KOLLAS v SCURRAH [2008] NSWCA 17 (7 March 2008)

Last Updated: 10 March 2008

NEW SOUTH WALES COURT OF APPEAL

CITATION:
KOLLAS v SCURRAH [2008] NSWCA 17


FILE NUMBER(S):
40691/06

HEARING DATE(S):
5 February 2008

JUDGMENT DATE:
7 March 2008

PARTIES:
William George KOLLAS (Appellant)
Kenneth Albert SCURRAH (Respondent)

JUDGMENT OF:
Mason P Basten JA Bell JA

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 114/02

LOWER COURT JUDICIAL OFFICER:
Gibb DCJ

LOWER COURT DATE OF DECISION:
29 September 2006


COUNSEL:
B J Gross QC / D J Williams (Appellant)
D J Russell SC (Respondent)


SOLICITORS:
Garden & Montgomerie Solicitors (Appellant)
Ferguson Lawyers (Respondent)

CATCHWORDS:
TORT - Apportionment of liability - Breach of duty - Causation - Contributory Negligence - Duty of care - Moving in hazardous conditions - Moving in hazardous circumstances - Negligence - Oversize vehicle - Reasonable warning - Road Transport (Safety and Traffic Management (Road Rules) Regulation 1999 - What constitutes - Flashing lights - Hazard lights
WORDS AND PHRASES - "moving in hazardous circumstances" - "moving in hazardous conditions"

LEGISLATION CITED:
Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999
Road Transport (Vehicle Registration) Regulation 1998


CASES CITED:
State of New South Wales v Fahy [2007] HCA 20

TEXTS CITED:


DECISION:
1. The appeal is dismissed
2. The appellant is to pay the respondent’s costs



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40691/06

DC 2940/04

MASON P

BASTEN JA

BELL JA

Friday 7 March 2008

William George KOLLAS v Kenneth Albert SCURRAH

Judgment

1 MASON P: I agree with Bell JA.

2 BASTEN JA: The primary question which arises in this appeal is whether the respondent, who was towing a heavy vehicle on a freeway, should have provided additional warning to draw attention to the fact that he was travelling at a speed well below that to be expected of such a vehicle in the circumstances. The question relates to an ‘additional warning’ because it was common ground that the sign on the back of the vehicle, which read

“OVERSIZE

TOWED VEHICLE”

implicitly gave a warning that the vehicle was travelling slowly.

3 If it could be said that the respondent was negligent in that regard, it is also necessary to assess contributory negligence, which must exceed 50%, the appellant being the driver of a semitrailer, which collided with the rear of the towed vehicle in daylight hours, and in conditions of good visibility.

4 Both the circumstances and the issues have been fully explained by Bell JA and I gratefully adopt her Honour’s exposition. There is no doubt that the driver of the towed vehicle owed a duty of care to other road users, which included a duty to give reasonable warning that the vehicle was travelling slowly. In my view there was a breach of that duty in the circumstances and the breach contributed to the accident in a significant degree.

Breach of duty
5 It is not in dispute that the speed at which the respondent’s vehicle was able to travel required some warning to following vehicles. The warning sign stating that it was a “towed vehicle” undoubtedly provided a driver approaching from behind with information suggesting that the vehicle would be travelling more slowly than might be expected. The warning that the vehicle was “oversize” no doubt indicated that it would take longer to pass the vehicle than might otherwise be anticipated. That was consistent with an expectation that most other road users would need to consider overtaking the towed vehicle because of its slow speed.

6 Although the vehicle was travelling at approximately 35km/h at the time of the collision, the driver’s evidence was that he had achieved that speed slowly, after leaving the Pheasant’s Nest service area and travelling for 4.3 kilometres south. The slow rate of acceleration was due in part to the weight of the vehicle being towed and to the gradual incline of the freeway to the south of the service area. Significantly, over that distance of 4.3 kilometres, the towed vehicle did not exceed 35km/h and, when it entered the freeway was travelling at between 10 and 15km/h. The only available inference is that a large vehicle travelling at such a low speed constituted a hazard on a freeway where the speed was 110km/h for ordinary vehicles and 100km/h for other heavy vehicles including the appellant’s vehicle.

7 It is trite to say that hazardous conditions on a freeway require advance warning to drivers. If the hazard is fixed, the warning may be given by signs when the hazard is quite a distance ahead. When the hazard constitutes a slow moving vehicle, use of hazard lights or a yellow flashing beacon are common. Road maintenance vehicles, road construction vehicles, mowers on grass verges, graders on gravel roads and break down vehicles provide well-known examples. Such lights, whether or not they can be seen at a greater distance than a sign, provide unequivocal notice of a hazard on or near the carriageway. They are often used in conjunction with a sign; they signal a warning to an inadvertent driver.

8 As Bell JA notes at [57]-[59], the appellant gave evidence that he had seen tow trucks displaying flashing lights; Sergeant Kane, who attended the accident, also gave evidence that he had seen vehicles under tow with hazard lights activated. Sergeant Kane stated that the unusually slow speed of the towed vehicle was a contributing factor and, at least by implication, suggested that hazard lights or a flashing yellow light might have been an appropriate warning device.

9 As explained by Bell JA at [64], the Road Transport (Vehicle Registration) Regulation 1998 (NSW) (“the Vehicle Registration Regulation”), Schedule 4, expressly envisages that tow trucks and vehicles exceeding regulation length “may be fitted with a light or lights, at least one of which must be mounted on top of the vehicle, capable of displaying a flashing or rotating light”: cl 123(4). Other vehicles dealt with in sub-cl (4) include emergency vehicles, including ambulances and motor breakdown service vehicles, milk delivery vehicles and school buses which stop frequently. Sub-regulation (7) further states:

“The light from any such light mounted on the top of the vehicle must be visible in normal sunlight from a distance of at least 200 m to a driver approaching that vehicle from any direction.”

10 Regulation 55 in the Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999 (NSW) (“the Road Rules Regulation”) is formulated as a prohibition which requires that such flashing lights or hazard lights be used only where the vehicle is “standing in a hazardous position” or “moving in hazardous circumstances”: reg 55(d)(i) at [62] below. The implication that they should be used in such circumstances no doubt leaves an assessment of need to the discretion of the driver.

11 In relation to hazard lights, the same regulation requires that they not be used unless the vehicle is standing in a hazardous position or “moving in hazardous conditions”. The change in language is unlikely to be significant, but the trial judge took the view that “hazardous conditions” was a phrase which referred to factors such as “road surface (condition), weather, and climatic conditions affecting visibility, or external features that affect the control of vehicles, such as a concealed gaps [sic], or obstacles, or hazards; or factors that restrict manoeuvrability, such as narrow, steep or treacherous carriageway”: Judgment, p 32. Her Honour took the view that “circumstances” referred “more to factors related to traffic such as congestion; speed and volume of passing or involved traffic; and features of the vehicles involved, such as weight or defect”. In any event, her Honour was prepared to consider the question on the basis that the terms were interchangeable, but held that neither phrase embraced “a very large, and obviously slow moving, vehicle”: Judgment, p 33.

12 With respect, I cannot accept that conclusion. Regulation 55, read with the standards set out in Sch 4, cl 123 of the Vehicle Registration Regulation, is concerned with the circumstances in which a hazard light or flashing beacon may be used. It is clear from the other parts of reg 55 that the hazard with respect to which warning should be given arises from the use of the vehicle. Thus, flashing lights may be displayed by an ambulance, police vehicle and other emergency or rescue vehicles when “being used for urgent purposes”, or when a vehicle is being used “to escort” an oversized vehicle or when a vehicle is being used “for law enforcement purposes”. A vehicle which is in a “hazardous position” may use a flashing light because of that position, without regard to circumstances or conditions. Flashing lights may be used on a bus which is moving in hazardous conditions, or while stopped for passengers. School buses which stop frequently may be seen daily with flashing yellow lights. Garbage trucks which stop frequently may carry flashing yellow lights. There is no reason to read the regulation in a restrictive fashion. If a vehicle is creating a hazardous situation, because it is moving slowly (or stopping frequently) it may, and in some cases it would seem must, display a flashing or rotating light visible from 200 metres. Other vehicles, including emergency vehicles and law enforcement vehicles, use flashing lights when travelling at high speed.

