Doble Express Transport Pty Ltd (Administrator Appointed) v John L Pierce Pty Ltd

Court of Appeal (NSW)|2016-11-17|Before: Ward JA, Hall J

Solicitors: Fraser Clancy Lawyers (Appellant) Rankin Ellison Lawyers (Respondent) File Number(s): 2015/377020 Decision under appeal Court or tribunal: District Court of New South Wales Citation: [2015] NSWDC 285 Date of Decision: 4 December 2015 Before: Hatzistergos DCJ File Number(s): 2013/324778

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

An Extension of Time

Doble filed a document entitled "Notice of Appeal" on 11 March 2016. This document acknowledged that it may have been filed "marginally out of time" and sought leave to appeal. Doble in fact should have applied for an extension of time in which to file the Notice of Appeal. The Further Amended Notice of Appeal repeated the error in the Notice of Appeal.
Pierce's written submissions formally objected to the grant of an extension of time but did not point to any prejudice. Accordingly, Doble should be granted an extension of time until 11 March 2016 in which to file a Notice of Appeal.

The proceedings

Several matters relating to the conduct of the proceedings are worthy of comment.
First, it seems surprising that the trial in the District Court occupied five hearing days. [4] The issues in dispute were limited and the amounts at stake relatively modest. Further, the parties agreed on quantum, so that the only issues at trial concerned liability and contributory negligence. There was little dispute as to Mr Hukins' actions in attempting the right hand turn into Burley Griffin Way and not a great deal of doubt that Mr Mead was travelling at an excessive speed having regard to the prevailing conditions. This seems to have been a rather straightforward case that could have been dealt with in fewer hearing days.
Secondly, the proceedings between Doble and Pierce (Property Proceedings) are not the only proceedings in the District Court arising out of the accident. The written submissions filed on the appeal indicated that at one stage Mr Mead had been a party to the Property Proceedings, but had subsequently been removed as a party. The written submissions also suggested that Mr Mead had instituted separate proceedings against Mr Hukins claiming damages for the injuries he sustained in the accident (Personal Injury Proceedings).
These revelations prompted an inquiry from the Court during the hearing of the appeal as to why there were two separate proceedings in the District Court arising out of the same accident, presumably presenting identical factual issues for determination. Mr Campbell SC, who appeared with Mr Barham for Doble, helpfully explained that Mr Mead had made an application to the primary Judge for orders allowing the Property Proceedings and the Personal Injury Proceedings to be heard together, but that his Honour had rejected the application.
Further inquiries revealed that counsel for Mr Mead filed a motion returnable on the first day of the hearing of the Property Proceedings (27 May 2015). The motion sought an order vacating the hearing (which had been set down for three days), together with a further order that Mr Mead's Personal Injury Proceedings be heard together with the Property Proceedings.
The primary Judge delivered an ex tempore judgment dismissing the motion. [5] His Honour took into account, among other things, that Mr Hukins (or his insurer) was not before the Court and that Mr Mead's legal representatives had been aware of the Property Proceedings since at least December 2012, yet had taken no action to consolidate the two proceedings. His Honour also considered it significant that witnesses had travelled considerable distances to give evidence in the Property Proceedings. There was no appeal from the primary Judge's decision and the trial of the Property Proceedings commenced as scheduled.
Without in any way being critical of the primary Judge's decision, it is unfortunate that two separate proceedings have been on foot arising out of the same accident. The Personal Injury Proceedings have not yet been heard in the District Court. Since neither Mr Mead nor Mr Hukins (or their insurers) is a party to the Property Proceedings, presumably they will not be bound by any findings made in the Property Proceedings. It is therefore open to Mr Mead and Mr Hukins, through their insurers, to re-litigate all factual issues that are determined in the Property Proceedings.
Quite apart from questions of costs and duplication of judicial resources, there is a possibility that the two sets of proceedings will produce inconsistent decisions. While the parties to the two proceedings are different, the decisions may be inconsistent in the sense that the same events may give rise to inconsistent factual findings and inconsistent findings on liability. This is an outcome calculated to bring the legal system into disrepute and should be avoided if possible. It is the need to avoid contradictory judgments which lies at the heart of the so-called Anshun estoppel. [6] The Anshun principle prevents a party from bringing an action which, if it succeeds, will result in a judgment conflicting with an earlier judgment, where it was unreasonable for the party not to put its case in the earlier proceedings.
Thirdly, Doble's submissions at the hearing of the appeal diverged markedly from the written submissions filed on its behalf. Most of the written submissions were concerned with an argument based on s 5I of the Civil Liability Act 2002 (NSW) (CL Act) (an argument rightly described by the primary Judge as "misconceived") [7] and a rather confused challenge to the primary Judge's finding that visibility at the intersection at the time of the accident was 50 metres. [8]
Mr Campbell in substance abandoned the bulk of the written submissions and focused on two arguments (causation and contributory negligence) that were referred to in the written submissions, but not developed in detail. While it is not a bad thing for senior counsel coming into a case to refine the issues, the purpose of written submissions is defeated if they bear little relationship to the arguments ultimately put to the Court.

