Smibert Group Transport P/L v Clifford - [2005] SADC 80

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
SMIBERT GROUP TRANSPORT P/L v CLIFFORD
Judgment of His Honour Judge Smith
8 July 2005
TORTS
NEGLIGENCE - NUISANCE
Dead and diseased gum tree fell across highway in storm – plaintiff’s truck collided with tree – action against occupier and landowner – whether public nuisance in application to highway cases absorbed by principles of negligence – whether provisions of s17C of Wrongs Act create a statutory cause of action separate from negligence – whether “public policy floodgates” argument applicable – held landowner in breach of duty of care to remove trees obviously at risk of falling – held driver guilty of contributory negligence – responsibility for property and loss of use damages in the sum of $175,633.40 – apportioned 90% against defendant 10% against plaintiff.
Wrongs Act 1936 s17C(1), 17C(2)(e)(ii), 27A, Part 1B, Part III; Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 ss 6, 7, 8 and 9; District Court Act 1991 s39, referred to.
Scott v Numurkah Corporation (1954) 91 CLR 300; Gillespie v Steer (1973) 6 SASR 200; R v Ireland (No. 2) [1971] SASR 6; R v Cox (1997-98) 196 LSJS 3; R v Quinn (1962) 2 QB 245; Brodie v Singleton Shire Council (2001) 206 CLR 512; Kenny & Good Pty Ltd v MGICA (1992) Ltd (1997) 77 FCR 307 ; Wyong Shire Council v Shirt (1980) 146 CLR 40; Graham Barclay Oysters Pty Ltd v Ryan (2002) 77 ALJR 183; Sullivan v Moody (2001) 207 CLR 562; Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; Caparo Industries PLC v Dickman [1990] 2 AC 605; Phelps v Western Mining Corporation Ltd (1978) 20 ALR 183; Ogle v Strickland & Anor (1987) 71 ALR 41; Caminer v Northern & London Investment Trust Ltd [1951] AC 88; Morris v Luton Corporation [1946] 1 KB 114; Stoeckel v Harpas (1971) 1 SASR 172; Pennington v Norris (1956) 96 CLR 10; Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529; Teubner v Humble (1963) 108 CLR 491; Evers v Bennett (1982) 31 SASR 228; Johns v Silby [1939] SASR 133; Antonow v Leane (1989) 53 SASR 60, considered.

