Wilson v Tallis
[2004] TASSC 76
•27 July 2004
[2004] TASSC 76
CITATION: Wilson v Tallis [2004] TASSC 76
PARTIES: WILSON, Susan Mary
v
TALLIS, Andrew Thomas
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 511/2002
DELIVERED ON: 27 July 2004
DELIVERED AT: Hobart
HEARING DATES: 6 – 8 July 2004
JUDGMENT OF: Underwood J
CATCHWORDS:
Torts – Negligence – Miscellaneous defences – Inevitable accident – Whether accident due to unexpected catastrophic mechanical failure – Onus of proof on plaintiff.
Mummery v Irvings (1956) 96 CLR 99; Schellenberg v Tunnel Holdings Pty Limited (1999) 200 CLR 121, applied.
Aust Dig Torts [72]
REPRESENTATION:
Counsel:
Plaintiff: K E Read and R A S Baker
Defendant: W Griffiths
Solicitors:
Plaintiff: Baker Tierney & Wilson
Defendant: Hunt & Hunt
Judgment Number: [2004] TASSC 76
Number of Paragraphs: 41
Serial No 76/2004
File No 511/2002
SUSAN MARY WILSON v ANDREW THOMAS TALLIS
REASONS FOR JUDGMENT UNDERWOOD J
27 July 2004
The issues
On 19 March 2002, the plaintiff was driving her Toyota Seca sedan south, along the Huon Highway just past Huonville. It was about 6 o'clock in the evening. The weather was fine, the visibility was good, and the road surface was dry. As the plaintiff approached a sweeping right-hand bend at the end of a straight stretch of highway, a loaded log truck was travelling in the opposite direction. Behind the log truck was the defendant. As they travelled around what was for them, a sweeping left hand bend, continuous double white lines in the centre of the road forbad the defendant from overtaking the log truck. As the bend straightened out, one of the lines became intermittent permitting overtaking for traffic travelling in the same direction as the log truck and the defendant. A short distance after the commencement of the intermittent and continuous centre line markings, there was an 80 kilometre per hour speed limit sign controlling traffic travelling in the same direction as the log truck and the defendant.
Somewhere just to the north of that 80 kilometre per hour sign, the defendant's car moved onto its incorrect side of the road, crashed through a fence and ended up in a paddock, close to another fence, and about 70 – 80 metres from the road.
The plaintiff's case was that the defendant commenced to overtake the log truck in the face of her oncoming vehicle. It was claimed that when a collision was imminent, the defendant steered to his incorrect side of the road, presumably in an attempt to avoid a collision, but he hit the right rear corner of the plaintiff's vehicle before leaving the road and crashing through the fence.
It was common ground that some good few metres to the south of the point where the defendant left the road, the plaintiff's vehicle also left the road and went through the same fence as did the defendant. The plaintiff's car rolled over at least once as it went down a reasonably steep slope in the paddock.
The plaintiff did not give evidence. I was told that she suffered catastrophic injuries in the accident that severely impaired her cognitive function. The defendant did give evidence. He said that he neither saw, nor felt, nor heard any impact between his car and the plaintiff's car. He said that the only impact he recalled was with the fence that he crashed through just after leaving the roadway. Notwithstanding this evidence, par1 of the statement of claim pleads that there was a collision between the two vehicles and par1 of the defence admits that allegation. Mr W Griffiths, counsel for the defendant, conceded, that notwithstanding the defendant's evidence, there was a collision between the vehicles, and that it happened when the defendant was on his incorrect side of the road.
The defendant's case was that the collision was wholly caused by circumstances beyond his control and could not have been avoided by the exercise of reasonable care on his part. The defendant pleaded the following particulars in support of his case:
"Immediately before the said collision the defendant's motor vehicle veered uncontrollably to the right as a result of a failure of the right hand front suspension of the defendant's motor vehicle which caused the said motor vehicle to travel into the path of the plaintiff's motor vehicle and the two cars to collide."
