Curtis v Harden Shire Council

The application of these principles were of considerable significance in resolving the difficult question of causation in this case.

Available sources of evidence to support a finding that Ms Paterson lost control of her vehicle in the first resurfaced section of the road under repair 87Senior Sergeant Brand was called by the Council. Senior Constable Hando's statement was also tendered in its case. Both officers attended the scene within a very short time of the accident. 88After observing the patent physical evidence of tyre marks leading to the point of impact as Ms Paterson's vehicle yawed out of control on the second unworked section, and the faint tyre mark in the gravel on the incorrect side of the road in the immediately preceding resurfaced section, Sergeant Brand inspected the road surface over approximately 100 metres leading to that point for the express purpose of looking for a reason as to why her vehicle was on the incorrect side of the road, in particular, whether there was anything to indicate an attempt on her part to avoid an obstruction or to deviate around an irregularity in the road surface. He was unable to find anything to suggest or indicate why the vehicle ended up on the wrong side of the road at the end of the second resurfaced section, or any other mark on the road surface or in the gravel that might suggest where it had first deviated onto the incorrect side of the road. 89Senior Sergeant Brand also made a notebook entry and a sketch of the scene (not drawn to scale) to record his observations and to assist his later recall. His notebook entry recalls as follows: Several sections of the road surface preceding the accident had been resurfaced within the past 24 hours. Not known if the resealed road surface was contributing factor in accident. There were no obvious signs on road surface prior to skid marks (resealed or otherwise) to indicate how or why the VOI [vehicle of interest] has come to be on the incorrect side of the road. 90His sketch shows the discontinuous sections of resurfaced roadway, the faint tyre marks on the far right of the second resurfaced section (which he described in his evidence as loose gravel which had been moved on the road surface) and the patent skidmarks in the unworked second section as the vehicle yawed of control. There were no tyre marks or tracks of any kind noted on the preceding unworked section of road. In company with other police he awaited the arrival of Senior Constable Hando who was attached to the Goulburn Crime Scene Unit. He remained with that officer and assisted him with his examination of the accident site. 91Senior Constable Hando's statement also records there being "no visible marks on the road surface" in the first section. This was consistent with a sketch that he attached to his statement. His statement also stated that: Upon entering the right-hand bend in the roadway the deceased has lost control of the vehicle, which has slid out of control across the roadway in a southerly direction (before rotating out of control in a clockwise direction to the point of impact... The precise reasoning by which he reached the conclusion that the vehicle lost control "upon entering" the right hand bend and then "slid out of control" when there were "no visible marks on the road surface" undermines the weight of his opinion. He did not give evidence. The plaintiffs did not invite me to draw a Jones v Dunkel inference. 92Sergeant Brand's evidence was consistent with his statement and his notebook entry. He also gave evidence that during his inspection of the scene he was able to draw a notional line of alignment between the displaced gravel at the end of the second resurfaced section and the angle of entry of the vehicle back onto the correct side of the roadway before it yawed out of control, but was unable to find any physical evidence indicating how long the vehicle had travelled on the incorrect side of the roadway before displacing the gravel at the very end of the second resurfaced section. He had no independent recall of the amount of gravel that was displaced at that point. He agreed that his attention was drawn "more acutely" to the condition of the surface of the road than might otherwise have been the case at the scene of a motor vehicle accident because of what he had been given to understand was the contribution of roadworks to another (earlier) collision. (It is not clear whether this is a reference to Ms Skorulis' accident 24 hours earlier or some other accident.) Sergeant Brand gave evidence that he walked back from the point of impact to the beginning of the first resealed section of the road and that he saw no delineated path of Ms Paterson's vehicle, whether on the correct side of the road or veering from the correct to the incorrect side of the road in that first section, even though he was specifically looking for marks on the roadway to indicate that very movement. 93In cross-examination he was shown photographs 19 and 20 upon which Mr Johnston placed very significant reliance as evidencing a loss of control in the first resurfaced section and which Mr Stuart-Smith ultimately accepted were likely to have been left by Ms Paterson as she veered from the correct to the incorrect side of the road. He conceded that he may have missed seeing the vehicle's tracks Mr Johnston identified as Ms Paterson's because of their faintness. 