submits, that the Jobson freight train entered onto the bridge before the Davidson cattle train and why the collision between the two vehicles occurred towards the eastern end of the bridge was because Mr Jobson was driving more quickly than was Mr Davidson, who was continuing to reduce his speed.
It is submitted Mr Jobson failed to see the Davidson cattle train until he was entering onto the bridge and that therefore Mr Jobson was negligent because he failed to keep a proper lookout and was travelling too quickly in the circumstances.
The issues
In determining which driver was negligent in causing the collision it is necessary to determine:
(a)the speed at which each road train was travelling as it approached the bridge;
(b)the point at which each driver first saw the other vehicle, how they reacted and what action they should have taken to avoid the collision;
(c)the distance each of the road trains was from their respective entrances to the Minnie Bridge when the drivers ought to have first seen the other road train;
(d)whether the Davidson cattle train was approximately 400 m from the eastern entrance to the bridge when the Jobson freight train exited the bend at which point it was approximately 230 m from the western entrance to the bridge; and
(e)how far away was the cattle train from the eastern entrance to the bridge when the freight train entered onto the bridge.
The determination of negligence in this action is not about which road train reached the entrance to the bridge first, but what happened in the 100 m to 300 m prior to that time, having regard to the visibility of each of the drivers and when they ought to have first seen the other road train had they been keeping a proper lookout, the distance each road train was from the bridge, the reactions of each of the drivers and the speed and stopping distances of each of the road trains and the ability they had to stop before the bridge to give way to the other road train and let it cross over the bridge first.
Agreed facts
When the Davidson cattle train was 53.5 m from the eastern end of bridge it was travelling at 53 (52.78) km per hour (as confirmed by the GPS navigation system with which the road train was fitted).
The average speed of the Davidson cattle train between that data point and the previous data point a minute before was 85 km per hour.
The Jobson freight train was travelling at 97 km per hour 1.4 km from the crash site (as confirmed by the GPS navigation system with which the road train was fitted). The speed was recorded at 8.31 am and the next data entry was recorded at 8.32 am when the Jobson freight train is shown with its ignition off.
It is accepted that where the freight train is recorded as having its ignition off is at the crash site after the vehicle came to a holt after the collision.
Skid marks from the Jobson freight train, which were caused by either the tandem wheels of the prime mover or the lead trailer, measured 73 m and commenced at a point 100 m from the western end of the bridge.
The length of the Minnie Bridge was 195 m.
Credibility
While I am satisfied that each of Mr Jobson and Mr Davidson gave truthful evidence and each of them did their best to recall what they did and how they drove and what happened immediately before the two trucks collided on the bridge, especially having regard to having been involved in what I accept would have been an emotionally traumatic accident, which occurred nearly five years before they gave their evidence, I generally prefer the evidence of Mr Davidson to that of Mr Jobson regarding the manner of driving and the movement of their road trains as they approached the Minnie Bridge. Mr Davidson carefully considered the questions asked of him before answering. I was impressed by his demeanour. He was prepared to concede some matters. For example, he accepted he did not obey the road rules by crossing over an unbroken white dividing line when he moved into the centre of the road (ts 98 – 99). He readily accepted his evidence as to how far he was from the other truck when he saw it coming was different to what he said in his police statement (ts 100).
I am satisfied that Mr Davidson's recollection of what happened is more accurate and reliable than that of Mr Jobson. Unlike Mr Jobson, Mr Davidson had an independent recollection of what happened and was not reliant upon his police statement for what he said happened. Indeed, and to his credit, Mr Jobson conceded he did not have a good recollection of the circumstances of the accident and only remembered bits of it. He was uncertain of his speed, at what speed he was travelling as he came out of the bend and at what speed he was travelling as he approached the bridge. He was unable to say or give an estimation as to how far from the eastern end of the bridge Mr Davidson's truck was when he first saw it, other than to say he thought it was far enough away so that he, Mr Jobson, was able to get across the bridge. He also said he was unsure how far back he was from the bridge when he started to line it up but thought it might have been about 10 m away but said that he was only guessing.
Mr Davidson's manner of driving
It is appropriate to first examine Mr Davidson's conduct or manner of driving as he approached the bridge.
