District Court New South Wales Medium Neutral Citation: Doble Express Transport Pty Ltd (Administrator Appointed) v John L Pierce Pty Ltd [2015] NSWDC 285 Hearing dates: 27, 28, 29 May; 29 June (for directions); 17 July and 21 August 2015 Date of orders: 04 December 2015 Decision date: 04 December 2015 Jurisdiction: Civil Before: Hatzistergos DCJ Decision: See orders in paragraph [172] Catchwords: TORTS – negligence –motor vehicle accident – duty to warn – duty to signal to other drivers – obscured visibility due to fog – contributory negligence – damages WORDS AND PHRASES – inherent risk – res ipsa loquitur Legislation Cited: Australian Road Rules (NSW) rr 25 and 69 Civil Liability Act 2002 (NSW) ss 5B, 5D, 5I and 5R Cases Cited: Cheng v Geussens [2014] NSWCA 113 Chico v The Corporation of the City of Woodville (1990) Aust Torts Reports 81-028 Cooke v Roberts (unreported) No 4. 12 July 1990 SCSA Dasreef Pty Ltd v Hawchar [2010] NSWCA 154 Derrick v Cheung [2001] HCA 48 Francis v Lewis [2003] NSWCA 152 Gindein v Ceraolo (1992) 16 MVR 198 Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72 Jones v Dunkel (1959) 101 CLR 298 Liverpool City Council v Estephan [2009] NSWCA 161 Nicholls-Chappell v Irving (2000) 32 MVR 102 Nominal Defendant v Clancy [2007] NSWCA 349 O'Neill v Liddle [2012] NSWCA 267 Paul v Cooke [2013] NSWCA 311 Payne v Parker [1976] 1 NSWLR 191 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34 Porter v New South Wales Insurance Ministerial Corporation [1995] NSWCA 376 Sibley v Kais (1967) 118 CLR 424 Tran v Government Insurance Office of New South Wales (1994) 20 MVR 182 United Church Trust Property Trust v Miller [2015] NSWCA 320 Warth v Lafsky [2014] NSWCA 94 Wyong Shire Council v Vairy [2004] NSWCA 247 Zraika v Walsh [[2015] NSWSC 485 Texts Cited: I Freckelton and H Selby, Expert Evidence –Law, Practice, Procedure and Advocacy, Thomson Reuters, 5th Edition, 2013 JD Heydon, Cross on Evidence, Lexis Nexis, Butterworths, Sydney 10th Edition Category: Principal judgment Parties: Doble Express Pty Ltd (Administrator Appointed) (Plaintiff) John L Pierce (Defendant) Representation: Counsel: Mr P Barham (Plaintiff) Mr A Combe (Defendant) Solicitors: Fraser Clancy Lawyers (Plaintiff) Rankin Ellison Lawyers (Defendant) File Number(s): 2013/324778 Publication restriction: Nil Judgment Introduction 1. The incidence of fog affecting transport routes in southern NSW is well known. The day of 20 April 2012 was an occasion where it descended, leading to a truck collision at around 7am at the intersection of the Hume Highway and Burley Griffin Way near Yass. The collision occurred when a Volvo prime mover and triaxle taut liner, owned by Doble Express Transport Pty Ltd, [1] was travelling northbound along the Hume Highway. [2] At the said intersection it collided with a Kenworth prime mover and B double trailer, owned by John L Pierce Pty Ltd, [3] which was executing a right hand turn across northbound traffic, from the Hume Highway to travel along the Burley Griffin Way. 2. Mr Dene Mead was the driver of Doble's vehicle. He had approximately 25 years of experience as a driver of heavy vehicles both in Europe and Australia (for 9 years) and described himself as extremely experienced in driving in conditions of fog. The route which he took was a familiar one, having driven it five times a week for six or seven months before the accident. [4] 3. Mr Ricky Hukins was the driver of Pierce's vehicle. He has worked as a driver of heavy vehicles since 2001 [5] and with Pierce since 2010. In April 2012, the subject intersection lay along a regular route for Mr Hukins, driving from Goulburn, past Yass and towards West Wyalong; [6] a trip which he undertook two to three times per week . [7] Pleadings 1. Doble alleged that the collision occurred due to negligence of Mr Hukins, the particulars of which, as extracted from its Amended Statement of Claim, are as follows:- "(a) chose to use this crossing when they were aware that it was not a safe place to cross the Hume Highway at any time; (a1) crossing against a give way sign; (b) chose to use this crossing when aware that it was not a safe place to cross the Hume Highway in foggy conditions or when visibility was reduced; (c) failed to use a safer crossing; (d) failed to use a safer crossing once the Defendant realised that a safe crossing could not be achieved at the said location; (e) failed to use an alternative crossing of the Hume Highway where fog conditions did not prevent safe crossing; (f) failed to wait until the fog had cleared before crossing and the Defendant could see approaching traffic; (g) failed to keep any proper lookout; (h) crossed onto the Hume Highway when it was not safe to do so; (i) crossed onto the Hume Highway when the Defendant was unaware whether or not it was safe to do so; (j) failed to sound any warning of the approach of the First Defendant's vehicle; (k) failed to activate the fog lights or the side lights of the First Defendant's vehicle; (l) failed to drive the First Defendant's vehicle in a manner which was appropriate and suitable to the traffic/weather conditions; (m) failed to use his VHF and failed contact (sic) the Plaintiff on the UHF; (n) failed to appreciate that the Plaintiff could not see the First Defendant's vehicle and that the First Defendant's vehicle, being a B-Double, would take a long time to cross over the Hume Highway; (o) failed to comply with the provisions as contained in the section and/or Regulations enacted pursuant to the provisions of the Australian Road Rules (Regulation 69)." [8] 1. Pierce denied negligence in relation to each of the particulars and asserted that the collision occurred as a result of the negligence or contributory negligence of Doble's driver. [9] The particulars of contributory negligence, as alleged in its Amended Defence, were as follows:- "(a) Mead failed to exercise reasonable care in the circumstances; (b) Mead failed to keep a proper lookout; (c) Mead failed to maintain proper control over the Plaintiff's vehicle; (d) Mead failed to stop, slow or steer the Plaintiff's vehicle so as to avoid a collision with the Defendant's vehicle; (e) Mead drove the Plaintiff's vehicle at an excessive speed in the weather conditions at the time." [10] 1. Doble also relied on the doctrine of res ipsa loquitur. [11] The Defendant denied the operation of the doctrine. [12] Ultimately, no submissions were advanced as to its application. 2. In its Amended Defence, Pierce pleaded the application of s 5I of the Civil Liability Act 2002 (NSW), [13] asserting that it was not liable "as the conduct of the Plaintiff involved an inherent risk which materialised." 3. In its Amended First Cross-Claim, Pierce asserted that the collision occurred as a result of the negligence or contributory negligence of Mr Mead. The particulars of negligence were identical to the particulars of contributory negligence pleaded in Pierce's Amended Defence. In its Amended Defence to the First Cross Claim, Doble relied upon its pleadings in the Amended Statement of Claim and, in particular, the particulars of negligence alleged in paragraph [10]. It further alleged that the Cross-Defendant was not liable, pursuant to s 5I of the 2002 Act, on the basis that the conduct of the Cross-Claimant involved an inherent risk which materialised. [14] 4. Doble's claim for damages was $172,034.78. Pierce, in its Amended Cross Claim, claimed an amount of $159,538.29. Both parties agreed on the quantum of damage each other incurred. [15] Duty of Care 1. The obligations of drivers at an intersection were the subject of observation in Gindein v Ceraolo. [16] That case concerned two vehicles that approached an intersection from opposite directions. The Defendant wished to turn right. A bus was stationary at the intersection, travelling in the same direction as the Plaintiff. The driver of the bus signalled to the Defendant to make a turn in front of him. The Plaintiff passed the stationary bus on its left hand side. The Plaintiff and the Defendant collided. Liability was apportioned 60% to 40% in favour of the Plaintiff. In dismissing the appeal, Malcolm CJ stated:- "The respondent, although having the right of way was bound to keep a proper lookout to ensure that the conditions were safe for him, not only to pass to the left of the bus, but also to enter the intersection. While he had the right of way it was risky for him to assert it without being able to see whether there was any traffic which might be turning across in front of the bus. The appellant's failure to discharge his duty to give way, by attempting to turn across the intersection when he was unable to see whether it was safe to do so, clearly rendered him the more culpable." [17] 1. White J agreed, stating:- "In my opinion, the negligence on the part of the appellant in turning across the path of the respondent, in the situation that the presence of the bus at the intersection prevented him being able to see whether or not it was safe to do so, was greater in degree than that of the respondent in proceeding through the intersection on the left of the bus." [18] 1. Gindein v Ceraolo was considered in Tran v Government Insurance Office of New South Wales. [19] In that case, the Defendant was driving a car, approaching a T-intersection in peak hour, intending to turn right. The Plaintiff was riding a motorcycle and approached the intersection at about 35km/hr. from the Defendant's right hand side, on the inside of backed up vehicles. With the aid of the signal of a truck driver, the Defendant edged his way slowly through the gap in traffic into the intersection. The Plaintiff collided with the Defendant and was injured. The Plaintiff's claim was dismissed and this decision was affirmed on appeal. Kirby P (with whom Mahony and Meagher JJA agreed) stated:- "I take into account the numerous statements in the authorities such as Norris v Siebel (1975) 12 SASR 317, at 317 and Gindein v Ceraolo (1992) 16 MVR 198 at 205. I am very conscious of the requirement of particular care on the part of a motor vehicle turning to its right and cutting across a line of traffic. However, in the evidence in this case, as accepted by the primary judge, Mr Drossos did take reasonable care. The collision would not have occurred but for the speed and inattention of the appellant. The real cause which the law would ascribe to the impact was the driving of the appellant. Had the appellant shown the same care as Mr Drossos was held to have done, the collision would not have happened." 1. The Defendant draws attention Sibley v Kais, [20] where the High Court stated in regards to the relevance of traffic regulations:- "…But they are not definitive of the respective duties of the drivers of such vehicles to each other or in respect of themselves: nor is the breach of such regulations conclusive as to the performance of the duty owed to one another or in respect of themselves. The common-law duty to act reasonably in all the circumstances is paramount. The failure to take reasonable care in given circumstances is not necessarily answered by reliance upon the expected performance by the driver of the give way vehicle of his obligations under the regulations; for there is no general rule that in all circumstances a driver can rely upon the performance by others of their duties, whether derived from statutory sources or from the common law. Whether or not in particular circumstances it is reasonable to act upon the assumption that another will act in some particular way, as for example by performing his duty under a regulation, must remain a question of fact to be judged in all the particular circumstances of the case. Therefore, it is, in our opinion, rightly said that the "'right hand rule' is not the be all and end all in relation to questions of civil responsibility". The obligation of each driver of two vehicles approaching an intersection is to take reasonable care. What amounts to "reasonable care" is, of course, a question of fact but to our mind, generally speaking, reasonable care requires each driver as he approaches the intersection to have his vehicle so far in hand that he can bring his vehicle to a halt or otherwise avoid an impact, should he find another vehicle approaching from his right or from his left in such a fashion that, if both vehicles continue, a collision may reasonably be expected." 1. Sibley was not a decision on appeal but rather a determination of an application for special leave to appeal which was in the end refused. Nevertheless the statements made must be accorded weight as they have been cited and followed in many decisions since. Favourable references to Sibley v Kais and Tran v Government Insurance Office of New South Wales were made in Porter v New South Wales Insurance Ministerial Corporation [21] and in the case of Sibley v Kais in O'Neill v Liddle. [22] 2. The Plaintiff contends that Sibley v Kais was superseded by the decision of the High Court in in Derrick v Cheung. [23] 3. Derrick v Cheung involved a collision following the sudden emergence of a young child running onto a roadway between two parked vehicles where a tree and shrubs also obscured the driver's vision. The driver was travelling at 40-50 km per hour in a line of traffic maintaining a distance between his vehicle and the vehicle in front, in fine weather good conditions with no observable danger. In allowing the appeal the High Court held that breach of duty of care was not established and the suggested inference that driving a few kilometres slower would have avoided the accident was not the proper test to be applied. Clearly its facts are distinguishable from the present case which involved both the presence of an intersection and adverse weather conditions. 