King v Sexton & Green & Anor

King v Sexton & Green & Anor - [2000] NSWCA 340 - NSWCA 2000 case summary — Zoe

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BEAZLEY JA: Introduction 2 This is a plaintiff's appeal from a decision of Dunford J in respect of the plaintiff's claim for damages arising out of a single vehicle road accident in which the plaintiff was the driver. The first respondent is the company from which the appellant purchased the Holden Rodeo utility 11 months earlier and which had serviced it since purchase. The second respondent is the importer and general distributor of the vehicle. The hearing was limited to the determination of liability only. 3 The accident occurred on the evening of 25 April 1986 when the appellant's vehicle, a Holden Rodeo utility truck, ran off the Mount Lindsay Highway in northern New South Wales, collided with an embankment on the opposite side of the road and overturned. The appellant was thrown from the vehicle and sustained severe injuries. When admitted to Tenterfield Hospital some hours after the accident he was diagnosed with a blood alcohol reading of 0.229. There were no witnesses to the accident and the appellant has no memory of it. When the vehicle was inspected the morning after the accident, the linkage to the front left steering was found to be broken. 4 It will be necessary in due course to deal with the specific claims made against each respondent. However, the major issue argued at trial and on the appeal was the point at which the steering linkage broke. The case presented on behalf of the appellant was that it broke prior to and was the cause of the accident. The respondents asserted that it fractured when the vehicle collided with the embankment immediately preceding the vehicle overturning. On the respondents' case, therefore, the fracture was caused by the accident and was not a cause of it. 5 The trial judge found in favour of the respondents, finding that the steering linkage broke when the vehicle hit the embankment on the eastern or right hand side of the road. In reaching that conclusion his Honour accepted the theory propounded by Mr Keramidas, the engineering expert called on behalf of the second respondent. It will be necessary to deal in some detail with Mr Keramidas' evidence. Before doing so, however, I propose to set out his Honour's factual findings as to how the accident occurred and to then deal with the non-expert evidence in the case. The purpose of approaching the matter in that way is to examine whether his Honour's acceptance of Mr Keramidas' theory to explain the accident is supported by the evidence.

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Trial Judge's Findings 6 The essential findings made by his Honour were as follows. 7 The accident happened between 9.20pm and 9.30pm on 25 April 1986 on the Mount Lindsay Highway, just north of Tenterfield. The highway at that point consists of two lanes, running generally in a north/south direction, with one lane for each direction of travel. When driving in a northerly direction from Tenterfield, the road descends in a straight run of about two hundred metres to a concrete bridge over Branch Creek, after which it commences a sweeping right hand uphill curve. There was a gravel shoulder on each side of the bitumen, commencing shortly after the end of the bridge. A little further north, on the eastern side of the road (being the right hand side of the road for traffic travelling north) there was a low ditch or gutter at the edge of the shoulder. Beyond the ditch there was an embankment and further on again the terrain became rough and uneven. The plaintiff was driving in a northerly direction at the time of the accident. It was fine and dark and there was no street lighting. There was no dispute about these matters, either at trial or on the appeal. 8 Although there was a dispute at trial, there was no dispute on the appeal as to his Honour's finding that, approximately twenty five metres north of the northern end of the bridge, the appellant's vehicle went to the left and the left or passenger side wheels went off the road and travelled along the gravel on the western edge of the road. About thirty metres further north the vehicle veered sharply to the right across the roadway hitting an embankment on the eastern (or opposite) side of the roadway. It rolled or flipped once only in a front end roll and landed on its roof, ending up approximately ninety metres north of the bridge. His Honour felt unable to reach a conclusion as to whether there was more than one impact, but said that there"… was probably more than one". The respondents embraced the trial judge's view that there was probably more than one impact, whereas the appellant asserted there was only one. It is convenient to note at this point however, that Mr Keramidas' theory was not dependent on the number of impacts. 9 His Honour found that there was damage to the front left wheel assembly area and the right side front of the vehicle where the bull bar was deformed. 10 His Honour found that there were scuff marks on the outer shoulder of the front left hand tyre (this tyre was marked Exhibit Q in the proceedings), and similar scuff marks on one other tyre (being the tyre marked Exhibit R). The location of this tyre at the time of the accident was a matter of significant dispute at trial and on the appeal. His Honour found that the tyre, Exhibit R, was located on the left hand rear wheel at the time of the accident. It is the appellant's case that Exhibit R was located on the front passenger side of the vehicle at the time of the accident. There were also two abrasions on the left front wheel well (that is, on the metal part of the chassis which forms the inside of the wheel wall and the outside of the engine compartment). One mark was on the front and one on the back. His Honour appears to have accepted and it was agreed by all the experts, that the marks were made by the wheel after it was disconnected from the steering linkage but while it was still rotating. 11 There had been no apparent problem with the steering of the vehicle prior to the accident and no evidence that this particular model vehicle had been subject to steering failure. 12 His Honour concluded that the steering linkage failed upon impact with the embankment. This finding involved an acceptance of the evidence of the first respondent's expert, Mr Keramidas, that as the vehicle began to veer to the right it was in a right hand yaw during which it crossed from the left to the right hand side of the road and onto the gravel verge and into the embankment. The appellant conceded at trial that the force of the impact with the embankment on the eastern side of the roadway was of itself sufficient to cause the separation of the steering linkage, although its case at all times remained that the steering linkage broke before the impact. 13 His Honour's acceptance of Mr Keramidas' theory as to the dynamics of the accident was predicated, in large measure, on his finding that the tyre, Exhibit R, was on the back left hand side of the vehicle . His Honour said: "Accepting as I do that at the time of the accident exhibits Q and T were on the front and exhibit R on the left hand rear, the scuff marks on the tyres, according to Mr Keramidas, the motor traffic engineer, indicate what he termed a 'right hand yaw', that is a loss of control of the vehicle causing it to swerve to the right". 14 His Honour, in making this finding, dismissed the significance of the marks on the roadway and found that Exhibit R was on the left hand rear hub at the time of the accident. His Honour concluded that the accident happened in circumstances where the appellant: "whilst affected by liquor, either dosed off or had a lapse in concentration with the result that when the vehicle left the bridge he failed to commence the right hand curve and travelled onto the gravel shoulder on the western or left hand side of the road. When he realised what had happened he over corrected the steering to the right at too sharp an angle, lost control, went into a yaw, left the road on the right hand side, hit an embankment or other obstruction and overturned; and that the impact involved in hitting the embankment and overturning caused the fracture of the steering linkage."