Whether Mr Davidson was at fault or was negligent in causing the collision between the two road trains significantly depends upon how far away from the eastern entrance of the bridge the Davidson cattle train was when the Jobson freight train emerged from the bend and where on the road Mr Davidson had positioned his cattle train when the Jobson freight train emerged from the bend. In particular, whether Mr Davidson had moved his cattle train into the middle of the roadway to line up the bridge by the time the Jobson freight train emerged from the bend.
My findings as to Mr Davidson's conduct or manner of driving will depend to a significant extent as to whether his evidence is supported or contradicted by the evidence of the independent witnesses to the accident, the four people who were travelling in the two motor vehicles behind the Davidson cattle train.
I acknowledge that a person's, especially a person involved in a motor vehicle accident, estimations as to, particularly distance but also speed, are notoriously unreliable. Someone who is an honest and truthful witness will often be unreliable in his or her estimation as to distance and speed, more so when an incident or accident has occurred suddenly. Also, a passage of time which has elapsed between the accident and the giving of evidence, especially as to speeds and distances, is likely to add to the unreliability of their memory even though they are doing their best to remember what happened. As the table annexed to these reasons of speeds and distances travelled shows, significant distances can be travelled in a relatively short period of time depending on the speed at which a vehicle is travelling. For example, travelling at 50 km per hour it takes a vehicle two seconds to travel approximately 28 m. Travelling at 90 km per hour takes approximately two seconds to travel 50 m. Therefore, when a witness who is a passenger in a vehicle estimates that something was 50 m away that would mean, if the vehicle was travelling at 90 km per hour, that the thing was two seconds away. This observation is particularly relevant in relation to driver reaction times about which I will speak in more detail later in these reasons.
Mr Davidson said he started decelerating using his truck's auxiliary or 'Jake' brake from about 700 m out from the bridge. He was continuing to reduce his speed using the Jake brake when he passed the 80 km per hour sign (which is 490 m from the eastern entrance to the bridge). When he was about 250 m to 300 m from the bridge he moved into the centre to the road to line up the bridge. When he was about 150 m to 200 m from the bridge he saw the Jobson freight train come around the bend. Mr Davidson estimated he was travelling at about 65 km per hour at that time and continuing to reduce his speed using the auxiliary braking system.
He had the Jobson freight train in his sight from the time it came around the bend. He observed Mr Jobson's road train remain in the left lane of the road and initially it looked to him like the truck was pulling up to stop and giving right of way to the bridge to Mr Davidson. Mr Davidson was continuing to reduce the speed on his truck. His intention was to cross the bridge so that he would be travelling at about 20 to 25 km per hour when he exited the bridge and passed Mr Jobson's vehicle. When he was between 30 m to 40 m from the eastern end of the bridge he saw the Jobson freight train enter onto the bridge and it appeared to be coming towards him a lot faster than it first appeared. As the Jobson freight train entered onto the bridge Mr Davidson stood on his foot brakes as hard as he could.
When Mr Davidson first saw the Jobson freight train come around the bend the vehicles were approximately 625 m to 575 m apart, allowing for the bridge to be approximately 195 m in length.
If Mr Davidson did not see Mr Jobson's prime mover as soon as it exited the bend the distance between the vehicles when Mr Davidson first saw the Jobson freight train would have been less. For example, if Mr Davidson did not see Mr Jobson's vehicle until a second or two after the prime mover had exited the bend and if Mr Jobson's road train was then travelling at 98 km per hour it would have travelled approximately a further 25 m to 50 m towards the bridge.
I now turn to examine and make findings based upon the evidence of the independent witnesses.
Witnesses to the accident
At the time of the accident Mr Davidson's cattle train was being followed by a red Mazda driven by Ms Sharmal Mason who was Mr Paul Treacy's partner. Mr Treacy was a front seat passenger. Travelling behind them was Mr Jerome Coudert and his wife, Ms Florence Coudert, together with their two children. Mr Coudert was driving a Toyota Landcruiser (ts 350). Both vehicles had travelled from Derby earlier that morning. Mr Treacy and Ms Mason were travelling back to Broome and Mr Coudert and Ms Coudert were travelling to their home in Baldivis.
