New South Wales District Court CITATION: Damorange Pty Ltd v Jim Pearson Transport Pty Ltd [2010] NSWDC 174 HEARING DATE(S): 2-4 March 2010; 7 April 2010 JUDGMENT DATE: 10 June 2010 JURISDICTION: Civil JUDGMENT OF: Gibson DCJ (1) Judgment for the defendants. (2) Plaintiff to pay the defendants' costs. DECISION: (3) Judgment for the cross-claimant in the cross-claim in the sum of $21,563.56. (4) First and second cross-defendants pay the cross-claimant's costs. (5) The parties have leave to bring in Short Minutes of Order reflecting the mathematically agreed sum for interest on the cross-claim. (6) Liberty to restore concerning interest and costs. CATCHWORDS: TORT - negligence - contributory negligence - truck collision on highway - PRACTICE & PROCEDURE - concurrent expert evidence Plaintiff / First Cross-Defendant: Damorange Pty Ltd PARTIES: First Defendant / Cross-Claimant: JH1 Pty Ltd trading as Jim Pearson Transport Pty Ltd Second Defendant: Colin Mitchell Second Cross-Defendant: Ross Andrew Adamson FILE NUMBER(S): 76 of 2009 COUNSEL: Plaintiff: Mr D R Benson Defendants: Mr N Polin SOLICITORS: Plaintiff: Accent Legal Defendants: Lee & Lyons Judgment [1] At approximately 2.15 a.m. on 17 October 2007, the plaintiff's Kenworth prime mover, while travelling south along the F3 freeway near the Mandalong Road exit, was involved in a collision with the first defendant's Freightliner Argosy prime mover and its attached trailers. [2] The plaintiff by statement of claim filed on 13 January 2009 brings proceedings for damages for the repair of the plaintiff's prime mover and trailer ($200,357.11) and report and police fees ($2,136.30) totaling $202,493.41. The second defendant is an employee of the first defendant, and the driver of the subject vehicle. Quantum is not in dispute for either the claim or the cross-claim. Only the issue of liability is raised by the defendants. The first defendant brought a cross-claim (filed on 19 November 2009) for $26,954.45 and an unspecified sum for survey fees for damage to the first defendant's vehicle (about which I did not hear further during the trial). [3] The statement of claim sets out a short description of the accident (at paragraph 5) as having occurred because, while the plaintiff's vehicle was travelling along the freeway, the first defendant's vehicle started to move southwards along a road shoulder without any indicators on and then emerged suddenly from a non-designated parking area about 150 metres south of the overpass, directly in front of the plaintiff's vehicle. [4] The particulars of negligence pleaded are that the defendant: 1. Parked in a non-designated area on the left shoulder of the freeway; 2. Failed to keep a proper lookout for approaching vehicles along the freeway; 3. Failed to heed the presence of the plaintiff's vehicle on the freeway; 4. Failed to give a right change of direction signal when making a right change of direction in contravention of rule 49 of the Australian Road Rules; 5. Failed to give way to the plaintiff's vehicle when the first defendant's vehicle emerged from the left road shoulder onto the freeway in contravention of Rule 74 of the Australian Road Rules. [5] The plaintiff and first defendant each called the driver of the vehicle. I have referred to each of these drivers as "Mr Adamson" and "Mr Mitchell" rather than "the second cross-defendant" and "the second defendant". [6] There were no other witnesses to the accident. A passenger in the plaintiff's vehicle was not called, but no point was taken concerning this, as he cannot be located and he either saw very little (judging by the statement prepared for him) or (according to the defendants' submissions) was asleep at the time. [7] There are significant inconsistencies in the statements and cross-examination of both drivers. The parties each relied upon expert evidence. By agreement between the parties, the experts gave evidence in a concurrent session, having first determined issues upon which they agreed in a private meeting. That evidence is of assistance when analyzing the different versions of the accident given by Mr Adamson and Mr Mitchell and the objective evidence of the accident, principally the vehicle and police records. [8] Before considering the competing versions of the drivers, I shall note the contents of the police investigation notes. The Police Investigation Notes [9] The COPS Report stated: "At 2.15 am on Wednesday the 17th October 2007 the 41 year old was driving his vehicle in a southerly direction on the F3 under the Mandalong Overpass and has collided with the vehicle being driven by the 43 year old who has just pulled back onto the F3 after stopping for a break under the overpass. The point of collision was about 150 metres south of the overpass."