There is no plea of contributory negligence and the only issue presently for determination is whether the defendant was in breach of the duty of care that he obviously owed the plaintiff. The onus of proving a breach of the duty of care rests with the plaintiff. However, in the ordinary course of things, a vehicle does not move onto its incorrect side in the face of oncoming traffic if the driver exercises proper care and attention. Accordingly, proof without more that the collision occurred because the defendant's vehicle was on its incorrect side of the road is sufficient to discharge the onus that the plaintiff carries. See Mummery v Irvings (1956) 96 CLR 99; Schellenberg v Tunnel Holdings Pty Limited (1999) 200 CLR 121. However, in this case, the defendant adduced evidence that the cause of the accident was an unexplained mechanical failure as a result of which he lost the ability to control his motor vehicle and it moved onto its incorrect side of the road and into collision with the plaintiff's car without want of care on his part. It is necessary to examine this evidence to see whether it permits findings of fact to be made that will result in the plaintiff being unable to rely upon the proposition that because the accident was caused by the defendant's vehicle being on its incorrect side of the road, it is probable that the accident was caused by lack of care on the part of the defendant.
The defendant's expert opinion evidence
Expert opinion evidence was given by three witnesses. Two were called by the plaintiff and one by the defendant. Regrettably, none of these witnesses examined the defendant's vehicle after the accident. All the expert witnesses relied on observations claimed to have been made by lay witnesses after the accident and four indistinct black and white photostat copies of photographs of the defendant's car taken at some unknown place at some unknown time after the accident.
The evidence established that the defendant was driving a 1998 Hyundai Excel sedan. The defendant, who lived in South Australia before moving to Tasmania with his partner not long before the accident, said that he bought the car in that State about six months before the accident. He said that it had given him no trouble. I accept that evidence. It was an agreed fact that on 10 January 2002, about three months before the accident, the car was serviced at K-Mart Tyre and Auto Service. The odometer reading was then 92,256 kilometres. The service included four wheel balances, a brake inspection and a "vehicle safety inspection". Nothing relevant was detected.
The defendant's answers to interrogatories, tendered on behalf of the plaintiff, establish that before the accident the defendant's vehicle was travelling on its correct side of the road at about 70 kilometres per hour. The defendant's answers to interrogatories also establish that immediately before the defendant's vehicle moved onto its incorrect side of the road, the defendant neither observed, nor experienced any unusual sounds or vibrations. Those answers are consistent with the defendant's oral evidence and I make findings in accordance with them.
The defendant's expert witness was Mr David Cooper. He gained his qualifications as a motor mechanic in 1963 and has operated his own engineering and automotive repair workshop for more than 30 years. Mr Cooper expressed the written opinion, tendered in evidence, that "a catastrophic failure of the lower control arm of the right-hand front suspension" of the defendant's car was indicated by the matters or assumptions that he set out. I shall now attempt the rather daunting task of describing the lower control arm of a 1998 Hyundai Excel sedan and the associated relevant parts. I am comforted somewhat by the fact that I prepared the substance of this description during the course of the evidence and its accuracy was confirmed by counsel and one of the expert witnesses who happened to be in the witness box at the time.
The right front wheel revolves within an inner mudguard that forms part of the foot-well. This wheel is secured by the following means:
· A McPherson strut. At one end, this strut is firmly bolted to the part of the wheel that does not rotate (the hub). At the other end, it is bolted with rubber bushes to the frame of the car, more or less above the wheel and at the top of the chassis just under the bonnet. It principally bears force in the vertical plane.
· A lower control arm or wishbone. This is secured to the hub by a ball joint. This ball joint consists of what looks like a metal bolt with a head on one end and a tapered thread on the other. The head of this "bolt" sits in a metal cup. This gives it limited movement inside the cup. The threaded end is passed through a tapered metal hole that is part of the casting of the hub and is secured in place with a bolt. The other end of the wishbone is bolted with rubber bushes to the chassis about 300 millimetres inboard from the middle of the wheel. It principally bears force in the horizontal plane. Thus, it could be said that the lower control arm or wishbone prevents the wheel from dangling loose at the end of the McPherson strut.
· Also attached to the wheel is the brake cable that carries brake fluid to the brakes, and the steering arm or tie-rod. The steering arm is attached by a ball joint to an arm that is part of the casting of the wheel. Its function is, of course, to steer the wheel.