4. Both Sibley v Kais and Derrick v Cheung were considered by the Court of Appeal in Liverpool City Council v Estephan. [24] After referring to the extract from Sibley v Kais quoted above, Giles JA (with whom McColl JA agreed) referred to the words "such a fashion that, if both vehicles continue, a collision may reasonably be expected" and stated:- "[37] The emphasised words do not mean that failing to slow down or stop is negligent if there is any possibility of the other vehicle continuing. If it did, intersections would become static. It must reasonably be expected that continuance will bring collision. Reasonable expectation depends on the facts, and the facts include that drivers generally obey the road rules. In Sibley v Kais their Honours regarded as consistent with their statement of the general obligation the "expressions of opinion" in other cases. The cases included Trompp v Liddle (1941) 412 SR 108, in which Jordan CJ delivering the judgment of the court said at 109–110— 'A driver is entitled to assume that other drivers will observe the rules of the road. This does not mean that he may drive at any pace he chooses so far as roads coming in on his left are concerned, or with complete indifference to the possibility of a car suddenly emerging from the side road as the result of accident, miscalculation, ignorance or recklessness. It means that it is not unreasonable for him to act on the assumption that other drivers are obeying the rules unless there is something which should make him realise that they are not. Thus, the mere fact that he sees the bonnet of a car appear from a side street on his left does not make it imperative for him to stop. Drivers in such a position normally advance far enough to see whether cars are approaching on their right; and a driver so approaching may reasonably assume that the driver on his left is advancing to serve this purpose unless he gets some indication to the contrary. Again, it is not unreasonable for a driver to act on the assumption that other drivers are driving at reasonable speeds, in the absence of some indication to the contrary. It is negligent to drive at a higher speed than is reasonably safe in the particular locality; and it is evidence of negligence to drive at a higher speed than is allowed by any regulation in force in the locality. A driver approaching a street which comes in on his right may not unreasonably assume that drivers approaching on his right are not driving at excessive speeds, unless he receives some indication that they are in fact so doing. If he is in this way misled into under-estimating the speed of an unreasonably fast car, and a collision occurs through his moving forward in a way that would be safe if the other car were proceeding at a reasonable pace, it is not he but the driver of the other car who has been guilty of negligence.' [38] In Astley v Austrust Ltd [1999] HCA 6; (1999) 197 CLR 1 at [30] Gleeson CJ and McHugh, Gummow and Hayne JJ said, with a footnoted reference to these pages of Trompp v Liddle, that in many cases it may be proper for a plaintiff to rely on the defendant to perform its duty, but that there is no absolute rule. Jordan CJ's statement, and the consistency with Sibley v Kais, was accepted in Redpath v Hadid [2004] NSWCA 295 at [47] (Sheller JA, with whom Hodgson JA "substantially" agreed and Ipp JA relevantly agreed), and by McColl JA in Dos Santos v Morris Painting and Decorating [2006] NSWCA 54; her Honour dissented in the result, but the reasons of Mason P, with whom I agreed, do not cast doubt on the principle. [39] On the related question of a driver's anticipation of a pedestrian's behaviour, in Derrick v Cheung [2001] HCA 48 ; (2001) 181 ALR 301 the High Court declined to find negligence despite reasonable foreseeability of the appearance of the child, and in his analysis of that case in Knight v Maclean [2002] NSWCA 314 Heydon JA said at [68] that "[i]t is not the law that a driver complying with the minimum requirements of the law of negligence must drive in such a way as to anticipate everything that a pedestrian might do at all stages of every journey, or to be in a position to reduce speed to levels which will avoid any risk of a collision at all stages of any journey." [40] In Manley v Alexander [2005] HCA 79 ; (2005) 223 ALR 228 the defendant kept his eyes on a pedestrian and while doing so ran over the plaintiff who was drunk and lying on the road. In holding that it was open to find the defendant negligent, Gummow, Kirby and Hayne JJ said at [12] that, although the possibility of someone lying on the road was remote— '… the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events.' [41] In Hawthorne v Hillcoat [2008] NSWCA 340 ; (2008) 51 MVR 523 Hodgson JA, with whom Ipp JA and Gyles AJA agreed, said of this passage— 'In my opinion, in the second sentence of par [12] of the majority judgment, it is noteworthy that their Honours used the words "may know" and not "knows" or "will know". I do not suggest that, in their context, the words "may know" mean merely "might possibly know". However, the words certainly do not mean "knows" or "will know". In my opinion, the best understanding of the words can be expressed as "is in a reasonable position to know". The standard in respect of the position a driver should be in so as to be able to take reasonable steps to react to events is itself a standard of reasonable skill and care; and although the standard of reasonable skill and care required of drivers is a high standard (because cars are so dangerous, and can so easily cause serious injuries), it is not a standard measured by success or perfection assessed with the wisdom of hindsight.'" 1. More recently, the obligations of drivers were restated in Warth v Lafsky [25] by McColl JA (with whom Preston CJ of the LEC and Tobias AJA agreed). Her Honour stated:- "The principles concerning the duty of care a driver owes to other road users, and those germane to breach of duty by reference to s 5B of the Civil Liability Act, were recently summarised by Meagher JA (Macfarlan and Emmett JJA agreeing) in Marien v Gardiner [2013] NSWCA 396 as follows: '[33] The duty of the driver of a motor vehicle to users of the roadway, including pedestrians, is to take reasonable care for their safety having regard to all the circumstances of the case: per McHugh J in Vairy at [26]. Under the common law and the Civil Liability Act, the standard by which reasonable care is measured is an objective and impersonal one: Cook v Cook [1986] HCA 73; 162 CLR 376; s 5B. [34] The question whether there has been a breach of that duty is to be addressed prospectively and by reference to what a reasonable driver in the appellant's circumstances would have done, if anything, by way of response to any foreseeable risks of injury or sources of danger to other road users: Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 at 47 - 48; Vairy at [60], [105], [124] and [126]; New South Wales v Fahy [2007] HCA 20; 232 CLR 486 at [57]. A person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, not insignificant and a reasonable person would have taken those precautions in those circumstances: s 5B(1). [35] Whether reasonable care has been exercised is not determined by asking if different conduct could have produced a different outcome and avoided a collision or accident: Derrick v Cheung [2001] HCA 48; 181 ALR 301 at [13]. The exercise of reasonable care requires, as the majority observed in Manley v Alexander at [11], 'reasonable attention to all that is happening on and near the roadway that may present a source of danger'. That in turn requires 'simultaneous attention to, and consideration of, a number of different features of what is already or may later come to be, ahead of the vehicle's path'. [36] The driver is not required, however, to know or predict every event which happens in the vicinity of the vehicle so as to be able to take reasonable steps to react to such events. As Hodgson JA (Ipp JA and Gyles AJA agreeing) said in Hawthorne v Hillcoat [2008] NSWCA 340 at [47], the driver is only required to take reasonable steps to be in a position to know what is happening or might happen in the vicinity of the vehicle. [37] Nor is the driver required to be in a position where he or she can react to everything which may happen in the vicinity of the vehicle. The driver is not required to travel at a speed which is within the 'limits of visibility and control' so as to be able to react to whatever ventures into the vehicle's path: per Ipp JA (Heydon and Santow JJA agreeing) in Cole at [61], citing Grove v Elphick (1985) 2 MVR 74 and Morris v Luton Corporation [1946] 1 KB 114. Derrick v Cheung was such a case. An unattended infant child emerged from between two parked cars and darted into the path of the vehicle. The driver was not negligent despite the fact that he was travelling at a speed which did not enable him, upon seeing the child, to avoid the collision.' Notwithstanding the conclusion in Derrick v Cheung [2001] HCA 48; 181 ALR 301, it is accepted that drivers must take into account the possibility of careless behaviour by pedestrians and the fact that they are in charge of frequently lethal machines: Stocks & McDonald Hamilton Co Pty Ltd v Baldwin (1996) 24 MVR 416 (at 418) per Mahoney P; Dungan v Chan [2013] NSWCA 182; (2013) 64 MVR 249 (at [16] - [17]) per Emmett JA (Ward and Gleeson JJA agreeing). A greater standard of care is required of motorists when young children are in the vicinity of a road, or reasonably expected to be in the vicinity: Gunning v Fellows (1997) 25 MVR 97 (at 98) per Beazley JA (with whom Mason P and Cole JA agreed); Mobbs v Kain [2009] NSWCA 301; (2009) 54 MVR 179 (at [87]) per McColl JA (Macfarlan JA agreeing). Motorists should "exercise quite a high degree of vigilance, especially in the presence of other traffic and in the vicinity of intersections": Turkmani v Visvalingam [2009] NSWCA 211; (2009) 53 MVR 176 (at [28]) per Hodgson JA (Beazley and McColl JJA agreeing)." [26] 1. The obligations in the case of adverse conditions impacting on visibility were considered by Duggan J in Cooke v Roberts [27] where His Honour stated:- "As Lord Greene MR said in Laurie v Raglan Building Company [1914] 3 All ER 332 at 336: "If roads are in such a condition that a motor car cannot safely proceed at all, it is the duty of the driver to stop. If the roads are in such a condition that it is not safe to go at more than a foot pace, his duty is to proceed at a foot pace." Some guidance on the approach to be taken in cases such as this is also provided in Mazengarb's Negligence on the Highway, (4th Edition), p 168 where the learned author, after discussing phrases such as "act of God" and "inevitable accident", continues: "Whatever expression is used, the notion of human agency must be entirely negatived, because there are occurrences which, while they originate in unexpected conditions brought about by the elementary forces of nature, are nevertheless due in part to the failure of man to meet the contingency thereby created. In such cases a plea of inevitable accident will fail. Further, emergency situations may be created by the acts of others. Bad visibility caused by weather conditions - eg fog or sunblindness - or by the acts of third parties - eg smoke or dazzling headlights - do not provide a defence of inevitable accident, for, when drivers encounter such conditions, there is a duty to stop or proceed at a slow speed. And whenever an attempt is made to set up as a defence that the accident was caused by unexpected phenomena, the conduct of the defendant will be carefully scrutinized for the purpose of showing that the state of the weather or other conditions required the exercise by the driver of an exceptionally high standard of care." 1. Duggan J's decision was followed in Nicholls-Chappell v Irving [28] where Ipp JA stated at [24]:- "[24] In Cooke v Roberts (SCSA), Duggan J, No 914/1990, 12 July 1990, unreported, BC9000303) approved the statement in Mazengarb's Negligence on the Highway, 4th ed at p 168 to the effect that where drivers encounter conditions of bad visibility such as fog, sun blindness, smoke or dazzling headlights, ``there is a duty to stop or proceed at a slow speed''. The same applies, in my view, to a dust cloud. Whether a driver should stop or merely slowdown will depend on the circumstances. In Watt v Towns (1993) 18 MVR 309. Grove J discussed the dangers of drivers entering a dust cloud and being blinded thereby. He remarked on the high potential danger that arises to motorists where visibility is obliterated. In the particular circumstances of that case his Honour considered that the two drivers, travelling in opposite directions, neither of whom stopped their vehicles before entering the dust cloud, were both negligent. The learned judge remarked (at 313), ``In the vernacular, they pressed on regardless of the risk that there was something unknown to them within the dust cloud. In so doing I consider that they were both negligent'' 1. With these principles in mind I turn to consider the evidence. Witnesses 1. Mr Mede had no recollection of the accident itself. There were, however, two other vehicles travelling in the same direction as Mr Mede that subsequently also collided with both the Pierce and Doble vehicles. These were driven by Mr Anthony Armour and Mr William Gorissen. Mr Armour was interviewed by police [29] and gave oral evidence in the proceedings. Mr Gorissen's gave statement to police dated 20 April 2012, which was admitted in the proceedings [30] . Evidence was also given by Alexandra Spark and Jason Handel who were travelling in a vehicle behind Mr Hukins' truck. Mr Hukins was called in Pierce's case. The evidence of these witnesses was critical to determining the factual scenario of the accident and is considered below. 2. Expert evidence was commissioned by both parties however only the Defendant called its expert being Mr Griffiths biomedical and mechanical engineer of Road Safety Solutions. 3. To this end reliance was placed on three reports. Mr Griffiths' CV was attached to his reports and outlined over 30 years of specialised experience and training. The Defendant contended that in light of the failure of Doble to call its expert Dr White, a Jones v Dunkel [31] inference should be drawn that his evidence would not have assisted Doble's case. Doble argued that such an inference was not available as Dr White was not a witness in Doble's camp and was an expert to report in accordance with the "Expert Witness code of Conduct". [32] In JD Heydon's book Cross on Evidence the author states:- "..failure to call an expert witness may not attract the principle where there is no issue on which the witness's evidence would assist, or where it can be inferred that a legitimate forensic choice was made to use expert material not as evidence but as the basis for submissions and lines of cross examination in circumstances where an opposing expert's evidence had only been admitted to a limited extent" [33] 1. So far as it is possible to gather, the circumstances in which Dr White was not called involved a forensic choice made by Doble. It was not in issue that a report from him was served on Doble and he was present during the course of the hearing. [34] The report had been tendered on the voir dire but not in the trial. [35] It was suggested that he had crash investigation expertise [36] although this may have been in issue. [37] The suggestion that before the principle can apply the Court should be satisfied that the witness was in Doble's camp overlooks the broader circumstances set out in Payne v Parker [38] by Glass JA. That decision was endorsed in Nominal Defendant v Clancy [39] (being a case concerning the non-use of expert evidence) where Santow JA (with whom Campbell JA agreed) stated:- "[209] Failure to call a witness a party would be expected to call leads to the inference that the witness' evidence would not have assisted that party: Jones v Dunkel (at 308, 312 and 320–321). As Glass JA said in Payne v Parker (at 201), where the failure to adduce evidence is that of the party bearing the legal onus of proving an issue: '… [T]he direct evidence of the party carrying the onus may be more readily rejected, and the inferences for which he contends may be treated with greater reserve. The default 'brings a great slur on his cause.'" Accident Scene 1. Mr Mead acknowledged that along the route he was travelling there were a number of side roads and he was aware of the possibility of vehicles crossing the Hume Highway in order to get to the side roads. He further acknowledged that the crossing points were marked by advisory signs. He stated that this was the position heading north towards Yass from Gundagai and that this would put him on notice of the fact that a vehicle might cut across his path. He acknowledged that one of the obligations of a driver driving safely was to stop in order to avoid an obstruction from the road. [40] Such an obstruction included a vehicle crossing the road to enter a side road. 2. Mr Mede's attention was then drawn to the contents of Exhibit B which was a Google Earth map showing the intersection between the Hume Highway and Burley Griffin Way. Mr Mede acknowledged that there was a large turning bay permitting large vehicles to turn across the Hume Highway to get into Burley Griffin Way and that adjacent to that turning point there was a truck stop area. Nevertheless he had stated that he had never seen a truck using that turning point, although he had seen a car use it approximately one dozen times. [41] He acknowledged seeing B double trailer trucks driving south from Yass towards prior to 20 April 2002. [42] 3. Mr Mede accepted a proposition put to him in cross examination that the turnoff on the slipway from the southbound direction turns almost 90 degrees up the Burley Griffin Way. [43] A map depicting the roads was tendered as Exhibit B. 4. At first Mr Griffiths stated, that the sources he examined showed that the angle of the truck at the holding line was 32 degrees, not 90 degrees. 