Victoria Concrete Pumping Pty Ltd v Astorino
[2013] VCC 1342
•16 October 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE DAMAGES AND COMPENSATION LIST | Revised Not Restricted Suitable for Publication |
Case No. CI-12-00674
| Victoria Concrete Pumping Pty Ltd | Plaintiff |
| v | |
| Frank Astorino | Defendant |
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JUDGE: | S. Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22, 23 & 27 August 2013 | |
DATE OF JUDGMENT: | 16 October 2013 | |
CASE MAY BE CITED AS: | Victoria Concrete Pumping Pty Ltd v Astorino | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1342 | |
REASONS FOR JUDGMENT
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Catchwords: Damages – motor vehicle collision – negligence of drivers
Legislation Cited: Road Safety Rules 2009 (Vic)
Cases Cited: Nesterczuk v Mortimore [1965] 115 CLR 140
Judgment: Claim and counterclaim dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Larkin of Counsel | Cornwall Stodart |
| For the Defendant | Mr J Simpson of Counsel | Wotton & Kearney |
HER HONOUR:
1 On 17 October 2011, on Blackburn Road, Notting Hill, close to the intersection with Rusden Place, there was a collision between the defendant’s prime mover and trailer (“Mack truck”) and the plaintiff’s rigid truck which was fitted with a concrete pump and placing boom (“DAF truck”). The collision resulted in damage to both vehicles. At the time of the collision, the plaintiff’s DAF truck was completing a left hand turn into Rusden Place from the left hand lane on Blackburn Road. The defendant was driving the Mack truck (which was towing a 40 foot container trailer) in the middle lane of Blackburn Road. The point of impact[1] was the rear roof area of the prime mover’s sleeping cabin (about 3.5 metres from the vehicle’s front) and the pipework located at the rear of the placing boom fitted on the plaintiff’s DAF truck.
[1]See Court Book (CB) 166
2 In its claim, the plaintiff says that its driver, Mr Dibianco, was turning left into Rusden Place at the time of the collision and alleges that the collision occurred as a result of the negligence of the defendant. The particulars of negligence relied upon are – failing to take proper care or to keep a proper lookout or to heed the presence of the plaintiff’s placing boom and concrete pump; travelling too close to the plaintiff’s placing boom; failing to brake to avoid a collision; driving into the rear of the plaintiff’s placing boom and concrete pump; and failure to comply with the Australian Road Rules and/or regulations.
3 In its defence, the defendant denies any negligence and says that the collision occurred as a result of the plaintiff’s negligence, with the plaintiff’s vehicle striking the defendant’s vehicle. The particulars of contributory negligence and negligence relied upon include – failing to keep a proper lookout, or to take proper care or to heed the presence of the defendant’s vehicle; failing to stay within the left lane; allowing part of the placing boom and concrete pump to overhang into the defendant’s lane; failing to comply with rules 28(2) and 146 of the Road Safety Rules 2009 (Vic) in that he should have turned left by straddling the middle lane and his left lane; and failing to provide proper training.
The hearing
4 The parties agreed during the course of the hearing to fix the quantum of the plaintiff’s claim for economic loss in the sum of $50,000. The parties agreed that the cost of repairs to the plaintiff’s vehicle were in the sum of $64,975.55 and that the damages claimed by the defendant were in the sum of $8,824.55.
5 The driver of each truck gave evidence at the hearing. There were no other witnesses. A number of documents were tendered by the parties. I have considered all of the evidence relied upon by the parties.
Expert Evidence
6 The plaintiff relied on the report of Adam Ritzinger, Vehicle Dynamics Engineer, dated 29 March 2007,[2] who completed computer modelling and a simulation to determine the swept path of the plaintiff’s truck, a DAF truck which was carrying a concrete pumping device and boom. The report stated, relevantly:
[2]CB 98
In its operational configuration, the vehicle has rearward projections which exceed the maximum rear overhang of 4.0 metres, as per VicRoads’ Oversize and Overmass Special Purpose Vehicles (September 2000), as shown in Figure 1
The swept path analysis proved that:
1. The boom projections do not protrude outside the swept path of the performance standard, which is equivalent to a width of 2.5m at a rear overhang of 4.0m.