SMIBERT GROUP TRANSPORT P/L v CLIFFORD
[2005] SADC 80
Introduction

This property damage claim, in negligence and nuisance, arises from an accident which occurred on the Penola to Millicent Road at about 6.15 am on Sunday 28^th May 2000. An unladen semi-trailer owned by the plaintiff and driven by its employee, David Finlayson, collided with a large tree which had fallen from the defendant’s property across the roadway. The tree had been blown down probably that night by the force of a storm which had passed through the South East area of the State the previous day and which was only just abating at the time of the collision.
The plaintiff’s semi-trailer was extensively damaged. The driver, David Finlayson, and his wife Elizabeth, who was a passenger in the truck, were both injured. This claim, however, is limited to the cost of repairing the truck and other consequential losses. The quantum of the claim was eventually agreed at $175,633.49.
The Parties
The plaintiff corporation owns and operates a road haulage business, the depot for which is in Millicent. The semi-trailer here involved is one of a fleet of three trucks.
The defendant is, and has been for many years, the owner of an historic grazing property known as Yallum Park which is situated some 8 kilometres west of Penola. The property is on the northern side of the Penola to Millicent Road. There was no dispute that the tree, with which the plaintiff’s truck collided, fell from the Yallum Park property across the fence line and blocked the road.
The defendant did not give evidence. He had suffered a stroke and, at the time of trial, was undergoing rehabilitation in the Warrnambool Hospital.
The defendant’s son, Andrew Glen Clifford, was the principal witness for the defence. He had grown up at Yallum Park. He leased the property from his father about five years prior to trial for grazing his beef cattle. He lived nearby on his own property. The defendant lives in the Yallum Park homestead. It was accepted that the defendant was responsible for the management of the trees on the property. Andrew Clifford said that managing the trees, in the sense of removing them or obtaining advice in respect of them, was a capital expense which was the responsibility of his father (249). It was clear that, in addition to running his beef cattle on the property, Andrew Clifford assisted his elderly father to run the property (248, 249). To use his own words he was his father’s “eyes” around the property (249).
So there is no issue as to the proper defendant being before the Court (199).
The Pleadings – The Issues – The Respective Cases
The plaintiff has pleaded its claim in common law negligence, nuisance and, by amendment, it also relies upon s17C(1) of the Wrongs Act 1936 (as amended).
The defendant denied negligence and nuisance and, I accept, also denied the applicability of s17C(1) of the Wrongs Act 1936. Further, the defendant pleaded that, if primarily liable, then the plaintiff, by its servant or agent Finlayson, was guilty of contributory negligence.
The plaintiff’s case is that the defendant knew or ought to have known of the risk that a tree would collapse onto the roadway, but that he did nothing to address it whereas it was within his power to clear the trees at risk.
The defendant’s case is that he did not know of the risk and could not by the exercise of reasonable care have known. He contended that the collision was an accident “pure and simple” in that the collapse of the tree across the road was the result of extreme and unpredictable weather conditions.
Finally, the defendant mounted a public policy argument which was articulated in his counsel’s final address in the following terms:
The defendant was not negligent in that he did not breach his duty of care to Mr Finlayson and/or there are policy reasons why a finding of negligence should not be made against the defendant. A finding of negligence against the defendant will have the effect of “opening the floodgates” for actions against farmers, councils and any land owner or occupier who has dead or live trees on his premises, especially if such trees are of an introduced species.
Witness credibility
There were challenges, in particular, to the credibility and reliability of David Finlayson based upon two prior allegedly inconsistent statements. I will deal with the impact of those statements as I traverse the circumstances.
Mr Andrew Clifford was, at times, overly resistant to the suggestion that he and his father ought to have foreseen the collapse of the trees across the fence alignment. His denial of being aware that trees had collapsed over the fence line is hard to accept. Nonetheless, I hesitate to find that he was other than an honest witness. Rather, he was understandably reticent about incriminating his father.
The conflict between the two opposing forestry consultants, Mr David Quill for the plaintiff and Mr David Geddes for the defendant, was more apparent than real. The differences between them was in the end a matter of emphasis only, though Mr Geddes was at times reluctant to make reasonable concessions and required much cajoling by counsel, Mr Abbott.
There was some conflict between the engineer Mr Christopher Hall and the scientist and engineer Professor Thomas Trigg. Both were called by the defendant. Mr Hall deferred to the better expertise of Professor Trigg. Whatever the differences, both were candid and helpful.
The Circumstances of the tree falling
I now turn to the subject tree and why and how it came to fall across the road.
The following constitutes my findings. Where there are contentious matters, I will identify them and make specific findings in relation to them.
● Uncontentious history – Characteristics of subject tree
Yallum Park, which originally consisted of 117 square miles, was established by the late John Riddoch in 1882. He was one of the pioneer wine growers in the Coonawarra region. He died in 1901. He established gardens and stands of exotic trees in and around the Yallum Park homestead. He is also credited with planting an avenue of trees including Tasmanian Blue Gums “… all the way into Penola ... so Ms Riddoch didn’t have to ride in the sun ...” (Clifford, 225). This avenue also extended westwards towards Millicent along the fence alignment of the Penola to Millicent Road. The subject tree was probably one of this stand.
The aerial photographs show, in particular, the homestead and the surrounding trees (see Exhibits P20, P21.)
The Clifford family became owners and occupiers of Yallum Park in 1917.
The subject tree was, as indicated a Tasmanian Blue Gum (Eucalyptus Globulus) (84). It was an exotic tree, that is, a tree not native to the area. They grow naturally in the valleys and foothills of Tasmania and in the Great Dividing Range (see Quill 84, 85, 89; and Exhibit P4). In their natural setting they live for 200 to 400 years, and will achieve 30 metres in height in 20 years, and 50 to 60 metres in height in 100 years (Quill 463; see also Exhibit P19 p10). By counting those rings which could be distinguished from the internal rot, the forestry consultant, Mr David Quill, was able to say that the tree was no less than 90 years old and perhaps in excess of 100 years old (86). It was dead and “… might have died in the four years …” preceding the accident (see Exhibit D13 at p2; see also Quill 93). It was bereft of foliage (84). It was virtually the trunk which blocked the roadway (see Exhibit P13 photograph). This tree did not achieve its optimum height and moreover died prematurely because it was growing in non-natural or “sub optimal conditions” (Quill 463).
There was some immaterial disagreement between the two forestry consultants about the dimensions of the tree. Mr Quill estimated the trunk which blocked the road to have been 30 metres long (88), and the height of the tree given some foliage at more than 30 metres (Exhibit P19 at p4), whereas Mr Geddes said that the tree was approximately 27 metres high. As to the diameter of the trunk, Mr Quill said that was 910 mm at its base and 720 mm at a height of 22 metres whereas Mr Geddes said that at 1.5 metres the tree was 915 mm. Mr Quill estimated the weight of the trunk to be 11.4 tonnes whereas Mr Geddes estimate was 7.5 tonnes (see reports Exhibits P4 and D13). Whatever the precise dimensions, the trunk presented a formidable obstacle and relevantly it not only blocked the bitumen surface of the roadway but also the verges on both sides.
· What caused the tree to fall?
The immediate cause of the tree falling was the storm which passed through the area on the day or so preceding the collision.
Mr Lyndon Eason, a local farmer, who was first on the scene, spoke of “very very strong winds and heavy rain” on the previous day (130, 138). He added that on the morning of the accident, whilst “still breezy” the wind had subsided (143, 145). Constable Martin who drove to the scene of the accident from Penola shortly after the accident said that the weather at the time was blustery with a fair bit of rain (205). He said the winds were strong and that such weather was not unusual for the South East (205, 217). The ambulance officer, Glen Sparks, who set out from Mt Gambier at 6.49 am (378), said that there was “quite a bit of debris ... branches leaves laying across the road ...” as a result of a storm having passed through (378).
Neither David Finlayson nor his wife said that they were alarmed by the weather as they headed off from Penola (28, 29, 45, 69). David Finlayson described the wind as “a bit blustery but not strong” (45), and Elizabeth Finlayson spoke of the wind being “gusty” (69). They said that there were a few twigs and smallish branches on the verge and edge of the road, but nothing substantial (30, 46, 47, 52, 69). They both said that they never considered there was a prospect of a tree being blown across the road (37, 69).
Mr Geddes suggested in his report that it was “freak” weather (see Exhibit D13 p2). There was no evidence supporting the view that the weather was unprecedented, if that was what Mr Geddes meant. Winter storms of considerable severity are not unusual in the South East of South Australia and no witness apart from Mr Geddes put it higher than that (Clifford 262; Eason 130, 138; Martin 205, 217; Sparks 378; and Woodley 390).
I find that the collapse of the tree was caused by the storm which while severe was neither unpredictable nor unprecedented.
There was no direct evidence as to when the tree fell. Fixing a precise time is not necessary. It must have happened a short time before the collision. As indicated, it blocked not only the bitumen carriageway, but also the dirt verges. The Penola to Millicent Road could not be characterised as an insignificant scarcely used country road and, therefore, such a major hazard would be unlikely to be left unreported and unattended to for a substantial period of time.
It is clear, from all the evidence, and indeed from ordinary human experience that trees whether native or introduced, tall or short, alive or dead, can be blown over by the force of a storm. Indeed it was a common experience in the South East. Mr Andrew Clifford gave evidence of his experience of live flourishing trees being blown over at Yallum Park (228). Though Mr Quill insisted that in “virtually all cases” where complete trees have been blown over in the area, it had been as a consequence of them growing on shallow soils (92).
Mr Geddes said that “dead eucalypts can often remain perfectly safe from falling over for many years” (see Exhibit D13). Mr Geddes was there, by inference, suggesting that the mere death of a tree was no ground for removing it. Mr Quill accepted that it was true of eucalyptus trees, but only if they were growing in their natural environment (89). I accept Mr Quill’s evidence as to this. Mr Geddes effectively agreed with that reservation because he said that, if asked to advise on the fate of the trees at Yallum Park before this collision, he, like Mr Quill, would have recommended the removal of the subject tree (Geddes 443; Quill 91).
I set out hereunder what the evidence has established as to the so-called “sub optimal conditions” and why this tree was, throughout its life, susceptible to being blown down and particularly so once it had died.
● Shallow Soil. In its natural environment the blue gum grows in deep rich soil whereas in the South East region generally there is a shallow layer of soil over a bed of limestone. Approximately 300 to 450 mm of soil is regarded as shallow. The limestone inhibits the free growth of the tree’s root system and in particular “precludes the development of large roots which give the tree stability…” The subject tree at Yallum Park was growing in only about eighteen inches of soil over a bed of limestone.
(Quill 83, 84, 85, 92, 97 and 98; see also Exhibits P4 and P19; Geddes 369-371)
● Alkaline soil. The blue gum prefers and in its natural environment grows in acidic soil, whereas the soil in the Yallum Park area is alkaline. In particular the ph level of the soil at Yallum Park was 8.5 increasing with depth to 9.0, which is a high level of alkalinity.
(Quill Exhibit P19 at p11; Geddes 414, 415; see also Exhibit D16 at p3)
● Susceptible to root rot and borers. The blue gum tree as an introduced tree is more susceptible to borers and root rot. Native trees have more resistance than introduced trees to the fungi and insects which cause rot. The subject tree had rot in the trunk and the roots were also rotten. This compromised the stability of the tree even when dead.
(Quill 84, 89; Geddes 367, 368 and 436)
● Water logging – inundation. The water table in the South East is high (ie from zero to 2300 mm). When the soil is wet or moist, particularly in winter, the tree’s grip on the ground, through its root system, will be compromised, as cohesion will be reduced by the lubricating effect of water. In its natural environment the blue gum tree grows in soils that retain moisture without becoming waterlogged.
(Quill 471; see also Exhibit P19 at 10, 11; Geddes 424, 425).
So I find from all the evidence that the subject tree was planted in the early days of the establishment of Yallum Park in the late 19^th century. It was planted in about 18 inches or so of soil over a bed of limestone and so its stability and grip on the earth was probably impaired. However, it grew and survived for approximately 100 years. Having attained a height of 35 metres in about 1995, it became moribund and eventually died from perhaps fungal or insect attack. The root system rotted, exacerbated no doubt by regular inundation. The tree lost its foliage. It became unstable by reason of a lack of underlying root support. Finally, in the early hours of Monday morning the 28^th May 2000, it succumbed to the winds which accompanied the storm and collapsed across the roadway.
● Was the defendant aware of the risk of the tree falling and if not, should he have been aware?
As indicated, the defendant did not give evidence so there is no direct evidence as to his state of mind.
Counsel for the plaintiff, Mr Abbott, in the course of his cross-examination of Mr Andrew Clifford, ultimately elicited from him that he, Mr Clifford, knew that blue gum trees were not ideally suited to the area, and that as a result, they were susceptible to falling over (see in particular 270).
The next step in the plaintiff’s case was to convince the Court to impute that knowledge to the defendant, pursuant to some ill-defined agency relationship between Mr Andrew Clifford and the defendant. The defendant did not take issue with this contention, but nonetheless I am reluctant to take such a step. In any event, overwhelming evidence eventually emerged which convinces me that, for many years before the time of the collision, the avenue of trees, including in particular the stand of trees to the west of the entrance to Yallum Park, had been in such an obvious state of decline that not only Mr Andrew Clifford knew of it, but also the defendant who after all lived there must also have been aware of it.
Most of this evidence of a widespread and obvious decline emerged after the Court viewed the scene of the accident.
At the view, which took place on the 23^rd February 2004, the Court, amongst other things, walked the kilometre or so stretch of the Penola to Millicent Road from the Kalangadoo turn-off to a place just west of the point of collision. On the Yallum Park side of the road, the Court observed a virtual grave yard of dead, dying, collapsing and fallen trees, of which a great many were blue gums. It was obvious that the late Mr Riddoch’s avenue of trees had come to the end of its life.
It was clearly impermissible to use what was seen at the view as evidence. However, the revelation caused the parties, in particular the plaintiff, to reconstitute their cases. The trial was adjourned. The two forestry consultants were rebriefed. Both revisited the site. They each provided further reports which were admitted into evidence and both gave further evidence. What was seen on the view became evidence and was made the subject of expert comment.
Before I turn to my findings as to this evidence, I acknowledge that the view could only be used by me to facilitate the appreciation of the actual admissible evidence before me (see Scott v Numurkah Corporation (1954) 91 CLR 300 at 310-311). Further, I indicate that I will have regard to the evidence of Mr Andrew Clifford only insofar as it is evidence of factual matters relating to, for instance, the history of the management of the trees at Yallum Park.

