New South Wales Supreme Court CITATION : King v Sexton & Green (Sales and Service) Pty Ltd [1999] NSWSC 140 CURRENT JURISDICTION : Common Law Division FILE NUMBER(S) : 10456/90 HEARING DATE(S) : 10-20 November 1997; 9-27 March 1998; 11-14 May 1998; 26-27 August 1998 JUDGMENT DATE : 4 March 1999 William John King (P) PARTIES : Sexton & Green (Sales and Service) Pty Ltd (D1) General Motors Holden Sales Ltd (D2) JUDGMENT OF : Dunford J Mr Toomey QC / Mr McManus (P) COUNSEL : Mr Gregg (D1) Mr Leahy (D2) Stacks - The Law Firm (P) SOLICITORS : Corrs Chambers Westgarth (D1) Phillips Fox (D2) CATCHWORDS : Product liability; vehicle leaves road and collides with embankment; whether steering link fractured on road causing accident or as a result of collision with embankment; issue of fact; no question of principle involved. DECISION : Judgment for the defendants, plaintiff to pay the defendants' costs of the proceedings. THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DUNFORD J 4 MARCH 1999 10456/90 - WILLIAM JOHN KING v SEXTON & GREEN (SALES AND SERVICE) PTY LIMITED & ANOR (No. 4) JUDGMENT - 1 HIS HONOUR: This is the trial of the issue of liability only in a claim for damages for personal injuries allegedly suffered by the plaintiff on 25 April 1986. At about 9.30 pm on that day the plaintiff was driving his Holden Rodeo utility truck north on the Mount Lindsay Highway north of Tenterfield, and shortly after crossing the bridge over Branch Creek his vehicle left the roadway, collided with an embankment at the side of the road, overturned end over end and came to rest on its hood with the plaintiff outside the vehicle some four to five feet away. He was taken to Tenterfield Hospital where he was found to have a blood alcohol reading of 0.229 grams of alcohol per 100 millilitres of blood, but the following day it was discovered that a linkage to the left hand front wheel steering had fractured, and the major issue in the case has been whether it fractured before the vehicle left the road, thus causing the accident, or whether it fractured in the vehicle's collision with the embankment, thus being a result and not the cause of the collision. As a result of the accident the plaintiff was rendered unconscious and has since been a paraplegic. 2 The defendants are respectively the company from whom the plaintiff purchased the vehicle on 26 May 1985 (eleven months before the accident) and who serviced it in the meantime, and the company which was the importer and general distributor of the vehicle. The defendants contend that if the steering link failed before the vehicle left the road, the plaintiff was nevertheless guilty of contributory negligence in driving whilst intoxicated. A further allegation of contributory negligence (not wearing a seat belt) was withdrawn during the hearing. 3 A number of experts have been called by each party, but a lot of their opinions depend on the nature of the marks on the road, the location on the vehicle of the tyre exhibit R and the terrain where the vehicle left the eastern edge of the bitumen, which matters generally depend on the unsatisfactory and inconsistent recollection of a number of witnesses, about ten to eleven years after the event, most of whom made no contemporaneous record, or on inferences drawn from reported sightings of debris, most of which cannot be positively identified as coming from the suspect vehicle. 4 The plaintiff purchased the vehicle in May 1985 from the first defendant and prior to the evening in question never had any trouble with the steering. He has no memory of the accident or the day thereof, except that he intended to go to greyhound races at Casino. 5 Mrs King said that on 25 April 1986, her husband left home about 10.30 am to go to the races with a friend of his. She later met him at a hotel in Tenterfield at about twenty to eight in the evening where they remained about an hour, during which time she had two half scotches and her husband had two middies of beer. When they left the hotel in their respective vehicles he seemed sober. She followed and last saw his vehicle going down towards the bridge, where she temporarily lost sight of it. 6 After the bridge, she looked across and saw his vehicle on the right hand side of the road completely upside down, with its headlights still on pointing back to town, she raced across to the vehicle, and then went straight home, rang the hotel and went back to the scene. She did not know if the police, ambulance etc were there when she got back. Her husband was taken to Tenterfield Hospital and the next day was transferred to Brisbane. 7 She said that Ron Bartrim rang her two days later and told her he had been and inspected the vehicle and it had a steering failure, but the NRMA Insurance claim form May 1986, which she signed although it was not filled in by her, made no reference to steering failure, and she purchased a new Rodeo on 13 June 1986 from the first defendant, although by then she believed her husband had crashed because of defective steering. I found her answers on these matters unconvincing. Moreover, when the insurance claim was rejected by NRMA Insurance early in 1987 (in the letter, apparently erroneously, dated 3 September 1987), the Kings' then solicitors, Stuart Cook & Braham wrote to the insurance company pointing out there had been no charge or admission re alcohol and asking that the refusal be reviewed, but once again there was no reference to steering failure (exhibit 29). Mrs King then changed solicitors and instructed Cope, Norton & Sedgwick who wrote on 13 March 1987 (exhibit 30) that the vehicle left the road "as a result of a blackout caused due to severe nervous strain and exhaustion during the height of the fruit picking season," although Mrs King denied giving such instructions. Again there was no reference to steering failure. 8 All this suggests that the Kings had not been told by Mr Bartrim or anyone else of the separation of the steering link until after the vehicle was returned to them in about April 1987. 