13 The purpose of the prohibition in the regulations is to ensure that flashing lights are not used in inappropriate circumstances. However, the prohibition should not be read so as to prevent the appropriate use of flashing lights in situations where a vehicle creates a hazard on the roadway.

14 Further, the Vehicle Registration and Road Rules Regulations provide support for the view that flashing yellow lights are widely recognised as a primary means of warning road users as to hazards. They thus provide support for the proposition that a large vehicle travelling at an unexpectedly slow speed on a freeway should reasonably use flashing hazard lights or a rotating yellow beacon, to warn other road users of the hazardous situation.

15 Once it is accepted, as it should be, that some form of flashing warning light was a reasonable response to the hazard created by the large truck under tow, it is necessary to consider whether such a response was in any sense disproportionate to the circumstances, either by way of inconvenience or cost. However, there was nothing in the evidence to suggest that that was so. Accordingly, I would conclude that the respondent was in breach of his duty to other road users, including the appellant, in driving the vehicle at low speed on a moderately busy freeway, without flashing warning lights.

Causation
16 The trial judge held that even had a flashing yellow light or hazard lights been in operation, “the evidence is clear and simple that they would have made no difference”: Judgment, p 29. The first reason given was that the appellant had stated in evidence that he had not noticed the ‘oversize towed vehicle’ sign and accordingly would not have noticed flashing hazard lights. Secondly, her Honour held that such hazard lights “would not have been visible before the point at which the plaintiff had seen the defendant’s vehicle in any event”. Her Honour’s reasoning concluded:

“Any such lights, if illuminated or activated, would have been lower, smaller and less obvious than the yellow warning sign actually present; and correspondingly less effective in the circumstances. They could have added nothing. It defies common sense as well as evidence to find that a driver who did not see a towed freightliner and trailer until he was 150 m [away] and completely failed to see a very large warning sign at any point, despite literally driving straight into its rear, would have observed and responded to small and low flickering, hazard lights.”

17 One hesitates to defy commonsense and the evidence, but I am not persuaded that a contrary conclusion in the present circumstances does so. The purpose of hazard lights, and a flashing yellow beacon, is to draw attention to that which otherwise might be overlooked. Further, I would place little weight on the appellant’s concession that he would not have noticed hazard lights, when taken out of context. There is no doubt that he did notice the respondent’s vehicle: the question is whether, accepting that he failed to take reasonable care for his own safety, an additional warning might have drawn his attention earlier to its slow speed. If her Honour’s description of hazard lights were accurate, I would conclude that something more was required, namely a yellow flashing or rotating beacon on top of the respondent’s vehicle and visible to traffic approaching from the rear.

18 Given that the very purpose of such a flashing yellow warning light would be to alert drivers to the fact that the vehicle was travelling at an exceptionally slow speed, I would infer that such a light, visible in accordance with clause 123(7) of Schedule 4 to the Vehicle Registration Regulation, from 200 metres, would have alerted the appellant to the risk he was facing at an earlier stage and in sufficient time to allow him to take additional steps to avoid the collision. The fact that the front right corner of his truck clipped the left rear corner of the trailer in front, suggests that he was indeed trying to take evasive action by moving onto the shoulder to avoid the vehicle, when he no longer had time to slow down safely. Because he had suffered a degree of amnesia in relation to the circumstances surrounding the accident, one cannot be sure what his reaction would have been at an earlier stage if he had seen a flashing yellow light. However, I find it more probable than not that he would have taken effective evasive steps in time. There was no suggestion that he was other than a competent and experienced truck driver.

Contributory negligence
19 There can be little doubt that the appellant must bear the greater portion of responsibility for the accident. However, once it is accepted that there was a breach of duty in failing to fit a yellow flashing light to the slow moving vehicle, and that such a light would probably have drawn the appellant’s attention to the hazard caused by the vehicle, the respondent should also bear a significant proportion of the responsibility for the accident. Given the circumstances, I would apportion liability by a finding of 75% contributory negligence.

Conclusion
20 Having found for the respondent on the question of liability, her Honour stated that this was “not a case in which it is appropriate to assess damages”: Judgment, p 41. No explanation was given for that statement, but at least implicitly it recognises that, as a matter of general practice, it is appropriate for a trial judge to assess damages, having heard the relevant evidence, in case there be error in the finding on liability.

21 No doubt there are significant time pressures which militate against the assessment of damages in a case where it appears to the trial judge to be unnecessary. However, as this Court has said over many years, a trial judge who has heard the medical and other evidence with respect to the injuries suffered and the loss or damage incurred, should make an assessment, against the possibility that the finding on liability may be overturned. Where that does not occur, the parties will be put to the expense of a further hearing to assess damages, with the inevitable duplication in relation to costs which will be incurred. On the basis of the findings proposed above, it would be necessary to remit the matter to the District Court for further hearing. That is unfortunate. All that can be said in mitigation of the circumstance is that each party will be able to protect itself as to further costs by making an appropriate offer (if that has not already been done), taking into account the degree of contributory negligence. It may be hoped that some agreement will be possible as to damages so that a further hearing will be avoided. Nevertheless, this Court must make orders which will provide for a further hearing.

22 I would propose the following orders:

(1) Allow the appeal and set aside orders 1 and 2 made in the District Court on 29 September 2006 giving judgment with costs for the respondent.

(2) In lieu thereof order that there be a judgment for the plaintiff in the District Court on the question of liability together with a finding that the plaintiff was contributorily negligent to the extent of 75%.

(3) Remit the matter to the District Court for an assessment of damages and for orders as to the costs of the first trial and the further hearing.

(4) Order the respondent to pay the appellant’s costs of the appeal.

(5) Grant the respondent a certificate under the Suitors’ Fund Act 1951 (NSW).

23 BELL JA: The appellant was injured as the result of a collision between the front of the heavy vehicle, which he was driving (a Freightliner prime mover with an articulated curtain-sided trailer) and the rear of a combination driven by the respondent (a Scania heavy salvage tow-truck with a heavy rigid tip truck and dog trailer in tow). The two vehicles were travelling south on the Hume highway in Lane 1 (the nearside lane). The respondent’s vehicle was travelling at about 35 km/h at the time of the collision.

24 The appellant brought an action against the respondent in the District Court claiming damages for negligence. His case was put on three bases; the rigid tip truck and dog trailer should not have been jointly towed, the respondent’s vehicle should have been driven as far off the main carriageway as possible (there was a wide sealed shoulder adjacent to Lane 1), and hazard lights and/or flashing emergency lights on the respondent’s vehicle should have been activated to alert following traffic to its slow speed.

25 The appellant failed at trial. The Judge found that the respondent was not negligent and that none of the matters particularised as negligent had been the cause of the collision. The appellant contends that the Judge did not approach the determination of negligence in a principled way and he challenges a number of the Judge’s findings of fact.

26 On appeal the appellant confined his case in negligence to the claim that the hazard lights or flashing emergency lights should have been activated on the respondent’s vehicle to alert following traffic that it was travelling very slowly, a fact which may not have been apparent to a driver approaching from a distance.

