Van Muyen v Nominal Defendant

Supreme Court of Queensland|2002-10-25|Before: Mullins, J

[1] MULLINS J: Mrs Sherry Elizabeth Van Muyen ("the plaintiff") was injured when her blue Ford Laser motor vehicle which she was driving on 16 December 1996 at about 8.10am in an easterly direction along Rosewood-Laidley Road went off the road, changed direction, hit an embankment on the other side of the road, rolled and came to rest almost facing in the direction from which the vehicle had travelled.

[2] The plaintiff has no recollection of events preceding the accident subsequent to her placing some goods in the vehicle, before she commenced her journey from her home about 5 minutes before the accident. From the investigations undertaken by her solicitors, the plaintiff believes the accident was caused by an unidentified motor vehicle forcing her off the road which resulted in her losing control of her vehicle. The plaintiff has therefore sued The Nominal Defendant (Queensland) ("the defendant"). Quantum was agreed between the parties at the commencement of the trial. Liability remains in issue.

[3] The plaintiff gave evidence herself and called Mr Stuart Forsyth who was formerly the sergeant of police at Rosewood Police Station and who attended the accident, Mr Phillip Forrest and Mrs Lesley Forrest who were travelling in their vehicle in the same direction that the plaintiff had been travelling and stopped at the accident, Mr Kevin James Chant who was visiting a friend whose residence was not far from where the plaintiff's car came to rest and her husband Mr Jan Van Muyen. The plaintiff also relied on the evidence of engineer Mr Ken King who specialises in analysis of traffic accidents and who prepared two reports (Exs 1 and 2) in respect of the accident in respect of which objection to their admissibility was made by the defendant.

[4] The defendant called engineer Dr Frank Grigg who also specialises in accident investigation and analysis and whose report on the accident was Ex 22. The defendant also called Laidley builder, Mr Neil Dennien, who on the morning of the accident was travelling with his wife and children in his vehicle from Laidley to Ipswich and stopped at the accident. The defendant relied on evidence from the plaintiff's general medical practitioner Dr John Saba and expert evidence on sleep apnoea from respiratory physician Dr Maurice Heiner.

[5] The only witness whose credit was substantially in issue was Mr Forrest. Although an independent witness, he became inexplicably argumentative while giving evidence and the defendant relies on inconsistencies which became apparent in cross-examination between certain statements given by Mr Forrest prior to the trial and his evidence at the trial. In view of these inconsistencies and the manner in which Mr Forrest gave his evidence, I have scrutinised his evidence carefully. Ultimately, however, on the presence of a vehicle travelling at high speed in the vicinity of the accident scene, Mr Forrest's evidence was verified by Mrs Forrest's evidence and there was no challenge to and is no reason not to accept Mr Forrest's evidence that he did not see the plaintiff's vehicle travelling on the road prior to the accident, but did look ahead and see the vehicle that had overtaken his vehicle.

[6] At the time of the accident the plaintiff was an experienced driver. She and her husband lived at Long Gully Road, Grandchester. The plaintiff was employed at Princess Alexandra Hospital in Brisbane and had been driving herself over a number of years to and from work most working days. The distance between her home and workplace was about 100 kms. That meant the plaintiff was driving approximately 50,000 kms per year over the same route.

[7] On the day of the accident the plaintiff was on holidays. She had spent the previous 2 weeks on Stradbroke Island on holidays. On the day of the accident the plaintiff planned to drive to Brisbane to take her car to the spray painter, then go to the hairdresser and then to spend time with her mother. The plaintiff can recall waking in the morning of the day of the accident and feeling very good.

[8] It was a fine and clear day. The plaintiff drove along Long Gully Road and turned left into the Rosewood-Laidley Road in order to travel in the direction of Rosewood. The plaintiff then drove through the township of Grandchester. Less than a kilometre from where the accident occurred, the speed limit of 60 km/hr changed to 80 km/hr and then had changed to 100 km/hr. The road can be described as a straight road travelling in the easterly direction which is on a gradual incline and the road curves to the right on the crest of the hill. Dr Grigg measured the road width on the approach to the scene on 6 April 2002 as approximately 6.4 metres. The plaintiff agreed that the road is about one foot wider than it was at the time of the accident.

[9] The plaintiff was very familiar with the road and although where it curves to the right was in the 100 km/hr zone, the plaintiff stated that "half the time" she would still be doing 80 km/hr driving around that curve, because the corner was "narrower" and cars used to come flying from Rosewood. It was also her habit to drive within the speed limit. Because she had seen cars coming from the direction of Rosewood cutting that corner, it was her habit to have the left hand wheels of her vehicle at least a tyre's width from the white line at the edge of the bitumen.

[10] The plaintiff always drove with her window down, so that she could hear if there was a vehicle coming. The plaintiff conceded that on most occasions she would not get a fright, when her vehicle was overtaken by another vehicle.

[11] For consistency during the trial counsel and witnesses described the road and surrounding landmarks from the position of a person travelling in an easterly direction along the road. It was on this basis that the expressions "left hand side" and "right hand side" of the road were used. I will adopt the same approach in these reasons.

[12] Mr Forsyth drew a diagram of the accident scene in his police notebook, a copy of which was Ex 8, at the time he conducted his investigations after the accident had occurred. He had a member of the public assist him in taking measurements using a tape measure. Mr Forsyth observed fresh tyre tracks along the left hand side of the road. He made horizontal marks on his diagram to show the points from which he conducted measurements. The measurements which he conducted were described as "vertical" in the sense that he measured the distance between the points which he represented on his diagram in a straight line rather than attempting to measure the actual length of what was observed.

