Starick v Starick & Edwards, Starick v Edwards - [2010] SADC 79

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
STARICK v STARICK & EDWARDS, STARICK v EDWARDS
[2010] SADC 79
Judgment of His Honour Judge Tilmouth
17 June 2010
TORTS - NEGLIGENCE
Collision - truck overtaking - driver aware vehicle following - failure to check position - whether duty of care owed to following vehicle.
Held: Defendant liable in negligence for the failure to see the overtaking vehicle in his rear vision mirror and in the failure to check again before himself moving to overtake.
Civil Liability Act 1936 (SA) s 31; Cocks v Sheppard (1979) 53 ALJR 591; Rice v Scanlan (1986) 3 MVR 270; Weinert v Schmidt (2002) 84 SASR 307; Imbree v McNeilly (2008) 236 CLR, referred to.

TORTS - NEGLIGENCE - ROAD ACCIDENT CASES
Assessment of damage - whether failure to wear a seatbelt amounts to contributory negligence.
Held 1: The plaintiff was not the driver of a "following" vehicle, so the cases applicable thereto do not apply to the facts of this case.
Held 2: As the plaintiff was not wearing a seatbelt a fixed statutory reduction in his entitlement to damages of 25 per cent must be made.
Held 3: There was no other basis for finding the plaintiff contributorily negligent at large.
Held 4: Even though he was not wearing a seatbelt, it has not been proven this otherwise contributed to the severity of his injuries.
Civil Liability Act s 44, ss 49, 49(1) & 49(3), s 50; Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) s 6(5), s 7; Wrongs Act (SA) 1936 s 35A(1)(i); Road Traffic Act 1961 (SA) s 80, ss 162A & 162B, s 176; Australian Road Rules R 264(1); Braund v Henning (1988) 62 ALJR 433; Knowles v Dubla (1997) 25 MVR 134; Mugford v Ames (2000) 31 MVR 406, [2000] SASC 241; Barberien v Hardy [2003] SASC 353; Ferrett v Worsley (1993) 61 SASR 234; Pennington v Norris (1956) 96 CLR 10; Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492; Joslyn v Berryman (2003) 77 ALJR 1233, referred to.

EVIDENCE - WITNESSES - CROSS-EXAMINATION - AS TO CREDIT
Held 1: If there was a failure to comply with the rule in Browne v Dunn it was of a technical and inconsequential nature.
Held 2: A court is not obliged to accept the evidence of a witness who is not cross-examined, if that witness is contradicted by other evidence, or when it is clear the evidence is in issue through the pleadings or in other material, such as expert reports.
ASIC v Rich (2009) 75 ACSR 1; Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1NSWLR 1; Seymour v The Australian Broadcasting Commission (1977) 19 NSWLR 219; Payless Superbarn (NSW) Pty Ltd v O'Gara (1990) 19 NSWLR 551; R v Burns (1999) 107 A Crim R 330; Merrey v The State of Western Australia [210] WASCA 62; Burgess v Y-Trans Pty Ltd [2010] VSCA 28; Adamson v Ede [2009] NSWCA 379; Martin v Rowling [2005] QCA 128; MJW v The Queen (2005) 80 ALJR; Brown v Petranker (1991) 22 NSWLR 717; Nye v NSW (2003) 58 NSWLR 152; Harrington Smith v State of Western Australia (No 8) (2004) 207 ALR 483, referred to.
Browne v Dunn (1893) 6 R(HL) 67; MWJ v The Queen (2005) 80 ALJR 329; Thomas v Van Den Yssel (1976) 14 SASR 205; Bulstrode v Trimble [1970] VR 840, applied.

STARICK v STARICK & EDWARDS, STARICK v EDWARDS
[2010] SADC 79
Introduction

The secondary country road winding east from Murray Bridge to Karoonda in the Murray Mallee, is for the greater part, quite undulating. Like so many roads of its kind, traffic is apt to build up behind slow moving vehicles, waiting their turn to pass when it becomes safe. Such was the situation some 7 km west of Karoonda on Friday 4 June 2004 at about 12.30 pm, a fine and dry day with good visibility.
At this point a fully laden semi-trailer driven by the witness Mr Dennis Tuitt, slowed to around 80 kph as he climbed a sweeping right hand bend. He was aware of another semi-trailer driven by the defendant Mr David Edwards and four passenger cars banked up behind. The leading car was a bronze Ford Falcon AU sedan driven by Mr Denis Starick. Once the convoy had ascended the gentle rise both Mr Starick and Mr Edwards commenced overtaking manoeuvres. This forced the Ford off the road to the right onto a dirt verge, where it overturned. Both Mr Starick and his wife suffered serious injuries. They bring separate proceedings for damages as a consequence.
Mr Tuitt, an experienced truck driver and instructor of heavy vehicles, was driving a Kenworth 401 with a dog quad trailer. He was carting a load of fertiliser from Port Adelaide to Mildura in the State of Victoria, where he worked. Mr Edwards, also an experienced semi-trailer driver and resident of Mildura, was behind the wheel of his Peterbilt, towing an unladen Hercules trailer. He too was returning to Mildura, after delivering a load of firewood to the Adelaide metropolitan area, roughly two hours drive to the west.
The two trucks and the Falcon drove through a T-junction connecting Karoonda with Tailem Bend some minutes earlier. At that junction three other passenger cars coming from Tailem Bend had pulled up to give way to them as they passed from left to right heading east. The first of these was a Fairmont driven by the Strathalbyn veterinary surgeon Dr Mills, accompanied by his wife Helen Walker seated in the front passenger seat. Behind them in a black Chrysler PT Cruiser were Mr Robson also of Strathalbyn and his wife. The two couples were travelling in convoy to Mildura for a golfing weekend. Last in line, stationary at the intersection, was Associate Professor Halsey driving a Hilux utility. He was heading for his father’s rural property at Sandalwood, with his partner Kate and their three year old daughter. They had come from Ironbank near Stirling in the Adelaide hills.
After the two semi-trailers and the Falcon passed through the T-junction, the three cars made right hand turns into the Karoonda road and soon drew up in line, behind Mr Starick. They slowed to something in the order of 80-85 kph, which was about the limit the heavy-laden semi driven by Mr Tuitt could obtain. This stage of the road was winding, twisting and undulating. It contained numerous crests, bends, dips and bumps, such that no effective opportunity to pass arose and certainly none had tried to. They had however passed a slow-moving tractor without incident, at some indefinite point after the T-junction. At about 17 km east thereof, or about 7 km shy of Karoonda, the road inclined through the aforementioned right hand bend. Thereafter it straightened out for a distance of as much as two kilometres, thus providing the first opportunity to pass for some considerable time.
Mr Starick gave evidence that he has no recollection of the incident due to head injuries sustained as a result of these events. This state of affairs was proved by the evidence of Mr Starick himself and the neuro-psychologist Dr Michael Wood.[1] Mr Starick and his wife lived for many years at Borrika, some 18 km the other side of Karoonda. It is apparent he regularly travelled this road and must have thereby known this bend would afford an opportunity to pass.
[1] Exhibit 1P9 & T221
It was at a point somewhere just over the crest of the rise, that Mr Starick began to pass Mr Edwards’s semi-trailer, and Mr Edwards began to pass Mr Tuitt, within several seconds of each other. Mr Edwards moved into the overtaking or southern lane, forcing Mr Starick to steer to the right, to a point where his right hand wheels left the bitumen. Soon after he lost control, which he never completely recovered. His Falcon swiped a tree and then hit a second, which brought it to a complete stop. It came to rest upturned on its passenger side.
In these two proceedings Mrs Starick sues her husband and Mr Edwards for damages for personal injury in negligence.[2] In the second action Mr Starick (by his litigating guardian) sues Mr Edwards for damages for personal injury to him.[3] Before defining the issues in greater detail, it is desirable at this point to dispose of several matters of procedure.