5. Mr Griffiths acknowledged that the photographs in Exhibit B did not match photographs shown on pages 5, 6 and 7 of his report Exhibit 5.2. He stated that his measurements were based on the intersection referred to in his report. [44] He maintained that the intersection depicted in his report was what he had visited. What he could not explain was Exhibit B. [45] After further questioning, he became uncertain as to whether the photographs on pages 5, 6, 7 and 9 of Exhibit 5.2 were photographs of Burley Griffin Way. However, he conceded that photograph on p5, where the Burley Griffin Way joined the Hume Highway, was about 70 degrees. 6. When he again gave evidence on 17 July 2015 he stated that aerial photographs obtained, subsequent to his prior evidence in the as-built condition, indicated that the approach angle, while sitting on the holding line, was 50 degrees and not 30 degrees. [46] Ultimately, the road construction diagram was admitted as Exhibit 8 in the proceedings. [47] 7. He stated that he obtained the aerial photograph between the times he gave evidence as he had realised he had earlier had the wrong intersection, a mistake he made as he was new to the actual software. He stated:- "In the aerial views all my site visits were the correct intersection, my dimensions were all at the correct intersection, but there was a change in angle of the holding line, and the approach." [48] 1. Whatever criticism is to be made of Mr Griffith's error [49] there was no evidence beyond the Mr Mead's acknowledgment referred to earlier to contradict this revised view. [50] I accept it as accurate. 2. Mr Mede acknowledged that Crisp Galleries was approximately 500 metres from the intersection of the Hume Highway and Burley Griffin Way. He further acknowledged that just past Crisp Galleries, about 300 metres before the said intersection, was a sign notifying the upcoming turn on the Burley Griffin Way. [51] Nevertheless he stated that there was a tree that had obstructed that sign for some time. [52] Notwithstanding this he stated that when he passed that tree he knew that the intersection with Burley Griffin Way was coming up in about 300 metres. [53] 3. Anthony John Armour gave evidence that he was familiar with the intersection of the Hume Highway and Burley Griffin Way which he frequented from time to time. [54] 4. Mr Armour conceded that the Hume Highway, between Yass and the location of the Crisps driveway, was fairly busy with trucks and traffic on a regular basis, although it varied from time to time. [55] He acknowledged that there was a rest area on the left on the drive from Yass to Gundagai where you reach the turnoff from the Hume Highway onto the Burley Griffin Way. [56] He conceded seeing the B-double truck using the turning bay to enter the Burley Griffin Way from the Hume Highway and had used it himself. [57] He could not, however, recall whether he had to pull to a complete stop. [58] Nevertheless, he conceded that, on a clear day at that position, he would have a view of a couple of hundred metres down towards Crisps. [59] 5. He conceded that there were driveways up and down the Hume Highway between Yass and other towns towards Gundagai. He conceded that, as a driver travelling along, one would need to be prepared for vehicles using driveways or passageways onto farming properties. [60] Mr Armour stated that not all these roads had advisory signs, although they were marked with crosses. [61] He reiterated that the distance between the Crisps' driveway and the intersection was around 800m. [62] Standing on the first crossing of Exhibit D was two to three hundred metres from the entrance to the Crisps' driveway, heading towards Yass. The next one, he stated, was much the same. 6. He acknowledged there was a sign with green and white writing somewhere between the two crosses before the intersection of the Burley Griffin Way as it turns to the left. [63] 7. Mr Griffiths, in a report dated 22 May 2015, [64] referred to the RMS plan for the intersection of the Hume Highway and Burley Griffin Way which included a sign 300m from the intersection (on the Hume Highway). That sign indicated the turnoff to Harden on the Burley Griffin Way which was a short distance ahead. He noted that he observed the presence of this sign on his inspection on 15 May 2015. In evidence, it was conceded that the sign was as depicted in Exhibit 6 and it was the same sign referred to in Exhibit 5.2. Fog, Visibility and Speed Dene Mead 1. Mr Mead had no recollection of the actual accident. He nevertheless recalled that he was driving to Sydney from Wagga Wagga with his trailer having a couple of tonnes of plastic tubing; the lightest load you could carry in a semi-trailer, according to him. He left Wagga Wagga at 5am; stopped his truck at a rest area north of Gundagai for an hour and next recalled waking up in a Canberra hospital. 2. His reaction to the fog would depend on its thickness but the first thing which he stated that he would do is take his foot off the accelerator and let the vehicle slow down with the exhaust brakes. He said that he would not put his foot on the actual brake because fog would mean that the road was wet and this could lead to jack-knifing. He stated that on the occasion in question he would have had his headlights on, however, he could not recall if his fog lights were also on. 3. Specifically in relation to braking, he stated:- "Well, then I, you'd, you'd be gauging the bank of fog with putting my lights on, ie if I put the headlights on, on the truck, if they, depending on the fog consistency, whether it's thicker, it will bounce your reflection back, if it's not so thick it will swallow your, your headlight reflection in, so you know that it's, it's not a deep, prolonged fog. You'd also, you know, use your fog lights as and when necessary." [65] 1. Insofar as the braking action was concerned, he stated:- "Q. Assume you've got a heavy fog, when you slow down your vehicle are you trying to slow it down to any particular speed or not? A. Not to any particular speed, just to a speed that's safe for the conditions. I have reaction times. Again if the fog changes then you just accord your speed and your position. You adjust accordingly, you know, if it's particularly heavy then you're going to brake, it might even be thick enough that you have to come to a standstill in which case you always pull over out of the way, pick up a radio and let everyone know what you're doing." 1. Mr Mead acknowledged that using the exhaust brake would take a couple of seconds to reduce his speed from 100 to 80 kilometres. [66] 2. In cross-examination, Mr Mead acknowledged that he had made a statement to police which was Exhibit A in the proceedings. In that statement the Plaintiff stated:- "6. On this particular day the weather between Gundagai and Yass was patchy fog, which is not unusual for this time of year. I remember that I stopped at Black Springs Creek at a truck rest area for a break and rested – I stopped there for an hour and I also recorded this in my log book on page 30, where I rested for an hour from 5.30am to 6:30am. 7. I continued to head north on the Hume Highway at 6:30am, again there was patchy fog on the highway and visibility was reasonably good, as the sun had also come up. I always have my UHF radio on, this is primarily due to accidents that are on the highway and they are broadcast over the radio. I never turn the UHF radio off. The truck is speed limited and I usually travel below the posted speed limit. The truck is fitted with fog lights, however, I didn't have them on as it was daylight, however, my normal headlights were on – I always drive with them on. I was also wearing my seatbelt, as I also always do. 8. The trip seemed like a normal trip, there wasn't much traffic on the road as it was early hours of the morning and not much talk on the UHF radio either. I don't remember what happened next." 1. Mr Mead did not deviate from this account. 2. The Defendant attempted to assert in cross-examination that the fog conditions reduced Mr Mede's visibility to 40 or 50 metres in circumstances where he was driving between 90 and 80 kilometres per hour. Mr Mede was unable to respond to this and reasserted that he had no memory of the accident. [67] Anthony Armour 1. Mr Armour left his home in the morning at around 6:45am or "6 something". At that time he was driving a single cab four wheel drive Hilux diesel. Along his journey he described a place called Conroy's Gap which was four and a half kilometres from the subject intersection. [68] He also described the property known as Crisps which extended to the last kilometre towards the Burley Griffin Way. [69] He recalled coming up to a DXT truck [70] as he was going up the highway to the top of Conroy's Gap. He described it as:- "It's quite a steep pull and it does slow some trucks down, others seem to be able to get over it pretty well…" [71] 1. Mr Armour stated that at this point he was way back from the truck and did gain on the Doble vehicle in getting to the top of the hill. [72] He estimated his speed, driving from his home, at around 105km/hr. [73] As he came to Conroy's Gap he observed at the top of the rise that there was an appearance of fog at a very high level. [74] At this point the highway was still visible underneath for a considerable distance in front. He stated that this continued for several kilometres, basically up to the Crisps' gateway at least. [75] This reaffirmed to him that he had no need to pass the truck that was in front of him as he was going to turn off in a couple of kilometres. At this point, he thought that, provided it did not get any foggier and bearing in mind that he did not have any time constraints, there was no need for him to pass the truck. As he approached Crisps, his evidence was that the truck in front of him was travelling at just over 100km/hr. [76] He stated that he was trailing the truck a fair distance behind at that stage and would not imagine that he was doing any more than about 100km/hr. [77] He stated that the truck was travelling in the left hand lane. As he approached the Crisps' gateway, he noticed that the fog was not interfering with his vision. [78] As he got to Crisps he observed that the fog appeared to become thicker. [79] At this point, he estimated that he was approximately 10 vehicle lengths or some 60 metres behind the truck. He also estimated that he was "probably" travelling at between 95 and 100 km/hr. at this point. [80] His evidence was that he was maintaining distance [81] and stated that, as he was driving along behind the truck, he came to the Crisps' driveway and then:- "The fog, probably another hundred or two metres on, becomes quite a bit thicker again and at that stage I certainly backed off, just take the foot off the accelerator and I believe – well, the distance between me and the truck in front appeared to stay roughly the same so I am assuming he was doing the same thing." [82] 1. He marked two x's on Exhibit D, noting that the first x was a point where he estimated his visibility at "probably about 100m". When he entered the location of the second x, he stated that his visibility was "not much more than half of that distance, probably 60 or 70 metres, somewhere around that, yeah, like it was a genuine pea soup." [83] He stated that he saw the Doble truck's tail lights which were switched on. [84] He stated that, as he entered the thicker fog, he probably gained a few metres and was lagging behind, slowing down and backing off but still not braking. [85] Then, Mr Armour stated:- "Q. When you got into that thicker fog, what if anything could you see beyond the taillights of that truck? A. By the time we got into the really thick stuff all I could see were his taillights and that was, you know, what I was using as my sight line at that stage, you know I guess most of my time I was spending focusing on those brake lights not brake lights, just taillights at that stage, and also just checking on where the guy that was following us was behind me as well, so there was glances in the mirror. Q. Did you physically brake? A. Not at that stage, no. Decelerate is all I could call it with just foot off the accelerator and as we were going up a hill, you know, we were slowing down with the developing situation. I was certainly." [86] 1. Mr Armour stated that his vehicle was slowing down due to engine braking and stated that he saw brake lights eventually come on from the truck in front. [87] He stated that this was about two seconds or so after he had been in the thick fog. He stated that, as he saw the brake lights come on, he reasoned that something was causing concern to the truck in order for it to brake and so he did the same thing. [88] Before he saw the brake lights come on, he estimated that his speed was down to 80 or 85 km/hr. and his vehicle had fairly aggressive tyre treads, being a four wheel drive, and so he could hear what it was doing and so would have suggested that figure due to the sound of it. [89] This was a best estimate of his speed before he braked. 2. Mr Armour stated that the other vehicle had his brakes on and he believed that he had heard the brakes screeching. [90] He stated that he saw a vehicle that blended very much with the fog. [91] He did not remember seeing any lights on the side and said that it "was too hazy I think to have seen them". He stated that, probably a second after he braked, he saw enough of a shape to form the view that it was a fuel tanker. [92] He was not quite certain but estimated that 50m or so in front was when he first realised it was a diesel tanker. [93] At this stage, he was still in the left lane and was not able to observe whether the diesel tanker had its headlights on. [94] He stated that he saw the truck in front of him hit the tail end of the diesel tanker. [95] He described himself as braking extremely heavily and having "locked up". [96] He described the impact in the following terms:- "A. Once the Doble truck's hit the other one, it's spun that tanker around like taken off the front portion of the truck. Spun it around to the left hand side of the Doble truck and then I've speared into the well at that stage there was the front of the tanker of diesel alongside the Doble truck. Q. How long would you estimate that the Doble truck had its brake lights on before the collision? A. Two and a half, three seconds. Q. After you collided with that part of the tanker did something else happen? A. Yeah, there was a series of vehicles, certainly the one that was following me was able to avoid the collision but then shortly after there's another vehicle, another tabletop Hilux thing speared in alongside my vehicle into the fuel tanker also. Q. How long would you say the time period was between you entering that thick fog and the time of the collision? When I say the thick fog, I'm talking about the right hand X. A. The second X, yeah. Five, six seconds at most. Q. After the collision with the diesel what was the road surface like? A. I remember getting out of my vehicle and having to walk through several centimetres of diesel on the road surface at that stage. I think the first memory I actually have after hitting was seeing the diesel spewing out of the tank in front of me and I could tell it was diesel by the colour of it, real green colour." [97] 1. Mr Armour stated that, following the accident, he got off the road as soon as he could because the fog was so thick that he was not certain that other vehicles were not going to enter into the scene and likely not have enough time to pull up. [98] Following the event, he described another light vehicle as having come into the fog and collected with the vehicles which were already in the accident. [99] He described the other vehicle as a Toyota two-wheel drive, single