94Mr Curtis, an engineering assistant employed by the Council, also made a sketch of the scene on the day of the accident. His sketch, which is different from Sergeant Brand's, shows a discontinuous set of parallel tyre tracks indicating a path of travel from the left-hand side of the road as the vehicle entered the first resurfaced section towards, and then across the centre line at the end of that section. The path of travel is then picked up on the far right-hand side of the road towards the end of the second resealed section (that is, on the incorrect side of the road) before the vehicle moves back towards the left (that is, towards the correct side of the road) before again crossing the centre line so as to be in alignment with the yaw marks leading to the point of impact. The sketch indicates nothing of the passage of the vehicle over the first unworked section (it being common ground there were no marks of any kind on that section) and nothing of its passage on the second resurfaced section, such as might suggest how or why she was on the incorrect side of the road at the end of that section, at a point 150 metres from where she entered the curve and within 60 metres (or thereabouts) of the point of impact. 95Mr Curtis did not give evidence. Photographs of tyre tracks on the first and second resurfaced sections were taken by Mr Curtis on the same day, including photographs 19 and 20. As noted, Sergeant Brand was invited to comment upon them in his evidence. Also as noted, both Mr Johnston and Mr Stuart-Smith considered these same two photographs best supported their differing views on the question of where control of the vehicle was first lost. Both photographs show the road receding along a line of near perfect perspective in a northerly direction from where the first resurfaced section ends and the first unworked section commences. I am satisfied the photographs show tyre marks which Mr Stuart-Smith ultimately conceded were consistent with the "light marks" that Mr Elllis, another Council employee, described in the incident report (which follows) and the path of travel of the vehicle which Mr Crisp drew on his sketch, and that they were probably the tyre marks of Ms Paterson's vehicle as she veered across the road from left to right before tracking into the shoulder on the right-hand side of the road. 96Mr Elllis reported as follows: At the time of the accident she was driving in a southerly direction from Kingsvale and had just been around through a short winding section of hilly terrain known as 'Stone Rises' and was just rounding a slight curve in the road when it appears she has crossed to the wrong side of the road and then overcorrected before losing control of the vehicle and it skidding sideways into the tree. Impact being the passenger side door. At the time of the accident it was a bright day with little cloud cover. It is also apparent that as the vehicle rounded the curve in the road it was at the start of recent Council Roadworks which involved resurfacing of the road pavement (undertaken on Thursday 19th Aug). As the vehicle travelled around the bend commencing on the correct side of the road it appears that at the end of the 1st sealed patch the vehicle was on the wrong side of the road. This being a distance of 90.0 metres. The vehicle has then traveled 38 metres on the wrong side before hitting a second sealed patch of 31.7 metres length. Towards the end of this second patch is where the vehicle appears to have commenced sliding back across the road (to correct side) for 33.3 metres before completely sliding sideways back (another 54.6 m) to the wrong side of the road, across the road shoulder and hitting the tree some 3.0 metres from the edge of the road. On inspecting the roadworks it is not evident that the vehicle lost control after hitting the first patch or even the second patch. There is no discernible skid marks through the sealing aggregate on the first patch, only some light marks where it appears the vehicle attempted to correct its path. (emphasis added) 97Mr Ellis did not give evidence. The plaintiff submitted that a Jones v Dunkel inference should be drawn due to the Council's failure to call Mr Curtis and Mr Ellis. I am not prepared to draw that inference, there being nothing to suggest their evidence would differ materially from their contemporaneous notes. 98Even if the light tyre tracks Mr Ellis noted indicated that Ms Paterson's control of the vehicle in the first resurfaced section was compromised as she progressively veered over a distance of 90 metres from the correct to the incorrect side of the road (as distinct from this being a deliberate driving manoeuvre which neither expert suggested was a rational explanation in the circumstances), the experts disagreed as to whether a precipitating cause of that loss of control was a loss of traction due to the presence of the loose gravel, as distinct from control being lost as a result of some other cause, or combination of possible causes. 99Accepting that the light tyre marks observed by Mr Ellis, and shown in photographs 19 and 20, were probably deposited by Ms Paterson's vehicle, Mr Stuart-Smith noted that she deviated from left to right over the first section of resurfaced roadway in a reasonably straight line without any obvious attempt to correct that course. The photographs objectively support that description. In his view, this was inconsistent with a driver experiencing a loss of traction or recovering or attempting to recover from a loss of traction. 