[13] The first measurement Mr Forsyth made was 17 metres between the commencement of the tyre track on the left hand side of the road and a guide post on the left hand side of the road. The tyre track was in an arc which from its commencement increased its distance from the edge of the bitumen to the widest point of 0.4 metres level with the guide post and then changed direction to the right heading back more sharply towards the bitumen. The point at which it met the bitumen was 6 metres from the guide post. Mr Forsyth observed that this tyre track appeared to be made by a wheel that was rotating, as it had compressed the gravel rather than pushed it and it was not a skid mark. Mr Forsyth stated that the tyre mark commenced where the road was slightly curved.

[14] Between the point where the tyre track reached the bitumen 6 metres from the guide post on the left hand side of the road and the point where the tyre marks commenced on the verge on the right hand side of the road, Mr Forsyth did not observe on the road any tyre marks made by braking. On the right hand side of the road there is a power pole. About one metre east of the power pole Mr Forsyth observed tyre marks on the embankment. The vertical distance between the point where the tyre track had returned to the bitumen on the left hand side of the road and the point where the tyre marks started on the embankment on the right hand side of the road was 48 metres. After the tyre tracks on the embankment Mr Forsyth observed scrape marks. The vertical distance from the commencement of the tyre marks on the embankment to where the marks made by the vehicle ceased on the embankment was 19 metres. It was then another 14 metres vertical distance to the point where the vehicle had come to rest. Mr Forsyth concluded from his observations that the vehicle had rolled. The vehicle was resting on its tyres, but the front of the vehicle was facing in a south westerly direction. The rear driver's side of the vehicle was just on the road. When Mr Forsyth examined the plaintiff's vehicle at the scene and then at the holding yard, he could find no indication of contact between the plaintiff's vehicle and another vehicle.

[15] In evidence-in-chief, Mr Forsyth was questioned about what debris he observed from the car:

"Did you see any other debris upon the road at all?-- The only other items on the road were parts of the car and part of the contents.

Now, where did you see the contents of the car first of all?-- They were lying into the northern - sorry, the southern side of the road just in front of the car.

So in terms of the 14 metre distance between the car and the commencement of the marks on the embankment, was any of that - were any of the contents of the car that you saw west of that position, at the 14 metre position or were they all between the marks on the embankment and the car within that 14 metre area?-- Yes, they were between the marks on the embankment and the 14 metre area to the car.

Similarly, the debris of the car, was it all within that area or east of that area?-- It was in the same area."

[16] Mr Forsyth was cross-examined as to what view of the road the driver of a vehicle would have travelling eastwards, if that vehicle were in the position of Mr and Mrs Forrest's vehicle, when it was overtaken on the bend preceding the straight part of the road on which the plaintiff's vehicle travelled immediately prior to the accident. Mr Forsyth agreed with the proposition that a vehicle overtaken on that bend travelling towards Rosewood would have the overtaking vehicle in view for most of that straight. Photograph 2 annexed to Dr Grigg's report shows the view looking towards Grandchester from the apex of the curve adjacent to the guide post in the vicinity of where the plaintiff's vehicle went off the left hand side of the road. The view of the straight in that photograph shows that not only the straight would have been observed from a car travelling eastwards in the position of Mr and Mrs Forrest's vehicle, when it was overtaken, but also the first part of the curve.

[17] Witnesses were asked to comment on the state of the accident scene compared to how it now appears and also to how it appears in photographs that were taken in 1997 that are Exs 7 and 9. In respect of the photograph that is Ex 9 Mr Forsyth was asked whether the vegetation at the time of the accident was more intense than it appears in that photograph. Mr Forsyth said "it was about the same". These photographs also show that the white line on the edge of each side of the road has on each side been moved slightly closer to the centre of the road. The plaintiff considers that the area between the bitumen and the embankment has been cleaned out since the accident. When Mr Forrest was asked to compare the accident scene on the date of the accident compared to what was shown in Exs 7 and 9, he considered that the area had been "cleaned up a terrible amount" and that at the date of the accident the grass was much longer. Mr Van Muyen also considered that the grass was much longer at the time of the accident and that you could not see around the curve, when travelling eastwards, because of the grass, although he was not specific about where one had to be for the grass to impede the view around the curve.

[18] Mr King made some measurements in respect of the curve. He described the curve proper and the transition curve which has a slightly larger radius between the end of the straight and the curve proper. Taking his measurements on the right-hand side of the road, he stated that the curve at the transition started about 160 metres west of the power pole and the curve proper started about 120 metres west from the power pole. Mr King stated that the red walking wheel shown in Ex 9 was located to correspond with where the vehicle returned to the bitumen on the left hand side of the road and that corresponded to about 55 metres west from the power pole. That means that the plaintiff's vehicle veered off to the left when it was on the curve proper.

[19] On the day in question Mr Phillip Forrest was driving his vehicle from Laidley to Ipswich along the same road. He was accompanied by Mrs Forrest. They had just travelled through Grandchester when their vehicle was overtaken by a vehicle that Mr Forrest described "must have been double my speed when he was overtaking". Mr Forrest estimated that he would not have been going any faster than 60 km/hr, as they were just coming through a town. Mrs Forrest was not sure of the speed of their vehicle, but estimated it at approximately 80 km/hr. Mr Forrest observed that the vehicle was a Commodore and described it in evidence as "a chameleon colour" and "that's the one that changes colour as you go". Mr Forrest described the driver as having long blond shoulder length hair and a blond moustache. He recalled that as the vehicle overtook his vehicle, it hit the dirt on the right hand side of the road. On the aerial photograph which is Ex 10 Mr Forrest marked the point where his vehicle was overtaken which was opposite a big house with a "For Sale" sign on it. Mr King calculated the distance from the eastern wall of that house to the power pole identified in Mr Forsyth's evidence as 749 metres.