As to the defendant’s knowledge of the state of the trees, I find as follows:
·In 1986 the defendant effectively “thinned” a half-mile stretch of the avenue of trees east of the homestead entrance. The trees were “untidy on the ground with a lot of logs and dead timber lying on the ground …” and were “getting to the end of their life …”. (Clifford 239, 262, 263; see also aerial photographs Exhibits P20 and P21).
·In September 1999 what was probably a blue gum tree collapsed across the Penola to Millicent Road. It was such a tall tree that it damaged the Eason fence on the other side of the road. The tree fell from the same stand of trees just to the west of the entrance to Yallum Park from which the subject tree fell. Mr Eason was called to the scene. He cut the tree up with a chainsaw and pushed it off the road. He did not specifically inform the Cliffords. Mr Andrew Clifford said he was not aware of this incident. However, some of the sawn sections of the tree were pushed off the roadway onto the verge on the Yallum Park side of the road and moreover the Yallum Park boundary fence must have been damaged (Eason 107, 108, 118 and 127; Clifford 227, 228, 258, 259-261).
·Near to the spot from where the subject tree fell, namely to the west of the entrance to Yallum Park, there were other blue gum trees which were dead or moribund and “… within 20 metres of the fallen tree was another which had fallen over against and supported by a neighbouring tree …”. (Quill 84-87; see also report Exhibit P4 at 1, 2 and 5).
·Along the stretch of woodland running approximately east from the entrance to Yallum Park to the intersection of the Kalangadoo road, there were many dead and fallen blue gum and other exotic trees. Further, there were the unmistakable signs of trees having fallen onto the boundary fence and in some instances perhaps also onto the roadway. For instance, there were obvious fence repairs extending down the height of the fence and in many instances near to the repaired fence were sawn up logs. These trees and others which had collapsed had fallen in the direction of the prevailing winter winds, namely in the direction of the road. I accept Mr Quill’s evidence that, as at March 2004, given the state of decay, certain identified trees shown in photographs had fallen; one more than a year ago (451), two others greater than five years ago (453, 454), several others as recently as two years ago right back to grades of five and certainly up to 10 years ago (455). I accept also his evidence that there were virtually no live blue gums left in the woodlot. (Quill 447-457; see also report Exhibit P19 at 3, 4 and 5; see also photos Exhibits P22, 23 and 24.)
·The plantation was in what must have been an obvious decline 25 years ago (Quill 464).
I find that the defendant must have known, if not all, then most of the above facts.
The Circumstances of the Collision
I now turn to the evidence and my findings in respect of the accident itself and the surrounding circumstances.
Again, the following, which in large measure is a narrative, constitutes my findings. Where there are contentious matters, I will identify them and make specific findings in respect thereof.
● The Driver
The plaintiff’s driver, David Lancelot Finlayson, was at the time of the collision 49 years old. He had been driving semi-trailers and road trains since 1982 (22). He had been employed by the plaintiff for about 18 months as at the date of the collision (24). He was familiar with the South East area by reason also of having had employment with other trucking companies who were headquartered in the area (24). He gave evidence of his driving record and, in particular, said that he had not before been involved in a reportable collision (25). I am satisfied that David Finlayson was an experienced, conscientious and careful driver.
On Friday morning the 26^th May 2000, David Finlayson had unloaded in Adelaide and returned empty to the depot at Millicent (26). Over the weekend he was to take a load of pine posts from Millicent to Loxton (25, 26). His now wife, Elizabeth, travelled down from Adelaide and joined him at Millicent. They stayed the Friday night in the Millicent Caravan Park. At about 10am on Saturday, after loading the posts at the local mill, they headed off to Loxton via the Millicent to Penola Road (26). They arrived at Loxton at about 3pm and having unloaded, commenced their return journey at about 5pm (27). They arrived at Bordertown at about 9pm and parked for the night in the Caltex Roadhouse (27). The Kenworth truck was equipped with a double bunk. They retired early. They left Bordertown heading to Millicent at about 5am the next morning and, after a short stop in Naracoorte, reached the Millicent turn-off in Penola at about 6am (28).
I accept, and find, that David Finlayson was well rested and alert at the time he turned right at Penola and headed west to Millicent.
● Weather and Road Conditions
I refer to my previous findings as to the weather conditions.
As the truck headed out of Penola, a misty rain began falling which required David Finlayson to put his windscreen wipers on at the intermediate setting (29). The roadway became damp (30). The Penola to Millicent road is a two lane carriageway of bitumen, which is 6 metres in width. It runs approximately east and west. The surface is slightly undulating (20) and the speed limit in the area of the collision was accepted to be 100 kph.
● Light - Visibility
Sunrise was at 7.10 am (see Exhibit P5). That of course does not necessarily mean that prior to that time it was dark. David Finlayson’s evidence was that at the time of leaving Penola “... it was neither dark nor light; ... it was just on the break of dawn ...” (29). His wife effectively agreed. In particular, she said “... it was grey but eerie ... a small amount of light not bright light ...” (14). Later, she expressed it as “... half way to three quarters of light ...” (64). Mr Eason, who within minutes of hearing what must have been the sound of the collision, drove out onto Millicent Road, said that “... you couldn’t see a lot ...” and that the light was “... minimal very minimal ... you could not drive up the road without your lights on, there was just no way ...” (103). Constable Martin said that on arrival at the scene “... it was still dark, dark enough to have your lights on ...” (207). The ambulance officer Sparks said that at the time of leaving Mt Gambier (ie 6.49 am) “it was almost dawn, the day was just breaking ...” (379). The Finlaysons, Mr Eason and Constable Martin had their headlights on but were unsure about whether they were on high or low beam (29, 47, 66, 78, 103, 206).
I find that there was some natural light and as to this I rely upon the evidence of the Finlaysons. Their evidence was not categorically contradicted by Eason, whom I am satisfied was the first on the scene. I prefer their evidence to that of Constable Martin if indeed he was asserting that it was, as it were, dark as night. As to the weather and road conditions, I also prefer the evidence of the Finlaysons and Eason. In particular, I accept that the wind was gusting, that there was insubstantial foliage blown onto the roadside and that the roadway was damp.
Such conditions required a driver to be more vigilant and careful than would otherwise be the case.
I now return to the narrative.
● Speed
The truck speed was governed at 103 kph (31). David Finlayson said that as he headed off west from Penola, his truck was travelling at 85-90 kph (31). He added:
At that time I wasn’t in any particular hurry, I had another full day to have rest back in Millicent. Conditions were that sort of light; I thought I don’t have to go full out through there, it’s a bit of a dog leg in the road in that area as well. I don’t know what’s around the corner. I have been in a situation before where I have come around a bend and I have hit sheep, I have hit a cow. I back off just a little bit. My partner at the time asked me what was wrong and I said ‘Nothing’.
(31)
Later the following exchange took place:
Q.Can you tell us what happened as you were approaching the first of those bends, you said you were going 85 or 90 you thought.
A.Yes, I went around the first one okay because going that way my vision that way was better than going left. There were no problems there. On the second one I sort of backed off just a little, I am not sure what’s around that way, and with the conditions the way they were. I don’t know if there is an animal out of a fence, if there is an animal around I just take a little extra care, precaution, went around that way going to the left-hand turn.
(33)
So, Mr Finlayson was asserting that his speed as he exited the left bend was less than 85-90 kph (34, 35). In other words, the evidence indicated two lots of “backing off”; the first upon leaving Penola, and the second on emerging from the “S” bend (35).
Mr Finlaysons’ reference to the dog leg was a reference to a shallow “S” bend which can be seen on the map, Exhibit P1, and to some extent also on the aerial photograph (see Exhibit D12; see also 33). A vehicle travelling west emerges from the “S” bend after negotiating a left-hand turn and there follows a straight section of roadway through an avenue of trees for approximately 1 km to the entrance to Yallum Park (40). The place of the collision was 45 metres west of the entrance to Yallum Park (see Exhibit D2).
Mrs Finlayson said that the speed of the truck in the journey from Penola was “85, 87 maximum” (64). She said that when David Finlayson did not increase it to his usual 100 kph she made an enquiry as to whether anything was wrong (65).
I turn now to the impact, if any, on David Finlayson’s evidence of two prior arguably inconsistent statements.
● Statement of Finlayson to Insurance Investigators 25^th June 2000
In cross-examination David Finlayson accepted that in a statement provided by him to Investigators on the 25^th June 2000, he said that the speed of the truck at impact was “in the region of 85-90 kph” (60; Exhibit D1). That was arguably at odds with his earlier evidence which in broad terms was that the truck was initially travelling at 85 to 90 kph and there followed one, if not two, instances of “backing off” followed by a braking and some emergency braking. The statement of the 25^th June 2000 was tendered for the purpose of contradicting his evidence and rendering it unreliable.