The Primary Judgment

The primary Judge recounted the evidence given by Mr Mead and Mr Hukins. Both were experienced professional drivers of heavy vehicles. Both were familiar with the area of the Hume Highway where the accident occurred. Mr Mead had no recollection of the accident because of the injuries he sustained, but gave evidence of his usual practices when driving a heavy truck.
Mr Hukins gave evidence that the Kenworth had an A trailer articulated with a B trailer. The prime mover was fitted with a 550 horse-power engine. The trailers were loaded with diesel fuel. The primary Judge summarised Mr Hukins' account of the collision as follows: [9] "69. He described the turnoff at the subject intersection as consistent with a slip lane with a traffic island in the middle. Travelling towards the Burley Griffin Way from Yass, he described the fog as thick. As he was stopped at the turnoff, he described seeing a lot of fog in front of his windscreen while looking at the northbound lanes from his cabin. He could not recall how long he was stopped for. He waited a while as there were a couple of cars and a truck which went past on the northbound lanes. 70. He stated that, as he came to the give way sign, he stopped his vehicle because he could not see due to the fog. By that time it was 'very thick' and 'a lot thicker' than he experienced leading up to the Burley Griffin Way, south of Yass. He stated that there was a dark coloured car which he could see in the mirror behind him. He stated that it was right behind him as he was waiting to cross. 71. He proceeded to cross when he felt an impact in his rear trailer. He looked in the left hand side mirror and saw a Tautliner. He looked in the right hand side mirror and saw the trailer on its side. He estimated the length of the prime mover to the B trailer as 24m. He stated that the fog, as he was waiting to cross was somewhere between 20 to 40m, 50m. 72. …He accepted…that it was very foggy in 'that particular part of the Hume Highway' and, in fact, he waited a considerable period of time while he looked at his options. He acknowledged that he looked to see if cars or trucks were coming in a generally northbound direction through the fog. Further, he conceded that before he went through, it was not safe to do so and it would pose a great risk to just drive through the intersection. He acknowledged that he waited but stated that he was committed to the intersection. … 74. Mr Hukins acknowledged that any cars coming out of the fog were at risk of collision as he took time to get across the intersection. He was aware that there was a serious risk of collision if he pulled out into the intersection. 75. He stated in re-examination that he would have needed 50m or thereabouts in order to get back onto the Hume Highway from the turnoff. There was no one driving with him in the vehicle who could have acted as a guide."
The primary Judge also recounted in detail the evidence of Mr Armour, who was driving a single cab four wheel drive Hilux diesel north along the Hume Highway behind the Volvo. Both vehicles were in the left hand lane. Mr Armour gave evidence as to the speed at which he and the Volvo were travelling and the visibility as the vehicle approached the intersection. According to the primary Judge, Mr Armour said that the fog was at a high level up to a point on the Hume Highway referred to as "Crisps gateway". At that point Mr Armour estimated that the Volvo was travelling at 100 km/hr. The fog became thicker as Mr Armour got to Crisps gateway and became even thicker 100 or 200 metres further on.
Mr Armour marked a plan of the area north of Crisps gateway with two "Xs". He said that when he reached the area of the second X, closer to the intersection, the fog had reduced visibility to 60 or 70 metres. [10] After about another two seconds, he observed brake lights on the Volvo and surmised that the driver of the Volvo had seen something of concern. At that point Mr Armour, who had been slowing down but was still behind the Volvo, estimated his own speed at 80-85 km/hr. [11]
Mr Armour then braked and heard the screech of other brakes. He saw a vehicle ahead that blended very much with the fog. About a second after braking he realised that the vehicle was a fuel tanker. Mr Armour observed the Volvo collide with the tail end of the tanker.
The primary Judge noted that in Mr Armour's cross-examination he said that he had been in thick fog from about a point approximately 400 metres past the "turnoff for Crisps". [12] Earlier there had been some confused and confusing cross-examination of Mr Armour. [13] He appeared to place the second X at the point about 400 metres past Crisps gateway and estimated the distance from the second X to the intersection at 200 to 400 metres.
The primary Judge noted that Mr Armour had been cross-examined in relation to a statement he made to the Police at the scene of the accident. [14] In that statement he said that when he "approached Crisps" the fog became thick, with visibility 50 metres at most, and he slowed down considerably to about 90 to 95 km/hr. His Honour also noted that Mr Armour had adhered to that statement when he was cross-examined in Local Court proceedings which arose out of the accident. [15]
The primary Judge recorded that Mr Armour, in his oral evidence in the District Court trial, maintained that he had been confused when making the Police statement and that it was "on the other side of Crisps that the fog became that thick". [16] However, his Honour also recorded that Mr Armour, towards the end of his cross-examination, appeared to accept that the thick fog began about 400 metres from the Crisps turn-off. [17]
The primary Judge then made a series of findings as follows: [18] "81 Although Mr Armour stated that he was confused, he also stated that it was past the gateway into Crisps that the fog then got thicker, I do not accept…this to the extent it conflicts with his statement to police. However I accept Mr Armour's evidence that, as the fog thickened, he allowed [Doble's] vehicle to go in front nearing the Burley Griffin Way. 82 [Doble] questioned the use of the evidence as to visibility based on the vantage points of other witnesses. Nevertheless I am satisfied that Mr Armour's statement was a reliable indicator of the visibility position confronted by Mr Mede [sic] particularly since they were traveling along the same path. I also accept that the visibility of Mr Hukins stationed at the intersection was 50 metres based on my assessment of the evidence… 83 It follows I do not accept that the visibility was 60 to 70 metres as contended by the Plaintiff. 84 I accept that, as [Mr Mead] entered into the heavy fog, his vehicle was travelling at least 90 to 95 km/hr. in circumstances of visibility of 50 metres. At this point, Mr Armour decelerated, according to his evidence, and Mr Mead was gaining on Mr Armour. Mr Armour's evidence was that the braking occurred about 2 seconds "or something like that" after entry into the thick fog. He accepted that the Crisps gate was 400 to 500 metres from the second X marked on Exhibit D. This left a further distance of approximately 200 metres to the intersection to the Burley Griffin Way from the second X on Exhibit D. 85 On the evidence I am satisfied that, at the time the Doble vehicle braked, it was travelling at approximately 80 km/hr."
The primary Judge made further findings as follows:

at the time Mr Mead saw the Kenworth, the latter's headlights would not have been visible to him and Mr Armour's evidence as to the "conspicuity" of the Kenworth's trailers should be accepted; [19]
his Honour was not satisfied that Mr Hukins sounded his horn or used his UHF radio to alert drivers listening to the highway channel; [20]
Mr Hukins could have taken an alternative route to reach West Wyalong (where he was heading) before entering the slip lane, but it was not feasible for him to reverse out of the slip lane once he had entered it; [21]
Doble had conceded that the Volvo was travelling at no less than 80 km/hr immediately before the collision; [22]
the NSW Government's Heavy Vehicle Drivers Handbook (Handbook) required drivers to have at least five seconds to react and completely stop when a hazard appeared and stated that if drivers could not see at least five seconds ahead, they had to slow down; [23]
even if a longer perception response time was required than that calculated by Mr Griffiths, a biomedical engineer called by Pierce, Mr Mead needed to ensure a "longer crash avoidance space" and to slow down significantly in the conditions he was confronted with; [24] and
His Honour accepted the evidence of Mr Griffiths that Mr Mead should have been travelling "at a significantly lower speed". [25]

The primary Judge then made findings in relation to Mr Hukins' actions as follows: [26] "143 The Pierce vehicle was 24 metres in length. The give way holding line and sign were set back approximately 8 metres and the total length of the crossing and the setback was approximately 16 metres. I accept that this meant that the tail end of the Pierce vehicle had to cross 40 metres before it would have cleared the road and would have had to do so from a stopped position…I accept that Mr Hukins did remain in second gear… … 145 I accept that Mr Hukins' headlights and clearance lights were activated at the time of the collision. Nevertheless, he should have anticipated, bearing in mind the fog conditions that prevailed, that a driver travelling in the opposite direction would have a restricted opportunity to see him. He was not entitled to rely upon the expected performance of drivers travelling in a north-bound direction and I do not accept that it was reasonable for him to do so. 146 Mr Hukins gave clear evidence that he did not use either of his horns. The evidence does not establish that such use would have avoided the collision. Whilst he asserted that he used his UHF radio, I do not for the reasons given accept that he used it. Despite Mr Hukins' evidence as to what use of his UHF may have secured it is speculative as to whether it would have led to information that might have prevented the accident. 147 I accept that Mr Hukins stopped at a give-way sign and waited. In the circumstances, it was impractical for him to reverse his vehicle to travel in a southbound direction. No doubt he could have, at an earlier time, continued to travel in a south bound direction and proceed to travel on the flyover. He chose not to do so. Having taken that course, he should have waited until it was safe to do so either by sufficient visibility so as to enable him to traverse the intersection with safety or clarifying the position of vehicles travelling in a northbound position (perhaps with the assistance of road authorities). Even though such a delay may have been inconvenient and even protracted I do not accept that to do so would be contrary to Road Rule 125. In the circumstances, I would not regard it as unreasonable." [27]
Under the heading "Breach of Duty", his Honour found that Mr Hukins' actions, in executing a right hand turn into Burley Griffin Way were in breach of the duty owed to Doble. The probability of harm if care was not taken was significant having regard to the length of the vehicle and the time required to navigate the crossing in circumstances of poor visibility. [28] His Honour was satisfied that within the terms of s 5D of the CL Act "the breach of duty was causative of [Doble's] loss". [29]
His Honour pointed out that in considering contributory negligence s 5R of the CL Act requires the Court to apply the principles that are applicable in determining whether a person has been negligent. So far as Mr Mead was concerned: "155 …[he] was travelling at an excessive speed in limited visibility brought about by heavy fog. As the handbook itself notes the allowances that need to be made in conditions of fog may need to greater. He knew that he was approaching an intersection clearly identified by a road sign which had a slip lane for vehicles seeking to turn into the Burley Griffin Way. He was familiar with the kind of vehicles that travel in a south bound direction along the Hume Highway even though he may not have personally seen a B double previously attempt to traverse the intersection. Whilst he had right of way it was wrong for him to assert it in the way that he did. 156. A reasonable person would have taken the precaution of slowing down so as to control the speed and direction so that he may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to the presence of the Pierce vehicle. On the findings I have made and the evidence of Mr Griffiths that I accept I am satisfied that Mr Mead did not do so. The probability of harm that would occur if care were not taken was high in a situation of such intersection with the visibility as I have found. The seriousness of the harm was high and the burden of taking such a precaution to avoid the risk materialising was not burdensome. No question of social utility arises. 157. Within the terms of s 5D of the 2002 Act, I am satisfied that the breach of duty of [Mr Mead] was causative of Pierce's loss." [30]

Doble's submissions

Mr Campbell did not dispute the primary Judge's finding that Mead was driving at no less than 80 km/hr immediately before the collision and that in doing so he breached the duty of care owed to Pierce. Nor did he dispute his Honour's finding that at the time of the collision thick fog limited visibility to 50 metres at the intersection of the Hume Highway and Burley Griffin Way. However, Mr Campbell contended that the primary Judge erred in finding that:

Mr Mead's negligence caused Pierce's loss; and
(assuming causation was established) Doble had been contributorily negligent to the extent of 40 per cent.

