Ivica Tomicic v David Maxwell Clappison [1997] ACTSC 28 (28 April 1997)

SUPREME COURT OF THE ACT

IVICA TOMICIC v. DAVID MAXWELL CLAPPISON
No. SCA 111 of
1995
Number of pages - 7
Appeal - Expert evidence

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

MILES CJ, HIGGINS AND MADGWICK JJ

CATCHWORDS

Appeal - appeal against decision of Master to dismiss the plaintiff's claim for damages for personal injury against the defendant - motor vehicle accident - whether Master had misused his advantage in seeing and hearing witnesses or had ignored or misconstrued uncontroverted facts.

Expert evidence - expert opinion - velocity of defendant's vehicle - skid marks.

Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167

Devries v Australian National Railways Commission [1992] HCA 41; (1993) 177 CLR 472

HEARING

CANBERRA, 5 February 1997 (hearing), 28 April 1997 (decision)

28:4:1997

Counsel for the Appellant: Mr G Lunney

Instructing solicitors: Vandenberg Reid

Counsel for the Respondent: Mr C Branson QC with Mr M Scott

Instructing solicitors: Abbott Tout Harper & Blain

ORDER

THE COURT ORDERS THAT:

The appeal be dismissed with costs.

DECISION

MILES CJ

I agree with the judgment of Higgins J and have nothing to add.

HIGGINS AND MADGWICK JJ

This is an appeal against a decision of Master Hogan made 8 December 1995, dismissing the appellant/plaintiff's claim for damages for personal injury against the respondent/defendant. Judgment was entered accordingly with costs.

The material facts

The plaintiff's claim arose out of a motor vehicle accident which occurred on 30 July 1992. At the time of the accident the plaintiff was driving a Holden station wagon which was towing a trailer containing his tools and equipment.

At the intersection of the Monaro Highway and Johnston Drive near Calwell, a Canberra suburb, the plaintiff attempted a right hand turn. Unfortunately, in the process, the rear left side of his vehicle and the trailer were struck violently by an on-coming semi-trailer driven by the defendant. As a consequence, the plaintiff sustained serious injuries leading to continuing disabilities. Indeed, the Master assessed damages, subject to issues of liability, at $260,500.00.

The nature of the scene of the collision was, of course, significant. The physical description of the area, as Mr Vaughan, a professional engineer, expressed it in evidence before the Master was, Appeal Book 346-7,

The crash occurred at the intersection of the Monaro Highway and Johnson Drive in Calwell, ACT. The intersection was in hilly country on a curved section of the Monaro Highway where Johnson Drive formed an angled T intersection on the western side of the Highway. For south bound traffic, the intersection was just beyond the bottom of a hill, where the gradient once again started to increase. The speed limit on the Monaro Highway was 100 km/h. At the intersection, the Monaro Highway had three through lanes, with two marked lanes for south bound travel and one lane for north bound travel ... . Each carriageway was edge marked and had broken lane separation lines. The good sight distance to the intersection was about 300m for north bound traffic and about 300m for south bound traffic. The crash site was an extensively channelised intersection with median strips on both approaches on the Monaro Highway, and on Johnson Drive. The south bound traffic on the Monaro Highway had a right turn lane which incorporated an island for guiding the traffic turning right into Johnson Drive, and also for guiding traffic turning right out of Johnson drive onto the Highway. The island on the Highway separated right turning south bound traffic from the south bound traffic on the two through lanes. Approaching the intersection, north bound traffic had a left run lane which was separated by an island from the through lane. The islands and median strip sections were all equipped with concrete, mountable kerbs. The pavement at the time of the crash was dry bitumen. The weather was clear. The Monaro Highway at the crash site had a grade of about 1% just before the point of impact, and about 2% when about 50m north of the intersection (that is, the gradients were slight at the intersection). The gradient was uphill for north bound traffic, and downhill for south bound traffic. The section of Highway concerned was on a curve with multiple, transition radii, but with an equivalent radius of about 500m. From about 50m south to about 50m north of the intersection, the curve "flattened" to a radius of about 600m. The north bound lane had a superelevation (or banking of the curve) of about 1%. The radius of curvature and superelevation were quite suitable for a speed limit of 100km/h.

