Wynne v Pilbeam - [2003] WADC 258

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: WYNNE -v- PILBEAM & ANOR [2003] WADC 258

CORAM: MACKNAY DCJ

HEARD: 28-30 JULY 2003

DELIVERED : 25 NOVEMBER 2003

FILE NO/S: CIV 1037 of 2002

BETWEEN: MARK IRVINE WYNNE
Plaintiff
AND
ROGER KIM PILBEAM
First Defendant
CITY OF STIRLING
Second Defendant

FILE NO/S :CIV 1941 of 2001

BETWEEN :ROGER KIM PILBEAM
Plaintiff
AND
MARK WYNNE
Defendant

Catchwords:

Negligence - Road accident cases - Duty of care - Consolidated actions - Stationary rubbish truck struck from behind by car - Early morning sun over road - Whether truck driver or local authority negligent in having truck on road - Whether driver of car failed to keep proper lookout - Whether truck driver required to wear seatbelt - Turns on own facts

Legislation:

Nil

Result:

Neither defendant in Action No 1037 of 2002 negligent
Defendant in Action No 1941 of 2001 negligent

Representation:

CIV 1037 of 2002

Counsel:

Plaintiff:     Mr I Viner QC & Mr J I Cooke
First Defendant             :     Mr D R Clyne
Second Defendant         :     Mr D R Sands

Solicitors:

Plaintiff:     D'Angelo & Partners
First Defendant             :     Simon Walters
Second Defendant         :     Talbot & Olivier

CIV 1941 of 2001

Counsel:

Plaintiff: Mr D R Clyne
Defendant: Mr R I Viner QC & Mr J I Cooke

Solicitors:

Plaintiff: Simon Walters
Defendant: D'Angelo & Partners

Case(s) referred to in judgment(s):

Bomford v Commissioner of Main Roads (2000) 32 MVR 201
Edith Cowan University v Czatryko [2002] WASCA 334
Maiolo v Hansen (1989) 10 MVR 200
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Romeo v Conservation Commission (NT) (1998) 192 CLR 431
Sullivan v Moody (2001) 207 CLR 562
Waverley Municipal Council v Swain [2003] NSWCA 61
White v Humphries (1984) 1 MVR 426
Wyong Shire Council v Shirt (1980) 146 CLR 40

Case(s) also cited:

Barclay Oysters v Ryan (2003) A Tort Rep 81-681
Przetak v Metropolitan (Perth) Passenger Transport Trust and Melville Road Board (1961) WAR 2
Woods v Multi-Sport Holdings Pty Ltd (2002) 76 ALJR 483

MACKNAY DCJ:

Introduction

This was a trial of liability only in respect of two actions for damages for personal injury, each with a different plaintiff and defendant(s), which had been directed to be tried concurrently as to liability by an order of a Registrar.
I was informed that the action given primary status was No 1037 of 2002, in which the plaintiff is Mark Irvine Wynne, and the defendants Roger Kim Pilbeam and the City of Stirling.
The other action is No 1941 of 2001, in which the plaintiff is Roger Kim Pilbeam and the defendant Mark Wynne.
As was done in the interlocutory documents and at trial I shall henceforth for convenience describe Mr Wynne as the "plaintiff", Mr Pilbeam as the "first defendant", and the City of Stirling as the "second defendant".

