Van Den Heuvel v Tucker No. DCCIV-98-763

Franciscus Van Den Heuvel v Tom Tucker
[2000] SADC 131

His Honour Judge Taylor
Civil

On the weekend commencing Friday, 9th June 1995 a number of people travelled from Adelaide to Coober Pedy to play in a tournament of the game of ‘eight ball’.
Five of them travelled in one car, the car being a 1977 Valiant Chrysler station wagon, rear drive and automatic, with the automatic lever on the steering wheel.
The five sat in the same positions for the journey to Coober Pedy and return.
Frank Van Den Heuvel (the plaintiff) was the captain of the team and he had provided the car, having borrowed it from his brother.
The driving to and from Coober Pedy was shared by the plaintiff and Tom Tucker, (the defendant), and those two sat alternately driving or in the seat next to the driver.
The other three sat in the back seat, Steve Nikolavcic sat behind the front passenger, Frank Deeble was in the rear centre seat and Jason Tucker (son of the defendant) sat behind the driver.
The plaintiff drove the car from Adelaide to Woomera and the plaintiff requested that the defendant then drive the car to Coober Pedy.
The section between Adelaide to Woomera is approximately 534 kilometres and the section from Woomera to Coober Pedy is approximately 266 kilometres.
Whilst the defendant was driving the car on the section from Woomera to Coober Pedy, when about 80 kilometres before Coober Pedy, they saw a car by the side of the road and it was the car of John Stam - another car going to the Coober Pedy competition. This car was broken down and it is generally agreed that they would tow it to Coober Pedy. The car was a Holden Statesman and apparently a tow rope was obtained from the plaintiff’s car. Frank Deeble left the car at that incident after a dispute over warm beer.
The tow then commenced with the distance between the two cars being between nine to twelve feet, varying with different witnesses.
The defendant says that the Chrysler did not have enough power to tow fast as he had to have his foot to the floor to make any headway.
Stam complains that the tow was too fast at around 110 kilometres per hour.
The defendant disputes this.
In the event, they all arrived at Coober Pedy without incident at about 7.00 - 7.30pm that Friday night.
The method of driving from Adelaide to Coober Pedy, that is, the driving of the plaintiff, taken from the following passages of the transcript pages 8, 9 and 10.

EVIDENCE OF FRANCISCUS VAN DEN HEUVEL

“Q.... When you drove up did you average an approximate speed, or did you drive at any set parameters of speed.

A.     Once I got to the open road, I was sitting just under 100.
Q.     Just under 100 km/h.
A.     Yes.
Q...... The state limit is 110 km/h, could you explain why you drove at 10 km/h under the state limit.

A. The car didn’t feel safe to me at 110.
Q...... Could you describe to his Honour what the car felt like when you took it up to 110 km/h.

A. Just had a bit of vibration in it, and the steering didn’t feel right to me.
Q...... When you say ‘vibration’, did that vibration have a sound accompanying it, did it; was there noise.

A. No, just a bit of vibration, sounded like the front wheels to me.
Q...... You said it didn’t feel right. Could you describe to his Honour what you meant by that.
A.It just seemed to be - when you are driving, it seemed to go one way and, as you corrected, it seemed to go the other way. You were forever sort of sitting (INDICATES), you were driving. Once I backed it off just under 100, it seemed to travel quite good.
Q...... You have said you were driving and you indicated with your hands grasping an imaginary steering wheel going from side to side. Could you explain to his Honour what you mean by you ‘were driving’. Did it require constant attention.
A.It took a lot of attention at 110, you have to really concentrate to keep it going, it wasn’t comfortable driving.

Q. Did you have occasion to have a look at the tyres on the car.

EVIDENCE - VAN DEN HEUVEL (cont.)

A. They were all fairly new tyres, it just had new tyres put on there actually.
Q...... On the other side of Port Augusta did you notice any change or improvement in the road surface or condition.

A.     The road was quite good, very good.
Q.     You changed over, who then started driving the car.
A.     Tom took over when we stopped for coffee at Woomera.
Q.     Did you give him any advice in relation to the driving of the car.
A.     I did mention to him to try and keep it under 100 because it felt a bit funny.
Q.     Did he respond in any way to you when you gave him that advice.
A.     No, he just sort of nodded, and that was it.
Q.     Did he continue driving from that changeover all the way to Coober Pedy.
A.     Yes.”

The driving of the defendant was described by the plaintiff in page 10 and 11 of the transcript as follows -
“Q.... Did you have occasion to notice what speed Mr Tucker was doing on the way up.
A.     When I first woke up I - he was sitting on between 130 and 140.
Q...... Did you have occasions to see him at other times and what speed he was doing.
A.     On the way up there?
Q.     This is on the way up.
A...... We stopped to pick up John Stam and I was awake at that time all the way to Coober Pedy after that.
Q.Before you got to the John Stam incident, can you tell his Honour approximately what speed Mr Tucker seemed to be averaging on the way up.
A.     Between 130, 140.
Q.     Did you say anything to him about that.

EVIDENCE - VAN DEN HEUVEL (cont.)

A...... I did say how come he was doing it, and he said that after it got over 120, the car seemed to stop vibrating.

Q.     Did you caution him about the speed.
A.     I did ask him to slow down.
Q.     Did you indicate to him you weren’t happy with the speed he was doing.
A...... More or less. I said “Take it easy, a bit’. I didn’t actually tell him to slow down.

Q. You didn’t tell him to slow down.
A. I did ask him to ease up a bit, but I didn’t actually force the issue.”

All the participants in the eight ball tournament had a good time, “a heavy weekend”, with some drinking at night until very late and then early morning play offs, etc.
On Monday morning there were positional pay offs at about 9.00am finishing at about 10.00 - 10.30 am.
The plaintiff asked the defendant to go to the service station to fill up with petrol and gas because the plaintiff was then settling up the documents relating to the tournament.
He wanted the car to be ready for immediate departure.
The plaintiff had agreed that the defendant should drive to Woomera where he would take over, ie, the same sequence as the drive up.
I find it inconsistent to accept the complaints of speed of driving of the defendant on the previous section, Woomera to Coober Pedy, when they all accept him to drive on the same section going home.
After leaving Coober Pedy on the way home most of the passengers slept from time to time and the only one that did not sleep and had conversations at various times with the driver, the defendant, was Frank Deeble. The other three passengers, it seems on the evidence, were awake at various times because they looked at the speedometer. I comment here that it seems that some of them may have had difficulty doing that as the speedometer was on the far right hand side of the nacelle facing the driver. They said that they noticed the speed of the vehicle was between 130 to 140 kilometres per hour.
Tom Tucker, the driver, in his evidence said that he was travelling at somewhere around 110 to 120 kilometres per hour but occasionally his speed would creep up towards 130 and perhaps 140. He would notice that and immediately bring back his speed to the normal rate of travel.
Frank Deeble who was the only person in the vehicle apart from the driver who was apparently awake for most of the journey after leaving Coober Pedy on the way home, said -

