The Expert Evidence
51The expert evidence relied on by the Cross-Claimant comprised three reports of William Keramidas (exhibits 13, 14 and 15), together with a joint experts' report dated 11 July 2012 (exhibit 16). Busways and Zurich both relied on the report of Mr William Bailey dated 26 July 2011 (exhibit Z1). A separate judgment was delivered on 28 September 2012, limiting the admissibility of experts' reports to one in each interest in the proceedings.
52In his first report dated 20 May 2009 (exhibit 13), Mr Keramidas, having examined the exhibits and transcript from the inquest which took place on 21 and 22 June 2007, together with other documents, came to a conclusion that a safe speed for the bend on Lorne Road would be in the order of 60-65 kph. Mr Keramidas was of the opinion that because the sight lines through the bend to the area of the bus stop were limited, that the use of the gravel driveway outside 267 Lorne Road as a bus stop was inappropriate. Mr Keramidas went on to state:
"In the author's opinion, if a safety audit of the location being used as a drop off point for the Hughes and Waterworth children was conducted, the deficiency in sight lines would be so obvious and would precipitate immediate action to either remove this location as a stop or highlight its existence through appropriate hazard signing. As indicated by the bus driver, however, it appears that the drop off of children at various locations is essentially "ad hoc", and even the investigating police were unable to determine the basis on which the bus stop was ever contemplated or came into existence."
53In Mr Keramidas' opinion, the site and existence of the bus stop were significant causal factors in the subject collision due to the following:
"1 The limited sight lines meant that the driver would have had no opportunity for early detection of the bus or children until she reached a point where emergency evasive action was required.
2. The location of the bus stop was deficient, in that it did not provide sufficient sight lines, nor was it marked as a bus stop in any way.
3. In the absence of any advanced warning signs, the existence of the stop would not have been known to the driver, even though she was a local resident and used the road on essentially a daily basis. It appears from her account that she would ordinarily travel this section of roadway a short time later in the day than she did on this occasion, and therefore was unaware that there was a school bus stop just beyond the "blind" left hand bend. Had she been aware of this, there would be a potential for her to have adjusted her speed, and whilst still probably requiring emergency evasive action, could potentially have avoided colliding with the children.
A further complicating and exacerbating factor in this particular case was the fact that the road surface was wet at the time of the incident and therefore in the course of performing her evasive manoeuvre the vehicle has lost traction, whereas under dry conditions it may not have. In dry conditions it is quite probable that she would have avoided colliding with the children, albeit that she herself is likely to have been injured by coming into collision with the trees on the northern side of the roadway [resulting from an evasive steer to the right]."
54In his second report dated 18 May 2010 (exhibit 14), Mr Keramidas responded to a report from Mr Grant Johnstone dated 27 September 2009.
55In a second supplementary report dated 6 December 2011, Mr Keramidas made an assessment of what in his opinion were contributions to the accident caused by Busways and the Hastings Council, and in doing so, reviewed his original assessment, as well as the assessment of the other three experts. As the report contained comment in respect of assessments by Mr Stuart-Smith and Mr Johnstone, much of that report was ruled inadmissible, subject to leave being granted to call further evidence in respect of some factual matters. In his opinion, Busways were liable to contribute on the following basis:
"1 The bus driver appears to have been aware of the potential danger posed by stopping at this site.
2. The bus driver had the authority to refuse to stop at this site under the regulations.
3. The bus driver appears to have had the ability to keep the children under surveillance after they alighted from the bus and did notice that they had moved towards the east [closer to the corner] and dispersed.
4 The bus driver should have been prepared to give guidance or assistance to the children given that they were unaccompanied and included a young child in the group.
5 The bus driver was unaware of how and when this particular drop off point came into existence but did not appear to communicate any concerns to the bus company, even though he needed to adopt an unusual practice to re-enter the traffic lane.
6 It is not known if the bus company was aware of the existence of this particular safe drop off point, even though they were responsible for its selection as a "safe" stop and the stop had been used for several years.
7 If the bus company was not aware of the existence of this drop off point, then they should have been, at least through some communication with their drivers.
8 If in doubt as to the "safety" of the site, the bus company should have advised their drivers of their obligations under the regulations not to stop at any unsafe location, and should have referred their concerns to the Council for advice and engineering treatments."
56In evidence in chief, Mr Keramidas acknowledged that he and Mr Bailey had reached agreement in respect of the collision sequence which included the rest position of each of the children as identified by the Police investigation, and also the point of impact of Mrs Bambling's vehicle with each of the children. That point of impact is demonstrated diagrammatically in Mr Bailey's report (exhibit Z1 at p 41, fig 17).