9 Mount Lindsay Road runs generally in a north/south direction. As the plaintiff was travelling on the evening in question it descends in a straight run of about two hundred metres to a concrete bridge over Branch Creek after which it commences a sweeping right hand uphill curve. 10 On each side of the bridge there is (and was) a white post and cyclone wire fence which continues for about thirty metres from the end of the concrete bridge. These fences are splayed in the sense that where they join the rails of the bridge they come virtually up to the edge of the bitumen, then gradually recede from the bitumen giving way to a shoulder on each side of it. It was said that the road is straight for fifty to sixty metres north of the end of the bridge (per Newell), but the appearance of this may be deceptive, and some of the photographs (particularly exhibit N) give the impression that the curve and rise commence very shortly after the northern end of the bridge. 11 On the right hand side for traffic travelling north (or eastern side) there is a driveway entering just north of the bridge with a splayed intersection, the northern side of which constitutes an embankment about four feet high, and some distance further to the north there develops a low ditch or gutter at the edge of the shoulder, beyond which ditch or gutter there is an embankment, and beyond that to the east the terrain is rough and uneven. As one travels further north away from the bridge it would seem that the land on the eastern side becomes more uneven (or did so, because there was evidence of some changes since the accident, although not very clear). Beyond this area there are (as can be seen in the photographs) some rocky outcrops. 12 The scene was visited on the evening of the accident by the then Senior Constable Newell (since retired). He found the plaintiff's vehicle lying upturned on its hood facing in a generally south-westerly direction in the rough area of ground on the right hand (eastern) side of the road. The plaintiff, who was unconscious, was outside and about two to three metres away from the vehicle. He also saw tyre and gouge marks, and after the vehicle had been towed away he stepped out measurements of these various features, and the following day confirmed them with a tape measure. 13 He recorded his findings in his police notebook, subsequently in an Occurrence Pad entry made at 12.30 am the following morning and later in at least two (and probably more) Traffic Collision Reports (exhibits M and 6). 14 In particular he found a tyre mark on the left or western shoulder commencing about twenty five metres north of Branch Creek and running north for about twenty six metres at an angle, taking it further away from the edge of the bitumen. He also saw two heavy black tyre marks running across the bitumen at an angle of about forty to fifty degrees to the mark in the shoulder, and he thought the more northern of these marks was a continuation of the wheel mark on the shoulder. These marks ran about fifteen metres from the left hand edge of the bitumen, across the road and the eastern shoulder (although not continuous on the shoulder) and left a gouge mark in the embankment beyond the eastern shoulder which in turn was about three to four metres from where the vehicle was resting. 15 He recorded in the Occurrence Pad that "when about 25 metres north of Branch Creek (the vehicle) veered onto the Gravel shoulder on the western edge of the road, travelled on the shoulder for 26 metres. The vehicle then veered to the incorrect side, of the roadway, collided with an earth bank and overturned." In his P4 reports, he recorded the place of the accident as ninety metres north of Branch Creek (meaning where the vehicle came to rest). 16 His measurements were challenged and he agreed that on visits to the site on 20 August and 7 November 1997 with respective defendants' experts and lawyers he had indicated a site further north, and he agreed that debris consistent with parts of the motor vehicle was found at the place he indicated on those occasions. He also agreed he had changed his mind on this issue at least twice. He was retired from the Police Force with hypertension, anxiety and depression, and agreed his memory is not good and he was relying on the records he made shortly after the events in question. 17 His recollection was that the vehicle had left the bitumen on to the left hand side shoulder some distance past the end of the fence, but conceded that his measurements could not be correct if the fence extended thirty metres north of the bridge. He agreed that the spot he had shown to solicitors was one hundred and twenty five metres from the northern end of the bridge. He did not record, and did not see, any gouge marks on the bitumen. 18 Graham Foan is and was an automotive engineer, and at the time of the accident was the general service manager of David Booth Ford at Tenterfield which was the NRMA agent. On the morning of 26 April 1986 he saw the plaintiff's vehicle in the NRMA compound and he noticed it had bodywork damage to the cabin, bonnet and front panel areas. His attention was drawn to the fact that the two front tyres were off the rims and deflated and the left front rim had a dent in it. He identified in Court the wheels which he said were on the various hubs at the time (exhibits Q, R, S, T and U) but the identification of these wheels was disputed. He also identified what he described as scuff marks on the outside shoulder of the tyres he said were on the left (exhibit Q) and right (exhibit R) front wheels. 19 He next saw the vehicle on 10 July 1987 when he went to the plaintiff's property to help Dr McLeod remove the steering components and the front wheels, and on that occasion, he said, some of wheels were on different hubs. 20 He again saw the vehicle in September 1997 at the plaintiff's premises in company with two of the plaintiff's expert witnesses, Mr Cusack and Dr Gilmore. The two tyres which had been on the front of the vehicle in August 1987 (exhibits Q and T) were against a wall being photographed, but Mr Foan spoke to the others and the spare in the tray (exhibit R), which he believed had been on the front offside hub the day after the accident, was also photographed. 