EVIDENCE OF FRANK DEEBLE

“Q.    Did you make any observations as to what speed he was travelling.
A.     Yes. He was cruising on 140 kilometres per hour just about all the time except when we stopped at Glendambo, slowing down and taking off again.
Q.     Did you sleep any of the distance between Coober Pedy and Glendambo.
A.     No.
Q.     Did you notice any fluctuation in Mr Tucker’s speed from Coober Pedy to Glendambo or was it fairly constant speed.
A.     No, it was a constant speed all the time.
Q.     When you left Glendambo to the time when the accident occurred can you say what speed he was travelling at.
A.     Yes, around 140 kilometres per hour. It was pretty consistent all the time.
Q.     Shortly prior to the accident, apart from Mr Tucker and yourself, was there anyone else awake in the car.
A.     No.
Q.     Do you recall any incident or event that happened shortly before the accident occurred.
A.     Yes, I do.”

Mr Deeble then went on to explain how a large bird, probably an eagle, flew up in front of them and flew over the car and gave them a bit of a start. He was then asked   -
“Q.    Do you know if Mr Tucker altered his speed or slowed down after that.
A.     No, we thought the bird was going to just take off, be out of the way, there was no alternation of speed whatsoever.
Q.     He maintained the same speed before that event and after that event.
A.     Yes.”
Mr Deeble was then asked had he had conversations with Mr Tucker about the speed and he said that Mr Tucker always maintained that he had been within the speed limit of approximately 110 kilometres per hour. When Mr Deeble was cross-examined it became a little uncertain as to how his position in the back seat could enable him all of the time to be looking at the speedometer which was on the far right hand behind Tom Tucker’s hands which were on the wheel.

Mr Deeble admits that he was affected by alcohol on the way up and had been feeling intoxicated. He had a six pack in the car from which he had been drinking. Apart from the two drivers, the others in the car had been drinking on the way up.

He was asked the question -
“Q.. Do you think the amount that you drank on the way up could affect your ability to form an impression about the speed at which Tommy Tucker was driving?
A.     No, I don’t think so.
Q.     Did you ever say anything to Tommy about how fast he was going?
A.     I felt comfortable. It’s a wide open road, just cruising speed to me.
Q...... If we disregard the actual speed for the moment, in terms of the driving and the way the vehicle was travelling, did it cause you any concern?
A.     No, I had no worries with it.
Q.     You felt quite safe at the speed at which you were travelling?
A.     Absolutely.
Q...... And, in particular from Coober Pedy on the way home, didn’t you have any concern about it?
A.Well, the only concern I had was when he just about hit the eagle and I had to dive underneath the dashboard, that’s about it.
Q.     Apart from that one time when you almost collected an eagle, no concerns?
A.     I felt comfortable, yes.
Q...... Not only based on what you felt in the car but also your observations that it was a nice, quiet, open road?
A.     Yes, nice, wide, open, flat - hardly any bends in it.
Q.     Quite a wide road as well that part of the Stuart Highway, isn’t it?
A.     Yes.

EVIDENCE - DEEBLE (cont.)

Q...... The other passengers wouldn’t have been aware as you were that it was, like, because most of them were asleep, is that right?

A. That is dead right.”

Comments by various occupants of the car as to the speed at which the vehicle had been travelling is inconsistent with the evidence of the defendant, Tom Tucker.
According to the evidence, the road from Coober Pedy to Woomera, the section on which he intended to drive on the way home, is a reasonably wide road, mostly straight and in good condition. Mr Tucker said that the car was travelling “sweet” and was no problem whatsoever. He said that because of the long, straight road which went on for hundreds of kilometres his speed would creep up to between 130 or 140 kilometres per hour and he would immediately slow down to his preferred speed of 110 to 120 kilometres per hour.
I put to counsel in discussion that it seems probable that the passengers in the car may have noticed when the car was speeding up and on those occasions would look at the speedometer which registered at 130 or 140 because they could feel the increase in speed, but when the speed diminished they went back to sleep and took no notice of the speedometer.
I find that none of the people in the car were looking continuously at the speedometer all of the time. It would be an impossible situation for them to have done that and still slept. Mr Deeble sitting in the middle of the back seat of the car would have had to lean forward and look continuously at the speedometer. I do not accept the evidence of any of the people in the car that that was what was happening.
Having found that their observations were spasmodic and likely to occur when they felt the speed had increased I find I accept the evidence of Mr Tucker notwithstanding his vagueness that he was usually travelling at 110 to 120 kilometres per hour, occasionally increasing the speed unconsciously and then when he became aware of that decelerating back to a normal speed. There are other matters in the evidence which make me think that is the most likely turn of events that were happening in the driving of the car.
The car was provided by Frank Van Den Heuvel, the plaintiff, and he decided who would drive the car.
He drove the car from Adelaide to Woomera on the way up and said in his evidence that he only liked to travel at about 100 kilometres per hour and if he travelled at any greater speed in this car, say 110 kph, it produced a difficult vibration that made the car hard to control. He also felt uncomfortable and would do anything to avoid travelling at greater than 100 kilometres per hour and said that he always travelled at that speed.
When he handed over the car to the defendant to drive from Woomera to Coober Pedy his evidence is that the defendant drove at excessive speeds and it was suggested that he travelled at a speed beyond which the vibration had any effect. Notwithstanding that it seems that all the passengers in the car were content and happy with the driving of Tom Tucker.
When they were returning from Coober Pedy on Monday morning there was no suggestion by anybody that they were uncomfortable with Tom Tucker driving. In particular the plaintiff, Frank Van Den Heuvel, whose car it was and whose decision it was as to who was to drive the car, asked Tom Tucker to drive on that occasion.
The only other person able to drive and who had the ability to drive at that time was Steve Nikolavcic. He could have asked the plaintiff but he said he did not ask the plaintiff whether he could drive. He made some comment to Tom Tucker about it but Tom Tucker disputes that.
I do not accept the evidence of Frank Van Den Heuvel, the plaintiff, that Tom Tucker was driving continuously at a fast rate of speed to the plaintiff’s apprehension, because if that was the case he would not have wanted him to drive home from Coober Pedy to Woomera on that section of the road. In any event, shortly after leaving Coober Pedy Frank Van Den Heuvel, (the plaintiff), and all the other passengers, apart from Deeble, slept unconcerned about the driving of the defendant, Tucker.
I repeat the evidence of Mr Deeble that he was very comfortable with the driving of Mr Tucker and had no concern whatsoever with his driving.
The evidence of Mr Tucker was both vague and casual.
After considering his manner of giving evidence I find his evidence to be more persuasive than the other persons in the car.
He was candid that many events of the drive were so inconsequential that he could not remember. He made no attempt to reconstruct events that you would expect him not to remember.
I find that notwithstanding his limitations in memory he was a candid witness.
I think it is more likely than not that the driving of Tom Tucker was varying between his cruising speed of 110 to 120 kilometres per hour and occasionally creeping up to 130 to 140 kilometres per hour, where as soon as he noticed it he brought the speed back to his usual travelling speed. He does not know at what speed he was travelling at the time of the accident, nevertheless I find there is no inconsistency with his evidence and that of Mr Hall.
On the journey back from Coober Pedy they stopped at Glendambo, about 250 kilometres south of Coober Pedy. The plaintiff and the defendant got out of the car. The defendant believes that he had a cup of coffee at Glendambo and the plaintiff also said that he bought himself a cup of coffee. It is uncertain which of the other passengers may have left the car to purchase drinks at Glendambo.
It is certain that when they returned to the car there was no suggestion that anyone else take over the driving. In fact the plaintiff returned to the front passenger seat with his cup of coffee and drank it as the defendant continued to drive from Glendambo.
Shortly after that the plaintiff went to sleep. Apart from Deeble and the driver the remaining passengers in the car also went to sleep.
It was suggested in argument and put to some of the witnesses, that Tom Tucker would have been tired when he commenced to drive from Coober Pedy because of the hectic weekend.
There is no evidence to suggest this. Tom Tucker was quite vehement that he was not tired, that he was in control of the driving and that it was a comfortable drive from Coober Pedy. In any event there was no other person awake who was able to drive or even suggest to the plaintiff that they wanted to drive, ie, Steve.