(Exhibit A tab 5) [10] Mr Adamson was interviewed by the police and his statements are recorded at Exhibit A tab 5: "I was travelling south to Sydney. I was in the left hand lane travelling south at 100 kph. As I was going past the Morisset exit I saw truck tail lights moving out from the parking bay on the left. The next thing I knew he was in the left lane in front of me. I just swerved to the right but couldn't avoid colliding with the truck because he had pulled straight out in front of me. Q: Did you try to brake? A: I can't remember, I probably did. I don't know [sic] swung the thing." [11] The police also interviewed Mr Mitchell, who said: "I stopped under the Mandalong Road overpass for a break from 1.30 am to 2.15 am. I started, looked in my mirror, nothing coming, put my indicator on and pulled out into the left hand lane. I looked in the mirror again and saw a truck coming up about ½ a k [sic] back. I don't know if he had his high beam on but he never deviated. He stayed in the left lane. He kept coming and I kept waiting for him to move into the right lane. Right at the last second when I realized he wasn't going to go into the right hand lane I moved left into the emergency lane to try to avoid a collision and right at the very last second I saw him pull right at the time of impact." [12] Mr Adamson also made statements at the time to the insurers and on a claim form, and I now consider the version of events given by him. The evidence of Mr Adamson [13] The evidence of Mr Adamson, the driver of the plaintiff's vehicle, may be summarised as follows. Mr Adamson's work started in Brisbane on 15 October 2007 as he had driven a load there, and then had the day off, continuing into the morning of Tuesday 16 October 2007. By early afternoon he had driven to Guyra, arriving at about 6 p.m., where he took a two-hour break while his vehicle was loaded with tomatoes. He then proceeded to Tamworth where he took a 15 minute break, and then to Singleton where he took a 30 minute break, according to both to his truck records and to the investigators' report (Exhibit A, tab 7). He drove from Singleton to Maitland, and then onto the freeway. [14] What did Mr Adamson say about the accident in his statements, firstly at the scene of the accident, then on the claim form and then to his employer's investigators? [15] As set out in paragraph 10 above, at the scene of the accident, he told police simply that when he was going past the Morisset exit he saw truck tail lights moving out from the parking bay on the left and the next thing he knew, the truck had pulled straight out in front of him. He made a similar statement in an undated claim form (with a fax line dated 23 October 2007), where he drew a diagram and wrote: "On the 17.10.07 I was traveling south on the F3 Freeway has I [sic] was coming up to the Mandlong [sic] Rd exit off freeway I had notice a truck moving from out on the freeway with that I swang [sic] hard Right to avoid hitting him but just caught the back of his trailer. I would have been travel [sic] at 100 km at the time of the accentile." [sic]. Underneath the diagram are the words "that's me traveling south bound" and "Non Parking Bay he just pull out on to the freeway south bound". The cause of the accident on page 2 is said to be that the first defendant's driver "pulled out in traffic from a non-designated parking area."(Exhibit A tab 6) [16] A more detailed version is set out in Mr Adamson's statement, attached to the 23 November 2007 investigators' report, including a reference to a third vehicle: "As I approached the interchange and I had gone past the exit ramp, taking vehicles off to Morisset, I noticed a truck parked off the side of the road, well off the edge of the road, and in a section like and emergency stopping lane or road shoulder, I could see that he had rear parker lights on but I don't recall there being any roof lights. I was driving in the left lane, travelling at about 100 kmh. I know I had my lights on and I'm pretty sure I had high beam on.It's hard to be sure about the distance but I estimate that at this point when I noticed him, he was about 150 metres ahead of me. Then when I had travelled about 50 metres I noticed that his vehicle was moving but he was still off the roadside, so naturally I was of the view that he had seen me and was just rolling along off the side of the road waiting for me to come through. The road is straight at this point. He did not have an indicator on, so I had no reason to think that he was pulling into my lane.At this time I noticed there was a vehicle bearing down on me from behind in the right lane, and because of this I was committed to remain in the left lane.At this point I began to notice that he was starting to veer out onto the road but the distance between my semi and his truck had closed. I couldn't take hard evasive action, so I tried to gently veer across to the right lane so I could move past him.It was too late for me to avoid him and I hit my brakes once I realised that we were going to make contact, but I did try to get round him, I clipped the rear right corner of the truck and he was driving a freightliner. The impact literally tore the passenger side off my prime mover. Fortunately Benny [the passenger who was either sleeping or unobservant] was not injured and I managed to keep control of the truck and pulled it up on the right side of the southbound lane of the freeway." [17] In examination in chief and cross-examination, Mr Adamson repeated that he first saw the defendant's vehicle when it was only 150 metres away and was not moving, and that he first saw the defendant's vehicle commenced to move when his vehicle was approximately 100 metres in distance: "Q. And from the time that you first saw the defendant's vehicle parked as it was, when was the first time that you had any inkling that he was going to come into the lane - into lane 1? A. Well, when the trailer was out on the highway. Q. And, from the time that you first saw him, which according to your affidavit, I think you were about 150 metres in this position south of - north of the overpass, to the time that the collision occurred - how long was that? A. I can't really remember. Well, I don't know, about a couple - a couple of - about 50 metres, I suppose, I'm not sure. Q. But that's your feeling about the distance that you travelled before the collision occurred? A. Mm. Q. What's your impression of how long it took from the time that you first saw him until the time that the impact occurred? A. I'm not quite sure. Q. Seconds only? A. Could've been, yeah, but I'm not 100 per cent." (T-10 line 48 to T-11 line 18) [18] He repeated this evidence in cross-examination: "Q. Just the question you were answering just then, are you saying that from the time you first saw him to the time of impact, your vehicle travelled about 50 metres? A. I'm not quite sure. Could've been a little bit longer, been a little bit less. I'm not 100 per cent sure. Q. A little bit more or a little bit less than 50 metres? A. Could've been. I'm not quite sure." (T-11 lines 24 to 31) [19] He was certain about the distance of 150 metres: "Q. Yes, it says "It's hard to be sure about the distance", but you estimate that at that point - that's the point you first saw the other truck - he was about 150 metres ahead of you? A. Yes. Q. Is that right? A. Yes. Q. You then say that you travelled about 50 metres. See that, the next sentence? A. Yes, yes. Q. And then you noticed his vehicle moving? A. Yes. Q. Is that correct? A. Yes. Q. So am I reading that correctly that you first saw him when he was 150 metres ahead and then when he was 100 metres ahead you first saw him moving? A. Yes. Q. Is that correct? A. Yes. Q. So the first time you saw the vehicle move, your vehicle was only 100 metres behind them? A. Could've been, yes. Q. And you had seen it stationary so you saw it start to move? A. Saw it start to move, yes." (T-15 line 34 to T-16 line 14) [20] He went on to repeat this evidence at T-18 ("I only seen it when I was about 150 metres"), T-20 lines 14-19 and reaffirmed this evidence in re-examination (T-53 lines 3-27). Analysis of Mr Adamson's evidence [21] The defendants' helpful written submissions point out that this evidence simply cannot be correct (written submissions page 2), particularly for the distance given for when Mr Adamson first saw the truck. These errors, and in particular the distance given for when Mr Adamson first saw the first defendant's truck, were conceded by counsel for the plaintiff in oral submissions. [22] In addition, as is set out in more detail below, the experts in their joint report agreed that the S-distances estimated by Mr Adamson could not be correct as it was too short. [23] Mr Adamson's consistent, but wrong, evidence on these vital issues must cast doubts upon the accuracy of his recollection of events. [24] Counsel for the plaintiff submits that Mr Adamson was in a state of shock following the collusion (T-51), that this evidence was given without guile and prevarication and against his interest, that he was consistent in his wrong evidence, and that other factual matters about which he gave evidence were facts about which he was not shaken, and about which he was correct. [25] However, there were other areas in Mr Adamson's evidence which are inconsistent with the objective evidence, and with the experts' findings, as well as with the version of Mr Mitchell. These were as follows. Whether the first defendant's truck was "rolling along" or "getting ready to go" (T-3 line 3) prior to entering into the line of traffic [26] The case was opened on the basis that the first defendant's truck was rolling along and getting ready to go into the traffic lane. Mr Adamson did not in fact give this evidence. In his affidavit (paragraph 11), he states that the other truck "was just rolling off the side of the road waiting for me to come through". However, he did not give this description in his oral evidence either. He said that "the other truck pulled out on the freeway" (T-16 line 49). In addition, as counsel for the defendant points out on page 2 of his submissions, on his own evidence Mr Adamson could only have observed the first defendant's truck moving for 3.6 seconds and the truck would have had to come out nose first, which is inconsistent with the damage to the rear of the first defendant's truck. [27] Taking this into account, the statement made by Mr Adamson to the police on the night in question, namely that the first defendant's truck "swerved straight to the right" (Exhibit A, tab 5), is more likely to be an accurate description than the reference in paragraph 11 of his statement to the other truck "just rolling off the side of the road" (Exhibit A, statement, paragraph 11). All of the evidence in fact points to the defendant's vehicle going straight into the lane, rather than rolling along. This is another inconsistency in Mr Adamson's evidence. [28] The plaintiff submits that the defendants' attack upon Mr Adamson's description of the defendants' vehicle rolling along in the emergency lane as a recent invention is "laid to rest" by examination of Mr Adamson's statement to Freemans (written submissions paragraph 9 and 10). However, Mr Adamson's description of the truck rolling along within the breakdown lane is not a statement that he made on the night in question, and was something that was not physically possible given that the lane was only 3 metres wide, while the first defendant's truck was 3.2 metres wide. Nor was it a description he gave in his evidence. His statement to Freemans is simply inconsistent with these versions. [29] On the balance of probabilities, I find the first defendant's truck was not rolling along in the emergency lane, but was commencing