Accident

I will first set out matters which are either common ground or about which findings can readily be made.
The accident occurred on Tuesday morning 7 March 2000, that being the first working day following a long weekend.
Two vehicles were involved in the accident, one driven by the plaintiff and the other by the first defendant.
The accident occurred on the north side of Hale Road, Wembley Downs, in the left or kerbside lane, between the intersection of that road with Weaponess Road and its intersection, to the east, with Stockdale Road, Hale Road there having an approximate east/west alignment.
Hale Road in that portion of its length is a dual carriageway, with two lanes for traffic travelling in each direction.
There is also a turning lane for vehicles in the northern carriageway wishing to turn right into Stockdale Road.
The plaintiff was the driver of a red 1983 model Mazda RX7 coupe and had travelled from his residence in the Esplanade, Scarborough, up to and along Weaponess Road.
He then turned left into Hale Road.
The first defendant was the driver of a side loading dual control MacDonald Johnston SL9322 9000 series rubbish truck operated by the second defendant and was in the course of making collections of rubbish from bins placed by residents for the purpose on verges adjacent to the northern carriageway of Hale Road east of Weaponess Road.
The first defendant, who was employed by the second defendant as a relief truck driver, had earlier commenced the collection round in Brine Place, further along Hale Road to the east, and had collected rubbish down the southern carriageway of Hale Road as far as Weaponess Road before turning his truck around and returning along the northern carriageway.
The first defendant was operating the truck from the lefthand drive position.
He was not wearing a seatbelt fitted to the vehicle.
The truck bore the second defendant's designation "T429", had an unladen weight of between 10 and 11 tonnes, and a likely weight at the time of the accident of between 13 and 14 tonnes.
There were a number of features on the rear of the truck designed to alert other road users to its presence and mode of operation, those being in some cases standard pursuant to some regulatory regime or general practice, or otherwise something fitted at the request of the second defendant.
The features included the rear being painted white, there being a beacon containing a flashing orange light on top of the truck at the back, with rear, brake, and indicator lights on either side of the back of the truck at both top and bottom, the four indicator lights serving as hazard lights also on demand, a large "caution" sign in black on a gold background in the middle of the back, two red and gold turning warnings, large red and gold chevrons across the back beneath the caution sign, and a large "dual control vehicle" sign in black on gold below the chevrons.
The truck was one of at least 12 similar trucks operated by the second defendant, in the course of conducting at least 55 similar domestic rubbish rounds in the course of a week.
No evidence was led on behalf of the plaintiff as to the purpose, design or usage pattern of the relevant portion of Hale Road, but it was not regarded by the second defendant as a major or main road.
In that regard there were no restrictions on vehicles being parked at any time in the left lane of the northern carriageway of Hale Road, and hence it was not a clearway.
The accident occurred as a result of the plaintiff driving his car into the rear of the defendant's truck.
As a result of the accident the plaintiff was seriously injured, and he is now an incomplete quadriplegic.
The first defendant also sustained some injuries.
The weather that morning was fine, apart from some cloud.
The sun had risen at 6.11 am, and was somewhere about the crest of a hill across which Hale Road runs to the east of Stockdale Road.
The whereabouts and effect of the sun on drivers travelling east in Hale Road at about that time are questions relevant to the plaintiff's claim.
In that regard senior counsel submitted in closing that the evidence revealed that the sun presented an impediment to vision such as to render the second defendant's attempts to highlight the presence of the truck from the back inadequate, so that the response of a reasonable person in the position of each of the first defendant, the driver, and the second defendant, the responsible authority, ought to have been to ensure that the truck was not at the time on that part of the northern carriageway of Hale Road.
In order to have regard to those and other issues it is appropriate to refer to some other aspects of the evidence.
I do not, however, intend to traverse the whole of the same.