[20] Mr Forrest did not consider that it was a safe place where his vehicle had been overtaken as that part of the road curves leading into the straight that goes up the hill to the crest where the plaintiff's accident occurred. Mr Forrest stated he was surprised by being overtaken and commented to his wife "Check this out. Here's an accident going somewhere to happen." Mrs Forrest could recall her husband saying that to her and she looked up out past her husband to her right and noticed the flash that went past and that it flicked up rocks, as it went past which made Mrs Forrest think that it had gone off the road. Mrs Forrest described it as a new car. Mrs Forrest did not actually see the overtaking vehicle in front of their vehicle, as she then went to look for a pen or something to write down the registration number. Mrs Forrest did not see the plaintiff's vehicle on the road in front of their vehicle. At no time did Mr Forrest see the plaintiff's vehicle in front of their vehicle. After Mr Forrest's vehicle had been overtaken, Mr Forrest was not looking at the Commodore when he was asking his wife to get its registration number. When he looked at the road again, the Commodore was "way up the road" and he could see it in the distance. It was the only vehicle that he saw in front of his vehicle.

[21] When Mr and Mrs Forrest rounded the bend, they saw the plaintiff's vehicle on the right hand side of the road and they stopped. Mr Forrest described that "there was dust settling". Mrs Forrest could recall that as they drove up the road and around the corner, she saw the plaintiff's vehicle and also described "the dust was just settling ... the car was not clunking down, but like just settled and the dust from the wheels or whatever was settling ... you could still see the dust ...". Mr and Mrs Forrest provided assistance to the plaintiff. Mrs Forrest stated that another person turned up after about 2 minutes.

[22] Although Mr Forrest observed a lot of broken glass from the plaintiff's car and what he described as "bits and pieces of shrapnel", he was imprecise about where the broken glass and shrapnel were located. He stated that it was "all over the place". Mrs Forrest observed that the windscreen was on the road, and that the contents of the plaintiff's car, lots of glass and bits of the plaintiff's purse were on the bitumen.

[23] Mr Chant assisted in training racehorses for his friend Mr Dobbe who resided on the Rosewood-Laidley Road about 300 yards east from the cutting where the plaintiff's car came to rest. Mr Chant and Mr Dobbe were sitting on the verandah of Mr Dobbe's house drinking tea. Mr Chant heard a sound and looked through the vertical slats down onto the road and saw an orange car which he described "go hooting along" and "was flying". He estimated the speed at 160 or 180 km/hr or "maybe more". Mr Chant thought the vehicle was an old Ford Falcon, a 1976 or 1978 model, but could not be certain. He stated that the vehicle was travelling towards Rosewood, ie in the same direction that the plaintiff was travelling. He stated that the vehicle sounded as if it had a V8 engine or something had been done to the exhaust, because he "could hear something vroom vroom along the road".

[24] After Mr Chant had observed that vehicle pass by, the next observation made by Mr Chant was of a vehicle coming into Mr Dobbe's bottom gate and coming up to the house to use the phone to notify about the plaintiff's accident. In evidence-in-chief Mr Chant described this occurring "about two minutes after that, maybe three minutes, might have been five, but I don't think so". In cross-examination Mr Chant stated that his best estimate of the time between the person in the Ford going past and the person driving in to ask for the use of the phone was "a minute and a-half".

[25] The only other car that Mr Chant had seen using the road was about "maybe two, three or four minutes, maybe five minutes" before the Ford went past, Mr Chant observed a white utility travelling along the road toward Grandchester.

[26] After the person had arrived at Mr Dobbe's house to use the phone, Mr Chant got into his vehicle and drove down to the accident scene and saw the plaintiff in the vehicle. Mr Chant directed traffic and a couple of minutes later, Mr Forsyth turned up.

[27] On the morning of the date of the accident Mr Dennien was travelling in his vehicle with his wife and two children from Laidley to Ipswich. He stopped at the accident scene as a lady was waving them down to stop and asked if they had a mobile phone. Mr Dennien attempted to use his mobile phone, but it was not a service area, so he drove a few hundred metres up the road, drove through a gate to a house about 100 metres from the gate. Mr Dennien got the people at the house to make the phone call about the accident. Mr Dennien returned to the scene. He picked up the plaintiff's handbag and a camera from outside the car. He can recall broken glass and can recall windscreen on the road.

[28] In examination-in-chief, Mr Dennien stated he could not recall meeting a vehicle coming the other way or being passed by a vehicle at high speed. He conceded, in cross-examination, however that there were a number of roads that joined the road he was travelling on between Laidley and Grandchester by which a vehicle could have entered the Laidley-Rosewood Road in front of him, without coming within his field of vision.

[29] It was common ground between the parties that the issue to be determined in this proceeding was whether the plaintiff could show on the balance of probabilities that the negligent driving of the driver of an unidentified vehicle caused the plaintiff to drive off the road, at the point where the plaintiff's vehicle commenced to veer off the road. The particulars of negligence set out in the amended statement of claim are driving without due care and attention; failing to maintain control of the motor vehicle; travelling at an excessive speed; and failing to steer clear of the plaintiff's vehicle.

[30] Mr Williams of Queen's Counsel conceded on behalf of the defendant that there was an unidentified vehicle on the road around the time of the accident. The defendant also conceded that the identity of that vehicle cannot be established after proper inquiry and search.

[31] It was submitted on behalf of the defendant that as there was no eyewitness to the accident, there was authority that the court should take a more cautious approach to considering the evidence than in an ordinary action for negligence where evidence is available from both parties. The defendant conceded that the civil standard of proof remained applicable, but submitted that the court must adopt a more cautious approach to the determination of the issue of liability, because it did not have the benefit of the story of the person whose conduct is under attack. The defendant relied on the authorities referred to in Eaton v Nominal Defendant (Qld) (1995) 21 MVR 357, 359; Hofer v Miller [1957] SASR 41, 51 and Westlake v Motor Vehicle Insurance Trust [1960] WAR 83, 86-87. The passage from the last mentioned case is typical of the statements relied on by the defendant:

"I have no doubt that prudence and common sense require that evidence adduced by a plaintiff who is alleging negligence against the driver of an unidentified vehicle should be scrutinized with particular care, at any rate when corroborative evidence of the existence of the vehicle in question, either by oral testimony or by the existence of physical signs of its presence at the scene is lacking, and I consider that the same careful scrutiny should be applied to the evidence where, though the presence of an unidentified vehicle on the road at the time and place of the accident is established, the only testimony as to the negligence of the driver of the vehicle is that of the plaintiff, particularly in a case such as the present where no impact with the unidentified vehicle is alleged, and where the accident could quite reasonably have happened in the way it did without the intervention of another vehicle at all."