[2] DCCIV-07-833
[3] DCCIV-07-911
Procedural matters
Some time before the trial, Master Bampton[4] made an order that both actions be “listed for hearing together”.[5] During the course of the trial and with the concurrence of all parties, the court made additional orders to the effect that the evidence in one proceeding be taken as evidence in the other. Further orders were made that questions of liability in the one action be treated as binding findings in the other, pursuant to 6R 210(1), (2) & (4) of the District Court Civil Rules 2006,[6] thus affecting the interests of all parties.
[4]    As Her Honour then was
[5]    Orders made on 5 May 2009
[6]    T139.32-140.14
The court was advised the measure of damages for both Mr and Mrs Starick was agreed, but it was not told what they were. It was accepted the most practical course was to first resolve issues of liability, before dealing with damages. This was seen as desirable for the additional reason that Mr Starick requires court approval of the terms of settlement as a party under disability: 6R 257. Those disabilities arise from injuries he sustained in the subject accident. Accordingly the issue of damages in both actions was adjourned pending findings as to liability.
As to liability in the proceedings by Mrs Starick, Mr Starick and Mr Edwards deny liability, effectively blaming the other for what occurred. Both filed cross-actions by way of contribution notice, claiming indemnity or alternatively contribution from the other. There is an additional consideration in the Edwards contribution notice, in as much as it is alleged the injuries were either caused or worsened because of Mr Starick’s failure to wear a seatbelt. The liability to Mrs Starick is secure. The single question in her action is in what proportion (if any) either driver is responsible.
The second action by Mr Starick against Mr Edwards, was conducted on all sides from the very outset as if contributory negligence was in issue. As it turned out this aspect was not pleaded, due to an oversight. When the omission was drawn to the attention of counsel for Mr Edwards, the situation was corrected by filing an amended defence, raising issues of contribution and apportionment under sections 49 and 50 of the Civil Liability Act 1936 (SA) and sections 6 and 7 of the Law Reform (Contributory Negligence and Apportionment of Liability) Act (SA) 2001. The parties accept those provisions govern these proceedings, as the former came into effect on 16 August 2001 and the latter applies to causes of action arising on or after 1 May 2004. Leave to so amend was duly granted, as there was no prejudice to Mr Starick in so doing.[7]
[7] T546.25-547.9, T558.5-.29
The case proceeded in a manner proposed by counsel. Mr Starick presented his case first, represented by Mr Day. He called those people referred to above, except for the wife of Mr Robson, the partner of Mr Halsey and their child, and of course except for Mr Edwards. No party suggested any particular inference arose because of the failure of any other party to call those who were at the scene but did not give evidence. Next Mr Birchall presented the case on behalf of Mr Starick in his action against Mr Edwards. He did so by merely adopting the evidence submitted on behalf of Mr Starick in his wife’s suit, without calling any further evidence.[8] Mr Birchall appeared for Mr Starick in that second action, instructed by solicitors for subrogating third party insurers: refer s 125 of the Motor Vehicles Act 1959 (SA). Mr Livesey QC (assisted by Mr Ward of counsel) acted for Mr Edwards in both proceedings, calling just Mr Edwards, this of course being evidence taken in both actions.
[8] T350.9-.15
At one point during the case for Mr Starick, Mr Livesey maintained Mr Birchall should not be permitted to cross-examine witnesses called by Mr Day, since both represented a party having precisely the same interest. He cited cases supporting that proposition: see Cross on Evidence, Australia loose-leaf edition para 17475, Dunn v Pain Co-Operative Insurance Co. of Australia Ltd,[9] and 6R 210(3), for instance. Following some debate the court declined to make such a sweeping order, indicating it would reconsider the question if necessary. In the event this proved to be of no particular consequence, as Mr Birchall avoided leading questions.
[9] (1990) 6 ANZ Ins Cs 60-982
When it came to closing addresses, the court again declined to limit counsel in any particular way. Once again this was of no particular consequence. Oral submissions were supplemented by various written submissions. The last of these was filed on 3 June 2010. Having cleared away these issues, it now becomes necessary to attend in finer detail to the circumstances.
Objective circumstances
The following considerations and objective facts, were not seriously challenged during the course of the trial. These matters principally emerge from the observations, measurements and site plans or sketches prepared by Senior Constable (now Sergeant) Bell of the Major Crash Investigation Unit. He attended the scene at about 3.30 pm that afternoon, made certain observations and later interviewed various witnesses, including Mr Edwards. He returned to the scene on 17 June 2004 to take measurements.
The many photographs before the court, prove the road surface immediately before the subject bend, was a reasonably well maintained bitumen surface, 6 metres wide.[10] There was a further 2.5 metres of gravel shoulder on either side.[11] This was an open country road having a maximum speed limit of 110 kph. It was common ground that the bitumen surface was widened sometime after these events of 2004.[12]
[10] This portion of the roadway is shown in the photographs marked HSA 23 through to HAS 34, contained within Exhibit 1P6, Exhibit 1P7, p4, and in Bell’s photographs Exhibit 1P5. All “HSA” photographs were taken by Mr Aust. His role in the case is explained later.
[11] Exhibit 1P7, p4
[12] T107.17-.23
Both sources reveal that on the approach from the west, there is a broken white centre line for some distance, before a continuous line commences. Some distance earlier, there is an advisory speed sign of 85 kph in conjunction with a right hand arrow. Towards the crest the single line forms into double unbroken white centre lines, continuing around the bend and ending more or less where the road straightens. The photographs “HAS 33 & 34”, depict the last or eastern most stages of those lines. [13] The apex of the crest is reached some 59.6 m further to the east of that point.[14]
[13] Exhibit 1P6
[14] Exhibit 1P4
It was this area that became the focus of a great deal of attention during the course of the trial. It was suggested the overtaking manoeuvres first commenced around there. This is not shown in the site plan prepared by Senior Constable Bell,[15] but it is represented in a “mud map” prepared by him on 17 June.[16] He describes these double white lines as “barrier lines”.
[15] Exhibit 1P3
[16] Exhibit 1P4
From the apex of the crest he measured a further distance of 229.1 m to a point indicated on his plan as “T1”, the first point of entry of the right hand or driver’s side tyres of Mr Starick’s Falcon onto the dirt verge. This is therefore 288.7 m to the east of the end of the double lines. The first tree sideswiped by the Falcon was marked point “A”, and is a further 162.4 m from “T1”. The final resting place was just to the east of a second tree, 496.3 m from the end of the barrier lines. This corresponds with the point “A1” on both plans.
A second set of double centre lines commences 541.8 m from the first. Another small crest is situated a further 74.2 m east, so that all up there was 616 m of unquestionably clear vision for passing purposes between the two crests. Beyond the second crest lay roughly a further 1.5 km available for overtaking; the exact length was never precisely proved.[17] These points of reference were augmented in the course of a view taken by the court and in which the various distances (as rounded) correspond with these measurements.[18] Although a view is not of itself evidence, it has to be born in mind that the configuration of the roadway has changed in the way mentioned earlier.
[17] T106.16
[18] T106-109
Based on these uncontroversial points of reference, the experienced accident investigator Mr C Hall expressed various expert opinions as to several aspects of the case. It should be noted that when Mr Hall gave evidence, Mr H Aust, another expert in the same discipline was present. Mr Aust was engaged in Mr Edwards’s interests, but was not ultimately called by his counsel. One cannot infer from this that Mr Aust’s evidence would not have assisted Mr Edwards. But it can be inferred his views would not have been significantly different on the topics Mr Hall did express opinions about, especially given certain concessions extracted under cross-examination.