cab, similar to his own vehicle but a smaller model. [100] 2. He observed the fog conditions contained in the DVD [101] and described them as very similar. [102] 3. He was cross-examined in relation to a statement which he made to Police at the scene of the accident. [103] In that statement, Mr Armour stated:- "As I entered the highway – it was sunny when I left – however, when I got to Conroy's there was fog around this area, visibility was reasonable. I could see about a hundred metres in front. When I approached Crisps the fog became very thick and visibility would have been fifty metres at most. I slowed down considerably. I was following a heavy vehicle that had "DXT" written on the back. As the fog thickened, I slowed and let him go in front, near Burley Griffin Way. I was travelling about 90-95km/hr. roughly. I saw the DXT truck brake. I did the same. I then saw a tanker across the roadway where the DXT truck hit the rear (second) tank. The front tanker truck continued through the intersection – I couldn't stop as both the tanker and the DXT were in the middle of both of the northbound lanes. I collided with the rear of both trucks – the airbags did not go off. I was wearing my seatbelt and my lights were on. My vehicle is extensively damaged. We were in the left hand lane." [104] 1. Mr Armour was also cross-examined in relation to evidence which he gave in the Local Court on 22 January 2012. In cross-examination by Mr Skinner, Mr Armour stated:- "Q. And at that point you could see about 100 metres is your estimate in front? A. Yes, certainly. Like, going up my side of – home side of it where it was still sunny, then it developed into a ceiling of fog that was not actually onto the ground at that stage. You could probably see at least 100 metres, probably more, at that stage, yes. Q. Then you say, "When I approached Crisps"? A. Yep. Q. Now Crisps again is a bit of local knowledge you have but I'm wondering if you could explain. Crisps is a bit further then obviously up the highway from Conroy's— A. Certainly. Q. –eastwards and close to this incident? A. Yeah. Q. How close to this incident? A/ Probably 300 metres, the turnoff I'm referring to, to go into this Crisps area is probably 300 metres short of the Burley Griffin Way turnoff, yeah. Q. And you say, "The fog became very thick and visibility would have been 50 metres at the most"? A. It— Q. But really it was a big – it was a pea soup by then, was it? A. Well I'd have to say it's one the thickest (sic) fogs I've ever come into. It just developed from being an acceptable fog to one that was truly scary. Like, it was really, really thick. Q. All right. Now you say you slowed down considerably. "I was following a heavy vehicle that had DXP on it." Now how long had you been following that DXP semitrailer? A. I actually caught up to him just about the top of Conroy's. At that stage seeing the fog and I knew I was turning off only a few ks (sic) past the accident site I said, "No, this is fine. He's travelling fast enough, I'm staying behind him". And that's what we proceeded to do. Q. And how far behind him were you? A. Eight, ten truck lengths – on my vehicle lengths, you know, probably 50 or 60 metres, something like that. Q. So he was still within vision byt— A. Yep. Q. –you could only, from what you've described, probably just see his back part, is that— A. Certainly once we got into the heavy stuff that's all I could see. I mean, you could see wheels and everything on him previous to that. I was just back happily cruising along at his 100 ks (sic) or whatever we were doing going down the hill and then up to this area. Yeah like it was, as I say, an acceptable fog to begin with but then just got real thick. Q. Well just before – I take it paragraph 5 is referring to that because you say, "I was travelling about 90 to 95 kilometres". So this is an estimate you five after the event, the best you can do? A. Yeah, yeah. Q. It's 110 there, isn't it? A. It is 110. Q. And you'd cut down substantially? A. Look, we were all slowing up even more. Like, I refer to "we"; I mean there was another vehicle behind that was doing exactly the same thing as I was. He was— Q. But that had just started then, was it, when you hit this heavy gap? You were coming down, you were slowing down? A. Yeah. Look, it was a developing situation, can I call it that? Q. All right? A. Like it was, "Hey, it can't be this jolly thick". "Yes, it is, it is really thick, slow up" but not hit the anchors to where you're causing an issue to the bloke behind you." [105] 1. In his evidence, Mr Armour maintained that he confused the issue and that it was on the other side of Crisps that the fog became that thick. [106] When he was cross-examined relating to his speed when he saw his brake lights on the DXT truck, being 90 to 95 kilometres, he stated:- "Somewhere around – look, I don't honestly know the full figure. I mean somewhere – like, I wasn't looking at the speedo." [107] 1. When he had earlier stated that he thought he was doing between 80 and 85 kilometres per hour, he stated that that was his feeling and that was based on the sound of his vehicle and that which the tyres made. [108] He said his figure of 90 to 95 kilometres earlier expressed was not a guess but was educated in that he was up at 100 km/hr coming down before any of the fog. 2. In conclusion, the following exchange occurs:- "Q. The reality is, sir, that when you were travelling in the heavy fog behind the truck before you braked you were doing between 90 and 95 kilometres an hour? A. And decelerating. So at some stage prior to that we would have been. Q. You told the police that you were travelling at about 90 to 95 kilometres per hour, do you agree with that? A. That's in the statement, yes. Q. You didn't tell the police that you were decelerating. Do you agree with that? A. I haven't told no, it's not in the statement, is it? Q. The vehicle that you were travelling in front of, as you told the Court before, was doing about the same speed that you were doing, is that right? A. Yes. It's I was maintaining the distance behind him. Q. At that point when you saw the brake lights come on you were in fog that you estimated to give you visibility of about 50 metres? A. Yeah, 50, somewhere around that. Q. You were travelling a distance, I think you said, of about three, maybe five car lengths behind, is that right? A. Probably a little bit more than that I think Q. Five or six I think you said, I apologise. A. It'd be at least that many, probably more. Q. But certainly as far as you were concerned you were matching the speed of that truck weren't you? A. Yes. Q. You'd been in that thick fog from about a point somewhere approximately, I think it was maybe 400 metres past the turnoff for Crisps, is that right? A. That is my real recollection of it. I mean I know it's not what's in that first statement but it's I honestly don't know why I have such a varying perception of the distances that appear to be getting shown to me at the moment." [109] William Gorissen 1. A statement was tendered of Mr William Gorissen dated 20 April 2012 which was given to Police on the day of the accident. Mr Gorissen was travelling north along the Hume Highway, just south of Yass. His statement, which was Exhibit G in the proceedings, records at [4] as follows:- "I left Turnut at about 6am and travelled north along the Hume Highway. At about 7:30am whilst still travelling north on Hume Highway just south of Yass in my Toyota Hilux, NSW registration WG 593, white in colour with tipper tray. Just about half a kilometre before the Burley Griffin Way tun (sic) off to Harden and Temora, I encountered heavy fog. I could only see about 30 to 40 metres ahead of me. It was quite dark, as the sun wasn't getting past the fog. It was the heaviest fog I have seen there before. I changed into fourth gear and was travelling at about 80 or 90 kilometres per hour. I tried to turn my hazard lights on, when I saw a ute parked ahead of me in the right hand lane. At the time I slowed down to about 60 kilometres per hour and was travelling in the left hand lane." Alexandra Spark 1. On the date of the accident, Alexandra Spark was a passenger in a vehicle being driven by her work colleague Jason Handel from Canberra to Griffith. At about 7am she was travelling in a southbound/westerly direction along the Hume Highway and approached the intersection with the Burley Griffin Way. She gave a statement to Police in which she stated:- "4. About 7am we travelled south on the Hume Highway and entered the cross over for the Burley Griffin Way. Jason stopped behind a fuel tanker – a B double, with this I mean it had two tanks. The truck was stopped for quite some time, as he was giving way to the north bound traffic – there didn't appear to be much traffic at all, even to the point that I thought he had plenty of time to cross. A car then went past and he gave way to that. 5. It was well after the car passed that the truck driver moved off. At the time the fog was extremely thick – we could only see 20 to 30 metres down the north bound lanes. As the tanker rolled off – another heavy vehicle that had a maroon tarp on the trailer was in the right hand lane – it collided straight into the side of the second tank of the first truck, there was nothing that this driver could have done. Shortly after a white ute was also travelling north – it ran into the back of the trucks. I contacted triple 000 – during this time a second ute – also white and a try back slammed into the back of the trucks. There was also another truck travelling north and he tried to avoid hitting any of them. He speared off to the left side of the road into a paddock – next to him was a Star Track express truck in the right lane who saw the accident and was able to pull up." [110] 1. In cross-examination, Ms Spark acknowledged that in stating that the B-double driver had plenty of time to cross, she was gauging this from her own perspective. She acknowledged that she could not make such an assertion as a truck driver as she was not a truck driver. [111] 2. She accepted that her observation of only being able to see 20 to 30 metres down the northbound lanes was an estimate but stated that, while she might be mistaken, she did not have an alternate view. She was shown a DVD, [112] said to have been the aftermath of the accident scene, travelling in a northerly direction along the Hume Highway and she was asked to compare the fog where depicted. She responded by stating that she felt that the actual conditions on the day were heavier than shown in that DVD. [113] Although, subsequent to the accident, they were about the same. [114] She stated that she was travelling southbound, whereas the depiction in the DVD was northbound. She could not identify it as the accident scene. [115] Jason Handel 1. Mr Jason Handel was travelling from Canberra on his way to Griffith on 20 April 2012. On his way, he came to the intersection of the Hume Highway and Burley Griffin Way. He stated that the driving conditions were fairly heavy fog or, on his evidence, "a thick fog". He was shown Exhibit C. He described the first part, up until the intersection, as not dissimilar. However, that exhibit did not show the direction in which he was viewed the accident initially. He agreed that the fog was patchy, meaning that it was at times thinner. [116] As he came to the turnoff bay of the intersection, he noticed a green and white double tanker in front of him. He stated that he had been travelling at 100km/hr. and could not travel at 110km/hr. due to the thickness of the fog. He stopped approximately 10 metres behind the tanker. [117] Mr Handel's evidence was that, when he stopped, "it was a lengthy time, a couple of minutes". [118] During this time the tanker was stationary for that period of time. [119] This evidence was consistent with Mr Handel's statement to police. [120] 2. Mr Handel said that it was difficult to recall whether the visibility in the fog was thinner was 200 or 300 metres. [121] Although he could see the right hand side of the truck in front of him, he did not recall whether it had side-running lights. [122] He conceded that the truck was properly stopped. [123] During that time he recalled seeing one truck come through the intersection, driving along the Hume Highway and past the turning bay at the intersection. [124] In a statement, [125] he stated that at the time the tanker was stopped, he could only see about 100 metres ahead. He stated that the tanker went two-thirds of the way through the northbound lanes when a semi-trailer, travelling north, a "DXT" company truck registration Q92 498 collided with the tanker. Mr Handel stated that it collided somewhere of the back of the tanker truck. [126] This was confirmed in oral evidence. [127] He stated that at the time the truck started going through the intersection, there were no vehicles coming from Gundagai. [128] Ricky Hukins 1. When Mr Hukins drove the said route he used a B-double trailer, being a large truck with an A trailer and then articulated with the next trailer, being the B trailer. The prime mover was a Kenworth with 550 horse-power. [129] 2. On 20 April 2012, Mr Hukins collected his truck which was full with diesel and checked his vehicle with all of his usual safety checks. [130] Mr Hukins stated that he had driven the vehicle on 20 April 2012 without difficulty. Mr Hukins commenced his journey at about 6am and followed the Hume Highway. He stated that the visibility between Goulburn and Yass varied from 100m to a couple of kilometres, depending on where you were on the road. [131] He stated that he was travelling at 90km/hr. between Goulburn and Yass which was less than 110 kilometres due to the fog. His vehicle was also speed limited to 100km/hr. [132] 3. Mr Hukins estimated the distance between Yass and the Burley Griffin Way as about 17 kilometres. [133] He described the conditions as very foggy, which he defined as 50m or thereabouts in visible line of sight. [134] He could not recall the speed he travelled between Yass and the turnoff for the Burley Griffin Way nor how long it took for him to get there. 4. He described the turnoff at the subject intersection as consistent with a slip lane with a traffic island in the middle. [135] Travelling towards the Burley Griffin Way from Yass, he described the fog as thick. As he was stopped at the turnoff, he described seeing a lot of fog in front of his windscreen while looking at the northbound lanes from his cabin. [136] He could not recall how long he was stopped for. [137] He waited a while as there were a couple of cars and a truck which went past on the northbound lanes. 5. He stated that, as he came to the give way sign, he stopped his vehicle because he could not see due to the fog. By that time it was "very thick" and "a lot thicker" than he experienced leading up to the Burley Griffin Way, south of Yass. [138] He stated that there was a dark coloured car which he could see in the mirror behind him. He stated that it was right behind him as he was waiting to cross. 