There was also an aerial photograph of the area.

The defendant's vehicle was a 1990 Kenworth prime mover towing a semi-trailer. The trailer had three axles. They were "super singles". That is, each axle had single wheels on each side rather than double wheels, though the two drive axles on the prime mover had double wheels.

The relevance of the configuration of the wheels of the defendant's vehicle lay in the fact that as he approached the collision scene, the defendant's vehicle was followed by another semi-trailer. It was unladen and its trailer wheels were double-bogeys, that is, double wheels on each end of each axle. It should, therefore, have been possible to distinguish between skid marks left by the "super singles" and skid marks left by a double-bogey.

It was the evidence of the plaintiff that, at about 4.00pm on 30 July 1992, he was driving in a southerly direction on the Monaro Highway intending to turn right into Johnson Drive. At the intersection, he entered the right hand turning lane. He said that he stopped at the end of the lane before crossing over the single north bound lane of the Monaro Highway. He observed the defendant's truck travelling towards him as he approached the intersection.

There was at least half a kilometre visibility between the two vehicles as they approached the intersection. At the intersection, there was 350m visibility to the south. The plaintiff estimated that the defendant's vehicle was 250m away when he decided to cross in front of it. He considered that he had ample time to do so. Nevertheless, the truck collided with the rear end of the station wagon and the side of the trailer it was towing.

The defendant gave evidence that he was proceeding towards the intersection at about 80km/h. When about 300m away, he observed the plaintiff's vehicle approach the intersection. Thereafter it entered the right turn lane and slowed down as if to stop. He continued to approach. When he was about 40m away, the plaintiff's vehicle, instead of coming to a complete stop, turned in front of him. He applied his brakes as hard as possible. A "J" brake had already been activated which operated only as a speed governor. Accordingly, there were two braking systems activated. The truck skidded to a halt but hit the plaintiff's vehicle and carried on some short distance through its path.

There was a further witness who gave evidence. Mr Ian Benson said that he was following the defendant's vehicle. He was driving a similar truck to the defendant's, save that his trailer had double-bogeys on its axles and his vehicle was unladen. He was catching up to the defendant's vehicle and intended, when it was safe, to pass. He estimated his own speed approaching the intersection at 90km/h. He could not begin any passing manoeuvre until past the intersection where the north bound roadway broadened out into more than one lane.

He saw the plaintiff's vehicle enter the right turn lane, slow down to about 4km/h and then, instead of stopping, turn in front of the defendant's vehicle. The front of the latter was, he estimated, then 100m away from the intersection. He observed the defendant's truck brake heavily to avoid colliding with the rear of the plaintiff's wagon. Smoke billowed from the tyres. He also braked heavily. Thus each truck might reasonably be expected to have left skid marks. He described the path of his skid as "overlapping" that of the defendant. He was not pressed to better describe what he meant by that expression.

The plaintiff alleged that the defendant was negligent by reason of travelling at excessive speed.

An allegation that the defendant was negligent by reason of failure to warn of his approach was made but rejected. That was inevitable both because visibility was so extensive and, in any event, the plaintiff did not claim that the defendant's approaching vehicle was not, at all relevant times, obvious and his view of it unobscured. There is no challenge to that finding.

On any view of it, a substantial cause of the collision must have been the plaintiff's misjudgment. However, the plaintiff's case was that excessive speed on the part of the defendant's vehicle contributed to that misjudgment. The Master rejected that contention. The plaintiff now alleges that the learned Master incorrectly rejected the allegations of excessive speed.

There was, of course, a variation between the defendant's estimate of the distance he was away from the intersection when the plaintiff's vehicle was observed to commence to turn in front of him (40m) and that given by Mr Benson (100m). The plaintiff's estimate was even more extreme (250m).

The submissions

The plaintiff's argument on appeal was that the Master erred in failing to find that the skid marks referred to in evidence were attributable to the defendant's vehicle braking. That ineluctably required a finding that, before braking, the defendant's vehicle had been travelling at excessive speed. Thus, even allowing for a degree of misjudgment on the plaintiff's part, a considerable degree of responsibility lay with the defendant. The Master should therefore have found that the defendant was liable given that the presence of the plaintiff's vehicle and the plaintiff's intention to turn right was obvious. The risk of it doing so before the defendant's vehicle passed should have been adverted to, particularly if the defendant was travelling at more than the speed limit of 100km/hr.