Judging by the structural damage and the likely loss of speed once off the road, Mr Hall was of the view that impact speed with the second tree was unlikely to be anymore than 70 kph. He maintained the degree of structural damage was not consistent with an initial road speed in excess of 110 kph.[19] Based upon the tyre markings left on the road and verge surfaces, he concluded the Falcon must have yawed slightly in an anti clockwise direction on the southern shoulder and then clockwise in the overtaking lane preceding impact with the trees.[20] Finally he was of the opinion that the exit-speed of the Falcon at the point it commenced to transverse into the dirt verge, was in the order of 100-110 kph.[21]
[19] Exhibit 1P1 para 6.2 and 8.10, T321.17-.25
[20] Exhibit 1P1 para 6.3 and 6.4
[21] T321.22-.25
At those speeds, it would take the Falcon between four and five seconds to advance 15 m on the Peterbilt, and between five and seven seconds to advance 23 m, assuming the Peterbilt was doing 85 kph.[22] Mr Hall expressed the initial view (after allowing up to two seconds for Mr Starick to react), that “it could be expected that the Ford would have moved onto the dirt verge within 100-125 m of the truck first beginning to move out,”[23] over a time span of “around four seconds”.[24]
[22] Exhibit 1P1 paras 7.5 and 7.6, T329.29-330.28
[23] Exhibit 1P2 para 6.11
[24] T349.26-.31
He conceded under cross-examination the maximum distance the Falcon was likely to have travelled before leaving the bitumen was 285 m, that is to say more or less corresponding with the distances between the point “T1” and the end of the double centre lines just beyond the first crest.[25] This “concession” was however premised on first that Mr Edwards indicated at the latter point, second did so for four or five seconds, and third stayed close to the centre line for a further period of one to two seconds.
[25] T341.9-342.24
Mr Hall explained Mr Edwards’s semi-trailer would cover between 94 to 120 m in that period. By adding these to the original 100-125 m estimate, he considered “the Ford might run off the road in the vicinity of 194 m to 245 m east of the end of the double white line”.[26] He added, on the premise that Mr Edwards moved to his right at a point 53 m east of the double lines, the maximum distance the Ford could be expected to travel before leaving the bitumen, was between 153-178 m.[27]
[26] T346.18-.347.8
[27] T349.16-.35
The underlying assumptions in this evidence, has its origins in his second report. In that he was asked to comment on a report prepared by Mr Aust, which is not before the court. The pertinent sections in Mr Hall’s second report were these:[28]
[28] Exhibit 1P2
3.     INSTRUCTIONS
3.1     I have been requested to provide an opinion on the following;
…
3.1.2Are the assumptions that Mr Aust was requested to adopt consistent with the physical evidence and evidence of witnesses?
3.1.3Is a claim by Mr Edwards that he indicated 4-5 seconds before moving out consistent with his claim that he moved out approximately 55 metres east of the termination of the double unbroken line?
…
6.6As indicated in the previous report, it was likely to have taken Mr Starick at least 4 seconds of acceleration and overtaking manoeuvre to be in the region of the right rear wheels of the semi-trailer.
6.7As indicated by Mr Aust, that would have required Mr Starick to begin the manoeuvre some 54 metres west of the end of the double centre lines. At that point, Mr Starick would not have reached the crest, and as pointed out by Mr Aust, he would not have had a view of the straight section of road ahead of him. In addition, the decision making process prior to undertaking the passing manoeuvre, would have occurred in a section of the roadway where the line-of-sight was very short (see photo HSA 31). It is highly unlikely that a driver would make a decision to overtake at that location.
…
6.12If the semi-trailer began to move out approximately 53 metres east of the termination of the double unbroken lines, it could be expected that the Ford would have deviated onto the dirt shoulder within 175 metres east of the termination of the double unbroken centre-lines. That is not consistent with the Police recording of the tyre marks extending onto the dirt shoulder approximately 285 metres east of the termination of the double unbroken centre-lines.
7.DISTANCE TRAVELLED WHILE INDICATING
…
7.2At 80-85 kph, Mr Edwards would have covered approximately 90-120 metres in 4-5 seconds.
7.3If Mr Edwards then began to pull out to overtake the lead semi-trailer approximately 55 metres (rounded up to nearest 5 kph) east of the termination of the unbroken double centre-lines, he must have begun to indicate his intention 35-65 metres west of the termination of the unbroken lines.
…
8.CONCLUSIONS
…
8.3The assumptions that Mr Aust was requested to adopt are inconsistent with;
…
(c)     the distance east of the termination of the double unbroken centre-lines where Mr Starick left the roadway after steering to his right
8.4.Activation of the signal lamps by Mr Edwards 4-5 seconds prior to him moving out approximately 55 metres east of the termination of the double unbroken centre-lines is inconsistent with him needing to have a clear view of the roadway ahead before attempting to overtake.

Putting aside these considerations, and the objective facts and the inferences that arise from them for the time being, it is now appropriate to turn to what the witnesses had to say, before attempting to piece together what was the most probable course of events.
The oral evidence of the lay witnesses
The non-party witnesses held no interest in the litigation, as Mr Birchall correctly emphasised. No doubt each did their best to describe the events as they recall them. Equally their evidence stands to be assessed against rapidly unfolding events, based on observations made from fast moving vehicles at some distance, the possibility of focus on one as opposed to the other of the two vehicles concerned, and in the case of Professor Halsey, a tendency to surmise.
The evidence was that both semi-trailers were around 19-20 m in length, that is nearly four average car lengths. The Peterbilt had a front wheel base of approximately 2.3 m.[29] It was fitted with four sets of blinkers, two each to the very front and rear, one at the bogey wheels, and one midway along the trailer.[30] Both truck drivers enjoyed an advantageous elevated seated position of about 2.5 m, as distinct from those in passenger vehicles of about 1.2 m above ground level.[31]
[29] T428.7.19
[30] T48.16-49.11, T358.13-.37
[31] T316.33-317.3
Having driven this familiar route on numerous occasions, Mr Tuitt anticipated there would be an attempt to overtake once he rounded the bend.[32] For that reason he kept a close eye on movements to the rear through his exterior right mirror.[33] He observed the Falcon commence to overtake and estimated it reached a point “halfway down the length of the semitrailer” when Mr Edwards began to move out.[34] As to where this happened, he accepted the proposition that he was “well past the end of those double lines when any movement by the semitrailer behind … occurred.”[35] He did not see any indication from the Peterbilt itself, as he “wasn’t really looking at that either”.[36]
[32] T33.1-.30
[33] T33.16
[34] T33.27-34.3
[35] T59.5-.8
[36] T34.7-.8
Mr Tuitt went on to say the Falcon “was moving to the right … to keep away from the semitrailer and it appeared that it was accelerating … catching me at the same time” and at “one stage it probably got up level with the back of my trailer because I could look to the right and see the car, … pretty much out of control …”.[37]
[37] T34.12-.30
Dr Mills saw the Falcon “indicate with its right indicators” for “two to three seconds” “just over the brow of the hill” and then “moved smoothly into the right lane before accelerating to overtake”.[38] He estimated Mr Starick’s car was “halfway … in front of the back wheels of the truck and half the car was still out the back of the truck” when Mr Edwards first indicated,[39] and that it had been overtaking for about one or two seconds by then. He thought the Falcon reached about half way along the entire length of Mr Edwards’s truck.[40]
[38] T71.3-71.16, T72.11-.13, T84.5-.34 and T89.17-.30
[39] T73.1-72.1, T80.32-81.2
[40] T73.11-.15 and T91.19-.24
His wife Ms Walker, said that after they rounded the bend over the crest, she saw the Falcon make three or four flashes of its indicator, and then pull out to the right.[41] Her estimate was that it reached as much as three quarters of its length “on from the back of the truck … the boot was hanging out behind the back of the truck”, when Mr Edwards commenced to “move into the right lane”.[42] According to her it travelled “more than half his truck into that right hand lane”, which she later re-expressed as “about three-quarters to a metre across the white line and then it seemed to stay there for a little while and then it continued on into more of the right lane”.[43]
[41] T277.36-.10
[42] T278.13, T78.17-.29 and T293.23-.30
[43] T278.14-.25