Evidence of Frank Deeble as to the Happening of the Accident

“Q.. After you left Glendambo and heading towards the accident, and I just exclude the little situation with the eagle, you were just generally having a chat to Tommy Tucker as you were driving along.

A. Yes, we were talking a bit.
Q...... For most of that time, if not all of it, the other three passengers were more or less asleep.
A.Yes, they were sleeping, might have woke up a couple of times, something like that, and go back to sleep sort of thing.
Q...... Then, as you’re driving along, something happens, did you feel or see anything happen in terms of what happened to the car.

A.     The front of - I reckon the front of the car dropped, that’s it.
Q.     Before that happened hear any noise.
A.     No, I didn’t.
Q.     Any rattle, any vibrations.
A.     No, I never noticed anything like that.
Q.     Just suddenly the front of the car seemed to drop down.
A.     Just dropped down, yes.
Q.     And did you pay any attention to what Tommy did.

EVIDENCE - DEEBLE (cont.)

A...... Well, Tommy was trying to control the car and he said to me “I’ve lost it, hang on’. Then I got knocked out and that’s about all I know.
Q.So the front of the car seemed to drop down and did you become aware that Tommy had applied the brakes or something.
A...... No, I couldn’t say anything about that. Tommy just said ‘Hang on, I’ve lost it’. After the front dropped Tommy was trying to control it and he just said “I’ve lost it, hang on’, words to that effect, then once it started rolling, whatever, I got knocked out and I woke up on the side of the road.
Q.When the front of the car dropped down did Tommy appear to be trying to control the vehicle with the steering wheel, keeping it on the right track or something with the steering wheel.
A...... I just said he tried to hold it then he said he lost it, you know it just happens pretty quick when something like that happens.
Q.This all happened what, extremely quickly, the car dropped down, Tommy tried to control it then he said ‘I’ve lost it’.
A...... Yes, then it was gone. I woke up on the side of the road, putting neck braces on me, people around everywhere, whatever.
Q.This issue about speed, and the speed that Tommy was going, is that something you’ve spoken to Mr Van Den Heuvel about.”

On balance, I find on the evidence, that the people in the vehicle who were injured and taken to the Port Augusta Hospital had discussions with each other concerning the speed and I believe that that has had an influence on their evidence concerning what speed they say they saw on the speedometer from time to time.
Some of those passengers also have pending proceedings against the defendant.
None of the other passengers in the car had any knowledge of the happening of the accident. The only evidence, apart from Frank Deeble’s, is that of the defendant, Tom Tucker.

EVIDENCE OF TOM TUCKER

“Q.    What did you do at the rest stop.
A.     Just had a coffee, got some fuel, I think.
Q.     Have something to eat.
A.     I don’t know, I can’t remember. No, I had a coffee, I think.

EVIDENCE - TUCKER (cont.)

Q.     Do you remember how long you were there for.
A.     No.
Q.     Just a few minutes, or an hour.
A.     Don’t know; maybe 15 minutes, I suppose.
Q...... Do you recall when you went to get back into the car, whether Frank Van Den Heuvel was already in the car.

A. I can’t - I would have no idea.
Q...... Do you remember whether Frank Van Den Heuvel had anything with him when he came back, or was sitting in the car.

A.     No.
Q.     Any food or drink.
A.     No, only what I heard, that he, earlier on - he had a coffee.
Q...... You have heard him say he had a coffee, but you don’t remember whether he did or not.

A. No.
Q...... When you got back into the car at Glendambo, you were driving from Glendambo.

A.     Yes.
Q.     Frank Van Den Heuvel, where was he.
A.     Passenger.
Q.     Front passenger.
A.     Yes.
Q.     What about the other three, do you remember what position.
A.     Jason was behind me, Frank is in the middle and Steve is behind Frank.
Q...... Then, driving from Glendambo, up to shortly prior to when the accident occurred, so that period from Glendambo, just travelling along, how was the car travelling then.

A. Sweet.

EVIDENCE - TUCKER (cont.)

Q.     Any noises.
A.     No.
Q.     What sort of speeds do you think you were travelling over this period.
A.     About the same, 110, 120.
Q...... Again over this time might there have been occasions when you drifted up a bit.