6. He proceeded to cross when he felt an impact in his rear trailer. [139] He looked in the left hand side mirror and saw a Tautliner. He looked in the right hand side mirror and saw the trailer on its side. He estimated the length of the prime mover to the B trailer as 24m. [140] He stated that the fog, as he was waiting to cross was somewhere between 20 to 40 m, 50m. [141] 7. Mr Hukins accepted that he moderated his speed on his trip from Goulburn to Yass and stated that he travelled between 80 and 90 km/hr. He accepted that he arrived at Burley Griffin Way just before 7am. [142] It was put to him that he backed off only a very small amount due to the fog, however, he maintained that his drop in speed was about 10km/hr. [143] Mr Hukins conceded that, during his travel to and from Yass the fog got worse. He rejected the suggestion, however, that before he got to the intersection it occurred to him that it was going to be a very dangerous intersection on that morning. [144] He accepted, nonetheless, that it was very foggy in "that particular part of the Hume Highway" and, in fact, he waited a considerable period of time while he looked at his options. [145] He acknowledged that he looked to see if cars or trucks were coming in a generally northbound direction through the fog. [146] Further, he conceded that before he went through, it was not safe to do so and it would pose a great risk to just drive through the intersection. [147] He acknowledged that he waited but stated that he was committed to the intersection. [148] 8. Mr Hukins acknowledged that he was evaluating how much traffic was proceeding in a northerly direction and his visibility would have been at least 60 to 70 metres. [149] He acknowledged that, looking into the fog, it is sometimes difficult to gauge the visibility without a reference point. [150] 9. Mr Hukins acknowledged that any cars coming out of the fog were at risk of collision as he took time to get across the intersection. He was aware that there was a serious risk of collision if he pulled out into the intersection. 10. He stated in re-examination that he would have needed 50m or thereabouts in order to get back onto the Hume Highway from the turnoff. [151] There was no one driving with him in the vehicle who could have acted as a guide. [152] Findings as to Visibility at Scene and Speed of Doble Vehicle 1. The Plaintiff submitted that the evidence of Mr Armour, given at the scene to Police, was truncated to set the difficult circumstances in which it was given and, accordingly, it is more likely that his evidence before me was more accurate than his earlier recollections. The only evidence that would support this appears in cross-examination as follows:- "Q. You didn't say anywhere in your statement to the police dated 20 April 2012 that you were suffering the effects of any physical injury, did you? A. It was something that sort of came on as that interview was I mean, straight after the prang, I didn't have any pain whatsoever, but it just, obviously torn sternum, things or whatever it was and it became yeah, look, I mean, that was part of it. I wanted to be out of there, I'm sure. Q. When you gave evidence in the Local Court you never told A. No. Q. the Court that you were suffering pain A. No. Q. when you gave that statement, did you? A. No." [153] 1. In my view this evidence and the submission which accompanies it by the Plaintiff is little more than speculation. Indeed Mr Armour acknowledged that he was not given a copy of his statement at the roadway and, whilst he could not remember, it may have been that he was given a copy on the day of the Goulburn hearing in the Local Court. [154] 2. The statement ultimately was adopted in the Local Court as accurately describing the witness's recollection. [155] In those proceedings, Mr Armour acknowledged that he had had the opportunity to read the statement on the day, sign it and found it to be true and correct of his memory of the incident. [156] As at the date of the Local Court hearing, Mr Armour stated that he found the statement to still be a true and correct version of what he saw and witnessed on the day except to the extent that the statement suggested that he hit the back of both trucks – he only hit the fuel tanker (the Defendant's vehicle). 3. The description given in the police statement was that, as Mr Armour approached Crisps, the fog became thick and visibility would have been about 50 metres at most. This evidence was affirmed at the Local Court. Further, the Mr Armour's statement was that he was travelling at 90-95km per hour when he then saw the DXT truck brake and he did the same. Based on the cross-examination in the Local Court, it appears that he had reduced his speed from 100km/hr. and, following entry into the fog, had slowed down even more. This is consistent with the statement, suggesting that Mr Mead braked. It is also consistent with the evidence of Mr Gorissen in Exhibit G. 4. The estimates as to visibility into the northbound lanes varied. Mr Hukins gave as estimate of 50 metres or thereabouts in his line of vision heading form Yass to 20, 30 metres or 50 metres when stopped at the intersection to 60-70 metres "at least" as he was evaluating traffic in a northerly direction. The later estimate put and accepted in cross examination is difficult to accept in light of the other estimates given by Mr Hukins and fact that the fog was getting thicker as the intersection was approached. Mr Handel's estimate of visibility was 100 metres and Ms Spark 20 -30 metres. Although Ms Spark accepted that she might be mistaken, she did not have an alternate view. 5. Although Mr Armour stated that he was confused, he also stated that it was past the gateway into Crisps that the fog then got thicker, [157] I do not accept that this to the extent it conflicts with his statement to police. However I accept Mr Armour's evidence that, as the fog thickened, he allowed the Plaintiff's vehicle to go in front nearing the Burley Griffin Way. [158] 6. The Plaintiff questioned the use of the evidence as to visibility based on the vantage points of other witnesses. [159] Nevertheless I am satisfied that Mr Armour's statement was a reliable indicator of the visibility position confronted by Mr Mede particularly since they were traveling along the same path. I also accept that the visibility of Mr Hukins stationed at the intersection was 50 metres based on my assessment of the evidence particularly Messrs Hukins, Handel and Spark. 7. It follows I do not accept that the visibility was 60 to 70 metres as contended by the Plaintiff. [160] 8. I accept that, as the Plaintiff entered into the heavy fog, his vehicle was travelling at least 90 to 95 km/hr. in circumstances of visibility of 50 metres. At this point, Mr Armour decelerated, according to his evidence, and Mr Mead was gaining on Mr Armour. Mr Armour's evidence was that the braking occurred about 2 seconds "or something like that" after entry into the thick fog. [161] He accepted that the Crisps gate was 400 to 500 metres from the second X marked on Exhibit D. [162] This left a further distance of approximately 200 metres to the intersection to the Burley Griffin Way from the second X on Exhibit D. [163] 9. On the evidence I am satisfied that, at the time the Doble vehicle braked, it was travelling at approximately 80 km/hr. Conspicuity of Pierce Vehicle 1. On the morning in question, Mr Hukins gave evidence that he turned the lights on. [164] 2. Mr Hukins stated that the prime mover had headlights and clearance lights, with the latter having been on the roof of the prime mover. [165] The vehicle was not equipped with fog-lights. [166] The headlights were hardwired and turned on when the motor was running. [167] The clearance lights on the side of the trailer were activated by a switch on the dash. [168] The clearance lights ran up the side of the A and B trailer with six lights on the B trailer and four on the A trailer. [169] They were red from behind and yellow to someone who was facing them from in front and they were located 3m from the ground. [170] 3. Mr Hukins' evidence was that the parking, trailer and headlights were on. By trailer lights, he was referring to the clearance lights. [171] Mr Hukins maintained that his sidelights were activated but did not recall whether the sidelights were recorded as illuminated from the photos of the truck taken after the accident. [172] In re-examination he stated that he turned all lights off by the time the Police had arrived. [173] 4. Mr Griffiths defined conspicuity as follows:- "It's how conspicuous an object is, so it's the difference between visibility is your visibility of something, and how conspicuous something is how well how conspicuous it is. How well conspicuous it is, how well contrasted or how well illuminated or how easy it is to see. So a retro reflective vest or a fluorescent vest might be more conspicuous than a non reflective vest." [174] 1. He conceded that if Mr Hukins' vehicle was at 90 degrees to the Hume Highway, or thereabouts, then there would be less conspicuity of a vehicle approaching north than if Mr Hukins were at an angle. [175] He conceded that the driver of a vehicle with headlights on would receive a rebound effect due to the fog. 2. As noted earlier, Mr Griffith's evidence ultimately was that the approaching angle for the Pierce vehicle while sitting on the holding line was 50 degrees. [176] 3. Although there was no other positive evidence as to lights Mr Armour acknowledged that this could have been because of the conditions. He stated that the Pierce vehicle blended very much with the fog. [177] He did not remember seeing any lights on the side and said that it "was too hazy I think to have seen them". He stated that, probably a second after he braked, he saw enough of a shape to form the view that it was a fuel tanker. [178] 4. Whilst I accept that Mr Hukins has activated the lights to his vehicle, I also accept that in the circumstances of the fog in question Mr Armour's evidence as to conspicuity should be accepted. His evidence was not theoretical but based on observation. In particular, I am not satisfied that, by the time the Pierce vehicle had come within the observation of Mr Mead, the headlights would have been visible bearing in mind the likely position of the Pierce vehicle its turn. This is consistent with the collision being to the B trailer. What Warning Was Used by Pierce Vehicle 1. Pierce's expert Mr Griffiths conceded that electronic and air horns can be used at the same time. [179] Mr Hukins, however, acknowledged that he did not use his horn, although he had both a standard horn and an air horn. [180] 2. The Defendant contended that there was no evidence that a horn could have been heard by the hypothetical driver. In response, the plaintiff contended that one did not need expert evidence to prove the obvious as it was a matter of note that sound travels at 800 metres a second. [181] Assuming they were activated, it is speculative as to what Mr Mede's reaction might have been, particularly if he were not able to discern the source and determine what the horn signified. This was not explored further in evidence. 3. Mr Mead said in his police statement that he never had his UHF radio off and there was not much talk on it. [182] In his evidence before me he did not recall hearing anything after leaving Gundagai concerning fog. [183] 4. Mr Hukins had both a UHF and CB radio. He said that both were switched on with the engine. At the time, he claimed that he had the radio switched to channel forty which was the highway channel. [184] 5. He stated that he called on the UHF radio as he was in the slip lane to check if there was any oncoming traffic but did not recall what he said. [185] He stated that he did not hear anything on the UHF radio except general chatter. [186] He stated that, after waiting at the give-way sign, he called out again on the UHF radio, received no response and so began his turn. 6. He further acknowledged that, in an interview with Police on 20 April 2012, he told Police that he did not remember using his UHF radio. In fact he told police this three times. [187] In a subsequent interview, on 11 July 2012, he told police that he indeed call on the radio. [188] Before me he sought to account for his earlier denials on the basis that he was in shock, an assertion which was challenged in cross-examination. [189] 7. Mr Hukins was then asked, in light of his evidence in chief, when he recalled using the UHF radio and the following exchange takes place:- "Q. Well you told police on 20 April that you didn't recall using it. You told the Court yesterday that you did use it? A. Yes. Q. When did you recall using the UHF? A. A couple of days later I suppose. Q. What was it that you say that you said? A. I can't remember exactly what I said. Q. You gave police a thorough statement, didn't you, of your recollection of the events? A. Yes. Q. It would be important to tell the police if you'd made a warning call on the UHF wouldn't it? A. Yes. Q. I'm suggesting to you, sir, that the evidence that you gave yesterday about having used the UHF is incorrect isn't it? A. No, it's not. Q. You don't remember getting any calls back from anybody back on the UHF? A. No. Q. You don't recall what it was that you said? A. No. Q. You don't recall, I take it, if the Monaro driver was present at the time that you made that is behind you at the time you made the UHF call? A. I don't know." [190] 1. Mr Hukins was cross-examined further in relation to his use of the UHF radio and the transcript records:- "Q. Mr Hukins, you had a UHF? A. Yes. Q. You could have persevered on the UHF and found out where the fog started, couldn't you, by speaking to other drivers? You just had to wait for a response? A. I can't remember anybody answering me. Q. No, but if somebody didn't answer you first time around you can persevere on the UHF and any driver within a reasonable radius who was travelling north could have given you some information to assist you, couldn't they? A. Yes. Q. Why did you just tell his Honour that you couldn't? COMBE: I think his Honour's question was directed towards approaching the intersection. HIS HONOUR: That's right. BARHAM: Yes. Q. Southbound vehicles, if you asked and didn't get a response, I suggest you can give another request and wait for a response? A. Yes. Q. Truck drivers normally do respond, which is the whole point of having UHF radio and CB radio, isn't it? A. Yes. Q. If you don't get a response first time around you can give it a second time or a third time, can't you? A. Usually after the second time that usually means there's nobody around there. Q. Yes, but it means that you can wait until someone comes around, doesn't it? A. Yes. Q. And cars don't have UHF do they, usually? A. Not usually." [191] 1. Mr Hukin's evidence on this matter was inconsistent. His initial statement to police three times denied recalling the use of the radio. It was contained in a police interview where Mr Hukins could recall much of other details regarding the circumstances leading to the collision. There is nothing in my view to satisfactorily account for his sudden recall two days later on his evidence of using the UHF. In all the accounts he has given of a call he not been able to detail what was said. If he had made a call, as he asserts, then in all likelihood it would have been received, bearing in mind Mr Mede's evidence. There was no evidence that it was. In the circumstances, I am not satisfied that Mr Hukins made the call as asserted. Could the Pierce Vehicle have taken an Alternate Route? 1. Mr Hukins acknowledged that if there were a fog at the Burley Griffin Way turnoff, he had the option to have turned off at the Coolac turnoff and cross the Hume Highway on an overpass. [192] He further conceded that there were a number of routes between Goulburn and West Wyalong on which a B double would be able to travel. [193] 2. Mr Hukins conceded that he would occasionally need to reverse a B double during the course of his employment and that he was trained to do so. [194] He accepted that he had extensive experience in reversing B-doubles but did not accept that it was easier to reverse a B-double than it was to reverse a semi-trailer. [195] 3. In further questioning, it was suggested to him that there was nothing preventing him from not proceeding across the intersection and getting out to talk to the Monaro driver in order to tell him what the problem was and activate his hazard lights. He responded, stating that there was traffic coming up behind, coming into the intersection. [196] He acknowledged that the turnoff lane was in excess of 100m and could have been more and that "there's a bit of room there". [197] 4. It was then suggested that, in light of the fog, he had the option to ask the Monaro driver to reverse his car back slowly so that he could reverse and proceed down to Coolac. He responded, saying "maybe. Yes.". 