Further, in the course of cross-examination about this statement, David Finlayson said “I was probably doing 100 coming out to that area where we had the dog leg, but through there I had backed off ...” (60). On the face of it, that assertion is inconsistent with his evidence that soon after leaving Penola the truck speed was 85 to 90 kph.
So how do these two matters impact on David Finlayson’s credibility and reliability?
Firstly, what David Finlayson said in the statement as to the speed of the truck at impact begs further inquiry. What did he mean by “in the region of ...”? At an earlier place in the statement he said that the trucks speed was “... in the region of 85 to 90 kph ... as we moved into this dog leg ...” That part of the statement is consistent with his initial testimony and that of his wife. So the statement itself is internally inconsistent unless it be read as David Finlayson saying that he neither slowed nor braked as he drove the better part of a kilometre towards the hazard. Such a rationale is inherently unlikely. When confronted in cross-examination with what he said in the statement about the impact speed, he said that he “... didn’t think he was going that fast at that stage ...” (60).
Secondly, David Finlayson’s evidence that the truck was travelling at 100 kph “... coming out to that area where we had the dog leg ...”, is ambiguous. It could be referring to the speed of the truck on the journey prior to Penola.
In my view, neither of the apparent inconsistencies is cogent enough to undermine Mr Finlayson’s evidence, which is otherwise credible, and which has the support of his wife.
● Statement of Finlayson to Ambulance Officer, Woodley, at scene
Bryce Woodley, an ambulance officer, gave evidence by telephone link from Japan. According to Mr Woodley, David Finlayson spoke to him at the accident scene about the speed of the truck. Mr Woodley had no independent recollection of the content of the conversation (389, 394). Before giving evidence he looked at a statement which he gave to Insurance Investigators on the 1^st September 2001 (ie some 15 months after the collision). In giving his evidence, he did not seek permission to refresh his memory from the statement, but rather said that he had already done so. He then said that David Finlayson told him that he was driving at between 100 and 105 kilometres (390). After cross-examination by counsel for the plaintiff, the defendant’s counsel, Mr Eriksen, sought to tender the statement. Argument then ensued as to both the admissibility of Woodley’s oral evidence and the statement. I marked the statement for identification and deferred my ruling.
The better course for the defendant’s counsel would have been to lead from Woodley the following evidence:
·that he did have a conversation with the driver of the truck, Mr David Finlayson;
·that he had no independent recollection of the content of that conversation;
·that he made a statement to Insurance Investigators on the 1^st September 2001;
·that notwithstanding looking at the statement, it did not refresh his memory;
·that when he gave the statement, although it was 15 months later, what was said by David Finlayson as to the speed of the truck was fresh in his memory; and
·that the statement signed by him accurately recorded his recollection of the conversation.
The statement thus identified would then have been admissible to prove the content of Woodley’s conversation with David Finlayson (see Gillespie v Steer (1973) 6 SASR 200). Strict contemporaneity is not the be all and end all. Though 15 months later, the statement is admissible within the principles enunciated in Gillespie providing the above preconditions existed.
In my view, the evidence of Woodley in a messy way established the preconditions. So the document could be read into evidence or itself tendered (see Gillespie at 203). The statement is not tenderable merely because counsel for the plaintiff cross-examined on it. I rule that the statement is admissible on the basis discussed in Gillespie. It will become Exhibit D15.
Though Bryce Woodley’s evidence was taken via telephone link, there was no reason to regard him as other than an honest witness. However, that is not to say that I accept his evidence as contained in the statement as necessarily undermining that of Mr and Mrs Finlayson as to the speed of the truck at the collision. My ruling has merely admitted the statement into evidence. Its probative value or weight bearing in mind other evidence is another matter. Indeed, for the following reasons, I do not accept that this evidence of Bryce Woodley renders the evidence of David Finlayson unreliable or lacking credibility:
·when confronted with the content of the statement, David Finlayson said that he did not “remember saying I was travelling that quick ...” (48) and he queried saying 105 kph as he knew the truck “doesn’t go that fast ...” (48);
·the evidence of Elizabeth Finlayson, which I accept, was that the speed of the truck before any braking was “85, 87 maximum” and it in substance corroborated the evidence of her husband;
·given that the maximum speed of the truck could have been no more than 103 kph, it is curious that David Finlayson would have asserted that the truck could have been travelling at as much as 105 kph (48);
·the statement of Woodley, as to the speed, was made 15 months later which is a significant passage of time during which to retain not only the content of a conversation, but its context;
·Woodley accepted that the conversation recorded in the statement might have related to about the maximum speed of which the truck was capable (394);
·Woodley accepted, and it was a fact, that at the time he spoke with David Finlayson in the cabin of the truck, Finlayson was seriously injured (56, 60) and was pinned in the wreckage of the truck (395), thereby raising the issue of whether what Finlayson then said could be reliable.
In all, I accept the evidence of the Finlaysons as to the speed. The two previous inconsistent statements and the inconsistent mention of travelling at 100 kph in David Finlayson’s evidence, whilst causing some concern, do not in the end persuade me otherwise.
So I find, on all the evidence, that on the approach to the accident scene, before the first braking, the truck was travelling at “less than 85 to 90 kph”.
● The Collision
There emerges from an analysis of the evidence of David Finlayson three stages of perception about what lay ahead of him on the road.
Firstly, there was a shadow across the road ahead (33). He saw this ahead at some stage after the truck emerged from the second left turn of the “dog leg” and was heading down the straight stretch of a kilometre or so to about the entrance of Yallum Park Homestead (33, 34, 40). At that point in the journey he had “backed off” from a speed of 85 to 90 kph. He thought the shadow was either just that, namely a shadow resulting from the road undulation or a line or heap of leaves (33, 34, 40-43). He considered that this did not constitute a danger as the truck could safely run over such insignificant debris (49, 50). Nonetheless, he was watchful (34, 38).
Secondly, as the truck proceeded further David Finlayson considered that what lay ahead was perhaps more substantial, in particular he thought it might be a branch of 12 inches or so in diameter (34, 35, 36). In response, he braked, but it was not an emergency braking (37, 50, 51). He accepted then that he could not stop the truck in time (51), but reasoned that he could safely “put the truck over the branch” (51). He contemplated a little bit of damage (34). In particular, he said as follows:
... as I got closer it became – looked like a branch and I thought ‘I am not sure if I can stop that quick’. With an empty trailer you always run a risk of maybe a jackknife if you’ve got to slap the brakes on real hard, and on a wet road with no weight on the trailer you can slide, you just aquaplane across the top of the road. Then all the time we’re still moving closer. I thought if I moved to the middle a little bit, if I can’t pull up in time and I have got to go over, I may sustain a little bit of damage ...
(34)
It was at this stage when David Finlayson wholly lifted his foot from the accelerator and applied the foot brake that the Jake brake or engine brake engaged (55).
Thirdly, or finally, David Finlayson perceived the hazard to be what in fact it was, namely a large tree trunk with a substantial girth blocking the width of the carriageway. He said as a result of seeing that, he pushed hard on the brakes to either stop in time or reduce the severity of the impact (37, 51). In particular, he said about this as follows:
... but then at the last minute I looked and I thought ‘This is worse than I thought it was’. I slapped my foot onto the brake, hung onto the wheel and closed my eyes. All I said to my partner at the time was ‘Holy shit’.
(34)
The evidence of Elizabeth Finlayson was generally supportive of that of her husband on this topic of the sequence of events. In particular, she confirmed that there was an exchange between them when David Finlayson did not “build up” the speed of the truck to the usual 100 kph (64). Further, she confirmed that after negotiating the “S” bend, David Finlayson “took his foot off the accelerator ...” (65), and at that time her attention was drawn to a line of leaves across the roadway ahead (55, 56). Further, she agreed that what she saw then did not appear to represent any danger (66). She said that what followed then was the truck braking and assuming a position in the centre of the road and there was at that time some further conversation between herself and her husband (66). Clearly this was at the time when David Finlayson assumed that what lay ahead was a branch of some 12 inches or so in diameter. Mrs Finlayson at that time was watching her husband and so did not see the tree trunk until the very last second when her husband cried out and made an emergency application of the brakes (66, 67).