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Senior Constable Newell 16 A local police officer, Senior Constable Newell, visited the accident scene and found the vehicle on its roof on the eastern embankment facing approximately south east. He stepped out various distances to which I will refer and entered the details in his occurrence pad later that night at the police station. He revisited the scene the next day and confirmed his measurements with a measuring tape. In addition to the occurrence pad entry, Constable Newell made at least two Traffic Collision Reports, (called P4's), one on the night of the accident when he returned to the police station, (Exhibit 6 in the proceedings) and one some weeks later (Exhibit M). These two exhibits featured prominently in the proceedings and it will be necessary to return to them. 17 Upon inspection of the site, Constable Newell found a single tyre mark on the western shoulder of the road, commencing about 25 metres north of the northern end of the bridge. It ran outwards to the left at a gradual angle from the bitumen for a distance of about 26 metres. He also saw two heavy black tyre marks running across the bitumen at an angle of about 45 to 50 degrees to the tyre mark on the shoulder. In describing the nature of the marks across the road, Constable Newell said: "A They were very unusual. They were at a very unusual angle. I had seen tyre marks like that before in an intersection accident when one car had been pushed by another car. I estimated that it was … between 45 and 50 degrees. Q From? A From the heavy wheel mark in the gravel." 18 He believed the more northerly of the two marks on the bitumen was a continuation of the tyre mark on the gravel shoulder. The marks ran across the road onto the right hand or eastern shoulder and left a gouge in the embankment. He measured the marks across the road as 15 metres long, commencing from the end of the heavy wheel mark in the gravel on the left hand side of the road to the gouge marks in the earth of the embankment. When asked whether there was any "rounding of the marks, or were they at an angle", he responded: "The marks were just at an angle. They just veered to the right." 19 Constable Newell said that he remembered the marks clearly and that their unusual nature is what made him remember the accident. Constable Newell did not record on his P4s or in his occurrence pad the existence of any gouge marks on the roadway itself. He said had he seen such marks he would have recorded them. 20 At trial there were two significant areas of contention as to Constable Newell's account of his observations at the scene of the accident. One was in relation to the point of collision. That was resolved by the trial judge by accepting as correct the measurements recorded in his occurrence pad, and which Constable Newell confirmed in his evidence. That matter was not in issue on the appeal. The second area, and one which remained of prime importance on the appeal, was in relation to the angle at which the vehicle veered across the road, and more particularly, whether it moved in an arc like direction or sharply at an angle.

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Mr Foan 21 As at the date of the accident Mr Foan was the general service manager of the NRMA's Tenterfield agent, David Booth Ford. He is an automotive engineer, with a background not only in mechanics and automotive engineering, but also as an armourer and service policeman in the airforce and later in the army. In his capacity as a service policeman he had investigated hundreds of motor vehicle accidents. As part of his duties in investigating accidents he was required to measure distances, note and measure marks on the road and to observe and record tread widths and patterns on tyres and to marry them up with marks on the road. 22 The morning after the accident Mr Foan inspected the vehicle which had been towed to the NRMA compound at David Booth Ford's premises. He noticed damage to the cabin and bonnet and the front panel and slight damage to the rear of the vehicle. In relation to the front panel damage he observed the bull bar had been broken off its mountings and had been pushed "hard up against the front grille and headlight area of the vehicle". He said it was pushed back directly across the front and not more to one side than the other. 23 Mr Foan also observed the tyres of the vehicle. He said that there were four tyres on the vehicle when he inspected it that morning and a tyre in the spare tyre rack. He identified Exhibits Q and R respectively as being the tyres which he observed on the front left and front right of the vehicle that morning. He observed they were both deflated and that there was a dent in the rim of the tyre on the left side (Exhibit Q) and the beading was off the rim of the right tyre (Exhibit R). He also observed scuff marks on the outer circumference of the two front tyres. He identified the tyre, Exhibit S, as being the one he observed in the spare tyre rack. He identified Exhibit T as being the tyre which was on the rear left hand side of the vehicle and Exhibit U as being on the rear right hand side. Exhibits T and U were inflated when he saw them that morning. 24 After inspecting the vehicle, Mr Foan visited the site of the accident. He too observed a tyre mark on the western shoulder about 25 metres north of the bridge. However, he did not consider it was related to the appellant's accident. He was not asked to explain this conclusion. He saw two parallel light black marks on the roadway which, he said, were a track width wide. The track width of a vehicle is the distance between the wheels on the same end. The marks then veered right at an angle of about 55 to 60 degrees. He emphatically refuted a suggestion the angle might have been about 30 degrees. There was a gap of about a foot between the light marks and other heavy marks and some gouge marks on the bitumen at the commencement of the heavy black lines. The gouge marks were each on the left hand side of the dark black marks. Assuming these marks came from the tyres on the vehicle, the gouge mark made by the left hand tyre was about 3 inches wide and 10 inches long, the one made by the right hand tyre was the same width and about 8 inches long. The marks were about ½ to one inch deep, sufficient to cause the blue metal to crumble. 25 From the tyre marks and debris on the right hand side of the road, Mr Foan assessed the distance from the end of the bridge to where the vehicle ended up to be about 70 to 80 metres. 26 From the fact that he saw two, not four, tyre marks on the roadway, he deduced that there had been no braking as: "Usually if a vehicle brakes or anything, you usually have four tyre marks on the road."