Mr Campbell submitted that Pierce had to fail on causation because it had not established on the balance of probabilities that Mr Mead's negligence was a necessary condition of the harm sustained by Pierce, as required by ss 5D(1) and 5E of the CL Act. [33] In supporting this submission, Mr Campbell contended that the evidence did not demonstrate that Mr Mead, had he exercised reasonable care, would have avoided the collision.
Mr Campbell advanced further arguments on the causation point. He contended that the evidence did not establish that there was sufficient time for Mr Mead to decelerate to a safe speed that would have enabled him to avoid the collision. Alternatively, he submitted that the primary Judge was required to make a finding as to the precise speed Mr Mead should have been travelling to enable him to avoid the collision. In the absence of such a finding, so it was argued, causation had not been established.
Mr Campbell submitted that if his submissions on causation were rejected, the primary Judge's discretion in relation to contributory negligence miscarried because his Honour failed to compare the culpability of each of the drivers and thus failed to undertake the task mandated by the High Court in Podrebersek. Mr Campbell invited the Court, when re-exercising its discretionary judgment apportioning responsibility, to find that Mr Mead (and Doble) bore 20 per cent of the responsibility and Mr Hukins (and Pierce) 80 per cent.

Causation

In Wallace v Kam, [34] the High Court pointed out that a determination in accordance with s 5D(1)(a) of the CL Act, that negligence was a necessary condition of the occurrence of the harm, is entirely factual. The issue turns on "proof by the plaintiff of the relevant facts on the balance of probabilities", as required by s 5E. [35] As their Honours explained: [36] "The determination of factual causation in accordance with s 5D(1)(a) involves nothing more or less than the application of a 'but for' test of causation. That is to say, a determination in accordance with s 5D(1)(a) that negligence was a necessary condition of the occurrence of harm is nothing more or less than a determination on the balance of probabilities that the harm that in fact occurred would not have occurred absent the negligence." It follows that Pierce bore the burden of establishing on the balance of probabilities that if Mr Mead had not been negligent, Pierce would not have suffered harm.

Was the negligence a necessary condition of the harm?