2. The tail swing did not exceed 300mm.
3. The vehicle is capable of travelling through the AusRoads arterial road swept path envelope.
The simulated swept path analysis indicates that the vehicle satisfies all the swept path requirements of VicRoads.
7 The plaintiff also relied on the report of Dr George Rechnitzer, engineer, dated 12 August 2013.[3] He attended the site on 5 August 2013 and took measurements of the roadway. He did not inspect the two vehicles but relied on photographs of the damage to them. He had access to the pleadings, answers to interrogatories by each party, assessment reports in relation to the damage to each vehicle, the report from Mr Ritzinger dated 29 March 2007, and the report by Dr Shane Richardson dated 15 February 2013.
[3]CB 144
8 Dr Rechnitzer reported that the south bound roadway of Blackburn Road is approximately 9.8m wide, with the left lane around 3.6m wide and each of the other two lanes around 3.15m wide. Rusden Place is approximately 6.8m wide. The lanes are defined by broken white lines. A driver’s line of sight along Blackburn Road when travelling south from the intersection with Ferntree Gully Road towards the intersection with Rusden St is unobstructed. Dr Rechnitzer opined:
Thus the likely damage mechanism is that as the DAF truck commenced its left turn into Rusden Pl, the rear overhang of the unit came in contact with the rear left side roof section of the Mack prime-mover as it was passing…The contact overlap was likely to have been small, and estimated to be about 100mm to 200mm, based on the limited area of damage.
This means that had the prime-mover moved to its right by about 0.2 to 0.3 (estimated) the collision would likely not have occurred. [4]
[4]CB 167
9 Dr Rechnitzer noted that a number of things were unknown – where the Mack truck was travelling in relation to the boundaries of the middle lane and where the DAF truck was positioned within the left lane when making its left hand turn. He noted that there were two possibilities. Firstly, if the DAF truck commenced its turn from the right side of the left lane, while still within it, the tail swing of up to 300mm may have resulted in a “likely maximum encroachment into the centre lane” of 0.3m.[5] He noted that “[i]n this case, assuming that the Mack truck was travelling in the centre of its lane, would only have had to move to its right by approximately 100mm to avoid contact with the rear overhang of the DAF truck as it was turning (sic)”.[6] The second possibility was that “the Mack prime-mover was travelling to the left of its lane, too close in any case to the left turning DAF truck”.[7]
[5]CB 167
[6]CB 167-168
[7]CB 168
10 Dr Rechnitzer relied on the parties’ answers to interrogatories as the basis for his calculations. Specifically, he relied on the defendant’s answers to the effect that:
· He first saw the plaintiff’s truck when he exited the Monash Freeway onto Blackburn Road;
· At that time, the plaintiff’s truck was already on Blackburn Road;
· In the last 100 to 20 metres before the collision, his truck was travelling at around 35kms per hour, but he did not know what speed the plaintiff’s truck was travelling at;
· Immediately prior to the collision, his front cabin was past the rear of the plaintiff’s vehicle and he could not see the rear of the plaintiff’s truck.
He also relied on the plaintiff’s answers to the effect that:
· The Plaintiff’s vehicle, as well as the placing boom and concrete pump, displayed red and white diagonal hazard signage identifying it as an oversized special purpose vehicle;[8]
[8]CB 154
· Before commencing his turn into Rusden Street he looked in his rear vision mirror and saw the defendant’s truck “a reasonably long distance behind him in the middle lane” on Blackburn Road”;[9]
[9]CB 153
· While turning left the plaintiff observed that the defendant was not slowing down behind him[10] and the plaintiff moved his vehicle further to the left and into the gutter.[11]
· In the moment before the collision, no part of the plaintiff’s vehicle, placing boom or concrete pump drove or swung into the middle lane;[12]
· At the time of the collision the plaintiff’s vehicle was travelling at around 5 -10km/hr.[13]
[10]CB 153
[11]The plaintiff’s driver gave oral evidence in slightly different terms. He did not mention moving his truck further to the left, nor did he assert that he observed the defendant not slowing down. The plaintiff’s driver says he was driving ‘close to the kerb’: T34:26-7, at between 10 – 15km/hr. He viewed the defendant in his rear vision mirror at one point but was not able to say at what speed the defendant was travelling: T50:32.