Factual background
27 On the morning of 2 March 2001 a Boral rigid tip truck with a dog trailer attached to it broke down at the Mobil Service Station at Pheasant’s Nest, on the Hume Highway south of Sydney. The truck and trailer were both laden with sand. The respondent attended the service centre to tow the disabled combination to Mittagong. Mittagong is approximately 30 kms south of the service centre. The respondent attached his tow-truck to the rigid truck. He ran a power lead to the dog trailer, which connected the blinkers, stop lights and tail lights of the tow-truck to the trailer. He attached a yellow reflective sign to the rear of the dog trailer. The sign was 1310mm wide and 806mm high and contained the words “OVERSIZE” in black lettering 200mm high and “TOWED VEHICLE” in black lettering 159mm high (the sign). The respondent’s tow-truck with the rigid truck and dog trailer in tow was 33m long (references to the respondent’s vehicle are to the tow-truck with the two vehicles in tow).

28 The collision occurred at a point about 4.3 kilometres south of Pheasant’s Nest near the Avon Dam Road interchange at Bargo (the Bargo exit). The Hume Highway between Pheasant’s Nest and the Bargo exit consisted of two lanes for southbound traffic separated from two lanes for northbound traffic by a wide median strip covered with foliage. The speed limit for ordinary vehicles was 110 km/h. Heavy vehicles such as the appellant’s vehicle were subject to a limit of 100 km/h. The speed limit that applied to the respondent was 80 km/h because he had a vehicle under tow.

29 By the time the respondent’s vehicle left the access lane from the service centre and joined the highway it was travelling at about 10 to 15 km/h. The highway was subject to a slight incline from the service centre to the Bargo exit. The respondent’s vehicle weighed around 70 tonnes, this and the gradient made it necessary for him to increase speed gradually. At the point of the collision the respondent was travelling at about 35 km/h. The Judge accepted that this was the fastest speed the respondent had been able to achieve in the circumstances.

30 The collision occurred at about 9.10am.

31 The respondent first became aware of the collision when he felt a jarring sensation and looked in the mirror and saw the trailer on its side with sand coming off it. He applied his brakes and stopped within a short interval. When he alighted from his tow-truck he saw that the rigid truck was upright but the dog trailer had rolled over to the left and was lying on its side.

32 Sergeant Kane of the Mittagong Highway Patrol attended the accident. He observed damage to the front offside of the appellant’s prime mover and to the left rear corner of the dog trailer. He measured skid marks on the surface of Lane 1. These consisted of two sets of lines running north south and measuring 14m. Sergeant Kane assumed that the marks had been made by the appellant’s vehicle since the respondent had not applied his brakes prior to the collision. In his opinion the marks were consistent with having been deposited by the dual rear wheels of the appellant’s prime mover when the appellant applied the brakes.

33 Approximately 4.3 kilometres south of the Pheasant’s Nest service centre the Bargo exit lane opens to the left of Lane 1 at an angle of about 30 degrees. White painted road markings separate the exit lane from the highway and can be seen in the photographs attached to the Austrace Report (Blue 331). Beyond the Bargo exit, about 4.6 kilometres from the Pheasant’s Nest service centre, there is an overpass across the highway. Sergeant Kane put the point of the collision as 350m north of the overpass. The skid marks ended at a point that was approximately in line with the apex of the V shaped road markings at the commencement of the Bargo exit. The point of impact was 5m south of this position.

34 The point of impact described by Sergeant Kane, and which is visible in the recording taken by a television news cameraman from a helicopter, shows that the appellant’s vehicle had passed beyond the marked point of commencement of the Bargo exit. The highway is straight for a stretch of 700m before the Bargo exit.

35 There were at least two witnesses to the collision. Statements made by each were in evidence. Mr Hackshall, who was travelling about 50 metres behind the appellant’s vehicle told the police at the scene that, “when near the turnoff to Bargo, I saw a truck veer to the left as if he was going to take the exit. Suddenly he veered back to the right. It wasn’t a gradual move. It was sharp move to the right.” (Black 220.F-220.G-H)

36 Elizabeth Ross was driving a Jeep Cherokee south on the highway at the time. She made a statement on 27 March 2003, which was tendered in the respondent’s case (exhibit “7”, Blue 11-14). Her account of the collision was as follows:

“About 8.45am that morning, I was about 20 minutes north of Bowral at Bargo and I believe that I was travelling in the nearside lane, that is the lane closest to the left of the road. I was travelling at a speed of about 110 kph and I had it on cruise control. The traffic was light at that part of the journey and the weather was good and it was a clear morning. It was not raining at that time and I think the road surface was dry. From reasonably far back, I saw ahead travelling in the same lane, a large vehicle but I did not realise from that distance if in fact he was towing another vehicle. I was aware that the truck was going slow and it was travelling up a slight slope. I was not aware from that distance how many vehicles were travelling in that lane at that time.

I can recall overtaking one or two vehicles that were travelling in the same lane that I was travelling and I believe that I then remained in the second lane. I cannot recall at this point in time, what I had seen as I came closer to the truck travelling in the left lane. I cannot recall if there were a number of vehicles. I can recall that when I was slightly to the rear of a truck, that might have been a tow-truck, I should move to the right lane to allow a truck travelling in the left lane behind the other truck to allow it to overtake the truck in front as the first truck was travelling very slowly. I believe that the first truck may have been travelling less than 40 kph.

I am not sure where I was in relation to these trucks and I thought that the second truck was leaving his move to the right lane rather late. It may have been that I sensed an accident was about to happen and I drove onto the grass verge in the centre of the road and slowed down my vehicle to become stationary. Before I became stationary, I heard an extremely loud bang and there was a lot of dust and dirt thrown up on my left.” (Blue 12.N-13.Q)

37 On a conservative estimate 98 vehicles would have passed the respondent’s vehicle in the course of the journey from the service centre to the Bargo exit.

38 The respondent did not have the hazard lights turned on as he drove. He believed that it was unlawful to drive with them switched on.

The appellant’s evidence
39 The appellant gave evidence that he had been driving south on the highway in Lane 1. The road was wet. The traffic was moderate to heavy. There were vehicles in Lanes 1 and 2 southbound. Before coming to the Bargo exit he had been travelling at around 85 to 95 kph. A car travelling in front of his vehicle pulled out in order to overtake and he then saw the respondent’s vehicle. At this point the respondent’s vehicle was about 150m in front of him and he was gaining on it. He looked to see if he could overtake it, but this was not possible as there was another vehicle either passing him or close to passing him. He was aware that he was bearing down on the truck which appeared to be “barely moving”. (Black 57.D) By the time he realised this he was somewhere less than 100m behind it. He was coming up towards the Bargo turn-off and he thought that he would be able to miss the truck and go up the left-hand side of it. He applied his brakes, but he had to be careful because the road was wet and his vehicle was moderately loaded, and there was the risk of tipping the trailer over. It developed a little bit of a wobble and he so took his foot off the brake. It was at this point that he thought his best option was to go up the left-hand side. He did not recall the collision. His last memory was, “I thought I was going to miss it”. (Black 62.D)

40 In cross-examination the appellant agreed that he had an elevated view from the cab of his prime mover. He simply had not seen the respondent’s vehicle over the first 550m of straight road heading towards Bargo. He had been focussing on the vehicle in front of him, looking in his mirrors and watching the traffic around him. He had not noticed the sign on the rear of the respondent’s vehicle. He acknowledged his awareness that a large yellow sign on the back of a towed unit was a warning that the vehicle was not only under tow, but was also likely to be travelling at a lesser speed than the following traffic.

The conditions of the respondent’s permit
41 Attached to the report of Mr Joy, a traffic engineer who was called in the appellant’s case, is a copy of a publication titled “Operators Guide to Oversize Vehicle Movements for non-Agricultural Vehicles and Mobile Cranes” which appears to have been issued by the Roads and Traffic Authority. The guide records that annual permits are required for the operation of heavy tow trucks (tow-trucks with a gross combination mass of 18,000 kg or more or which become oversize when towing disabled vehicles). The respondent was the holder of a heavy tow truck permit at the date of the collision (the permit). His vehicle conformed to the conditions of the permit.