The defendant's argument was simple. It was open to the Master to find as he did. The determining factor was his impression of the three eye-witnesses and a conclusion based on that impression was not open to successful challenge.

It was conceded on each side that the decisions of the High Court in Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 and Devries v Australian National Railways Commission [1992] HCA 41; (1993) 177 CLR 472 would require this Court to reject any challenge to the Master's findings of fact unless persuaded that the Master had misused his advantage in seeing and hearing the witnesses or had ignored or misconstrued uncontroverted facts.

The expert evidence

That was the plaintiff's submission. It was founded upon the evidence of police investigators. Constables Mullins and Mackey reported that leading from the defendant's truck were 93m and 86m respectively of parallel skid marks. Exhibit C was a sketch drawn by Constable Mackey at the direction of Constable Mullins showing those marks. Only Constable Mullins gave evidence.

The sketch did not clearly differentiate between skid marks left by a single tyre and skid marks left by a double-bogey. The sketch shows continuous marks but whether they were literally continuous or had some intermediate gaps was not entirely clear. The position of the defendant's truck relative to those skid marks is also not shown.

All that Constable Mullins was able to say in evidence was that he had formed the opinion that the skid marks in question had been made by the defendant's vehicle. However, he conceded in cross-examination, that he carried out no inspections or made no observations, Appeal Book 87,

... to determine whether or not such skid marks as were observable were made by either Mr Clappison's vehicle or Mr Benson's vehicle or both.

Insofar as the skid marks in question were left by the defendant's vehicle, while the southern end could be accepted as representing the point at which the rear wheels of the trailer had locked, the northern end might have indicated the end point for the front wheels, if they had also locked. The truck was said to be 18m long including the trailer. The sketch merely showed the skid marks as two separated and parallel sets of parallel lines. It was not clear if they were measured from the rear wheels of the defendant's truck before it was moved or otherwise. The experts all assumed that the former was the case.

The plaintiff called several experts. The first was a member of the AFP, Constable Conway. His function was "accident reconstruction". He had attended various courses relevant to that area of concern.

Constable Conway assumed that the defendant's truck had left 93m of skid marks and that the road surface was the same on 11 March 1993 when he inspected the area as on 30 July 1992 when the accident happened. He personally observed no relevant skid marks. Constable Conway expressed the opinion in a report of 25 May 1994 prepared, not for law enforcement purposes but for the private litigation of this matter, that the starting velocity of the truck had been 115km/h.

He further reported that "Police in attendance did state that the rear tyres of the Kenworth truck were on the end of the 93 metres of skid marks". That was neither supported or denied by the evidence of Constable Mullins. It is not, on the face of it, supported or denied by Constable Mackey's sketch plan.

In cross-examination, Constable Conway had to modify his assumption that the rear of the truck was at the end of the skid marks shown on the sketch plan. He said, Appeal Book 103,

From my recollection, Constable Mullins informed me that the truck, or the rear of the truck was sitting on top of the skid marks. I don't recall whether he actually said the rear of the truck was on the end of the skid marks or not.

He further conceded, after allowance for further contingencies, that, even if the skid marks of the defendant's vehicle had been 93m, the "start speed" could have been as low as 92.5km/h (Appeal Book 123).

At the conclusion of this evidence, even if the Master was satisfied that all 93m of skid mark had been left by the rear wheels of the defendant's truck, he was not compelled to conclude that the truck had been exceeding the speed limit, though he might have needed to consider whether a speed of about 95km/h approaching the intersection was unsafe.

Another expert, Mr Harold Woodward, gave evidence for the plaintiff. He was an automotive engineering consultant. He reported that the truck velocity at commencement of wheel lock-up would have been 134.3km/h given that it left 93m of skid mark. He also concluded that if the truck was travelling at 80km/h and at 40m from the intersection noticed the plaintiff commence to make an unsafe right turn, then it would have required 58.42m to stop, exclusive of reaction time of one second during which the truck would travel 22.2m. Thus, on his evidence, even if the truck was travelling at 80km/h, it could not have been closer than 55m away when cause for an emergency stop was noticed.