Evidence

The house on the northwest corner of Hale Road and Stockdale Road is numbered 112, and that to the west 110A, there being a battleaxe property numbered 110B Hale Road to the rear of the latter.
Each of numbers 110A and 110B Hale Road have a driveway and crossover to Hale Road, that of number 110B Hale Road being adjacent to the western boundary of number 112 Hale Road.
A footpath runs along the front boundaries of numbers 112 and 110A Hale Road, and there is a grass verge in front of each which borders the northern carriageway.
Mr Adam Lower is a lawnmowing contractor who had on 7 March 2000 been mowing the lawns at number 110A Hale Road for about two years.
He was mowing the verge in front of number 110A Hale Road at the time of the accident, and had seen the truck move past him to the east, after which he turned to walk east with the mower.
Mr Lower said that shortly afterwards he heard a very loud bang and again saw the truck, which appeared stationary, and a red Mazda, which slowly detached itself from the truck and rolled backwards before turning on to and coming to rest on the verge down the road.
After seeing to the car driver, who lay limp inside the cabin, the police were called, and arrived, he said, 10‑15 minutes later.
The truck was just to the east of the driveway of number 110B Hale Road, and adjacent to that property's bin, Mr Lower said.
At the time of the accident, which he had given to police as 6.57 am, Mr Lower said the sun was rising "pretty much directly" over Hale Road, and was just over the crest of the hill, having been just coming over the crest and fairly low when he had arrived.
Mr Lower said he drove in Hale Road quite frequently and did drive directly into the sun there, which could be quite blinding and difficult to see into.
The plaintiff was born on 22 August 1971 and thus was aged 28 years.
On 7 March 2000 the plaintiff's motor driver's licence was under suspension following an accumulation of points for various offences, including speeding, although he said he was not then aware of that.
About two years earlier, or in 1998, the plaintiff agreed he had been disqualified from holding a licence for a period as a result of a conviction for reckless driving, which he said involved travelling at an excessive speed on a freeway.
On the day of the accident the plaintiff said that he had earlier stopped to purchase a newspaper and also a drink, which he intended to consume at work.
It had then been necessary for him to stop at a red traffic light at the intersection of Weaponess Road and Hale Road, he said, by which time it was "roughly" 6.45 am.
On the traffic light changing the plaintiff said he drove off in first gear, changing into second gear as he commonly did at 10‑15 km/h, and as he completed the turn east into Hale Road and straightened up.
The plaintiff was then asked:
"As you straightened up in Hale Road, what were the weather conditions?---The sun was facing directly into my eyes.
Did you do anything?---I put the sun visor down in front of me to try and block the sun out.
Could you see, or did you see, any vehicle ahead of you in Hale Road as you were driving east?---No.
What lane were you in?---The left‑hand lane.
After you pulled the sun visor down did you do anything more? ---I put my left hand up to try and shade my eyes from the sun.
Were you able to do that?---No.
What effect did the sun have on you?---A blinding effect.
Did you see any vehicle ahead of you in that left‑hand lane?---No.
Was there any other traffic passing you or ahead of you that you observed?---No.
In terms of the speed that you were travelling in second gear, did you, as you straightened up, pull the sun visor down then put your hand up – did you look at your speedo?---No.
Can you tell his Honour what you did in terms of your speed after you have moved into second gear?---Held in a stationary position, more concentrating on trying to see in front.
After you put your hand up to try and block the sun, did something happen?---Yes.
What was it?---An accident. A crash.
What - - -?---After I put my hand up is the last thing I can remember happening."
The plaintiff said he had "commonly" taken this particular route, had experienced the sun in his eyes on Hale Road before and had then adopted the same expediency, had at the time a clean windscreen, had believed parking would not be permitted on Hale Road, had not seen a rubbish truck there before, and had "slowly accelerated" after turning into Hale Road.
The first defendant was born on 25 October 1960 and was thus aged 39 years at the date of the accident.
At that time he was an experienced relief truck driver with the second defendant, and his duties required him to drive a variety of vehicles, including side loading rubbish trucks used for domestic collections.
When required to do relief driving on a domestic collection run the first defendant would be provided with a street map with the perimeter of the run highlighted and also a "run sheet", on which any special instructions were set out, including the addresses of pensioners where bins would have to be collected.
A standard instruction on a run sheet was: "Do not service bins on main roads between 0730 and 0900".
The run which brought the first defendant on to Hale Road in his truck on 7 March 2000 was number 17, and he said he had perhaps done it on five or so previous occasions.
The first defendant had started work on the day at 6.00 am at the council depot in Cedric Street, Balcatta, first checking the truck, including the rear beacon and lights, he said.
He then drove to Hale Road, and as stated began collecting rubbish on the corner of Brine Place, that starting point being provided by the regular driver, as was customary, the first defendant said.
As soon as the rubbish collection began the first defendant said he operated the truck from the lefthand drive position, with the beacon and hazard lights on.
In relation to the instruction to avoid main roads between 7.30 am and 9.00 am the first defendant said that was simply commonsense as it would become too difficult to stop and start the truck which would also become a cause of interference to traffic.