100He also placed considerable reliance on the absence of any physical evidence indicating the tyres were rotating in a clockwise yaw or sideslip, which might have suggested that the precipitating cause of the deviation to the incorrect side of the road was a result of a loss of traction upon encountering the gravel surface as Ms Paterson continued to negotiate the moderate curve to the right. With no photograph of the road surface where the roadworks commenced or within metres of it (and where, on the plaintiffs' case, traction was lost) and no physical evidence on the road surface of any attempt by Ms Paterson to correct any sideslip or undertake any corrective manoeuvres noted either by the police, Mr Ellis or Mr Curtis, evidence which Mr Stuart-Smith expected would be visible even to an untrained eye, it was his view that it was unlikely that control was lost as a result of a loss of traction upon encountering the gravel at the commencement of the roadworks. He was of the opinion that the probabilities favoured Ms Paterson deviating from her path around the curve in the first resurfaced section for a reason or reasons unconnected with encountering the gravel at an unsafe speed. While he appointed other hypotheses, including drowsiness or inattention, he was not invited to address whether such physical evidence as was apparent at the accident site supported either hypothesis. 101Mr Stuart-Smith resisted any interpretation of photographs 19 and 20 to suggest a slight loss of traction on encountering the gravel favoured by Mr Johnston. Mr Stuart-Smith gave the following evidence: So looking at the photograph, that's on the right-hand side of the photograph, in other words, Ms Paterson's left as she's coming towards us, so one would have expected some windrow or some build up of material, or some some shading of the tyre mark to indicate some lateral displacement. But not only that. A vehicle doesn't just sideslip over just sideslip and then continue just travelling in that same sort of general direction. Once it starts to sideslip, it continues to rotate until the steering has twisted in the other direction, in which case, you either correct control is regained or else you end up with an oversteer, and the mark is too long. It's the photograph is like 80 metres from it's 80 metres from the police car to the end of that tyre, the end of that patch. There's 150 metres from the police car to where the plaintiff's vehicle most likely was on the incorrect side of the road at the end of the second patch. So what we would have to assume for that to have been made by her car out of control, is that she sideslipped been sideslipping for about 150 metres without her car seriously rotating. It's not really feasible for that to occur over such a long distance without other marks having started to occur, without the car sort of turning around to a greater extent. 150 metres is just too long for some some little bit of sideslip to have been caused at an originating point, and then to have continued at the speed that she was travelling. 102Mr Johnston disagreed with the last aspect of Mr Stuart-Smith's evidence. He said: ...I agree that she wasn't in complete loss of control when the car started rotating at the start and continued to rotate at 150 metres. There was a loss of traction that has caused her vehicle to orient and travel [on] the incorrect side of the roadway. She has then made a series of manoeuvres that she has presumably tried to correct the vehicle, and stops leaving marks because it's on the wrong side of the road. And then there's a second patch, and then has a catastrophic loss [of control] at the end of that. 103Mr Johnston considered that photographs 19 and 20 supported his assumptions as to Ms Paterson's driving manoeuvres, but accepted that it was not possible to discern from the physical evidence what corrective manoeuvres she attempted or her input as a driver as she endeavoured (on his analysis) to correct her path of travel to the correct side of the road. Ultimately, he agreed that there was insufficient physical evidence to be definitive about her path of travel or what she did or did not do at any point in the driving sequence. Whilst he could not exclude loss of attention or driver fatigue as an explanation for the deviating tyre tracks in the first resurfaced section, he said that a driver subject to those influences generally fails to steer a corner as opposed to oversteering a corner. He went on to say: ...In this case already part of the right curve is negotiated before reaching the unsealed surface. That suggests vehicle control to that point, then it suggests additional control as opposed to a lack of control which is the normal criteria for fatigue, a vehicle will travel off the outside of a curve or fail to negotiate a curve or simply travel straight ahead. Q. Unless the driver wakes up, I suppose? A. Unless the driver wakes up and then you tend to find a sharp steer back to the right. That's why you use that vibra line to wake them up as they cross the edge line and then you see a sharp steer vibra line or the audio tactile line marking to attempt that [sic] to wake them up and they steer back on to the roadway. So it is not certainly a stereo typical fatigue crash to travel to the inside of a a right curve especially when you have already substantially negotiated the part of the curve. 