[12]CB 153 – 154
[13]CB 153
11 Dr Rechnitzer calculated “a closing speed of about 25km/hr”[14] and concluded:
Under these circumstances, as the point of impact is estimated at approximately 3.5m from the Mack’s front, it would have taken an estimated 0.5 seconds from when the Mack prime-mover’s front first passed the rear of the DAF to impact. Given this short time interval, it is likely that the DAF truck had already commenced its turn before the front of the truck had reached it, and possibly some seconds before as it was travelling slowly - and according to the DAF driver was indicating his intention to turn left. This should have given the Mack driver sufficient time and warning to move to the right of his lane to make sure that there was sufficient gap between his vehicle and the turning DAF truck to pass safely.
This estimated small time of 0.5 seconds to impact, also means that the Mack driver could have acted more prudently in the circumstances, braked moderately to slow his vehicle down a little to not pass the back of the DAF until it had turned sufficiently to clear his lane in case any encroachment could have occurred.
From the available information, it would appear that the Mack driver may not have paid proper attention to the obvious heavy vehicle ahead of him about to turn left, and not provided a prudent safety margin before passing. [15]
[14]CB 168
[15]CB 168 – 169
12 Dr Rechnitzer opined that there were a number of flaws in the report of Dr Richardson dated 15 February 2013. Firstly, the report wrongly measures the left lane width at 3.1m. Secondly, the report presents a simulation of the impact without identifying the speed or lane positions of the vehicles. Thirdly, the report wrongly represents the point of contact as being on the prime mover’s trailer. Finally, the simulation shows that at contact the Mack prime mover and trailer are at the far left of the centre lane, not in the centre or right of centre. Dr Rechnitzer concluded that if the simulation had represented the Mack truck as being in the right of its lane, and the left lane width was 3.6m, “the ARAS simulation may not have shown contact between the two vehicles”.[16]
[16]CB 170
13 Dr Rechnitzer concluded:[17]
1. The exact vehicle paths are not knowable from the available evidence.
2. The collision between the two vehicles occurred due to a possible overlap of an estimated 100mm to 200mm between the rear overhang of the DAF truck as it was turning left and the rear left side roof section of the Mack Truck as it was passing.
5. It is possible that the DAF truck’s tail swing of up to 300mm as it was turning, although within regulation as stated in the ARRB report, could have encroached into the centre lane.
[17]I have omitted reference to the passages in the conclusions to which the defendant objected and which are inadmissible: CB 173.
14 Dr Shane Richardson, forensic engineer, provided a report dated 15 February 2013 to the defendant’s solicitors.[18] Dr Richardson noted that with a rear overhang of approximately three metres, it would be expected that as the DAF truck turns the rear of the truck “will swing out and potentially encroach on an adjacent lane”.[19] Given the turning circle of the DAF truck, to avoid the rear wheels hitting the curb the driver would need to turn left from a position “to the right of the centre of the left lane (i.e. closer to the middle lane)”.[20] The simulation made by Dr Richardson showed the rear of the DAF truck encroaching on the middle lane even though the wheels of the DAF truck remained in the left hand lane at all times. Dr Richardson stated that the DAF truck could not have negotiated the turn successfully unless positioned near the centre of the left lane or near the white line between that lane and the middle lane, and that, while turning, the DAF truck “is likely to have rolled slightly, causing the top of [it] to lean towards the centre lane”,[21] so that even if the DAF truck was positioned “such that the overhang did not encroach into the centre lane, it is likely that the lean of the truck would have encroached into the middle lane”[22] He stated that the site of damage – the top of the defendant’s container and the pipes on the placing boom of the plaintiff’s truck, indicated that the DAF truck was rolling to the right. He said that “if the DAF truck did not lean to the right, the damage would be expected lower down on both trucks from the impact”.[23] Dr Richardson assumed that given the width of the lanes, both trucks “would have likely occupied the majority of their respective lanes” so that the sides of the trucks would be near the dotted line separating the left lane and the middle lane.
