Russell George Smith v Ian Paul Crummey No. SCGRG 90/1882 Judgment No. 3768 Number of Pages 6 Criminal Law and Procedure General Principles

[1992] SASC 3768

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA MOHR J

CWDS
Criminal law and procedure - general principles - Road accident - liability - plaintiff experienced truck driver - semi-trailer - swerved to miss defendant's van - truck rolled - closed head injury incurred by plaintiff - reject evidence of the defendant - witnesses testimony suggest defendant partially blinded by sun - failed to observe plaintiff's truck approaching - commenced turn - plaintiff swerved to avoid an 'horrendous collision' - memory loss by plaintiff - hypnosis - reconstruct accident through photogrammetry.

HRNG ADELAIDE, 30 November 1992 #DATE 17:12:1992
Counsel for plaintiff:     Mr P Eriksen
Solicitors for plaintiff:    Herman Bersee
Counsel for defendant:     Mr A Hilditch
Solicitors for defendant:    Ward &; Partners

ORDER
Defendant found to be solely at fault.

JUDGE1 MOHR J When this action was called on for hearing, counsel informed me that because of a recent deterioration in the plaintiff's medical condition it would not be appropriate to proceed with any consideration of the question of damages. Accordingly, the case proceeded on the basis that the only issue before me was that of liability. 2. The plaintiff was an experienced truck driver. He had about 22 years experience and knew the roads and route he would follow. 3. On the 11th October 1988 he was the driver of a semi trailer en route from Newcastle in New South Wales to Adelaide. He had left Newcastle just after midnight on the 10th October. In the early hours of the 11th October he had reached Accommodation Hill near Truro. He pulled up in a rest area and went to sleep. I mention in passing that during the trip from Newcastle to Accommodation Hill he had taken various rest and meal breaks. 4. At about 4.30 a.m. on the 11th October he was woken by his alarm. He looked around and decided he had plenty of time to complete his journey to Adelaide by his scheduled arrival time of 8 a.m. He slept for another half hour and proceeded. 5. He then drove in a generally westerly direction along the Sturt Highway. It was not challenged at the trial that he was then in full possession of his faculties. 6. The plaintiff gave evidence and it is necessary to say something regarding this. There can be little doubt that the plaintiff suffered a closed head injury as a result of the accident. Consequently he had a loss of memory for the events leading up to the accident. He said that at first he had no memory of events from the time he was at Accommodation Hill but he said after about three months he began to have a progressive recovery of his memory until he had almost complete recall of events. He said however, he could not say that what he believed to be a memory was truly such or whether it was a reconstruction following many discussions of events as recounted by other people who knew parts of the events. There was a suggestion that the purported memory was a result of hypnosis. The plaintiff denied that he had ever resorted to hypnosis. The report of Dr Huntley which was tendered by consent tends to support the plaintiff. He had enquired about hypnosis but the doctor had rejected the suggestion. The evidence of Dr Wood contained a suggestion that hypnosis was mentioned by the plaintiff when he saw him but although impressed by Dr Wood's evidence, in my opinion there is nothing in his evidence which shakes my belief in the plaintiff when he says he had no resort to hypnosis. On the other hand, I cannot accept that the plaintiff has any true recollection. In saying that I am not detracting from the plaintiff's truthfulness but rather, accepting him when he says he does not know whether what now appears to him to be a genuine recollection is one in fact. I prefer to believe that because of what he has been told he has reconstructed events. As Dr Wood said "It is nicer if you can make sense of the world generally", and I believe that is what the plaintiff has done. For these reasons I take no account of the plaintiff's evidence of what lead up to the accident after he awoke at Accommodation Hill. 7. The collision between the plaintiff's semi trailer and the defendant's van occurred at about 6 a.m., or slightly earlier, at the junction of Sturt Highway and Old Kapunda Road. For all practical purposes Sturt Highway runs West and East at that point and although it may be slightly curved it appears, again for all practical purposes, to be a straight road for some distance both East and West of the accident site. Old Kapunda Road makes a right angle junction running off to the South. The junction as one approaches from the East has a gradual entry prior to the junction proper for West bound traffic. On the East there is an exit road from Old Kapunda Road to Sturt Road for traffic emerging from it and wishing to travel West. There is in the centre of these entry and exit roads, which form a "Y" shaped pattern, the true right angle junction. Thus traffic travelling East must approach the junction proper and make a right angle turn in Old Kapunda Road. Similarly, although of no importance in this case, traffic emerging from Old Kapunda Road and wishing to travel East along the Sturt Highway must make a right angle turn to the right at the junction proper. 