42 The conditions of the permit provided for the display of signs and the use of flashing lights:

“6. A sign must be secured in a clearly visible position at the rear of the “towed vehicle” at all times whilst it is being towed. This sign must:

· be of a durable and waterproof material of minimum dimensions 1200 m x 300 mm

· have a yellow 10 mm edge strip and a black 20 mm wide border

· have black lettering complying with Australian Standards AS 1743 and 1744 on a fluorescent yellow retroreflective background complying with Australian Standard AS1906 (Part 1 – 1990 class 1 or 2)

· display the words “TOWED VEHICLE” in at least 150 mm high Series CN lettering

Note: (This sign may be combined with the “OVERSIZE” sign outlined in condition 7.)

7. An “OVERSIZE” sign must be displayed as set out in the “Handbook for the movement of overdimension vehicles”.

Note: (This sign may be combined with the “TOWED VEHICLE” sign outlined in condition 6.)

8. All stop and direction turn indicator signal lamps fitted to the “towed vehicle” must be operational from the towing vehicle at all times or a portable light board which is operational from the towing vehicle must be secured to the rear of the “towed vehicle”. Additionally, between sunset and sunrise and at times of restricted visibility, all operational clearance, side marker and tail lamps are to be lit and in the case of a damaged/defective vehicle, emergency side lamps must be fitted and operational at intervals no greater than 6 metres.”

43 The sign attached to the respondent’s vehicle was 2.5 times the area of the sign specified in the conditions of his permit.

The expert evidence
44 The appellant’s particulars of negligence included the failure to warn sufficiently or at all of the presence of the tow-truck and its load on the motorway. (emphasis added) (Red 3.T) Mr Joy and Mr Johnston, the two traffic engineers who were retained on the appellant’s behalf, were instructed that the respondent’s vehicle did not display a warning sign. At the trial it was accepted that the sign had been attached to the rear of the respondent’s vehicle.

45 Mr Joy reported:

“In the context of the incident involving Mr Kollas, the most pertinent condition is the requirement that a heavy vehicle which is under tow must be fitted with a sign of specified type and size affixed to the rear-most end of the towed unit which indicates it is being towed, and any other relevant aspects, such as if it is over- length (in combination with the tow-truck), or over-width. (Blue 124.U-W)

...

There appears to be no specific requirement in respect of heavy towing regulations to display any warning lights (such as beacons or hazard warning lights) during daytime towing operations. There is a requirement that all stop and turn indicators on the towed vehicle be operational from the towing vehicle or a temporary light board operational from the towing vehicle be installed.

Hazard warning lights actuate all the turn signal lights simultaneously. They provide a valuable, internationally-accepted and effective means of attracting attention of other drivers to a vehicle displaying them...(Blue 125.H-K)

...

In my opinion, given the comparatively low travel speed of the tow truck and the tipper and dog trailer it was towing on a high speed freeway, it constituted a traffic hazard, which warranted the hazard warning lights of the towed vehicle being activated to draw attention of the drivers of following vehicles to it and so warn them of the hazard it posed.” (Blue 125.Q-R)

46 Mr Joy understood that the applicable rule governing the use of hazard lights was r 221 of the Australian Road Rules (the ARR). He acknowledged in cross-examination his belief that the respondent may have exposed himself to liability for breach of the rules had he driven with the hazard lights turned on. This did not alter Mr Joy’s opinion that safety required that the hazard lights be activated.

47 Mr Johnston made no reference to the need to use the hazard lights or other flashing lights in his report. He said this:

“[5.8] In my opinion, in this instance Mr Kollas was required to identify a hazard where he could see the involved vehicle for some distance, but was unable to realistically recognise it as a potential hazard until he has interpreted the large disparity in relative speeds (i.e. that he was closing on the vehicle much more rapidly than he first realised). In my experience, this would be one of a number of reasons why transport regulations require that a sign indicating “towed vehicle” and if necessary “oversize” be displayed on a fluorescent yellow sign on the rear of the trailer. It is also my experience that the rapid closure of following vehicles on slow moving vehicles (including those towing) is also the reason why such vehicles were originally prohibited from travelling on freeways. (Blue 234.R-W)”

48 In oral evidence Mr Johnston’s attention was directed to the concluding sentence of paragraph [5.28] of his report:

“[5.28] In my opinion, it is reasonable to expect the regular driver of a heavy recovery vehicle, such as Mr Scurrah, to be aware of the minimum requirements for the operation of such a vehicle in a recovery situation on a highspeed freeway. Moreover I would have expected Mr Scurrah to have been aware of the potential hazards associated with the low speed operation of his vehicle and the high differential speeds this creates with other road users. In light of these risks, I would expect it to be reasonable to assume that Mr Scurrah would have recognised the importance of meeting the minimum safety requirements at the very least and possibly have even considered the use of additional warnings for the benefit of both himself and other road users.” (Blue 243.I-O)

Mr Johnston was asked what additional warnings he had been referring to and he responded:

“The additional warnings were either the hazard lights on the truck or some sort of flashing light board which was powered from the tow vehicle.” (Black 353.J)

Mr Johnston considered that the use of additional warnings was appropriate because the highway was a high-speed environment with a high volume of traffic and because of the disparity between the speed of the traffic generally and the respondent’s vehicle.

49 Mr Johnston said that the rear of the dog trailer when viewed from behind on a straight stretch of road at a distance of about 150m would have looked much like any other vehicle. This was because the approaching driver would not have been able to see the tow-truck, which would have been blocked from view by the dog trailer. In the absence of passing vehicles Mr Johnston considered there would have been no frame of reference for the appellant to have identified the relatively slow speed of the towed combination. The only cue for the appellant in this circumstance would have been the “increasing visual size” of the rear of the trailer as he approached it.

50 Mr Johnston stated that had the respondent’s vehicle displayed a standard sign (which appears to have been a reference to a sign conforming to the minimum requirements of the permit conditions) and had a driver in the following vehicle been possessed of the minimum visual acuity required to hold a driver’s licence there would have been a sufficient distance from the position when the sign was legible to allow the driver to react and avoid collision.

51 Mr McCaffrey, a traffic engineer, was called in the respondent’s case. He considered that the sign would have been legible at a distance of at least 100m. He said this:

“At 100 metres or more, the wording on the sign would have been legible to the driver. In this distance there was ample time for him to either position his vehicle in lane two, or if this was not possible due to faster vehicles in this lane, i.e. travelling at about 20 km/h above his speed of 90 km/h, there was ample time to using moderate braking to slow his vehicle down to the same speed of the towed vehicle. (Blue 342.R-U).

...

It is difficult to comprehend how an alert driver given these road conditions, could not distinguish a slow vehicle in lane one and position himself in lane two for passing purposes. If the driver decided to remain in lane one, there would have been ample distance to brake and slow down to the speed of the slower vehicle ahead, without resorting to severe braking action.” [Blue 283.S-U]

52 In Mr McCaffrey’s opinion, the activation of the hazard lights was not required. He said that in daylight the hazard lights would have been visible for around 100-150m.

53 Hazard warning lights are defined in the ARR as follows:

“hazard warning lights means a pair of yellow direction indicator lights fitted to a vehicle under another law of this jurisdiction that display regular flashes of light at the same time, and at the same rate, as each other, but does not include warning lights fitted, under another law of this jurisdiction, to a bus used for carrying children.”

54 The flashing emergency lights to which the amended particulars refer appears to be a reference to a flashing or rotating light (referred to on occasions as a beacon) mounted on the top of the vehicle as an emergency light. These are lights which may be fitted to certain types of motor vehicle under Clause 123 of Schedule 4 to the Road Transport (Vehicle Registration) Regulation 1998 (the Registration Regulation).

55 The respondent did not have “emergency light equipment” attached to his tow-truck. It was his practice to connect the tail-lights, brake lights and “flashers” [the indicator lights] from his tow-truck to the towed vehicle. (Black 278.P) He carried a portable light board with stoplights, tail lights and blinker lights, which could be attached to a towed vehicle whose lights were inoperable.