[18]CB 202
[19]CB 215
[20]CB 216
[21]CB 217
[22]CB 217
[23]CB 218
15 He concluded that it was likely that the top of the DAF truck (the pipes on the concrete placing boom) encroached on the middle lane and impacted with the defendant’s truck as it passed.[24]
[24]CB 218
16 Dr Richardson concluded that:[25]
[25]CB 220
1. Neither the wheels of either truck had departed from their respective lane of travel;
2. The damage locations on both trucks indicates that only the areas near the top of both trucks were impacted.
3. The location of the damage on both trucks indicates that the [plaintiff’s] truck likely rolled or leaned towards the centre lane, which would be expected during a left hand turn, causing the pipes at the top of the truck to impact the roof and container of Mr Astorino’s (prime move and trailer combination);
4. The [plaintiff’s] truck could make the turn from the left lane, however, to prevent the rear wheels from impacting the curb, the driver would need to be:
a. Near the centre of the left lane;
b. to the right of the centre of the left lane (i.e. closer to the middle lane).
5. The position adopted in the left lane of would likely result in the rear overhang of the [plaintiff’s] truck encroaching on the middle lane.
17 Neither expert was called to give evidence
Lay evidence
18 I note that the plaintiff’s driver was accompanied on the journey at the time of the collision, by another person, who was in South America at the time of the hearing and could not attend to give evidence.
19 The evidence from the plaintiff’s driver, Louis Dibianco, may be briefly summarised. At the time of the collision he had been driving rigid vehicles for 5 or 6 years. His truck is about 12-13m long, but the boom does not extend beyond the base of the vehicle. He has never felt the vehicle swaying when he turns, as the boom and tower are all locked into place. He had made the turn into Rusden Place about twice per week for months prior to the collision. Before the collision, at around 7am, the weather was dry, the traffic was light, and he was driving along the left hand lane of Blackburn Rd without any traffic ahead of him. Prior to turning he glanced into his rear vision mirror and saw the defendant’s truck behind him in the middle lane. He could not say what its speed was, but felt that it was going faster than him, as he was slowing to turn. The placing boom was locked into place. After the last street before Rusden Place, he put on his left indicator and slowed down. He would normally execute the turn into Rusden Place at a speed of 10-15km per hour. On that day, his wheels were in the left lane and he was hugging the curb. He always made the turn from the left lane because he was permitted to do so with a rigid vehicle of its size and had sufficient room to do so. He did not know about the swept path performance of his truck but simply knew that it was legal for his truck to be driven on the roads he was driving it on and that his truck was not required by its size to turn from the middle lane. He did not look to his side before turning. His truck had its lights on. There was no need for him to slow and wait for the defendant’s truck to drive past in the middle lane before turning because he had the room to turn from the left lane.
