The circumstances surrounding the collision
18On 17 January 2007, Mr Tarres commenced his day at the Ingleburn depot of Hobbs Bros at about 5.30am. After undertaking some earlier jobs, he drove to Patrick's Terminal at Port Botany. There a shipping container full of cargo was placed on the prime mover's trailer. He left Patrick's Terminal at about 11.25am to transport the shipping container and cargo to the premises of a company, called New Directions, which was located at 47 Carrington Road, Marrickville.
19Mr Tarres chose the route he was to travel from Patrick's Terminal at Port Botany to New Directions at Marrickville.
20That route was via Sydenham Station. He turned south into Victoria Road, which connects directly into Myrtle Road and then Carrington Road. At about the point along the continuum of Victoria Road and Myrtle Street, where the names of the roads change, the road passes underneath two parallel railway bridges.
21The northern bridge, being that closest to Marrickville Road, was the first bridge under which Mr Tarres passed as he drove from Port Botany to New Directions. The southern-most bridge, being that closest to New Directions, and in the direction of the Cooks River, was the second one he passed under.
22A survey of both bridges was admitted as Exhibit F. It was not in dispute, although the survey was not carried out until 2009, that it accurately represented the position and configuration of the railway bridges in January 2007.
23Since the accident happened as Mr Tarres drove in a northerly direction towards Marrickville, it will be convenient to note the relevant measurements for traffic travelling in that direction. The first bridge to be approached is the southern bridge. The survey shows that as one approaches the southern bridge, heading in a northerly direction, the minimum height from the underside of the bridge to the road surface is 4.38m. This is in the centre of the carriageway at about the location of the painted white line on the road. As one travels under the southern bridge to the exit side of it, that minimum height is slightly reduced to 4.33m.
24In other words, in order to travel safely in a northerly direction, under the southern bridge, the total vehicular height, namely from the road surface to the top of the shipping container, needed to be less than 4.33m.
25The clearance height for the northern bridge was somewhat less for traffic travelling in the northerly direction. Again, the minimum height clearance occurs at about the white line separating the two lanes of traffic. On the entry side of the northern bridge, the minimum clearance is 4.23m and on the exit side, that minimum clearance is reduced to 4.12m.
26Again, in other words, in order for the trailer and shipping container to pass safely under the northern bridge, the height of the shipping container loaded on the trailer, when measured from the road surface had to be less than 4.12m.
27For traffic travelling in a southerly direction, as Mr Tarres was on his way to New Directions with a loaded shipping container, the minimum height for both bridges, in about the middle of the road, was 4.43m. It can be seen that for traffic travelling south that the clearance is greater than for traffic travelling north.
28It is necessary to resume the narrative of what occurred. As Mr Tarres travelled in a southerly direction from Port Botany to New Directions, he approached the first (or northern) bridge. On that bridge there was a sign that said in a very obvious way "LOW CLEARANCE 4.0 m". The sign was accompanied by panels of vertical black and white stripes that clearly indicated the need for caution.
29Photographs (Exhibit E) also show that for traffic travelling north, as one approaches the southern of the two bridges, there is a like warning sign.
30By reference to the measurements of the survey detailed in [25] above, it can be seen that the sign warned road users that the clearance was less than it in fact was. No doubt this was appropriate in order to allow, albeit by a small distance, a margin for error.
31Each of these signs conveyed to the public in general, and to Mr Tarres in particular, that unless, in his case, the top of the shipping container was less than 4m from the road surface, it could not safely pass under the bridge, and that there would be likely to be a collision between the shipping container and the bridge superstructure.
32The precise dimensions of the prime mover and trailer upon which the shipping container was loaded, which Mr Tarres was driving, have not been proved in evidence. The shipping container was full of cargo. Mr Tarres described the cargo as consisting of cardboard boxes, the dimensions and weight of which were not clearly described, although Mr Tarres estimated that the difference in weight between the vehicle being loaded with the cargo and without the cargo was about two tonnes (T37.8; Exhibit A [39]).
33On his way to New Directions, as Mr Tarres arrived at the northern bridge, he noticed the "Low Clearance" warning sign. He slowed down considerably to ensure safe passage under the bridge. He received assistance from a motorist travelling in the opposite direction and passed safely under the bridge.
34As a consequence of this safe passage, Mr Tarres was entitled to conclude that the maximum height of the loaded container on the trailer was less than 4m. He did not know, and made no attempt to establish, what the clearance margin was.
35Having arrived at the New Directions site at about 11.40am, the shipping container was unloaded. This took some time, as Mr Tarres did not leave New Directions until about 2.40pm. The shipping container remained on the trailer, but the cargo of cardboard boxes was removed.