After completing the run west in Hale Road and then turning and picking up bins whilst travelling east in Hale Road the first defendant said he drove his truck within about 10 metres of Stockdale Road, where he stopped to pick up a bin.
He was then about to release the handbrake, which had been put on as he was stopped on a hill, and to move off, so that he also had the footbrake on, the first defendant said, when there was a loud bang and he was flung out of his seat.
He struck his head on the roof, he said, and also injured his knee and back.
He thought the accident had occurred at about 6.45 am, he said.
Four or five other vehicles had passed him as he had driven up Hale Road, the first defendant said, but there was not a great deal of traffic on the road.
The first defendant said the sun was rising but it had not bothered him, and the truck had a large fixed visor over the windscreen.
In cross‑examination his answer to an interrogatory where he had said he had been instructed to leave the road if the sun was in his eyes was put to the first defendant, and also tendered, but he initially said no direction had in fact been given but it was commonsense to do so, and later said such an advice may have been given.
The first defendant said he had later returned to the scene and measured the distance between Weaponess Road and the crash site, which he said was 140‑150 metres.
In relation to any differences between his stated recollection at trial and a statement given to police at the scene the first defendant said he had been "stunned and in shock" as a result of the accident.
It was the case that the sun was directly in front of him, facing vehicles travelling east, as set out in the statement, the first defendant agreed.
The first defendant's initial explanation for not wearing the seatbelt fitted was that it was difficult to operate the truck with a seatbelt on and also "by law, we are permitted to operate as long as we're doing under 25 kilometres".
He further said in relation to the former that buttons, levers, the computer control for the paddle, and monitors were so arranged that when in the lefthand drive seat with the seatbelt on it was difficult to operate the truck, whilst the belt dragged across the shoulder and neck "… you know, we pick up 1,100 bins a day; you know, stopping and starting, stopping and starting and, I mean, the seatbelt's pulling on your shoulder and your neck all day".
The first defendant said all the second defendant's drivers "did the same thing".
As to the latter he said he did not have any recollection of being instructed by the second defendant to wear a seatbelt, other than when "travelling any great distance" although he "may" have seen a notice which advised the second defendant's employees it was an offence not to wear a seatbelt and directed the wearing of the same, his position being that he was exempt.
Apart from Mr Lower the first person at the accident scene was Mr Fenner, the second defendant's domestic section leading hand/supervisor.
He said he received a radio call from the first defendant "roughly around about" 7.00 am to 7.10 am, and arrived at the scene 8‑10 minutes later, and before any emergency service, parking behind the truck.
Mr Fenner said the truck had all its hazard lights and rear beacon light operating.
The truck had been approximately 200 millimetres from the kerb, in the left lane, which he later measured as being 3.7 metres in width, Mr Fenner said, the truck being 2.4 metres wide.
He had travelled from Weaponess Road east into Hale Road, Mr Fenner said, and had been able to see the truck when he turned, although he had utilised his sun visor as the sun "was a bit on the glary side" so that his vision would otherwise have been impaired.
Mr Fenner said he drove east along Hale Road on 7 March this year, also a fine day, from its western origin, at about 7.05‑7.10 am, and observed the sun rising above the road, whilst a rubbish truck when he passed it was close to the accident point.
He had experienced no difficulty whatsoever in "seeing" as he drove east, Mr Fenner said, and he had seen the truck when about 300 metres away.
No other evidence was led either by the plaintiff or the second defendant, which suggested the first defendant had been given any particular instruction in relation to the presence of the sun over Hale Road or any other road, apart from an answer to an interrogatory, said to have been given in error, something I accept.
A video made by Mr Fenner on 8 July 2003 is also in evidence, as are photographs taken by police on the day of the accident.
The plaintiff also called an investigator, Mr Robert Smith, who said he attended Hale Road on 8 March 2001 early in the morning and took some photographs, some whilst out of a vehicle, and some from within his vehicle, which he said was "highly likely" to have had a dirty windscreen.
The photographs were said to have been taken "between approximately 6.45 am and 6.55 am".
The sun had risen above Hale Road and was almost central to it, on that morning, according to Mr Smith, and he said he thought it was "quite blinding" and impaired the vision of a driver travelling east.
No record was apparently made of the precise time of each photograph, which were not numbered in accordance with the claimed sequence.
It appears from one photograph that the sun initially appeared over the crest of the southern carriageway.
The second defendant called two other employees.
The first, Mr Steadman has been the occupational health and safety coordinator for the second defendant for the last 13 years.
The second defendant was, he said, the largest in the state in terms of the number of employees.
The system of rubbish collection utilised by the second defendant was no different to any other local authority, Mr Steadman said, and although there were bi‑monthly meetings of safety officers employed by local authorities, attended also by the Main Roads Department and local government insurance services representatives, there had never been any report of any problem arising from the use of rubbish trucks on roads that were subject to a rising or setting sun.