Mr Robson spoke of rounding the bend, driving over the crest and coming into the straight section of road, when he saw a Ford indicate to overtake, for three seconds before moving to the right.[44] He said the semi-trailer first “came out a little bit …” and then indicated for one - two seconds before commencing to move to the right.[45] He considered the Ford drew “alongside … halfway along the semitrailer”.[46] During his evidence-in-chief Mr Robson suggested the semi-trailer indicated for between one and two seconds before moving to its right,[47] yet he conceded telling the police it had “activated the indicator at the same time it started to move”.[48] Even so he did not budge from his one to two seconds estimate.[49] Mr Robson described the semi-trailer as moving over into a “third of the lane … for oncoming traffic”.[50]
[44] T161.17-.22
[45] T162.2-.16, T173.13, T174.8
[46] T162.9-.11, T173
[47] T162.8-.11
[48] T174.24-.30
[49] T174.28-175.23
[50] T162.17-163.4
The last vehicle in the procession was driven by Halsey. He described a Ford indicating and pulling out to overtake “less than a second” afterwards.[51] According to him it then “moved along approximately just forward of the last set of wheels of the … first truck it was passing – and then … [it] … pulled out also to the right”, and that it “had a good – its own car length up besides the back of the semitrailer”.[52] He was not able to say whether Mr Edwards indicated or not,[53] however he added that it “veered sharply to the right” leaving the Ford “with absolutely no place to go”.[54] He acknowledged losing sight of the convoy for a time as they moved downhill, by when he had dropped 150-200 m behind.[55]
[51] T235.15-.21
[52] T235.35-T236.27
[53] T238.9-.10
[54] T238.16-.22
[55] T248.8-.18
Mrs Starick herself gave evidence which was not really of much assistance one way or the other in piecing together the events of this afternoon. She retains little more than a fleeting recollection of the events. She did say her husband was overtaking a semi-trailer and drew alongside, before it commenced to move to its right, yet she was quite imprecise as to the relative positions of either vehicle.[56]
[56] T257.19-258.1
From this summary it can be seen the witnesses are broadly consistent as to a number of significant facts. With one possible exception, they unanimously claim the Falcon commenced to move out after rounding the bend at a point beyond the brow of the rise. On one view of his evidence, Dr Mills may be the odd one out here. At first he appeared to suggest the Falcon indicated “just over the brow of the hill”,[57] however under cross-examination he qualified this by stating “it was probably getting close to the crest but hadn’t reached it as of then”.[58] This is in contrast to his evidence-in-chief when he assented to the proposition that he was “over the crest”.[59]
[57] T71.32
[58] T84.7-.12
[59] T161.17
Taken as a whole the tenor of his evidence was such that he could see all the unfolding events, so he must have been very close to the apex of the crest at least, in order to have been in a position to see ahead. This rather suggests the Falcon in front, must have been over the crest at that time. For those reasons, and as his evidence is at odds on this point with all the other witnesses, including Mr Edwards himself, to the extent that he suggests overtaking by the Falcon may have commenced before the top of the rise, I do not accept it.
No witness suggests there were oncoming vehicles on any section of the southern carriageway for as far as could be seen. Mr Edwards in his elevated position, confirms the accuracy of these observations, both as to the position of the Ford around the bend and as to the absence of oncoming traffic.[60] It was not conclusively shown the first crest some 616 m east of the double lines, completely obscured the view of all oncoming vehicles, even from the driver’s position in a passenger vehicle. The photographs HSA 48-59 in Exhibit 1P6 suggest such westbound traffic may not completely disappear from view, though they are inconclusive as to this.
[60] T371.370-372.12
The non-party witnesses are at one in stating the Ford Falcon was the first to indicate and first to move out. Likewise they are unanimous that it drew alongside Mr Edwards’ rig, by no less than half a car length and no more than halfway along its entire length, before Mr Edwards commenced to indicate. As mentioned earlier, the evidence was that both trucks were approximately 19-20 m in length.[61] Of course what “half way” precisely means, is somewhat relative. All the same, the weight of the oral evidence firmly points to the conclusion that the Falcon driven by Mr Starick was completely in the southerly or westbound carriageway and that it had at the very least partially drawn alongside the rig, before Mr Edwards indicated and therefore before he moved over the centre line.
[61] T373.38
Based on the objective facts identified and the oral evidence outlined above, the respective parties build quite different cases. The case for Mr Starick is that he was in the southern carriageway somewhere alongside the Edwards truck, and therefore in a position to have been seen when Mr Edwards first checked his rear view mirror. Proceeding to overtake was therefore plainly negligent because of the abject failure to see him, or if seen, in moving across his path.
On the other hand, Mr Edwards’ case is that he indicated and pulled out first, so that what followed was wholly, or if not primarily, the responsibility of Mr Starick. The huge vehicle with its indicating lights flashing was there plainly to be seen, so that Mr Starick should not have commenced or persisted with an overtaking manoeuvre. It is these central issues to which attention must now be directed and findings of fact made.
The defence case
The case for Mr Edwards commences with the fundamental proposition that his evidence should be accepted. This was to the effect that before indicating his intention to overtake, he checked the external rear view mirror and saw no vehicle behind or overtaking. The evidence was that the external rear view mirror furnished an unobstructed view to the right rear side, so there was no “blind spot” compromising his field of vision. His counsel did not suggest there was.[62] Mr Edwards said he had formed the intention to pass “providing it was clear”.[63]
[62] T457.l3-.22, T515.31-516.7
[63] T371.30-.31
The critical passages in his evidence-in-chief were these:[64]
[64] T371.28-376.7
QWhat were you intending to do as you got to the end of the double barrier lines.
AMy intention was to pass. Providing that it was clear, I intended to pass the other truck.
…
QCould you see whether there was any cars approaching from the east travelling in a westerly direction.
AThe road was clear.
QDid you indicate your intention to overtake to the right.
AYes, I did.
QWhere was your rig when you first indicated your intention to move to the right.
AIt was past – the back of the trailer would have been at the end of the double white lines when I indicated.
QPrior to indicating, did you do anything by way of your mirrors.
AI looked in the mirrors to see if there was anything coming which there wasn’t.
…
AI looked at my left-hand mirror to have a look down the left-hand side of the trailer, I looked down the right-hand side to check down the right-hand side of the trailer to ascertain whether it was clear.
QWhat did you see.
AThere was nothing there. So I put my indicator on. I moved across to the centre of the road, which as I proceeded along, gave me a better view down that road just to make sure that was no farmer or something like that had come out on to the road. And then as it was clear, I glanced in my rear-vision mirror again and proceeded to pull out to make my overtaking move.
QPrior to getting to that right-hand bend at what speed were you travelling.
AUp the rise, we were down to 75 to 80 km/h.
QBefore that at what speed had you generally been travelling behind the Kenworth.
AApproximately 85.
QAs you came up over the rise at what speed were you travelling.
A85 km/h.
QAs you were indicating and then moving out to the centre line, what speed.
A85.
QThen as you moved over the centre-line on to the other side, what speed would you have been travelling then.
AI would have been accelerating quite hard then.
QThe move across the centre line, how would you describe that movement.
AIt t would have just been a moving out procedure.
QWas it a fast movement, a slow movement, jerky, gradual, how would you describe it.
AJust a gradual movement.
…
QDid you see anything in your mirrors.
AOnce I had pulled out over the centre line, I caught a glimpse of something in my mirror, and I looked and saw it was a car coming up on my outside.
QWhat did you do in response to seeing that car in your mirror.
AI immediately swore and pulled hard to the left and moved straight back across to the left-hand side behind the other truck.
QHow far to the left did you bring your rig in relation to the edge of the bitumen can you say.
AI would have brought it right out to the edge of the bitumen.
QWas it just on or just off, can you say.
AI couldn't say at that stage, no.
QWhen you brought it back to the left, did you bring it in behind the Kenworth rig.
AYes, I did, yes.
QWhat did you see, if anything, of the vehicle after that.
AThe vehicle just was accelerating past me. It would have had –
QCan I just stop you there. When you say past you, did you see it go past your cabin.
AYes, I did and it had its –
QCan I ask you this question: when it was in front of you did you make an observation of where its wheels were in relation to the roadway.