56 The reference in Mr Johnston’s evidence to a “flashing light board which was powered from the tow vehicle” (Black 353.J) was not further explained. Mr Johnston had not known at the time of his report whether the hazard lights on the dog trailer had been connected to the respondent’s tow-truck. In the context of the examination, which the Judge sets out in her reasons, it would seem that he was referring to a portable set of lights capable of operating as hazard lights and not to a flashing light or rotating light of the kind referred to in clause 123(4) of the Registration Regulation, which I will refer to as a “flashing emergency light”.

57 The appellant had seen tow-trucks displaying flashing lights in daylight. His evidence appears to have been directed to the use of flashing emergency lights.

58 Sergeant Kane, in his report of the accident, stated that:

“Vehicle two was travelling at an unusually slow speed in a 110 km/h area. In my opinion this is a contributing factor. There is no evidence of hazard lights operation on Veh. 2 and although this vehicle had a sign on the rear of the dog trailer I still believe it contributed to the collision.” (Blue 145.R-U)

59 Sergeant Kane had seen vehicles under tow with their hazard lights activated while travelling in the daytime.

The Regulations

60 There was some confusion at the trial concerning the regulatory regime which governs the use of hazard lights. It will be recalled that Mr Joy understood that r 221 of the ARR applied.

61 The ARR are part of a national scheme of uniform road rules. They are incorporated into the law of New South Wales by clause 6 of the Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999 (the Regulation). However, by operation of clause 7 and clause 14 of Schedule 1 of the Regulation, r 221 of the ARR does not apply to the driver of any vehicle in New South Wales.

62 Clause 55 of the Regulation governs the use of lights on motor vehicles and deals with flashing lights in sub-clause (d) and hazard lights in sub-clause (e). Relevantly, the provision is in these terms:

“55 Lights on motor vehicles generally

A person must not cause or permit:

...

(d) any light permitted to be fitted to a motor vehicle or trailer by clause 123 (4) – (7) of Schedule 4 to the Road Transport (Vehicle Registration) Regulation 1998 to be lighted unless:

(i) The vehicle is standing in a hazardous position or moving in hazardous circumstances, or

(ii) the vehicle is an ambulance, police vehicle, fire fighting vehicle, mines rescue or another rescue vehicle, Red Cross vehicle or other emergency vehicle within the meaning of the Australian Road Rules that is being used for urgent purposes arising from an accident, fire or other emergency, or

(iii) the vehicle is a motor vehicle or trailer that is transporting any loading that exceeds the maximum length, width or height limits set out in Schedule 4 to the Road Transport (Vehicle Registration) Regulation 1998 or any other vehicle used to escort such vehicles and either vehicle is being used for such purposes or

(iv) the vehicle is being used by the Authority for law enforcement purposes, or

(e) any device referred to in clause 124(1) or (2) of Schedule 4 to the Road Transport (Vehicle Registration) Regulation 1998 or any hazard warning signal complying with the requirements of the ADR (3rd Ed) relating to the installation of lighting and light-signalling devices to operate:

(i) on a vehicle (other than a bus) unless the vehicle is standing in a hazardous position or moving in hazardous conditions, or

(ii) on a bus unless the bus is standing in a hazardous position or moving in hazardous conditions or while the bus is stopped to allow a person to alight from or enter it.

Maximum penalty: 20 penalty units.”

63 The reference to the ADR (Third ed) is a reference to the Australian Design Rules for Motor Vehicles and Trailers (3rd edition) as endorsed by the Australian Transport Advisory Council.

64 Clauses 123 and 124 of Schedule 4 to the Road Transport (Vehicle Registration) Regulation 1998 (the Registration Regulation) relevantly provide:

“Other lights and reflectors

123 (1) A vehicle may be fitted with any light or reflector not mentioned in this Schedule.

(2) However, unless subclause (3), (4) or (5) applies, a vehicle must not display:

(a) a light that flashes or rotates; or

(b) a light or reflector that:

(i) shows a red light to the front; or

(ii) shows a white light to the rear; or

(iii) is shaped or located in a way that reduces the effectiveness of a light or reflector that is required to be fitted to the vehicle under this Schedule; or

(iv) shows a blue light.

...

(4) Despite any requirement of a third edition ADR, the following vehicles may be fitted with a light or lights, at least one of which must be mounted on top of the vehicle, capable of displaying a flashing or rotating light:

...

(g) tow-trucks;

...

(k) vehicles exceeding the length, width and height limits of this Schedule.

...

(7) The light from any such light mounted on the top of the vehicle must be visible in normal sunlight from a distance of at least 200m to a driver approaching that vehicle from any direction.

Flashing direction indicator lights

124. (1) A motor vehicle that:

(a) is specified in clause 123(4), and

(b) has direction indicator lights that show yellow light to the front,

may be equipped with a device that will cause the direction indicator lights fitted to the front and rear and on both sides of the vehicle, and any trailer connected to the vehicle, to flash simultaneously and regularly at a rate of not less than 60 and not more than 120 flashes per minute.

(2) When all such lights fitted to a motor vehicle and trailer (if any) are flashing simultaneously, there must be an indicator that will inform the driver, by visible and audible means, that the lights are flashing.”

65 It will be noted that clause 55(d)(i), which is concerned with flashing emergency lights, speaks of moving “in hazardous circumstances” whereas clause 55(e), which is concerned with hazard lights, speaks of moving “in hazardous conditions”. The Judge considered “hazardous circumstances” to refer to factors relating to traffic such as congestion, speed and volume and features of the vehicle such as weight or defects and “hazardous conditions” to refer to factors such as road surface (condition), weather, external features affecting the control of vehicles such as concealed gaps, obstacles, or factors affecting manoeuvrability such as narrow, steep or treacherous carriageway. Nonetheless her Honour approached each formulation on the basis that it embraced “the full range of meanings that might be assigned to either”. (Red 38.T) She concluded that the respondent’s vehicle was not moving in either “hazardous circumstances” or “hazardous conditions” and was thus not exempt from the prohibition on the use of flashing emergency lights or hazard lights.

66 On the hearing of the appeal senior counsel for the appellant drew attention to Part 4 of Schedule 4 of the Registration Regulation which deals with the dimension of vehicles. Clause 73 governs the length of combinations. A combination is defined to mean a group of vehicles consisting of a motor vehicle connected to one or more vehicles. Relevantly, clause 73(1) prescribes a length of 19m for combinations such as the combination that the respondent was driving. The respondent’s vehicle exceeded the length limits of the Schedule. Counsel submitted that the exemption in clause 55(d)(iii) applied to the respondent’s vehicle and that he had not been subject to the prohibition on the use of flashing emergency lights. In a note submitted after the hearing senior counsel for the respondent accepted that the prohibition in clause 55(d) did not apply to the respondent’s vehicle.

67 Thus, contrary to the way the matter was put at trial and contrary to the Judge’s finding, the respondent was not precluded by the Regulation from the use of a flashing emergency light attached to his vehicle.

The grounds of appeal
68 The appellant relies on 17 grounds of appeal, many of which challenge factual findings. The principal challenge to the Judge’s approach to fact finding is Ground 1, which complains of her acceptance of the appellant’s evidence in light of her more general findings as to his reliability. This asserted error is said to infect a number of findings that are the subject of other grounds.

69 The factual findings that are the subject of complaint are prominent in the Judge’s consideration of causation. The anterior question is whether the appellant proved that the respondent was in breach of the duty of care, which he admittedly owed to him as a user of the highway. The Judge found that he was not. Her finding in this respect is the subject of Ground 2.

“Ground 2

Her Honour erred in

(a) failing to properly consider the negligence issue in the context of the duty of care which the Defendant owed to the foreseeable class of road users travelling from behind, including those who were inadvertent or themselves not taking reasonable care; and

(b) instead determining the issue of the Defendant’s negligence by reference to the particular manner in which her Honour found the Plaintiff reacted to the risk of collision caused by the defendant’s slow moving vehicles.”