The 1998 Hyundai Excel sedan is a front wheel drive vehicle. Power is transferred from the gear box to the front right wheel by a drive shaft. Fitted to either end of the drive shaft is a constant velocity joint (CV joint). The end of each CV joint consists of a number of splines. The splines on the outer end of the CV joint slide into the transmission and the splines on the inner end fit into the wheel. The uncontested evidence was that after the accident the outer CV joint was in position in the transmission, the drive shaft was nowhere to be seen, and the inner CV joint was lying on the floor of the driver's side foot-well of the car. In his proof of evidence, Mr Cooper stated that the inner CV joint was "found on the road in the vicinity of the accident". There was no evidence to that effect. The only evidence, supported by a photograph, was that after the accident, the inner CV joint was in the driver's side foot-well. The common opinion was that it was unlikely to have been flung there as a result of the accident and I infer that after the accident someone picked it up from somewhere and put it in the foot-well.
Mr Cooper's opinion that there had been a catastrophic failure of the lower control arm that took the defendant's vehicle onto its incorrect side of the road was based upon the following assumptions:
1The right-hand front corner of the defendant's car dropped down slightly just before it veered to the right.
2The vehicle veered sharply to the right.
3The steering wheel pressure became heavy.
4The steering wheel could not be turned to the left to correct the veer to the right.
5The inner CV joint was discovered in the foot-well.
6The right front wheel turned out to an angle of about 80 degrees as the vehicle veered across the road.
7The right-hand front wheel was off the vertical plane to a degree ("negative camber") as well as being rotated out to the right at an angle of 80 degrees or thereabouts.
Mr Cooper said that he was informed by those instructing him with respect to assumptions (1 – 4). With respect to (5), Mr Cooper said that the presence of the inner CV joint in the foot-well indicated to him that the drive shaft had become disconnected. With respect to (6) Mr Cooper said that he was informed by those instructing him that after the accident, the front right wheel was observed to have been turned outwards to a considerable degree, but he made the assumption that the degree of that turn was approximately 80 degrees. Mr Cooper said that he made assumption (7). With respect to the last two assumptions Mr Cooper also had regard to the photographs P 3, (the black and white photostats of the photographs of the defendant's car). In consequence he opined that the car went off to the right because the lower control arm became disconnected either at the ball joint or elsewhere.
With respect to all those assumptions, Mr Cooper said that if assumptions (1), (3), (4) and (7) were not established by the evidence, it would not be fatal to his opinion. He said that if the vehicle did not veer sharply to the right, and if the right front wheel did not turn out to an angle of 80 degrees, then his opinion could not stand. Obviously, it also could not stand if the lower control arm was still connected to the hub after the accident. Mr Cooper explained that the fact that the drive shaft had disconnected was significant because it indicated that the right front wheel had become disconnected from the lower control arm, thus permitting it to move outwards and in so doing, enabled the splines on the inner CV joint to come out of the wheel.
Assumptions (1), (3) and (4) are not established by the evidence. The defendant said in answer to a question from me that while he was driving along in a perfectly ordinary manner, he just felt his car veer to the right. "I felt it being pulled to the right". He said the steering wheel was rigid. He did not try and make it turn. He did not try and wrench the wheel to bring him back to the correct side of the road. He just held onto it. The critical assumption to support Mr Cooper's opinion is that the right front wheel turned outwards to about 80 degrees and this dragged the car to the incorrect side of the road. Mr Cooper opined that this could not have happened if the lower control arm had remained intact and thus, its failure was the cause of the accident. It is appropriate to examine the evidence given by those who saw the vehicle after the accident.
The evidence relevant to the expert opinion
The plaintiff's parents live at Port Huon. They got a phone call about the accident. The plaintiff's father was at the scene after the police, but before the ambulance arrived. His daughter was out of her car when he got there. Also at the scene was a young couple. I find that they were the defendant and his partner, Ms Jonas. Mr Wilson said that he heard someone mention mechanical failure as a cause of the accident. Accordingly, he went over to, and looked at, the defendant's car. He saw damage to the right-hand front corner of the bonnet and to the whole of the front right corner. He said the latter was crumpled up as is depicted in exhibit P3. Mr Wilson noted that the right front wheel appeared to be pushed back in the wheel well, but he thought that it was pointing straight ahead.