What is significant about Elizabeth Finlayson’s evidence, is that as the truck approached the obstructing tree trunk, she, like her husband, did not identify it as such for a considerable period of time. Further, in that time she, like her husband, did not consider that any danger confronted them.
The expert witness Professor Thomas Trigg said he could not see how it would be possible for David Finlayson (and by implication his passenger) to have seen a tree trunk on the roadway approximately a kilometre away (294). Further, he said it would be unlikely that he could have seen a line of leaves (294). He was, of course, assuming darkness and therefore what could be seen with the headlights on high beam. He said that such abnormalities on the road could be seen at best at probably 350 metres (295). When asked what his view would be if “it was that half-light”, he said that the detection distance would be even less (295). I accept that evidence. However, I do not consider that David Finlayson was asserting literally that he saw any obstacle immediately upon emerging from the “S” bend. Indeed, in cross-examination, whilst accepting that the “S” bend was approximately one kilometre from the tree (40), he refused to fix or even attempt to fix the sequence of events by reference to distances from the point of impact (39, 40, 44, 51).
As indicated, the tree had collapsed from Yallum Park across the fence line onto the roadway at a place 45 metres west of the turn-off into Yallum Park Homestead (see Exhibit D2). The force of the collision moved the tree approximately 25 metres (Exhibit D2).
Mr Eason, speaking of his journey to the accident scene, said that the log across the road “... was hard to see. There was no doubt about it, it was hard to see ...” (104). He added that it was only visible “when you were up on it” (105). He did not agree that the log had a cream colour (136). He said it had a damp and weathered look (137). He said it matched the colour of the road “... very much so ...” and “it was a very dark log ...” (47).
I accept Mr Eason’s evidence that he was the first at the scene and indeed that he had left and returned with the tractor by the time Constable Martin had arrived from Penola. Constable Martin is mistaken in asserting, as he did, that he was first at the scene. So the scene, and particularly the log, was illuminated by the time Martin arrived. I also accept Eason’s evidence as to the colour of the log, in particular that it was very dark, hard to see and matched the colour of the road.
The photographs of the fallen tree taken at the scene of the accident, Exhibit P13, bear out Eason’s evidence as to the colour of the log.
Accident Reconstruction – Demonstration – Expert Opinions as to collision
The defendant adduced expert evidence from the consulting engineer, Mr Christopher Hall, and from the scientist and engineer, Professor Thomas Trigg. Broadly speaking, the purpose of this evidence was to establish that David Finlayson could have avoided the collision if he had driven with reasonable care and skill in all the circumstances. Mr Hall’s evidence consisted, in part, of the demonstration or reconstruction. Counsel for the plaintiff, Mr Abbott, objected on the grounds that the conditions were not duplicated and so the proper foundation for the admission of the evidence did not exist. I admitted the evidence de bene esse reserving my decision as to its admissibility (200).
● Evidence of Engineer Mr Christopher Hall
I turn first to the evidence of Mr Hall and the objection to it.
Mr Hall’s brief was to provide an opinion on the following three matters:
·the likely speed of the vehicle at the time of the accident;
·to what extent it would have been likely that a normally observant driver would have been able to have observed the presence of the log when driving on low beam and on high beam in the prevailing circumstances; and
·what opportunity was there for a normally prudent driver to have been able to apply the brakes so as to avoid a collision with the tree or to minimise the speed of any impact.
(See Exhibit D8 p1).
First of all Mr Hall attempted to estimate the impact speed of the truck. In part, he relied upon the extent of the damage to the truck. He accepted that it was not possible to do this “with a reasonable degree of confidence without the introduction of some broad assumptions” (284; Exhibit D8 at p3). Based on the extent of damage and these broad assumptions he estimated the speed of the semi-trailer, at the time of the impact with the tree trunk, at between 75 and 105 kph.
Secondly, he conducted both dynamic and static visibility tests at the scene, at night, using a similar Kenworth truck and a mock log covered with pale coloured hessian (see Exhibit D8, photographs 3, 4 and 5; and see also Exhibit D10). He acknowledged candidly that it was “effectively impossible to recreate the conditions at the time ...” and that what he set about doing was producing a foundation upon which a range of variations could be imposed (284).
The mock tree trunk was placed across the road. The truck was driven towards it and the driver braked when he saw it. Mr Hall himself rode in the cabin of the truck and dropped a marker “at the point when the driver responded to seeing the tree” (see Exhibit D8 at p5). The tests were carried out with the truck’s headlights on low beam because, unlike the subject truck, the test vehicle was especially equipped with long range driving lights. There were two such dynamic tests (vehicle moving) conducted and one static test. The static test involved simply measuring the distance from the mock tree to the point on the road where the “low beam headlights illuminated the “tree” with sufficient intensity for it to be detected within the cabin ...” (see Exhibit D8 at p5). The test results were as follows:

Approach Speed (kph) Distance to Marker Corrected Sight Distance *

60 73 m 85 m

70 66 m 81 m

0 83 m 83 m

So as a result of the tests Mr Hall concluded that with the Kenworth’s lights on low beam the log was visible at a distance of 80 to 85 metres. For high beam Mr Hall drew on other unspecified tests carried out by himself. Based on these tests he concluded that with the trucks headlights on high beam the log was visible at a distance of 130 to 150 metres (278, 279 and 285, 286; see also Exhibit D8).
Thirdly, Mr Hall then considered whether David Finlayson, by prudent management of the truck, could have avoided the collision. He concluded, inter alia, that if the roadway was wet, given certain deceleration rates and reaction times and accepting that a heavy braking took place, any speed greater than 70 kph at the time of detection would have resulted in the truck colliding with the tree. In a number of respects Mr Hall deferred to the views of Professor Trigg (see Exhibit D8 report 3.11.03; 282, 283).
Plaintiff’s counsel, Mr Hugh Abbott, opposed the admission of Mr Hall’s evidence and report on the basis that his conclusions were based upon a reconstruction which was so far removed from what actually happened that it was irrelevant and therefore inadmissible. The following emerged from Mr Hall’s evidence:
·the “make believe” log was accepted by Mr Hall to be wholly different in colour and appearance from the subject log (282, 283), and, in particular, being light in colour it was more readily discernible against the black background of the bitumen roadway, particularly when illuminated by headlights (285);
·the test was carried out at night yet I find that the accident occurred in the half-light of approaching dawn;
·at the time of conducting the test there was no rain and therefore no wet road with its reflective qualities as was the case at the time of the collision (284);
·Mr Hall accepted that in the dynamic test (ie truck moving), the driver knew he would be encountering an obstacle on the roadway and in such circumstances this affected the reliability of the reaction time recorded (284); and
·Mr Hall agreed that his testing presupposed that upon seeing the object on the roadway there would be immediate heavy braking as opposed to the driver consuming some time deliberating about what was ahead and what to do about it (288).
Professor Trigg also criticised “the level of representiveness” of Mr Hall’s visibility tests on grounds including that:
·the visibility tests were conducted under dry conditions, whereas at the time of the accident the roadway was wet;
·no detail of the driving experience of the test driver was provided to enable comparison with Mr Finlayson;
·only low beam tests were conducted; and
·the test obstacle would not have matched the subject wet tree trunk.
(See Exhibit D7 p3)
● Ruling on Admissibility of Demonstration
It is clear that demonstrations or experiments conducted by suitably qualified experts can be admitted in evidence providing that the conditions are substantially similar to the conditions prevailing at the time of the occurrence in question (see R v Ireland (No. 2) [1971] SASR 6 at 14-16). At page 14 of the joint judgment, the Court said:
In practice, evidence of experiments, more often than not, is offered by experts and its purpose is frequently to confirm the opinions of those experts arrived at by an examination of real evidence that has been found and collected at the scene of the trial. But, of course, the use of experiments for the purpose of enlightening a jury is not limited to those so conducted. It seems to us that, given conditions for the experiment sufficiently similar to the conditions in which the act or event under consideration must have been done or occurred, an experiment carefully performed and conscientiously recorded and reported may frequently be of great assistance to the jury in its deliberations. Some experiments can be carried out only by experts, occasionally by experts with high qualifications and advanced skills but others can be carried out by ordinary laymen by the application of common sense and the employment of such tools, materials and devices that are readily at hand.
And further, at page 15 their Honours said:
We are disposed to take, as correctly representing the principles of the law of evidence applicable in this Sate to experiments of the kind deposed to, a passage from the judgment of Edwards J. in Shepherd v State (1931) 51 Okl. Cr. 209; 300 Pac. 421, which runs:-
“The general rule as to admissibility of the result of experiments is, if the evidence would tend to enlighten the jury and to enable them to more intelligently consider the issues presented and arrive at the truth, it is admissible. The experiment should be under circumstances similar to those prevailing at the time of the occurrence involved in the controversy. They need not be identical, but a reasonable or substantial similarity is sufficient. Several Courts have held that the lack of identity of circumstances affects only the weight and not the competency of the evidence provided there is a degree of similarity which will assist the jury.”
The results of the application of the principle will vary according to the special circumstances of each particular case, but we entertain no doubt as to the validity of the principle.
In the present case, we are of the opinion that accounts of both experiments and of their results were admissible; any criticism of the evidence goes, in our opinion, to its weight and not to its admissibility. In our opinion, in the circumstances of this case, the jury were able readily to assess the assistance that could safely be derived from the evidence relating to the experiments, to apprise themselves of any dangers inherent in the use of that evidence, and to discard it without unfair damage to the accused’s interests if its weight proved to be negligible.
So, whilst the conditions under which a demonstration or reconstruction is conducted do not have to be identical with the conditions prevailing at the time of the subject event, there has to be a reasonable or substantial similarity (see R v Cox (1997-98) 196 LSJS 3 per Cox J at 4). The case of R v Quinn (1962) 2 QB 245 is instructive. In it the English Court of Criminal Appeal ruled that a film of the re-enactment of a striptease, alleged to be indecent, was ruled inadmissible as it would have been impossible to analyse the slight differences which might in totality have resulted in a scene of quite a different character from the performance the subject of the complaint. As Cox J said in R v Cox the touchstone is whether there is “a reasonable or substantial similarity ...”.
In my view, the reconstruction or demonstration in this case was carried out in circumstances which were so dissimilar to the primary circumstances which prevailed on the early morning in question, that the evidence arising from it should not be admitted because it would not assist the tribunal of fact. Mr Hall’s retort that it provides a basis for extrapolation is not an answer because the process of doing so constitutes speculation. Further, this is not a situation where, as in Ireland (No. 2), the results of the demonstration should be admitted and criticisms thereof be treated as going to the question of weight. Accordingly, I rule that the evidence of Mr Hall relating to the demonstration is inadmissible. If I am in error and the evidence should have been admitted, then I indicate that I regard it as having little weight.
● Findings as to Mr Hall’s Evidence
I will deal with Mr Hall’s evidence as to the estimate of the speed of the truck at impact (ie between 75 and 105 kph), which, of course, was not dependent on the demonstration on the basis that it resulted from, to use Mr Hall’s words, “a broad brush approach ...” (284). It is therefore far from conclusive.
As to the third aspect of Mr Hall’s opinion, namely as to whether the driver was able to avoid the collision, that is better dealt with by Professor Trigg. As indicated, Mr Hall deferred to his better expertise. However, Professor Trigg did, from time to time, rely on material from Mr Hall’s reports.
● Evidence of Scientist and Engineer Professor Thomas Trigg
I turn to the evidence of Professor Trigg.
Professor Trigg is a renowned expert in the area of driver perception and response. His opinion, which is set out in his report, (Exhibit D7), and which is confirmed in his evidence, (291), was based on materials provided to him by the defendant’s solicitors.
Professor Trigg started with the issue of visibility. He said that the visibility distance or speed of detection of obstacles by drivers on rural roads at night, with no other lighting, was influenced by:
·the size of the object;
·the brightness of the object;
·the contrast of the object with its surrounds; and
·the headlight being in use.
(see Exhibit D7 p4).
In this area there were at least two material assumptions relied upon by Professor Trigg from the brief provided to him which have not been established in evidence.
Firstly, Professor Trigg assumed that it was “fully dark night time conditions” at the time of the collision (293, 297), whereas the evidence satisfies me that there was some natural light at the time. He seemed to be saying in both his report and evidence that it must have been night time at the time of the collision because of the following factors:
·rain;
·overcast;
·canopy of trees;
·truck travelling west away from sunrise; and
·sunrise more than one hour away.
(297; Exhibit D7 p4).
The state of the light at the time at the scene is a matter of fact, the best evidence of which would ordinarily come from credible witnesses who were at the scene at the time. Three credible eyewitnesses, the Finlaysons and Mr Eason who were at the scene at the time, spoke of there being some natural light. Their evidence is the basis of my finding.
Secondly, Professor Trigg proceeded on the basis that the log was light and uniform in colour and as such its reflective quality would enhance its detectability (297, 301-308). Again, contrary to that, the evidence, particularly that of Mr Eason, satisfies me that the log was dark and hard to see particularly against the background of the bitumen road. Given the evidence about the weather on the preceding day, it is likely that the tree trunk was well and truly soaked and therefore dark in appearance. The photograph of the log, at the scene, on the morning of the collision (Exhibit P13), shows a dark coloured log of mottled appearance. In having regard to the photograph I have not ignored Professor Trigg’s warning about relying too much on photographs (301).
However, on the basis, inter alia, of those now incorrect assumptions, Professor Trigg estimated the visibility distances for detection as follows:
·on low beam David Finlayson would have detected the obstacle when approximately 110 metres from it;
·on high beam David Finlayson would have detected the obstacle when approximately 200 metres from it;
(293, 294; see also Exhibit D7 at p5).
Professor Trigg then considered the driver’s response. He said that the perception – response time was divided into the following four categories:
Detection
This stage covers the period from when the object enters the field of view and concludes with the awareness of its presence.
Identification
This is the stage in which enough information is acquired about the object to recognise its hazard.
Decision
The driver selects during this stage what action is appropriate, most frequently braking.
Response
This stage involves the time taken to produce the action or response after the decision.
(see Exhibit D7 p6).
For the last three stages of identification, decision and response, (hereinafter referred to as “the reaction time”), Professor Trigg fixed a figure of 1.25 to 1.75 seconds. Mr Hall allowed 2 to 3 seconds. In this view, Professor Trigg relied on his own research.
Professor Trigg then fixed the stopping distances at various vehicle speeds. I hereunder set out the section of his report dealing with this topic of “stopping distances”.
Stopping distances
Based on the above discussion of visibility distances for detection of the fallen log obstacles and the assumed reaction times for a normal attentive driver, the stopping distances from first detection can be calculated and compared with the distance available for stopping (the visibility distance) for several vehicle speeds. The estimated stopping distances are shown in Table 1. The stopping distance is made up of two components. The first component is the distance travelled from first detection of the obstacle to when braking commences. The second is the distance travelled during the active braking period. It will be assumed that the time between release of the accelerator and the application of the foot brake is relatively small and no allowance will be made here for the effect of the engine brake. The value of 0.35 g used by Mr Hall for heavy braking on wet roads will be assumed here.
TABLE 1
STOPPING DISTANCES ON WET ROAD