70 The Judge delivered lengthy reasons very shortly after the completion of the trial, which substantially focus on issues of causation. The analysis of breach is brief and conclusory. Her Honour identified the duty in terms which do not suggest the error asserted in (a) above. She said that the respondent owed the appellant as a driver on the highway a duty of care, which was not reduced by any failure on the appellant’s part “to exercise care in his own case”. (Red 44.T) She went on immediately to say, “But duty is not the same as causation” and to return to the evidence on that topic. (Red 44.U). The finding that the respondent was not in breach was simply stated at the end of the reasons. (Red 47.G) There is force to the criticism which is articulated in Ground 2(b). The analysis of the appellant’s case in negligence was largely directed to issues of causation.

71 This Court is in as good a position as the trial Judge to decide whether the inference to be drawn from the facts, which are not in issue, is that the respondent was negligent. To the extent that the expert evidence bears relevantly on the determination of this question it was not suggested that the assessment of it depended on issues of credibility. In written submissions filed on the appellant’s behalf it was stated that this Court should determine the facts (save that it should not give effect to the findings that are the subject of challenge in the grounds of appeal). (Orange 4.D-F) On the hearing of the appeal counsel for the appellant submitted that the trial had miscarried such that the proper order was for a new trial (T 18.55). Counsel subsequently acknowledged that, in so far as the determination of breach was concerned, there was no reason why the matter should not be dealt with by this Court. (T 21.1-7) It is appropriate to do so.

72 The respondent owed a duty to take reasonable care for the safety of the appellant as a fellow user of the highway. The question is whether the appellant established that the reasonable response of a prudent driver towing an oversize vehicle slowly on a highway to the risk (that following vehicles may not appreciate how slowly his vehicle was travelling and be unable to avoid colliding with it) required the activation of the hazard lights and/or a flashing emergency light. In approaching this determination it is to be borne in mind that the Court is concerned with the reasonableness of the response looked at prospectively and not with hindsight: State of New South Wales v Fahy [2007] HCA 20; 81 ALJR 1021 per Gummow J and Hayne J at 1034-5 [57] – [58].

73 The appellant submits that her Honour erred in concluding that the respondent’s vehicle was not moving in “hazardous conditions” on this day. This is the subject of Ground 12. The written submissions in support of this ground do no more than assert that there were hazardous conditions and that the Judge took an unduly narrow view of the provision. (Orange 50.H – O) Since the question of whether the respondent was permitted to drive with the hazard lights turned on is relevant to the assessment of what reasonable care required, it is appropriate to consider this ground at this point.

74 In my opinion, the expression “hazardous conditions” in sub clause 55(e) is directed to external factors which would include weather; road surface; road works or obstacles on the roadway and the like and not the manner in which the vehicle is being driven. In this case there was conflicting evidence about whether the road surface was wet. The Judge did not resolve the conflict. I will assume that it was. It was daylight. It was not raining. The respondent was driving on a straight stretch of dual lane highway. Accepting that he was driving slowly in comparison with the flow of traffic and that his vehicle was oversize, I do not consider that he was moving in hazardous conditions for the purposes of clause 55(e) of the Regulation.

75 Counsel for the respondent submitted that a flashing emergency light on the tow-truck would not have been visible to following vehicles because the rigid truck and the dog trailer would have obscured it from view. (The rigid truck was raised off its front wheels by the tow-truck’s hoist). In his submission clause 123(4) of the Regulation permitted the attachment of a flashing emergency light to the tow-truck but not to the rigid truck or dog trailer. “Vehicle” is defined in clause 15 of the ARR to include “a combination”. This definition is to be read as if forming part of the Regulation. In my opinion clause 123(4) permitted the attachment of a flashing emergency light to any part of the respondent’s vehicle: sub-clause (k) refers to vehicles exceeding the length limits of Schedule 4.

76 I approach consideration of the reasonable response of the driver of a vehicle such as this on the basis that the respondent was prohibited from driving with the hazard lights activated and that he was permitted to drive with a flashing emergency light attached to the top of his vehicle. The determination of what reasonable care requires in a given case is not resolved by asking whether the omission is, or is not, prohibited by the ARR or the Regulation. However the fact that conduct is prohibited may be one factor pointing to the conclusion that reasonable care did not require it.

77 There is no minimum speed for vehicles travelling on the highway and slow vehicles travel on it from time to time. Some slow-moving vehicles such as bicycles or vintage cars are readily identifiable as such. The feature of the respondent’s vehicle, which is said to have required the activation of the hazard or flashing emergency lights is that at a distance there was nothing to alert a following driver to its slow speed (apart from the sign).

78 Counsel for the respondent submitted that the hazard lights on the dog trailer were unlikely to have any greater impact from the perspective of an approaching driver than the sign. This is because the hazard lights were located just above the mudguards in a position that was considerably less prominent than the sign. The hazard lights were visible in daylight at a distance of 100 to 150m. The sign was legible at a distance of at least 100m. In these circumstances reasonable care, it is said, did not require their activation. There is merit in that submission.

79 The particulars of negligence were amended at the end of the trial to include the failure to use flashing emergency lights. There was little attention directed to flashing emergency lights in the course of the evidence. The appellant challenges the Judge’s assessment of the evidence of Mr Joy and Mr Johnston insofar as she considered that each supported the use of the hazard lights but not flashing emergency lights (Ground 10). Mr Joy did not refer to flashing lights. The Judge’s reasons for concluding that Mr Johnston’s evidence which I have set out at [48] was directed to a portable light board and not to flashing emergency lights is compelling. (Red 40.L-41.J)

80 The appellant’s counsel submitted that Mr Kelly, the driver of the disabled rigid truck, had given evidence which was supportive of the use of flashing emergency lights. I do not read Mr Kelly’s evidence going so far. His evidence on this topic was as follows:

“Q. As an experienced truck driver, do you from time to time on the highway and have you from time to time on the highway, come across situations where you see flashing emergency lights?

A. Yes.

Q. I won’t deal with the whole range of situations where that may occur, but do you agree that to any experienced driver such as yourself, that puts you on immediate alert as to a hazardous situation where you have to be particularly careful. Is that right?

A. Yes.

Q. Do you agree that the advantage of having emergency lights – let’s forget about whatever the situation is, is that it is a very common method – it’s clear that your attention has to be directed to the situation immediately?

A. Yes.

Q. And that the source of any hazard is where the flashing lights are. Correct?

A. Yes.” (Black 300.V-Y-301.B-H)

81 As I have noted, the appellant gave evidence of his experience of seeing tow-trucks with flashing emergency lights operating in daylight. As I understand the appellant’s counsel’s submission it is that Mr Joy and Mr Johnston both supported the need for some form of flashing light because a flashing light (be it a hazard light or an flashing emergency light of the type contemplated by clause 55(d) of the Regulation) is a well recognised means of alerting road users to a danger. I approach the expert evidence on that footing and mindful that a flashing emergency light conforming to the requirements of clause 123(7) of the Registration Regulation would have been visible in daylight at a distance of 200m whereas the sign was legible at least 100m.

82 I do not find that the appellant established that the respondent was in breach of his duty of care by his failure to have a flashing emergency light on his vehicle or to activate the hazard lights. (I am of this opinion even if, contrary to the conclusion stated in [74], the Regulation did not prohibit the use of hazard lights in these conditions.) In coming to this conclusion I have regard to the following considerations.

83 The respondent’s vehicle conformed to the conditions of his permit. Those conditions required that a reflective sign be displayed on the rear of the vehicle stating that it was oversize and under tow. The sign which the respondent attached to his vehicle was 2.5 times the area of the sign that the condition of his permit required.

84 The conditions of the permit with respect to the use of flashing lights were directed to night-time driving and this was a daylight tow.