5. In re-examination, however, he was referred to his answers in the Police interview. [198] In this interview, the following questions and answers were recorded:- "Q112 O.K. And that way you could see ahead of you, you said there was a car behind you as well - - - A. Yes. Q.112 - - - at the turning. A. A blue car behind me. Q113. Yeah A. Sitting waiting to turn up Burley Griffin Way as well. Q114. Do you know how long that car was sitting behind you for? A. He followed me when I turned into the - - - Q115. O.K. A. - - - the turning lane to turn right. It was behind me." 1. Notwithstanding these answers, Mr Hukins had conceded that before the Monaro arrived, he could have begun reversing the vehicle with reverse lights on and noise coming from the engagement of the reverse. [199] 2. In response to further questions in re-examination, Mr Hukins explained the difficulties in reversing in light of the position of his vehicle in the turn off lane being at an angle, in particular, the following question and answer is recorded:- "Q. So how would you describe the process that might have occurred if you had backed up that B double trailer in that turning bay? How would your truck have behaved? A. It could have gone into the southbound lanes, the front trailer or the back trailer, because you're on it's on an angle, the truck wasn't in a straight line at the intersection it was everything was kinked. So the back trailer, the A trailer and the B trailer weren't in a straight line and the prime mover wasn't in a straight line." [200] 1. Mr Griffiths was next asked about the capacity of B doubles to reverse at an intersection as depicted in Exhibit K, travelling over a traffic island. He stated that he needed to have the B double swept path to be able to answer the question. [201] He described the swept path as showing how much in-tracking and off-tracking the multi articulated vehicle has when it is turning a corner. [202] 2. However, on the basis of the position of the Pierce vehicle at 50 degrees, Mr Griffiths asserted that it was not possible for the vehicle to reverse from its location on the holding line. He explained this as follows:- "Cause he's driving a vehicle which has got multiple articulation and it's very hard to keep control of vehicles keep control of B doubles with their multiple points of articulation and it my observations were that B double drivers can with experience reverse when they're at fairly small angles, but when the angles get greater that doesn't appear to be the task that they can undertake successfully." [203] 1. Mr Griffiths further stated that the height of the traffic island was 200 to 250mm. [204] Mr Griffiths was then asked, as a traffic safety expert, what his view would be in relation to performing a manoeuvre such as driving forward over a traffic island, using a B double trailer, pulling full loads of diesel. The exchange was as follows:- "Q. As a traffic safety expert what would your view be about performing such an manoeuvre as to drive forward over that traffic island using a B double trailer pulling full loads of diesel? A. I don't think going over the island was a problem, I think the problem was that the angle of the turn was too great and that the it wouldn't have been able to remain on sealed surfaces to do the manoeuvre and when I made that assessment on a previous occasion I was look I made that judgment based on the aerial view which had approach angles of 30 degree approach and exit so that was the area that he could do the manoeuvre in. The real intersection has got considerably greater approach angles, and I don't think it would be possible. Q. Again with the amended approach angle? A. Without going onto the soft ground, and then as soon as you go into the soft ground in a B double you are in serious potentially in serious trouble. Q. That's even with the amended approach angle 50 degrees you say it would have been by the time A. I am saying that's the I am saying it's a much greater approach angle which means that the turn that the driver had to go through would have been 40 degrees or greater in terms of turn and I think that was beyond the that was beyond the turning circle capabilities of the B double." [205] 1. In cross-examination, Mr Griffiths conceded that he had limited observations of B doubles reversing, mainly from viewing YouTube videos. He acknowledged that he was not an experienced B double driver. [206] 2. Nevertheless, whilst I am satisfied that Mr Hukins could have taken an alternate route before entering the slip lane, I am not satisfied that he had the option of reversing out as the Plaintiff contends. On this matter I accept the logic of the evidence of Mr Griffiths. Five Second Response 1. A significant part of the case Pierce presented rested on the failure of Mr Mead to allow for what was termed in the proceedings as the five second rule. 2. That is referred to in a section of the NSW Government, heavy vehicle handbook at page 45 which reads as follows:- "SPEED MANAGEMENT Drive at a speed that is within the speed limit and that will allow you to react and completely stop within the distance which you can see is clear. When you see potential hazards, slow down and prepare to stop. If you cannot see at least five seconds ahead you must slow down. Slow down on wet, icy, or gravel roads where it will take longer for your vehicle to stop." [207] 1. The handbook acknowledges that drivers should maintain a crash avoidance space, consisting of a reaction time and a response time. The reaction time, according to the handbook, is about 1.5 seconds for "a heavy vehicle driver who is fit, concentrating and alert, and not affected by alcohol, drugs, fatigue, or a distraction." [208] A response time is the time required to take action. The handbook records a minimum of two to three seconds as needed and accordingly a total of at least four seconds crash avoidance space is needed to react and respond to a situation in front. The handbook noted that an even longer period may be required in poor conditions such as rain or darkness. [209] 2. Rule 25-1 of the Australian Road Rules (NSW) recognise that the speed limit in an area is a maximum speed restriction and that it is necessary to drive in accordance with the conditions and circumstances. In the road users' handbook at page 39, [210] it is noted that it is important to slow down when the road, weather and light conditions are poor. Such conditions can include circumstances of fog. The Plaintiff, in its submissions, did not dispute that Mr Mead's travel was no less than 80km/hr. [211] 3. Although the Plaintiff's submissions cite a number of circumstances in which it is contended that the four second gap may not, because of sudden events, be possible to comply with, it did not contend that it was poor practice. However, it used those circumstances to contend:- "The point of all this is that 4 and 5 second gaps are ideal targets, not something which is able to be maintained 100% of the time in the real world. They are not legislation, for obvious reasons. It should not be elevated into something beyond what it is intended to be. A four or five second gap is not the test for negligence and, critically, there is no evidence that such a gap would have prevented this accident, and by the experience of Mr Armour and Mr Gorissen, considerable evidence that it would not have prevented this accident." [212] 1. The practice does not have the force of legislation. Nonetheless it needs to be considered to be in the context of Chico v The Corporation of the City of Woodville where referring to Australian Standards King CJ stated:- [213] "Publications containing safety standards approved by the Standards Association of Australia were admitted by consent. These standards do not have legal force, except, of course, to the extent that they may be given such force by a particular statute. They had no legal force in the circumstances of the present case. It was permissible for an expert on safety to have recourse to such published standards, if he sees fit, as one of the sources from which he informs himself as to matters relating to the subject in which he is an expert. But the standards, of themselves, have no legal or evidentiary force." 1. The use and probative weight of standards or common practice upon reach of adjudication was summarised by Mason P in Francis v Lewis [214] as follows:- "42 The legal situation of a building erected in accordance with prevailing building standards has been considered in earlier cases. It is a subset of a wider body of law that holds in tension the proposition that a finding of negligence requires evidence capable of satisfying the tribunal of fact that there has been an unreasonable departure from the standard of care; and the proposition that lawful common practice is not determinative of liability in negligence. As Latham CJ put it in Mercer v Commissioner for Road Transport & Tramways (NSW) (1936) 56 CLR 580 at 589: 'The mere fact that a defendant follows common practice does not necessarily show that he is not negligent, though the general practice of prudent men is an important evidentiary fact. A common practice may be shown by evidence to be itself negligent. A jury is entitled, for example, on sufficient evidence, to find that a proper regard for the safety of other people would require the adoption of some precaution which has only recently been discovered. But a jury is entitled so to find only if there is actual evidence to that effect.' 43 In Lanza v Codemo [2001] NSWSC 845, Wood CJ at CL reviewed the authorities and said: '[168] It was submitted that the Australian Standard provided the measure of Moxham's duty to the plaintiff, and that since the harness generally complied with its requirements, there was no breach of that duty. This submission is not made good. [169] Mere compliance with a Standard, or even with common practice, does not solely or even primarily determine whether negligence exists or not: Florida Hotels v Mayo (1965) 113 CLR 588 at 593; Rogers v Whitaker (1992) 175 CLR 479 at 487; Mercer v Commissioner for Road Transport & Tramways (1936) 56 CLR 580 at 589. Evidence as to practice, or as to the existence of a Standard remains relevant, and it may help in determining what proper care and skill requires to be done in a particular context. However, in the end it is for the Court to adjudicate upon what is the appropriate standard of care: Ainsworth v Levi NSWCA 30 August 1995 unreported; Shead v Hooley [2000] NSWCA 362; and The Council of the Shire of Muswellbrook v Lettice [2000] NSWCA 359.' See also Jones v Bartlett (2000) 205 CLR 166 at 177[23] per Gleeson CJ." 1. The five second response practice was adopted by Mr Griffiths. 2. Further, Mr Mead accepted that it was basically common knowledge among truck drivers to drive at a speed limit which allowed them to react adequately and at a distance at which they could clearly see and, if they could not see at least 5 seconds in front, then they must slow down. [215] He further acknowledged that where the weather was bad and visibility was reduced, it was necessary to slow down to maintain a 5 second response time. [216] 3. In my view, the matter needs to be considered in the context of the principles expressed in Liverpool City Council v Estephan so that the reasonable care that a driver must exercise requires the driver to control the speed and direction of the vehicle in such a way that the driver is in a reasonable position to know what is happening in the vicinity of the vehicle in time to take reasonable steps to react.. Was the Doble Vehicle Speed Excessive? 1. In his first report of 20 October 2014, Mr Griffiths calculated 22.22 metres per second of travel at 80 km/hr. [217] 2. Mr Griffiths then gave evidence that perception response times varied greatly from one individual to another, depending on the situation and their level of alertness. The most common source of reference he described was a book by Olsen, titled Forensic Aspects of Driver Perception and Response, which stated in broad terms that in daylight, built-up areas, 85% of motorists achieve a perception/response time in the order of 1.5 seconds and traffic lights and road signs typically allow for a perception response in the order of 2.5 seconds. Accordingly, the distance travelled with perception response times ranging between 1.5 and 2.5 seconds was within the range of 33.3 metres to 55.5 metres at 80 km/hr. 3. Accounting for deceleration at 80 km/hr., he calculated the braking distance of 41.99m at 0.6 g and 35.99 at 0.7 g. 4. In his report, dated 20 October 2014, [218] Mr Griffiths used this deceleration range, describing it as representative of the typical rate. Counsel for the Defendant criticised this, asserting that Mr Griffiths discounted without any rhyme or reason why a modern truck would not have a breaking capacity of 0.8. [219] In fact Mr Griffiths gave the following explanation:- "….with a truck the complexity with a truck is that, you know, it's more the axle. So the difficulties with maintenance compounded, also a lot of trucks are fitted with systems that take different times for the air signals to reach different axles." [220] 1. He then calculated stopping distances using response times as follows:- 1.5 seconds 2.5 seconds 80 km/hr 75.29 m 97.49 m with deceleration of 0.6 g 80 km/hr 69.29 m 91.49 m with deceleration of 0.7 g 1. A second report, dated 21 May 2015, was also prepared by Mr Griffiths and became exhibit 5.2 in the proceedings. That report noted that Mr Mede reported that fog had reduced his visibility to approximately 40 to 50 metres and that he was travelling at approximately 80 km/hr. Mr Griffiths conducted site visits on 14 and 15 May 2015. He took photographs of the accident scene which are appended to his report. 2. Mr Griffiths asserted that the only way for Mr Hukins was forward. In particular, at p 17 of his report, he stated:- "The Road Rules require drivers to slow down to the extent that they can respond to any object in their forward pathway (NSW RMS Heavy Vehicle Driver Handbook, p 45, NSW RMS Road Users Handbook, p 61). In circumstances of good visibility, the obligation was upon RICKY HUKINS to wait for a safe gap in oncoming traffic. In circumstances of poor visibility, drivers are required to reduce their speed to one at which they could see and respond to, and bring their vehicle to a complete stop. If drivers complied with the Road Rules, then RICKY HUKINS could undertake his turn in safety. 'The risk' that RICKY HUKINS took was that there may be motorists who were no (sic) compliant with the Road Rules as set out in the RMS Handbook." 1. Mr Griffiths then estimated that, in circumstances of travelling at 60km/hr and with a perception response time at 1.5 seconds and braking rate of 0.6-0.7g, Mr Mead could have brought his semi-trailer to a complete stop in a distance of 50m, which was the longer [221] end of his perception of the available forward distance in the log. Mr Griffiths further stated that, if Mr Mead reduced his speed to 50km/hr, he would have been compliant with the Road Rules, p 45 of the NSW RMS Heavy Vehicle Driver Handbook and p 61 of the NSW RMS Road Users Handbook. [222] 2. Ultimately, the conclusions which Mr Griffiths came to in section 8 of his report were as follows:- "1. To comply with the NSW road rules, as interpreted in the NSW RMS Road Users Handbook and Heavy Vehicle Driver Handbook, drivers need to slow down in reduced visibility so that they can bring their vehicle to a complete stop within the distance they can see ahead. 