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Mr Jupe 28 Mr Jupe was the tow truck driver who retrieved the vehicle from the scene of the accident and towed it to the NRMA compound at David Booth Ford. He said he found the vehicle about 50 to 60 metres north of the bridge. He could not recollect many other details of the scene of the accident. He was asked about his practice when towing vehicles: "Q Can you tell us the procedure you normally followed if you found the vehicle lying on its roof on the road and you wanted to tow it back into town? A You check to see under two, whatever end was damaged you check to see you have two pumped up tyres before you rolled it over because it was easier to do it if it was upside down if that was the case. Q Assume that the vehicle had … most of its damage to the front? A Yes. Q Which way would you tow the vehicle back in? A Front end lift." 29 In the normal course, the spare tyre on this vehicle was located in a rack underneath the tray of the vehicle and could only been released by use of a crank handle which was supplied with the vehicle. Mr Jupe did not carry a crank handle with him or any other tool which would have enabled him to get a hold of the spare tyre. As he explained "they have got a special socket head on them". He said that had one of the rear tyres been deflated at the scene of the accident, then, provided there was at least one inflated tyre on the front, he would not have used the spare tyre, but would have used one of the front tyres. He was adamant that in that circumstance he would not have placed the removed deflated rear tyre on the front but "would have just put it on the back of the tow truck". When asked whether there would be a reason for that he responded candidly "no, it's just extra work for nothing". In relation to this accident he said: "If the vehicle had four tyres on it the next morning hypothetically, that means the two back tyres were pumped up. I wouldn't have touched them. If it had three tyres on the next day, I would have changed one of them."

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Mr Bartrim 30 Mr Bartrim was a motor mechanic who had been a friend of the appellant's for approximately sixty years. He inspected both the scene of the accident and the vehicle the day after the accident. The vehicle was still located in the NRMA compound at David Booth Ford. He thought that both front wheels were on the vehicle but deflated at the time of his inspection because he had trouble getting underneath the vehicle. He did so, however, and observed that the front left steering linkage had been broken. 31 At the scene of the accident, he observed wheel marks on the road about 30 metres north of the bridge. He estimated the wheel marks were approximately 30 metres in length and were veering to the left. The mark from the left wheel went into the gravel a little before the end of that 30 metres. The marks then veered from the left hand side of the road across at "an angle of 60 to 70 degrees" to the road. The marks extended all the way across the bitumen. He saw only two tyre marks, which he described as being the width of the vehicle, that is the track width of the vehicle. He said that although in his 25 years as a motor mechanic he had attended the scene of "quite a few" accidents, he had never seen marks from a one car accident at an angle such as he observed here. He estimated the flattened area of the grass which he assumed was the place where the vehicle came to a rest as being "80, 85 metres" north of the bridge. 32 He saw gouge marks in the embankment on the right hand side of the road and deduced that the vehicle had tipped end to end. The gouge marks were about three metres from the edge of the bitumen and he estimated that the vehicle had come to rest another three to four metres further on. He also believed the vehicle had collided with a guide post on the left hand side of the road. 33 He was cross-examined about his assessment of the angle of 60 to 70 degrees at which the vehicle had veered across the road: "Q … in terms of the marks that you saw on the road and particularly the marks that indicated to you that there was an angle of 60 to 70 degrees, is it possible that you might be mistaken about that? A I am sure, not for the simple reason, um - that at the time I realised that you couldn't turn a vehicle actually that sharp. Q Is it possible that the angle you in fact observed was more of the vicinity of 30 degrees? … A No, no."

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Summary of the Lay Evidence 38 Leaving aside the respondents' witnesses evidence as to the place where the vehicle came to rest, which was not accepted by his Honour, the following emerges from the lay evidence. 39 The vehicle ended up on its roof, having flipped once. There were tyre marks going north, the left one running off the road onto the gravel. The marks then veered across the road at a sharp angle - estimated variously at between 45 - 50 degrees and 70 degrees. All the witnesses who observed the marks on the roadway described the angle of the marks as "very unusual", or said they had never seen marks like that in a single car accident. They all refuted any suggestion that the marks were at any angle of about 30 degrees or were rounded or formed an arc. All witnesses were consistent in their evidence that the marks were a track width, that is the width of a vehicle, apart and did not vary in width as they went across the road. 40 The appellant's lay witnesses were also consistent as to the distance from the bridge at which the vehicle came to rest. The estimates varied from 70 to 90 metres. Constable Newell's measurement was 90 metres and that was accepted by his Honour. 41 Only Mr Foan saw gouge marks on the roadway. Constable Newell said that had there been such marks he would have recorded them. 42 The three witnesses who saw the vehicle the day after the accident say four tyres on the vehicle - the front two being deflated. Mr Jupe, the tow truck driver, said that he did not have the tools required to take the spare tyre of the vehicle out of its rack. He said that if there were four tyres on the vehicle the following morning, he would not have changed either of the rear tyres. 43 Notwithstanding the consistency of the evidence from mostly unrelated witnesses in the appellant's case, his Honour did not make any express findings relating to the tyre marks on the road or the angle at which those marks went across the road. He also rejected the significance of the tyre marks on the roadway to the appellant's expert witnesses and did not deal with that matter in relation to Mr Keramidas' evidence. It is necessary, however, for reasons stemming directly from Mr Keramidas' own evidence, to test his theory against the evidence of the appellant's lay witnesses.