[32] Mr McMeekin of Senior Counsel on behalf of the plaintiff sought to distinguish these cases on the basis that the only witness who was giving evidence was the particular plaintiff in the case, but that this was not such a case. Although it is correct that in each of the authorities relied on by the defendant the witness who was giving evidence in respect of the unidentified motor vehicle was either the plaintiff or the plaintiff's spouse, that is not the rationale for the caution in approaching the evidence. The rationale is that there was no opportunity for the court to consider evidence from the driver of the unidentified vehicle. That rationale is applicable whether a plaintiff can give evidence or not.

[33] Mr McMeekin also submitted that the principle to be applied was that set out by Menzies J in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, 309-310 which is a summary of other authorities:

"As has been said, `Inferences from actual facts that are proved are just as much part of the evidence as those facts themselves. In a civil cause `you need only circumstances raising a more probable inference in favour of what is alleged ... where direct proof is not available it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference; they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture: see per Lord Robson, Richard Evans & Co. Ltd. v. Astley (1911) A.C. 674, at p. 687. ... All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant's negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood'. These passages are extracted from the unanimous judgment of this Court (Dixon J., as he then was, Williams, Webb, Fullagar and Kitto JJ.), in Bradshaw v. McEwans Pty. Ltd. (Unreported, delivered 27th April 1951)': see Holloway v. McFeeters [1956] HCA 25; (1956) 94 C.L.R. 470, at pp 480 481." (footnotes inserted)

[34] The authorities relied on by the defendant do not modify the overriding principle that negligence against the driver of an unidentified motor vehicle must be proved on the balance of probabilities. These authorities merely highlight the care with which the evidence adduced needs to be considered, when there is no contrary evidence able to be adduced from the driver of the unidentified vehicle. In a circumstantial case (which this is) the process of drawing inferences from the facts as proved must be undertaken in accordance with the principle set out in the above passage from Jones v Dunkel. As was stated in Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207, 211 "the existence of other reasonable hypotheses is simply a matter to be taken into account in determining whether the fact in issue should be inferred from the facts proved".

[35] The objection to the admissibility of Mr King's reports was on the basis that the reports dealt with matters which were within common experience and expert evidence was therefore not required. Reliance was placed on Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486, 491-492, 501-503, 507 and R v Faulkner [1987] 2 QdR 263, 265-266.

[36] Mr King's current occupation is that of a safety consultant. He provides specialist consulting activities in accident analysis, road safety, research and accident investigation, vehicle crash simulation, ergonomics and safety, and other related matters. He has degrees in science and mechanical engineering and a certificate in traffic planning and control. In his science studies, he majored in psychology. A significant proportion of his work relates to road safety matters and traffic accident analysis.

[37] Having regard to the issue to be determined in this proceeding, the question of admissibility of Mr King's reports is not determined by whether or not there is a recognised area of expertise in traffic accident analysis, but whether "the subject-matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without such assistance, when it so far partakes of the nature of a science as to require a course of previous habit, or study, in order to (sic) the attainment of a knowledge of it" (a passage quoted in Clark v Ryan at 491).

[38] The first part of Mr King's report (Ex 1) deals with the description of the incident and is in the form of a narrative. The next part of the report deals with the feasibility of the negotiation of the curve by the unidentified vehicle at high speed. This is based on calculations, having regard to the radius of the curve of the road. Mr King has concluded that it would have been feasible for a vehicle to negotiate the curve in question at a speed of 150 km/hr. The calculations undertaken by Mr King to come to this conclusion are outside the range of common experience. The next section of this report deals with the aerodynamic effects of overtaking. Although there is reference in this section to scientific articles, the essence of what is conveyed in the report is simply information which is within the common experience that when a lighter and smaller vehicle is overtaken by a larger and heavier vehicle, there may be a buffeting effect, depending upon the lateral distance between the vehicles whilst the overtaking occurs. There are no facts disclosed by the evidence to allow any inference to be drawn as to the distance between the plaintiff's vehicle and the unidentified vehicle, if it did overtake the plaintiff's vehicle immediately prior to the plaintiff's vehicle moving off the bitumen on the curve. There is no need to receive Mr King's evidence on the aerodynamic effects of overtaking.

[39] The next section of Mr King's first report is on the effect of driver behaviour. Most of this section is in general terms dealing with the expectation of a driver being based on past experiences. That also falls within the ordinary range of human experience and it is not appropriate to receive expert evidence on this aspect. The last sentence of that section of the report states:

"Once vehicles are on the verge, drivers do not necessarily regain their travel path without difficulty even though they might be successful with a measured reaction."

That sentence links with the next section of the report which deals with shoulder running and driver behaviour. Although in that section Mr King refers to a report which he prepared in 1984 analysing rural Queensland traffic crashes in which 40% of all single vehicle crashes involved some form of control loss, often associated with a late or inappropriate response and driving on the road shoulder, this again is a matter which is within the ordinary range of human experience in relation to driving.

[40] On the basis of the above consideration, the only parts of Ex 1 which are admissible are the introduction, the section on the description of the incident and the section on the feasibility of curve negotiation at high speed. The only conclusion from the last part of the report dealing with summary and conclusions which is admissible is that "A vehicle travelling at 150 km/h could negotiate the corner in question". I rule that the balance of the report which is Ex 1 is inadmissible and I have struck out the inadmissible parts.