Mr Steadman said the collision between the plaintiff and the first defendant had not resulted in any change being made by the second defendant to its mode of operation of rubbish trucks.
The requirement by the second defendant that its rubbish trucks be fitted with upper hazard lights and chevrons, and he thought also the rear beacon, was additional to the regulatory regime, Mr Steadman said.
Mr Steadman said that a rubbish truck needed to be more visible as it was frequently stopping and starting, and agreed that due to that, its size and slow rate of progress it could be said to represent a hazard for other road users.
The other employee of the second defendant called was Mr Rickman, who has been the defendants' waste collection operations supervisor for the past 13 years.
In addition to the 12 domestic trucks running daily there were four commercial rubbish trucks and two verge collection trucks operating, Mr Rickman said.
The second defendant's boundaries contained in excess of 2,200 streets to a length of 1,100 km, he said, with more than 72,000 domestic collections per week by side loading rubbish trucks.
Mr Rickman said he had never heard of any complaint about rubbish collection on an east/west aligned road resulting from the position of the sun, nor of any other accident of this kind.
A change in operations to avoid the collection of rubbish on such roads at such times would be a major disruption, he said, and the second defendant would probably have to extend its operating hours, whilst the annual passage of the sun would mean collection rounds would have to constantly change, as would collection times, with a likelihood of inconvenience to and problems with ratepayers, many people having an expectation that a truck would regularly appear at a particular time, and acting accordingly.
There was a safety issue which concerned the operation of rubbish trucks on roads, Mr Rickman agreed, and the time of day and visibility were relevant.
Mr Rickman said he had driven east in Hale Road at a time when the sun had affected his vision, but with a sun visor down he was "able to drive up there comfortably but not at the speed limit".
Finally, the plaintiff called Mr Reid, a worksafe inspector, who produced a publication "strain injuries to council workers" published at a time, he said, when trucks were operated by a driver and two "runners", which, after stating that the risk of being struck by traffic was high for workers on busy roads, set out a number of recommendations "to reduce these risks", which included the following:
"(iii)Organise collection rounds to avoid peak hour traffic on busy roads and to avoid collecting from schools or commercial premises at busy times of day. Avoid collecting from main roads at dawn or dusk, when visibility is poor.
(iv)Improve the visibility of the collection truck and workers. Large, flashing warning lights and contrasting chevrons painted on the back draw attention to the truck. Signs, such as 'Warning – vehicle stops frequently', also alert drivers to be more careful."

Plaintiff's claim against first defendant

If the first defendant was negligent then that negligence was plainly causative of the plaintiff's injuries.
The real question, however, in my view, is whether the first defendant was in fact negligent.
In that regard it is trite that each case turns on its own facts.
Further, the concept of what is "reasonable" is not immutable, and as Fleming observes "the incidence and extent of duties are liable to adjustment in the light of evolving community attitudes": the Law of Torts (1992) 8 ed 139.
Here the first defendant's vehicle was stationary, as it was lawfully entitled to be, in the kerbside lane of a two lane carriageway.
Hale Road was not a clearway.
The truck was large, bulky, relevantly white in colour, with numerous signs and warnings, and lit at the time with four brake lights, four flashing hazard lights and a revolving beacon light.
The time was nearly an hour after dawn, general visibility was good and there was not a great deal of traffic.