85 The road was wet but it was not raining and there was no obstacle to visibility.

86 The respondent was travelling slowly on a multi-lane highway in moderate traffic such that his vehicle was regularly being passed by vehicles that were travelling at a faster speed. This is significant because Mr Johnston’s opinion, that approaching drivers would not have a frame of reference to judge the respondent’s speed from a distance, was posited on the absence of passing traffic.

87 I do not agree that the sign did not serve to alert following traffic to the fact that the respondent’s vehicle was travelling slowly. Information that a vehicle is oversize and under tow as a matter of common sense is information suggestive of the probability that it is travelling slowly.

88 The appearance and dimensions of the sign were such as to put following drivers on notice of the features of the respondent’s vehicle that made it a potential hazard including that it was likely to be travelling at a speed considerably less than the 110km/h speed limit.

89 At a distance of 100m a driver had ample opportunity to take steps to avoid colliding with the respondent’s vehicle.

90 Taking into account these considerations I have concluded that driving on this road in the conditions on this day did not require a reasonably prudent driver do more to alert following drivers to the risk posed by reason of the vehicle’s slow speed relative to other traffic than the respondent did.

Causation
91 In case I am wrong in my conclusion that the respondent was not in breach of the duty that he owed to the appellant, I will address the Judge’s finding on causation, which is the subject of a number of the remaining grounds of appeal.

92 The Judge’s reasons for holding that the respondent’s failure to activate the hazard lights and/or to use an emergency flashing light was not in law a cause of the collision, may be summarised as follows. The appellant had been travelling on a straight stretch of highway, behind the respondent’s vehicle over a considerable distance before he first observed it. He was seated in an elevated position in the cabin of his prime mover and there was no obstacle to him seeing the back of the respondent’s vehicle over the top of the car, which was immediately in front of him. He concentrated his attention on that car and did not see the respondent’s vehicle until the car pulled out into Lane 2 to overtake it. At this point the appellant was around 150m behind the respondent’s vehicle. He appreciated that the vehicle was travelling slowly and that he was closing on it. He was familiar with signs, such as the sign which was attached to the respondent’s vehicle and he understood that a vehicle displaying such a sign was likely to be travelling slowly. He had not seen the sign. His failure to see the sign was unexplained. In these circumstances it was unlikely that he would have noticed hazard lights or a flashing light on the respondent’s vehicle.

Ground 1

“1. Her Honour, having found that the Plaintiff had:

(a) ‘fallacy of memory’;

(b) an erratic, disorganised and unreliable recollection of the events involved in the accident;

(c) a memory which was a composition of assumptions from his general practice, what he was told and what he had come to believe in his personal attempt to understand what had happened to him, and

(d) effectively no relevant recollection of the circumstances of the actual collision; and

(e) a version of events into which distortions had entered over time as he has tried to make sense of that which he cannot recall and cannot explain,

erred in then proceeding to make findings of fact which were adverse to the Plaintiff, as to how the accident happened, and which were based upon reasoning which used the evidence and instructions the Plaintiff gave as to the circumstances of the accident (including his observations, estimated distances, the sequence of events, time intervals and his thoughts prior to the accident), when such findings of fact and reasoning were inconsistent with findings (a)-(e) inclusive above.”

93 The Judge’s reasons that give rise to this ground are as follows:

“Witnesses and reliability

The evidence of witnesses must be assessed with care having regard to their reliability. Particular need for that assessment is inspired by the fallacy of memory, in the case of the plaintiff; and by lack of expertise in the case of Mr McCaw. I am, however, satisfied that all the witnesses were honest and frank and each was doing his level best to be candid with the Court.

The plaintiff says that he has a recollection of events up to a certain point, but that it cuts out before the actual collision. He admits to various gaps in his recollection of events earlier in the day, including his time of departure. That has always been so. As early as the day after the accident, the plaintiff was conscious of his gaps in his recollection, and commented on this in the hospital. On various occasions in hospital, the plaintiff professed no recollection of events, and he failed some of the post-traumatic amnesia testing. When he spoke with the police the day after the accident, he had no recollection. Sergeant Kane recorded in his notebook:

‘8.50am on the 3/3/01, I attend Liverpool District Hospital. Speak to Bill Kollas. Unable to recall what happened.’

The plaintiff is frank about these gaps in his recollection. In cross-examination he agreed that he is unsure as to when he left home; when he arrived at the Flemington Markets; when he left to start the trip on which he came to grief. To some extent he believes that he set out from Flemington because “I must have went there”, and saying that “I don’t have a recollection but I’m assuming that I was there.” He does not recall the start of the trip, nor any telephone call he had made to his parents the night before. His recollection of the actual trip is patchy at best.

He does not recall precisely where he collided with the rear of the defendant’ towed vehicle. It is implicit in the plaintiff’s evidence that he believes that the point of impact was just short of the Bargo exit, to which he says he was heading in the attempt to avoid running into the rear of the defendant’s conglomerate vehicle:

‘I was coming up towards the Bargo turn-off and there’s an off-ramp and I thought I’d be able to miss the vehicle, go up the left-hand side of it. ...

...

I thought the best option was to go up the left-hand side. ... I went to the left.

However, that is not in fact where the collision occurred. The plaintiff's vehicle had passed the mouth of the Bargo exit when he ran into the rear of the defendant’s vehicle; and the point of impact was some five metres to the south of the southern side of the Bargo exit. He was not “coming up towards the Bargo turn-off.” He missed it. He does not recall the actual collision or the contact between his vehicle and the rear of the defendant’ towed vehicle. He does not recall being trapped in his own vehicle, or the helicopter trip to the hospital and on the day of the accident he did not know that he had even been in an accident.

I find that the plaintiff’s recollection is patchy and erratic to the point of being unreliable. I find that the plaintiff has, to a large degree, pieced together what he thinks happened from a composite of what other people have told him (including what they tell him he told them) and his rather patchy recollections. I find no dishonesty in that. I accept that he was doing his best frankly to relate that which he believes he now recalls. However, I find that his memory is a composition of that which he assumes from his general practice, that which he has been told and that which over time he has come to believe in his personal attempt to understand what happened to him. Some parts of that recollection may be derived from that which he himself narrated. For example, although he does not have any actual recollection of this, his father has told him that he made a telephone call to him (his father) from the vehicle after the accident while still trapped in the vehicle.

Although, for the reasons discussed below, I do not accept that the plaintiff's recollection is reliable, I do find that he is a frank and honest witness who did his utmost to testify as to that which he believed occurred. He was a frank witness, within the confines of his unreliable recollection; and underplayed rather than exaggerated any resulting pain, suffering, restriction or incapacity, being stoic, and simply getting on with the job despite the difficulties he faces. However, he was involved in a very serious accident, in which he sustained significant injuries. I find that his recollection of the events involved in the accident is erratic, disorganised and unreliable.’” (Red 10.I-11.H)

94 In written submissions the challenge is put this way:

“Her Honour found that because of the head injuries the Plaintiff sustained, he was an unreliable witness and had no actual memory of the events of the accident. However, notwithstanding this finding, her Honour then based her reasons and findings against the Plaintiff’s case upon what the Plaintiff stated in evidence that he remembered doing. This involved her Honour treating (unconsciously) false evidence as true, and unreliable evidence as reliable. If the Plaintiff was unreliable and had no memory, it was obvious error to make findings against him by relying upon his false memory of what had occurred.” (Orange 2.L-S)

95 The appellant gave this evidence in chief:

“Q. As you came up along lane one you say you saw a truck?

A. I just – I was following the traffic; there were vehicles beside me, vehicles in front of me. A vehicle pulled out and then I’ve spotted a truck in front of me.