Mr Jackman is a panel beater. He also operated a tow truck service. He was on the scene pretty quickly. He knew that two trucks would be required. He drove one and one of his employees drove the other. Mr Jackman said that the Hyundai was down a grassy paddock and about 75 – 100 metres from the road. He said it was just touching a fence. He and his employee went to look at it so they could assess the best way of retrieving it. He described seeing damage to the front right corner of the defendant's car. He said "the [front right] wheel was upright and it was back a little bit but the tyre was not in good shape but everything looked … like it was going to track nicely". A little later on, Mr Jackman said that both front wheels were "virtually pointing in a straight direction … but the right wheel was back a little bit".
He and his employee ran a wire from a winch on one of the tow trucks and winched the defendant's car some 40 metres up the slope to a flat grassy patch close to the road. Mr Jackman said he walked up with the car in order to keep an eye on things. In cross-examination he was pressed with the proposition that the front right wheel was not in the straight ahead position, but was pointing out at an angle. Mr Jackman refused to accept this. He explained that his memory was aided by the fact that this was one of the last tows that he did as that part of his business was taken over by someone else shortly after this accident.
Mr Jackman said that at the top of the bank he picked up the Hyundai with a Quick-Lift tow truck. The rear of the Quick-Lift tow truck is fitted with a hydraulic lifting device. It is shaped thus:
The distance between the two tines is about the width of an average car wheelbase and the length of each tine is about the same as the diameter of a car wheel. To pick up a car, the arm and the tines are lowered almost to the ground and the tow truck is backed up to the front of the car until the two front wheels are inside the tines in much the same manner as a forklift moves its tines into position to pick up a load. Once so situated, a metal bar joining the two tines is slid into position making an enclosed metal rectangle. When the arm is lifted, the two front wheels drop down a little until they sit comfortably in the metal rectangle. The front of the car is then lifted until the body is at an angle to the road and only its rear wheels touching the ground. The car can then be towed away without the need for any further attachment to the truck except for a safety chain. At the destination the lift is lowered, the bar slid out and the tow truck simply drives away. It would not have been possible to use a Quick-Lift tow truck if the right front wheel on the defendant's Hyundai had been turned out some 80 degrees.
Mr Jackman said that he had a clear recollection of jiggling the front right wheel just after it had been lifted by the Quick-Lift to make sure it was in position before he drove off. In cross-examination he said that he did this, "just to make sure everything was all solid there on the front. Well, it had copped a fairly hefty hit to the front there and I just wanted to make sure the wheel was all pretty nice there". Mr Jackman took the defendant's car to his garage on the Grove Straight near Huonville and he left it there in the yard.
Mr Bailey is the plaintiff's partner. They have been together for about 7 years. He was in the north of the State when the accident happened, but came home immediately he heard about it. About 10am the morning after the accident, he and the plaintiff's father went to Mr Jackman's garage. Mr Bailey said he was looking for the plaintiff's handbag and he also wanted to inspect the defendant's car. He said that he knew "a little" about automotive mechanics. His evidence made it clear that his knowledge in this respect was quite extensive. He inspected the defendant's vehicle very carefully. He noted that the right-hand side of the driver's foot-well had been pushed backwards and inwards fouling the accelerator pedal. He noted that the inner CV joint was lying on the floor in the foot-well. Mr Bailey said that the right-hand front panel was all "crunched up". He said the wheel was pushed back in the wheel arch towards the rear of the vehicle and the tyre was flat. He said that the wheel was damaged and that it was oval shaped instead of round. He said that when he saw it, the defendant's car was as depicted in exhibit P3.
Mr Bailey said that he then got right down and looked underneath the car. He noted that the McPherson strut was in position but slightly bent to the rear. The outer CV joint was in the transmission but the drive shaft and inner CV joint were missing. He said the lower control arm or wishbone was connected to the hub by the ball joint and bolted to the frame at the other end. He said that the lower control arm was a little bent but otherwise intact and secured. Both front wheels were standing in the vertical plane and pointing straight ahead.