20 The front of his truck was well into Rusden Place when he felt the impact of the collision from behind. He got out and checked the truck and identified damage to the pipe work on the top of the boom. He said that he went and spoke to Mr Astorino, who apologised to him with words like: “Sorry mate I didn’t see the boom”[26] or “I’m sorry. I didn’t see your pump”.[27]
[26]Transcript 40:7
[27]Transcript 79:21
21 Mr Francesco Astorino is the owner of the Mack truck. He has been licensed to drive semi trailers for 12 years and since 2003 has been licensed to drive heavy combination vehicles. He has a lot of interstate driving experience. He said that the rule for turning articulated vehicles is that the turn is never done from the left hand lane. However, he agreed that this rule does not apply to rigid vehicles. There is a blind spot on his vehicle – forward and downward of his left side mirror. On the day of the collision he was towing a 40 foot container trailer weighing about 43 tonnes. He pulled up at the lights on Blackburn Road and noticed the concrete pump on his left in the left lane. Both trucks took off at the same time, and Mr Astorino was travelling at around 35kms per hour. The plaintiff’s DAF truck was ahead of him. Traffic was heavy. There were cars on his right. At some point the DAF truck was one and a half metres ahead of him but at about 100m, 50m and 10m prior to the intersection with Rusden Place, his truck was about half a metre behind the tail end of the concrete pump, in the adjacent lane. He did not see the DAF truck indicate left but saw the DAF truck slow down and saw it commence to turn. Mr Astorino continued to move forward in the middle lane. His tyres were in the middle lane. He did not see the impact. In the 5 seconds before the impact all he would see to his left would be the bottom section of the DAF truck. He agreed that he did not see the rear of the DAF truck when it started its turn because of the blind spot on his Mack truck but denied that he hit the DAF truck because he was not paying attention.[28] He agreed that while travelling at 35km per hour it was possible for him to swerve but said this would cause the heavy load he was carrying to shift. He agreed that for the collision to occur, his truck would have had to have been close to, or almost on, the white line separating the left lane from the middle lane. However, he denied he was that close to the white line. He agreed that he saw the DAF truck slow down. He agreed that if the DAF truck were going to turn left from the middle lane it would have to indicate right and move into the centre lane. He said that if he had been driving the DAF truck he would have turned left from the centre lane. He agreed that there was an exchange of details after the collision but denied that there was much of a discussion, and specifically denied apologising to Mr Dibianco or saying that he did not see his boom.[29] He agreed that from the time he was driving along Blackburn Road in the middle lane but behind the DAF truck, he was responsible for looking out for what was ahead of him.
[28]Transcript 112:25
[29]Transcript 113:1
Plaintiff’s Submissions
22 Mr Larkin submitted that there was no evidence that the plaintiff’s truck or any part of it intruded into the middle lane at any time, nor that the impact occurred in the middle lane. Given the width of the left lane (at 3.6m), it was reasonable for Mr Dibianco to turn left from that lane. If he had turned from the middle lane, the situation might have been worse. Once Mr Dibianco committed to turning left from the left lane, it was reasonable for him to look ahead, and there was nothing he could do to prevent a vehicle which was behind him, whether in his lane or the middle lane, from impacting his vehicle. In those circumstances, it was the vehicle behind him which must adjust its speed or position itself to take account of a vehicle which is indicating left in front of it.
23 The plaintiff relied on the defendant’s evidence that, knowing one has a blind spot on one’s truck means that you have to pay more attention to what might be there. He relied on the defendant’s evidence that he knew the plaintiff’s truck was there, in front of him, slowing. He further relied on the plaintiff’s evidence of the alleged conversation between the drivers after the collision when the defendant was alleged to have apologised and admitted not seeing the plaintiff’s truck. He submitted that if this evidence were accepted, liability would be established. He submitted that there was no evidence that the collision occurred in the middle lane. It was more likely, he submitted, that the defendant’s truck was too close behind the plaintiff’s truck – about half a metre behind at 30m from the turn into Rusden Place. He submitted that it was poor driving by the defendant to drive so close to the plaintiff’s truck, particularly when he saw it slow down. At that point, he should have asked himself whether the plaintiff’s truck was going to straddle into the middle lane. He should have slowed down, but instead, he simply passed the plaintiff’s truck.