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Mr Keramidas' Expert Opinion 44 Mr Keramidas is a consulting forensic engineer specialising in motor vehicle collision reconstruction. He was of the opinion that the vehicle had travelled across the road from left to right in a yaw motion. A yaw involves "the rotation of an object about its vertical axis". Mr Keramidas described this more particularly in relation to a motor vehicle as being: "… where a vehicle … is travelling along a curved path, steering is applied beyond which the road is capable of holding that vehicle in that circular path, the vehicle commences to slide partially and rotate, in this particular case in a clockwise condition. At the same time, though, it maintains or attempts to maintain its circular path. So if you like there is a combination of circular motion that the vehicle is following as well as a rotation of the vehicle during that circular motion." 45 Mr Keramidas initially identified two essential features of a vehicle being in a yaw. First, the marks left by the tyres on the road are marks from the front and rear tyres on the same side (either the passenger or driver's side depending on the direction of the yaw). Secondly, at the commencement of the yaw there is only a single tyre mark followed by a second, a third and then a fourth mark. He explained: "… when a vehicle is in a yaw condition, because of the weight transference of the curved path that it is following, it is most common to find, in the initial stages, one, followed then by a second tyre mark being observable and it is only at the latter stages, when the vehicle is more side-on, that you will actually get a third and then later a fourth tyre mark appearing." 46 This was explored in cross-examination: "Q Just getting back to the marks on the road, if the marks on the road are left as the vehicle is, as you say, on the yaw so it is becoming more and more side on, the marks would widen? A Yes, they would. Q They would widen in the sense of the width of what was actually left on the road would widen? A Yes. Q And the distance between the two marks left on the road would widen? A Yes, that's correct. Q So you would have narrow marks widening and going further apart from one another? A That's correct, yes." 47 Mr Toomey, senior counsel for the appellant, at this stage in the cross-examination, pointed out that none of the eyewitnesses observed marks of that type. Mr Keramidas argued, however, that the marks as described by the witnesses were not inconsistent with his theory. He said: "… In the yaw situation you would start from the two marks basically, one on top of the other , and as the vehicle enters the yaw, the gap between the two marks increases from zero through to, at some point it will be at and near the actual track width of the vehicle." 48 He said however, that at some stage in the course of the yaw, the marks would widen so that the marks on the road would be the width of the wheelbase - that is, the distance between the tyres on the same side. Mr Keramidas was asked to explain why, if that was the case, the marks on the road did not coincide with the marks made when a vehicle was in a yaw. He said: "Q What is your explanation for such marks not being described? A First of all, I take as my assumption that the marks were essentially as described in the P4, that is the single mark off the road initially coming into two marks across the road. Across the width of that section of road, depending on what angle the vehicle is coming across the road at, the width of the road is not going to provide sufficient distance unless one knows what they're looking for to identify a variation in the track width between those tyre marks. … A … over that section, that short section of the vehicle coming across the road at whatever angle it was, that its rotation would perhaps only have been a matter of 5 or 10 degrees. 5 or 10 degrees in terms of the width of the tyre mark would be less than a centimetre difference in width- … Q If you assume the sort of angles which have been deposed to with some consistency, I would suggest by the plaintiff's witnesses, and if you then assume that that is a yaw, then it is a very violent yaw, isn't it, when you are talking about between 50 and 70 degrees? A No, no. I wouldn't accept that. A violent yaw relates to the rate of rotation of the vehicle, the rate of its spin." 49 Mr Toomey QC continued the cross-examination, basing his next series of questions on the assumption that the vehicle moved from the gravel onto the roadway at an angle of 70 degrees, that being the largest of the angles identified by the lay witnesses: "Q I mean, how can you say that a yaw which takes a vehicle from a more or less straight ahead path into a 70 degree angle across the road is not a violent yaw? A Well, if that was the actual angle cross(sic) the road, it would certainly be unusual. Of course the vehicle - the vehicle is, of course, in a circular path anyway to begin it. … A … So if this was a 70 degree angle across the road; the vehicle would be at 100 degrees from its original path beyond right angles. Q So it has in fact come right around? A Yes. Q And the rear - it is 30 degree back up the road from the direction in which it came? A That's right. … A A 70 degree angle of deflection would be unusual. Q … If it is moving across the road at 70 degrees and its nose is pointing 30 degrees back from the direction in which it came, how did it get there without leaving any marks on the road, of the circular motion which is necessary to get the rear around to the position it is in? A It certainly would have left marks in the gravel, absolutely. Q But that assumes that the whole of the rotating motion occurred in the gravel, does it? A It assumes that the - well, yes. That would be the assumption in both cases. Q And that would mean that you would have a marked, circular mark in the gravel as the rear of the vehicle swung around? A Absolutely. Q Leaving a large and really unmissible arc in the gravel? A It certainly would leave an unmissible arc, yes." 50 There was no evidence that there was any such arc in the gravel. 51 It also appears that in these responses, Mr Keramidas was saying that there would be an unmissible arc, if the assumption be of a 50 degree angle. This was confirmed in the next part of the cross-examination. "Q What about at 50 degrees, that would also leave an unmissible arc, would it not? A It should leave, in any instance where a vehicle is entering a yaw, the nearside of it is on the gravel, it should leave an unmissible arc certainly at the point where the slip starts to take place. Q For there to be a yaw, in this case, there must be a telltale pronounced curved mark on the gravel? A Yes."