Jerome Coudert
Mr and Ms Coudert left Derby at about 7.30 am. It was sunny and the conditions were very clear (ts 356). For a time they were travelling immediately behind the cattle truck which Mr Coudert described as swaying. He did not feel it was safe to pass the cattle truck and slowed down to 80 to 90 km per hour to give some distance between his vehicle and the cattle train. A little while later the red Mazda passed them and stayed between the Landcruiser and the cattle truck. Mr Coudert was between 50 m to 100 m from the cattle truck (ts 351).
While the cattle truck was still travelling in the left lane, he saw a white truck in the distance travelling towards the bridge. Mr Coudert described the other truck as 'very far in the distance' when he first saw it, 'it was hundreds of metres away' (ts 351 - 352). He said that when the other truck was coming towards the bridge the truck he was following did not seem to be slowing down, but there was still a long distance between the two trucks so that the truck he was following had plenty of time to stop. However, instead of slowing down and waiting on the left hand side to let the other truck pass, the cattle truck kept going and moved into the middle of the road in line with the bridge. At that stage Mr Coudert could not see the other truck or what was on the bridge because he was behind the cattle truck which masked what was on the bridge. The truck he was following was not braking or slowing down. Mr Coudert anticipated a collision was going to occur and he slowed down further. The next thing he saw was the cabins of the two trucks breaking into pieces and the trucks coming to a holt (ts 352).
He estimated the cattle train was travelling at 50 to 60 km per hour when it moved to the middle of the road which is where the road started to narrow before the bridge. It had slowed from 80 to 90 km per hour (ts 352).
He 'supposed' the cattle truck moved from the left lane of the road to the centre of the road where the road started to narrow. Although he said he really could not say what the distance was, he thought it was probably 100 m before the bridge but conceded it was 'hard to say' (ts 352).
In cross-examination Mr Coudert repeated that he thought the cattle truck was approximately 100 m before the bridge when it moved into the centre of the road. He said it was less than 200 m but it could be between 200 and 100 m but it was hard to say exactly. He said he could not say if it was 50 m or 150 m but when pressed further thought the distance was more likely to be 100 m (ts 353).
The red car was 20 m to 30 m behind the truck. Mr Coudert was a further 20 m to 30 m back behind the red car (ts 355).
He denied the red car was 100 m behind the cattle truck (ts 354).
The cattle train slowed from approximately 80 to 90 km per hour to 50 to 60 km per hour when it moved into the centre of the road. He did not see any brake lights on the cattle train before it reached the bridge (ts 356). Mr Coudert estimated the cattle truck was still travelling at 50 km per hour when it collided with the other truck (ts 356).
Mr Coudert pulled up 100 m away from the bridge and then ran to the bridge to assist anyone who was injured. He described the collision as a violent impact and did not expect the drivers to be alive.
In re-examination he confirmed he could not see the truck coming from the other direction after he had initially seen it because it was masked by the cattle truck's position (ts 358).
Florence Coudert
Ms Coudert was a front seat passenger in the Toyota Landcruiser being driven by her husband at the time of the collision.
When they came up behind the cattle truck she described it as swaying a lot (ts 378 - 379). They were travelling at 90 to 95 km per hour when they came up behind the truck. They then kept a distance between them and the truck after she asked her husband to stay behind the truck because she did not feel confident about passing the truck because of its swaying movement. They slowed down as they travelled behind the truck.
She confirmed a red car later passed them.
After the Willare Bridge she saw the cattle truck move into the middle of the lane as it was reaching the bridge. Because she thought to herself that it was not common to see trucks in France travelling on a highway moving into the middle of the road to cross over a single lane bridge, she took a camera which was sitting on her lap and took two photographs. As she put down her camera the accident had happened and debris was going everywhere. The photographs were taken less than a second, 'not even a second' before the accident occurred. She could not say how close to the bridge the truck was when she took the first photograph but it was quite close as the truck was going to enter the bridge (ts 380). She took the second photograph straight after the first. She was moving when she took the first photograph. The first photograph was blurred.
Ms Coudert said that they were travelling behind the truck when it passed over the Willare Bridge which was also a single lane bridge. She was waiting to see a truck again approach and cross over a single lane bridge which is why she had her camera on her lap waiting to take photographs (ts 383).