The first defendant was aware of the sun but was not troubled by it, and had not turned his mind to the question whether for some reason or combination of reasons a driver would not observe his truck and drive straight into the back of it.
Does that amount to an unreasonable lack of care for another, or in other words, would a reasonable person in the position of the first defendant have turned his mind to it, and in addition decided there was a risk of injury to others such that it was necessary for him to move off Hale Road?
The first and last questions at least ought in my view be answered in the negative.
A number of authorities were put forward by the plaintiff in support of his argument that the first defendant was negligent.
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 is of course the decision of the High Court in which many of the present rules of causation are set out.
It is, however, the factual situation there on which the plaintiff seeks to rely, the Court making a finding of negligence against the driver of a parked truck collided with by a car driven by an intoxicated driver.
The truck was parked at about 1.00 am in the middle of a six‑lane road in Adelaide, straddling the centre line so that about half its width protruded into the lane in which the other driver's vehicle was travelling.
Although the truck had its parking and hazard lights illuminated the trial Judge had found that the truck driver should have appreciated that his vehicle might in some circumstances constitute a danger to oncoming vehicles, and the High Court restored that finding.
An apportionment of 70 per cent contributory negligence against the car driver was also restored.
However, the true nature of the act of parking the truck in the road there appears from the following passage in the judgment of Deane J (520‑521):
"There could be circumstances in which the parking and leaving of a truck at night in a position where it significantly obstructs each of the two centre lanes of a six‑lane city road would not constitute a breach of the duty of care owed to other users of the road. An example of such circumstances is a case where the road had badly subsided and a well‑lit truck constituted a temporary means of lessening the risk of injury to other road users. It is not suggested in the present case, however, that there was any legitimate reason for the truck to be left where it was. Notwithstanding the lights upon it, it represented a hazard to other motorists. In leaving it (without justifying reason) in what White J in the Full Court accurately described as an 'extraordinary position in the middle' of the roadway where it 'obstructed not only one half of the right lane for south‑bound traffic in which the [appellant] was travelling but also one half of the right lane for north‑bound traffic', the second respondent was guilty of a breach of the duty of care which he owed to other road users."
In White v Humphries (1984) 1 MVR 426, also cited, a driver who continued to drive for 130 metres on the Coalfields Highway at moderate speed when he was "totally blinded by the sun" was held by Burt CJ (Wallace J agreeing) to have been wholly responsible for a collision with a vehicle which had stopped because of the sun, and partly responsible for a further collision that occurred after he left the scene with his vehicle obstructing the road, although uninjured, when walking down the road and warning others would have prevented the second collision.
The plaintiff also relied on Maiolo v Hansen (1989) 10 MVR 200 where, on a country road facing an early morning sun, the driver of a broken down truck which had already been struck by one following vehicle was held to be equally responsible with the driver of another vehicle which collided with the truck, as a result of his failure to warn oncoming vehicles following the first collision.
The trial Judge had found that the truck's momentum was such that it could have been parked where it was not a hazard and that had constituted a further failing on the part of the truck driver.
See also Bomford v Commissioner of Main Roads (2000) 32 MVR 201, 205, 206.
The above authorities do not in my view assist the plaintiff here.
The probable time of the accident was about 7.00 am, or a little before, given what Mr Lower said to the police and Mr Fenner's evidence.
Although it would have been possible to map the path of the sun relative to the road that was not done, whilst the expressions of opinion given are necessarily imprecise.
Mr Lower and the first defendant referred respectively to the sun being directly over Hale Road, and in front of the first defendant, and I would proceed on that general basis.
The sun did therefore present an impediment to vision, although I accept the evidence of the first defendant that from the perspective of the cabin of his truck it had not bothered him.
I do not feel able to find that the effect of the sun on the plaintiff, although seated in a much lower vehicle with a large windscreen, was such as to make it impossible, as opposed to merely difficult, for him to see ahead, as alleged by him and I do not find that it was so severe.
In that regard the photographs taken through Mr Smith's dirty windscreen are only of limited assistance, and I would not rely on his opinion.
The likely explanation for the plaintiff's failure to avoid the collision, in my view, is a combination of difficulty of vision and a gross lack of vigilance, in circumstances where the plaintiff's speed did increase, as he conceded, where he had an erroneous belief that there could not lawfully be any stationary vehicles in the left lane, and where he simply failed to keep a proper lookout, although one was obviously required by the conditions.
The plaintiff's failure to take adequate care for his own safety was thus the cause of the collision and its consequences.
I should add that had I found the sun had in fact prevented the plaintiff from seeing ahead that would not affect my conclusion that the first defendant was not in breach of duty.
I accordingly find that the first defendant is not liable to the plaintiff for the injuries unfortunately suffered by him.