A. Yes, could well have been, yes.
Q...... When you say 110 to 120, might there have been some occasions when you might have slowed down less than that.

A.     Only if there was something in the way, I suppose.
Q.     That stretch, for example, does it have any occasional bends.
A.     No, it is a pretty straight road. It is a good road all the way through.
Q...... The stretch of road from Glendambo to where the accident then happened, what is the condition of the road over that period at the time of the accident.

A.     It was all right; good road.
Q.     The width of the lanes, how would that compare to -
A.     They were wide, plenty of room.
Q.     On either side of the roadway, what was there generally.
A.     Dirt.
Q...... Then was an area of dirt next to the roadway, they sometimes call that the dirt verge. Is that what you are describing.
A.I should think so. It is dirt for miles. That is all it was, a bit of tarmac in the middle of it.
Q...... The speed that you were travelling at after Glendambo, were you comfortable with that speed.

A. Yes.
Q...... As you were travelling along from Glendambo, how were you feeling as a driver.

EVIDENCE - TUCKER (cont.)

A.     I was all right.
Q.     Were you tired from the weekend.
A.     I don’t think so.
Q.     Were you generally alert or -
A.     Yes, I should think so, yes.
Q.     The other passengers in the car, were they awake from Glendambo.
A.     They went to sleep. I don’t know when they went to sleep.
Q.     Immediately prior to the accident, were any of the passengers awake.
A.     Frank Deeble.
Q.     What were you and Frank doing, if anything, in the car.
A.     We were just having a chat.
Q...... Do you remember if Frank was just sitting in any particular position; was he leaning back normally, or leaning forward talking to you, do you recall, or you don’t know.

A. I can’t really say.
Q...... Do you know whether you could see the speedometer if you were sitting in that middle rear seat.

A.     I don’t know, I never sat in it.
Q.     Whereabouts is the speedometer on the dashboard.
A.     It is over on the right.
Q.     Are there any other instruments further right to the speedometer.
A.     I don’t think so.
Q...... As you are driving along, do you have a general driving position that you adopt in terms of, firstly, the way you sit.

A. Just as long as I am comfortable.
Q...... What about in the way you hold your hands on the steering wheel, do you have a specific way in which you drive, or it varies.

EVIDENCE - TUCKER (cont.)

A. No really. I just - I think it comes naturally. You just hold onto it.
Q...... Whereabouts do you generally hold the steering wheel when you drive, particularly in the country.

A.     I don’t know, most probably down the bottom - I wouldn’t have a clue.
Q.     It is not something that you are specifically aware of.
A.     No, I just got hold of the steering wheel.
Q...... As you were driving along from Glendambo, some distance out, did something happen, something unusual.

A. There was an eagle on the road.
Q...... Tell us very briefly. I think we have heard about it. Perhaps I might lead on it, if I may. I think you were driving along, and there was an eagle on the road, and you continued to approach it and it flew up at the last minute, and you almost felt that it might have hit the car.

A.     Yes, it was a heavy sucker. He had a job to lift off the ground.
Q.     Quite a large bird, I imagine.
A.     Yes.
Q...... Apart from that incident with the eagle, when you continued on, what, if anything else, then happened.

A. Nothing
Q...... At some point, of course, an accident occurs. If I can take you to the time immediately before the accident occurs. You are driving along.

A. Yes.
Q...... As you are driving along, that is before the accident occurred, did anything come to your attention or notice.

A.     Nothing.
Q.     How was the car travelling at this time.
A.     Sweet as a nut.
Q.     At this time, approximately, your speed; what do you think.

EVIDENCE - TUCKER (cont.)

A.     No idea.
Q.     Much the same as you had been travelling.
A.     I should think so, yes.
Q.     Than what happens.
A...... We are just driving along, you get a bang as it hits the ground, and then we are just straight off to the right. I have got hold of the steering wheel with hand on each side. I am trying to turn it left, but nothing would happen. It took - I said ‘I have lost it, Frank’ and that was it.
Q.If I take it through a little bit step by step, you are driving along and you said suddenly ‘Bang’, or ‘It went down “bang”’, or words to that effect.

A.     Yes.
Q.     What happened.
A.     The bang was, it just banged on it, and that was it. We were gone.
Q.     What banged.
A.     The front dropped down.
Q.     The front of what.
A.     The car, right-hand side.
Q.     The front driver’s side dropped down, did it.
A.     Yes.
Q.     Did that cause a noise.
A.     Yes, when it hit the ground, yes.
Q.     I think you have described that noise as the bang, is it.
A.     Yes.
Q.     Before that front of the car dropped down, did you hear any other noises.
A.     Nothing at all.
Q.     No unusual engine noises.
A.     No.

EVIDENCE - TUCKER (cont.)

Q. No unusual scraping noises.
A. Nothing.
Q...... Just so we have some idea, when we are saying that it is dropping down, did it drop down slowly, or quickly.

A. Straight down.
Q...... What sort of distance are we talking that it dropped down. It dropped down to the floor, or a couple of millimetres.

A. It seemed like - it seemed to me like it dropped about a foot.
Q...... When that happened, when you saw that happen, and you heard the noise of the car dropping, what did you do.
A.Well, it started to go right, I tried to keep it in a straight line. It just wouldn’t even steer, it just dragged it straight off the road.
Q...... When the car dropped down at the front driver’s side, what did you think might have happened.

A. I thought the wheel fell off, the front wheel.
Q...... The front driver’s side wheel had fallen off and that is why it dropped down.

A.     Yes.
Q.     Did you, apart from the steering, try to do anything else.
A.     Basically didn’t have time, it was all over.
Q.     Do you recall whether you applied your brakes.
A.     No.
Q...... When you are talking about the vehicle moving off to the right, was that a gradual movement to the right, or did it suddenly seem to almost turn to the right.

A. No, it just went straight off.
Q...... Just to give us some idea, and you may not be able to help us, but what sort of angle did the car veer off to the right. If straight ahead of you is zero degrees, and straight to your right is 90 degrees, what sort of angle did the vehicle veer off.

EVIDENCE - TUCKER (cont.)

A...... I don’t know. I wouldn’t - I would just be guessing, I wouldn’t know. Maybe 45 degrees, or something.

Q.     It just seemed to go off on a reasonably, what, sharp angle, did it.
A.     Yes.
Q.     What were you doing with the steering wheel.
A...... I was trying to turn it left to stop it from going that way. I was going that way (INDICATES), but nothing, it just wouldn’t steer.