AYes.
QWhat did you see.
AThe driver's side wheels were on the dirt. The left-hand side wheels were on the bitumen. It then moved - it was accelerating quite considerably. It moved across off the road.
QDo you mean by that it went to the right.
AIt went off to the right. All the wheels were off the bitumen.
QCan I ask you this question: where was the vehicle then in relation to where you were seated.
AIt was - the back of it would have been level with the front of my truck, the bonnet of my truck.
QWhat did you see thereafter.
AI could see the dirt flicking out from under the wheels. It then proceeded on, it glanced bushes or scrub that was immediately on the edge of the table drain or the verge.
…
QWhen you saw the Ford make contact with that scrub where was the Ford in relation to your vehicle.
AIt was some one and a half car lengths in front of me.
QHow was it moving relative to the speed at which you were moving at that time.
AIt was passing me quite rapidly.
QWas it relative to your vehicle's speed still accelerating.
AYes.
QWhat did you see after that.
AIt clipped the scrub on the right-hand side and it moved across to the left.
QWhere in relation to the bitumen roadway did it move.
AIt moved back across with its left-hand wheels on to the bitumen. Then it shot back across to the right and hit the scrub where it ultimately finished.
The following additional information was elicited somewhat belatedly in re-examination, over objection.[65]
[65] T441.29-442.11
QYou indicated in the photograph HSA34 the point at which you reached a position adjacent to the centre line, do you remember giving that evidence.
AYes, I do.
QWas there any further distance travelled by your vehicle before you moved your vehicle across onto the other side of the roadway.
AYes, there was.
QAre you able to say to his Honour approximately how much further distances was travelled.
AApproximately 50 m.
QAre you able to put that distance in a time frame as to seconds.
ATwo seconds.
QAre you able to give his Honour some idea of how far down the roadway you’d moved from the end of the double barrier line to the point where your vehicle reached the position adjacent to the centre line.
AAround 100 m, 100-120 m.
QAre you able to say what that time frame was.
ASome four seconds, five seconds.
It can be noted here, that this evidence is broadly consistent with the assumptions referred to in Mr Hall’s second report, as it is with the scenario put to him under cross-examination, mentioned earlier.[66] On all accounts the Falcon came to a rest on its passenger side, wheels facing the roadway. It was later restored to the upright position in order to obtain better access to the two occupants, who were obviously seriously injured.
[66] T341.9-342.24
The failure to contradict Mr Edwards!
Defence counsel insisted repeatedly during the course of his oral and written submissions, that as the evidence of Mr Edwards was unchallenged in critical respects, it should therefore be accepted according to the well-known rule in Browne v Dunn.[67] Amongst other decisions, he relied on ASIC v Rich,[68] and Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation,[69] for the proposition that it would be unfair to reject the evidence of a witness not given the opportunity to explain, on the topics the witness is proposed to be contradicted. The position however is not quite as simple or straightforward as that. The rule in Browne v Dunn was described by the High Court in MWJ v The Queen,[70] as an important aspect of fairness in the adversarial system of justice, but as one “both misplaced and overstated”.[71]
[67] (1893) 6 R (HL) 67
[68] (2009) 75 ACSR 1 at [488] and [494]
[69] [1983] 1 NSWLR 1 at 16
[70] (2005) 80 ALJR 329
[71] Above at [40]
There is no requisite unfairness where the witness has notice before giving evidence of the matters in issue, of “an intention to impeach the credibility of the story he is telling”: Browne v Dunn.[72] It is clear from the pleadings and the reports of Mr Hall that the version of events put forward by Mr Edwards was in hot dispute. The second report of Mr Hall, quoted extensively in relevant respects above, forms a clear illustration of just that. Notice that the evidence of Mr Edwards was in contention is also to be found in evidence called in the plaintiff’s behalf: Seymour v The Australian Broadcasting Commission.[73]
[72] Above at [70]
[73] (1977) 19 NSWLR 219 at 224-225 and 236
The whole tenor of the cross-examination by Mr Birchall made that abundantly clear. It was expressly put to Mr Edwards that he activated the indicators and commenced to pass “further down the road” to the east than he claimed in his evidence, thus putting in issue the very foundation of the defence case.[74] Moreover he was extensively taxed on inconsistencies in his evidence compared with his statements to the police. In the result direct challenge was implicit throughout on a number of fronts. In this state of affairs the principle in Browne v Dunn is simply not engaged.
[74] T437.27-438.11
If contrary to these findings and assuming there was such a breach, it was immaterial because if asked further questions, Mr Edwards would certainly have denied the version of events founding the plaintiff’s case.
Even so, as the High Court went on to point out in MWJ v The Queen: [75]
… a failure on the part of the other [party] to put a relevant matter in cross-examination can almost always, especially in ordinary civil litigation, mitigate or cure any difficulties arising by seeking or offering the recall of the witness to enable the matter to be put.
[75] Above at [40]

This point was first taken by defence counsel during his final address and hence following closure of the defence case. A request was then made to recall Mr Edwards to facilitate putting matters said to have been omitted, even though no breach of the rule was conceded. As the passages quoted from his evidence above demonstrate, significant aspects of his version of the events did not emerge until re-examination. That invitation was not taken by him.
It can be accepted that there may well have been inconvenience and stress associated with returning to submit to further cross-examination. To an extent they could have been alleviated by taking evidence via video-link from Mildura where he resides and by the offer from the defence to pay the attendant costs. The fact remains however that he consciously forwent the opportunity to cure the problem, if there was one.
It should also be said that it is difficult to envisage what further questions might have been put to Mr Edwards that were other than purely formal or ritualistic.[76] In the further written submission filed by Mr Edwards, his counsel suggested a number of topics not so explored,[77] such as anticipating taking his own overtaking action, or that he saw nothing in his rear mirrors. As these were in the nature of admissions that stood only to assist the plaintiff’s case, it was quite unnecessary to confront him on those topics. As to the suggestion that he ought to have been taxed on the distances travelled and over what time, these were already sufficiently encompassed in the challenge that he first put his indicators on further down the road than the end of the double white lines,[78] as it was in the second report of Mr Hall.
[76] Refer to the comments of Cox J in Ivanoff v Urie Unreported SASC 14 July 1987
[77] Paragraph 17
[78] T437.27-438.31
It is open to doubt whether the rule in Browne v Dunn goes so far as contended by counsel. Bray CJ said this of the rule in Thomas v Van Den Yssel:[79]
It was contended that this finding should not have been made because, so it was said, there was no challenge to the appellant's credit within the meaning of the rule laid down by the House of Lords in Browne v Dunn and the appellant, not having been warned that his veracity was under attack, was denied the opportunity to explain or to call corroborative evidence in relation to the matters which adversely affected his credit.
I do not question the rule in Browne v Dunn that if it is intended to suggest that a witness is not speaking the truth on a particular matter his attention must be directed to the matter by cross-examination so that he may have an opportunity of giving any explanation of it open to him, unless he has had notice beforehand that the credibility of his story is impeached, or unless, probably, it is so intrinsically and patently incredible as to be unworthy of examination. With respect, I think the rule is a salutary one. As Lord Herschell said at p. 70, it is "absolutely essential to the proper conduct of a cause".
In my view, however, the point fails here, both because the circumstances of the case do not bring it within the rule and because, in any event, the cross-examination of the appellant and the preliminaries to the trial were sufficient to bring to his attention and that of his advisers that it was being suggested that his account of his disabilities was exaggerated.