104Mr Johnston agreed that the photographic evidence of what he believed to be Ms Paterson's tyre tracks in the first resurfaced section was not definitive of her having lost control of her vehicle at that time. He also acknowledged that his opinion that the probabilities favoured a loss of control in the loose gravel in that section was not based upon physical evidence of the kind Mr Stuart-Smith expected would be generated from a loss of traction. Mr Johnston relied instead upon the orientation of the tyre tracks deviating from left to right in photographs 19 and 20, and their consistency with the sketch drawn by Mr Curtis, as supporting his view that Ms Paterson was not controlling the forward movement of the car as she traveled through the first resurfaced section, and in this sense she had lost control of it. 105Although he agreed that a vehicle which had lost control due to insufficient traction on a curve or bend will yaw or sideslip, Mr Johnston disagreed with Mr Stuart-Smith that definite windrows or furrows would be expected to be created (or visible) under lateral displacement in these circumstances. Mr Stuart-Smith gave the following evidence: Q. We were then looking at your reasons for concluding Ms Patterson was out of control on the first patch and you are referring to the evidence. In case I have not made this clear, what you see in photograph 19 and 20, does that show lateral displacement of loose material, can you say or not? A. Yes, because lateral placement of loose material means that the material is deposited out of the wheel path. The reason you can see that is there is less aggregate in that path. It has been displaced out. Q. Does one need skidding for that to occur? A. No, I heard that evidence earlier [from Mr Stuart-Smith]. Material is displaced out by tyre forces pushing the material sideways. I don't agree that in a high speed rotating tyre that you get this row of two or three stones right on the lateral edge. The stone is moved with some velocity from under the tyre and is thrown out. That's why you have the warning about windscreens damage, stones are thrown reasonable distances. ... If the wheel is locked you are getting a ploughing effect. The stone is virtually being displaced around a locked wheel, then you get very definitive windrows or furrows on the edge. A high speed rotating tyre doesn't create that demarcation of a mound of gravel. It is displaced some distance, thrown probably outwards but not just dropped over the edge, so as you get this continuous row of a windrow and a high speed rotating tyre. 106However, Mr Johnston gave the following evidence under cross-examination: Q: If you consider that Ms Patterson lost control with a clockwise rotation of the vehicle, you would not expect to see a straight line across to the opposite side of the road as result of that loss of control, would you? A: Not where that actually occurred. Later on, if that was the path the vehicle took, you might. But where the initial precipitating event was, no, you I would not expect a line there. Q: But if that is the path the vehicle took later on, wouldn't you have to assume the regaining by the driver of complete control of the vehicle in the absence of marks indicating that the vehicle was in a yaw, as to came down the incorrect side of the road? A: Certainly not complete control, but I would expect the vehicle was under control and largely corrected. So, it was now heading in the wrong direction, but was no longer continuing to rotate. Q: Would you expect there to be marks on the road showing the loss of control that precipitated that manoeuvre? A: Provided the area was not completely contaminated by material, yes. I would expect somewhere up near where the police car is, a trained eye would see, or find, that evidence, potentially. 107It is clear from this evidence that Mr Johnston's opinion was also informed by his belief (or expectation) that physical evidence on the road surface in the first section where he believed traction was lost would likely have been discernable to "a trained eye", and that neither officers Brand and Hando nor Messrs Ellis and Curtis were sufficiently qualified to discern what Mr Johnston claimed he and Mr Stuart-Smith would have been able to discern and indentify as a tyre mark of a vehicle in a clockwise yaw. 108Mr Johnston's assumption that the tyre marks were present but not seen could only support a finding that they were probably there if there were some evidence that the marks were there to be seen but overlooked. The obvious flaw in his reasoning is that if there were evidence of a yaw mark or sideslip proximate to where Ms Paterson entered the first resurfaced section (whether or not she regained control of the vehicle thereafter) there would be no need to proceed on the assumption that it was overlooked. To the extent that Mr Johnston's opinion that the probable cause of the accident was a loss of control in the first resurfaced section due to a loss of traction is based on the assumption that there either was physical evidence which was missed by all observers, or there might have been evidence that was missed by those people, the reasoning suffers from circularity in the sense that it is assumed that there were marks on the road because one would expect them to be present if there was a loss of control due to lack of traction. I am not persuaded that the theoretical possibility that the tyre marks were missed by those at the scene (and, in the case of Sergeant Brand, missed despite the fact that he was specifically looking for some evidence of the loss of control) permits an inference to be drawn that the tyre marks were there but missed. 