Vehicle Speed (kph) Distance from Detection to Commencement of Braking (metres) Braking Distance to Stop
(metres) TOTAL
(metres)

60 20.9 – 29.2 39.8 60.9 – 69.0

70 24.4 – 34.1 54.2 78.6 – 88.3

80 27.8 – 39.0 70.9 98.7 – 109.9

85 29.6 – 41.4 79.0 108.6 – 120.4

90 31.3 – 43.8 89.6 120.9 – 133.4

100 34.8 – 48.7 110.6 145.4 – 159.3
These total values for stopping distance can be compared with the assumed visibility distances. For low beam headlights, where the assumed visibility distance was 110 metres, a normal driver would have been able to stop in time for vehicle speeds up to 80 km/h even for the longer assumed reaction time.

However, at speeds of 90 km/h or above, the driver would not have been able to stop, even at the lower value of assumed reaction time. At 85 km/h, for the lower value, the driver would be able to stop, but at the higher reaction time value, the vehicle would have struck the tree at a speed of 32.1 km/h. At 90 km/h the Kenworth prime mover would have struck the log at 31.5 km/h with the shorter reaction time of 1.25 seconds and 46.1 km/h for the longer reaction time of 1.75 seconds.

The second column in the table above sets out the two distances travelled during the elapsed reaction times of 1.25 and 1.75 seconds. The formula used by Professor Trigg is “60 kph is 16.7 metres per second” (314).
Then, after dealing with the issues of use of high beam and driver alertness, Professor Trigg set out his conclusion as follows:
The visibility of the fallen tree would have been such that, with reasonable assumptions, a normally attentive driver would have been able to avoid the accident at 100 km/h or less if travelling on high beam. The use of high beam headlights was highly desirable in the circumstances. If low beam headlights had been in use, it should have been possible to stop the truck before the obstacle if it had been travelling at an initial speed of 80 km/h even if a longer reaction time within a normal range is assumed. For an initial approach speed of 85 km/h, again with a higher assumed driver reaction time of 1.75 seconds following detection, the Kenworth truck would have struck the obstacle at a speed of about 32 km/h, if a deceleration of 0.35 g is assumed.
(291; Exhibit D7 at p8)
· Findings as to Professor Trigg’s evidence
The above opinion cannot stand without qualification because, as indicated, the evidence satisfies me that at the time of the collision:
·it was not dark, but rather there was some natural light;
·the log was not light coloured and uniformly so, but rather was dark and mottled.
There is some evidence from Professor Trigg as to what effect these facts would have on his opinion.
He accepted that “eerie half-light” would reduce the effectiveness of the headlights in that “the improvement of contrast” between the tree trunk and the roadway would be reduced. He said that “contrast” in part, facilitated detection (296, 297).
As for the appearance of the log, he accepted that, if the log was damp and soaked as opposed to wet on the surface, it would be less reflective and have a darkened appearance (301, 302).
Further, he agreed that if the surface of the log was mottled, as opposed to uniform, then that would also have the effect of degrading its reflectivity (304). He added, however, that from afar the log would reflect its predominant colour (304).
Conclusion – Expert Evidence of Professor Trigg as to Collision
I turn now to what if anything can be retrieved from Professor Trigg’s evidence.
Professor Trigg has effectively accepted that given the presence of half-light and the dark appearance of the log, the driver would take more time to detect and react to the obstacle, than would be the case at night with the full assistance of headlights. He did not specify the extent to which the detection distances arrived at by him, namely 110 metres for low beam and 200 metres for high beam, would be reduced.
However, this matter of detection distances in half-light was canvassed with him in his general oral evidence (294, 295). He said that the maximum detection distance of an obstacle, such as a heap of leaves across the road at night on high beam, would be “... less than 400 metres probably 350 metres ...” (294, 295). This would appear to be in conflict with the above visibility or detection distances. However, I note that in proffering the above answer he was asked to provide the “greatest distance” and to “push it to the absolute limit” (295). Then when asked what the detection distance would be given half-light, he said that “... where there were no headlights operating or where they were ineffective I would estimate that the distance would even be less than that” (295).
So I draw from Professor Trigg’s evidence that given the presence of some natural light and the darkness of the log, Mr Finlayson would not have been able to detect a line of leaves or shadow across the road until he was “less than 350 metres” from it.
Further, Professor Trigg’s evidence as to stopping distances on wet roads remains relevant and reliable.
Overall Findings as to Collision
The following are my key findings as to the circumstances of the collision:
·the truck on emerging from the second bend and heading down the kilometre stretch to Yallum Park was travelling at “less than 85-90 kph”;
·at a place less than 350 metres before the fallen tree, and so west of the turn-off to Kalangadoo, the driver, David Finlayson, saw an obstacle ahead which he perceived as a shadow or line or heap of leaves spread across the width of the road. He did not apply the brakes in response to this, but drove on keeping the scene ahead under surveillance;
·at some distance further west Mr Finlayson perceived that the obstacle ahead was a branch of some 12 inches in diameter. As a result, he braked, but it was not a heavy emergency application of the brakes because he reasoned then that he might have been unable to stop in time and so prepared to drive over the branch. Accordingly, the truck must have slowed appreciably at this point in time as the foot brake and engine brake took effect;
·finally, Mr Finlayson saw the obstacle for what it was, namely a large tree trunk blocking the entire carriageway. The truck was then a split second away from colliding with the tree and David Finlayson braked hard and “closed his eyes”.
Applicable Legal Principles
I turn first of all to the plaintiff’s three-pronged case against the defendant in negligence, nuisance and pursuant to Part 1B of the Wrongs Act 1936 (as amended).
In my view this being a “highway case” the law relating to public nuisance has been absorbed by the principles of common law negligence. In Brodie v Singleton Shire Council (2001) 206 CLR 512, Gaudron, McHugh and Gummow JJ, who delivered the majority judgment said at para 129:
The time has now come, by parity with the reasoning in Burnie Port Authority v General Jones Pty Ltd (286), to treat public nuisance, in its application to the highway cases, “as absorbed by the principles of ordinary negligence” (287). In any event, as has been indicated above, the intrusion of nuisance into this field in the mid-nineteenth century lacked any firm doctrinal basis.
I do not regard the fact that Brodie concerned a public authority as a ground for distinguishing it. Accordingly, I do not propose to separately consider the plaintiff’s case in nuisance.
In respect of the claim pursuant to s17C (1) of the Wrongs Act, I consider that a determination one way or the other as to whether the defendant has been negligent, will dispose of this so called statutory cause of action. I doubt that it is a separate cause of action. Rather, it sets out some considerations all of which are relevant to an action in negligence. Further, a perusal of the provisions presupposes “the entry of persons onto the premises” (s17C (2)(e)(ii)), which did not occur in this case. So as a matter of strict statutory interpretation, s17C does not apply.
To succeed in its claim in common law negligence, the plaintiff must prove:
·the defendant owed the plaintiff a duty, recognised by law, requiring the defendant to adhere to a certain standard of conduct;
·the defendant breached that duty;
·the plaintiff suffered loss;
·the loss was caused by the defendant’s breach of duty; and
·the loss suffered by the plaintiff was not too remote.
(Kenny & Good Pty Ltd v MGICA (1992) Ltd (1997) 77 FCR 307 at 322).
The two time honoured propositions of Mason J, as he then was in Wyong Shire Council v Shirt (1980) 146 CLR 40, though refined by the recent decisions as I will later explain, are still relevant and important:
As to the existence of a duty of care Mason J said:
According to Lord Atkin’s statement of principle in Donoghue v. Stevenson [1932] AC 562 at 580, as it has been refined in later decisions, prima facie a duty of care arises on the part of a defendant to a plaintiff when there exists between them a sufficient relationship of proximity, such that a reasonable man in the defendant’s position would foresee that carelessness on his part may be likely to cause damage to the plaintiff (Home Office v. Dorset Yacht Co. Ltd [1970] AC 1004 at 1027, 1034, 1054, 1060; Anns v. Merton London Borough Council [1978] AC 728 at 751-752).
(44)
As to whether there is a breach of the duty Mason J said:
In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.
(47, 48)
In recent years the test for the existence of a duty of care appears to have become more stringent than Mason J’s first question demanded. This refinement might be more apparent than real. However, it is clear now that foreseeability and proximity are not the touchstones they were. (As to “foreseeability” see Graham Barclay Oysters Pty Ltd v Ryan (2002) 77 ALJR 183 per Gleeson CJ at 187; Sullivan v Moody (2001) 207 CLR 562, 576; Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 per Gleeson CJ at 267-8 Hayne J at 288; as to “proximity” see Sullivan v Moody (supra) at 578, 579.)
However, it is notable that Mason J’s second question which has been characterised as the test for breach of duty, has been repeatedly approved and applied in the High Court (see Graham Barclay Oysters (supra) per Gleeson CJ at 194, McHugh J at 205, Gummow and Hayne JJ 221; see also Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 per Mason CJ at 472, McHugh J at 482, Kirby J at 493, Hayne J at 502).
The defendant contended that there was “a good policy reason” why a finding of negligence should not be made against him, namely that such finding would open “the floodgates” for actions against farmers, councils and landowners generally. In my view, even if it were true, which I doubt, it would not be a proper basis in a case such as this to shrink from a finding of negligence. In the case of Sullivan v Moody (supra) at 579 the High Court said, in the course of declining to follow the House of Lords in Caparo Industries PLC v Dickman [1990] 2 AC 605 which held, inter alia, that what was “fair just and reasonable” was one of the three matters relevant to determining whether a duty of care existed:
The question as to what is fair, and just and reasonable is capable of being misunderstood as an invitation to formulate policy rather than to search for principle. The concept of policy, in this context, is often ill-defined. There are policies at work in the law which can be identified and applied to novel problems, but the law of tort develops by reference to principles, which must be capable of general application, not discretionary decision-making in individual cases.
(See also Phelps v Western Mining Corporation Ltd (1978) 20 ALR 183 per Deane J at 189: Ogle v Strickland & Anor (1987) 71 ALR 41 per Lockhart J at 50).
Application of Law to the facts
I find that the defendant owed a duty of care to the plaintiff. As to the content of that duty, I find that the defendant was obliged to reasonably and prudently manage the trees bordering on the roadway.
In the House of Lords decision in Caminer v Northern & London Investment Trust Ltd [1951] AC 88, an elm tree, standing on land adjoining a busy London highway, fell injuring the plaintiffs who were using the thoroughfare. The Law Lords all accepted that the defendant owed a duty to users of the highway to act “as a reasonable and prudent landowner” in relation to the management of the trees (see Lord Porter 97, Lord Normande 99, 100, Lord Reid 108).
As to the parameters of this duty to be a prudent and reasonable property owner, and whether or not the defendant was in breach of such a duty, Lord Reid in Caminer said at 107, 108 as follows:
So in my judgment the appellants can only succeed in this appeal if they can show that there was something about this particular tree which should have suggested that lopping or other action was necessary. What inspection will suggest will depend on the knowledge and experience of the inspector, and there has been some controversy about the degree of knowledge and experience necessary for adequate inspection. Plainly it would be no use to send a person who knew nothing about trees. The alternatives put forward were that he should be an expert or that he should have at least such knowledge and experience of trees as a landowner with trees o his land would generally have. As the question depends on what a reasonable man would do I think that it may be put in this way. Would a reasonable and careful owner, without expert knowledge but accustomed to dealing with his trees and having a countryman’s general knowledge about them, think it necessary to call in an expert to advise him or would he think it sufficient to act at lest in the first instance on his own knowledge and judgment? The evidence in this case does not suggest to me that he would, and does not convince me that he should call in an expert. There must be many owners of elm trees beside busy roads and if it were proper for them to seek expert advice I would expect, making every allowance for the facts that not all owners are reasonable and careful and that even reasonable people frequently omit to do what they know they ought to do, that it would appear that expert advice was not infrequently sought. But the evidence in this case does not bear this out.
(107, 108)
The defendant was duty bound, at least, to be alert and react to any obvious danger of trees collapsing onto the roadway. In the years leading up to the time of the collision, a cursory lay observation of the avenue of trees to the east and west of the Yallum Park entrance would have alerted even the most inattentive landowner to the danger of a tree collapsing onto the roadway. An expert was not necessary to tell him that. The state of decay in the woodlots east and west of Yallum Park entrance was obvious even from the roadway as the photographs demonstrate.
Further, quite apart from the obvious potential danger, I am satisfied that, prior to the subject collision, the defendant must have been aware of a number of instances of trees actually collapsing across the fence line in the direction of the road. It is inconceivable that he did not know. The fence repairs and sawn up logs nearby support the inference that he knew of and attended to the breaches of the fence line. Notably, there was no evidence in response to Mr Quill’s second round of evidence as to fence damage and the proximity of cut up logs, and the clear inference which arose there from, that large trees had fallen across the fence towards the roadway and that the fallen trees were cut up and the fence repaired. For this inference of knowledge, I have not only relied on Mr Quill’s evidence, but also the evidence of Mr Eason as to the tree collapse in September 1999.
Further, the risk of a tree collapsing did not materialise speedily or without warning. The avenue or woodlot began to decline 25 years ago (464). At best, from the defendant’s point of view, as long ago as 10 years, trees began dying and falling towards the fence and the roadway. I agree with counsel for the plaintiff that this accident was inevitable and obviously so.
So, in my view, a reasonable man in the defendant’s position would have foreseen that his inaction involved a risk of causing damage to road users such as the plaintiff.
I turn now to the question of what should have been the defendant’s response to the obvious risk (see Wyong Shire (supra) at 47, 48).
The defendant ought to have “thinned” all the trees as he did with a section of the avenue in 1986. Apart from the thinning operation in 1986 and the employment of a woodcutter for a short time (Clifford 270, 271), the defendant did nothing to address the risk, the magnitude of which grew in the 14 years which elapsed from the thinning operation. In particular, the defendant with the help of some expert advice could and should have removed all the dead trees from along the boundary fence which had sufficient height to collapse upon the roadway or cause other neighbouring trees to do the same. It was not until after this accident, at the instigation of his neighbour, Mr Eason, that the defendant partially addressed the problem and in January 2001 engaged a contractor to “bulldoze” some of the trees. The evidence of Brenton Mattiske (184-197), who witnessed some of this clearing operation, was that it occurred without difficulty and that pushing the trees over was “ … a lot easier than everyone expected …” (186-187). The cost to the defendant of this limited clearing of a stretch of trees to the west of the homestead was “39½ hours at $240.00 per hour ...” (Clifford 272). This was not prohibitive given the dimension of the risk the trees posed. Mr Quill made the point that “… in the last seven years virtually every forest owner has cleared the front trees back from the roadways to a distance of at least 50 metres …” (92).
I find that the defendant was in breach of his duty of care.
I find also that the breach caused damage to the truck.
I confirm that I reject the “public policy and floodgates” argument mounted by the defendant for reasons which I have made clear. Further, I confirm what I have also previously made clear, namely that I reject any suggestion that this accident was caused by some unpredictable storm.
Contributory Negligence
Finally, I turn to the issue of contributory negligence.
The defendant bears the onus of proving that the plaintiff, by its servant or agent, David Finlayson, was negligent.
The defendant contended, with some support from Mr Hall, that it was negligent of David Finlayson not to drive “within the throw of his headlights”. Firstly, there is a factual difficulty with this submission. I have found that there was some natural light at the time of the collision which, Professor Trigg agreed, would have impaired the effectiveness of the headlights. Further, I do not accept that there is any such principle. It is rather a matter of fact, which, in any particular case, may or may not be relevant to the determination of negligence. In Morris v Luton Corporation [1946] 1 KB 114 Lord Greene MR said at 115:
Cassels J. found (on ample evidence), that the burden if (sic) proving contributory negligence had not been discharged. On that it seems to me, having seen the evidence, that his conclusion was undoubtedly right. Mr. Edgedale says that it was wrong because it violated a principle which he first described as a principle of law, and afterwards, alternatively, suggested was a principle of good driving or something like that. I need scarcely say that I refer to the well-known passage in the judgement of Scutton L.J. in Baker v. Longhurst & Sons, Ld. [1933] 2 KB 461, 468, where, on a literal interpretation of his words, he appears to lay down a sort of general proposition that a person riding in the dark must be able to pull up within the limits of his vision. I cannot help thinking that that observation turned out in the result to be a very unfortunate one, because the question, as has been so often pointed out, is a question of fact. There is sometimes a temptation for judges in dealing with these traffic cases to decide questions of fact in language which appears to lay down some rule which users of the road must observe. That is a habit into which one perhaps sometimes slips unconsciously – I may have done it myself for all I know – but it is much to be deprecated, because these are questions of fact dependent on the circumstance of each case.