into the first lane of traffic, at the time that Mr Adamson first saw it. The presence of a third vehicle on the road [30] Although on the night in question Mr Adamson did not tell the police that he saw another vehicle in the right lane, or referred to this in the claim form which was lodged less than a week after the accident, he had the following to say in the statement he provided to the insurers: "12. At this time I noticed there was a vehicle bearing down on me from behind in the right lane, and because of this I was committed to remain in the left lane… 24. … There was a car in the right lane passing me so I was committed to the left lane. There was hardly any traffic on the freeway at that early hour of the morning and I only recall that one vehicle that was coming along in the right hand lane, so it wasn't as if he had to rush out into the laneway." [31] Mr Adamson in his cross-examination said as follows: "Q. What about the vehicle you say that was in the right lane? A. Gone. Q. It's gone? A. Might've taken the exit ramp. Q. Sorry, I thought you were saying that you couldn't - withdraw that. If you go back to your affidavit, paragraph 12? A. On what page, sorry? Q. Page 3? A. Yes. Q. Paragraph 12 you see you say you noticed the vehicle bearing down in the right lane? A. Yes. Q. You see paragraph 13? A. Yes. Q. "I couldn't take evasive action so I tried to gently veer across to the right so I could move past him."? A. Well that's what you do. Q. See what you're saying there, sir, isn't it, you're saying I couldn't veer hard to the right because there was a car in the right hand lane beside me? A. Well yeah, the lights were in the right hand side lane, he could've seen what was going to happen and might've take the exit ramp off the freeway instead of being in an accident. Q. Let's just get it clear, in your affidavit you're saying, "I couldn't take evasive action so I tried to gently veer to the right" and that's because there was a car bearing down on your right hand lane? A. Gently hard but you're still got to veer to the right, to avoid it. Q. I'm just trying to clear up what you're saying. In your affidavit you say you couldn't take evasive action? A. Yes. Q. So you tried to gently veer to the right? A. Gently, hard, it's still the same thing, I avoided it." (T-24 lines 8 - 47) [32] This description of a third vehicle is unconvincing for the following reason: 1. It is not referred to on the night in question to the police or in the insurance form; 2. His explanation for what he told the police was that he did not see the police report (T-25 line 11) and could not remember its contents; 3. His description of this vehicle was vague in that he said the vehicle "It mightn't have been a care [sic], might've been another truck, could've been something else" (T-26 lines 17-18) and his explanation for its whereabouts at the time of what must have been a dramatic accident, namely that it "could've taken the exit" (T-26 line 21) was unconvincing. Mr Adamson's eyesight problems [33] Mr Adamson made a surprising admission in cross-examination concerning his eyesight and why he might not have been able to see the defendant's vehicle: "Q. Is there any reason why you wouldn't have been able to see it for the first 600-odd metres? A. It's parked on the side of the road there but yeah ..(not transcribable).. wouldn't have been able to see it, I - 750 metres, that's a long way back, yeah. Q. It is a long way back isn't it? A. I might not have had my glasses on. Q. Do you normally wear glasses to drive? A. Sometimes. Q. You are required to wear glasses as part of your licence? A. No yeah on my licence now yeah. Q. Yeah? HER HONOUR Q. When you say 'now' were you then? A. I can't remember if I had them on - I know that I had a pair, but I'm not quite sure if I had them on at the time. Q. What do you need glasses for, long sighted or short sighted? A. Long sighted yeah, of a night time. Q. What's your distance vision like? A. Now? Q. No, then. Distance vision, for seeing in the distance. A. It's good now with the glasses yeah. Q. What was it like then? A. I'm not quite sure I can't remember - that's why I just can't remember if I had them on or not at the time." (T-18 lines 15-48) [34] Examination of Mr Adamson's licence revealed that while the licence upon which he had been travelling for some years had not been endorsed for spectacles, the licence issued to him a matter of some weeks before the accident had been endorsed for spectacles. He went on to say at T-45 line 43 to T-46 line 17: "Q. You saw him at the last moment and your evasive action was only sufficient just to clip the back right hand corner of the vehicle? A. Maybe. Q. And one of the reasons why you may not have seen him is because you weren't wearing your glasses? A. I don't really know if I even had them with me, I'm not quite sure. They might have been broken, I might not had them on at all. Q. I understand. A. I can't remember if I had my glasses on or not and I don't know if I had them with me at the time. Q. Well certainly when you walked around afterwards you didn't have them, after the accident you didn't have them on? A. Well that's right, that's right. Q. Did you? A. No. Q. So you may not have had them? A. I might not had them with me at all. Q. And you told us that in terms of your licence, certainly now, you need them in terms of distance vision, don't you? A. Well yes." Conclusions concerning Mr Adamson's evidence [35] As counsel for the plaintiff stated in his opening