In my view, Doble's first submission on causation rests on a misunderstanding of the import of Mr Griffiths' report of 21 May 2015, to which the primary Judge referred in some detail. [37] Mr Griffiths was not asked to express a view on whether Mr Mead would have been unable to avoid the collision even if he had exercised reasonable care. Mr Griffiths did not address that issue either in his report or in his oral evidence. This is hardly surprising since Mr Griffiths was called by Pierce. Doble elected not to tender the report from the expert it had retained.
Mr Griffiths referred in his report to the Handbook, which addressed such matters as speed management, road positioning, crash avoidance space and response time. Among other things, the Handbook stated that vehicles should be driven at a speed within the speed limit that allows the driver to react and completely stop, unless the distance the driver can see is clear. It warned that if the driver "cannot see at least five seconds ahead" he or she must slow down. It further stated that a low risk driver should maintain a crash avoidance space that takes account of "reaction time" and "response time", concepts which the Handbook explained.
Mr Griffiths calculated that if the Volvo was travelling at 60 km/hr as it approached the intersection, Mr Mead could have brought the vehicle to a complete stop within 50 metres, which was "the longer end of his perception of the available forward distance in the fog". This calculation assumed a perception/response time of 1.5 seconds (stated in the Handbook to be the reaction time of a fit and alert driver) and a braking rate ranging from 0.6 to 0.7g.
Mr Griffiths recorded in his report that he had been asked to consider whether Mr Mead's vehicle was being driven at a speed in excess of that which was safe in the circumstances. He answered that question as follows: [38] "[Mr] MEAD was driving at a speed that was not compliant with the road rules as set out in the NSW RTA [now RMS] Heavy Vehicle Driver Handbook. This is because he was driving at a speed from which he could not bring his vehicle to a complete stop in the distance he could see ahead. His recollections in this regard are:- his forward visibility was 40 to 50 metres he was driving at a speed of 80 km/hr At [Mr] MEAD's speed of travel of 80 km/hr, he could not have responded safely to any stationary object on the roadway, such as a broken down vehicle, another road user who had slowed to a crawl in the fog, or, in this case, a vehicle turning across the roadway."
Mr Griffiths then calculated in his report, as requested by Pierce's solicitors, an appropriate speed to travel in the circumstances. He responded as follows: [39] "To be compliant with the road rules as set out in the Heavy Vehicle Driver Handbook, [Mr] MEAD needed to be able to perceive, respond and bring his vehicle completely to a stop within a distance of 40 to 50 metres. The RMS Heavy Vehicle Driver Handbook suggests most road users can respond in a perception/response time of 1½ seconds. During the perception/response time, motorists are commencing to see, then identify an object, determining whether a response is required, and if a response is required, what that response should be. That is, it is the thinking time, not the acting time. During this time, the vehicle continues to travel at whatever speed and direction it was prior to the commencement of the perception. This means that for the period of 1½ seconds, a vehicle travelling at travel at 60 km/hr for 16.67 metres/second, will continue to travel at 16.67 metres/second for 1½ seconds. During this time it will travel a distance of 16.67 x 1.5 equals 25m. Braking distance is the distance a vehicle travels after the brakes are actively applied. It can be dependent on many factors. Range of truck braking can vary considerably, but a well-designed and well-maintained truck should be able to achieve braking within the range of 0.6 to 0.7g. … For a velocity of 60 km/hr, and a rate of braking of 0.6g, it is calculated that braking distance equals:- 602/2x-0.6x9.8 = 23.6 metres Hence, the distance travelled during perception/response time is 25 metres, and the distance travelled during braking time is 23.6 metres, to give a total of 48.6 metres. If [Mr] MEAD had better brakes that could achieve a braking rate of 0.7g, then at 65 km/hr, the distance travelled during perception/response time would be 27 metres, a braking distance of 23.76 metres to give a total stopping distance of 50.76 metres. That is, with a better braking system, he could have travelled at nearly 65 km/hr. Hence, it is deduced that, depending on how well-designed and maintained [Mr] MEAD's braking system was, he could have travelled at a speed in the order of 60 to 65 km/hr to come to a complete stop in 50 metres. From this I calculated that a speed that was compliant with the road rules as set out in the Heavy Vehicle Driver Handbook, would be approximately 60-65 km/hr. If [Mr] MEAD's vehicle had been travelling at the speed suggested in the previous answer, on the balance of probabilities, could the subject accident have been avoided [?] If [Mr] MEAD had been travelling at 60 km/hr, or 65 km/hr if he had better designed and maintained brakes, then he could have brought his truck to a complete stop in the available visible distance of 50 metres. In those circumstances, the crash would have been avoided."
Mr Griffiths conclusions included the following: [40] "1. To comply with the NSW road rules, as interpreted in the NSW RMS Road Users Handbook and Heavy Vehicle Driver Handbook, drivers need to slow down in reduced visibility so that they can bring their vehicle to a complete stop within the distance they can see ahead. … 3. Analysis conducted in this report found that if [Mr] MEAD had slowed to a speed of 60-65 km/hr, he would have been compliant with the road rules and this crash would have been avoided."
As I understood his argument, Mr Campbell inferred from Mr Griffiths' report that Mr Mead would have been acting with reasonable care if he had reduced the speed of the Volvo to about 60 km/hr as he approached the intersection. Taking that as a starting point, Mr Campbell then argued that there may well have been other factors that would have prevented Mr Mead avoiding a collision even if he had been travelling at Mr Griffiths' nominated speed of 60 km/hr. For example, the Volvo's brakes might not have been as efficient as Mr Griffiths' calculations assumed and the wet conditions may have prevented Mr Mead bringing the vehicle to a stop within 50 metres if it was travelling at 60 km/hr. Since Pierce bore the burden of proof, it had not shown that Mr Mead, had he travelled at Mr Griffiths' safe speed of 60 km/hr, would have avoided the collision and thus would not have caused Pierce to sustain damage to the Kenworth.
Mr Griffiths commenced his analysis by expressing the opinion that to be compliant with the Handbook, Mr Mead needed to be able to stop within 50 metres since that was the limit of visibility at the relevant time. In expressing this opinion, Mr Griffiths reasoned from the "speed management" section of the Handbook, which stated that a driver should drive at a speed which allows the vehicle to stop within the distance that can be seen to be clear. Mr Mead, in his cross-examination, acknowledged that it was common knowledge among truck drivers that they had to drive at a speed that allowed the vehicle to stop within the distance that the driver can see is clear. Mr Mead also accepted that if a driver cannot see a distance equivalent to at least five seconds travelling time in front of the vehicle, he or she must slow down.
As appears from the above extracts, Mr Griffiths' calculations supported his opinion that Mr Mead was driving the Volvo at a speed that was unsafe in the prevailing circumstances. Mr Griffiths' conclusion that 60 km/hr would have been compliant with the road rules was inextricably linked to the fundamental proposition, stated at the outset of his analysis, that a driver of a heavy vehicle, to be compliant with the Handbook, must be able to stop the vehicle within the visibility limit. That is why Mr Griffiths expressed his conclusion as he did, namely that if Mr Mead had slowed to a speed of 60-65 km/hr he would have been compliant with the road rules and this crash would have been avoided.
On the evidence accepted by the primary Judge, visibility in the area of the intersection at the time of the collision was limited to 50 metres. Self-evidently, if Mr Mead drove the Volvo in the thick fog at a speed which enabled him to stop within 50 metres, the collision probably would not have occurred. Of course the terms of a road rule or guideline do not necessarily determine what reasonable care is required in particular circumstances. [41] But the primary Judge was entitled to act on Mr Griffiths' substantially unchallenged opinion that in order to have driven safely, Mr Mead should have reduced his speed so that he could have stopped within the limit of visibility. After all, Mr Mead knew, both from his familiarity with the Hume Highway and a sign warning of the nearby intersection, that he was approaching a point at which vehicles might attempt to cross his path.
In my opinion, Mr Griffiths' report cannot be understood as suggesting that Mr Mead, acting reasonably, could drive the Volvo at 60-65 km/hr in the thick fog even if there were circumstances that may have impeded his ability to stop the vehicle within the limit of visibility. Certainly it was not put to Mr Griffiths that his report should be understood in that way. Nor was it put to Mr Griffiths that in the prevailing conditions it was unlikely that Mr Mead, had he reduced his speed to 60 km/hr, could have stopped the Volvo within the visibility limit of 50 metres and that it was therefore likely that the collision was unavoidable. Mr Mead himself gave no such evidence.
In my opinion, the evidence adduced in this case supported a finding that had Mr Mead exercised reasonable care, the collision would have been avoided. In terms of s 5D(1)(a) of the CL Act, had Mr Mead not been negligent, the evidence established on the balance of probabilities that Pierce would not have sustained the harm resulting from the collision. This is because the exercise of reasonable care required Mr Mead to drive at a speed that enabled him to stop within the limit of the visibility, namely 50 metres. This is in substance what the primary Judge found. [42]

Could the Volvo have been stopped in time?

