A. … there was a loud bang; there was like a push and I basically lost control and ended up in the safety cables.
33 In cross-examination, she said:
"A. … it was a hard swerve, like you were going to miss something, and then that's when I noticed the front left-hand side of the truck came up into the air. What I mean by 'seesawing', like, the whole trailer seemed to do it, and then the cab just went up in the air and down over the embankment."
34 Ms Ferguson said that at the point where her vehicle stopped, the respondent's vehicle was about 20 metres further back down the road in the breakdown lane. She did not witness the accident between the appellant's and respondent's vehicle.
35 A police officer, Senior Constable Hamilton, from the Metropolitan Crash Investigation Unit who attended the scene of the accident, made observations and took measurements at the scene of the accident. Relevantly, he observed three series of skid marks on the road, in addition to the gouge marks in the breakdown lane.
36 The first series of skid marks were south of the point of collision and comprised skid marks of two vehicles. There were skid marks of one vehicle that were partly in lane 1 and partly in lane 2 (that is, there were marks of one tyre in lane 1 and marks of the other tyre in lane 2). These skid marks stopped 18 metres before the point of collision. (We will refer to these as the left hand skid marks.) A distance of 18 metres would have been travelled in about 1 second by a vehicle doing 85 km per hour. There were skid marks of a second vehicle in lane 2 (the right hand skid marks) which commenced slightly south of the left hand skid marks and stopped before those skid marks stopped. The right hand skid marks were lighter than the left hand skid marks.
37 The second series of skid marks were of one vehicle and commenced in lane 3 approximately opposite the point of collision and proceeded into the safety cables and back towards lane 3. Those skid marks were clearly the marks of Ms Ferguson's vehicle.
38 The third series of skid marks commenced to the north of the point of impact in lane 1 and ran northwards and then at an angle into the Armco barrier. Those skid marks were obviously made by the appellant's vehicle up to the point where it crashed through the Armco barrier.
39 The respondent contended that the first series of skid marks supported her Honour's assessment of Ms Ferguson's evidence that the appellant had first veered suddenly to the right, into lane 2, then corrected, and it would seem, over-corrected, resulting in his vehicle going partly into the breakdown lane and colliding with the respondent's vehicle.
40 This argument was vigorously resisted by senior counsel for the appellant, who submitted that the left hand skid marks in the first series of skid marks could not have been made by the appellant as all tyres on the truck, except the front tyres, were double sets of tyres and the skid marks were single tyre skid marks only.
41 Senior counsel for the appellant also pointed out that Senior Constable Hamilton was not able to source the skid marks. Initially, the cross-examination on this point was whether he considered "he had sufficient expertise to interpret the source of the cause of those marks having been applied to the road". Senior Constable Hamilton said: "[n]ot to give an opinion on the source or the cause, no".
42 Later in the cross-examination, senior counsel for the appellant sought Senior Constable Hamilton's agreement that the left hand skid marks appeared more likely to have been made by a sedan than a truck. However, Senior Constable Hamilton disagreed with this proposition. He did agree eventually, however, that he could not say what vehicle caused those skid marks.
43 In a further written submission, the appellant submitted that the photographic evidence confirmed that these left hand skid marks were different from the third series of skid marks which it is accepted were made by the appellant's vehicle following the collision with the respondent's vehicle. It says that those skid marks reveal the rear wheels of the appellant's vehicle and that in particular, photograph 34 shows the impression of dual tyres crossing over the fog line.
44 The Court is not convinced that the photographs have the clarity or the evidentiary weight that the appellant seeks to attribute to them. Photograph 34 appears to show a split in the skid mark as it passes over the fog line. However, the photograph does not necessarily depict the skid marks of dual wheels. It could indicate that the middle portion of a single tyre failed to grip the fog line.
45 As is well known, photographic evidence can provide a quite misleading perspective of distances, angles and widths and, whilst helpful so far as they go, provide limited assistance on matters where the detail of such things is relevant. In such a case, independent evidence may be necessary before any specific finding can be made.
46 There was no independent evidence as to whether any part of the third series of skid marks were made by dual tyres. In particular, Senior Constable Hamilton did not state in his report or his evidence that the third series of skid marks were dual tyre skid marks. The language of his report is the same when reporting the first series and the third series of marks. He was not specifically examined or cross-examined as to whether any of the skid marks were made by dual tyres.
47 Nor was there any evidence as to the braking systems of vehicles with dual tyres on all but the front wheels and as to whether such a vehicle might lay down single skid marks only.
48 A careful examination of some of the photographs permits of the possibility that there may be dual tyre skid marks along some of the path of the third series. Likewise, portions of the skid marks appear to be single tyre skid marks and indeed clearly appear to be so. Assuming that this interpretation of the photographs is correct it diminishes, and probably destroys, the otherwise logical submission made by senior counsel for the appellant on this point.
49 Having regard to the probability that some at least of the third series of skid marks were single tyre skid marks, and the location of the gouge marks made by the respondent's vehicle as a result of the collision in the breakdown lane, the inference was clearly open to her Honour, that the appellant, having drifted into lane 2 almost causing a collision, over-corrected, and collided with the respondent's vehicle. The premise underlying that inference is that the right hand skid marks in the first series of skid marks were made by Ms Ferguson's vehicle. That, in our view, is most likely to be correct.
50 But in any event, the different versions of the accident advanced by the appellant are not only inconsistent, but none of them are capable of explaining the accident which in fact happened. For example, in his record of interview to the police given on 2 July 2002, the appellant said that having checked his rear-vision mirrors and then having turned around to look ahead, he saw that a car was in front of him. He said:
"… I was running up on him pretty quick because the traffic was moving fairly fastly [sic] and I thought I got to go around this bloke and I realised he couldn't go out on the right side of me because there was traffic everywhere, so I slipped in on the left hand side of him in the break down lane and at that point he came across and caught the truck and there was a hell of a racket and the truck give a rock and a shake and I don't remember much more …"
51 The difficulty with this version is that it is inconsistent with the damage to the respondent's vehicle. On this version, the appellant would have continued to run over the top of the vehicle from the driver's rear side to the passenger's front side and, most likely would have done so on the driver's side of his own vehicle. However, the damage to the respondent's vehicle was across the driver's rear side. The damage did not continue across to the passenger's front side.
52 In the proceedings in the Local Court in October 2003, the appellant said that the vehicle in front of him with its brake lights on "was heading straight" in lane 1. However, there are two problems with this version. First, the appellant in his evidence in the Court below said that the vehicle was changing lanes from lane 2 to lane 1 at an angle when he first saw it. Secondly, it was incontrovertibly established that the accident occurred when the respondent's vehicle was wholly within the breakdown lane. The vehicle could not have moved from lane 1 to the breakdown lane in the short period of time between the appellant having seen the vehicle 2 to 3 metres ahead, and the collision occurring.
53 Finally, and as already indicated in the previous paragraph, the appellant's evidence before the trial judge was that the respondent's vehicle was moving from lane 2 to lane 1 at an angle and was only metres ahead of him when he saw the stop lights. On that version, also, the respondent's vehicle could not have been in the breakdown lane at the point of collision, notwithstanding the incontrovertible evidence to the contrary.
54 Accordingly, although there were aspects of her Honour's reasons that possibly raised appellable issues, her conclusion was, for the reasons we have given, correct. The success of the appellant's case depended upon his establishing that the respondent's vehicle moved unexpectedly in front of him. However, in our opinion, the evidence of the gouge marks incontrovertibly established the contrary - namely, that at the point of collision, the respondent's vehicle was already in the breakdown lane. It could not have got to that position on any of the versions of the accident advanced by the appellant.