Finding as to Where Loss of Control Occurred
79The appellant's challenge to the primary Judge's finding as to where the respondent lost control of the vehicle is of less significance to the appeal than the prominence given to the issue in oral argument may have suggested. It would have been significant had the appellant maintained that the accident occurred because of the respondent's reaction to a slight slip resulting from the vehicle's contact with an irregularity in the road surface. But the appellant did not do so.
80The challenge also may have been very important if the respondent sought to uphold the primary Judge's finding that the appellant should have attempted to control the vehicle after it began its slide. But as I have pointed out, the respondent accepted that even if the appellant had not attempted to take control of the vehicle once the vehicle began to slip, his failure could not be shown to have caused the accident.
81However, the challenge may have some bearing on the central question of the speed at which the vehicle was travelling as it entered the bend. For that reason, I shall consider whether the appellant has made good his criticism of her Honour's finding.
82Mr Stitt's submission was that Mr Keramidas' evidence demonstrated, by the application of scientific principles, that the loss of control simply could not have occurred as early as Mrs Fancourt's evidence suggested. Mr Stitt relied on Exhibit 9, a plan prepared by Mr Keramidas during the trial which showed the trajectory that, in his opinion, the vehicle would have taken had the loss of control occurred at or before the apex of the corner and had the fishtailing commenced within the radius of the bend. The trajectory depicted in Exhibit 9 had the vehicle leaving the road surface to the right, well before the point at which the yaw marks on the road commenced.
83Mr Keramidas' evidence in chief supporting what was depicted on Exhibit 9 was as follows:
"STITT:
Q. You heard the evidence that related to the hypothesis propounded by Mr Toomey and ultimately Mr Johnston on the proposition that the [respondent's] vehicle was out of control at or before the apex of the corner and that the fishtailing was occurring within the radius of the corner. Do you recall that evidence and that hypothesis?
A. Yes, I do.
Q. Do you have a comment based on your science or opinion about that as a physical possibility?
...
\WITNESS: Yes, I do.
...
Q. What is that opinion and what is the basis for it?
A. In my opinion it would be impossible for the vehicle to have been out of control by the midway point of the bend and still manage to exit the bend where it did and end up colliding with the tree where it did.
...
Q. Why are you of that opinion, what is the basis for it?
A. The opinion is formed on the basis of understanding the dynamic effect on a vehicle as it's side slipping or fishtailing as it is known, and in particular because it is within a bend. During a side slip or rotation or yaw - they are all the same thing - of a vehicle so that the rear right slides out, not a problem. It is quite possible and quite consistent for the vehicle to achieve that within the bend. The difficulty arises when there is a corrective steering action to the right, as the vehicle reorientates from side slipping with the rear right, to the right, so that the rear left is now swinging out. The curvature of the bend means that the available road space is not too far off the width of the roadway. In other words, it is going to be pointing to the outside of the bend.
For a driver to then at that point - I'm sorry, forget the driver - for the vehicle at that point to be physically reorientated such that it remains on the road surface, would in my opinion be impossible if it is travelling at 60, 70, 80 - any measurable road speed because it's going to traverse the available distance in less than half a second. So a driver, as they've corrected to the right, is not going to have time to apply steering to the left and maintain the vehicle on the roadway. It just can't happen. The radius is too tight.
Q. And what would be the consequence of that dynamic movement, if there was loss of control at or before the apex, so far as the direction of the car was concerned?
A. The vehicle would inevitably end up off the road to the right, relative to its direction of travel. As to its form, it depends entirely on what its attitude was as it came off the road surface.
Q. So it would have come off the road to the right, whereas this vehicle came off the road to the left, and that's the fact, is it not?
A. Yes, having completed what is essentially described as being half of that bend, so that 35 metres of the bend which includes the last bit of the transition, and then ended up on the left is just, it couldn't have done that.
Q. Those pieces of objective evidence, and by that I mean the position on the road of the yaw marks, the position of the exit and the impact with the tree and the radius of the bend, what do you say about the proposition that in some way or other the loss of control occurred at or before the apex?
A. In my opinion the proposition cannot stand, based on the physics of the situation."
There was no evidence that the vehicle being driven by the respondent had left tyre marks to the right of the road.
84The primary Judge had to weigh Mr Keramidas' opinion against the other expert and lay evidence bearing on the issue. Mr Johnston disagreed with the suggestion put to him by Mr Stitt in cross-examination that it was simply impossible for the vehicle to slide off the road to the left in the manner suggested by the yaw marks, had the respondent lost control at or before the apex of the bend. Mr Johnston said that even if the loss of control had occurred at or before the apex of the bend, the vehicle could have taken the trajectory indicated by the yaw marks. In his opinion, ascertaining the point at which control had been lost was a matter that depended on the lay evidence, not the limited physical evidence with which the experts had to work.
85Mr Johnston also disagreed with a suggestion that the respondent had engaged in only three steering actions from the time the vehicle entered the bend. Mr Johnston accepted that the respondent would have initially steered to the left as the vehicle began to negotiate the bend; she then would have steered to the right in an ill-fated endeavour to correct an apparent movement of the vehicle to the right; and finally she would have steered hard left at the start of the yaw marks. He said, however, that it was not possible to determine how many additional steering actions occurred and precisely what effect they might have had on the trajectory of the vehicle.
86After his evidence had concluded Mr Johnston prepared a plan, which became Exhibit P. The effect of the trajectories depicted in the plan was that if Keramidas' analysis was correct, the vehicle would have gone off the surface of the roadway to the right whether the slippage had begun at or near the apex of the bend or further east along the bend (as the appellant contended). Since Mr Johnston had left the country when he prepared Exhibit P, he was not cross-examined about it.