Doble's counsel submitted at the trial that there was no evidence that Mr Mead could have reduced the speed of the Volvo within the time available to a speed that would have avoided the collision. The basis of the submission was that if Mr Mead applied his brakes, there was a danger that the Volvo would jack-knife, thereby creating an unacceptable risk to other road users. The primary Judge's answer to this contention appears to have been that Mr Mead needed to ensure that he maintained a crash avoidance space that was suited to the circumstances of thick fog. Had he done so, the collision would have been avoided. His Honour implicitly accepted that Mr Mead could have slowed to a safe speed that would have allowed him to avoid the collision.
Mr Campbell's submission in this Court rested on the proposition that the thick fog commenced at the point Mr Armour marked with the second X, which the primary Judge seems to have accepted was about 200 metres from the intersection. It is true that some of Mr Armour's evidence can be read as suggesting that the thick fog commenced about 200 metres from the intersection. However, Mr Armour's evidence was in parts confused and sometimes inconsistent. His statement to the Police on the day of the accident placed the commencement of the thick fog at the point where he "approached Crisps", perhaps as much as 800 metres before the intersection. Mr Armour was extensively cross-examined at the trial on this statement and on his evidence in the Local Court proceedings. The cross-examiner put to Mr Armour that he had been in a thick fog from about a point 400 metres past the Crisps gateway. Why the cross-examiner put this proposition is not clear, having regard to the contents of Mr Armour's Police statement. But Mr Armour agreed with it, indicating that the band of thick fog was likely to have commenced about 400 metres from the Crisps gateway, or about 400 metres from the intersection.
Mr Armour's evidence that the thick fog commenced at least several hundred metres from the intersection receives support from a Police statement made on the day of the accident by a Mr Gorissen, whose vehicle collided with a utility that also hit the Kenworth. Mr Gorissen estimated that the thick fog commenced about half a kilometre from the turn-off to the Burley Griffin Way. Mr Gorissen did not give evidence and so was not challenged on his estimate.
The primary Judge's finding as to the point at which the thick fog commenced is not as clear as it might have been. Nonetheless, his Honour specifically rejected Mr Armour's oral evidence that the fog got thicker past the Crisps gateway to the extent it conflicted with his Police statement. [43] A fair reading of the judgment is that his Honour found that the fog became very thick at about the Crisps gateway. Although his Honour accepted that Mr Armour's second X was at a point about 200 metres from the intersection, I do not understand his Honour to have found that the thick fog did not commence until that point.
On this interpretation of the Primary Judgment, Mr Mead had at least 500 metres and possibly a considerably longer distance to reduce speed before arriving at the intersection. On any view, that gave him ample time to slow the Volvo to a speed that allowed him to stop, if necessary, within the visibility limit of 50 metres.
I should add that even if the primary Judge found that the band of thick fog commenced about 200 metres from the intersection, I would reject Doble's submission that Mr Mead had insufficient time to slow down to a speed that would have enabled him to avoid the collision. The submission seemed to assume that Mr Mead was acting with reasonable care by heading into the thick fog at 90-95 km/hr without making any attempt prior to that point to reduce the speed of the Volvo.
Mr Armour's evidence was that the fog became thicker as he got to Crisps and as he proceeded beyond the Crisps gateway. Putting Mr Armour's uncertainty about the precise location of the thick fog to one side, his evidence suggests that the thickening of the fog became evident over some distance as he proceeded north towards the intersection.
Mr Mead gave evidence of his practice when approaching fog, as follows: [44] "Q When you go into fog, you indicate you take your foot of [sic] the accelerator and the engine brake kicks in, is there any particular purpose or any particular distance that you would do that for? A Prior to hitting the fog? Q Yes. A. You would back off - once you saw the fog, you would back off the accelerator immediately and let the truck slow down somewhat. You'd have to gauge each situation obviously a little bit different so, yeah, you have to gauge every situation differently because I don't think it's a set routine but personally approaching the fog, off the accelerator, let the brakes kick in and obviously act according to what I see. Q Is it the case, correct me if I'm wrong, but there are degrees of fog, put it that way? A Yes. Q Is it the case, and you can correct me if I'm wrong, but you sometimes get a light fog and you sometimes get a medium fog and you sometimes get a heavy fog? A Correct. Q There are gradations in between? A There are, yep. Q Is it the case that a fog might develop from one to the other? A For sure. Q Do you take into account, in any way, variations in the fog in your driving? A Yes. Q How do you do that? A Adjust your speed accordingly to the conditions and obviously your position on the road as well. Depend [sic] on what you see"
The reference to the "engine brake kicking in" is to the exhaust brake system on the Volvo. Mr Mead explained that the exhaust brake is: [45] "an air operated brake system of the prime mover. And what it does is, it uses the air that it generates in the engine, to, to apply the brakes, rather than me using my foot to do it. It's an extra braking system. So you can use it as opposed to using your foot brake, or in conjunction with." Mr Mead also said that the exhaust brake is very effective and that it would only take "a couple of seconds" to reduce the Volvo's speed from 100 km/hr to 80 km/hr.
The primary Judge found that Mr Mead, in the exercise of reasonable care, should have ensured that he maintained a larger "crash avoidance space". [46] In view of the evidence, this finding was a reference not merely to Mr Mead's actions once he found himself in the "pea-soup" but to the precautions he needed to take as he approached the band of thick fog. Entering the thick band of fog at a speed only 5-10 km/hr lower than the speed limit for trucks (100 km/hr) obviously prevented Mr Mead being able to stop anywhere near the limit of visibility. Assuming (contrary to the weight of evidence) that the thick band of fog commenced 200 metres from the intersection, Mr Mead must have been aware that he was rapidly approaching the intersection and that there was a risk that a vehicle would attempt to cross his path.
Had Mr Mead been acting with the care and skill to be expected of an experienced driver of a large truck, he would have entered the thick band of fog at a speed that would have enabled him to reduce his speed so that he would have been able to stop within the visibility limit before he reached the intersection. Thus, even if the thick band of fog commenced 200 metres from the intersection, Mr Mead could have avoided the collision had he not been negligent.