36After the shipping container was unloaded and before leaving the yard at New Directions, Mr Tarres did not check the height of the top of the container (T46.46) although he knew, as he left the yard, it was his intention to return along the same route which he had followed to arrive at the New Directions yard.
37Mr Tarres failed to measure the height of his vehicle and container before leaving New Directions. He could have, but did not, ask someone at the New Directions yard for a tape measure so that he could measure the height of his vehicle before he left the yard. He said that he had never thought about such matters.
38The ultimate destination of the trip after leaving New Directions is unclear. It was either Port Botany or Hobbs Bros' yard. It did not matter to Mr Tarres' route selection process, because in the assessment of Mr Tarres either destination meant that he would retrace the route along Myrtle Street and Victoria Road, passing underneath the railway bridges. Due to the accident, he did not make it to his ultimate destination.
39Mr Tarres could have taken a different route from the New Directions yard so as to avoid travelling underneath the railway bridges, but again, he said that he did not think about any change to his route.
40On his journey, after leaving new Directions at about 2.40pm, Mr Tarres travelled back along Carrington Road, into Myrtle Road and came to the railway bridges. He said that he again noticed the sign indicating a low clearance with a maximum height of 4m, which was on the side of the southern bridge facing him. His evidence was that he again slowed down to ensure that he could pass under the bridges safely.
41Mr Tarres stopped very close to, or just before, the first (that is, the southern) of the two bridges. His intention was to gain assistance from anybody travelling in a southerly direction as to whether he would be able to travel underneath the bridges with appropriate clearance.
42Whilst stopped there, an oncoming motorist stopped at the northern-most side of the northern bridge, in other words what would have been the final exit point for Mr Tarres and his truck from both bridges. Mr Tarres indicated to that motorist by pointing with his finger to the top of the container and the bridge. He also looked upwards at the time. He did this in order to seek to assistance from the oncoming motorist.
43The oncoming motorist signalled with his hand that Mr Tarres could drive towards him, which he did very cautiously. He put his truck in a very low gear, second gear, and moved forward.
44He said, initially in cross-examination, that he stayed in second gear the whole way under the bridge until he came into contact with the bridge. I accept that this is what actually happened.
45Mr Tarres successfully negotiated the first or southern-most bridge. He then passed through the relatively short gap between the bridges and commenced to travel under the second bridge. As he did so, the top of his container collided with the superstructure of the bridge.
46Mr Tarres estimated that he had travelled between 20m and 30m from the point where he had been stationary before the entry point under the southern bridge, to the point of collision.
47An issue arose between the parties as to what speed Mr Tarres was travelling when the collision occurred. There was a good deal of evidence about this, which it will be necessary to analyse in due course, and upon which it will be necessary to reach a conclusion.
48In cross-examination, Mr Tarres was pressed to give an estimate of his speed at the time he was passing under the bridge. This exchange took place:
"Q. So you would have been doing walking pace, say, or something less? What was the position?
A. It's very hard to judge what actual speed you are doing. You might think you are doing walking pace, but you might be doing, oh, 10 clicks. A walking pace is about 3 clicks, so it's very difficult.
Q. You are, or you were, a professional driver, so you had a reasonable idea?
A. Reasonable idea.
Q. To the best of your estimation, were you doing a walking pace?
A. Probably a little bit more. Somewhere around about that, yeah. It's very difficult.
Q. Well, you were concerned about what was above you, weren't you?
A. Yeah. I was concerned enough not to be doing anything but I wouldn't have been going too fast that I couldn't have stopped or stopped something from happening." (T52.37-T53.3)
49As he started to pass under the second bridge, the motorist gave Mr Tarres the "thumbs up" and waved him through. At that point, Mr Tarres commenced accelerating and continued to pass under the second (northern) bridge. As he was doing so, at some point that was not identified in the evidence, but under the bridge, the forward edge of the container came into contact with the bridge superstructure and his truck came to a halt.
50Mr Tarres said in cross-examination that the stop was sudden and it was accompanied by a bang which he heard. In his statement he described the truck coming to " an abrupt halt ".
51Immediately after the top of the container struck the bridge superstructure, according to Mr Tarres' evidence, the prime mover bounced up and down on its suspension. As that occurred he felt his head hit the roof of the cabin, which caused him pain. In his statement, Exhibit A at paragraph 41, he said:
"I was still proceeding slowing when I believe the front corner of the container struck the railway bridge forcing the truck to come to an abrupt halt. This has caused my body to be thrust vertically upwards in the cabin of the truck causing me to strike my head on the roof of the cabin."
52In cross-examination, he gave this evidence:
"Q. And was it on the up bounce that you felt your head strike something.