57Mr Keramidas also identified exhibit 10 as being the type of audit that should have taken place in respect of the school bus route. He described such a process taking half a day, for the 20 stop locations for school bus route 2. In respect of the subject location outside 267 Lorne Road, his evidence was:
"A: Is that the sight lines - the limited sight lines would be immediately obvious. It's not an issue of foliage or anything like that. There's a physical restriction created by the curvature of the roadway and the crest. At that point the next phase would be to identify who is being picked up and dropped off at that location and to notify those people that until further investigation that site would need to be temporarily suspended. The next step would be to approach Council and indicate that, "this is what we have in terms of what we think there is a potential for sight line risks", and from that point then, for an investigation to be carried out."
58In cross-examination Mr Keramidas described the motion of the vehicle as it tracked towards the children on Lorne Road as rotating as the wheel turned to the right, as a "yaw condition". The vehicle was travelling in a north-westerly direction and by the time it reached the children was in a broadside slide.
59On the question of whether Mrs Bambling could have avoided the children on the roadway, Mr Keramidas gave the following evidence:
"Q: And even if, instead of pulling her vehicle to the right, she had applied her brakes and stayed in her lane, she would have missed the children altogether?
A: Providing she didn't lock her brakes, that would be correct, yes.
Q: Now assuming for a moment that the children - two boys were on the northern grassed section of the bitumen section of the roadway ...
A: Yes.
Q: As she has come around the corner the distance that she would be able to see them either on that side or just reaching that side, would be a distance of in excess of 90 metres?
A: Probably in excess of 95.
Q: And at that point in time, if she had commenced to slow her vehicle by not harsh braking, but reasonable braking, and kept her vehicle in her lane, even if Zoe had been just short of the centre line in moving in a northerly direction, then continued to do so, the defendant could have continued straight past her without hitting her.
A: There are a number of assumptions embedded in that, including whether Zoe continued in that path, but yes.
Q: So if the child kept walking at a range of 95 metres plus, the defendant started slowing?
A: Yes, all of those things could match up."
60That evidence was based on an assumed speed of 70 kph. At a greater speed, the time for avoidance was lessened.
61Mr Keramidas acknowledged that in the joint experts' report (exhibit 16) agreement was reached between the experts that a speed of 65 kph was a reasonable and safe speed for the curvature of the bend in the condition of the day, based on a reasonable prospect of avoiding anything on the roadway. Based on that speed, Mr Keramidas gave the following evidence:
"Q: If the defendant's vehicle had been driven round that corner at a speed of 65 kph, and Zoe had been, let's say, a distance of one metre to the south of the centre line of the roadway, and still walking in a northerly direction, the defendant could have continued along the road past Zoe without collision?
A: The collision could certainly have been avoided by her doing that, providing she didn't overreact to seeing the child."
62Mr Keramidas also agreed that for a distance from one kilometre east of the driveway of 267 Lorne Road to a point one kilometre west of that driveway on the southern side of the road, there was only one place where the bus could pull off the roadway and stop, which was the subject driveway. Whilst acknowledging that there was nowhere else to stop for that distance, it was put to Mr Keramidas that it was the best point on the southern side of the road for the bus to stop to which he answered:
"A: It would certainly be the best point, but still unacceptable."
63Mr Keramidas had estimated the vehicle's speed at impact with Zoe at between 55 and 60 kph, assuming no braking, his evidence was that the vehicle had been travelling over 65 kph as it came around the corner, in a range between 65 and 70 kph, with a possibility that the speed may have been as high as 75 - 78 kph. His best estimate was that it would be at the 70, low 70's range of speed.
64Mr Keramidas conceded that at the point where the children alighted from the bus, and stepped back from it, their view to the west would be obscured by foliage from a tree on the southern side of the road and would be limited to a distance of 50 metres. As the bus progressed to the west, that foliage would also have the effect of dampening the noise from the bus.
65In re-examination Mr Keramidas clarified that, assuming no braking by the driver of the vehicle, the vehicle would travel 90 or 95 metres at 17 or 18 metres per second, which would take five seconds from the driver's first detection of something on the roadway to impact. If two and a half seconds of that time was taken up with a delay for perception and reaction by the driver, this would leave a much shorter distance of between 42 and 50 metres for the vehicle to respond to the danger ahead.