Q. When you say a vehicle has pulled out, where was that vehicle?

A. It was in front of me further ahead.

Q. In lane one?

A. Yes.

Q. So a vehicle pulled out in front of you and went – lane two?

A. Yes, to overtake.

Q. Do you recall what sort of vehicle that was?

A. Just a car; I’m not very sure.

Q. When that moved out of the way what did you see?

A. The rear of a truck.

Q. Approximately how far away were you from that truck?

A. About 150 metres.

Q. When you saw that truck – what could you see?

A. Just the rear – I was gaining on the rear of a truck. There was nothing that really stuck out in my mind. Yes – and that it was going slow.

Q. Was it travelling wholly within lane one?

A. Yes, only in lane one.

Q. What did you do?

A. First, I looked in my right-hand mirror to see if I could overtake. That wasn’t possible, there was another vehicle that was either passing me or close to passing me. Then I more or less looked ahead again and I’m bearing down on this thing that’s barely moving.

Q. So by the stage when you saw that vehicle barely moving, approximately how far away were you from it?

A. I was closing on it very quickly. Somewhere – less than a hundred metres to go.

Q. And when you saw it barely moving, what did you do?

A. The first thing I did – once I knew I couldn’t pass I applied my brakes as much as I could without putting my combination into a wobble, and then I thought I would be able to shoot up the left-hand side of the vehicle.

Q. What do you mean “shoot up the left-hand side of the vehicle”?

A. I was coming up towards the Bargo turn-off and there’s an off ramp and I thought I’d be able to miss the vehicle, go up the left-hand side of it.

Q. You said that you applied the brakes. What was the problem about applying the brakes there?

A. Because the road was wet and because I was moderately loaded, if you apply the brakes too hard in a sort of combination there’s a chance that you tip the trailer over. (Black 56.L – 57.N)

...

Q. When you endeavoured to take what I call the Bargo turnoff ...

HER HONOUR: It’s more the runoff, isn’t it?

A. Like an off ramp it is actually.

GROSS: I’ll call it the off ramp. When you endeavoured to take the Bargo off ramp, did that involve much of a deviation to the left?

A. A little bit, yes.

Q. You can take it that there was contact between you and the ...

OBJECTION Question not pressed.

Q. Do you remember the impact itself, or any impact between your vehicle and any other vehicle?

A. No.

Q. What is your next recollection of matters in terms of where you were – when you were next aware of where you were?

A. When I was in hospital.” (Black 57.S-58.E)

96 In cross-examination the appellant confirmed that he had an actual memory of driving along in the left-hand lane doing between 85 to 95 km/h. (Black 142.E)

97 The appellant’s evidence that he had seen the respondent’s vehicle when he was about 150 metres behind it was not challenged. He was however challenged along these lines:

“Q. Can I suggest to you that your entire memory of the events of this collision is very uncertain?

A. No.

Q. You have a very certain memory of it all, do you?

A. Not all of it.” (Black 144.H-J)

98 The cross-examination continued:

“Q. On the day of the accident, when you had your accident, you can’t remember the actual collision itself, can you?

A. What part do you mean?

Q. The contact between the two vehicles. You don’t remember that happening, do you?

A. No. The last thing I remember was thinking I missed it.

Q. You don’t remember being trapped in the vehicle, do you?

A. No.

Q. You don’t remember the helicopter trip to the hospital, do you?

A. No.

Q. So on the day of your accident you didn’t know that you’d even been in an accident. Isn’t that right? You only worked that out some time later?

A. Yes, that’s correct.

Q. Certainly on the day of the accident you didn’t know that you’d been involved in an accident with a towed vehicle that was travelling in front of you, did you?

A. No, that’s correct.

Q. Someone must have told you that later on?

A. Yes.” (Black 147.F-R)

99 The injuries that the appellant suffered in the collision were abdominal injuries, the fracture of his right leg and lacerations to his nose. The medical evidence was consistent with him suffering a period of amnesia from just before the impact. (Blue 82)

100 The Judge rejected those parts of the appellant’s evidence that related to events immediately before the collision and which were inconsistent with other evidence; that he had been heading to the Bargo exit at the time of the collision and that he had released the brakes of his vehicle in an endeavour to stop it becoming unstable. The Judge found that were some eight seconds between the time the appellant said that he saw the respondent’s vehicle and the impact. (Red 16.C) It is only if one reads the Judge’s reference to “the events involved in the accident” as embracing events eights seconds earlier, when the appellant was 150m or thereabouts behind the respondent’s vehicle, that her findings may be thought inconsistent.

101 Reading her reasons as a whole I understand the Judge to have accepted the appellant’s evidence that he had a recollection of events up to a point and that his recollection cut out before the actual collision. This is consistent with her finding that “the plaintiff does not recall the collision as such” at the commencement of the judgment (Red 8.G) and the later finding, “I find that the plaintiff has effectively no relevant recollection of the circumstances of the actual collision, believing that the accident occurred short of the Bargo exit, not just past it”. (emphasis added). (Red 39.E-F) It was open to the Judge to accept the appellant’s evidence of his observations at the time he first saw the respondent’s vehicle and to reject his evidence of the events immediately prior to the collision.

102 An alternative submission advanced by counsel for the appellant on the hearing was that the Judge’s reasons were inadequate in that they did not serve to explain why she accepted parts of the appellant’s account of events around the time of the collision given her finding that his recollection was patchy, erratic and that his evidence was unreliable. That criticism needs to be assessed in light of the issues that were live in the trial. The appellant’s evidence on matters, such as the distance at which he had first seen the respondent’s vehicle, was not the subject of challenge. Counsel for the appellant opened on the basis that the appellant had first become aware of the respondent’s vehicle and when it was about 150m ahead of him and that it was a slow-moving vehicle. (Black 14.L) Counsel went on to give an account that the appellant had attempted to take the run off [to Bargo] and that his vehicle had clipped the respondent’s vehicle. Counsel said (at Blue 15.J-P):

“There is some inconsistency of recollection expressed by the plaintiff, concerning those matters. Ultimately, he doesn’t remember the events from when he collides with the other vehicle – he doesn’t actually remember the collision itself and he doesn’t remember up to when he is in hospital. Your Honour, he suffers very severe abdominal injuries, his leg is trapped, he can’t bring to mind in effect ... It’s not a brain injury case or anything like that, your Honour.”

103 The Judge’s reasons were directed to explaining why, notwithstanding her assessment that the appellant was an honest witness, she did not accept his evidence on matters immediately preceding the collision. She may not have seen the need to explain her acceptance of those parts of his case that he had invited her to accept and which the respondent had not put in issue. Ground 1 should be rejected.

104 The balance of the 17 grounds of appeal involve challenges to the Judge’s fact finding, variously asserting failure to accord significance to matters that the appellant submits were significant or according too much significance to matters that the appellant submits did not deserve weight. They challenge the Judge’s determination of the issue of causation. None raise a ground for successful challenge to the findings, which I have summarised at paragraph [92] upon which the Judge concluded this issue against the appellant. That conclusion was well open on the facts that the Judge found. If the complaint in ground 1 were made good, in my opinion it would not alter the result. This is because the circumstances giving rise to the collision would be unexplained. All that would be known are the physical facts of the collision – taken with such inferences as may be drawn from the accounts of Mr Hackshall and Ms Ross. The front right-hand section of the cabin of the appellant’s vehicle clipped the left-hand rear side of the dog trailer at a point just beyond the opening of the left exit lane for traffic travelling to Bargo. The skid marks would suggest that the appellant first reacted to the imminent risk of collision when considerably less than 50m from the rear of the respondent’s vehicle. The respondent’s vehicle was displaying a large reflective sign, which should have been visible to the appellant at a distance of around 100m. There would not be a basis for drawing an inference as a matter of probability that had the hazard lights on the dog trailer or a flashing emergency light been activated the appellant would have taken action in sufficient time to avoid colliding with the respondent’s vehicle.

105 For these reasons I propose the following orders:

1. The appeal is dismissed;

2. The appellant is to pay the respondent’s costs.

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LAST UPDATED:
7 March 2008