[41] Mr King's second report (Ex 2) was prepared in response to the report of Dr Grigg (Ex 22). The first part of Mr King's second report dealing with the description of the incident, deals with the effect of Dr Grigg's calculation of the curve radius as 440 metres on the effect of the conclusion that it was feasible for a vehicle travelling at 150 km/hr to negotiate the curve. This is a matter on which scientific expertise is required, in order to undertake the necessary calculations.

[42] The next section of Mr King's second report deals with overtaking and aerodynamic effects. This section again deals with possible buffeting of one vehicle on being overtaken by a much faster vehicle which is a matter within ordinary experience.

[43] Mr King then deals with the timeframe of events associated with vehicle tyre marks. He has undertaken modelling in order to show when a decision would need to have been made by the plaintiff to turn the steering wheel to the right to accord with the path of the vehicle shown by the tyre marks on the verge. Although the calculations undertaken by Mr King depend on assumptions which may or may not be justified, the modelling undertaken by Mr King is outside ordinary experience and that part of the report can be received as expert calculations.

[44] The next section of the report dealing with the possibility of regaining vehicle control deals with nothing that is outside the range of ordinary experience and therefore expert assistance is not required. It follows that in the section of the second report dealing with summary and conclusion that the conclusion which accords with the discussion in the section dealing with possibility of regaining vehicle control is not admissible. It is the last paragraph of the conclusion that deals with possibility of regaining vehicle control. It follows that all but the first sentence of the last paragraph of the conclusion is inadmissible.

[45] I therefore rule that Ex 2 is admissible, except for the sections on overtaking and aerodynamic effects and possibility of regaining vehicle control and the last paragraph of the conclusion (except for the first sentence of that paragraph). I have struck out the inadmissible parts of Ex 2.

[46] On the basis that I am receiving as evidence that part of Ex 2 which deals with Mr King's modelling, it is relevant to consider the argument advanced by Mr Williams when objecting to the admission of Mr King's reports that they were based on assumptions that the accident occurred in the manner being put forward in the plaintiff's case and the modelling was undertaken to show that the accident could have occurred that way. The fact that Mr King has relied on assumptions which are disclosed in Ex 2 is relevant to the usefulness of the analysis, rather than determining the admissibility of the analysis.

[47] One matter on which there was common ground was that it was possible for a vehicle travelling eastwards to negotiate the curve at an excessive speed. Whereas Mr King concluded that a vehicle travelling at 150 km/hr could negotiate the curve, Dr Grigg suggested that a vehicle travelling at a speed as high as 180 km/hr could negotiate the curve.

[48] Mr King in his second report (Ex 2) used a program that is available for modelling a vehicle's path based on normal passenger vehicle parameters and steering behaviour from studies of drivers carrying out certain manoeuvres. Mr King used the conditions for an abrupt lane change. On an assumption that the plaintiff was travelling at 95 km/hr, Mr King modelled the vehicle travelling off to the left on a 2º approach, travelling for 17 metres and then returning to the bitumen by travelling 6 metres after steering to the right took effect. It appears that Mr King did not appreciate that Mr Forsyth's measurements were vertical distances, rather than the actual distance traversed. This was not used as a basis, however to attack Mr King's calculations. This modelling proceeds on the basis that time elapses between a decision to steer and implementing the steering manoeuvre and time elapses between the turning of the steering wheel and the build up of tyre side force to enable the change of direction to occur. Dr Grigg agreed that modelling would need to take account of these time lapses. The conclusion which Mr King reached in his second report, as a result of the modelling, was that the decision to steer to the right was made, when the vehicle was still within its lane of travel on the bitumen, before it had commenced to travel outside the white line on the edge of the bitumen on the left hand side of the road.

[49] At the trial, Mr King produced diagrams to show the results of further modelling which he had undertaken which extended the curve to the west which accords more closely with the actual road, than the diagram used in Ex 2. The results of the additional modelling were Exs 15 and 16. Exhibit 16 was prepared on the basis of the plaintiff's vehicle travelling at the speed of 80 km/hr. The modelling in Exs 15 and 16 also produced the result that the decision to steer to the right was made when the vehicle was still within its lane.

[50] Although Mr King used an angle of 2º as the angle to the straight line at which the vehicle left the road, Dr Grigg calculated that angle to be 1.35º, using Mr Forsyth's dimensions of 0.4 metres and 17 metres. That calculation was not disputed by Mr King who stated in cross-examination that an angle of 1.35º would suggest a more gradual drift off the road than an angle of 2º and that, whether an angle of 2º or 1.35º, it was not consistent with a sharp intended pull of the steering wheel. Mr King stated that using an angle of 1.35º, however, would not alter the results of his modelling.

[51] Mr King agreed in cross-examination with the proposition that the decision to steer the vehicle to the right could have been made when the driver felt the vehicle moving onto the gravel, rather than the smooth bitumen of the travelled part of the road, but that the speed of the vehicle would have been lower than 80 km/hr. It became apparent from Mr King's evidence that he had made an assumption about the speed of the plaintiff's vehicle on the basis that he believed that the vehicle ran along the top of the embankment on the right hand side of the road and that could have happened only if the vehicle was travelling at a sufficient speed to enable it to climb the embankment. There was no evidence given by any witness that the plaintiff's vehicle had run along the top of the embankment on the right hand side of the road. That was not consistent with the observations made by Mr Forsyth of tyre marks. Although Mr King had not done the calculations, he estimated that the vehicle would have been travelling at a very much lower speed, such as 50 km/hr, if the decision to turn right were made after the vehicle had commenced to travel outside the white line on the left hand side of the road.