8. If traffic approaches the junction travelling East the traffic way is divided by a white line into two lanes. The Northern lane is for through traffic and the Southern for vehicles intending to turn right. For traffic travelling West the approach to the junction is again divided by a "rumble strip" into only one West bound traffic way on the South side of the Sturt Highway. The rumble strip is broken to allow vehicles to turn into and out of Old Kapunda Road. 9. A Mr Schilling an experienced truck driver, was working that morning. His job that morning was to take his semi trailer tip truck to a quarry about 3 to 5 kilometres East of the accident site and load it with crushed gypsum and take the load to Wingfield in Adelaide. He completed loading at about 5.30 a.m. The quarry is adjacent to the Sturt Highway. When he came to the entry onto the Sturt Highway he waited for two semi trailers to pass. He estimated their speed at about 95 kph to 100 kph and said they were about 100 metres apart. Having allowed them to pass he followed. From subsequent events it appears that the plaintiffs was the second of these two trucks. Mr Schilling came on the accident sight when he saw the plaintiff's truck upside down with its wheels still spinning and the dust of the collision still settling. He saw the damaged bread van in the middle of the road. He subsequently offered to assist but by then others were there and he could do nothing so he continued on his way. What must have been the leading truck of the two he had seen at the quarry exit was not in sight. 10. A Mr Hall, a consulting engineer, gave evidence of his reconstruction of the accident using the data obtained form skid marks left by the plaintiff's truck and a method known as photogrammetry. It appears clear from Mr Hall's evidence and more particularly the skid marks left by the plaintiff's truck that as the plaintiff approached the junction on his correct side of the "rumble strip" to the East of the junction something happened which caused him to apply his brakes violently, swing to his right and across the rumble strip at an angle and collide with the defendant's vehicle in what Mr Hall described as "a typical side swipe". The impact was between some part of the left side of the semi trailer and initially to the front left hand corner of the van and subsequently along the van's left hand side. The rear part of that vehicle is a little wider than the front cabin part. The whole of the side of the van proper was ripped off by the impact. Mr Hall gave the opinion that the impact would have imparted an anti clockwise turning movement to the van as well as forcing it backwards so that it came to rest at a diagonal angle to the Sturt Highway with the rear in the exit mouth of the turn right lane. The plaintiff's semi trailer became out of control and continued for some distance in a Westerly direction before overturning on the Northern side of the Sturt Highway after colliding with an electricity pole. 11. As remarked earlier, there was no suggestion that the plaintiff was other than in full possession of his faculties and the problem confronting any reconstruction of the cause of the accident is to discover why he applied his brakes as he did and why the swerve to the right? In considering those questions I bear in mind that on the balance of probabilities he was travelling at about 95 kph to 100 kph and driving a heavy and not very manoeuvrable vehicle. 12. I turn now to the defendant's evidence. He was driving a comparatively light vehicle owned by Tip Top Bakeries. It was loaded with bread and he was delivering bulk supplies of bread. His destination was Nuriootpa. He was approaching the Old Kapunda Road junction travelling in an Easterly direction. He intended to make a right turn into that road and in preparation for that entered the right turn lane. He said in evidence that his left hand wheels were almost on the line to his left and he was clear of the "rumble strip" to his right. He said he slowed as he approached the turning point intending to make as wide a turn as possible at a speed of about 20 kph. In his evidence in chief this passage occurred:-
    "Q When executing the right-hand turn you normally take a
    somewhat high wider berth.
    A Yes, push it out to the left.
    Q On the day of the accident you did a right-hand turn and
    you occupied a position with your left-hand wheels pretty close
    to the centre lane.
    A Yes.
    Q Did you observe anything then by way of traffic.
    A No, not at that stage, no.
    Q What happened after that.
    A I started to sweep to the right to take the sweep through
    the corner and at that stage I saw the truck coming from the