Did the primary Judge need to identify a precise safe speed?

Mr Campbell's third argument on causation was something of an afterthought. He submitted that Pierce bore the onus not only of establishing that the accident could have been avoided had Mr Mead exercised reasonable care, but of establishing the speed that Mr Mead should have been travelling in order to avoid the accident.
Sections 5D(1) and 5E of the CL Act impose no such universal requirement. The plaintiff (in this case Pierce) must prove that the defendant's (in this case Doble's) negligence was a necessary condition of the harm. For the reasons I have given, Pierce discharged that burden. It did so by establishing that Mr Mead was negligent in driving the Volvo in thick fog in a manner that prevented him from stopping within the prevailing limit of visibility. Had he driven with reasonable care he could have avoided the collision.
Mr Campbell cited Mobbs v Kain [47] in support of his argument. In that case, the defendant was driving her vehicle within the speed limit of 40 km/hr and keeping a proper look out. Her vehicle struck a child who emerged suddenly from in front of a stationary bus. The child was obscured from the driver's view until almost the very last moment. The trial Judge found that the driver had been negligent because she drove at an excessive speed. However, the Judge made no finding as to a speed that would have avoided the accident.
The Court of Appeal held that in the absence of a finding as to the "safe" speed, it could not be known whether the driver could have avoided the accident. As McColl JA found, [48] the trial Judge did not identify the negligence that was a necessary condition of the occurrence of the harm and the plaintiff had not established that any conduct of the defendant caused the injuries. Rather, as a matter of common sense the accident was caused by the child dashing across the road. [49]
Mobbs v Kain does not stand for the proposition that in order for the negligence of a speeding defendant to be found to be causative of the plaintiff's loss, the plaintiff must establish the precise speed the defendant should have been travelling. What is required to establish causation in accordance with ss 5D(1)(a) and 5E of the CL Act will depend on the circumstances of the particular case.

Contributory negligence

The primary Judge quoted the passage from Podrebersek that explains the task a judge must undertake in apportioning responsibility for the harm caused by an accident. The passage is as follows: [50] "The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man (Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42-49 and Broadhurst v Millman [1976] VR 208 at 291, and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance."
The primary Judge also gave reasons for finding that Mr Hukins breached the duty of care he owed to Doble and that Mr Mead breached the duty of care he owed to Pierce. [51] What he did not do, however, was to compare the culpability of Mr Hukins and Mr Mead for the harm, by reference to the degree of departure from the standard of care of the reasonable person and to the relative importance of their acts in causing the damage. His Honour simply stated a conclusion. For that reason, his discretionary assessment of contributory negligence miscarried and this Court must make its own apportionment of responsibility.
In my view, both drivers bore a high degree of culpability for the collision. Mr Hukins drove a 24 metre long heavy vehicle across a dual carriageway from a standing start. The vehicle was carrying a load of diesel fuel. Mr Hukins attempted the crossing in thick fog which reduced visibility to 50 metres. Although the Kenworth's headlights and clearance lights had been activated, [52] the "conspicuity" of the trailers was such that the Kenworth tended to blend in with the thick fog. The Kenworth had to traverse a distance of about 40 metres before it was clear of the north bound lanes of the Hume Highway. Consequently, there was a period of time, not precisely measured in the evidence, during which, as Mr Hukins acknowledged, the presence of the Kenworth created a serious risk of a collision with northbound traffic on the Hume Highway.
As the primary Judge found, Mr Hukins neither sounded the horn on the Kenworth nor gave a warning on the UHF radio. [53] It is unclear whether either action would have made any difference to the events which occurred. But Mr Hukins, having decided to perform the right hand turn from the slip lane, plainly should have utilised whatever mechanisms were readily available to him to minimise the inevitable risk of a collision.
While Mr Hukins seriously departed from the standard of reasonable care, there is one matter that in my opinion modestly reduces the degree of his culpability. Mr Hukins' initial error, on the primary Judge's findings, was to enter the slip lane with the intention of turning into Burley Griffin Way. Had he exercised reasonable care, Mr Hukins would have continued on the Hume Highway travelling south towards an alternative turn off that was available to him.
Once Mr Hukins was in the slip lane he did not attempt the right hand turn immediately, but waited some time apparently in the hope that visibility would improve. At this point, Mr Hukins initial decision to enter the slip plane placed him in a difficult situation. As the primary Judge found, it was not feasible for Mr Hukins to reverse the Kenworth out of the slip lane back onto the Hume Highway. Not only had a vehicle entered the slip lane behind the Kenworth, but Mr Griffiths' evidence, accepted by the primary Judge, was that a multiple articulated vehicle could not be reversed safely in that location. Mr Griffiths also said that it was not practicable for Mr Hukins to attempt to return to the southbound lanes of the Hume Highway by driving the Kenworth forward.
Having made the ill-judged decision to enter the slip lane, Mr Hukins' choices were to remain stationary until the thick fog lifted sufficiently to allow a safe crossing of the Hume Highway or to take the risk and complete the crossing anyway. Mr Hukins clearly should not have proceeded with the right hand turn until the thick fog lifted sufficiently for visibility to improve markedly. Nonetheless, he faced something of a dilemma, albeit as a result of his ill-judged decision to enter the slip lane. To remain stationary would have held up the vehicle behind the Kenworth and perhaps others entering the slip lane for an indefinite period. On the other hand, turning into Burley Griffin Way created the serious risk of a collision. Mr Hukins made a second ill-judged decision.
Mr Mead also departed seriously from the standard of reasonable care required of a driver in his position. On any view, he was driving a large truck considerably in excess of a safe speed in dangerous conditions. He was an experienced truck driver who knew (both from his own knowledge and a prominent road sign) that he was approaching the intersection with Burley Griffin Way. While he may not have expected a 24 metre articulated vehicle to be crossing the Hume Highway, he must have appreciated that there was a real possibility that vehicles would be crossing the north bound lanes of the Hume Highway in the thick fog.
On the view I take of the facts, Mr Mead traversed at least several hundred metres of thick fog without slowing to a speed that was anywhere near safe for the conditions. Even if the band of thick fog commenced about 200 metres from the intersection, Mr Mead had ample time to slow down from a point where he appreciated that the fog was thickening to a speed that was reasonably safe. Instead he proceeded at a speed that involved a serious risk of a collision with a turning vehicle.
I would assess Mr Hukins' degree of departure from the standard of reasonable care to be a little greater than Mr Mead's, largely because the size of the Kenworth and the nature of the load created a particular danger in the difficult driving conditions and thus had greater importance than Mr Mead's conduct in causing the damage. However, I would not assess Mr Mead's share of responsibility at any less than 40 per cent. I would therefore not reach any different conclusion on contributory negligence than the apportionment of responsibility adopted by the primary Judge.