66In response to the proposition conceded by Mr Keramidas in crossexamination that the driver of the vehicle could have avoided the children on the roadway had she remained in her own lane, the perception response time had to be taken into account together with her perception of the back near-side tyre which was near the edge of the road. In answer, Mr Keramidas said:
"A: Well, it further complicates it because again we have to deal with what would - what is the expected driver response in that situation. This is one of the critical issues that essentially if you were to boil it down in terms of expert evidence, is this a single target that she's avoiding or is it multiple? The existence of the bus creates essentially - it closes off the opportunity of the left lane or - sorry, the westbound lane. She then has potentially a spread of children across the front, which at the time she first sees them, means that she only has clear to the right, and that becomes her decision making process. It would take several more seconds to rejudge that process and its too late."
67Mr Keramidas was able to identify the commencement of the children's journey across the road as a distance of up to one and a half metres beyond the back of the bus in its stationary position. In respect or Mr Waterworth's evidence that he heard a screeching noise prior to impact, Mr Keramidas gave evidence to the effect that the screeching noise was created by heat being generated as the tyres slid over the stones on the road surface which was damp. In his view, Mr Waterworth hearing the screech was consistent with a locked wheel condition of a vehicle in a spin, having initially been in a side slip yaw. In his view, the screeching noise was attributed to braking.
68In adhering to his evidence that the site was inappropriate for use as a bus stop, Mr Keramidas said as follows:
"The reason is, this location, as was part of the question that Mr Andrews asked, well, this is a location where it's the only place where a bus can pull off the road. And I agreed that is the case. The sight lines are such, though, that the risk generated for young children crossing the road at that point is just too high. The sight lines are such that you are talking about critical levels, be it in dry conditions, wet conditions. And if we are looking at this as a bus drop off point, bus stop, it doesn't really matter what you call it, sight lines for a westbound vehicle, in this case a car, on the next occasion we know, there's lots of heavy trucks, it is outright in my opinion dangerous for young children to be crossing at that point. So it might be the only place you can stop the bus on the southern side of the roadway, but there are certainly alternatives that you can have beyond stopping there or within one kilometres on either side."
69A report of Mr William Bailey was exhibit Z1. Mr Bailey's conclusions may be summarised as follows:
(1)On his analysis Mrs Bambling was probably travelling at between 69 and 77 kph through the left hand curve and approximately 51-60 kph at impact.
(2)On his analysis Mrs Bambling took 2.8 seconds to detect the position of Zoe on the roadway, a significant longer time for perception response than would be otherwise anticipated. Therefore, her time to perceive and respond to the situation was longer than would be compatible with a driver maintaining reasonable vigilance.
(3)A collision would have avoided by moderately heavy braking, assuming a driver perception response time of 1.7 seconds or less.
(4)Mr Bailey did not agree with Mr Keramidas' opinion that the location was inappropriate for dropping off children from a school bus or that the road could not be crossed in reasonable safety.
70The collision analysis undertaken by Mr Bailey led him to conclude that Mrs Bambling probably began her avoidance manoeuvre when her vehicle was approximately 20 metres, or a little more, from the point of impact with the children. In his opinion, Mrs Bambling's choice to swerve rather than braking alone, appears to indicate the perception that the collision could not be avoided by braking and this was consistent with a heavy swerve to the right. Based on studies adopted by him, Mr Bailey was of the opinion that most drivers were able to commence heavy braking within approximately 1.4 to 1.6 seconds, however, a significant factor in reducing driving perception response times for reasonably conspicuous hazards on curves is that a driver would be looking at a small area of the field view, meaning in this case, the location where the children were first located within the driver's field of view.
71In his evidence in chief Mr Bailey stated that the area of disagreement between himself and Mr Keramidas, relating to perception reaction time, had been resolved, subject to one area of disagreement relating to whether a driver could perceive one hazard on the road or more than one, in this case three children. It was Mr Bailey's evidence that in the circumstances here, the driver would be really responding to one object as opposed to a number of objects.
72Having viewed the Police video (exhibit 11), he gave evidence that the bus would take 5 seconds to reach a stage where the nearside rear tyre was about to move from the gravel onto the roadway, by which time the bus was travelling at 25 kph and would have covered about 18 metres. He then said:
"There would be no risk of collision with the vehicle that was accelerating away, albeit at bus rate, but accelerating away, from the position that Mrs Bambling's vehicle would have been in when she reported making that sighting. I don't know exactly where that position is, but I know she made some responses before she got to the point of impact, so I can go back within that - that 90-95 metre distance to the point of impact. But there's no - there's no point at which her vehicle could have been close enough if she'd continued, that she would have been at any risk of colliding with the rear of the bus. Having said that, she may have had to adjust her speed to accommodate the fact that the bus would have been travelling slower for a period, but "by accommodate speed", I mean -
Q: As the bus would accelerate?