21 On 26 April 1986 (the morning after the accident) Mr Foan also noticed that the left hand steering tie rod ends had come apart. He pointed out the inside of the ball housing and the ring of indentations and expressed the view that it had not been crimped properly. After examining the vehicle he went to the area where the accident had occurred. His observations were somewhat different to those of Mr Newell and are recorded on a plan (exhibit V) drawn only recently. In particular, although he observed a tyre mark on the western shoulder about twenty five metres north of the bridge, he did not consider it was related to the plaintiff's accident. 22 He did say however that he observed light black marks on the northbound side of the road about fifty metres north of the bridge which stretched north for about ten and eight metres respectively and were the width of a vehicle track apart, ie the distance between the two front wheels. Then immediately to the north of these light black marks was a gap of about a foot and then gouge marks in the bitumen at about a fifty five to sixty degree angle to the light black marks, the gouge marks giving way to heavy black marks across the bitumen to the east where a guidepost was flattened across the drain or ditch at the eastern edge of the shoulder, and on to where the plaintiff's vehicle had apparently ended up. He estimated the final resting place of the plaintiff's vehicle at seventy to eighty metres north of the bridge and twenty metres from the eastern edge of the bitumen. 23 He described a subsequent occasion (October-November 1986) when he attended the location in relation to another two incidents of vehicles leaving the roadway. These vehicles finished up approximately fifty metres further north than the plaintiff's vehicle and is a possible explanation for the location of debris in that area some years later. 24 He said that east of the bitumen there were gouge marks in the shoulder (described here as the gravel bank) between the bitumen and the ditch or gutter. These were a track width apart. There were no gouge marks in the ditch but on the eastern side of the ditch there were further gouge marks in the granite loam running roughly north-south, one about six feet long and probably a foot wide and it was only about a foot deep as if it had just taken the top of the bank off; and the other one east of that about five feet long, about a foot wide and about three inches deep. These marks were about two feet north of the water drain. He indicated where the vehicle came to rest in photographs eleven and twelve of exhibit N and also stood in the place in photographs thirteen and fourteen to Dr Gilmore's report (exhibit K) of 21 October 1997. His opinion, based on the presence of two as opposed to four tyre marks, was that there had been no braking by the vehicle. 25 Mr Jupe was the tow truck operator who went to retrieve the vehicle which he said was about forty to fifty feet (twelve to fifteen metres) east of the roadway and about fifty to sixty metres north of the bridge although he could not be sure, and he had previously told the first defendant's solicitors he could not remember where the vehicle was. 26 Messrs Bartrim and Conroy visited the site the following day and also made observations of the site. Mr Bartrim said that thirty metres north of the bridge he observed wheel marks on the roadway which ran approximately a further thirty metres veering to the left, the left one on the gravel a short distance, and then veered right across the road at about sixty to seventy degrees and which finished up in the ditch. He said it could be seen where the tyres had left the bank and, by reference to grass knocked down and glass fragments, where the vehicle had come to rest, which he placed at about eighty to eighty five metres north of the bridge. On the other hand Mr Conroy said that he saw tyre marks on the bitumen going straight up the hill about fifty to sixty metres long which then veered to the right at an angle of about seventy degrees and which continued across the road into a culvert leading to flattened grass on the eastern side about seven to eight metres from the edge of the road. 27 In the second defendant's case Mrs Parker, Mrs Sullivan and Miss Hickey gave evidence. The latter two had been travelling past shortly after the accident and had seen the plaintiff's vehicle overturned. Eleven years later they indicated to the defendant's solicitor the place where they saw it at a place further north (and therefore further away from the bridge) than indicated by the plaintiff's witnesses. Miss Hickey is the only person who claims the headlights were facing away from Tenterfield. Mrs Parker is and was an owner of an adjoining property and on the evening of the accident, apparently after the vehicle had been towed away, walked to her boundary to check the fence and by moonlight (without any other light) saw on the other side of the fence an area of flattened grass. This was about fifty yards north of the boundary of the adjoining property and approximately one hundred to one hundred and fifty metres north of the bridge. 28 Finally Mr Dunn (North Coast Appraisers) went to the area with Mrs King on July 1987 whom he says indicated where the vehicle was turned over (although Mrs King denied this) and he also noted in the area that a guide post on the western side had been gouged, which post was one hundred and forty five metres north of the bridge. 29 There are a number of differences in the evidence of the plaintiff's witnesses. They generally describe tyre marks running northerly on or just off the western side of the bitumen for about twenty to thirty metres followed by a sharp angled curve fifty to sixty degrees (or at least seventy degrees in the case of Mr Conroy) to the right, running off the eastern edge of the bitumen, across the gravel shoulder and into the ditch or gutter on the eastern side. Some of them saw gouge marks in the embankment on the eastern side of the ditch and they placed the vehicle (either because they saw it or saw flattened grass and debris) east of the ditch seven to eight metres east of the eastern edge of the bitumen, although Mr Jupe placed it forty to fifty feet (ten to twelve metres) east of the bitumen. 