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The 30 Degree Angle 53 Mr Keramidas' assessment of an angle of about 30 degrees was derived from two sources: measurements he had taken at the purported scene of the accident and the P4's, in particular, Exhibit 6. 54 Mr Keramidas had attended the scene of accident in August 1997, some 11 years after the accident. Mr Keramidas determined that the accident occurred approximately 125 metres north of the bridge, based on information obtained from Mr Cusack, another of the second respondent's experts, as well as on observations he made at that point. In particular, he observed two gouge marks on the eastern side of the roadway and also observed glass debris at about that point. Using the position of each of those as markers, he measured the angle at which the vehicle travelled across the road as 30 degrees. 55 He was examined as to the basis of this measurement: "Q [In your report] there is a reference to the angle of the vehicle as it travelled [north]? A Yes. Q From the eastern pavement to the last measured item of debris etc, at an angle of about 30 degrees? A Yes. Q What was it you were measuring to give you that 30 degree angle? A It was merely a case of connecting up a series of items that were observed on site. Q You are referring there to the last cross-section? A Yes. Essentially the last cross-section takes, or is the angle of which I am saying the vehicle would have travelled leaving that debris. So if you looked at the location of the lens glass, was the mirror glass and the gouges, you can connect those up with a straight line. What I am saying is the angle of that straight line relative to the roadway is about 30 degrees." 56 This measurement, based the position of the debris and gouge marks found by Mr Keramidas is however, irrelevant as it was taken some distance from where the vehicle went off the road. Put simply, the measurements were taken at a place which had no connection with the accident. 57 Mr Keramidas also sought to support his assessment of angle and to refute the case that the angle was much sharper by reference to the P4's. In his report he had stated (at p14): "There has also been much discussion as to the angle of these marks across the road. It has been apparently suggested [statement not sighted] by S/C Newell, that the marks 'veered to the right at perhaps 40 to 50 degrees…'. This description appears to have been seized on and read in conjunction with Mr Foan's description of the marks having deviated sharply. By applying simple triangulation of the measured distance of the marks [15 m] and the available width of the road, the angle of the marks can be calculated. This calculation yielded an angle across the road of about 23 [degrees]. For the angle to have been 50 [degrees] the length of the measured mark would have to have been about 7.6 metres [instead of 15m] or the lateral width over which the marks were measured would have to about 11.5 metres, [instead of pavement widths] some 5.6 metres off the road surface to the east.

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Unmissible Arc on the Roadway 59 The respondents also sought to support the finding that the vehicle went across the road in a yaw motion by reference to the cross examination of Constable Newell, in which, it was submitted, Constable Newell accepted that the mark from the gravel to the road formed an arc. The cross-examination was as follows: "Q … just look at the sketch if you would. There is a line with a little arrow attached to it. It's a continuous line and it appears to indicate the direction of travel? A Yes. … Q There is a line to the left of that direction of travel line in the gravel shoulder and that is a single line? A Yes. Q And it forms an arc or a curve in the gravel shoulder? A Yes. … Q And there seems to be a small gap on the edge of the bitumen and then that line appears to resume? A Yes. Q In an arc across the road? A Yes. Q And I think you have already said in your evidence that that line was in effect a continuous line. A Yes. … A My recollection is that the skid marks on the roadway, or, the skid mark on the roadway is a continuation of the gravel, the heavy tyre mark in the gravel. … Q You would agree with me, would you not, that the line, that more northerly line connecting with the gravel mark describes an arc or a bend? A Yes, on here it does, yes. … Q … if you follow the arc of the mark in the gravel, you end up with a more rounded arc joining up with the more northerly skid marks? A Yes, the same as in exhibited (sic) 6." (emphasis added). 60 A number of matters are to be noticed about this evidence. First, Constable Newell's evidence that the skid marks formed an arc was given in response to leading questions in cross-examination. Secondly, the question about the line forming "an arc or bend" was imprecise and possibly internally inconsistent. Next, the cross examination was intended to establish very precise evidence from a rough sketch not drawn to scale. To seek to construct precise angles, arcs, curves, bends and distances from the P4's was a fraught exercise. This was not only apparent in this cross-examination, it was also demonstrated by the attempts by the respondents' counsel to establish from those diagrams that the accident had occurred some distance north of the point of impact determined by his Honour. 61 What needed to be established, and it was essential to the maintenance of Mr Keramidas' theory, was that there was an unmissible mark left by the tyres of the vehicle as it travelled across the road. Contrary to counsel's assessment of this evidence, all Constable Newell conceded in the course of this cross examination was that on the sketch in Exhibit 6 the "more northerly line connecting with the gravel mark describes an arc or a bend". That does not establish that there was an unmissible arc in the gravel. 62 Finally, on this point there is Dr Keramidas' own concession in cross-examination that on any construction of the sketch P4, it did not show an angle of 30 degrees but rather an angle of 60 or 70 degrees: "HIS HONOUR: Q I understand where you got the angle across the road being at less than 30 degrees? A Yes. Q But if you look at exhibit 6 (shown), which we appreciate is not to scale? A Yes. Q You would agree that the angle across the road shown in that diagram is certainly not at 30 degrees, is it? A No. That would be -- TOOMEY: Q About 70, isn't it? A 60, perhaps 70."