Ms Coudert said that she took the photographs as the truck was approaching the bridge. She said it was entering the bridge. The truck had travelled no more than 100 m to 200 m from the time she saw it move into the centre of the road to when she took the photographs (ts 384).
In cross-examination Ms Coudert estimated their vehicle was 100 m from the red Mazda when she took the photographs and that the red Mazda was less than 100 m from the truck. The truck moved from the left to the centre of the road (ts 384).
She agreed that the photographs she took showed that the brake lights of the truck were on which she said was immediately before the impact. When she put her camera down the impact was already happening (ts 385).
After the red Mazda passed them they maintained a distance of about 100 m between themselves and the Mazda (ts 385 - 386).
She explained in re‑examination that as the truck approached the Minnie Bridge it braked and so did the Mazda. Her husband also started to brake at the same time. Her vehicle and the red Mazda were nearly stopped as the truck was entering the bridge. As they braked there was always a distance of two to three car lengths behind the Mazda (ts 386). Their Landcruiser did not brake as early as the Mazda.
Paul Anthony Treacy
Mr Treacy and Ms Mason had been to Derby for the Derby Cup. He agreed that he was hungover. He was not paying attention to the cattle train until he saw another truck coming from the opposite direction. He noticed the truck travelling from the opposite direction when Ms Mason swerved to the middle of the road checking for oncoming traffic. He estimated they were about 500 m from the bridge at that time but conceded he was not very good at judging distances and was only guessing (ts 343). After pulling out into the centre of the road to check for oncoming traffic, Ms Mason then started slowing down knowing that they were approaching the Minnie Bridge which was a single lane bridge. They continued to slow down as they approached the bridge. The cattle truck stayed in the left lane and looked like it was going to give way to the other vehicle but then continued onto the bridge at the same time as the other truck (ts 343). The cattle truck moved into the centre of the road within about 10 m of the bridge (ts 344).
As the cattle truck entered onto the bridge he could see to the left of the truck and saw the rear end or rear trailer of the other truck on the bridge. The other truck was at least half way across the bridge (ts 344). Mr Treacy described the cattle truck entering onto the bridge and then colliding with the other truck. Both trucks crumbled on impact bringing them to a halt.
The car in which he was travelling was still in the left lane of the road and then pulled over onto the side of the road when the collision occurred. He then ran towards the bridge to see if he could provide assistance.
In cross-examination he said his vehicle was probably between 100 m to 150 m back from the cattle truck when it was 10 m away from the bridge which is when it moved into the centre of the road. He was uncertain about the distance. He also accepted that his vision of the bridge was obscured by the cattle truck. He has driven over that bridge from each direction many times, which he relied upon to estimate that the cattle train was about 10 m from the bridge when it moved into the centre of the road. He conceded the cattle train could have moved into the centre of the road at a greater distance than 10 m from the bridge, but it was not as much as 100 m. He repeated that he thought the cattle truck was going to stop but it just kept going forward and moved into the centre of the road when it ran out of space to stop (ts 345 - 346).
He said it did not look like either of the road trains were going more than 50 km per hour and could not say whether the other truck was travelling faster than the cattle train at the point of collision.
In re-examination he said when his car moved back behind the cattle truck it was still in the left lane.
Sharmal Mason
By consent a statement made by Ms Sharmal Mason to police on 15 August 2013 was tendered. She was the driver of the red Mazda. After her and her partner, Mr Treacy, left Derby they drove through to the Willare Roadhouse where they stopped for about 15 minutes to get some food. While they were there the cattle road train passed them. When they left the roadhouse she was driving at about 100 or 110 km per hour. She overtook Mr and Ms Coudert's Landcruiser not long after they left Willare. She caught up to the cattle truck and was then travelling at about 100 km per hour.