Plaintiff's claim against second defendant

The allegation of breach of duty made against the second defendant includes allegations of failures to operate a system of rubbish collection that kept the first defendant off Hale Road when the sun was rising and to instruct him not to allow his truck to cause an obstruction to the road.
In sending its rubbish trucks on to roads, including that of the first defendant on to Hale Road, the second defendant was of course discharging another duty, to collect rubbish within its municipal boundaries.
Although the significance of that ought not be overstated in a case like the present, involving as it does personal injury, and where a duty of care undoubtedly existed, it is not entirely irrelevant: see Sullivan v Moody (2001) 207 CLR 562, 582.
The need to ensure a truck was visible from the rear had been addressed by the second defendant, in a manner that substantially exceeded regulatory requirements.
I accept the evidence of Mr Steadman that there had been no instance of any difficulty arising from the operation of a rubbish truck on a road, affected by a rising or setting sun, known to him at least, or any report of the same at a local authority safety meeting.
I also accept the evidence of Mr Rickman to like effect, as well as that as to the difficulties of changes to collection rounds.
The second defendant did not apparently regard Hale Road as a "main" road, and hence subject to the need for any special dispensation for its rubbish trucks, and that was not challenged.
Nor was the absence of any parking restriction on the road.
The test of reasonable foreseeability does not relate to the likelihood of an event occurring, "save that we are implicitly asserting that the risk is not one that is far‑fetched or fanciful": Wyong Shire Council v Shirt (1980) 146 CLR 40, 47 per Mason J.
It could thus probably be said to be the case that it was foreseeable that an errant motorist might drive into the back of a rubbish truck.
That does not, however, foreclose the issue of whether there was a breach of duty.
As to that question, Mason J further said in Shirt (47-48):
"In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position."
Since Shirt another factor has emerged in determining whether anything further ought be required of a reasonable person in the position of the defendant.
As to that, in Waverley Municipal Council v Swain [2003] NSWCA 61; Spigelman CJ (with whom Handley and Ipp JJA agreed) said:
"114 As quoted above, Bus v Sydney County Council ((1989) 167 CLR 78) identified a change in the law, between (Sydney County Council v Dell'Oro (1974) 132 CLR 97) in 1972 and 1986 to the effect that the law has 'progressed' by giving greater weight to the possibility of inappropriate conduct on the part of others. It now appears possible to identify a change in the law in the other direction ie greater weight is being given to the proposition that people will take reasonable care for their own safety. (See in addition to the observations in Romeo and Multi‑Sport quoted above, Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512 esp at [163] and [355]; Richmond Valley Council v Standing [2002] NSWCA 359 at [54]-[60] per Heydon JA; RTA v McGuiness [2002] NSWCA 343 at [33] and Burwood Council v Byrnes [2002] NSWCA 343 at [33] per Handley JA; Edith Cowan University v Czatryko [2002] WASCA 334 at [29] per Murray J.)
115 Heydon JA said in Van der Sluice v Display Craft Ltd [2002] NSWCA 204 at [74]:
'The fact that the higher up a ladder one moves the more care one must take for one's own safety is one of those simple facts affecting human existence in the physical world which adults in industrialised societies have learned by the time, or indeed well before the time, they have become adults. It is a fact as fundamental, as elementary, as clear and as well know as, for example, the fact that it is dangerous to behave boisterously near pots cooking on stoves, the fact that broken glass needs to be carefully handled when picked up, the fact that rocks along the seashore can be slippery, the fact that shells in the sand of beaches can be sharp, and the fact that when moving about rubbish dumps one must bear in mind the possibility that rubbish may be lying there. These are matters which no adult need be told about and which any adult can be trusted to guard against the dangers of because it is part of the equipment of all normal adult human beings. All citizens can safely and reasonably assume that each normal adult human being acting autonomously and voluntarily will not incur unnecessary and blatantly obvious risks.' "
The reference to Romeo is of course to Romeo v Conservation Commission (NT) (1998) 192 CLR 431, and in particular to the statement of Kirby J at [123]:
"While account must be taken of the possibility of inadvertence or negligent conduct on the part of entrants, the occupier is generally entitled to assume that most entrants will take reasonable care for their own safety … Where a risk is obvious to a person exercising reasonable care for his or her own safety, the notion that the occupier must warn the entrant about that risk is neither reasonable nor just."
In Edith Cowan University v Czatryko [2002] WASCA 334, a case of alleged negligence on the part of an employer, and hence one where the more onerous duty associated with employment existed, Murray J (with whom Wallwork and Templeman JJ agreed) applied Romeo and said (p 13) that there "was no substitute for the respondent looking where he was going, and, in my view, it was not negligent for the (appellant) to rely upon him to do so".
Although the nature and content of the duty in each of those cases is not identical to that here; nonetheless the existence of the change identified in Swain is in my view undeniable.
And, as appears from the above, it is plain that had the plaintiff not shown a disregard for his own safety by driving in the manner he did, the accident would not have occurred.
This is a sad affair, but not one where it could be said in good conscience that the second defendant was required to do more than had already been done. The second defendant was thus not in breach of any duty of care owed to the plaintiff.