[52] Mr King concluded from his modelling that the time distance relationship was consistent with the plaintiff having a "surprise" or "startle" reaction to being overtaken by a vehicle travelling at high speed and undertaking an abrupt left steer and then an abrupt counter steer to avoid travelling too far left.

[53] Mr King expressed the following opinions in the conclusion of his second report:

"Supplementary analysis showed that the verge tyre marks indicated a departure angle and distance inconsistent with an "inattentiveness" related deviation; considerations relating to reaction time and time for steering to take effect showed that the abrupt steering dictated by the verge marks would have commenced with the Laser well within its lane and when only a normal steering correction would be required.

Conversely, an abrupt steering to the left (as might occur to increase clearance to an overtaking vehicle) would require an abrupt counter steer to the right to limit movement of the vehicle onto the verge."

[54] This conclusion by Mr King that the tyre marks on the left hand side of the road were inconsistent with a deviation from the road related to inattentiveness is based on the assumption of Mr King as to the speed at which the plaintiff's vehicle was travelling, when the deviation occurred and his conclusion from his modelling based on a minimum speed of 80 km/hr that the decision to steer right was made while the vehicle was still within its lane. Mr King did not do a model to indicate at what speed the plaintiff's vehicle could have been travelling, had the decision to steer the vehicle right been made when the vehicle commenced to travel outside the white line on the left hand side of the road or the plaintiff perceived that her vehicle was drifting to the left.

[55] When Mr King was challenged in cross-examination that his modelling required the driver to have anticipated that a right steer was required, while the vehicle was still within the white lines of the road, he explained that the purpose of his modelling was to show the time and distance required for a decision to react to take effect for the conditions that he modelled.

[56] Dr Grigg stated that there was no organised branch of scientific knowledge which would enable him to form a conclusion as to the circumstances in which the deviation of the plaintiff's vehicle off the roadway to the left was made. Dr Grigg stated that it was impossible to say why the verge marks on the left hand side of the road occurred.

[57] It was apparent both from Mr King's evidence and Dr Grigg's evidence on the same point that the modelling undertaken by Mr King, as to when the decision had been made by the plaintiff to steer the vehicle to the right, was dependent on the speed at which her vehicle was travelling. Mr King's conclusion that the plaintiff initiated the steer to the right while her vehicle was still within its lane is difficult to accept, when the angle at which the vehicle was steered to the right was so much sharper, than the angle of 1.35º at which the vehicle had moved off the road to the left which, as Mr King conceded, was not consistent with a sharp intended pull of the steering wheel to the left. There is an element of illogicality that a driver would steer to the right, in anticipation of drifting to the left off the bitumen, before it had commenced to happen. As Mr King's conclusion was based on an assumption about the speed of the plaintiff's vehicle and there is no evidence as to what speed the vehicle would have been travelling at, other than the plaintiff's evidence as to her usual practice, if I reject Mr King's conclusion, it means that I am rejecting the assumption that the plaintiff was driving her vehicle at a minimum of 80 km/hr at the time it veered off the road to the left. To avoid the illogical result of Mr King's conclusion about when the decision to steer the vehicle to the right was made, I infer that the plaintiff was travelling at a speed less than 80 km/hr at the time the vehicle veered off the road to the left and reject the result from the modelling undertaken by Mr King and his conclusion that the verge tyre marks indicated a departure angle and distance inconsistent with inattentiveness. Dr Grigg's opinion that it was impossible to say from the verge tyre marks how the accident occurred was more persuasive. I should add that I found Mr King's modelling of little assistance when it was confined to such specific assumptions and, ultimately, was conceded as illustrating only the time and distance required to implement an assumed manoeuvre under assumed conditions.

[58] There were a number of matters relating to the plaintiff's health and habits that emerged in the course of evidence on which the defendant relied as giving rise to other possible explanations for the accident. Obviously, there was no onus on the defendant to prove that it was more probable than not that the accident occurred without the intervention of the unidentified motor vehicle. The defendant relied on the existence of other possible explanations for the accident, however, to submit that the plaintiff would not satisfy the onus of showing that it was more probable than not that the accident occurred as a result of the negligence of the driver of the unidentified vehicle.

[59] The other possible inferences or explanations put forward by the defendant include:

(b) the effects of Ross River virus with accompanying tiredness;

(f) distraction by an attempt to remove something from her handbag;

[60] As there was evidence in respect of most of these matters, it is appropriate to make factual findings in relation to these matters, where possible.

[61] In 1991 the plaintiff had been referred to respiratory physician, Dr John Armstrong, with a history of loud snoring. At that stage the plaintiff weighed 104 kgs. She was diagnosed as suffering from mild and intermittent sleep apnoea. Dr Armstrong suggested that the plaintiff use a special type of pillow which would assist in keeping her airway open, while sleeping, and stop the snoring. The plaintiff also lost weight. The plaintiff found that use of the special pillow improved her condition. The only other treatment she found it necessary to use was clips on her nose. The plaintiff saw Dr Armstrong again on 3 July 1992 by which time there had been an improvement in her symptoms and the plaintiff had not seen Dr Armstrong subsequently or sought any additional treatment for her sleep apnoea prior to the accident. At the time of the accident the plaintiff weighed 100 kgs. Prior to the accident, the plaintiff had never fallen asleep while driving.

[62] Dr Heiner stated that sleep apnoea can cause excessive sleepiness and tiredness upon waking and that there is an increased risk of single motor vehicle accidents due to the driver suffering from sleep apnoea. Dr Heiner also expressed the opinion that each of Ross River virus or the medications which it was likely the plaintiff had taken on the day of the accident could have contributed to a person falling asleep while driving or contributed to inattentiveness, even after a short journey of 5 minutes, although Dr Heiner also pointed out that it was unlikely that a person who was fully wide awake would suddenly fall asleep 5 minutes later.