A: You know, foot off the accelerator."
73Mr Bailey gave evidence that to cross the road which was measured at 5.4 metres in width, a person travelling at 2 metres per second would take 3.6 seconds, and a person travelling at 1.77 metres per second would take 3.1 seconds.
74Mr Bailey was cross-examined about his disagreement with Mr Keramidas about the bus stop being in an inappropriate location. He conceded that a sight line of greater than 90 metres would have been desirable, but that the issue needed to be evaluated in the context of possible locations. His opinion was based on the fact that the location was one of a limited number of areas where the bus could pull off the road completely, and that the bus could return to the roadway without causing undue disruption to traffic. A third factor was his reasoning that "the roadway could be crossed in safety by pedestrians using normal procedure". He explained that as follows:
"The generality of crossing a road. It was meant to be an inclusive term because there were different ages of - different ages of children. But crossing in accordance with the procedures that are - the philosophy that I've outlined or the protocol I've outlined, of stopping, looking, listening, thinking about the things. The point there, and I think I did the calculation there or maybe it was a little different, was that the time it would take to get across the roadway, right, I think it's 5.4 metres, if you assume that a vehicle travel at the speed limit at that time, was sufficient that irrespective of being able to hear anything that was around the corner because sometimes hearing might be useful, sometimes it may not be, there was sufficient time to clear the roadway."
75When it was put to him that the unpredictability of children pedestrians once they get off a school bus was a relevant factor determining speed limits, Mr Bailey gave the following evidence:
"A: That's one of the factors, but it's only one of numerous factors that modifying the speeds of vehicles has an influence on. I mean the research, as I understand it, for child pedestrian fatalities in rural roads is that - I think it was reviewed - MUARC did a study in 2008. But the numbers are very low. I think that there were four in a number of years. I think all four involved running children. ..."
76Part of Mr Bailey's opinion was therefore based on the location of the bus stop being the only convenient place for the bus to pull off the road close to the children's homes. He gave this evidence:
"Q: Also, the question of convenience - that is, a location close to a home - surely you're not suggesting convenience should trump safety?
A: No. The point is not convenience. The point is that the child has to be transported to their home, and for instance in this case the children walk to one home which was further east and another home which was further west, so there is the journey to be considered as part of where a bus stop - or where they may be dropped off by a bus."
77It was put to Mr Bailey that the bus company had an obligation to consider all of the children they were dropping off at a bus stop including the youngest of those children and he gave this evidence:
"A: Well, that it's not a seven year old in this case being dropped off on her own. It's not children who are being dropped off at an unfamiliar location. That there is - there is a level of experience of children at this - of these children at that location. So those are relevant considerations for a rural bus stop. I mean, the way rural bus stops move, they're quite flexible. You know people - people - people move from house to house, you know, it's not - it's not - it doesn't have the same sort of infrastructure and fixed locations that a bus stop in an urban area has, and certainly in those days. I mean, it's evolved in the last, you know, 10 years."
78It was put to Mr Bailey that it would not have taken much for the bus company to undertake effectively a form of safety audit on this bus route, to which he said:
"A: I wouldn't agree that it wouldn't take much, but it could be done. I think Mr Keramidas said the whole thing could be done in half a day and I think that's probably optimistic, given that it's necessary to identify - you know, to visit each site, identify what issues are and then look at those issues and form some view on them."
79Mr Bailey agreed that in determining the appropriateness or otherwise of a particular bus stop it was important to take into account the nature of the traffic that is likely to be using the roadway. In this case he said the likely presence of large vehicles such as milk trucks or logging trucks may not produce a problem within the limited sight distance. His opinion was challenged as follows:
"Q: But Mr Bailey, let's put the situation where it's not Mrs Bambling but it's a log truck that's coming around that corner on approach to that bus stop. Are you suggesting, given the limited sight distance, well below what is otherwise required with children crossing at that point, do you seriously suggest that it's an appropriate place for children to be dropped?
A: My comment was that it was sub-optimal.
Q: I'm asking now?
A: But that it's not dangerous, it's not inherently dangerous, that's incorrect.
Q: Are you suggesting that it's not inherently dangerous that a child might enter the roadway at a point well short of what is a minimum stopping sight distance, if you have vehicles such as log trucks or milk lorries coming around that corner in a westbound direction? Are you suggesting that in those circumstances this is not a dangerous bus stop?