30 They all placed it about seventy to ninety metres north of the bridge. Messrs Jupe and Conroy saw no marks on the western gravel and, although Mr Foan saw the mark on the gravel, he did not believe it belonged to the plaintiff's vehicle. Mr Foan was the only one to describe gouge marks on the bitumen and there are other variations, mainly in respect of estimates of distance; and in respect of distance I accept the evidence of Mr Newell who is the only one who stepped out and later measured and recorded distances. I have not overlooked the evidence of the defendants' witnesses, but none of them visited the site in the days following the accident, but were seeking to recall the precise location eleven years later. 31 Accordingly I find that approximately twenty five metres north of the northern end of the bridge the plaintiff's vehicle went towards the left or western edge of the bitumen and its left hand wheels onto the gravel shoulder, and about thirty metres further north the vehicle veered sharply to the right, across the roadway and eastern shoulder hitting the embankment at the eastern side of the ditch which caused it to turn end over end and it came to rest bottom up in grass on the eastern side of the roadway in an area about ninety metres north of the bridge, but the evidence as to the final resting place of the vehicle or of the marks on the road is not really that satisfactory. 32 Following the collision the plaintiff was taken to Tenterfield Hospital before being transferred to Brisbane for treatment. Whilst there a blood sample was taken at about 10.30 pm which on analysis showed a blood alcohol concentration of 0.229 grams of alcohol per 100 millilitres of blood (0.229g%). I accept the unchallenged evidence of Dr Helen Dauncey that his blood alcohol concentration at the time of the accident is unlikely to have been less than that and possibly as high as 0.249g% (supplementary report of 19 March 1998) and that such a reading indicates a consumption during the afternoon and evening of that day of the equivalent of ten to thirteen schooners of full strength beer or 80% to 100% of a bottle of spirits. Such a blood alcohol reading would be expected to produce in most people heavy intoxication, and thus his capacity to drive a motor vehicle would have been significantly impaired. Common experience suggests that at that hour, after an afternoon at the greyhound races, he may have been tired, particularly if also affected by alcohol. 33 Dr Dauncey noted that even alcohol tolerant drivers, whilst mostly able to drive without mishap, once an emergency or mistake is made are more likely to make further errors when attempting to correct the situation, that they typically have trouble staying on the road at corners, and that the plaintiff's driving would probably have been severely impaired and his ability to respond efficiently and effectively to an emergency greatly diminished. In this regard it may not be without significance that although Mrs King was following the plaintiff home from Tenterfield and had been in view most of the time, she lost sight of his vehicle as they approached the bridge over Branch Creek; this may indicate that the plaintiff accelerated down the hill towards the bridge although she did say there were pine trees in the area which could have obscured her view. 34 It is also relevant that notwithstanding extensive enquiries and notices to produce, at the end of the case there was no evidence that either front steering link on this model of vehicle had ever failed on any other occasion; and when in 1994 Mrs King wrote to the Federal Office of Road Safety in 1994 (eight years after the accident) drawing attention to what the plaintiff's experts had found, the reply (exhibit X13) was to the effect that that Office had received no other reports of steering failure in that model vehicle. 35 It was conceded on behalf of the plaintiff that an impact such as occurred when the front end of the vehicle impacted with the embankment or whatever could, given the right circumstances, have caused the separation; but it was submitted that other evidence in the case pointed to the separation having occurred on road, ie before the vehicle "moved" (to use a neutral term) to its incorrect side. 36 Another issue at the hearing was how many impacts the vehicle had with the embankment or the ground, and how many times it turned over, but once again there were no eyewitnesses and the various experts sought to draw inferences from what they observed of the vehicle and the steering link some years later. In some instances their inferences on such things as the number of impacts were related to their inferences as to whether the separation occurred before or after the vehicle left the road, and it was not clear which inferences were drawn first. It ultimately seems to have been agreed that the vehicle only rolled over once (there being no evidence of damage to the rear of the vehicle), but there remained a dispute as to the number of impacts; the defendants' experts suggesting a number of impacts which seemed to be more consistent with their theories, and the plaintiff's experts suggesting only one impact which more readily accommodated their theories. 