She is familiar with the Minnie Bridge having travelled that route a few times before. She pulled out to her right to see if any traffic was coming from the other direction. She saw in the distance a truck coming towards them but could not remember where the truck was in relation to the bridge. She did not see it long enough to gauge what speed it was travelling at. All that she could remember was 'a big thing in the distance'. At that time she was coming up to the 'Reduce Speed' sign. She decided she would stop before the bridge to let both trucks cross over the bridge before she travelled over it and started to slow down. Initially she thought about following the truck in front of her over the bridge but then decided she would let the other truck cross over the bridge first. She could not see the truck travelling towards them as the truck in front of her was in the way. The truck in front of her had its brake lights on.
She came to a stop about 200 m away from the start of the bridge where the road still had two lanes.
She only saw the trucks for a split second before they collided.
Other witnesses
Denis Graham Marshall
A statement of Denis Graham Marshall was also tendered by consent. Mr Marshall made the statement to police on 21 July 2013, that is, on the day of the accident.
Together with his wife he was travelling in a Mazda BT-50 from Broome to Derby. At about 8.40 am, about 10 to 15 km before the Minnie Bridge, Mr Jobson's road train passed Mr Marshall's vehicle. Mr Marshall had his vehicle's cruise control set at 92 km per hour.
He described the road train as having been tailgating him for a while and him being anxious for it to pass them.
As the trailers passed his vehicle they were fishtailing. He said the last trailer 'was fishtailing bad'. All of the trailers were fishtailing but the last was the worst.
He said that as they came close to the Minnie Bridge at about the 80 km sign on the Broome side he saw a waft of smoke. As they came around the bend they saw the smoke was coming from the road train and he realised there had been a collision.
His statement was taken at about 11.30 am by Constable Biggs.
Graeme Carthy
Mr Graeme Carthy was called by the defendant. Mr Carthy owns an earthmoving contracting business in Broome. He has driven a variety of trucks and truck combinations. He has driven road trains for over 35 years and most of that time has been in the Kimberley. He has driven cattle road trains in various configurations including triple road trains on many, he said hundreds, occasions. He has driven cattle road train configurations of a prime mover towing two trailers over many kilometres two to three days each week over a period of four years (ts 141 ‑ 142).
Mr Carthy explained that cattle trains are notoriously top heavy so that the centre of balance is very high making the road trains unstable, particularly on rough roads. It is therefore very important to keep the road trains straight and try to be gentle with the road train's movements by accelerating slowly, braking slowly and changing direction slowly. It is necessary to have regard to the swaying motion of a cattle road train caused by a high centre of gravity (ts 142).
Mr Carthy said that over a period of 35 years he has driven trucks across the Minnie Bridge in each direction probably a thousand times (ts 138, 143).
Mr Carthy described the approach to the bridge from the Derby (eastern) side as a straight approach for 2 km to 3 km from Ski Lake Bridge (ts 148). No one else referred to Ski Lake Bridge and I assume that the bridge Mr Carthy refers to is a different bridge to that described by other witnesses as the Willare Bridge. Mr Davidson said the Willare Bridge was about 5 km from the Minnie Bridge. Therefore, the Ski Lake Bridge must be between the Willare Bridge and the Minnie Bridge. Coming from the other direction Mr Carthy described the approach to the Minnie Bridge as:
And from the other direction it's quite a blind corner. And as you round the corner you suddenly come into a vision of a very narrow bridge, a one lane bridge, with a very short approach (ts 148 – 149).
Mr Carthy said that his practice when approaching the Minnie Bridge from the eastern direction was to start decelerating after he leaves the Ski Lake Bridge by lifting his foot off the accelerator and letting the truck slow down by itself. He described the need to approach the bridge with caution. He contrasted the approach to the bridge from the other, that is, the western, direction. He said that because there is almost a blind corner a vehicle approaching from the eastern direction can be closer to the bridge than yourself and you need to be in a position to slow down or stop so that the vehicle on the other side has time to cross over the bridge (ts 149).
His practice as he approaches the bridge from the eastern side is to slow down to no more than 50 km per hour and if no one was coming from the other direction to move to the centre of the road to line up the bridge. If there is no traffic behind him he can line up the bridge from as far out as half a kilometre so that he ensures the road train is travelling in a straight configuration, especially having regard to having only about a metre to a metre and a half space between either side of the truck and the bridge railing.
Therefore I am required to compare the culpability of each of Mr Davidson and Mr Jobson in causing the collision between the two trucks having regard to the whole conduct of each of them as drivers of the trucks, in relation to the circumstances of the collision.