First defendant's claim against plaintiff

The plaintiff was undoubtedly negligent.
As to whether there was contributory negligence it is admitted by the first defendant that he was not at the time of the accident wearing the seatbelt fitted to the vehicle for the purpose.
The first defendant was I find required by law to wear a seatbelt, and had not been given any instruction by the second defendant to the contrary.
I accept that due to the layout of the cabin and positioning of the controls the vehicle was awkward to operate from the lefthand drive position when the seatbelt was worn.
That does not, however, excuse the first defendant from the failure, and in my view by not wearing the seatbelt the first defendant failed to take reasonable care for his own safety.
In Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 the Court (Gibbs CJ, Mason, Wilson, Brennan and Deane JJ) laid down the approach to be followed (494):
"The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man (Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42-49 and Broadhurst v Millman [1976] VR 208 at 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance."
Here the first defendant was driving a very large vehicle at very low speeds, with frequent stops, and his lapse was a relatively minor one, and less than would be the case with a driver of an ordinary light passenger vehicle such as a sedan.
As a result of the collision the first defendant was thrown out of his seat, hitting his head on the roof and apparently injuring his knee and back.
No medical evidence was, however, put before me as to the extent of any such injuries, or as to what the position might have been had the first defendant been appropriately restrained.

I am not therefore in a position to assess the extent to which the first defendant's damages ought be reduced (if at all) by reason of his negligence, and, subject to hearing from the parties, would reserve the further determination of the question to the judge who assesses the first defendant's damage.

Conclusion

For the reasons given neither defendant is liable to the plaintiff.
The plaintiff is liable to the first defendant and I will hear further from the parties as to the further determination of the issue of contributory negligence.