37 A single roll would involve not only a major impact at the front of the vehicle causing the roll-over, but also a somewhat lesser impact when the rear of the vehicle completed the roll and hit the ground. Whilst I accept that the vehicle only rolled over once, I am unable to reach a conclusion on whether there was one or more impacts. I note that the photos show not only damage to the front left wheel assembly area but also damage to the right side front of the vehicle (where the bull bar is deformed). This I believe would be consistent with at least two impacts but the damage to both sides at the front may be consistent with both sides making contact with the bank and sustaining the damage at the same time, and though I am unable to reach a firm conclusion as to how many impacts there were, I believe it was probably more than one. 38 A major matter relied on by the plaintiff relates to the scuff marks on the outside shoulders of the tyres (exhibits Q and R) they being the wheels said by Mr Foan to have been on the front left and right hubs respectively at the time of the accident. The plaintiff's experts, particularly Mr Cusack and Dr Gilmore, expressed the view that these marks were consistent with the steering linkage separating after the vehicle left the bridge causing the left front wheel to swing freely to the left on to the gravel and after travelling some distance on the gravel to suddenly swing to the right (as a result of striking a small obstruction on the gravel shoulder). This, so the theory goes, caused the vehicle to swing or veer suddenly to the right, the driver attempted to correct it by turning the steering wheel to the left which effectively turned the right front wheel hard left, so that with the left front wheel still turned hard right, the vehicle proceeded across the road "pigeon-toed" thus causing the scuff marks on the outer shoulder of both front tyres as they rotated. 39 The defendants' case on the other hand was that exhibits Q and R (the tyres with the scuff marks) were not both on the front axle or stubs, but were both on the left side of the vehicle, and that the scuff marks were indicative of a yaw caused by the plaintiff allowing the vehicle (with its steering still intact) to veer off the left of the bitumen and then overcorrecting with the result that it veered across the road and into the bank. It is therefore necessary to review the evidence as to which tyres and wheels were on which hubs. 40 Mr Foan said that when he saw the vehicle in the NRMA compound at Tenterfield the following morning he paid attention to the tyres, and that both front tyres were at that stage deflated and the beading was separated from the rim of the wheel. He identified these two tyres which he said were on the front as those which became exhibit Q (which he said was on the left front) and exhibit R (which he said was on the right front). He further said that exhibit T was then inflated with the beading against the rim on the left rear, exhibit U also inflated and with the beading against the rim on the right rear, and exhibit S was in the tray of the vehicle. All the relevant witnesses agreed that exhibit S had hardly been used and this could be deduced from only minimal wear and the fact that the lugs were in parts still attached to the rubber. Messrs Bartrim and Conroy also saw the vehicle at that time and their evidence was that the front tyres appeared to be deflated but they did not appear to pay much attention beyond that. 41 Following the accident the vehicle was removed to Queensland and later returned to the plaintiff's orchard near Tenterfield where it was inspected by Dr McLeod on 10 July 1987. Mr Foan was present on that occasion and removed the steering assembly in Dr McLeod's presence. On that occasion Mr Foan said he observed that the tyres were differently placed, namely exhibits Q and U were where they had formally been, but exhibit T was on the right front, exhibit S on the left rear and exhibit R in the tray of the vehicle. He said he pointed out to Dr McLeod that they were differently placed, but Dr McLeod did not recall such conversation, and he also said that at the time his belief was that he was told that the wheels were then "with their position at the time of the accident." 42 At some stage prior to the preparation of exhibit F on 27 March 1997 exhibits Q and T were labelled "left" and "right" respectively. It is not clear who did the labelling. Similarly exhibit U was labelled "R/rear", exhibit S "left/rear" and exhibit R "tray". On 7 November 1997 Mr Foan removed exhibit S from the left rear, exhibit U from the right rear and exhibit R from the tray, and made a note to that effect on the rims of the tyres themselves. I am therefore satisfied that by the time the vehicle got back to the plaintiff's property after the accident, exhibits Q and T were on the front, exhibits S and U were on the rear and exhibit R was in the tray. The vehicle had not been driven and could not be driven in the mean time, and is difficult to see why any of the tyres would have been changed between the morning of 26 April 1984 and 10 July 1987 when Mr Foan saw the vehicle again. 43 Mr Jupe, the tow truck driver, gave evidence that if the front of the vehicle was damaged he would have towed it with the front end lifted up, that is travelling on its rear wheels; and if either of the rear wheels were deflated he would have substituted an inflated tyre on that wheel, but he would not have replaced deflated tyres on the front as there would be no point. 44 As already noted, it is agreed that exhibit S was previously the spare tyre, and so if exhibit R was on the rear prior to the impact and was deflated as a result of it, there would be every reason for Mr Jupe to replace exhibit R with the spare (exhibit S) and throw exhibit R into the tray of the vehicle prior to towing it into town. However, if exhibit R was on the front offside and deflated in the accident, there would be no point in him moving it, and if exhibit T was on the left hand rear at the time of the accident and not deflated, as Mr Foan claims it was (I note it is deflated now although the beading is not removed from the rim), there would be no reason to replace it with the spare (exhibit S). All these considerations lead me to the conclusion that Mr Foan is simply mistaken as to where exhibit R was on the morning following the accident, and it appears to me that the tyres were on the same wheels on the morning after the accident as they were fifteen months later when the vehicle was seen at the plaintiff's property. 