I have earlier found that Mr Davidson in misjudging the speed at which Mr Jobson was travelling failed to exercise proper care as he approached the bridge by failing to further reduce his speed and brake and also in failing to stop before the bridge. However, that misjudgement as to Mr Jobson's speed must be considered in the circumstances where, as I have also found, Mr Jobson was travelling in the vicinity of 90 km per hour and therefore would have travelled a distance of 200 m to or near to the bridge entrance in approximately 8 seconds. Mr Jobson failed to significantly reduce his speed or apply his foot brakes before he entered onto the bridge. Also, Mr Jobson only moved into the centre of the road to line up the bridge just before the bridge entrance, probably when he was about 90 m away when the road began to narrow. That left very limited time for Mr Davidson to properly judge Mr Jobson's speed and the movement of his vehicle. At that time Mr Davidson was reducing his speed and was travelling in the middle of the road to line up the bridge from the eastern direction. Mr Davidson had reduced his speed to 53 km per hour when he was 53.5 m from his entrance to the bridge and immediately applied his brakes soon after, when he was about 40 m from the entrance to the bridge.
Mr Jobson was negligent in that he drove too quickly in all of the circumstances. He was also negligent in that he failed to see the Davidson cattle train until the last moment when he was just about to enter, or had just entered, onto the bridge. Mr Jobson failed to keep a proper lookout because he should have seen the Davidson cattle train as soon as he exited from the bend. The cattle train was then about 150 m from its entrance to the bridge. Had he seen the Davidson cattle train at that time, and had he been keeping a proper lookout, he would have seen the cattle train had lined up the bridge by being positioned in the middle of the road. If he was travelling at a safe speed of 50 km per hour, Mr Jobson would then have had sufficient time and distance to brake and stop before the bridge to allow Mr Davidson to first cross over the bridge.
Mr Jobson did not apply his foot brake until he had travelled approximately 100 m onto the bridge which is approximately half way across the bridge. He reacted too late to the oncoming cattle train. Had Mr Jobson reacted sooner, and had he been driving at 50 km per hour, he would either have been able to stop before the bridge or stop before the two trucks collided. At the very least the impact of the collision would have been much reduced.
I find that the greater share of culpability or fault for the collision between the two road trains lies with Mr Jobson. I attribute 80% of the fault for the accident to Mr Jobson and 20% to Mr Davidson.
Legal authorities
Although understandably, given the dispute between the parties principally requires findings of fact to be made and does not require the application and resolution of any point of legal principle, I was not referred to any cases, it is in my view helpful to briefly refer to some authorities. Perhaps the leading case which has considered which driver was negligent when vehicles travelling in opposite directions collide on a straight road is the High Court decision of Nesterczuk v Mortimore (1965) 115 CLR 140. The following facts and the decision of the trial judge are taken from the judgment of Owen J at page 154 to 155:
The accident occurred at about 7 p.m. on 22nd July 1961. The plaintiff was riding in a southerly direction along a road named Cavan Road, the road being straight with a bitumen surface twenty-two feet wide. The defendant was driving in a northerly direction. Both vehicles had their lights on and each driver saw the other vehicle approaching. Each said in his evidence that he was on his correct side of the road and that as they approached one another the other vehicle was on its correct side. Each said that he held to his course on his correct side of the road and that the other vehicle must have swerved to its right although neither could say that he had seen the other swerve. The vehicles struck one another a glancing blow. Apart from the evidence of the parties, there was nothing to indicate whereabouts in the road the collision had occurred and, in these circumstances, the learned trial judge was unable to say that the account given by one party was more probably correct than that given by the other and for this reason held that neither had established his case that the other had been negligent. Accordingly he dismissed the appellant's claim and the respondent's counterclaim.
Owen J then observed:
It is plain that the collision would not have occurred had not one or other driver or both of them failed to exercise due care and it was contended that if in these circumstances Travers J. was unable to decide that the accident was wholly due to the negligence of one or other, he was bound to take the view that both were to blame and apportion the damages recoverable according to the degree of blame to be attached to each. Since he had not taken that course this Court must do so. I am unable to agree. The learned trial judge was unable to determine whether the collision had occurred on the northern or the southern side or in the centre of the road and no good reason has been shown why, on the meagre evidence, an appellate court should take a different view. In the circumstances of the case, to say that the probabilities favour the view that both drivers were to blame rather than that one or the other was wholly responsible would be a mere guess.