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Other Evidence Inconsistent with the Yaw Theory 64 There were other integral aspects of the yaw theory which were inconsistent with either the evidence or the facts as found by his Honour. One which fell into the latter category was the manner in which the vehicle rolled. His Honour held that the vehicle had flipped end over end. There was no dispute about that on the appeal. It was put to Mr Keramidas in cross-examination that if his yaw theory was correct, then if the vehicle came into contact with anything "the tendency must be for it to roll sideways". Mr Keramidas said "depending on the angle at which it strikes, yes, that's quite correct" (p 1526). The cross-examination continued: "Q But in this case the vehicle went over end over end, more or less straight. How can that possibly be consistent with the yawing movement off the road that you have described? A I don't necessarily agree that the vehicle has gone straight forward end over end." 65 Mr Keramidas continued to explain how the vehicle might have rolled saying that if it came into collision with, for example, a gutter, "it is pitching end for end but it is also displaying a rolling motion. So it is a combination of end for end and a true roll, giving an angled pitch". Again the cross-examination continued: "Q It is then going to pitch when it goes end over end. It is going to be a combination of pitch over roll, is it not? A Yes. Q It is not going to land flush on its roof. It is going to land preferentially on one side? A That's right." 66 Finally it was clear that Mr Keramidas had based his yaw theory on a number of assumptions - all of them being internally self serving. In his report Mr Keramidas had said: "From my inspection of the vehicle, I am able to conclude the following: 1. The damage and wear to the front tyres is consistent with the vehicle experiencing a right hand yaw condition, generating abnormal wear, scuffing and cutting to the outer edge of the near side front tyre tread. … 3. There was evidence of very similar markings on the near side rear tyre which are entirely consistent with the vehicle experiencing a yaw and totally inconsistent with the vehicle having experienced steering failure. Please note that this tyre was not attached to the vehicle at the time of my inspection but was located in the tray of the subject vehicle." 67 Mr Toomey cross-examined him as follows, referring him first to para 3 of his report: "Q I take it you relied, for it being the nearside rear tyre, on marks on the tyre? A That's correct. Q Writing on the tyre? A No. That was a circumstance where, on 29 August, I inspected the vehicle, found that the tyre that was on the nearside rear had those extrusion pimples and thought: Hang on, this can't be right, and fossicked around and found a tyre in the tray, dragged the tyre out, observed the markings on the tyre, which were across the tread, and similar scratch marks to the front of the tyre, the front nearside tyre, and , if you like, deduced that that must have been the tyre that was on the rear left. Q So, when you state it as a fact that that was the rearside near tyre, that was as a result of your deductions, not any witness telling you so? A That's correct. I said, at the start of that, 'I am able to conclude the following'. It was my conclusion that that was the rear tyre, exhibit R.. … Q You [at page 20 of your report] list the matters which led you to the conclusions you expressed? A Yes. Q '(a) The presence of abrasion marks to both nearside tyres'? A Yes. Q That was, of course, on the assumption that the tyre which had been in the tray was, in fact, the nearside rear tyre? A That's right, yes. Q 'The absence of any notable abrasion marks on the offside front tyre'? A Yes. Q That was, of course, on the basis that exhibit T was the offside front tyre at the time of the accident?" 68 It follows from the foregoing analysis, that leaving aside the position of the tyre, Exhibit R, there was no evidence of the primary facts necessary to ground Mr Keramidas' theory and the various bases upon which he had formed his opinion were completely eroded in cross-examination. In my opinion, that is sufficient for this court to hold that his Honour was in error in accepting that theory as the explanation of the dynamics of the accident.