45 It follows that at the time of the accident, exhibit R was on the left hand rear hub and, being deflated in the accident, Mr Jupe replaced it with the spare (exhibit S), placed exhibit R in the tray prior to towing the vehicle into town, and left it there. Mr Foan did concede that exhibits Q and T have a similar consistency to each other in the wearing of their treads, as do exhibits U and R have a similar consistency to each other, and that this indicates that exhibits Q and T on the one hand and exhibits U and R on the other hand most likely travelled on the same axles or stubs at some time. It was suggested on behalf of the plaintiff that whilst this might be so they could easily have been rotated between the purchase of the vehicle and the accident. This is possible, but there is no evidence that it happened, and to suggest it did is pure speculation. The fact that they have travelled on the same axles or stubs as I have indicated is consistent with the location of exhibit R as contended for by the defendants. 46 Accepting as I do that at the time of the accident exhibits Q and T were on the front and exhibit R on the left hand rear, the scuff marks on the tyres, according to Mr Keramidis the motor traffic engineer, indicate what he termed a "right hand yaw", that is, a loss of control of the vehicle causing it to swerve to the right. Moreover, the markings on the outside of the two tyres on the same left hand side (exhibits Q and R) are inconsistent with the "pigeon-toed" passage of the vehicle across the road from west to east after the separation of the steering link as claimed by the plaintiff. If the plaintiff's experts are correct and the separation had occurred on road before the vehicle veered to the right, causing the left front wheel (exhibit Q) to swing sharply to the left, the inside rim of that tyre would have become the leading edge and one would have expected some scuff marks on that inside edge, although perhaps not so much if it was on the gravel, but there are no such scuff marks of any kind on the inside shoulder of exhibit Q. 47 Other problems I see with the "pigeon-toed" theory are that no explanation has been given which satisfies me as to why, if the left wheel swung freely to the left something, and if so what, caused it to swing violently to the right onto and across the bitumen, and if the vehicle was after separation travelling across the road "pigeon-toed" as they claim, one might expect that the driver, if alert, would be applying the brakes, but there were apparently no skid marks indicating the rear wheels in a locked position. 48 For these reasons I reject the plaintiff's experts' opinions as to the significance of the marks on the road and the tyres, and prefer the opinion of Mr Keramidis that the vehicle was in a right hand yaw at the time, which opinion that witness said was also consistent with the diagram shown on the later P4 (exhibit 6) which, as far as I can tell, in this regard is not inconsistent with the diagram on the earlier P4 (exhibit M) (bearing in mind that the diagrams on the P4s are merely rough sketches and do not purport to be to scale or to show accurately measured angles). 49 Mr Keramidis described what he meant by a yaw as follows: "In a circumstance where a vehicle . . . . . is travelling along a curved path, steering is applied beyond which the road is capable of holding that vehicle in that circular path, the vehicle commences to slide partially and rotate in this particular case in a clockwise condition. At the same time, though, it maintains or attempts to maintain its circular path. So if you like there is a combination of circular motion that the vehicle is following as well as a rotation of the vehicle during that circular motion." (p 1482) 50 In considering the evidence relating to the significance of the marks on the roadway, I have not overlooked the evidence of Dr Gilmore but, like other witnesses for the plaintiff, he understood that exhibit R (the second tyre with the scuff marks) had been on the right front hub, whereas for reasons already indicated I am satisfied it was on the left side rear. 51 I turn now to consider the metallurgical, and other expert evidence provided by a number of experts, namely Dr McLeod, Mr Cusack and Dr Gilmore for the plaintiff, Mr Nicolson for the first defendant and Messrs Gartner and Freedman for the second defendants. The two metallurgists, Dr McLeod and Mr Gartner, and also the engineers, Dr Gilmore and Mr Nicolson, appeared quite objective, whilst Mr Cusack seemed to be rather looking for indications which might support an on-road separation of the steering link, and Mr Freedman appeared to start with the proposition that the separation was off-road, and everything he observed had to be explained consistently with that initial proposition. In fairness, I hasten to add that I am not suggesting either of them was dishonest in any way. Each of these experts furnished one or more reports, and in those reports not only expressed their own opinions, but commented on the opinions expressed by each of the other experts who had provided opinions up to that time. They each also gave oral evidence and were cross-examined. Not surprisingly, the experts called by the plaintiff expressed the view that the steering link separated before the vehicle veered across the roadway, thus causing it to do so, and pointed to a number of indicators to this effect; whilst the defendants' experts expressed a contrary view and either drew different inferences from the indicators identified by the plaintiff's experts, or found other indicators pointing to a different conclusion. All the plaintiff's experts proceeded on the basis that exhibit R had been on the right front hub and the vehicle had veered across the road pigeon-toed, a position I have rejected. 52 The assembly that was found the next morning to have come apart formed part of the linkage from the steering wheel mechanism to the hub of the left front wheel and was the connection between the centre track rod and the outer track rod. It was also referred to at times as the "Inner End Assembly" and as the "Ball Joint". 