A. Oh, I can't remember that, I can't remember details like that...
Q. Well, tell me what you felt when the container hit the bridge.
A. All I felt was hitting my head on the roof and then excruciating pain.
Q. But you don't know whether that was when the prime mover bounced upwards?
A. All I can remember is banging my head on the roof and it's just like, that's all I can remember, mate.
...
Q. You said that the prime mover bounced?
A. Well, that's what it felt like. I felt one big bounce and then me getting thrown up and hitting my head on the roof.
...
Q. That's alright. But then you felt the prime mover rise upwards and you hit your head on the roof?
A. All I remember is hitting my head on the roof. It was just like a bang. It was just like a big bounce and I just remember my head hitting the roof and then all these pins and needles like I was getting cut with razor blades. That's all I remember." (T58.48-59.33)
53He said that he was positive that his head hit the roof and not something else.
54According to his evidence, Mr Tarres estimated that there was a distance between the top of his head and the roof of the cabin of eight to ten inches.
55Mr Tarres was subjected to extensive cross-examination on the issue of what it was that his head struck. He indicated in Court that the crown of his head, the top of his head, had struck something hard. He was firmly of the view that he struck the roof of the cabin and did not strike the overhead console immediately above the windscreen at the forward section of the roofline.
56In the course of cross-examination he agreed that he was
"...pretty sure that [his body] would have moved forward because my back wasn't touching [the seat]. I was on an angle. ..." (T61.24)
57He adhered to his evidence firmly that his head hit the roof and not the overhead console.
58Although the plaintiff was in pain and had a number of symptoms from his injury, he was able to remove the truck from under the bridge. He did that by turning the steering wheel to the right and driving the truck out.
59An ambulance attended and recommended to Mr Tarres that he go to hospital. After a period of rest, he decided to drive the truck back to the Ingleburn yard. When he arrived back at the yard, he complained of pain and was then driven by Mr Mark Robson, one of the principals of Hobbs Bros, to Campbelltown Hospital.
60It will be necessary in due course to give an account of the injuries and consequences of injuries that Mr Tarres sustained.
61However, for present purposes, it is appropriate to note the following contemporaneous accounts which relate to his injuries. The report of the ambulance service officers who attended at the scene of the collision recorded this (I have inserted common expressions used in such notes in lieu of the abbreviations contained in the actual document):
"Patient self extricated from truck which struck overhead railway bridge. Patient complained of central cervical neck pain with tingling in hands. Nil loss of consciousness. On examination: glascow coma scale 15, pulse regular, normotensive, well perfused, nil shortness of breath, nil chest/abdomen pain, nil headache, pupils equal and reactive to light, limbs intact. Nil motor or neurological deficit. Patient states had initial loss of movement in hands, now self relieved. Patient still with tingling in arms and cervical neck pain. Patient refused treatment against advice. Ambulance officers outlined to patient he may have a serious neck injury and requires transport and treatment. Patient refused transport and treatment stating 'too inconvenient, has to organise truck and family. Will visit LMO later'. Patient advice card given. Unable to convince patient to be transported." (Ex M)
62After attending Campbelltown Hospital, he was apparently referred to Liverpool Hospital, where he remained for some time and was discharged home. Although the ambulance officer's report is the first contemporaneous note of the extent of the injuries suffered by Mr Tarres, there are further notes available from both Campbelltown Hospital and, somewhat later, Liverpool Hospital.
63It will be necessary to examine the question of liability in detail. However, some factual conclusions about the events leading up to and including the accident can be drawn at this point:
(a)The truck which Mr Tarres was driving clearly exceeded 4.12m in height and was less than 4.23m in height. This means that its height exceeded the minimum clearance of 4m which was obvious to, and seen by, Mr Tarres on the sign as he approached the entry side of the southern bridge;
(b)Mr Tarres knew that the configuration of the truck and trailer with the container on it was very close to the minimum clearance. That was obvious from the fact that he took great care when travelling to the New Directions yard in a southerly direction, and also from the fact that he brought his vehicle to a halt and sought assistance from an oncoming motorist to pass under the bridges in a northerly direction;
(c)The vehicle was loaded when he travelled under the bridges on the first occasion heading south to New Directions and had been unloaded by removal of the cargo from inside the shipping container before he started to travel north;
(d)Mr Tarres did not take any steps to satisfy himself by use of a tape measure or other personal visual observation that there would be, or that there was, adequate clearance between the top of the container and the railway bridge;
(e)Mr Tarres relied solely upon an indication from a motorist travelling in a motor vehicle, coming in the opposite direction, to satisfy himself that it was safe to drive the Ford Louisville and trailer under the bridge;
(f)The vehicle collided with that part of the superstructure of the northern of the two bridges, where the clearance was between 4.12m and 4.23m in height.