87Mrs Fancourt's evidence was that when she first observed the vehicle fishtailing out of control it was about half way through the bend. She then described how she moved to the left of the road to avoid the oncoming vehicle and observed it pass her own vehicle before rolling and colliding with a tree. Mrs Fancourt stated unequivocally that she realised the vehicle approaching her was out of control as soon as she saw it.
88The cross-examination of Mrs Fancourt occupies less than one page of transcript. She was asked about the fishtailing movement of the vehicle and confirmed that the movement became more exaggerated as the vehicle proceeded along its path. But she was not challenged as to her evidence concerning the location of the vehicle when she first saw that it was apparently out of control. In particular, no suggestion was put to Mrs Fancourt in cross-examination that her view of the oncoming vehicle was obscured by the configuration of the road or that her recollection of these matters was faulty.
89Mr Keramidas was cross-examined about the assumptions underlying Exhibit 9. The key passage is set out below. The references in that passage to " outline 7 and 8 " are to markings on the plan which record Mr Keramidas' opinion as to the likely trajectory of the vehicle immediately after the (assumed) initial movement to the right at the apex of the bend:
"Q. ... What I'm putting to you is that there is no material to be deduced from what you saw on the roadway itself to show the path that you've assumed on Exhibit 9. There are no road marks for instance which show where the vehicle moved to one side?
A. Correct.
Q. Whether it deviated once twice, only twice or once, twice, three, four times?
A. Yes.
Q. There's no such material?
A. You're entirely correct. All I've done here is demonstrate what I would expect to happen if the vehicle is out of control in the middle of the bend having slipped out in one direction and the correction. It's again I'm sorry to keep bringing you back to it, but it's outline 7 and 8 which are the critical features in that half a second and recovery has to take place otherwise the vehicle leaves the road.
Q. You don't know that 7 and 8 accurately represent the position of the motor vehicle?
A. They don't.
Q. At that position on the road?
A. They can't on the estimation.
Q. It's merely a guestimate?
A. I hope a little bit better than guestimate.
Q. Given the position of the vehicle given it as being in the middle of the bend and loss of control you're not suggesting, are you, that with all the variables which apply, the precise state of the road, the precise steering input that was put by the driver you can't suggest, can you, that there is only one possible path that could be followed from there?
A. The amplitude of the path would change depending on the speed at which the loss of traction occurs for whatever reason. The path would be the same. It's how wide the amplitude is between it. So if we were to drop this down to 40 kilometres per hour then we would have over 1 second with a radius of path that is so close to effectively nearly being able to do a 90 degree turn in 6 and half metres so yes, it is recoverable. It's premised on an understanding that you can't turn tighter than the maximum friction of the road surface will allow that that's it.
Q. My point is this Mr Keramidas, you do not know at what precise angle to the right the back of the vehicle moved?
A. Correct.
Q. That's an imponderable, we're never going to know that are we?
A. Correct.
Q. You don't know precisely what steering input to the right the plaintiff put on it?
A. Correct.
Q. You do not know precisely what steering input the plaintiff put to the left?
A. Yes, correct.
Q. You don't know precisely what happened to the speed of the motor vehicle?
A. I can't tell you precisely, no."
90The primary Judge gave very careful consideration to the conflict between Mrs Fancourt's unchallenged eyewitness and Mr Keramidas' opinion that her account could not have been accurate. Her Honour noted (at [64]) that Mr Keramidas' analysis rested on the untested assumption that the respondent over-corrected only once to the right (to counteract the slip to the right of the rear of the vehicle just short of the apex) and then once again to the left. The primary Judge observed that the respondent may have undertaken a less aggressive turning manoeuvre (or manoeuvres) that would still have had a left turning input as the vehicle moved through the bend, but such that control was never completely regained before the vehicle eventually " yawed " out of control once clear of the bend. Her Honour accepted the respondent's submission that this conclusion was consistent with the absence of any physical evidence of sideslip on the road surface within the bend .
91In my opinion, no error has been shown in the primary Judge's finding that Mr Keramidas' analysis in Exhibit 9 did not carry the weight attributed to it by the appellant. On the contrary, I think that her Honour correctly concluded (at [69]), on the evidence before her, that although the point at which the initial slip to the right could not be fixed with precision to the apex of the bend, it occurred some distance back from the irregularities in the road surface and not as the vehicle emerged from the bend on approach to the straightening of the curve.
92The two critical matters that support the primary Judge's view are Mrs Fancourt's unchallenged evidence and Mr Keramidas' concessions in cross-examination. There is nothing improbable in Mrs Fancourt's eyewitness account of where she located the vehicle at the time she first saw it fishtailing. On the contrary, Mrs Fancourt was not only familiar with the configuration of the Wallanbah Road in the area of the accident but it might be thought that the evasive manoeuvre she was required to take might have focussed her attention on the sequence of events. In any event, her account was simply not challenged and nothing was put to her suggesting that her evidence on this point was mistaken or in some way coloured by her own reaction to imminent danger.
93Mr Keramidas' answers in cross-examination demonstrated, consistently with Mr Johnston's opinion, that there were a number of variables that could have affected the hypothesis recorded in Exhibit 9. Mr Keramidas accepted that there was no information available to determine, for example, the respondent's steering input, the degree of slippage of the vehicle or its speed. All of these variables, together with different assumptions as to the precise point at which the vehicle began to slip, could have affected the analysis.
94Mr Keramidas' evidence raised questions about the reliability of Mrs Fancourt's evidence that might well have been explored further in cross-examination. But they were not. In these circumstances, the primary Judge's finding on this issue reflected the probabilities.