53 The joint had been assembled by crimping the tubular steel casing over a knurled cylindrical nut in conical fashion, thus forcing the nut against a grey polymeric bush which formed part of the socket of the ball joint. The separation resulted when the crimping over the knurled nut had opened, thus releasing such nut. 54 It is convenient to deal with the expert evidence under a number of headings formulated by counsel in their written submissions. 55 (a) The Marks on the left ball housing. Dr McLeod and Mr Cusack were able to identify a number of what they described as critical features which were not present on the right ball housing eg, small serrated markings; and these features were likewise not present on other samples on which tests were carried out by Mr Gartner. They expressed the opinion that these features were indicative of a progressive failure. 56 On the other hand Mr Gartner considered there was little difference in the marks shown on the left and right ball housings and that they were similar to those created in tests by him; and he did not consider the marks on the left ball housing disclosed any evidence of progressive movement. Mr Nicholson expressed the view that the marks could have been caused between the separation of the link on initial impact and the final resting of the vehicle on its roof. Dr McLeod conceded in cross-examination that the marks on the left and right ball housings were similar, although he maintained there were differences which he considered significant. 57 (b) The marks on the knurled nut. Unfortunately the knurled nut along with other components were misplaced after their initial inspection by Dr McLeod. The other components were later found but not the knurled nut, and accordingly Dr McLeod is the only expert who has had the opportunity of examining the real thing. Mr Gartner had to rely on photographs taken by Dr McLeod and a description given to him by Dr McLeod. Dr McLeod in his report of 23 November 1987 (exhibit C) expressed the view that the marks of metal-to-metal abrasion on the right side cylindrical nut were continuous, whereas those on the left hand nut were interrupted, not as deeply scored and, towards final separation, the lands were worn down to a greater width; and all this suggested to him that separation of the left joint did not occur in one movement but in an interrupted manner. Mr Gartner, on the other hand noted a variety of marks around the knurled nuts even in his controlled testing, and considered that the marks as shown in the photographs which he saw could be produced by rapid actual or near actual separations, and did not indicate progressive failure. 58 (c) The "hourglass" mark on the inside chamfer of the ball housing. The various witnesses agreed that these marks could have only been made with the neck of the track rod inserted 5 to 7.5 millimetres inside the ball housing. It is to be noted that the neck of the track rod narrows towards the rod itself and the joint ball. The plaintiff's witnesses, Dr McLeod and Mr Cusack, expressed the view that at least two contacts were necessary between the track rod and the inside of the chamfer to cause the hourglass shape of the mark. This opinion is found in Mr Cusack's report of 27 March 1997 (exhibit F) and was not in Dr McLeod's original report, although he agreed with and adopted it. On the other hand, the defendants' experts, including Mr Gartner, were of the view that the hourglass mark could have resulted from separation on impact and is not consistent only with a progressive failure. 59 (d) The marks in the front left wheel well. The left front wheel well, that is the metal part of the chassis which forms the inside of the wheel well and the outside of the engine compartment, had two abrasions made by the wheel, one at the front and one at the back. These marks are beyond the limits of the turn of the left wheel whilst the steering was connected, and it seems to be agreed that they could only have been made on or following disconnection. It is also agreed that they could only have been made whilst the wheel was rotating. From these factors the plaintiff's experts draw the inference that the steering must have been disconnected before the vehicle's impact with the embankment, because the plaintiff's case is that there was only one impact and they use these two marks to support their theory of the left wheel breaking free to beyond a full left turn when the disconnection first occurred, and then for some reason flicking to the extreme right causing the vehicle to travel "pigeon-toed" across the road when the driver attempted to steer and did steer the right wheel only to the left. Given that I have rejected the "pigeon-toed" theory, the plaintiff's experts cannot explain why there are two marks on the wheel well. 60 The defendants' experts have generally proceeded on the basis that the vehicle hit the embankment and ultimately came to rest further north of the bridge than postulated by the plaintiff's witnesses where the ground is more uneven and there was therefore scope for more than one impact, although it is agreed the vehicle only turned over once. Mr Gartner in particular considered that if there was only one impact he could not explain how there were the two abrasion marks on the inside of the wheel well, but he thought that a major impact followed by a minor impact may have been sufficient. The difficulty with this theory is that if the wheel stopped on impact, it needed some cause to make it resume rotation so as to make the second mark. 61 It should also be added that, although I have accepted Mr Newel's evidence as to location of the accident, when on 5 September 1999 Mr Foan went there, and stood on the relevant spot as indicated in Dr Gilmore's report (exhibit K), the ground where he stood, although not as rough as that further to the north, could hardly be described as smooth, and there is some room for two or possibly more impacts, although only one major one. One can envisage the vehicle hitting the