and confirms in his written submissions, the determination of the issues in this case primarily depends upon my acceptance or rejection of the evidence of Mr Adamson. There is a concession that in paragraph 2 of those submissions that the absence of Mr Adamson's spectacles may be relevant concerning contributory negligence regarding the accident. [36] This is a clear case where the evidence of a witness, however honestly given, is simply mistaken concerning the majority of issues in dispute, in circumstances where there is real doubt about his ability to have seen what was occurring because he was not wearing his spectacle. [37] At the conclusion of the hearing, the plaintiff was given the opportunity of providing information about the level of the Mr Adamson's shortsightedness, such as his prescription, but this was not forthcoming. [38] Mr Adamson's evidence is wholly mistaken on a substantial number of the factual issues in dispute, in circumstances where this must put in doubt the accuracy of his remaining observations, not least because of his admission that he was not wearing his glasses on the night in question. Mr Mitchell's evidence [39] Mr Mitchell said in his evidence that he had stopped his vehicle at approximately 1:30pm on the unsealed shoulder on the southern side of the Mandalong overpass, approximately half an hour before the time of the accident. It was not legal to park there, but it was not uncommon for trucks and other vehicles to park there from time to time, as was noted in counsel for the plaintiff's opening, and Mr Adamson's evidence was that he was unsurprised to see a vehicle pulling off the side of the road for that reason. [40] The oral evidence Mr Mitchell gave about what he did while he was parked there differed from evidence in his statement. In his statement he said he was bored and read a book; in his evidence he said he slept. [41] Mr Mitchell's evidence was that after he decided to continue following his rest break, he turned on his engine, filled in his logbook and prepared to leave. He looked in the rear vision mirror which enabled him to see approximately 700 metres back towards the north. As there was no traffic approaching, he put on his indicator, put the truck in gear and proceeded to enter the freeway, driving quickly across the breakdown lane and continuing to look into his rear vision mirror by reason of the fact that he was crossing into a lane and thus merging into traffic. He thought he was traveling at approximately 15 kilometres an hour when he came into the left hand lane and it was as he straighten his vehicle after that he looked into the rear vision mirror and noted the plaintiff's vehicle coming around the corner with high beam lights on, about 500 metres behind him. [42] This estimate was challenged on the basis that it was a repetition of the distance evidence the expert had given, in circumstances where Mr Mitchell agreed he had never measured the distance (T-87 line 31). However, Mr Mitchell said he had been over the road after the accident and that he was able to measure distances (T-88 line 25). He was certain that he put on the indicator (T-88 line 45); he said that he was merging into "one of the most major highways in Australia" (T-88 line 50). [43] Mr Mitchell described the accident as occurring as follows: "A. I straightened up, I looked in the mirror again because the truck still had its lights on high beam. I was still heading south and at this stage I kept on looking in the mirror because the truck was getting closer, still with its lights on high beam. I looked again and again and it's getting closer and closer. No other traffic in sight other than the truck in the left hand lane, and it was just getting very close and very close still with lights on high beam. Q. Are you able to judge how far away it was at each particular point or-- A. Enough to know that it was getting to a point where it was getting you know that he should be moving over, and yeah at a point where I thought well he's not going to, there's something the matter he's not going to move over in the right hand lane. I swerved over to the left and at my last look in the mirror I saw him steer the truck to the right to try and avoid me. As I turned left I saw his reflection in the truck in the window, through the windscreen and he was veering severely to the right. Q. So his vehicle was close enough that you could actually see him in the cabin? A. Because his lights were on high beam the back doors of the trailers are white and the reflection off the back doors back into the cab I could see him clear as day. And I saw right at the last second he just reefed the truck to the right severely. Q. Now I think you said it was a point that was - and correct me if I'm not stating this correctly - just as you were straightening up in the first lane that you first saw the lights of the vehicle coming behind you? A. Yes." (T-68 lines 22 to 48) [44] The time between Mr Mitchell's vehicle being wholly within the left hand lane to the point of impact was estimated to be about 30 seconds (T-72) and at that time his vehicle was travelling at about 40 kilometres (T-72 line 25). He braked straight away and swung to the left but was not able to completely avoid the accident. He described the impact as occurring at the entry point to the freeway from the Mandalong entry (T-72 lines 40-41). Analysis of Mr Mitchell's evidence [45] Mr Mitchell's evidence is consistent with the statement he gave to the police on the night of the