[63] Although the plaintiff's underlying condition of sleep apnoea must have increased, in general terms, her risk of being affected by tiredness while driving, in view of the fact that the plaintiff who was on holidays can recall feeling very good on the morning of the accident, it is not possible to draw an inference that the plaintiff was affected by tiredness immediately prior to the accident.

[64] In April 1996 the plaintiff was diagnosed with Ross River virus. She was extremely tired and in a lot of pain. She had time off work as a result, but had returned to work before the accident. Dr Saba records in his notes that on 24 June 1996 the plaintiff was "Very tired from Ross River Virus", on 23 July 1996 the plaintiff was "Very tired & stiff" and on 1 November 1996 the plaintiff was "Still very tired". In view of the evidence of how the plaintiff was on the morning of the accident, however, it is not possible to draw an inference that Ross River virus caused the plaintiff to be affected by tiredness immediately prior to the accident, even taking into account the plaintiff's condition of sleep apnoea.

[65] Prior to the accident the plaintiff was in the habit of wearing four earrings - a pair of large rings and a pair of sleepers. She wore one ring and one sleeper in each ear. It was the plaintiff's habit to leave her earrings in all the time, apart from when she went to the hairdresser. The plaintiff tendered one of the earrings that she was wearing at the date of the accident (Ex 4) and stated that the other was lost in the accident. Mr Van Muyen gave evidence that three earrings were recovered from the hospital, when the plaintiff was released but the fourth earring was not located. The defendant tendered the Ipswich Hospital emergency department patient assessment and activity record for the plaintiff dated 16 December 1996 (Ex 19). That records at 9.50am that "Yellow metal sleeper removed from (R) earlobe - no earring present in (L). Yellow metal watch removed from wrist". The purpose and completeness of this record was not established by any additional evidence. The defendant relies on this record as showing that only one earring in total was inserted in the plaintiff's ears at the time of the accident. As what jewellery was retrieved by Mr Van Muyen when the plaintiff was discharged from hospital is likely to be a more accurate account of what jewellery was received by the hospital from the plaintiff, I accept Mr Van Muyen's evidence that he did recover three earrings from the hospital.

[66] In relation to the large earrings, the plaintiff conceded that she may have been able to remove those earrings while driving, but would have been unable to insert them. The plaintiff was adamant, however, that she would not endeavour to remove an earring while driving. The defendant relies on the fact that the accident occurred on a journey which would have ultimately taken the plaintiff to the hairdresser. Having regard to the plaintiff's evidence that shows she was a cautious and careful driver at the time (which I accept) and that there are many possibilities as to how one of the big earrings could have gone astray, I find that immediately prior to the accident the plaintiff was not attempting to either remove or insert one of her earrings.

[67] Prior to the accident the plaintiff had been prescribed Deptran, Coversyl and Tertroxin. The plaintiff was prescribed Deptran, an anti-depressant, on 24 June 1996 and again on 22 August 1996. Dr Saba stated that if the dose was too large, it "can make someone less alert and dopey during the day", but it usually does not have those side effects, if used in appropriate doses. The plaintiff could not remember whether she was taking Deptran on the date of the accident, but if she were, there is no basis for inferring that she took other than the prescribed dose.

[68] The plaintiff was prescribed Coversyl on 2 September 1996, a blood pressure tablet. Dr Saba stated that in appropriate doses, it lowers blood pressure and leaves the person taking it alert, but taking too much of it can cause dizziness. As Coversyl was last prescribed prior to the accident on 1 November 1996, it is likely that the plaintiff had taken that medication on the day of the accident, but there is no basis for inferring that the plaintiff took other than the prescribed dose.

[69] The plaintiff had been taking Tertroxin for hypothyroidism for some years prior to the accident and I infer would have taken her usual dose on the day of the accident.

[70] In view of the plaintiff's evidence as to how she was actually feeling on the morning of the accident, it is not possible to infer that she was affected by tiredness from all or any of these medications immediately prior to the accident, even taking into account her underlying condition of sleep apnoea and that she had been suffering from Ross River virus.

[71] The plaintiff gave evidence that before she commenced on each journey from her home, she would turn on the two-way radio. She used it in the sense of sending a message only when she was driving home and wanted to let her husband know her whereabouts. She gave evidence that she kept the two-way radio on while driving and listened to the conversations, but did not join in. I therefore find that the two-way radio was on and that it was likely that the plaintiff was listening to it, but that it was not being used by the plaintiff to send or receive a message at the time of the accident.

[72] The plaintiff had her handbag with her in the vehicle at the time of the accident. Her habit was to place the handbag on the other side of the console on the passenger side, against the seat and in the corner. It is suggested by the defendant that the presence of personal effects at the accident scene which could have come from the plaintiff's handbag, meant that the plaintiff's handbag was open prior to the rollover of the vehicle and it is possible that the plaintiff was distracted while driving by attempting to remove something from her handbag. No such inference can be drawn from the mere fact that the plaintiff's handbag may have been open, in view of where the plaintiff stated she was in the habit of placing her handbag. It is a matter of speculation whether the plaintiff was attempting to remove something from her handbag. In view of the plaintiff's being a cautious and careful driver, it is unlikely that she was attempting to remove something from her handbag.

[73] The defendant submits that another possible explanation for the accident was inattention on the plaintiff's part. It is a matter of common experience that many motor vehicle accidents result from momentary inattention on the part of the driver. It is not something which can be excluded taking into account all the evidence.

Whether inference can be drawn that negligent driving of unidentified motor vehicle caused the plaintiff to steer her vehicle to the left

(a) The plaintiff was a cautious, careful and experienced driver who was familiar with driving on the road where the accident occurred who drove with her window down and usually drove at least a tyre's width from the white line on the edge of the bitumen.

(b) An unidentified motor vehicle travelling eastwards overtook the vehicle of Mr and Mrs Forrest approximately 750 metres before the power pole on the right hand side of the road.