embankment (a major impact) then rolling over and not immediately settling but bouncing once or twice before coming to rest on its top side. 62 (e) Lack of any mark on the idler arm stop. The plaintiff's experts postulated that for sufficient tensile force to be generated to break the joint, the limiting bolt on the centre track rod would need to be forced against the left idler arm tab spot deforming it, or at least marking it; whereas the defendants' experts say that the force could have effectively broken the joint like a handle pulled with great force off a door without the door slamming into its frame, and that there was sufficient inertia created by the right side steering mechanism and steering wheel to make this possible. Mr Nicolson in his report of 25 August 1997 (exhibit 4) said at para 1.5: "The LH steering lever attached to the LH stub axle was found to be deformed from its original position in both an upward and inward direction and was twisted at the tyre rod end attachment eye. . . . . For this deformation and twisting to occur the steering side rod must have been attached at the time of the accident . . . . . The position of the lever and the shielding that the wheel and suspension stub axle provide would prevent the deformation by any other means." 63 (f) Manufacturing and fault issues. There was criticism from the plaintiff's expert witnesses, which was conceded by the defendants' witnesses, that the crimping process was not fool proof, that the "Outline of Manufacturing Processes" (annexed to Mr Freedman's report of 12 March 1991) (exhibit X1) was insufficient in itself as a manufacturing specification, and that it could not be assumed that every unit from the production process would be properly formed or that quality control inspections were necessarily adequate. There were changes in mechanism when a new model was later introduced but these were said to be related to other variations in the design of the vehicle and not because there was any evidence that the crimping process was unsatisfactory. However, whilst all of these things may be conceded, they do not amount to evidence that the crimping failed on this vehicle prior to its impact with the embankment. 64 There are parts of the expert evidence called on behalf of the plaintiffs which, when read in isolation, tend to suggest that the steering linkage fractured before the vehicle left the road, but at the same time there is other evidence from the defendants' experts to the contrary; and the plaintiff's experts' theories and opinions become less persuasive when one accepts, as I do, that exhibit R was at the relevant time on the left rear hub and the vehicle did not proceed across the road in a "pigeon-toed" manner. It follows that I am not persuaded by the metallurgical, mechanical and engineering evidence called on behalf on the plaintiff. 65 At the same time, it cannot be ignored that the plaintiff was driving his vehicle with a blood alcohol reading of at least 0.229g%. I have already referred to Dr Dauncey's opinion as to the probable effects of such a reading on the capacity of the plaintiff to drive the vehicle on the evening in question. 66 Moreover, at the end of the case there was no evidence that this or a similar steering linkage had ever failed on any other vehicle of this make and model. It would be a remarkable coincidence if the only time such a steering linkage failed was when the vehicle was being driven by an intoxicated driver at night at the beginning of a right hand curve in the roadway. 67 For these reasons I have come to the conclusion that what most probably happened is that the plaintiff, whilst affected by liquor, either dosed off or had a lapse in concentration with the result that when the vehicle left the bridge he failed to commence the right hand curve and travelled onto the gravel shoulder on the western or left hand side of the road. When he realised what had happened he over corrected the steering to the right at too sharp an angle, lost control, went into a yaw, left the road on the right hand side, hit an embankment or other obstruction and overturned; and that the impact involved in hitting the embankment and overturning caused the fracture of the steering linkage. There must accordingly be a verdict for the defendants. 68 Although, in the light of my finding on primary liability it is now irrelevant, it is probably desirable that I express a view on the issue of contributory negligence. It was submitted on behalf of both defendants that if I were to find that the steering linkage failed before the plaintiff's vehicle left the road and was the cause of the accident, I should nevertheless also find that because of the plaintiff's intoxicated condition he was guilty of contributory negligence. In my view this would not follow. If the steering linkage broke whilst the plaintiff was still on the roadway, he may, because of his condition, have been less capable of reacting promptly and efficiently, but I am not satisfied that even if he was completely sober he would have been able to avoid the collision with the embankment if he had no steering control over the left front wheel. Therefore, if the plaintiff were entitled to a verdict it would not be a case where there would be any apportionment for contributory negligence. 69 Finally, Mr Gregg on behalf of the first defendant, although generally relying on the arguments of the second defendant, made a submission that there was evidence that the plaintiff was travelling at an excessive speed. The fact that the impact caused the damage it did, does tend to suggest that he was not travelling slowly, as does the fact that, although his wife had been following him, she had lost sight of him approaching the bridge; but these factors in themselves would not justify me making a finding that his speed was excessive in the circumstances. 70 For these reasons I direct the entry of judgment for the defendants and order the plaintiff to pay the defendants' costs of the proceedings. Last Modified: 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.