    west." 13. At the time he made the manoeuvre, describing his speed, he said it was about 15, 20-25 kph. Whatever gloss the defendant put on it, it was clear from his evidence that quite apart from driving in the turning lane, with his indicator lights working, as he got to the end of the lane he made a turning motion to his right and that was when he first saw the plaintiff's truck. From then on and accepting Mr Hall's reconstruction, which is born out by the skid marks left by the plaintiff's truck, the defendant apparently attempted to straighten up again and may indeed and have turned his steering wheel to the left and perhaps at the last moment to the right again. There was some evidence from Mr Hall about how the defendant could have manoeuvred his van if his left hand wheels were on or near the white line to his left as the defendant said in evidence they were. However in statements more contemporaneous with the accident he said his right hand wheels were near the rumble strip to his right. As will appear I am of the opinion that the defendant made an appreciable turn to his right before the plaintiff commenced his braking and turning. I do not find Mr Hall's reconstruction helpful in this particular instance except to say that the defendant could have done as Mr Hall suggested. The defendant in his evidence was adamant that he was not in any way dazzled by the sun which was by all accounts just clearing the horizon more or less directly in his direction of travel. The defendant's version was that he had appreciated the fact that he could not turn with safety and was stationary or nearly on a level with the turning lane on his correct side of the road (ie clear of the plaintiff's path) before he saw the plaintiff apply his brakes - apparent to him because he saw smoke coming from the rear wheels - and commenced his swerve to his right so that the side swipe collision occurred. 14. Several people who came to the scene and who spoke to the defendant were called and gave evidence. 15. Mr Heintze, a dairy farmer, who lives about a 100 metres North of the Sturt Highway, was awoken by the sound of the collision. He dressed and went to the scene within about five minutes. He went first to the semi trailer. There were by then other people there. He saw the driver of the bread van, the defendant, wandering around. He approached him and asked if he was hurt. He appeared somewhat dazed and Mr Heintze tried to calm him down and took him to the side of the road. He said the defendant said "The sun blinded me" and repeated that remark he recounted "about three times". Ms Adams, an enrolled nurse was driving to work along the Old Kapunda Road when she came on the scene of the accident. She assisted with the treatment of the plaintiff who was trapped in his overturned vehicle. She also spoke to the defendant. Her account of what the defendant told was this:-
    "The driver of the bread truck told me that he was turning into
    Old Kapunda Road and that there was two trucks and he had seen
    the first truck, but the sun was, at that stage of daybreak,
    where it was too bright and he hadn't realized that the second
    truck was travelling behind and he had started to go, turn into
    Old Kapunda Road, thus the truck hitting the bread truck,
    because it was on the righthand side of the road turning." 16. Later she said "he (the defendant) just said that the truck slammed on the brakes and just pushed his truck". Mr Murphy was an interstate truck driver. He came on the scene and spoke to the defendant. He asked him how he was and the defendant said "alright". Mr Murphy asked the defendant what had happened and the defendant replied "I never saw him, I turned in front of him". 17. I accept the evidence of these three witnesses as not necessarily giving a verbatim account of their conversations with the defendant but certainly giving the essential sense of what he said. All witnesses who were at the site at relevant times agreed that it was a fine clear morning with the sun low in the Eastern sky. 18. From all of the evidence I find that a clear picture emerges of the events which lead up to the collision. 19. From the plaintiff's point of view he was approaching the junction at a speed of 95 - 100 kph. He would have known there was another semi trailer ahead of him. He would have seen the defendant's vehicle enter the turning lane with his indicator lights operating signalling an intention of making a right hand turn. As it cleared the end of the turning lane it commenced to turn across his path. It was still moving. He realised that if it continued on its turn, and he had no indication that it would do otherwise, it was almost inevitable that it would be about broadside on to his vehicle and that if he continued would collide with it. His reaction to this scenario of terrible danger was to apply his brakes hard and swing to his right across the "rumble strip" in an effort to avoid collision. He would have avoided the defendant if the defendant had not changed his course but had continued with his turn. 20. I reject the defendant's evidence and find it more probable than not that the account he gave the three witnesses referred to above and in particular to Ms Adams is what actually happened. That is to say that the defendant, partially blinded by the rising sun did not observe the plaintiff's approach and commenced a turn across the plaintiff's path leaving him no option other than to do what he did in an effort to avoid an horrendous collision. 21. I find the defendant solely at fault.