Q.     You are trying to turn it left to stop it going to the right.
A.     Yes.
Q.     Did that steering seem to have any effect on the car.
A.     None at all, nothing, didn’t do a thing.
Q...... Do you remember if you had to move the steering wheel quite forcefully, or moving it a little bit.
A.I was trying to get it straight. It turned, but nothing happened. It didn’t go anywhere.
Q...... It moved to the right-hand side of the road, as you have described. What happened then to the car and to you.
A.Then it basically, it is like a dip and it flew over that, hit that, and that was it and then it just started rolling.
Q...... There was a dip, what just off the road, which was part of the dirt verge, was it.
A.There is like a channel sort of thing, I don’t know. Something like that, it wasn’t just flat, because if it was flat, we would have kept going straight on, that is why we hit this dip and then we hit like a bank the other side and that is when it rolled over.
Q...... Do you remember whether the car ended up back on its tyres or was it on its roof.

A.     No, it was on its wheels.
Q.     Were you in the car when it came to rest.
A.     No.

EVIDENCE - TUCKER (cont.)

Q.     Did you lose consciousness in the accident.
A.     Yes.
Q.     Obviously you woke up at some point, at what point did you wake up.”

In the pleadings in this matter, in the statement of claim, the plaintiff states -

“STATEMENT OF CLAIM
1...... On or about the 12th day of June, 1995, the plaintiff was a front seat passenger in a motor vehicle being driven by the defendant along a road at about 26 km north of Woomera in the State of South Australia.
2.The said defendant lost control of the said motor vehicle causing the motor vehicle to roll over.
3...... As a result of the said roll over the plaintiff has sustained injuries loss and damage.
4.The said roll over was caused by the negligence of the defendant in and about the driving and management by him of the motor vehicle.

PARTICULARS OF NEGLIGENCE
The defendant was negligent in that he:-
(a)     drove at a speed which was excessive in the circumstances;
(b)     failed to keep the said motor vehicle under any or effective control;
(c)     allowed the said motor vehicle to go out of control and roll over;
(d).... upon losing control of the said motor vehicle failed to slow and/or stop and/or manoeuvre the said motor vehicle so as to regain control of the said motor vehicle.”

For the plaintiff to succeed in his claim of negligence he has to show that the defendant did something or failed to do something that he ought to have done that was negligent.
At the commencement of these proceedings the parties said that they would agree the quantum of damages. The only matter in issue was the liability of the defendant, ie, that he disputes any negligence whatsoever.
Three expert witnesses were called who tried to analyse the accident and how it happened. There were two such witnesses called by the plaintiff and one by the defendant.
The two witnesses called by the plaintiff were Cameron Baird Wearing and Des Ronald Pudney. The witness called by the defendant was Christopher Trenton Hall.
Mr Wearing has no academic qualifications. His experience is that of a driving instructor in high performance driving techniques. He has had considerable experience in teaching driving skills to people at Telstra, BOC Gases and Western Mining to try and reduce their crash reduction program. He has produced no learned treatise on the subject but he has had considerable experience in driver training and is the proprietor of a company called Australian Driving Institute, which business he has been in since 1991 and 1992. I accept that he has considerable input into training drivers in relation to country road driving, particularly with Western Mining in Roxby Downs. Part of this driving training involves how to avoid accidents and get out of difficult driving situations. He gave evidence concerning reaction times and explained what he meant by that -

EVIDENCE OF CAMERON BAIRD WEARING

“Q.... Are you able to express any opinion as to, based on your involvement in the industry of driver behaviour, reaction times.
A.Yes, and I agree with what they talk about, and they speak of three-quarters of a second being the average human reaction time.
Q...... Isn’t reaction time, particularly in motor vehicle accident, or reacting to events on the road, a very difficult issue to determine, based on a whole range of questions that need to be applied to the particular circumstances of the event.
A.Obviously, reaction times do vary. The reasons we work on an average is because it is exactly that. My reaction time is less than three-quarters of a second. Whether that means I am lucky, or above average, or below, depending on how you want to put it, is pure conjecture. The average human reaction time as it is worked out according to the Department of Transport is three-quarters of a second. After that there could be fatigue, there could be alcohol, there could be whatever else that becomes that variable.
Q...... Are you familiar with the range of variables that need to be taken into account.
A.No, that is a human factor which is variable again. That is why some people are short and some people are tall.
Q...... Do you say in giving evidence in this matter that you would adopt a three-quarter second reaction time without any consideration to the subjective issues that may relate to this particular driver.”

He then goes on to give his opinion about what might have occurred when the vehicle being driven by the defendant was involved in an accident. I find that Mr Wearing’s qualifications are not such that he is competent to analyse the mechanics of what happened to the vehicle at the instant when problems occurred and what would be the appropriate action to take. I find his evidence is based on an academic perfection which is not the operation of a normal driver faced with an untoward and unexpected incident as in this case.
There is undisputed evidence that the left-hand rear axle broke close to where it joins on to the left-hand rear wheel. There would be a very small part of the axle connected to the wheel. It is accepted that the drive immediately ceases on that part of the car, that the wheel then spins free for a moment within the mudguard space and flies out. The car then has no left-hand wheel and the car on that part drops and drags on the ground. The effect of that is to throw the front driver’s side of the car down so that the driver feels immediately that the front of the car has dropped down. In fact the defendant, Tom Tucker, said that all he noticed about the whole event was that he heard a bang, the front driver’s side of the car dropped down, he thought he had lost the front right-hand wheel, the car immediately and instantaneously veered to the right, he steered the wheel as fast as he could to the left without it having any affect at all. He then said to Frank Deeble, “I’ve lost it.” The car overturned and the passengers suffered some serious injuries.
The question is could the driver have done anything to control the car once the rear wheel had left the vehicle.
The evidence of Wearing is that the wheel would have been in the wheel arch for some five seconds. Mr Pudney said it could have been as much as between one second and five seconds. Mr Hall’s evidence is that all of that sequence of events, no matter how finely they are analysed, from the minutest second, that the whole event could have happened in one second. Mr Hall’s evidence, contrary to that of Mr Wearing, is that the reaction time, that is, the time in which one notices an event and wishes to react to it, is one and one half seconds. His evidence is that once the wheel had left the arch, that is, within a second of the axle breaking, that the car would have gone into an immediate yaw. This is confirmed by the drawings of the investigating police, even though they are fairly rough. As soon as the axle broke no matter how the defendant applied the steering to correct it, it would have had no effect.
The surrounding areas of the road are generally flat and there is plenty of room for a car to eventually stop if it went into a skid. Unfortunately, in this instance, there had been a drain cut on the side of the road leaving a dip. As the car went into a yaw it caught in the dip and overturned.
The evidence of Mr Hall is that on all of the information available to him, the speed of the car at the time of the accident was about 109 kilometres per hour, although he acknowledges that with some of the limitations on the information available he would put the speed at somewhere between 100 and 120 kilometres per hour. At that speed he said that Tom Tucker would have been unable to control the car. I accept his evidence that there has been no negligence on the part of the driver as to speed or of the breaking of the axle. It was not his car and he had no prior knowledge that there was anything wrong with the axle.
The evidence of Mr Pudney of the RAA and from Mr Hall is that the breaking of an axle in these circumstances is extremely rare and its consequences are far greater than what would have occurred from a mere blow out.