accident (Exhibit A, tab 5) and his report to the investigator (Exhibit A10 at paragraph 10). [46] The submission that is made concerning Mr Mitchell's evidence by the plaintiff is that his evidence would not be accepted in relation to what occurred for the following reasons: 1. His recall of basic detail was faulty (T-63, T-81); 2. His evidence was "reconstructed" and he used the word "would"; 3. He prevaricated and gave untruthful evidence, notably at T-67 line 2. [47] I shall deal with each of these in turn. 1. Mr Mitchell's evidence was attacked on the basis of failure to recall "basic detail" concerning the circumstances in which he said initially that he had pulled over to sleep but later said that he had pulled over to read instead. This is a minor difference in evidence that does not relate to any of the issues in dispute. 2. It is asserted that Mr Mitchell's evidence was reconstructed, in that he used the word "would" (a habit common to witnesses) and altered his estimates of distance to fit in with the evidence of the experts. However, I am satisfied that Mr Mitchell's evidence remained consistent in its essence and, as analysis of the expert evidence below demonstrates, his evidence is significantly more consistent with the expert opinion in these proceedings. 3. Mr Mitchell's evidence was not untruthful. He gave a series of estimates of distances, all of which are generally correct. Even if the figure of 700 metres was added, after having heard the expert evidence, as alleged, the fact remains that it is consistent with the evidence he gave before he heard this evidence. [48] Mr Mitchell in cross-examination was at times combative in his answers, but to assert that he prevarication (written submissions paragraph 11), in that he did not "fairly answer" such question is in my view an overstatement. Analysis of the questions and answers given by Mr Mitchell shows that he answered the questions in a reasonable and accurate fashion. [49] Mr Mitchell's version of events received support from two other sources. The first of these was the objective evidence at the crash site and the second was the agreed list of facts arrived at by the experts in these proceedings. Did Mr Mitchell activate his right hand blinker? [50] Although pleaded and particularized, this became a non-issue in the trial, and Mr Mitchell was not cross-examined about it. I have found that his vehicle was already heading into the lane by the time that Mr Adamson saw the first defendant's truck, and if that is the case then the vehicle had moved from a position where the right hand blinker was either necessary or relevant. [51] Finally, I note that Mr Mitchell's evidence that it took him 10 – 15 seconds to move from the point of first moving to being within the first lane, and that the accident occurred about 30 seconds later, was not challenged and is consistent with the expert evidence. On either expert's opinion, Mr Adamson was either 911 or 917 metres behind Mr Mitchell's vehicle, and therefore out of sight of any blinker. [52] Not only is Mr Mitchell's account of the accident more accurate, it is consistent with the evidence of the experts and with what little objective evidence of the crash is available. [53] Having considered the evidence of the two drivers, I now turn to a consideration of the objective evidence of the crash. Objective evidence at the crash [54] Other objective evidence at the crash site includes: 1. The tracking system of both trucks; 2. The skid marks and any measurement of them; and 3. Photographs or observations made at the site. [55] The plaintiff's truck's tracking system records the speed at 2.11 am as 101 kph, at 2.12 am at 67 kph and at 2.13 am as 0 kph. Unfortunately, the tracking system is not sophisticated enough to determine the actual distance the vehicle travelled from 2.11 am to 2.13 am, as the plaintiff's investigators point out. [56] The first defendant's truck was travelling at 36 kph, according to the GPS data (Exhibit 4). This is consistent with Mr Mitchell's account of his speed and timing. [57] The police did not draw a diagram or comment on the length of the skid marks, although Bruno Monteleone of Adams Towing told the plaintiff's investigators he estimated the skid marks to be between 20 and 40 metres. [58] The objective evidence of the accident site is of limited assistance. However, I had the benefit of expert evidence from Mr George (for the plaintiff/cross-defendants) and Mr Axup (for the defendants/cross-claimant). The expert evidence [59] The experts gave concurrent evidence. Prior to doing so, they reduced the following agreed issues to writing. I have set these out verbatim; they have referred to the parties as "the plaintiff" and "the defendant" throughout: Agreement 1. Agreed the defendant should not have stopped on side of freeway in a non-designated stopping area. 2. Agreed that acceleration rate of 0.047 is reasonable for 60 tonne B-doubler 3. Agreed that it was likely that collision occurred at or about the time the speed of the defendant's truck was 36 kph. 4. Agreed that it would have reasonably taken the defendant's truck about 21 – 22 seconds & 108 m to reach a speed of 36 kph. 5. Axup has reviewed George's intervisibility distance of 735 m and accepts that it is a reasonable measurement. 6. Agreed that speed of plaintiff's truck approaching crash site was probably 101 kph [28 metres per second]. 7. Agreed that plaintiff was no more than approximately 616 metres from crash site when defendant started to move forward. 