As David Finlayson drove the truck west toward the Yallum Park entrance, the conditions demanded considerable vigilance. It was drizzling with rain. The wind was gusting. There was telltale debris at least on the verges of the road. The view ahead must have been less than ideal given that there was some natural light and a consequential diminution of the effect of the headlights.
When the truck was west of the Kalangadoo turn-off David Finlayson perceived the log in the first of its disguises. He described it as “... just a bit of a shadow that went across the road. I thought it was probably a line of leaves or something like that ...” (33, 34). He later said that it could have been a shadow resulting from the undulations in the road or a line of, or a heap of, leaves running across the road (40, 41). The truck on my findings was travelling at “less than 85-90 kph”.
Given the adverse driving conditions and the ambiguity of what was a spread across the roadway, Mr Finlayson ought to have braked immediately. He ought not to have driven on towards an obstacle which he could not adequately identify. The circumstances required that he drive defensively (see Stoeckel v Harpas (1971) 1 SASR 172), and that required that he assume that what lay across the road ahead of him could be substantial.
The question which now arises is whether there was at this point in time sufficient time and distance to stop or was it too late to do anything?
On the basis of Professor Trigg’s “greatest distance” estimate, David Finlayson should have seen the obstacle in its earliest disguise at a distance of “less then 350 metres” from it.
By reference to Professor Trigg’s “Stopping Distances on Wet Roads” table Mr Finlayson could have stopped the truck in 110 metres if travelling at 80 kph and in 120 metres at 85 kph, given, inter alia, a reaction time of 1.75 seconds which Professor Trigg characterised as the longer reaction time.
Further, I gather from Mr Finlayson’s own evidence that he did not despair of stopping in time at this first sighting of the obstacle. Rather, it was later when the obstacle took on its second guise as a substantial branch, that he reasoned that it was perhaps too late to stop.
So I conclude that a reasonably careful driver in Mr Finlayson’s position would have braked immediately and heavily upon initially seeing the (potential) obstacle. In all probability, he would then have been able to avoid colliding with the log.
I now turn to the question of apportionment.
I am empowered to apportion fault in this matter by s27A of the Wrongs Act. Notwithstanding that s27A was repealed by s9 of the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001, which came into operation on the 16^th August 2001, it applies in this action because the accident occurred before the commencement of the repealing legislation (see s8). In any event, I note that the replacement provisions, namely ss 6 and 7 of the Law Reform (Contributory Negligence and Apportionment of Liability) Act are in a material sense much the same as that which existed in Part III of the Wrongs Act and in particular s27A.
Section 27A provides that any apportionment of damage shall be based upon what the Court considers is “just and equitable having regard to the claimant’s share in the responsibility for the damage”. So the section confers a wide discretion to apportion liability in a way which is just and equitable (see Pennington v Norris (1956) 96 CLR 10 at 15).
In Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 at pp 532-533, the High Court set out the considerations which guide the exercise of this discretion as follows:
The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man (Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42-49 and Broadhurst v Millman [1976] VR 208 at 219, and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.
(See also Teubner v Humble (1963) 108 CLR 491 at 499 per Dixon CJ; Evers v Bennett (1982) 31 SASR 228 at 229 per King CJ.)
So the exercise is essentially a comparison of culpability.
I regard Mr David Finlayson’s negligence as a small infraction in the circumstances of this case. Indeed, I was tempted to regard it as no more than an error of judgment in a situation of emergency (see Johns v Silby [1939] SASR 133; Antonow v Leane (1989) 53 SASR 60). However, in the end I have taken the view that driving on as he did was not an agony of the moment mistake. It was, on the evidence, a considered decision, albeit one taken speedily.
On the other hand, I regard the negligence of the defendant as serious. What occurred, namely the collapse of the tree across the roadway, was obviously inevitable. The magnitude of the risk was considerable. It materialised over a long period of time. Doing nothing about it was a serious departure from the standard of care of the reasonable landowner.
Therefore, undertaking the comparison of culpability required by the authorities I regard the landowner defendant as 90% responsible for the collision and the plaintiff, by its agent Mr David Finlayson, is therefore responsible to the extent of only 10%.
I now turn to the question of quantum.
Quantum
As indicated, the agreed quantum is $175,633.49.
At the start of the trial, counsel for the defendant indicated that the pleaded losses were agreed, save that the liability to pay for, as opposed to the quantum of, the following items were in dispute:
·insurance premium $3000.00 (para 8.5.1 of Statement of Claim);
·TV and VHS $730 (paras 8.5.2.14 and 8.5.2.15 of Statement of Claim); and
·wages paid by plaintiff to casual replacement driver $13,817.39 (para 8.5.4 of Statement of Claim).
Further, I gave leave to the plaintiff to amend the particulars of loss to add the following:
“8.5.2.16 12 Volt converter $80”
(see 544, 545)
By the time of final addresses, the defendant’s objections had dissolved (550).
Finally, counsel for the plaintiff had advised me, at an early stage in the trial, that the plaintiff’s claim for net loss of profits by reason of loss of use of the truck was agreed at $28,300.00 (151). Notably this item was originally claimed as $20,977.64 (see para 8.4 of Statement of Claim).
I have detailed all this because as the trial proceeded what was agreed or not agreed became a “moving feast”.
Accordingly, the plaintiff’s losses finally were agreed as I have indicated both as to quantum and liability at $175,633.49.
Conclusion – Judgment
The plaintiff is entitled to judgment against the defendant as follows:
Damages  $175,633.49
Less 10% for contributory negligence         $17,563.34
Judgment sum  $158,070.15
The plaintiff is entitled to pre-judgment interest pursuant to s39 of the District Court Act 1991. There is no reason why the interest should not be calculated on the judgment sum from early September 2000 on the basis that, save for some trivial items, the pleaded losses had all been paid for by the plaintiff company by that time. The appropriate rate of interest can be conveniently fixed by reference to the Third Schedule of the Supreme Court Rules. I fix the rate at 6.5%. Therefore, the plaintiff is entitled to interest fixed at $158,070.15 x 4.83 x 6.5% = $49,626.12.
There will be judgment for the plaintiff in the sum of $158,070.15 plus interest of $49,626.12. I will hear the parties as to costs.

Approach Speed (kph)	Distance to Marker	Corrected Sight Distance *
60	73 m	85 m
70	66 m	81 m
0	83 m	83 m

Vehicle Speed (kph)	Distance from Detection to Commencement of Braking (metres)	Braking Distance to Stop (metres)	TOTAL (metres)
60	20.9 – 29.2	39.8	60.9 – 69.0
70	24.4 – 34.1	54.2	78.6 – 88.3
80	27.8 – 39.0	70.9	98.7 – 109.9
85	29.6 – 41.4	79.0	108.6 – 120.4
90	31.3 – 43.8	89.6	120.9 – 133.4
100	34.8 – 48.7	110.6	145.4 – 159.3