EVIDENCE OF DES RONALD PUDNEY

“Q.... You had a loss of drive, increase in RPM and associated engine noise. What would be the next thing you would have expected to have happened, in relation to this accident, immediately after the separation of the two axles.
A.What would happen is that the flange section of the axle would become unsupported. Even though there would still be a section of the axle still inside the bearing, the bearing being a tapered roller it relies on the full length of the axle to support it, so it is going to cock and the brake drum is going to come into contact with the brake shoes, and the brake shoes are going to try to support the weight of the vehicle.
Q...... If we could just stop there. You referred to an engine bearing. I take it, on your understanding of where the axle broke, the engine bearing still had some purchase on the break away bit of axle.
A.Yes, it would have some purchase. From what I could gather, looking at the axle, the axle broke pretty much in the centre of the bearing. So it still would have been retained, because it relies on an interference press fit.
Q...... So we have the engine bearing displaying some purchase, albeit partial. You then said the wheel or the wheels -

A. The brake drums -
Q. There is reference to the brake drums cocking.

A...... Well, the whole thing is going to be kaput. It won’t be held in true plane, it is going to cock around.

Q.     When you say ‘cock around’.
A.     The front wheel is going to go in.
Q.     Display negative camber, is that another way of putting it.
A...... Yes, negative camber, and the brake drum is going to try and support the weight.
Q.The brake assembly on this particular wheel, could you describe what the brake assembly looks like on that particular wheel.
A...... You have basically just got two shoes with the assembly in between, and the wheel cylinder on the top, a hydraulic cylinder. When you apply brake

EVIDENCE - PUDNEY (cont.)

pressure the fluid travels through the line and forces into the valve and forcibly applies the shoes to the inside of the drum.

Q. And the shoes then are the two curved pads of asbestos.
A. Yes, with the brake lining compound.
Q...... So, as the wheel starts to display negative camber, in some way the brake assembly or brake drums are going to obtain some purchase on the wheels.

A. That’s right. The weight is going to be supported by the brake mechanism.
Q...... Would you be expecting any noise, apart from the engine RPM, et cetera, to start emanating from the rear wheel assembly.
A.I would say there would be noise, yes, because the drums, after rubbing on the backing plate because of the cocking of the drum, there would be a scraping noise associated with it. Of course, this won’t go on for a long period, because it wouldn’t be able to handle the weight of the vehicle for all that long, so it is eventually going to be torn out, or torn away.
Q...... So what you are describing is somewhat of a de facto, unintentional, braking effect, almost.

A. Well, there will be a retardation effect, yes.
Q...... Also, do you agree with me, what would have been seen here in this particular somewhat tragic incident is that we have got a process happening in the back axle.

A. Yes.
Q...... I would also like you to assume that another expert who has examined this vehicle, Mr Hall, identified an indentation and material consistent with the wheel and I think the tyre impacting on the inside of the wheel arch. So does that suggest to you some next stage in this sequence of events, leading up to the separation of the entire wheel assembly.
A.Yes, it would be. Once the brakes come away the car would have dropped and the wheel would have gone back and it would have impacted the wheel housing.

Q.     Would you have expected that to create any noise.
A.     Yes, there would be some noise, I would say, yes.
Q.     So we have the wheel somewhat trapped inside the wheel arch.

EVIDENCE - PUDNEY (cont.)

A. Yes.
A...... Not necessarily. If it is travelling at a reasonable speed, all this process is going to happen probably in, you know, it could take up to five seconds, I suppose for all this to happen, probably might even by a fraction longer before the wheel finally comes away from underneath the vehicle.
Q.So during the time the wheel was within the wheel arch the car hasn’t dropped yet.

A. Once it is in the wheel arch I would say the car would have dropped.
Q...... And it would make noise and make the indentations within the arch, the car would have dropped by then.
A.I would say it would have dropped and the backing plate would have fragmented on the road, I would say, or close to it. The suspension would have dropped down. That would have extended down if the wheel was trying to hold it up, under the wheel arch.
Q...... As to whether the backing plate comes into contact with the bitumen road surface, whilst the wheel is still in the wheel arch, that is dependent upon how much travel the wheel has inside the wheel arch.
A.It would be. The backing plate - it depends how much drop there is in the spring. The flange comes away from the differential, so the spring is going to extend down and then the wheel is going to try and go up inside the wheel arch. So although it is hard to say it might happen instantaneously, it might slip out from underneath. It might go back in and indent the wheel arch and slip out. It might happen very very quickly.
Q...... I take it, from your evidence, that you cannot really be dogmatic as to what time frame has elapsed here.

A. No.
Q...... But can I ask you, do you agree with the assertion that the separation of the axle and the separation of the wheel and the car was something that was instantaneous.
A.I don’t think it would be instantaneous. There would be some delay. The flange section is still in the bearing, and, of course, the brake shoes are going to try and retain it. There is going to be some delay there.

Q. Whilst you can’t be dogmatic, there could be as much as five seconds.
A. There could be.

EVIDENCE - PUDNEY (cont.)

Q...... Can you be dogmatic about one thing and that is this process is going to happen a darn sight quicker at 140 km/h instead of 110 km/h..

A. Yes, it more than likely would, yes.
CROSS-EXAMINATION BY MR JAMES
Q...... My friend asked whether you agreed the separation, or the fracture of the axle to the loss of the wheel was instantaneous, and I think you answered that you didn’t think that would be instantaneous, and it would be as much as five seconds. I gather that it could well be anywhere in between.