8. Agrees that plaintiff was no mare than 508 metres behind defendant when defendant started to move forward. 9. Agrees that plaintiff's truck would have been within defendant's field of view (to rear) given the time the defendant commenced to drive forward. 10. Agrees that plaintiff should have had defendant's truck in field of view for 21 – 22 seconds prior to impact. 11. Agrees that there is no objective evidence to identify the lateral position of the defendant's truck across lane 1 at time of impact. 12. Agrees that the distance estimated by the plaintiff in his affidavit of 27/8/09 could not be correct (too short) as defendant's truck could not possibly move into lane 1 over a time period of 3.6 sec (i.e. 100 m travel in 3.6 sec @ 100 kph). 13. Agrees that it would be an UNSAFE PRACTICE [AXUP: POTENTIALLY UNSAFE PRATICE] for defendant to merge directly into lane 1 if oncoming (closing) vehicle is visible at subject location. Disagreement 1. George opines that it is potentially unsafe (unsafe practice) to diverge from breakdown lane directly into lane 1 of freeway without building up a reasonable margin of speed. 2. Axup opines that the practice is not unsafe if the driver has a clear line of sight, there is no traffic or any traffic that is there is a long way back. 3. Axup opines that plaintiff had sufficient time* to appreciate defendant's truck was slow moving to his front and should have slowed down and/or moved into right lane. (*time and distance) 4. George opines that the commencement point of plaintiff's hazard perception and response time (PRT) is unclear from the available information. [60] They also provided a supplementary agreement: "We are in agreement that the acceleration rate of the defendant's truck could have been in the range 0.031g to 0.037g.If this range is used it would result in the plaintiff's vehicle being between 625 metres and 760 metres behind the defendant's vehicle when it started to move forward.Mr Axup – is of the view that 0.037g is the likely rate for the vehicle acceleration.Mr George – is of the view that 0.37g is a possible rate.The acceleration rate of 0.037g would result in the plaintiff's vehicle being 625 metres behind the defendant's vehicle when the defendant's vehicle started to move forward." Analysis of the expert evidence [61] The experts agreed that visibility between the two drivers was 735 metres. [62] A vehicle travelling 100 kph will cover a distance of 27.78 metres per second. At the same time, the first defendant's vehicle was moving very slowly in the same direction, and to reach the speed of 36 kph at the time of impact, the first defendant's vehicle acceleration rate was either 0.047g (Mr George) or 0.031g (Mr Axup). From these acceleration rates they considered that from the time the first defendant's truck started to move, the plaintiff's truck was either 625 m (Mr George) or 760 m (Mr Axup) away. [63] What was Mr Mitchell's acceleration rate? The experts agreed there was a wide range possible, and that the most useful way to determine this was to look at the evidence from the person doing the acceleration, namely Mr Mitchell. [64] If I accept Mr Mitchell's evidence that the time that took him to move from a position of the vehicle being stationary to entering the first lane was 10 to 15 seconds, then the fact that the point of impact occurred 30 seconds later is of significance. Accordingly, if I accept Mr Mitchell's evidence, then from the time the first defendant's truck commenced to move, the plaintiff's vehicle was 760 metres in the distance (I note that even if I were to accept the 625 metres distance of Mr George, there was still a very broad range of visibility for the plaintiff's driver, Mr Adamson). [65] Based on an acceleration rate of 40 seconds, Mr George calculated that the plaintiff's vehicle was in fact 911 metres behind it and the first defendant's truck would have moved about 200 metres towards the point of impact; Mr Axup's estimate of 917 metres (T-134) was also identical in that it resulted in a difference of only 3 metres ("203 metres" – T-133). On either of these scenarios, the evidence of Mr Adamson about the dynamics of the accident cannot be accepted. [66] By contrast, Mr Mitchell's evidence is consistent with the expert evidence. He said that he could see approximately 700 metres and could see no other traffic coming and that he travelled 40 to 45 seconds to the point of impact (the experts put it at about 40 seconds). This means the first defendant's vehicle could be seen in the position of crossing the edge line entering the carriage way by Mr Adamson at 735 metres (see the evidence of Mr George, T-136-137). This clearly gave the plaintiff time to react and to slow down or to move it into the right lane. [67] Mr Mitchell's evidence that his vehicle was entirely within the left lane when he observed the plaintiff's vehicle about 500 metres behind him (at which time he thought he was travelling 15 kph) is also consistent with the expert evidence. [68] It is common ground between the experts that Mr Adamson had time to react and reduce or slow his speed in order to avoid a collision with a vehicle that had clearly moved onto the road in front of him in circumstances where he was aware that it was travelling slowly to build up speed. [69] The plaintiff submits that the assistance provided by the experts in this matter is limited because it has been "based on so many variable matters" (written submissions paragraph 12). However, this