[79] (1976) 14 SASR 205 at 206-207 per Jacobs & King JJ agreeing, footnotes omitted
These principles have been approved and applied countless times since, to name just a few recent authorities: Merrey v The State of Western Australia,[80] Burgess v Y-Trans Pty Ltd,[81] Adamson v Ede,[82] and Martin v Rowling.[83]
[80] [2010] WASCA 62 at [15]
[81] [2010] VSCA 28 at [58]
[82] [2009] NSWCA 379 at [62]
[83] [2005] QCA 128 at [11]
Accordingly there is no absolute obligation to accept evidence not subjected to critical cross-examination, particularly if the evidence is contradicted by other evidence: Bulstrode v Trimble.[84] It is difficult in principle to appreciate why a witness must be accepted when the weight of the evidence contradicts that witness. The consequences of non-compliance need “to be considered in the light of the nature and course of the proceedings.[85] Although “judges should in general abstain from making adverse findings about parties and witnesses in respect of whom there has been non-compliance,” they are surely not wedded to that course in the face of persuasive evidence to the contrary, and as the High Court emphasises, on most occasions justice will be served “by seeking or offering the recall of the witness”.[86]
[84] [1970] VR 840 at 848-849
[85] MWJ above at [18]
[86] MWJ above at [40]
Although a judge may require a witness or even a party to be recalled for further cross examination, it is not appropriate in this case for the reasons articulated above: Payless Superbarn (NSW) Pty Ltd v O’Gara,[87] and R v Burns.[88] Those situations are ordinarily reserved for cases of genuine oversight, to avoid abject injustice, and even then usually when the application to recall comes much earlier in the proceedings than it has in this instance: MWJ v The Queen,[89] Brown v Petranker,[90] Nye v NSW,[91] Harrington Smith v State of Western Australia (No 8).[92]
[87] (1990) 19 NSWLR 551 at 556
[88] (1999) 107 A Crim R 330
[89] Above at [49]
[90] (1991) 22 NSWLR 717 at 727-729
[91] (2003) 58 NSWLR 152 at 157
[92] (2004) 207 ALR 483 at [120-132]
These observations aside, it must be conceded that Mr Edwards appeared genuine in his endeavours to recall events, as they transpired. If there is to be any criticism of him, it must reside in other areas, such as whether or not his evidence is consistent with what he told the police some days later at Mildura, how it marries or otherwise with the objective facts and whether it is consistent with the combined weight of the evidence of the other witnesses.
Analysis of the evidence
All things considered, the evidence of Mr Edwards is inconsistent with the pith and substance of that given by the eye-witnesses, in the key areas identified above. To summarise, his evidence was that just after passing the end of the first set of double lines, he indicated over a distance of some 50m or about two seconds, proceeded a further 100-120 m before reaching a position adjacent to the centre line in four to five seconds, before pulling across to the other side of the roadway.[93] All this occurred before Mr Starick commenced overtaking. This version of the events is simply inconsistent with the evidence of the five witnesses summarised earlier.
[93] T438.12-442.1
Further, it was internally confusing both as to the number of times he looked in the rear view mirror,[94] and as to his position on moving to the centreline, preparatory to overtaking.[95] In that evidence he suggested for the first time under cross-examination that he checked his rear mirror three times rather than two,[96] whereas under cross-examination and in what he told the police, he claimed to have done so only twice at most.[97] He told Officer Bell in the interview at Mildura in the late afternoon of June 22, 2004, that he “put my indicator on immediately around the bend, after having checked behind … executing that about one hundred and fifty metres past the corner …” and he indicated four to five seconds before moving out.[98] His suggestion of closing the initial gap of 45 to 50 m behind Mr Tuitt, down to 10 m over a distance of 30-50 m in two seconds, is an impossibility.[99]
[94] T372.11, T417.23-419.4, T421.6-.19, T422.24-, T423.11, T433.1-.21, T438.24-37, T442.28-443.7
[95] T421.11-422.31, T426.1-.14
[96] T423.1-.8
[97] T417.22-.30, Exhibit 1P8 Q55, Q72, Q147, Q150
[98] Exhibit 1P8 Q56-Q58
[99] T426.1-.14
Another consideration casting doubt on the evidence of Mr Edwards resides in the evidence of Mr Hall, summarised earlier. The effect of this in light of the above findings, is that the Falcon was in the overtaking lane for a minimum of three and at most seven seconds.[100] This conclusion depends on the position of the Falcon adjacent to the Peterbilt being no les than half its length forward of the rear end of the semi-trailer. On this view of matters – the most favourable to Mr Edwards in this respect - the Falcon was there to be seen on the southern carriageway adjacent to the rear of the semi-trailer, for a minimum of three seconds, over a distance of between 83.25 m or 91.65 m, depending on the speed of the Falcon being either 100 kph or 110 kph respectively. The most unfavourable situation from his point of view is that it was present there for seven seconds over a distance of 161 m. His evidence that he did not see the Falcon on either contingency if he had looked, is simply inexplicable.
[100] T329.29-330.28
There is another way of viewing matters, which depends on a process of reconstruction. The distance from the end of the double white line immediately over the crest for east bound traffic to the next set, commencing near the second crest, is 541.8 m.[101] It is also known the distance from the same starting point to “T1” where the car first left the roadway, is 289 m.[102] It is within that stretch of 289 m the critical events unfolded. At Mr Edward’s speed of 85 kph, this distance would take 12.56 seconds to traverse. It would be 10.41 seconds at 100 kph, and 9.46 seconds at 110 kph for the Falcon. All up there was between 9.6 and 12.56 seconds available for both to indicate and commence overtaking manoeuvres, until reaching the point “T1”.
[101] Exhibit 1P4
[102] Exhibit 1P1 para 4.1.9
There is no reason to suppose Mr Edwards would pause for as long as he claims before commencing to overtake, and yet on his own evidence he only commenced to do so 100 to 150 m after it was open to. Given the length of both rigs, it was clearly desirable to pass as soon as he safely could in case oncoming vehicles appeared up ahead. Based on the conclusion of Mr Hall that the Falcon would have travelled 200-220 m from the end of the barrier lines before it left the road, that is a distance of between 89 m and 69 m less than the 289 m available from that point to “T1”,[103] it necessarily follows that the moment when the Ford first reacted to the semi-trailer, must have been at least the latter distance to the east of the barrier lines. Expressed in another way, the evidence of Mr Edwards does not fit with the physical evidence that “T1” was 289 m east thereof,[104] essentially for the reasons contained in the second report of Mr Hall.
[103] T337.20-.37
[104] T349.16-350.2
Negligence
These considerations, coupled with the evidence of the lay witnesses as analysed above, lead to the probabilities being as follows. Mr Starick, travelling at no greater than 110 kph, indicated several seconds before Mr Edwards of his intention to overtake. This was at a point around the bend, with a good view of the road ahead. He drew alongside with no less than half the length of his Falcon forward of the rear most section of the truck. Mr Edwards first indicated his intention to overtake, just after taking a cursory glance through the rear view mirrors when he did not see the Falcon alongside or to his rear.
Several seconds later Mr Edwards pulled the Peterbilt to the centre line and then drove further to the right, thus forcing Mr Starick to take evasive action in order to avoid impact. By this time the Falcon was at about the midpoint of his trailer, thus presenting no other option than to veer to the right. The critical moment of engagement must have been when both vehicles came closest, was approximately 100-125 m before “T1”.
The Peterbilt traversed the centre line by no less than a third of its width, before Mr Edwards first caught a fleeting glimpse of the Falcon through the driver’s side rear view mirror. He promptly responded by pulling back into the left lane behind Mr Tuitt. Unfortunately by this time Mr Starick was partially off the bitumen and soon lost control.
For some unaccountable reason Mr Edwards failed to notice the Falcon sooner. When he first looked he did not see what he should have seen and in any case he should have looked again in the intervening period to make doubly sure. As the Falcon had been caught behind for approximately 20 km or more, he was acutely conscious of the fact that it would probably – perhaps almost certainly - attempt to overtake and that it would endeavour to do so on this particular section of the Karoonda road.[105] By the time he caught a glimpse of the Ford, it was effectively too late.