A: Yes."
When put to him that the absence of a bus sign on approach to the bend would further increase the dangerous nature of this particular bus stop he said:
"A: It doesn't increase the dangerous nature of it, but they are factors which could be addressed and would reduce the risk, yes."
80It was put to him that a warning sign in this situation where the sight lines were very limited would be critical, to which he gave the following evidence:
"A: No, I don't believe it's critical. I'm not saying it wouldn't have some benefit. It clearly would. But the issue was that these were marginal sight lines which required engineering and judgment in the choice of a bus stop location, and that there are more factors to be considered than just the sight line. This is not a situation where the sight line was so short that it could never be used as a bus stop. I just don't think that's correct."
81Finally, Mr Bailey gave this evidence on the question of the safety of the bus stop:
"Q: Mr Bailey, just finally dealing with the question of safety of this bus stop, you maintain that, despite this roadway having a governing speed limit of 80 kph, despite there being absolutely no signage on approach, given the limited stopping sight distances and the sort of vehicles that may travel on this roadway, it's an appropriate bus stop for a 7 year old to cross the roadway?
A: No, I don't consider in appropriate spot (sic), without further assumptions, the assumption being that the 7 year old being in the company of people who are older and familiar with crossing the road, and I would place Daniel - if it's Waterworth; I think it is - in that category, and that that was a place that he had crossed on numerous occasions. He had a set of instructions for how to cross that. There was another point. Sorry, it's just disappeared from my mind."
82Mr Bailey further agreed that the only area of dispute between himself and Mr Keramidas, in respect of perception reaction time, was the effect of multiple targets which led to Mr Keramidas' opinion in this case that a reasonable perception reaction time would be 2.5 seconds, as opposed to Mr Bailey's opinion of a range of 1.4 seconds to 1.6 seconds.
83It was put to Mr Bailey that he could not put himself in the position of Mrs Bambling, given the situation that confronted her as she approached around the blind bend. He gave the following evidence:
"A: No, I don't agree that I can't have any comment on that. What I can say is that compared to other drivers, in observational studies of perception response, there was sufficient time to make a braking response to seeing children on the road, and that's the advice that I've given."
84In answer to a question from me, Mr Bailey gave the following evidence:
"Q: Would the presence of a bus stop sign at this location provide an awareness for regular road users that that was a place where school buses usually stop?
A: It could provide - it wouldn't indicate necessarily school buses. It would just indicate buses. It would have the potential, if it was seen and identified as such, to create an awareness that there was a bus stop at that location. So that that has the potential to create an expectation around the corner that there could be a bus stop."
He conceded that the presence of a bus stop sign would be the sort of factor that may diminish the perception reaction time.
85In re-examination, Mr Bailey expanded on his evidence that in his opinion the site was not dangerous as a bus stop in the context of Lorne Road being used by logging trucks and milk trucks. He gave this evidence:
"A: I expressed that view on the basis that the width of the roadway was such that the walking speeds of the road users involved in this crash, that they could clear the roadway - and I provided a calculation I think in my report - within the sort of approach times that any vehicle, whether it was a heavy vehicle or a milk truck or anything else, before such a vehicle would reach their crossing point."
86The joint experts' report (exhibit 16) is dated 11 July 2012. It sets out, inter alia, the following matters of agreement.
(1)A speed of 65 kph was a value common to all experts' opinion as being a reasonable and safe speed for the curve in the condition of the day.
(2)The sight line distance based on the geometric features was agreed to be 90-95 metres to the centre of the road in the area of the crossing path. This sight distance would be less when looking towards the left side of the road and more if looking towards the right side of the road.
(3)It was agreed that the crossing path is likely to have been 1215 metres east of the reference pole (being the power pole shown on exhibit 23).
(4)Figure 1, depicted in diagrammatical form, the general configuration at the time of the accident.
(5)The Police measurement of 0.55g is the best data on the likely friction available on the roadway on the day.
(6)Assuming the Police friction data, the distance to stop from 70 kph would be 35 metres. The distance to stop from 80 kph would be 46 metres.
(7)The driver's perception response time will be effected by whether or not there was a significant difference in time or location between the visual stimuli that preceded her response (s).
(8)A driver travelling at 70 kph who responded to the presence of an immediate hazard, could react and brake to a stop within a total distance of up to 82 metres (assuming braking for 35 metres at 0.55g & perception response time of 2.4 seconds).
(9)It was agreed that the location where the bus stopped was not signposted as a bus stop.