Prima facie, if Mr Bailey's evidence is accepted, the defence of inevitable accident must fail. In closing submissions, Mr Griffiths acknowledged that this was correct, but submitted that I should not accept his evidence because it was possible that someone reconnected the lower control arm by inserting a new ball joint. Mr Jackman said that his business did not repair the defendant's car and there was no suggestion in the evidence as to whom this person might have been. Any such reconnection would have had to have been done between about 6pm on 19 March 2002 and 10am the following morning when Mr Bailey inspected the car.
Before going to Mr Jackman's garage on 20 March, Mr Bailey went to the scene of the accident. He saw two skid marks on the bitumen surface of the road which led to marks on the gravel, which in turn led to a trail of glass and debris that ended where the plaintiff's car had obviously come to rest. The inside skid mark was very short and commenced close to the left-hand fog line for cars travelling in the same direction as the plaintiff was travelling. The other skid mark was about 7 or 8 metres long and commenced about a metre in from the fog line. Both skid marks were at an angle of 45 degrees to the road and clearly indicated that the plaintiff had applied the brakes hard and pulled left just before or just after the collision.
The only other witnesses who gave evidence with respect to the condition of the defendant's car after the accident were the defendant, his partner, Ms Jonas, and a Mr Trikilis, who gave evidence that he saw the accident and stopped at the scene.
In his evidence-in-chief, the defendant said that he and his partner had been out sightseeing for the day and were on the way home. They had been following the log truck for about an hour. They were not in a hurry and did not try to overtake it. The defendant said that as they went around the left-hand curve just before the accident scene, he looked past the log truck on the inside and saw oncoming traffic. He said that he was then about 20 metres behind the log truck, travelling at about 70 kilometres per hour. He saw the plaintiff's car approaching. It passed the log truck. He said that then, without any warning, his car veered to the right. He said as it did, the plaintiff's car passed him. The defendant said he applied the foot brake and held onto the steering wheel but the car continued to move to the right. He said that he neither felt, nor saw, nor heard any collision with the plaintiff's car. His car crashed through a fence knocking over one or more fence posts as it did so and careered down the paddock until it came to a stop just short of another fence. Smoke was coming from under the bonnet. The defendant claimed that the damage to the front right of his car was due to the collision with the fence post.
I do not accept the defendant's account of the events just before the collision. His claim that there was no collision with the plaintiff's car is inconsistent with his answers to interrogatories. The defendant answered a number of interrogatories by reference to "the collision" which was defined to mean the collision referred to in par1 of the statement of claim. In his answers he did not claim that there was no collision between the two vehicles, nor did he claim that he was unable to answer interrogatories because they assumed a fact that was not established, namely that there was a collision. The defendant's evidence that he neither saw, nor felt, nor heard any collision with the plaintiff's vehicle is inconsistent with the evidence of Mr Bailey. He said that when he looked at the plaintiff's vehicle the day after the accident, there was a large gash in it behind the driver's side door and the whole rear wheel and part of the suspension was missing. Further, it is highly unlikely that the collision with a fence post or posts would have caused the amount of damage that was done to the right front of the defendant's car. At one stage in the cross-examination, the defendant admitted that there had been a collision.
"Well, would you please – could the witness please be shown P2. Do you recognise anything about any of those four photographs? … Yes.
What do you recognise about them? … That is where the collision occurred.
What collision? … Where the accident occurred.
What accident? … Where we went off the road.
What you meant to say is that's where your car hit the [plaintiff's] car didn't you, because that's what you remember happening, Mr Tallis, don't you? … No." [Emphasis added.]
The defendant's account that he did not pull the steering wheel to the left to correct the sudden veering to the right is unlikely for such action would have been an instinctive reaction to an unexpected veering to the right.