2. DENE MEAD's account of events is that he was driving at a speed of 80 km/hr with an estimated visibility ahead of 40 to 50 metres. 3. Analysis conducted in this report found that if DENE MEAD had slowed to a speed of 60-65 km/hr, he would have been compliant with the road rules and this crash would have been avoided. 4. Once RICKY HUKINS had come to a stop at the 'give way' markings in the median, his options were very limited. By then, he was not in a position to take an alternative route. 5. If other road users were compliant with the road rules as interpreted in the NSW RMS' publications, then he could have completed his turning manoeuvre without being impacted by DENE MEAD's semi-trailer. [223] 1. With regard to perception times, Mr Griffiths conceded that response times could be slower in other than optimal conditions. [224] However, he stated that there was a difference between responding to something and how easy it is to see it. [225] He stated that there are not necessarily changes in perception response times during the day as compared with night, it is more a case of how well illuminated something is or how conspicuous something may be. [226] He conceded that a contrast between what one views and a particular object may affect a perception response time. He agreed that there were other factors which might affect his calculations, including road surfaces, surface condition, tyres, wind resistance, level of surface and the quality of the braking system. [227] However, he stated that:- "Because braking systems are generally well maintained unless there is some hydroplaning and if the surface is well drained then it doesn't affect braking rates that much." [228] 1. Even if a longer perception response time was required, Mr Mead needed to ensure a longer crash avoidance space and slow down significantly in the conditions he was confronted with. The five second response referred to earlier is itself recognised as a minimum depending on conditions. Mr Mead was an experienced driver who clearly knew of it. On the evidence of the visibility conditions I have found I do not accept that the, speed and distance he traveled met the standard of care referred to in Liverpool City Council v Estephan. I accept Mr Griffith's evidence as demonstrating the need for a significantly lower speed. Findings in Relation to Mr Hukins 1. Mr Griffiths conceded that the observations which he made at the time of his inspection related to the time that it would take a B double with a trailer to cross the Hume Highway, contingent on a number of variables. In particular, he conceded that he was not monitoring gear changes, did not measure the lengths of vehicles, did not know whether the vehicles were fully loaded or not loaded, did not note the prime mover models which were towing the trailers, did not make any reference to the prime mover's technical specifications, did not notice the state of repair of the vehicles and did not note the age of the vehicles. [229] 2. He conceded that the question of whether the vehicle was similarly loaded or fully loaded and whether the driver remained in second gear could affect the speed of the vehicle executing the manoeuvre. [230] Mr Griffiths acknowledged that Mr Hukins could not have gone backwards at the intersection but could have remained stationary. [231] He further acknowledged that he could have continued to use his UHF radio to ascertain if another driver was in the area and how far the fog extended. [232] 3. Ultimately, he accepted the overwhelming issue of what the visibility was and how motorists were to respond. He described this, in response to a question, as follows:- "Q. He has to make allowances for those conditions in making a determination as to whether or not to cross? A. Yes, so he has to think through how the other road users should be responding and then the guidance that guided my opinion was the information that when conditions deteriorate and visibility is reduced, that you should only drive as far as you can see ahead. Or that you should be able to stop within the distance that you can see ahead. So when he was in that situation, which was a difficult one for him, then he if he could rely upon other motorists obeying that section or driving in accordance with that section of the guidelines, then he could make his crossing in safety. What he had to do correspondingly was to make sure that he could also stop in the distance that he could see ahead. [233] 1. Then, further:- "Q. I suggest to you that a driver who was stopped at that intersection, to cross the Hume Highway, would not have even been able to reasonably assume that a driver travelling north would have lowered his speed to 100 kilometres per hour? A. That's sort of a behavioural issue. If I was there I would assume that that density of the fog that I could see in front of me extended for a short distance around that intersection. Otherwise, I would assume that other road users were encountering the same density of fog. That's what I would assume as a road user. Q. As an expert in vehicle accidents, you would be aware that road users break the rules every day of the week, don't they? A. Yes. Q. Speeding is one of the ways in which road users break the rules every day of the week, don't they? A. Yes, they do. Q. I suggest to you that to suggest that Mr Hukins was entitled to rely upon drivers travelling north not breaking the speed limit is a very foolish assumption for him to make? A. I believe I answered that question earlier. Basically, on a daily basis drivers have to make assumptions that other road users are going to be compliant." [234] 1. The obligation to give way at a give-way sign is contained within rule 69 of the Australian Road Rules. It is not limited to the circumstances of good visibility. Moreover, at p 56 of the heavy vehicle drivers handbook, the following is stated:- "CROSSING OR ENTERING TRAFFIC You must choose a suitably large gap in the traffic to get across an intersection, entering a new street or merging with traffic. Consider the size and weight of your vehicle when crossing or entering intersections, changing lanes, and making other manoeuvres. Also, that a loaded vehicle will accelerate slower than an empty one." 1. Here, Mr Hukins was setting out into second gear and was to maintain that across the intersection. His visibility was limited. 2. The observation of Ms Spark that she thought that Mr Hukins had plenty of time to cross the intersection caries little weight bearing in mind not only the qualification she gave to it but the limited visibility and the fact that in fog conditions it might be anticipated that traffic densities might be lower. 3. The Pierce vehicle was 24 metres in length. The give way holding line and sign were set back approximately 8 metres and the total length of the crossing and the setback was approximately 16 metres. [235] I accept that this meant that the tail end of the Pierce vehicle had to cross 40 metres before it would have cleared the road and would have had to do so from a stopped position. Mr Hukins indicated in his answer during his second interview with Police that he took off in second gear so that he did not have to change gears during the intersection. [236] Although he denied, in evidence, that he remained in second gear, [237] he could not remember doing so. [238] In the circumstances, I accept that Mr Hukins did remain in second gear, bearing in mind the answer that he gave to the police. 4. Whilst Mr Griffiths made observations in relation to the time such a vehicle would take to cross at 8-10 seconds, there is a level of imperfection in this estimate, bearing in mind Mr Hukins' circumstances and the observations which Mr Griffiths undertook cannot be precisely correlated. [239] Nevertheless, bearing in mind the fact that Mr Hukins' vehicle was loaded, and my finding in relation to the gears, I consider this evidence as only indicative as to minimum time occupied. 5. I accept that Mr Hukins' headlights and clearance lights were activated at the time of the collision. Nevertheless, he should have anticipated, bearing in mind the fog conditions that prevailed, that a driver travelling in the opposite direction would have a restricted opportunity to see him. He was not entitled to rely upon the expected performance of drivers travelling in a north-bound direction and I do not accept that it was reasonable for him to do so. 6. Mr Hukins gave clear evidence that he did not use either of his horns. The evidence does not establish that such use would have avoided the collision. Whilst he asserted that he used his UHF radio, I do not for the reasons given accept that he used it. Despite Mr Hukin's evidence as to what use of his UHF may have secured it is speculative as to whether it would have led to information that might have prevented the accident. 7. I accept that Mr Hukins stopped at a give-way sign and waited. In the circumstances, it was impractical for him to reverse his vehicle to travel in a southbound direction. No doubt he could have, at an earlier time, continued to travel in a south bound direction and proceed to travel on the flyover. He chose not to do so. Having taken that course, he should have waited until it was safe to do so either by sufficient visibility so as to enable him to traverse the intersection with safety or clarifying the position of vehicles travelling in a northbound position (perhaps with the assistance of road authorities). Even though such a delay may have been inconvenient and even protracted I do not accept that to do so would be contrary to Road Rule 125. In the circumstances, I would not regard it as unreasonable. Breach of Duty 1. The principles relevant to ascertaining the relevant risk of harm were summarised in United Church Trust Property Trust v Miller. [240] In the case of the Plaintiff's claim for the purposes of s 5B of the 2002 Act, I accept that the risk of harm was the risk of collision whilst traversing the Hume Highway when visibility was restricted. In my view, the risk was foreseeable and not insignificant. As stated by Campbell J in Zraika v Walsh:- Section 5B (1) (b) requires me to consider whether the risk I have identified is "not insignificant". With respect, I agree with Garling J that this primarily involves an assessment of the probability of the occurrence of the risk: Benic v State of New South Wales [2010] NSWSC 1039 at [101]. At the same time, the well-nigh inevitability of the materialisation of a trivial, transient injury may fall short of the statutory requirement of "not insignificant": a risk of catastrophic injury having a very low probability of occurring may be not insignificant. However in general terms, a risk that is extremely unlikely to occur is insignificant; a risk that is very unlikely to occur may well be "not insignificant". As with all matters going to the assessment of breach, matters of degree and impression, indeed judgment, will be important. [241] 1. Taking into account the factors in s 5B(2) of the 2002 Act, the probability of harm if care were not taken was significant. I take accept this is so in light of the length of the vehicle and the time and distance it would take to cross in circumstances of poor visibility. The likely seriousness of harm was high and the burden of taking the precautions as I have found them was not unduly burdensome in the circumstances. The question of social utility does not arise. 2. Accordingly I accept that the actions of Mr Hukins executing a right hand turn into the Burley Griffin Way was a breach of duty to the Plaintiff. I am satisfied within the terms of s 5D that the breach of duty was causative of the Plaintiff's loss. 3. In considering the question of the negligence of Doble, the starting point for contributory negligence is 5R of the 2002 Act:- "5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time." 1. In Grills v Leighton Contractors Pty Ltd [242] Beazley P (Barrett and Gleeson JJA agreeing) stated:- "[161] The effect of s 5R therefore is to require the court, in determining whether a person is contributorily negligent, to apply the provisions of s 5B and s 5C, being the statutory provisions applicable to determining breach. There may be a question whether any aspect of the common law continues to apply to the determination. However, that question does not need to be determined in this case. [162] As has been remarked in various cases in this Court, there is a conceptual difficulty in applying the general principles identified in ss 5B and 5C to the determination of contributory negligence: the question of breach is directed to whether a person has breached a duty owed to another person; contributory negligence, however, requires a determination whether a person has taken reasonable care for the person's own safety. Once this difference in the fact finding task is recognised, the manner of application of s 5B becomes apparent. Consideration is required to be given to the statutory prescriptions in s 5B. In doing so, it is to be borne in mind that s 5B(2) is not limited to the factors identified in s 5B(2)(a)-(d) and that pursuant to s 5R(2), the standard of care is that of a reasonable person in the position of the plaintiff and the matter is to be determined on the basis of what the person knew." 1. Subject to this, s 5R requires the same standard as in s 5B of the 2002 Act to be applied for negligence alleged in the First Cross Claim and contributory negligence raised in the Amended Defence. In particular they need to be assessed on the same factual basis. [243] 2. In the circumstances, I consider the risk of harm to be the risk of collision whilst traversing across an intersection where vision might be impaired. I regard the risk as foreseeable and not insignificant. 3. Here, the Doble's driver was travelling at an excessive speed in limited visibility brought about by heavy fog. As the handbook itself notes the allowances that need to be made in conditions of fog may need to greater. He knew that he was approaching an intersection clearly identified by a road sign which had a slip lane for vehicles seeking to turn into the Burley Griffin Way. He was familiar with the kind of vehicles that travel in a south bound direction along the Hume Highway even though he may not have personally seen a B double previously attempt to traverse the intersection. Whilst he had right of way it was wrong for him to assert it in the way that he did. 4. A reasonable person would have taken the precaution of slowing down so as to control the speed and direction so that he may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to the presence of the Pierce vehicle. On the findings I have made and the evidence of Mr Griffiths that I accept I am satisfied that Mr Mead did not do so. The probability of harm that would occur if care were not taken was high in a situation of such intersection with the visibility as I have found. The seriousness of the harm was high and the burden of taking such a precaution to avoid the risk materialising was not burdensome. No question of social utility arises. 