24 It was submitted that the cause of the collision and the precise location of the collision are unknown. However, the defendant did not allege that the plaintiff’s truck intruded into the middle lane – as he could not see. The theory of tail swing was merely a theory but there was no evidence that the collision happened this way at all. So the more likely explanation was that the defendant’s truck intruded into the left lane. It was submitted that the defendant was diffident when giving his evidence and engaged in a “considerable degree of impulsive reconstruction” on a number of matters which, ultimately were not put to the plaintiff. It was submitted that the plaintiff ought to be accepted about the conversation he alleged occurred after the collision, as he had a clear recollection whereas the defendant merely said this was not the sort of thing he “would have said”. It was also submitted that the defendant’s evidence was unsatisfactory. This was because he knew the truck was there, saw the plaintiff’s truck slow down, but then could not see its rear once it started its turn.
25 It was submitted that as there was no evidence that the plaintiff’s driver was not travelling in the left lane, and the collision was from behind, the defendant must have encroached into the left lane, and therefore negligence was made out. As the defendant’s vehicle was behind the plaintiff, the defendant was in control of the situation, knew of the tail swing phenomenon and ought to have either slowed down to remain well behind the plaintiff’s truck once it began to turn, or moved more to the right. The defendant put himself in a dangerous situation travelling so close to the plaintiff’s truck.
26 It was submitted that if the contention that the plaintiff should have turned from the middle lane was rejected, no negligence by the plaintiff could be established, unless the defendant’s submission concerning tail swing was accepted.
Defendant’s submissions
27 Mr Simpson made a number of submissions on behalf of the defendant which may be briefly summarised.
28 Firstly, he submitted that the plaintiff was responsible for the collision, on either of two bases. The first is that the collision occurred because it could be inferred that, as the plaintiff’s truck was turning left into Rusden Place, the tail of its truck swung out into the middle lane, striking the defendant’s prime mover. The mechanism by which this swing occurred is that of “swept path performance” which, on the expert evidence is an established characteristic of the plaintiff’s DAF truck’s rearward projection which results in possible tail swing of up to 300mm. He submitted that any amount of tailswing would have been enough to take the boom on the DAF truck into the middle lane and thereby cause the collision.
29 Secondly, Mr Simpson submitted that even if both trucks were in their respective lanes, Mr Dibianco was aware of the presence of the Mack truck behind him and had a duty to take reasonable steps to avoid a collision. He should have allowed for a slower speed or done a clearance check to ensure that what was coming up on his right side of the lane was not so close as to put his truck at risk of an impact collision. Moreover, as it was practicable to do so, he should have turned left from the middle lane as permitted by s 28(2) (d) of the Road Safety Rules 2009. In this case, it was practicable and, if Mr Dibianco had been a more experienced driver and more knowledgeable about the tail swing characteristic of his DAF truck, he would have appreciated that turning left from the left lane was likely to result in his clipping an oncoming vehicle, or as is the case in this matter, a vehicle approaching from behind. By not straddling the middle lane, he created the likelihood of a vehicle, being so close to his DAF truck as to create an imminent risk of threat or damage. If he had straddled the middle lane, he would have given a message to all vehicles that he could not be passed in the middle lane. Finally, it was submitted that Mr Astorino was not put on notice by the DAF truck’s driver of the fact or risk of collision.
30 For these reasons he submitted that the counterclaim ought not be struck out.
31 On the basis of the defendant’s viva voce evidence – that the trucks were travelling at roughly the same speed at 50m from Rusden Place and the tail end of the plaintiff’s truck was within half a metre ahead of the nose of the defendant’s truck; that the defendant continued in the middle lane and continued in the middle lane as the plaintiff’s truck began its turn; the defendant submitted that:
· The defendant was not “placed on notice” by the conduct of Mr Dibianco, for example in slowing down, that his truck might act in such a way as to put the defendant at risk of a collision;
· There was no reason for the defendant to look to his left at the time of the collision;
· The evidence does not disclose a factor which ought to have caused the defendant to reduce his speed from approximately 35km per hour;
· The unforseen possibility of the plaintiff’s truck turning left did not, of itself, require the defendant to slow down below 35km per hour;
· The defendant ought not to be held strictly liable for the consequences of the collision.