Orders

Doble should be granted an extension of time in which to file its Notice of Appeal, but the appeal should be dismissed. Doble should pay Pierce's costs of the appeal.
Hall J: I agree with the reasons of and orders proposed by Sackville AJA.

Endnotes

Doble Express Transport Pty Ltd (Administrator Appointed) v John L Pierce Pty Ltd [2015] NSWDC 285 (Hatzistergos DCJ) (Primary Judgment) at [149]-[150].
Primary Judgment at [155].
Primary Judgment at [150], [157].
Two of which were half days. Additional time was taken up with a costs argument.
Doble Express Transport Pty Ltd (Administrator Appointed) v John L Pierce Pty Ltd, unrep, District Court, 27 May 2015.
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45 at 602-603 (Gibbs CJ, Mason and Aikin JJ); see also Gibbs v Kinna [1999] 2 VR 19; [1998] VSCA 52 at [25]-[26] (Kenny JA, Phillips JA agreeing).
Primary Judgment at [165].
Primary Judgment at [82]-[83].
Primary Judgment at [69]-[72], [74]-[75].
Primary Judgment at [50].
Primary Judgment at [51].
Primary Judgment at [59], referring to Black 126.
Black 108-110. My description, not the primary Judge's.
Primary Judgment at [55].
Primary Judgment at [56].
Primary Judgment at [57].
Primary Judgment at [59], referring to Black 126.
Primary Judgment at [81]-[85].
Primary Judgment at [90], [93].
Primary Judgment at [146].
Primary Judgment at [114].
Primary Judgment at [118].
Primary Judgment at [114], [122].
Primary Judgment at [135].
Primary Judgment at [135].
Primary Judgment at [143], [145]-[147].
The reference in the Primary Judgment at [147] to "Road Rule 125" appears to be to r 125 of the New South Wales Road Rules 2008, which stated that "A driver must not unreasonably obstruct the path of another driver or pedestrian".
Primary Judgment at [149].
Primary Judgment at [150].
Primary Judgment at [155]-[157].
[1985] HCA 34; 59 ALJR 492 (Podrebersek) at [10].
Primary Judgment at [159].
Section 5D(1)(a) of the CL Act provides as follows: (1) a determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation)… Section 5E states that in proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.
(2013) 250 CLR 375; [2013] HCA 19.
Wallace v Kam at [14].
Wallace v Kam at [16].
Primary Judgment at [130]-[134].
Blue 96.
Blue 98-99.
Blue 99.
Lanza v Codemo [2001] NSWSC 845 at [169] (Wood CJ at CL), cited with approval by Mason P in Francis v Lewis [2003] NSWCA 152 at [43] (Hodgson and Tobias JJA agreeing).
Primary Judgment at [155]-[157], reproduced at [34] above.
Primary Judgment at [81].
Black 33.
Black 30.
Primary Judgment at [135].
[2009] NSWCA 301; 54 MVR 179.
Mobbs v Kain at [109]-[110] (McColl JA, Macfarlan JA agreeing).
See also Mobbs v Kain at [8]-[10] (Giles JA).
Podrebersek at [10] per curiam; See also Astley v Austrust Ltd (1999) 197 CLR 1; [1999] HCA 6 at [30] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
Primary Judgment at [149]-[150], [155]-[157].
Primary Judgment at [87], [88], [93].
Primary Judgment at [146]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 December 2016

Road Rules 2008(NSW)

At a glance

Court

Decision date

Before

Source

Judgment (14 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (14)

Cited By (1)