The defendant's account of events after his car came to a rest was, in part, inconsistent with the account given by his partner. He said that when he climbed up the slope towards the road, he saw the plaintiff's car on its roof in the same paddock some distance away. He claimed that the sight of it there came as a complete surprise to him. The defendant said that when his car stopped his first concern was his partner. She was winded but otherwise unharmed. He said that he got out of his door, went around the car, opened her door and helped her to get out. He said that he then moved his partner away from the car and he went up the hill where he saw the plaintiff's car for the first time. The defendant said that although his car had suddenly and inexplicably veered off the road to the right, and although he was of the belief no other vehicle was involved in the accident, the defendant claimed that looking at his car to see if there was any explanation for the accident was "not a priority". In her evidence, the defendant's partner, Ms Jonas, said that the defendant did not come around to let her out. She said that he undid her seatbelt and pushed her out of the car as there was some urgency due to smoke coming from under the bonnet.
The defendant said that after he saw the plaintiff's car on its roof he ran back a short distance to where Ms Jonas was standing, spoke to her and the two of them went over to the plaintiff's car. The two of them stayed there until after the arrival of the police, the ambulance and the two tow trucks. In his evidence-in-chief, the defendant said that he looked at the front right wheel of his car and "it was pushed back, on an angle, into the wheel well". He also said it was pointing to the right at an angle between 45 degrees and 90 degrees. In cross-examination, the defendant was asked what he did, step by step at the scene of the accident until he left it with the log truck driver who gave him a lift to Hobart. His account did not include inspecting his vehicle as he had said in his evidence-in-chief, to see why it had behaved as it did, nor did it include seeing a wheel pointing outward at an extreme angle. The cross-examination concluded with this inconsistent account:
"You get into the log truck and go back to Hobart. ... Yeah.
Have I missed anything out? ... No.
So it follows from that you did not have an opportunity to check the angle of any wheel on your vehicle, did you? ... I did look at it, yes.
Well, when did you do that? ... That was after we got out of the car and I walked up and came back
HIS HONOUR: Just again, I'm sorry.
WITNESS: Sorry. That’s after we got out of the car and we walked up after I was with them – I did go back to the car, yes.
So you say that after you'd been over with the [plaintiff's] car, you then went back. ... Yes."
I find the defendant's evidence to be unreliable and internally inconsistent. It is also inconsistent with the observations made the next day by Mr Bailey. Mr Bailey was a most impressive witness, careful and meticulous in his answers to questions and I accept his evidence. In his answers to interrogatories, the defendant said that he believed there were no skid marks left on the road by his vehicle. Mr Bailey carefully inspected the road surface the morning after the accident and saw no skid marks that led to where the defendant's vehicle left the road. Had the defendant's right front wheel suddenly turned something in the order of 80 degrees to the right and proceeded across the bitumen in that position until it left the road, it is highly unlikely that it would have done so without leaving a very considerable and obvious skid mark. Finally, the defendant's account about the wheel being turned out to the right is inconsistent with the evidence of Mr Jarman which remained completely unshaken by cross-examination.
Ms Jonas said in her evidence that just before the accident she was looking out of the driver's side window at the river. The first she was aware of trouble was when the defendant swore and she felt the car veer to the right. At that point Ms Jonas closed her eyes. She felt the car crashing through the fence and then it came to a stop. In her evidence-in-chief, Ms Jonas said that after she got out of the car, she noticed that the right front wheel was pushed back into the car and was rotated out to the right between 45 degrees and 90 degrees. Ms Jonas impressed as an honest witness trying to recall the events as best she could. However, I cannot accept her evidence with respect to the position of the wheel after the accident. She agreed that she and the defendant had had "many chats" about the accident, but it was only when she met the solicitor for the plaintiff three days before the trial began that she "understood that there was some significance about the angle of the right hand wheel after the collision". She said, in effect, she then understood that the angle of the wheel caused the accident.