32 It was submitted that if Mr Dibianco’s evidence that he was at all times within the left lane before executing the turn was accepted, then a probable explanation for the collision is encroachment on the middle lane by tail swing path. If this inference is not drawn, then no factual cause of the collision is established and the plaintiff has failed to discharge its onus to establish the factual cause of the collision.
Findings and reasons
33 There is no evidence as to exactly where on the road the collision occurred, that is, whether the impact occurred in the left lane (and if so precisely where), the middle lane (and if so precisely where) or exactly over the dotted white line dividing the two lanes. In these circumstances, there are two competing explanations for the collision. The first is that, as the defendant says, that the tail of the DAF truck swung to the right as the truck was turning left, and encroached onto the middle lane where it struck the defendant’s Mack truck. The second is, as the plaintiff says, that the defendant’s truck was driving in the middle lane too close to the DAF truck and this conduct caused the collision. If this second argument is based on an assertion that no part of the plaintiff’s truck left its lane, then it carries with it the necessary inference that the defendant’s truck encroached into the left lane. There is no direct evidence of either mechanism in fact occurring. Each driver claimed his truck’s wheels were within the lines of the lane in which he was driving at all relevant times. Neither driver saw the other truck depart from its lane. Neither driver saw the collision. Neither driver was able to say whereabouts exactly on Blackburn Road the collision occurred. Thus the tail swing phenomenon on the DAF truck is of little assistance, as, absent the knowledge of where exactly on the road the collision occurred, the 300mm maximum tail swing phenomenon might or might not have resulted in encroachment of the DAF truck into the middle lane. Similarly, the assertion by the plaintiff that the defendant must have been driving too close to the DAF truck is of little assistance, as it is common ground that the trucks were driving in adjacent lanes. As each was towing a wide load, it is obvious that each truck would have been occupying the bulk of its lane. I derive little assistance from the content of the alleged conversation between the truck drivers after the collision. Even if I were to accept that the defendant told the plaintiff’s driver that he did not see the boom on the DAF truck, this would not be sufficient to establish negligence on his part, given the defendant’s unchallenged evidence that he was travelling at all times in the middle lane.
34 I note that neither expert (Dr Rechnitzer and Dr Richardson) was called to give evidence. It is notable and unhelpful that each of them attributed a different width to the left lane of Blackburn Road. I derive little assistance from Dr Richardson’s assertion that the plaintiff’s DAF truck would have “rolled” or “leaned” towards the centre lane, “causing the pipes at the top of the truck to impact the roof and container of the prime mover”, as he appears to have misunderstood where on the Mack truck the damage occurred, which was, in fact, to the rear of sleeping cabin and not the roof and container, and provides no basis for his conclusion that there was rolling or leaning by the DAF truck. On the other hand, I note that Dr Rechnitzer’s conclusion about the mechanism of tailswing being capable of explaining the collision is predicated upon a finding that the tailswing in fact resulted in encroachment by the DAF truck onto the middle lane.
35 Without evidence of one truck encroaching onto the other’s lane, or other evidence establishing the cause of the collision, it is impossible for me to reach satisfaction, on the evidence, on the balance of probabilities, that either driver’s negligence caused the collision. In circumstances where it is unclear exactly where on the road the collision occurred, it is inappropriate to take the view that both drivers were to blame and to apportion the damages recoverable according to the degree of blame to be attached to each: Nesterczuk v Mortimore [1965] 115 CLR 140 at 155-157 particularly the passage of Kitto J at 149:
Thus, where the question at issue is whether A or B or both have been guilty of negligence the law neither requires nor permits the tribunal of fact to hold that both A and B were negligent unless the evidence engenders a belief “at least in some low degree”, a “feeling of probability”, that that is the truth of the matter.
36 I am unable in this case on the state of the evidence to reach a “feeling of probability”, even of some low degree, that either or both of the parties were negligent.
37 In these circumstances, I consider it appropriate to dismiss the claim and the counterclaim.
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