In my view the factual circumstances before me are distinguishable from the circumstances in Nesterczuk v Mortimore. There is evidence which allows me to determine the circumstances of the accident and how and where the accident occurred. In particular the evidence of the independent witnesses to the accident provide a proper basis upon which I can make findings of fact and make findings as to who was negligent in causing the collision.
Nesterczuk v Mortimore was distinguished in Wheatland v Dickson (Unreported, WASCA, Library No 950588, 3 November 1995); (1995) 22 MVR 431. In that case two vehicles collided head on, on a country road on a curved section of the road where the visibility around the bend was restricted. The trial judge found that each driver was negligent in failing to pull over onto the shoulder of the road to allow the other vehicle to pass safely. The trial judge, relying upon Nesterczuk v Mortimore, dismissed both the claim and counter-claim on the basis that each of the plaintiff and the defendant had failed to establish her case in negligence.
Allowing the appeal and the cross-appeal the Full Court held that the case was not a case where the proper conclusion was that the accident must have been caused by the negligence of one or other driver but not both, unlike in Nesterczuk v Mortimore. The Full Court held that there was evidence which established that both drivers were negligent on the basis that neither driver took any evasive action before the collision when each driver was in a position where timely action should have avoided the collision. Therefore the proper inference was that neither was keeping a proper lookout and the negligence of each should have been accepted as making each equally responsible for the collision between the two vehicles.
Although there are clear factual differences between the facts of Wheatland v Dickson and the circumstances before me, there are also similarities. I am satisfied, as I have explained, that in the circumstances before me each driver was negligent in causing the accident by failing to keep a proper lookout and failing to brake and reduce speed.
The case of Moralee v Mosey (1990) 11 MVR 65 was referred to in Wheatland v Dickson. In that case two vehicles travelling in opposite directions collided head on, on the crest of a country road. The trial judge found the drivers to be equally responsible and apportioned damages equally. The Full Court dismissed the appeal and held that neither driver was keeping a proper lookout and upheld the equal apportionment of liability. The Full Court held that the trial judge was entitled to find that the defendant as he approached the crest of the road was straddling the middle of the road with a portion of his vehicle on the incorrect side rather than travelling towards the left of the road to allow an oncoming vehicle on the other side of the crest to safely pass. Each driver approaching the crest of a road, if exercising proper care, was required to reduce his speed in anticipation of there being a vehicle on the other side that would be difficult to pass which would require each vehicle to travel slowly and move hard to the left to enable the vehicles to safely pass each other. Because the plaintiff did not move to his left until a very late stage, it was held that that was consistent with his not keeping a proper lookout. The plaintiff was also negligent in that he failed to keep a proper lookout by reason of not seeing the other vehicle until it was too late.
Again, although there are factual differences in that case and the matter before me, there are also similarities, especially the need to approach a section of a road where both cannot safely pass each other without slowing down, swerving to the left and keeping a proper lookout. The case highlights the need for each driver to exercise caution when travelling on a section of a road where visibility of approaching traffic is limited and the road is too narrow to allow each vehicle to safely pass without taking evasive action.
Summary
In summary, I find Mr Jobson was principally at fault in causing the collision but Mr Davidson was also at fault. I apportion liability for the collision and resultant damages at 80% to the plaintiff and 20% to the defendant. Accordingly, having regard to the agreed quantum, I award the plaintiff the sum of $27,932.29 and the defendant the sum of $326,854.40.
I will hear the parties as to costs and the orders which follow from these reasons.
Annexure
Table of speed and distance travelled
Speed
km per hour
Speed
metres per second
3.6 1 10 2.78 36 10 50 13.89 53 14.7 60 16.67 65 18.056 75 20.8 80 22.2 85 23.7 90 25 100 27.8
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
KG
ASSOCIATE TO JUDGE HERRON12 OCTOBER 2018
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