[105] T397.27-.30, T437.1-.18
The only potential explanation for this omission, is that he was inattentive and complacent to rear activity, having for some reason formed the view there would not be an attempt to pass him at that point.[106] That hypothesis is reinforced by what he told Police Officer Bell on 22 June 2004, that it was unnecessary “to look in my rear vision mirror again because the act of looking … and indicating … [are] … one in the same they would have been split seconds apart …”.[107]
[106] T380.9-.23
[107] Exhibit 1P8 A150
A person having the control of a large, heavy and long vehicle capable of causing great damage, falls under a duty to keep a particularly careful lookout: Cocks v Sheppard,[108] Weinert v Schmidt,[109] a duty nevertheless hedged by the same standard of care expected of any driver: Imbree v McNeilly.[110] It was not unreasonable for Mr Starick to have attempted to pass. He had cleared the bend and held an unobstructed view of the unoccupied road ahead, subject only to the impediment caused by the first rise about 500 m further to the east. The blinkers on the Peterbilt presented no better warning than the bulk of the rig itself, and in any case the Falcon was too far advanced by then for the blinkers to be of any practical use in warning him.
[108] (1979) 53 ALJR 591 at 594 & 595
[109] (2002) 84 SASR 307 at 318
[110] (2008) 236 CLR 510
Section 31 of the Civil Liability Act 1936 (SA) establishes the standard of care as that of a reasonable person in the defendant’s position. On the above findings Mr Edwards was negligent in his look-out and in making a manoeuvre with a large heavy vehicle to the right, before adequately ensuring he was not impeding or compromising vehicles at his side. He was negligent in failing to see the Falcon when he first looked and in failing to look again before catching the glimpse of it when it was too late to retrieve the situation: Rice v Scanlan.[111]
[111] (1986) 3 MVR 270 at 271
Contributory negligence
Section 44 of the Civil Liability Act applies the same general standard of negligence when determining whether a person has been contributory negligent. When issues of contribution arise, s 7 of the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA), obliges the court to reduce the amount of damages a plaintiff is otherwise entitled to on account of contributory negligence, “having regard to the extent the contributory negligence contributed to the harm”.
Section 50 of the Civil Liability Act directs the court to first assess damages to which the injured person would be entitled, as a second step, to determine the extent of the injured persons contributory negligence assessed in percentage terms, and thirdly to reduce the amount so assessed to the extent of that degree of contributory negligence. Having undertaken these steps, the court must then apply any applicable fixed statutory reduction, arising on the facts of the case. In this instance this third step relates to the issue of whether or not Mr Starick was wearing a seatbelt. If he was not, by virtue of s 49(1) of the Civil Liability Act 1936 contributory negligence is presumed and the court is required to apply “a fixed statutory reduction of 25 per cent in the assessment of damages”.
In his amended defence, Mr Edwards claims entitlement to contribution by way of apportionment (quite apart from the seatbelt issue) on account of the negligence of Mr Starick in commencing an overtaking manoeuvre when it was unsafe, failure to keep an effective lookout, persisting to accelerate and overtake after Mr Edwards indicated and steered towards the right and of the failure to brake, slow or sound his horn.
There is no proof Mr Starick was driving at an excessive speed (the maximum permitted by law is 110 in this zone), nor was there on the above findings, any evidence of overtaking when it was unsafe. Equally on the above findings he was not negligent in his look out. There was a suggestion that he might have slowed down by braking in his predicament. As he was forced off the side of the road beyond the bitumen, this would have been a most unwise and dangerous course. This was the opinion of Mr Hall.[112] Common sense indicates braking on loose gravel at speed was fraught with danger, so that basis for contribution must also be rejected.
[112] Exhibit 1P1 para 9.6, T313.15-314.25
So too must the suggestion of sounding the horn. On the findings the court has already made, the Peterbilt remained in the left lane for some time as Mr Starick overtook, so there was nothing threatening calling on Mr Starick to respond to. By the time Mr Edwards began to move out, the natural instinct was to swerve to the right to avoid impact. Trying to beep in the heat of the moment was very likely to compromise his ability to steer clear as well as his ability to bring the car under effective control afterwards. As soon as Mr Edwards realised the Falcon was there, he ducked back into his original position, so any subsequent use of the horn would have been pointless.
The issue of acceleration is more complex. The suggestion is that Mr Starick endeavoured to accelerate out of the predicament. The evidence of this prospect comes from Mr Edwards himself and Mr Tuitt. It was to the effect that the Falcon accelerated, bringing it level with the bonnet of the Edwards truck,[113] or even close to the rear of Mr Tuitt’s trailer.[114] A fundamental impediment to this submission is the unchallenged expert evidence, to the effect that the maximum speed reached by the Ford was 110 kph and that it slowed to 70 kph before final impact. This conclusion consequently led Mr Hall to reject the thesis of acceleration.[115] Moreover the evidence of Dr Mills was that the Ford began losing speed,[116] and it was a proposition flatly rejected by Mr Halsey.[117] Insofar as the witnesses might have thought the Falcon did accelerate, that more than likely was the product of the perception created by the relative speed differential as between the two overtaking vehicles.[118]
[113] T374.34-375.18
[114] T34.12-.30
[115] Exhibit 1P1 paragraphs 8 and 10
[116] T95.23-.32
[117] T254.1-.3
[118] TT91.10-.24, T93.17-.31, T95.290-.32 (Mr Mills); T161.34-162.1, T176.36-177.3, T179.27-.37 (Mr Robson); T295.1-.20 (Ms Walker) and refer the comment of Mr Hall T337.6-.7
Defence counsel strongly argued that as a driver of a following vehicle “which collides with the vehicle which is proceeding ahead of it is usually held primarily liable for the consequences of the collision”, Mr Starick should bear the brunt of the liability for this incident: Braund v Henning.[119] The rationale for this line of thinking seems to be that the forward driver has a restricted view to the rear. Accordingly the following driver owes a duty to be alert to vehicles in front: Knowles v Dubla,[120] owes a duty to anticipate the forward vehicle may stop or change direction: Mugford v Ames,[121] or with the benefit of better vision, the rear driver has the capacity to make relatively minimal adjustments to avoid impact: Barberien v Hardy.[122]
[119] (1988) 62 ALJR 433 at 436
[120] (1997) 25 MVR 134
[121] (2000) 31 MVR 406, [2000] SASC 241
[122] [2003] SASC 353 at [10] and [14]
The present however is not such a case. At the point the defendant first indicated, Mr Starick was already alongside. He was then in no sense, a “following” vehicle. The central feature of obscured rear vision is therefore wanting. The dynamics in the balance of the capacity of the respective vehicles to cause harm, is significantly changed from the typical “following” situation. That being so, the cases referred to by defence counsel have no application to the proven facts of this case.

So far as contributory negligence is concerned, there remains a question of taking effective action in order to avoid losing, or to regain, control of the Ford Falcon. This issue compounds in this way. Although the seatbelt question is the last matter the court is called upon to consider under the statutory scheme, the question may potentially bear independently on the issue of contributory negligence in another way.
The evidence of Mr Tuitt, Mr Mills, Mr Robson and Mr Edwards was that when they stopped to render assistance after restoring the car to an upright position, Mr Starick was effectively upside down with his head lodged in the footwell on the driver’s side.[123] This awkward resting position was an impossibility assuming a functioning seatbelt was worn at that time. At least two witnesses deposed to seeing the seatbelt in the retracted position at the “B” pillar.[124] More significant, Mr Tuitt saw Mr Starick “pretty much airborne in the vehicle” when the car was on the dirt verge.[125]
[123] T38.1-.4, T166.1-.23, T378.8-.23
[124] T165.29-.38, T379.7-.14
[125] T35.29
None of this evidence was vigorously challenged by either Mr Day or Mr Birchall. In this state of affairs the court can only conclude Mr Starick was not wearing a seatbelt according to any onus. That conclusion ultimately requires the court to apply “a fixed statutory reduction of 25 per cent in the assessment of damages”: s 49(3) Civil Liability Act.
However the evidence of the witnesses was that the vehicle appeared to lose control once it began to yaw or “fishtail”, practically from the moment it left the bitumen. This fact, coupled with the fact that Mr Starick was thrown about in the car, suggests he might not have been in a position to reach the brake or accelerator pedals at such times.