(c) The dangerous manner in which that unidentified motor vehicle was being driven can be inferred from the observations made by both Mr and Mrs Forrest of the vehicle and the reaction of Mr Forrest in requesting Mrs Forrest to write down its registration number.

(d) Mr Forrest was distracted immediately after his vehicle was overtaken by the unidentified vehicle by giving the instruction which he did to Mrs Forrest, but that he then returned to looking at the road ahead.

(e) Mr Forrest had a view of the road ahead of him at least to the point where the plaintiff's vehicle commenced to veer off the road to the left, even allowing for the vegetation being more intensive than that shown in Exs 7 and 9.

(f) When Mr Forrest looked at the road ahead of him, he did see the unidentified vehicle in the distance, but he did not see the plaintiff's vehicle.

(g) As Mr Forrest was driving between 60 km/hr and 80 km/hr, it would have taken him approximately 35 to 45 secs to reach where the plaintiff's vehicle came to rest after rolling over.

(h) It would have taken the unidentified vehicle travelling at 150 km/hr about 18 seconds to travel the same distance.

(i) The plaintiff's accident had just happened when Mr and Mrs Forrest arrived at the scene, as both Mr and Mrs Forrest observed dust settling where the plaintiff's vehicle was.

(j) Mr Chant must have been mistaken about when he saw a vehicle travelling at a high speed in an easterly direction along the road, as his timing does not fit in with the time that had to elapse after the accident until Mr Dennien arrived at the scene, attempted to use his mobile telephone and then drove to Mr Dobbe's house.

(k) The tyre marks of the plaintiff's vehicle show that it veered to the left at an angle of 1.35º from the road, travelled for over 17 metres on that same path, then turned abruptly to the right and travelled over 6 metres back to the bitumen, traversed the road, commenced to leave tyre marks on the embankment 1 metre east from the power pole on the right hand side of the road, rolled over and came to rest a vertical distance of approximately 34 metres east of the power pole.

(l) The plaintiff's vehicle left no brake marks on the road between where it came back onto the bitumen on the left hand side of the road and then went off the bitumen on the right hand side of the road.

(m) There was debris such as the windscreen from the plaintiff's vehicle on the road and in the vicinity of where her vehicle came to rest.

(n) The unidentified vehicle did not stop at the accident scene.

(o) There was no evidence of any contact between the unidentified motor vehicle and the plaintiff's vehicle.

[74] It is submitted on behalf of the plaintiff that the presence of the unidentified vehicle moving at high speed in the same direction as the plaintiff's vehicle was travelling makes it more probable than not that the vehicle played a causative part in the plaintiff's vehicle leaving the road surface, probably by travelling too close to the plaintiff's vehicle as it overtook and cut in to get back onto the correct side of the road or by startling her with its speed of approach and overtaking manoeuvre.

[75] The plaintiff also relies on the fact that if her accident was not caused by the unidentified vehicle, it must have happened prior to the unidentified vehicle passing over that same section of road and that the unidentified vehicle did not stop to assist. It was suggested on behalf of the defendant that it was not surprising that the driver of the unidentified vehicle did not stop, because of the speed at which that vehicle was travelling when it passed the accident scene, if the accident had occurred by then.

[76] The fact that the unidentified vehicle did not stop is a matter which does not assist in determining whether that vehicle was the cause of the accident. If the unidentified vehicle was the cause of the accident, as it was travelling at such a high speed when overtaking the plaintiff, it is unlikely that the driver of the unidentified vehicle saw what happened. If the accident had already taken place as the unidentified vehicle travelled past the scene, it is unlikely that a driver travelling at that speed, if he had seen the accident, would have stopped, but it is possible that travelling at that speed the driver of the unidentified motor vehicle did not observe the plaintiff's vehicle or the debris.

[77] On the basis that the plaintiff usually drove only a tyre's width from the white line on the edge of the road, it would not have taken much to happen for her vehicle to veer off to the left hand side of the road. The angle at which the vehicle departed from the road of only 1.35º is consistent with a slight change in the direction in which the plaintiff's vehicle was travelling to the road while on the curve. Even allowing for Mr King's evidence that there could have been braking, without any brake marks being left on the road, when the plaintiff's vehicle returned to the road after the abrupt right hand steer which took effect level with the guide post on the left hand side of the road, it is curious that no brake marks were found on the road.

[78] Basically, the plaintiff is seeking to draw the inference that her driving the vehicle off the road at an angle of 1.35º was caused by the unidentified motor vehicle. The evidence which supports that inference is the presence of the unidentified motor vehicle travelling at a high speed through the area around the time of the accident and that the accident had happened immediately before Mr and Mrs Forrest arrived at the scene. What detracts significantly from drawing that inference is the fact that Mr Forrest did not see the plaintiff's vehicle on the road ahead of him at the same time that he saw the unidentified motor vehicle. I consider that to be a critical piece of evidence. To draw the inference that the unidentified motor vehicle, in effect, forced the plaintiff to veer left off the bitumen would be to ignore the fact that Mr Forrest did not see the plaintiff's vehicle on the road ahead of him, when he saw the unidentified motor vehicle in the distance. If the plaintiff's accident had happened immediately before the unidentified motor vehicle drove past the scene, it would still have been a fresh accident scene in the terms in which Mr and Mrs Forrest described it when they arrived. I am therefore not satisfied that it is the more probable inference that should be drawn from all the evidence that the departure of the plaintiff's vehicle to the left of the road was caused by the overtaking of the unidentified motor vehicle travelling at excessive speed.

[79] Without such an inference, it is not possible for the plaintiff to satisfy the onus she bears of establishing that it was more probable than not that the accident was caused by the negligence of the driver of the unidentified vehicle. It follows that the plaintiff's proceeding must be dismissed. I will hear submissions on costs.

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Judgment (108 paragraphs)

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Cases Cited (4)