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Position of Exhibit R 69 However, because of his Honour's reliance on the position of Exhibit R in reaching his conclusion, it is probably necessary as a matter of completeness to determine how his Honour reached his finding in that regard. That involves a return to the facts relating to the position of Exhibit R. 70 It will be recalled that the vehicle was towed to the NRMA compound on the night of the accident. Sometime thereafter the vehicle was taken to Brisbane for examination. There is no evidence as to how the vehicle was conveyed to Brisbane. In Brisbane at least two of the four tyres were removed. It is not known whether all tyres were removed. Some months later the vehicle was conveyed back to the appellant's property. Again, there is no evidence as to the method of conveyance. In July 1987 it was inspected by Dr McLeod, the appellant's metallurgical expert. Mr Foan was present on this occasion and was asked to remove some steering componentry. Mr Foan observed on this occasion that Exhibit Q remained located on the front left hand side of the vehicle. Exhibit R was located in the tray of the vehicle, (not in the spare tyre rack). Exhibit T was on the front right side and Exhibit S (the spare tyre) was on the left hand rear. He told Mr McLeod at that time that "the right hand tyre was not the one that was on the vehicle when [he] originally [saw] it". He could not recall that Mr McLeod said anything in response. As he said "he was more interested in getting the parts off". 71 Mr Foan saw the vehicle in September 1997, again at the appellant's property but in a different shed. Mr Cusack and Dr Gilmore were present. On this occasion, there were no tyres on the front and the front of the vehicle was propped up on blocks. Exhibits U and S were on the rear and Exhibit R on the tray as they had been in July 1987. Exhibits Q and T were leaning against the wall of the shed and were marked "left" and "right" respectively. Mr Foan pointed out that the tyres were in different positions to what he had observed on the morning after the accident. 72 Mr Keramidas inspected two tyres in Brisbane on 28 August 1997. He understood these to have been the tyres from the front of the vehicle. He said that the tyre he believed was the front left tyre had abrasions and scarring to the outer tread lip consistent with having been subjected to near lateral slip. The tyre he understood to be the front right tyre showed no similar abrasion or wear. He considered that the damage and wear to the front tyres was consistent with the vehicle having experienced a right hand yaw. 73 The following day he examined the vehicle at the appellant's property. He observed that there was no evidence of abnormal wear on the tyre located on the left rear (being Exhibit S) and assumed from its condition that it was not the tyre on the vehicle at the time of the accident. He then inspected the tyre on the tray, which exhibited very similar markings to the front left tyre. He considered therefore that this tyre (which was Exhibit R) must have been on the rear left side at the time of the accident and had been replaced with Exhibit S after the accident. He considered that the markings on Exhibits Q and R, - on the assumption that was their position at the time of the accident - was "entirely consistent with the vehicle experiencing a yaw and totally inconsistent with the vehicle having experienced steering failure". 74 His Honour found that Exhibit R was on the left hand rear hub at the time of the accident. The reasoning which led him to this finding was as follows. He considered that prior to the accident, the tyre marked Exhibit S was the spare tyre. There seems to have been no doubt about that. Mr Jupe had said that if there had then been front end damage he would have towed the vehicle with the front lifted and would not have bothered to change a deflated front tyre in that circumstance. Here there was extensive front end damage, so the likelihood was that the vehicle was towed front end up. In that case, if one of the rear tyres had been deflated, Mr Jupe would have had to change the deflated rear tyre. His Honour reasoned therefore (at par 44): "… if exhibit R was on the rear prior to the impact and was deflated as a result of it, there would be every reason for Mr Jupe to replace exhibit R with the spare (exhibit S) and throw exhibit R into the tray of the vehicle prior to towing it into town. However, if exhibit R was on the front offside and deflated in the accident, there would be no point in him moving it, and if exhibit T was on the left hand rear at the time of the accident and not deflated, as Mr Foan claims it was (I note it is deflated now although the beading is not removed from the rim), there would be no reason to replace it with the spare (exhibit S)." 75 His considered therefore that "Mr Foan [was] simply mistaken as to where exhibit R was on the morning following the accident". He concluded: "… that the tyres were on the same wheels on the morning after the accident as they were fifteen months later when the vehicle was seen at the [appellant's] property." 76 His Honour further supported this reasoning by referring to Mr Foan's acceptance that the wear on the tyre treads of Exhibits Q and T, and Exhibit U and R respectively was of similar consistency indicating that Exhibits Q and T had been on the same side axle at some time as had Exhibits U and R. He rejected the appellant's submission that this might be explicable by the tyres having been rotated between the time of purchase of the vehicle and the accident. His Honour said at par 45: "This is possible, but there is no evidence that it happened, and to suggest it did is pure speculation." 77 Whilst that is true, the road service manual required that the tyres be rotated so that there was an equally available inference to his Honour that the tyres had been rotated, which would have explained the variation in tread. 78 It is not immediately apparent as to why His Honour rejected the only direct evidence of the position of Exhibit R on the day after the accident. He did not purport to do so on any credibility basis. Rather, he did so by a process of reasoning which, with respect, was based on a series of assumptions for which there was no evidentiary support, save for the evidence of similar wear on the treads of Exhibits Q and T and Exhibits U and R. Whilst that was evidence which had to be weighed with other evidence, his Honour rejected a possible explanation for that, consistent with the appellant's case on the basis of no evidence. That was not entirely accurate, as there was evidence of the service requirements which involved the tyres being rotated between the date of purchase and the date of the accident. His finding as to the position of Exhibit R was also not supported by other evidence of Mr Jupe to which he did not refer. Mr Jupe's evidence was to the effect that he would not have used the spare tyre, Exhibit S, on the night of the accident as he had no means of getting it out of the spare tyre rack. Finally, there were a variety of reasons why Exhibit R might have ended up on the tray of the truck by the time it was returned to the appellant's property. 79 As this is a case where there were competing inferences available, this Court is in as good a position as his Honour to draw the necessary inferences. In my opinion, the overwhelming inference is that Exhibit R was on the front right hand side at the time of the accident. 80 But even if the true position be that there were equally competing inferences as to the position of Exhibit R, the real difficulty with his Honour's approach is that the position of Exhibit R was not the matter which should have determined the dynamics of the accident. Rather, there were a number of features of the accident necessary to Mr Keramidas' theory. None of those were present. Such features as there were contradicted his theory. If his theory was correct, Exhibit R had to be on the left hand rear of the vehicle at the time of the accident. If that was the case, the various scuff marks and abrasion marks were consistent with the yaw theory. However, the position of Exhibit R on the rear was a consequence of the yaw theory. It did not establish it. The yaw theory was only made out if the physical features necessary to it were established. They were not. 81 It follows in my opinion that his Honour erred in finding that the position of the tyre determined that the dynamics of the accident were explained by the yaw theory. 82 For these reasons the appeal should be allowed. 83 However, the fact that Mr Keramidas' theory could not, in my opinion, be sustained, does not of itself spell success for the appellant. To succeed he had to establish that the cause of the vehicle veering off the road in the first place was the breaking of the steering link. If that was not the cause, and the steering link broke upon impact with the embankment on the eastern side of the road, then the appellant was personally responsible for the accident. 84 The trial judge did not deal with these alternatives. The question is whether this Court should do so or whether the matter should be remitted for a new trial. Given the extensive lay and expert evidence in the case, it is possible for this Court to determine the matter and it should do so.