is the case with many expert reports; the best way to approach expert reports is to consider their conclusion after an analysis of the evidence of eyewitnesses and an examination of whether the objective evidence is of any assistance. Conclusions concerning the accident [70] The defendants submit that the accident occurred because Mr Adamson, although required to wear glasses for distance vision, was not wearing them, or alternatively that he failed to keep a proper lookout. They submit that there is no satisfactory explanation as to why Mr Adamson did not see or react to the first defendant's vehicle from any position within the line of vision agreed to by the experts (735 metres). [71] The plaintiff submits that notwithstanding the errors in Mr Adamson's estimate of distance, his evidence was that there was only a short space of time, namely seconds, for Mr Adamson to perceive the movement of Mr Mitchell's vehicle into the lane in front of him, that his evidence about a vehicle in the next lane should be accepted, and it was simply too late to avoid a collision. [72] This accident occurred in circumstances where all of the evidence point to the plaintiff's vehicle having come into contact with the first defendant's truck notwithstanding a long and clear line of sight. I agree with the defendants' submission that there is simply no explanation as to why Mr Adamson could not see Mr Mitchell's vehicle from any position within the 723 metres he had to see the vehicle and take appropriate action, knowing from his long experience as a truck driver that Mr Mitchell was driving a long vehicle which would take some time to get up to speed. Indeed, Mr Adamson's response to this question was to volunteer that it may have been because he did not have his glasses on (T-18). The cross-claim [73] The first defendant by amended first cross-claim filed on 19 November 2009 brings a claim for $26,954.45 for cost to repairs to the vehicle (as I have noted elsewhere, I did not hear evidence about survey fees). The particulars of negligence set out in the cross-claim are as follows: Particulars of negligence of the First and/or Second Cross-Defendant (1) Failure to adhere the presence of the Cross-Claimant's vehicle on the F3 Freeway. (2) Failure to take any, or any reasonable, steps to avoid a collision. (3) Failure to keep a proper lookout. (4) Failure to slow to avoid an accident. (5) Failure to move into the second lane. (6) Failure to drive in accordance with relevant road regulations and road rules. [74] In oral submissions, counsel for the plaintiff submitted that the circumstance in which Mr Mitchell had stopped in an emergency breakdown lane near the freeway in the first place was a significant factor in relation to contributory negligence concerning the cross-claim. [75] Mr Mitchell and Mr Adamson both referred in their evidence to trucks stopping by the side of the road in this fashion. The fact remains that the first defendant's vehicle was a very long vehicle and one which, had he needed to stop, should have been stopped in the designated rest areas. However, the degree of contributory negligence flowing from Mr Mitchell's decision to stop there, given the extended visibility, needs to be seen in context of the degree of visibility. [76] Of great significance is the circumstances in which the vehicle driven by Mr Mitchell cut across the breakdown lane to lane 1 in circumstances which the experts agreed could be unsafe, although I note that Mr Axup was of the view that it was not unsafe if the driver had a clear line of sight, there is "no traffic or there is a long way back" and that in the circumstances in these proceedings, the degree to which there was vision was sufficient. [77] Both experts agreed (point 13 of the list set out above) that it would be either an unsafe practice, or at least a potentially an unsafe practice, for the first defendant's vehicle to have merged directly into lane 1 if there was an oncoming closing vehicle which was visible at the subject location. [78] I note the very slow speed given by Mr Mitchell for bringing his vehicle up to the speed at which it was travelling prior to the point of impact. [79] Taking all of these matters into account, I am of the view that in relation to the cross-claim, contributory negligence should be assessed at 20%. Given that the first defendant's vehicle was parked where it should not have been, Mr Mitchell should have moved more quickly into the lane and should have been cautious about using the potentially unsafe practice of merging directly into lane 1 in circumstances where another vehicle was oncoming. In other words, while I accept the defendants' submission that driving the truck out onto the F3 freeway from an illegally parked position is not of itself a cause of the accident, the circumstances in which Mr Mitchell did not move more quickly from this potentially dangerous position, and used a potentially unsafe practice, in my view contributed to the accident. Orders [80] The orders that I make are as follows: (1) Judgment for the defendants. (2) Plaintiff to pay the defendants' costs. (3) Judgment for the cross-claimant in the cross-claim in the sum of $21,563.56. (4) First and second cross-defendants pay the cross-claimant's costs. (5) The parties have leave to bring in Short Minutes of Order reflecting the mathematically agreed sum for interest on the cross-claim. (6) Liberty to restore concerning interest and costs. ****** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.