However, that evidence, of itself, would not have compelled a conclusion that the approach speed of the defendant's vehicle was greater than the plaintiff was entitled to expect.

In cross-examination, Mr Woodward conceded that the plaintiff could and should have cleared the intersection, even travelling slowly, in about 1.67 seconds. If the plaintiff's estimate of the defendant's distance away at the time he chose to attempt to cross was accurate, that is, 250m, mathematical rules imply that the average speed of the truck to impact would have had to have been nearly 150km/h. Given heavy braking over the last 93m, as assumed, the start speed must have been at least 195km/h. That was, of course, an impossible scenario. At the start of the plaintiff's turn, therefore, the truck must have been closer than 250m yet more than 40m away.

Mr Woodward would not concede that the 93m of skid mark, if made by the defendant's vehicle, was consistent with a speed at commencement of as little as 92.5km/h. He disagreed with Constable Conway's evidence in that respect.

There was a further expert called, Mr Rodney Vaughan. He was qualified similarly to Mr Woodward and was called on behalf of the defendant. He concluded that, but for the length of skid marks, the description of the collision and its aftermath was consistent with Mr Benson's description of it. Given the capacity of the defendant's truck to stop, he estimated a starting speed, before braking, of between 71km/h and 88km/h. On the basis of length of skid marks, even if they terminated after 90m at point of impact, he estimated the starting speed of the truck at 102-105km/h. If they terminated beyond the point of impact, as the sketch plan indicated, then he estimated the starting speed at 97-100km/h.

For that purpose Mr Vaughan also assumed that the observed skid marks were all made by the rear wheels of the defendant's truck.

It was Mr Vaughan's opinion that, if the speed of the defendant's vehicle at the point of braking was 80-85km/h and impact speed was 25-35km/h which seemed to him consistent with the damage caused at impact, then the plaintiff's vehicle must have been more than 40m away at that point. That was consistent with Mr Woodward's opinion.

Allowing for reaction time and time for the brakes to lock the wheels, it was his view that the plaintiff's vehicle would have been observed by the defendant to commence to move across his path at a distance of about 95m from point of impact.

If that scenario represented an incontrovertible fact, it is clearly inconsistent with skid marks left after observation of an apparent emergency and application of braking systems by the defendant at a distance of about 40m away.

It is, however, entirely consistent with Mr Benson's eyewitness account, although not consistent with 93m of skid mark being left by the rear wheels of the defendant's vehicle.

The Master accurately noted the effect of each of the expert opinions offered. They each depended for an estimate of commencing speed on acceptance of the hypothesis that the entire length of skid mark found had been made by the rear wheels of the defendant's vehicle. Even then the evidence did not necessarily preclude a conclusion that the commencing velocity had been less than 100km/h though the preponderance of opinion would have favoured a higher speed.

The Master's reasoning

On that evidence it would have been open to the Master to have rejected Mr Benson's evidence as to the speed and distance from the intersection of the defendant's vehicle when the plaintiff commenced his right hand turn. However, it was also open to him to reject the fundamental premise for regarding that evidence as inconsistent with competent expert opinion. It is apparent that Mr Benson's vehicle probably left some skid marks. There was no evidence describing the skid marks found in sufficient detail to conclude that none of them was attributable to Mr Benson's vehicle. Thus it was open to the Master to accept Mr Benson's evidence, accepting that some of the skid marks sketched by Constable Mackey were probably left by Mr Benson's vehicle. Having seen and heard Mr Benson give evidence, it cannot be said that the Master was wrong to prefer his account of what he observed to the conclusions of experts who may have proceeded on an incorrect assumption.

Conclusion

It has not, therefore, been demonstrated that the Master was in error in failing to find that the allegation of excessive speed made against the defendant had been established on the balance of probabilities.

It follows that there has not been shown to have been any error in the Master's approach and findings.

We would dismiss the appeal with costs.