As I understand Ms Jonas' evidence, she said that for a little more than two years after the accident, the angle of the right front wheel had no particular significance to her. Three or four days before she gave her evidence she realized that if, after the accident, it had been pointing outwards at an angle approaching 80 degrees, this would indicate that a major mechanical failure had been the cause of the accident. In the circumstances I cannot be confident that her recollection is not the product of albeit unconscious, reconstruction on learning the significance of the angle of the wheel. Ms Jonas' evidence is in conflict with that given by Mr Bailey and to a lesser extent, that given by Mr Wilson, both of whom made a point of carefully looking at the damage to the defendant's vehicle. Ms Jonas' evidence is also in conflict with that given by Mr Jackman. She was unable to recall the extent of the damage to the front right bodywork other than that the right front bonnet was pushed in. When shown the photographs P3, she could only say with respect to the damage to the guard there depicted, "I don't specifically remember. I mean this looks familiar but I don't specifically remember looking at the guard". She repeated that the only thing she could remember was the angle of the wheel.
Before I deal with the evidence of the only other witness who claims to have seen the damage to the defendant's car after the accident, I should mention the evidence of Mr Crellin. This witness said that just before the accident he was following what turned out to be the plaintiff's car. He saw the oncoming log truck. He said he saw the white Hyundai attempt "what looked like a standard overtaking manoeuvre". He said that when the Hyundai was about half way along the log truck, "it appeared to have nowhere to go" and both cars went to the edge of the road. Mr Crellin said that there was no vehicle between him and the plaintiff's car. He stopped and went to the scene. Mr Crellin gave no evidence about the damage to either vehicle, but I refer to his evidence because there is a conflict between it and the evidence given by Mr Trikilis.
Mr Trikilis said that he too, was travelling south on the Huon Highway and he too was following what turned out to be the plaintiff's car. He, like Mr Crellin, said there was no vehicle between him and the plaintiff's car. He saw the oncoming log truck and he saw the Hyundai come out from behind it. He said that when this happened it was some distance behind the log truck. He said as it came out the position of the car on the road seemed strange to him as he could see the left front corner and "almost the whole of the left hand side of the car". Then Mr Trikilis' evidence was to the effect that the right front wheel of the Hyundai came off and bounced across the road. He said that he stopped and went to the scene. Whilst there he looked at the Hyundai and saw that the wheel was completely missing, the drive shaft was also missing and the front right of the vehicle was sitting hard on the ground. Mr Trikilis said that he later saw the missing wheel in the paddock. He said it was not a "mag wheel". However the undisputed evidence was that the Hyundai was fitted with mag wheels.
Mr Trikilis' account is at odds with all the other evidence in the case. It is almost as if he was describing a different accident. I have no reason to think that Mr Trikilis was doing anything other than give his evidence to the best of his ability, but it is so out of line with all the other evidence, I can place no reliance upon it at all.
The conclusion
The foregoing is sufficient to determine the issue of liability. The short answer to the defendant's contention that his car "veered uncontrollably to the right as a result of a failure of the right-hand front suspension …" is that it is dependent upon the opinion of Mr Cooper, and that opinion is dependent upon facts which are not established by the evidence. Mr Griffiths' submission that I should not rely upon the evidence of Mr Bailey that the lower control arm was intact and secure at 10 o'clock on the morning after the accident because some person may have found the necessary part and reconnected the lower control arm ball joint in the intervening 16 hours, is without merit.
I should make reference to the evidence of Messrs Booth and Doran, expert automotive engineers, called on behalf of the plaintiff. Both witnesses were of the opinion that there was no objective evidence of a failure of the lower control arm and both witnesses thought it was unlikely that even if there had been, the wheel would have rotated outwards at an angle as great as 80 – 90 degrees. Both witnesses were of the opinion that the damage to the driver's foot-well was probably caused by the force of the impact, driving the wheel straight back against it. Finally, both witnesses held the opinion, which was not challenged in cross-examination, that in a severe accident the dynamic movement of the component parts is quite substantial and the cumulative effect of this movement could have allowed the drive shaft to become detached. In this context I note that the embankment where both cars left the road is quite steep and it is very likely that the defendant's car suffered a very severe impact as it went off the road, "nose down" towards the paddock and fence line.
At the request of Mr Read, senior counsel for the plaintiff, I will postpone ordering that judgment be entered for the plaintiff against the defendant for damages to be assessed until he has had an opportunity to consider the provisions of the Motor Accidents (Liability and Compensation) Act 1973, s27A(3).
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