109The question whether the plaintiffs have proved what it was agreed was a primary fact essential to proving causation for the purposes of the application of s 55D(1) of the Civil Liability Act requires a finding that the probability that control was lost in the first section due to Ms Paterson encountering gravel under speed (and that she did not thereafter regain control sufficiently for her to avoid the accident), is greater than the possibility that she veered progressively onto the incorrect side of the road (as shown in photographs 19 and 20) for reasons unrelated to the condition of the road in combination with the speed at which she was travelling. In Flounders v Millar [2007] NSWCA 238, to which Ipp JA made reference in Sydney South West Area Health Service v Stamoulis, his Honour said at [35]: It remains necessary for a plaintiff, relying on circumstantial evidence, to prove that the circumstances raise the more probable inference in favour of what is alleged. The circumstances must do more than give rise to conflicting inferences of an equal degree of probability or plausibility. The choice between conflicting inferences must be more than a matter of conjecture. If the court is left to speculate about possibilities as to the cause of the injury, the plaintiff must fail... 110I accept that the competing hypotheses for Ms Paterson's loss of control, being a lack of concentration, inattention, drowsiness or fatigue, would logically need to subsist at the very point on the road where there was increased risk of a loss of control by reason of excess speed on gravel. While this state of affairs might undermine the likelihood of either of them (or any combination of them) being the explanation for the loss of control, it is necessary for me to be actually persuaded of one scenario over another as the more probable explanation and I am unable to reach that level of satisfaction. 111In the absence of any physical evidence of sideslipping due to a clockwise rotation of the vehicle in the first resurfaced section in circumstances where it would be expected to be obvious, and where the road surface was examined and none noted; where the photographic evidence favours a finding of a gradual veering from the correct to the incorrect side of the road before a faint but definite mark 150 metres after the gravel is first encountered and after an intervening section of unworked road without tyre marks; and where Mr Curtis' sketch and Mr Ellis' report are open to interpretation, the balance of the evidence, which includes the evidence of another accident on a stretch of road under the same road repair works 24 hours earlier, simply does not induce in my mind an actual persuasion that the precipitating cause of Ms Paterson's accident was her losing control of her vehicle in the first resurfaced section due to the presence of gravel and her unchecked speed. 112While I was satisfied that Ms Skorulis' evidence and the objective facts bearing upon her accident, were capable of informing in a rational way how and why it was that Ms Paterson was on the incorrect side of the road some 150 metres from the commencement of roadwork (the question at the time of the admission of the evidence to which this evidence was directed: Curtis v Harden Shire Council [2012] NSWSC 84) in the final analysis, that evidence was not sufficiently probative to support the necessary finding that the precipitating cause of both accidents was probably the same. While I accept that there are a constellation of objective features in both accidents that Mr Johnston found compelling, and which prima facie would tend to suggest the accidents shared a common cause, to make the finding that they were both probably the result of encountering the gravel without adequate forewarning and under speed would also require me to be able to comfortably draw the inference (as distinct from simply assuming) that Ms Paterson, being a more experienced driver than Ms Skorulis, had managed to regain some control of her vehicle after a loss of traction (thus explaining the distance of 150 metres or more over which her vehicle travelled before control was ultimately lost) but Ms Skorulis did not. I am unable to draw that inference. Moreover, it was only after the experts gave further evidence that the marked dissimilarities between the known passage of Ms Skorulis' vehicle and the reconstructed passage of Ms Paterson's vehicle were highlighted. 113Given the way the plaintiffs have put their case, the failure to persuade me that control was probably lost because of a loss of traction at the beginning of the first resurfaced section, a primary fact upon which the further and critical finding of factual causation depends, carries with it the consequence that I am not persuaded that but for the failure to provide for and position appropriate signage the accident would not have occurred.