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would be sufficient to swing the wheel hard right causing the vehicle to deviate across the road. He continued: "… just the flow of gravel or loam around the tyre could in fact build-up a pressure on the rear side of the tyre and be the force that actually turns it right." 90 Dr Gilmore also gave evidence in relation to the marks on the front and the rear of the wheel well. There was no dispute as to the existence of these marks or that they were caused by the right front wheel coming into contact with the wheel wall after the joint was broken. The mark on the front was caused when the wheel was further to the right than it could have been unless the joint was broken. The mark on the rear was caused when the wheel was more to the left than could have been the case unless the joint was broken. All experts agreed on this point. 91 Dr Gilmore was of the opinion that the marks, being "abrasion marks", were caused whilst the front wheel was rotating. The respondent's expert also agreed that that was the case. However, in Dr Gilmore's opinion, if the steering linkage did not break until impact with the embankment, the force of the impact would have stopped the rotational movement of the wheels. It followed that the abrasion marks had to be caused, according to him whilst the vehicle was travelling across the road. 92 The significant attack which was made on Dr Gilmore's theory was that it was not consistent with the respondents' yaw theory. That theory having been displaced, all the evidence was consistent with Dr Gilmore's explanation of the cause of the accident, and in particular, his uncontradicted evidence that human forces could not account for the angle at which the vehicle went across the road. That being the case, I am of the opinion that the appellant has established that the accident was caused by the steering linkage having failed and was not due to human error as found by his Honour. 93 Before dealing with the question of whether, given this conclusion, the appellant is entitled to relief against the respondents, I should state that I have not dealt in these reasons with much of the evidence of Dr Gilmore, or with the evidence of the other experts. I have not done so because, in each instance, the evidence was directed to supporting the opposing cases, and was explained depending upon which case was accepted. Once it became apparent that his Honour's reasoning process was erroneous in the manner I have described and that Dr Keramidas' theory could not be sustained, the factual issue in the case became solely whether the accident was caused by human error or mechanical defect. The evidence was overwhelmingly in favour of the latter.

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Claims Made Against Each Respondent 94 The appellant sued each respondent in negligence, for breach of warranty, breach of conditions implied by s 19(1) and s 19(2) of the Sale of Goods Act 1923 (NSW) and by s 71(1) and s 74(1) of the Trade Practices Act 1974 (Cth), and misrepresentation. It is sufficient to deal only with s 19(2). 95 Section 19(2) provides that there is an implied term in a contract for the sale of goods that goods shall be of merchantable quality, where goods are bought by description from a seller who deals in goods of that description. 96 The vehicle was manufactured in Japan by Isuzu and imported into Australia by the second respondent and distributed by it as a "GMH" vehicle, through its network of dealers. The first respondent was one such dealer. 97 A vehicle whose steering linkage breaks within 10 months of purchase as a new vehicle is not of merchantable quality unless there is some other explanation. The first respondent did not contend otherwise. The exclusion of human error in the accident prevents any other possible explanation. 98 The appeal against the first respondent should, therefore, be allowed and a verdict for the appellant be substituted for the verdict given at trial in favour of the first respondent. I should only add that I agree with the trial judge's observation that: "… if the [appellant] were entitled to a verdict it would not be a case where there would be any apportionment for contributory negligence." 99 Neither respondent attacked this finding, which is relevant only to the case in negligence. 100 The case against the second respondent raises different issues. The Sale of Goods Act does not apply as between the appellant and second respondent. The claim brought against it under the Trade Practices Act was, as senior counsel for the appellant conceded, out of time. As senior counsel also effectively conceded, it could not succeed in its claim in negligence (see Peake v Steriline (1988) Aust Torts Rep 80-154), although he did not abandon the claim. It has not been demonstrated, let alone argued before us, that Peake v Steriline was wrongly decided. 101 It follows that the appeal against the second respondent must fail. 102 That leaves two matters outstanding. What should happen to the cross-claims between the respondents? And what is the appropriate order for costs? 103 Because the trial judge found verdicts for the respondents, he did not determine the cross-claims. The first respondent seeks leave to have them brought into this court for determination: s 51(1)(b)of the Supreme Court Act 1970 (NSW). The second respondent objects to this course. 104 The determination of the cross-claims would involve the determination of factual issues which have not been the subject of any determination at first instance. Not only are determinations of factual issues the usual province of a court at first instance, if this Court now proceeds to determine the cross-appeals, one party would be deprived of its right to appellate review. There is nothing in the circumstances of this case which warrants that course. 105 As his Honour made no order as to the cross-claims, they remain undetermined and the parties should take the appropriate steps to have them relisted and heard. 106 That leaves the question of costs. There is no real issue that the first respondent should pay the appellant's costs of the appeal and of the hearing at first instance. 107 Senior counsel for the appellant submitted that the appellant should also be entitled to an order of costs against the second respondent. He submitted that the respondents conducted the case as a team, that each led evidence against the appellant, that neither led evidence against each other and that, for the most part, the second respondent bore the burden of adducing the expert and technical evidence in the case, which was then used by both respondents. This co-operative approach was reflected in the manner in which the respondents conducted the appeal. The second respondent argued most of the technical issues. Neither respondent sought to refute this assessment of the manner in which the proceedings and the appeal were run. 108 In those circumstances, I am of the opinion that the appellant should have his costs of the appeal and of the trial as against the second respondent also. 109 I propose, therefore, the following orders:

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