WESTINA CORPORATION PTY LTD -v- BGC CONTRACTING PTY LTD [2009] WASCA 213 (2 December 2009)

[76]

Mr Keys gave oral evidence that the haul road was constructed of compacted gravel. He said that the shoulder was made of excess gravel and mud and sloped away from the road as can be seen from the photographs to which I have referred, such that there was a drainage channel on either side of the haul road.

Mr Keys also said that there was a significant difference between the appearance of the haul road and the shoulder in both texture and colouration during daylight, however at night, 'it looks as one'. He was aware that the shoulder was 'too soft' to drive on and that because of the recent rain, the shoulder may have been 'more softer' than usual. He therefore would neither attempt to drive, nor park, on the shoulder. His concern was 'getting bogged'.

Mr Keys did not have any problem in seeing the marker posts at night. On high beam, they could be seen from a distance of between 100 and 150 metres and on low beam they could be seen from approximately 50 metres. He also indicated, that, when passing an oncoming road train, he would aim to pass as close to the marker posts as he possibly could 'without running them down'. The reason for this was to leave the oncoming vehicle with as much room to pass as possible.

Mr Keys indicated that the BGC trucks were able to drive at a speed limit of up to 90 kilometres per hour, whilst the Jamieson Transport trucks were able to travel up to a speed of 70 kilometres per hour.

Importantly, Mr Keys was aware, that, the third trailer on haulage units may sway from side to side, especially on dirt roads. If that sway were to eventuate, then, in normal conditions, he would accelerate so as to cause the third trailer to come back into line with the rest of the unit. Braking might cause the trailer to slide and/or roll over. He knew that the third trailer is commonly referred to as the 'dog' trailer, because, like a dog's tail, it would 'wag'. Indeed, it is common ground that this sway, or the potential for this sway, is well known to the drivers of road trains.

In cross-examination however, Mr Keys indicated that he knew he should not drive off the edge of the road. He did not however, necessarily believe that he should not drive along the edge of the road. To the best of his knowledge, the edge of the road was delineated by guide posts. He also said that he should leave room between his truck and those delineators.

Driving on the shoulder was something Mr Keys said he would never do and he would not drive in such a manner that the third trailer might go onto the shoulder.

Further, in cross-examination, Mr Keys gave evidence that if the third or dog trailer were to go into the shoulder, then, it could become bogged and then it would be at risk of overturning. That could possibly also cause the second trailer to overturn. It could also be the case, that, the driver could lose control of the third trailer and then, as Mr Keys put it, 'I don't know what could happen'. He also conceded that if the trailer were to venture into the shoulder, and 'start to sink' then, it is possible that that could also cause sway.

Mr Keys then went on to say that there [are] a number of ways in which a trailer can sway into the shoulder, including:

(a) the driver positioning the prime mover, and hence the trailers, too close to the edge of the road;

(b) the driver performing a moving manoeuvre;

(c) a combination of speed and direction of movement; and

(d) other reasons, such as mechanical failure, movement of the product being transported in the trailers and road conditions [27] - [35].

[78]

Mr Keys gave oral evidence that he was travelling in a southerly direction approaching the crest of a hill when he saw the oncoming headlights of a truck driven by Mr Teague. Accordingly, he manoeuvred his truck to the left using a marker post as a guide. He said that he 'lined myself up to the edge of the road'. The manoeuvre to his left was a slight movement to gradually bring his prime mover and trailers to the left. The haul road was straight.

As Mr Keys passed Mr Teague in their respective road trains, Mr Keys felt a 'slight jerking' motion. By this time, he had slowed his road train to about 50 kilometres per hour whereas, going up the crest of the hill, he had been travelling at about 75 kilometres per hour.

Mr Keys had not previously experienced this 'slight jerking motion'. He 'felt it was like a flat tyre'. He began to accelerate because the engine 'may have just started to labour'. This occurred just as he passed Mr Teague in his unit. The jerking movement then ceased.

The jerking motion then started again after two seconds and after he had passed Mr Teague's road train when Mr Keys was approximately half way between the road trains of Mr Teague and Mr Ingold, which, Mr Keys said, were about 150 metres apart.

As he approached Mr Ingold's prime mover, Mr Keys looked to the left of the road, rather than into the head lights of Mr Ingold's prime mover. Nonetheless, Mr Keys was aware of Mr Ingold's headlights. He could not see the edge of the road. He thought that he was adjacent to or beside the marker post on the haul road and that that included the whole road train. He looked in the rear view mirror. This should have enabled him [to] see a flash of the side lights on his rig. He believed that he may have seen his third trailer on the shoulder of the road, but only for a brief second, when he felt a slight nudging motion. He thought that a tyre may have become loose and have become tangled in the wheels. He heard a slight thud. He brought his prime mover and trailers to a halt, over a distance of approximately 50 metres. He then exited the prime mover, saw the resulting devastation and radioed for help [36] - [40].

[85]

It seems to me, that, by reason that there can be natural sway of a dog trailer or a third trailer on a road train then, a reasonably competent operator should make allowance for that natural sway when driving, especially when on a dirt road. The reasonably competent operator should not drive on the edge, or so close to the edge, of the road by reason that if such natural sway were to occur, and if it were to occur to the left, then that would necessarily result in the trailer entering the shoulder, as in this case, which shoulder was known to Mr Keys to contain some water and be 'too soft' for safe driving purposes. That is because a reasonably competent operator might not, in those circumstances, be able to take evasive action, such as accelerating, in order to overcome the sway, before the third trailer swayed so far as to be off the road pavement and on the shoulder in what would be a potentially dangerous situation, as ultimately happened here. The reason is obvious. As Mr Keys put it, 'possibly I could lose control and then I don't know what could happen'.

Thus, Mr Keys' act of having lined his road train 'up to the edge of the road' amounts to a negligent act which was the primary cause contributing to the crash, even if the sway into the drain was a natural event without negligence. But it was the positioning of the prime mover on the edge of the road which is the relevant starting point.

This then seems to fit within particular 5 of the particulars of negligence in that Mr Keys 'failed to ... position the BGC truck or the third trailer on the roadway so as to prevent the third trailer leaving the roadway, running out of control and causing the collision'. This does not require me to draw any inference at all.

However, if necessary, the inference of negligence in this case can be based on the pleaded particulars of negligence as a whole and drawn from the facts as I have found them to be. Such inference is not merely speculation or conjecture ...

...

I do not know whether the sway was caused by the manoeuvre to the left from the centre of the road or by natural causes. As mentioned, there has been no expert evidence as to the movement from the centre of the road causing sway, if it did sway, and nobody gave any evidence as to the cause of the third trailer being in the shoulder. Mr Teague only saw the third trailer off the road in the shoulder area. The photographs reveal that the trailer had been in the shoulder area. However, it has not been proved what caused the sway, but it does not appear to matter. What is important is where Mr Keys positioned his prime mover in the circumstances of the haul road, its edge and, as he knew it to be the fact, the 'slushy' or 'too soft' shoulder into which he should not allow the trailer to pass, such that if and when sway occurred, and if it was to left and into the shoulder, that could foreseeably lead to the crash [73] - [76], [78].

WESTINA CORPORATION PTY LTD -v- BGC CONTRACTING PTY LTD [2009] WASCA 213 (2 December 2009) - WASCA 2009 case summary — Zoe

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WESTINA CORPORATION PTY LTD -v- BGC CONTRACTING PTY LTD [2009] WASCA 213 (2 December 2009)

Legislation Cited (4)

Cases Cited (15)