A. Could be.
Q...... It could well be that the separation of the axle and the loss of the wheel was extremely quick and a matter of less than a second.
A.I guess it is hard - because the bearing, the stub is still retained in the bearing, there is still part of it in there. That has to come out and we have got the brake shoes which are going to try and retain it. I would say - I believe it would be longer than a second, but once again you can’t prove it.

Q. You can’t be dogmatic about it.
A...... You can’t be dogmatic about it. I believe it would probably be longer than that.
Q.I suppose the best we could say it could be less than a second, but I would expect it could be maybe a bit more; is that a fair way to summarise it.
A...... Yes, I guess if we are travelling at a high speed certainly it could be certainly quicker.
Q.Even if we were travelling at a speed of 100 to 110 km/h, the separation of the axle to the loss of the wheel could be extremely quick and somewhere in the range of less than a second up t perhaps as much as five seconds. That is a fair comment, you agree.

A. Yes, I would say probably a second to five seconds probably could be.
Q...... As soon as they notice it is in the wheel arch because then it drops, they notice when it drops.
A.The vehicle dropped?
Q...... At the first instant when it drops, what noises would there be before the first instance of any dropping.

EVIDENCE - PUDNEY (cont.)

A...... Just before it dropped?
Q.Yes, while the wheel was still in the arch.
A...... While the vehicle was - there would have to be the process - there would have to be leading up, scraping from the drum against the backing plate as it was coming out, and the other thing too, I guess, the wheel could be scraping on the wheel arch, on the wheel lip of the wheel arch creating a noise, because it has to come out. It would have to move out to come away, because we have that much (INDICATES) of the axle protruding in there, so it has to come out to come away, so therefore it could contact the lip of the wheel arch, so that could have been the noise they could have been hearing, but then again -
Q.How long would that segment of the -
A...... How long it would go on for?
Q.Yes.
A...... It is hard to say.
Q.If the whole event might take up to five seconds, it would be less than that.
A...... Yes.
XXN
Q...... I guess if the whole event took one, one and a half seconds, then that period of time in which there might be any noises of scraping would obviously be in a much lesser time segment.
A.It is hard to say.
Q...... Can I put this to you, the driver of the vehicle and a passenger in the vehicle - I will ask you to assume - at any time other than when the vehicle dropped heard no noise at all, no unusual noise from the back or whatever. That would not be inconsistent though, would it.
A.No, if the vehicle dropped. If they say the vehicle dropped. Which part of the vehicle dropped.
Q...... I will ask you to assume that the sensation of the driver - and this is evidence we are yet to hear but I ask you to assume it - that the right-hand side of the front dropped and the left-hand side perhaps rose, so it gave the impression of tilting, and the witness that we heard who is awake at the time, I think his impression was the front of the car seemed to dip down or

EVIDENCE - PUDNEY (cont.)

drop down. I guess before we go on, can I ask you this; it is not inconsistent if the front right-hand driver’s side dips down and the left-hand side dips up with the back of the car also dropping down with the loss of the wheel as a result of the fracture of the axle.
A.Yes. That si right. If the back wheel comes away, then the car will certainly drop at the back, the front will come up, the right front will drop too. That works hand in hand, but if the wheel came off instantly, the backing plate would have to be - and come away, the backing plate would have to start scraping on the road. That depends on what sort of scrape marks are on the road, the distance of those.
Q...... I ask you to assume there are some scrape marks on the road, or there appears to be some scrape marks on the road, but irrespective of that, if we accept the witnesses and the first they became aware of anything unusual happening was, I will call it dropping of the vehicle, that is no noises whatsoever prior to the dropping of the vehicle, that is not inconsistent at all, is it.
A.No.
Q...... It is quite consistent that this whole process, that my friend is talking about, occurred with no noises noticeable to the occupants of the vehicle and the first thing that someone becomes aware of in a car is the dropping of the vehicle as the wheel comes detached.
HIS HONOUR
Q...... Dropping at the front right-hand side. That is the first thing they are aware of.
A.Yes.
XXN
Q.When I say ‘dropping of the vehicle’ I use it as a general description, dropping of the right-hand side perhaps hand in hand with tilting of the left-hand side. The first thing they become aware of is the front of the driver’s side dropping down. It is absolutely consistent, isn’t it, if they say they heard no noise prior to the dropping of the front of the car.
A...... Doesn’t make sense.
Q.That they heard no noise there.
A...... There should have been noise.

EVIDENCE - PUDNEY (cont.)

Q...... Prior to the dropping of the vehicle.
A.Yes.

Q. What noise would that be.
A. ... Basically because of the scraping noise, right? What we are saying here, you see the wheel - I would say that once the axle separated, the wheel is going to cock. There would be some change in the vehicle height, but there wouldn’t be - but the axle would still be - the brake drum would take the weight for a period, until the bearing, until the remains of the flange ripped its way out of the bearing, then the vehicle would drop completely. That is how I would see it.
Q.I understand that, but I put a question earlier to you that it would not be inconsistent if the occupants of the car say they were not aware of any noise prior to the dropping of the front of the vehicle. I think you said ‘I agree, that would not be consistent’.

A. It wouldn’t be inconsistent.
Q...... The fact they say they were not aware of any noise, that is not inconsistent, is it.

A. No, it is not.”

EVIDENCE OF MR CHRISTOPHER HALL
“Q.    I think you continue in your practice of Hall Technical Services.
A.     That’s correct, yes.
Q...... And you continue to provide assistance to both insurers and claimants when they seek your expertise.
A.     Yes.
Q...... And it may be oversimplified, but the area of your speciality is often referred to as reconstruction of motor vehicle accidents.
A.     That’s correct.
Q...... And that takes into account not only the specific mechanical mechanisms occurring within an accident and its sequelae, but also driver behaviour, both before and after the accident.
A.     Yes.

EVIDENCE - HALL (cont.)

A...... The driver’s reaction time is the time associated from when the driver can first be exposed to an event. It may be a child running on to a road, or another vehicle driving out from a side road, or something happening within the vehicle, a sudden event, and from that point the driver goes through various stages of recognition of this sudden event, understanding of what it is, then determination of what action should be applied in the circumstances, and then putting that action into play, and then there is some time associated with that action then having an effect on the vehicle itself. So, through those five stages, we get to the point where, if it is a simple braking process, the first recognition when a sudden event begins and it is there to be recognised by the driver, to the point where the vehicle begins to brake, that is your reaction time.
Q.And over that period of time which is the reaction time, depending on how long it is, there really is nothing that the driver can effectively be doing because the mind is processing the information of what is occurring.
A...... That’s essentially the way it is treated. The driver might move their foot from the accelerator on to the brake and that, but the effect on the vehicle is nothing. So, there is a period of free movement where conditions on the vehicle will not change due to any driver input.