This means the failure to be secured firmly in the driving seat, may have contributed to an inability to effectively control the vehicle. It is in this sense that a separate and discrete question arises as to whether this becomes an aspect of contributory negligence in its own right, quite apart from the statutory reduction. Statutory reductions in fixed percentages are mandated because of the presumed influence of seatbelts in reducing or making it less likely people will sustain serious injuries when wearing them. Mandatory reductions of this type are therefore directed more to the resultant harm, rather than to operating negligence in the first place.
The general standard of care required Mr Starick to wear a seatbelt in this situation. That was established by the Full Court in Ferrett v Worsley,[126] providing it contributed to the severity of the injury, the onus of proof being on the defendant. This stage of the inquiry requires a consideration of the respective departures from the standard of a reasonable man: Pennington v Norris,[127] and of the relative importance of their respective acts in causing the damage: Podrebersek v Australian Iron & Steel Pty Ltd.[128] Once so considered the court must assess the degree of contribution “that is fair and equitable having regard to the extent of each contributory’s responsibility for the harm”: s 6(5) Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA).
[126] (1993) 61 SASR 234
[127] (1956) 96 CLR 10
[128] (1985) 59 ALJR 492
This formula serves to beg the question whether the failure to wear a seatbelt can attract a greater reduction, than the statutory 25%. That returns the enquiry to the proper construction of s 50 of the Civil Liability Act. It reads:
50  (1)    If damages are liable to reduction on account of actual or presumed contributory negligence, the court is to proceed in accordance with this section.
(2)     First, the court is to assess the damages to which the injured person would be entitled if there were no reduction for contributory negligence.
(3)     Secondly, the court is to-
(a)determine the extent of the injured person’s contributory negligence, leaving out of the account factors for which a fixed statutory reduction is prescribed by this Part but taking into account the injured person’s intoxication (if relevant) and factors that would, apart from this Part, amount to contributory negligence; and
(b)determine a percentage reduction to be made on account of these forms of contributory negligence (which cannot be less in a case involving intoxication than the relevant minimum prescribed by this Part); and
(c)then reduce the amount assessed under subsection (2) by the percentage determined under this subsection.
(4)     Thirdly, the court is to apply an applicable fixed statutory reduction to the amount assessed under subsection (2) and reduced, if required, under subsection (3), and, if 2 or more fixed statutory reductions are required, the court is to make them in series.
The structure of this section seems at first sight to suggest the statutory reduction serves as a cap or limit on account of all “forms of contributory negligence” related to the failure to wear a seatbelt. This preliminary assessment is reinforced by the fixed and mandatory nature of the reduction. This stands in contrast to the previous discretionary regime under s 35A(1)(i) of the repealed Wrongs Act (SA) 1936, “… 15 per cent or such greater percentage as the court thinks just and equitable …”.
However under earlier forms of these provisions, it was necessary in order to secure a greater reduction, for the defendant to establish the proper use of a seatbelt would have reduced or lessened the severity of the injury: Barnard v Towill,[129] Allan v Fletcher.[130] There is no longer any such discretion or any such onus in the case of the failure to wear a seatbelt, for in that situation the presumption of contributory negligence is “irrefutable”: s 49(1) and (2) Civil Liability Act.[131]As a matter of general principle, “the question is not what was the cause of the accident …. it is rather what was the cause of the damage”: Froom v Butcher,[132] and Nicholson v Nicholson,[133] Rust v Needham,[134] Carroll v Lewitzke,[135] or what was the cause of the “harm”: section 7(2)(b) Law Reform (Contributory Negligence and Apportionment of Liability) Act s 50(3(c).
[129] (1998) 72 SASR 27 at 41-42
[130] (2001) 79 SASR 559 at 561-562
[131] Set out later in these reasons
[132] [1976] QB 286 at 292
[133] (1994) 25 NSWLR 308 at 315F, 332F & 334E
[134] (1974) 9 SASR 522 at 523
[135] (1991) 56 SASR 18 at 21, 25-26
Be that as it may, the evidence in this case although suggesting a loss of control at the time referred to by Mr Tuitt on account of the failure to wear a seatbelt, the defendant has failed to discharge the onus of proof resting on him: Joslyn v Berryman.[136] The only evidence touching this question was that of Mr Hall, to the effect that braking whilst on the dirt shoulder “would have presented instability and wheel lock, with consequent collision into the trees”.[137] Otherwise he was not asked to consider by either side the practicalities of bringing the car under control in other ways. All that emerged was that Mr Hall did not consider it inevitable loss of control could not be regained.[138] It is not surprising therefore that defence counsel expressly disavowed contributory negligence on this account. It is as well, one inconsistent with the theory of continued acceleration whilst overtaking. It therefore becomes unnecessary to consider if this facet of the case might have led to a non-statutory reduction on account of contributory negligence owing to the failure to wear a seatbelt.
[136] (2003) 77 ALJR 1233 at [18]
[137] Exhibit 1P1 paragraph 9.6
[138] T314.21-.25 and refer Exhibit 1P1 para 9.6 and T313.15-314.25
Having for the time being left out of account the prescribed statutory reduction relating to the omission to wear the seatbelt, it now becomes necessary to consider this subject at the last and third stage of the s 50(4) process, namely “to apply any applicable fixed statutory reduction to the amount assessed …” It is here that s 49 of the Civil Liability Act comes into play:[139]
[139] Previously s 24M Wrongs Act 1936 (SA)
49—Non-wearing of seatbelt etc
(1)If the injured person was injured in a motor accident, was of or above the age of 16 years at the time of the accident and—
(a) the injured person was not, at the time of the accident, wearing a seatbelt as required under the Road Traffic Act 1961; or
…
contributory negligence will, subject to this section, be presumed.
(2) Subject to the following exception, the presumption is irrebutable.
Exception—
In the case mentioned in subsection (1)(b)(ii)—the injured person may rebut the presumption by establishing, on the balance of probabilities, that the injured person could not reasonably be expected to have avoided the risk.
(3) In a case in which contributory negligence is to be presumed under this section, the court must apply a fixed statutory reduction of 25 per cent in the assessment of damages.
Section 49(1)(a) initially picks up s 162A of the Road Traffic Act 1961 (SA). This requires every motor vehicle to be equipped with seatbelts. By a combination of ss 80 and 176 thereof, the Governor is empowered to make “rules (Australian Road Rules) to regulate … any aspect of driver, passenger or pedestrian conduct…” and to “make such regulations and rules as are contemplated by, or necessary or expedient for the purposes of, this Act”. The obligation to wear seatbelts was originally contained in s 162B of the Road Traffic Act, but that obligation is now regulated by rule 264 (1) of the Australian Road Rules.[140]This provides so far as relevant to the facts of this case, that the “…driver of a motor vehicle that is moving… must… if the driver's seating position is fitted with a seatbelt…wear the seatbelt properly adjusted and fastened…”.
[140] Road Traffic (Road Rules) Amendment Act 1999 No. 39 of 1999, assent on 5.8.1999 SA Government Gazette 11.11.1999 (p 2254)
On the evidence there is no doubt that Mr Starick was in breach of this obligation and hence the operation of s 49 of the Civil Liability Act is enlivened, to the effect that contributory negligence is presumed and the court must therefore apply the “fixed statutory reduction of 25% in the assessment of damages”.
Conclusion and Orders
On the above findings Mr Edwards was negligent on two fronts: the failure to see Mr Starick in his Falcon in the first place and in the failure to look again before crossing the centre line. Based on the same findings Mr Starick was not contributory negligent, so his entitlement to damages requires no reduction, save only for the compulsory 25% on account of his failure to wear a seatbelt.
The parties should be heard as to the form of orders appropriate to these conclusions and the application of the statutory formula governing them in each action. They should then be heard as to the procedure next to be adopted in light of their agreement as to the level of damages for both plaintiffs and on the question of procedure for approving the compromise on behalf of Mr Starick himself. The questions of costs and interest also remain outstanding.