Q. And is reaction time fixed, or does it vary.
A. It varies, yes.
Q...... In ordinary driving conditions is there a range of reaction times that is acceptable within your area of expertise and, firstly, I should indicate daytime driving.
A.Yes. Once again, you have t define the reaction that you are considering; in other words, is it a straightforward braking reaction, or is it a steer and braking reaction, or is it just simply a steer reaction? Then with the steer reaction, of course, there is a consequence of how much steer you have to put in to the vehicle to achieve what you set out to do. So, they are variables that have to be considered when drawing a conclusion about the average sort of reaction time, but studies carried out in Victoria have shown that the average driver - and that is probably 85% of our population - will react to a sudden event happening in a not too complicated situation within 1 to 1.5 seconds. That is your normal range. So, we generally say 85% of the driving population will react to a sudden event within 1.5 seconds. Then there are another 15% that could take up to two and a half/three seconds, depending on age and other factors, complications.

EVIDENCE - HALL (cont.)

Q...... Would three-quarters of a second be considered generally to be an extremely quick reaction time in ordinary driving circumstances.
A.Yes, that is right at the very low end. That is a very - only a very small percentage of drivers would achieve that.
Q...... And the reaction time range, I call it the starting point of 1 to 1.5 seconds, might that be increased if the event is something that is quite unusual. If I can draw a distinction, for example, of driving along a road and seeing a vehicle perhaps starting to come out that ought to have given way, as opposed to your back tyre falling off.
A.Certainly, expectation, or expectancy and recognition and understanding of what is happening are two key elements in the reaction time. So, if you are driving along and you would not expect anything to be happening in this environment, that is one factor. The other factor is then being able to understand what is actually going on. When the car comes out from the right, it is not an unexpected event if there is a roadway in that area. It is an unexpected event, and you recognise what’s happening just from your normal driving experience, you know what pretty well instantly what has to be done to avoid a collision. In the event that the wheel drops off, certainly it is an extremely unusual event, and whether a driver can recognise what is actually happening is very doubtful. So, that will have a tendency to increase the reaction time of the driver, but there may be other issues at play in that the effect of the wheel dropping off does something to the vehicle which requires an immediate response by the driver, irrespective of him trying to understand why it’s happening. So, there are other issues that come into play.
Q...... Perhaps we will end up with sufficient information to reach a conclusion in this particular matter, but bearing in mind what you have set out in your reports in this particular case, would you be comfortable in adopting a range of a reaction time of 1 to 1.5 seconds.

A. Yes, and it may even be longer.
Q...... So I guess if we even took 1.5 seconds, that might be a reasonably safe reaction time for this particular gentleman. It may have been shorter, it may have been longer. 1.5 might be around the average.

A. Yes.
HIS HONOUR
Q...... You gave a list of those factors of the reaction time as being first aware of an event, and then having an understanding, and then what action you have

EVIDENCE - HALL (cont.)

to then take into play. You said there are five stages in all of that sequence or events, and if the event is totally unexpected you mightn’t be aware of what the event is, but you are aware of something.

A. That’s right.
Q...... And that is why you think, because you are not really sure what the event is, it might take you longer to recognise the understanding of what action ought to come into play.

A. Yes, that’s exactly right.
Q...... So the reaction time may be, in those circumstances, a lot longer than the normal range.

A. Yes.
XN
Q...... I will talk abut the specifics of this accident, but I want to take you to the topic of speed. As you may have gathered, and it is set out in your report, there is a variation in the witnesses as to the speed the vehicle may have been travelling immediately prior to the fracturing of the axle, or immediately prior to the event, if I can call it that.

A. Yes.
Q...... And I think it is the case that your first report is prepared on the assumption that the driver of the vehicle was travelling at 110 km/h, is that correct.
A.Certainly that’s what information was taken from the documents that were provided to me, but, in fact, the issue of speed was not a consideration in the report. So I haven’t concluded that he was travelling at 110 km/h, but I have taken it on board that that is what has been claimed.
Q...... Your report and the conclusions that you reach in the report do not necessarily make a finding that therefore he was travelling at 110; you simply have adopted that as an assumption in setting out your findings.

A. Yes.
Q...... Recently in this trial the plaintiff has subpoenaed the police report and that is now before the court as an exhibit, and that provides us with some information as to, for example, the resting position of the vehicle and approximate distance from the roadway. Are you able to, in the area of your expertise, prepare some assessment setting out some assumptions,

EVIDENCE - HALL (cont.)

what the speed of the vehicle might have been if we know the distance of the vehicle at rest from the side of the road.
A.If we can be comfortable with events that have occurred over that distance. Perhaps I would ask for a definition of when you say ‘from the side of the road’, is that along the length of the path of the vehicle, or is it perpendicular to the road edge, because that will give two different lengths?

See also Jockel v Jockel (1963) 63 SRNSW 230; Vane v The State Government Insurance Commission File No. 1033 of 1990 SASC 2730 (1991); Leishman v Thomas (1958) 75 NSW Weekly Notes 173; Parkinson v Liverpool Corporation (1950) 1 AELR 367.
The authorities to which I was referred concerning inferences to be drawn such as Holloway v McFeeters [1956] 94 CLR 471 and Jones v Great Western Railway (1931) 144 TLTR 194, do not assist the plaintiff and, in fact, if any inferences are to be drawn they favour the defendant and, for example, inferences drawn by Mr Hall against the evidence of speed by some who have other proceedings pending against the defendant.
I find that the decision in Sik v Lajos (supra) is consistent with my findings as to how the accident happened in the subject case.
There is no liability without fault.
The plaintiff has not satisfied me that the defendant was guilty of any negligence whatsoever. On the question of liability I find for the defendant.
To constitute an inevitable accident the occurrence must have taken place in such a manner as not to be capable of being prevented with the exercise of all of the skills an ordinary driver is expected to have and with the exercise of that degree of diligence generally found in persons who discharge their duty.
I find that the accident was an inevitable accident and that there was nothing whatsoever that the defendant could have done or failed to do to remedy the situation. In my opinion, the plaintiff has not shown that there was any negligence whatsoever and I therefore dismiss the plaintiff’s claim.

[2000] SADC 131

3 November 2000