5. Within the terms of s 5D of the 2002 Act, I am satisfied that the breach of duty of Doble's driver was causative of Pierce's loss. 6. In assessing the contributions, it is necessary to have regard to the principles laid out in Podrebersek v Australian Iron & Steel Pty Ltd [244] where the High Court stated:- "The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man (Pennington v. Norris [1956] HCA 26; (1956) 96 CLR 10, at p 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v. Gypsum Mines Ltd. [1953] UKHL 4; (1953) AC 663, at p 682; Smith v. McIntyre [1958] TASStRp 11; (1958) Tas.SR 36, at pp 42-49 and Broadhurst v. Millman [1976] VicRp 15; (1976) VR 208, at p 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance." 1. In all of the circumstances, I assess the relevant contributions as 40% in the case of Doble and 60% in the case of Pierce. Inherent Risk 1. Both Defences to the Amended Statement of Claim and to the Amended First Cross Claim pleaded reliance on s 5I of the Civil Liability Act 2002 (NSW), citing the conduct of the other party as giving rise to an inherent risk. 2. At paragraph [49] of the Defendant's written submissions, the case for reliance on inherent risk was set out as follows:- "Both parties plead reliance upon s 5I of the Civil Liability Act in their defences. Section 5I(1) provides that a person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk. Section 5I(2) defines inherent risk to be a risk "of something occurring that cannot be avoided by the exercise of reasonable care and skill". An inherent risk has been defined by Tobias JA in the intermediate appeal in Wyong Shire Council v Vairy [2004] NSWCA 247 at [164] as being a risk attaching to a condition or activity that cannot be removed by the exercise of due care. Examples were given of surfers catching a wave that necessarily meant that the surfer is subject to the will of the wave such that they may be unexpectedly dumped. In this instance, the inherent risk was that of crossing the highway from the Hume Highway to the Burley Griffin Way. This necessarily entailed a risk of something occurring that could not be avoided by the exercise of reasonable care and skill. The Burley Griffin Way was clearly designed to allow the traffic to cross the Yass-bound carriageway of the Hume Highway and had been seen by other drivers, including Mr Armour, to be used by B double trailers. There was obviously an inherent risk in conducting such a crossing, and this should provide a complete defence to the Plaintiff's claim." 1. However, in oral argument the case focused on the actions of the Plaintiff's driver, stating as follows:- "The plaintiff's driver entered the heavy fog which reduced visibility to about 50 metres at a point about half a kilometre before the intersection, he chose to drive at a speed which only gave him about 2.25 seconds forward visibility time, and he chose to stay at that speed despite knowing, or inferentially knowing, there was an approaching intersection based on his knowledge of that road and the fact that he must've past a sign post. He adopted the procedure that created the risk. He could've avoided the collision had he exercised reasonable care and skill, and on that basis the defendant is entitled to rely upon s 5I in response to the plaintiff's case, and the plaintiff is disentitled to rely upon s 5I, because this is a collision that could've been avoided if he had exercised reasonable care and skill which is the definition of a material risk. Section 5I(2) of the Civil Liability Act says, "An inherent risk...care and skill". This could've been exercised by reasonable care and skill on the part of Mr Mead if he had slowed down. Mr Hukins exercised reasonable care and skill as would be expected of a driver in his position by waiting, by calling out and then driving, as he said, as quickly as he could. Nothing more could be expected of someone in such a circumstance." [245] 1. The Plaintiff's case in relation to inherent risk was set out at paragraph [74]-[77] of its written submissions. At paragraph [77], the Plaintiff's counsel stated:- "In Paul v Cooke [2013] NSWCA 311 the Court of Appeal determined that if a case can conveniently be decided under the section, it should be [52] - [57], especially at [53]. One must first identify the risk. In this case it was the risk of collision with traffic which may have been travelling along the highway, even at less than the speed limit, but which the cross claimant could not see. It is the risk of a thing occurring [in this case a collision] which the section deals with, not necessarily the actual occurrence. Leeming JA made that clear at [60] and following. Shortly put, it did not matter what the defendant did, there was an unavoidable risk of a collision if he crossed the highway at that time, in that truck in those conditions. Even if he had used his UHF, cars do not tend to have such a system. A truck driver may have responded, but he was still at risk of a car driver colliding with him. Even a truck driver may not have heard or had time to respond on the UHF. The same applies in relation to the other particulars of negligence which are pleaded in the statement of claim, other than taking a different direction or not proceeding. The simple fact is that in full knowledge of the behaviour of traffic on a thoroughfare with right of way, and without any knowledge of what was coming, such that he was effectively blind and deaf to anything coming along the highway, he took a gamble. The risk materialised. The defendant/cross claimant is precluded from recovery." 1. Then, after referring to the Court of Appeal decision of Paul v Cooke, [246] Counsel for the Plaintiff/Cross-Defendant referred to this aspect of the Cross-Defendant's Defence by stating as follows:- "As I read that judgment, if your Honour says this man, effectively in the vernacular, I'm not seeking to be clever, pins his ears back, knew there was a risk and say I'm just going to see if I can get across there as fast as I can. He knew there was an inherent risk, and the risk materialised. Not only can he not sue my client for his damages, because it's a very similar to volenti, he can't get a reduction in my client's damages under contributory negligence principles, because it is a complete answer according to Leeming J, to any claim falling within pt 1A. Without repeating myself, your Honour, I addressed in my written submissions, all of the factors that this particular driver knew, and the background factors; he knew it was a risk, and he went for it, the risk materialised, he can't recover. What Leeming J also says, I think I said in my written submissions, I've put it at the end for convenience, but he says in his judgment, this is what you deal with first so before you would necessarily go through all contributory negligence principles and everything else, if your Honour is with me on that argument, that disposes of their claim at the outset. So I'd ask you not to be misled by where I've actually put it in my submissions. Might save your Honour some time if your Honour is with me on that argument. Unless I can assist you any further, your Honour, those are my submissions." [247] 1. In my view, reliance by both parties on s 5I of the 2002 Act is misconceived. The section reads as follows:- "5I No liability for materialisation of inherent risk (1) A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk. (2) An "inherent risk" is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill. (3) This section does not operate to exclude liability in connection with a duty to warn of a risk." 1. To apply the provision it is necessary to identify the particular risk that engages the section. The risk in that of something occurring that cannot be avoided by the exercising of reasonable care. [248] In Wyong Shire Council v Vairy, [249] Tobias JA referred to an inherent danger (or risk) in the following terms at [164]:- "An inherent danger is a danger (or risk) attaching to a condition or activity that cannot be removed by the exercise of due care: Prast at [35]; Rogers v Whitaker (1992) 175 CLR 479 at 483,491. That is, by exposing oneself to a condition or activity involving an inherent danger one has thereby become subject to the possibility of the danger crystallising. For example, in Prast, Ipp J (at [32]) explained that the risk of being dumped by a wave while bodysurfing was not only obvious, but also inherent since, once a bodysurfer has caught a wave, he or she has, as it were, become subject to the will of the wave which, even in normal surf conditions, may unexpectedly dump them. Accordingly, even the exercise of reasonable care on the part of the surfer will not remove this danger. Rogers provides a further example, but from the perspective of a hidden danger. In that case the risk of surgery to one eye was found to carry with it the inherent danger of both the patient's eyes becoming subject to sympathetic ophthalmia and consequently blindness. This danger, while inherent, would seem to have also been a hidden danger since a reasonable patient without specific medical knowledge would not, as at least a matter of commonsense, be aware of the danger. Hence the necessity for a warning." 1. If one accepts the risk of something occurring as being the risk of a collision, then it becomes necessary to identify the condition or activity from which the materialisation of the inherent risk results, which cannot be avoided by the exercise of reasonable care and skill. In Paul v Cooke, Leeming JA stated at [80]:- "…If a defendant wishes to take advantage of the protection afforded by that section, it is for the defendant to allege it and, I am inclined to think, to prove it. That is to say, I do not consider that it is for the plaintiff in every case where s 5I is raised to negate its applicability (contrary to the ordinary position in criminal legislation where the legal onus ordinarily remains with the prosecutor). That said, it unquestionably remains for the plaintiff to establish s 5D legal causation, and the logical consequence of so doing may (and often will be) to negate s 5I." 1. Whilst other sections of the 2002 Act are confined to the conduct of a particular person, s 5I is not. [250] Accordingly, it is appropriate to consider, in the context of inherent risk, conduct more broadly than that of one party. 2. In Wyong Shire Council v Vairy, Tobias JA distinguished between obvious, hidden and inherent danger, stating at [165]-[167]:- "165 Of particular concern in the context of the present case is the danger associated with diving into water of unknown depth. Generally speaking such a danger will be non-inherent where the depth of water is constant or stable; for example, in a swimming pool. By ascertaining either the depth of the water before diving or by the occupier giving a warning (or an indication of the depth) under such constant conditions, the danger (be it hidden or obvious) can be eliminated all together. 166 Further, a danger may be non-inherent where there exists an object below the surface of the water blocking the trajectory of a dive. Such a danger may perhaps also be hidden if, on the facts of the case, the object is obscured from the diver. One example, considered below, is the United States case of Jackson v TLC Associates (1998) 706 N.E 2d 460. In such circumstances the relevant factor making the danger non-inherent is not the stability of the body of water but the fact that the location of the object can be determined and avoided. 167 However, where the dive is to be undertaken in an environment where the depth of water is subject to change at short notice and without reasonable warning, then the danger (individual circumstances depending) will generally be an inherent danger. That is, under such conditions, the giving of a warning or the checking of the depth of the water prior to diving may not remove the risk. For instance, generally a dive into the sea will be subject to the surge, swell, tide and the continuous rise and fall of the waves. Further, the seabed itself may be undergoing change, sometimes at short notice, as sands are washed about as the sea's moods and tempers constantly fluctuate. In such cases, particular circumstances depending and irrespective of the danger being obvious or hidden, the danger will be inherent." 1. In the present case, however, the facts are clearly distinguishably. Both drivers were in charge of motor vehicles, which they had the capacity to propel, slow down and stop, according to the circumstances. [251] Neither party established an inherent risk which could not have been avoided through the exercise of reasonable care and skill. 2. For these reasons the defences relying on s 5 I of the 2002 Act must fail. Orders 1. For these reasons the orders will be:- 1. Judgment in favour of the Plaintiff in the sum of $103,220.86. 2. Judgment in favour of the Cross Claimant in the sum of $63,815.32. 3. I will hear from the parties as to costs. 4. The exhibits are to be retained for 28 days. ********** Endnotes 1. Hereinafter referred to as "Doble" 2. [3] Exhibit E 3. Hereinafter referred to as "Pierce" 4. T 29.50 5. T 135.23 6. T 135.33-136.1 7. T 136.22 8. See Amended Statement of Claim at [10] 9. Amended Defence at [8] 10. Amended Defence at [8] 11. See Amended Statement of Claim at [11] 12. Amended Defence at [9] 13. Hereinafter referred to as "the 2002 Act" 14. See Amended Defence to the First Claim at [13] 15. T 10.3, T 25.14 and T 99.7; see also Defendant's submissions dated 31 July 2015 at [1] 16. (1992) 16 MVR 198 17. at [200] 18. at [206] 19. (1994) 20 MVR 182 20. [1967] 118 CLR 424 at [427] 21. [1995] NSWCA 376 22. [2012] NSWCA 267 at [34] 23. [2001] HCA 48; see also T 280.49-283.45 24. [2009] NSWCA 161 25. [2014] NSWCA 94 26. at [55]-[56] 27. (unreported) No 4. 12 July 1990 Supreme Court of South Australia at [3] 28. (2000) 32 MVR 102 29. Exhibit 3 and 4 30. Exhibit G 31. (1959) 101 CLR 298 32. [52] of the Plaintiff's written submissions and T 294.36-295.40 33. JD Heydon, Lexis Nexis, Butterworths, Sydney 10th Edition, p 39, at [1215] 34. T 202.10-.30 35. Exhibit A on the Voir Dire 36. T 202.10 37. T 203.30 38. [1976] 1 NSWLR 191 at [201]-[202] 39. [2007] NSWCA 349 40. T 46.11 41. T 55.30 42. T 56.17 43. T 32.39 44. T 240.29 45. T 241.29 46. T 257.20-259.15 47. T 260.21 48. T 258.50-.259.3 49. Plaintiff's Written Submissions at [51] 50. See Dasreef Pty Ltd v Hawchar [2010] NSWCA 154 at [56] 51. T 46.50 52. T 50.40 53. T 51.3 54. T 87.36 55. T 104.1 56. T 104.8 57. T 104.20-.26 58. T 104.48 59. T 105.6 60. T 107.36-.42 61. T 107.44-108.3 62. T 108.26 63. T 111.37 being the sign notifying the upcoming turn to the Burley Griffin Way 64. Exhibit 5.3 65. T 31.44 66. T 32.16 67. T 57.46 68. T 88.30-.39 69. T 88.50 70. Being the Plaintiff's vehicle 71. T 89.8 72. T 89.10 73. T 89.14 74. T 89.21 75. T 89.22 76. T 89.36 77. T 89.28 78. T 95.21 79. T 90.34 80. T 91.8 81. T 91.16 82. T 91.23 83. T 92.48 84. T 93.2 85. T 93.15 86. T 93.26-.38 87. T 94.11 88. T 94.18 89. T 94.23 90. T 94.36 91. T 95.33 92. T 96.4 93. T 96.15 94. T 96.35 95. T 97.5 96. T 97.35 97. T 97.38-98.12 98. T 99.41 99. T 99.46 100. T 99.50 101. Exhibit C 102. T 101.17 103. Exhibit 3 104. Ibid at [4]-[5] 105. Exhibit 4, pp 12-13 (T 12.21-13.44) 106. T 118.11-.18 107. T 119.3 108. T 119.8 109. T 125.45-126.31 110. Exhibit 1 at [4]-[5] 111. T 63.37 112. Exhibit C 113. T 66.11 114. T 66.35 115. T 66.6 116. T 80.28 117. T 76.36 118. T 76.39 119. T 76.42 120. Exhibit 2 at [4] 121. T 80.35 122. T 81.3 123. T 81.7 124. T 81.33 125. Exhibit C 126. Exhibit C 127. T 82.48 128. T 83.8 129. T 138.29 130. T 136.36 131. T 142.30 132. T 142.49 133. T 143.29 134. T 143.36 135. T 144.27 136. T 146.47 137. T 147.6 and 173.44 138. T 145.34 139. T 148.18 140. T 148.44 141. T 149.42 142. T 161.43 143. T 163.23 144. T 166.21 145. T 166.44 146. T 168.28 147. T 168.36 148. T 169.7 149. T 174.5 150. T 174.10 151. T 192.37 152. T 192.5-.11 153. T 128.26-.40 154. T 130.20-.25 155. Exhibit 4 156. Exhibit 4, p 11.28-36 157. T 118.11-.18 158. T 117.40-.118.2 159. T 290.49-291.21 160. Plaintiff's written submissions at [24] 161. T 94.14 162. T 109.15 163. T 110.10-.31 164. T 139.47 165. T 138.50 166. T 139.11 167. T 139.15 168. T 139.29 169. T 137.46 170. T 138.20 171. T 140.1 172. T 185.6-.12; T 190.5-.20 173. T 190.25-.41 174. T 243.22 175. T 248.16 176. T 257.20-259.15 177. T 95.33 178. T 96.4 179. T 220.21 180. T 184.15-.47; T 191.8-.11 181. T 283.48 182. Exhibit A at [7] and [8] 183. T34.14-.15 184. T 141.21 185. T 144.49 186. T 145.44 187. Exhibit H, at Q11, Q44 and Q51-54; T 174.30-.47 188. Exhibit J, at Q20 and Q70 189. T 175.1 190. T 177.14-.45 191. T 193.42-194.32 192. T 164.23 193. T 164.38 194. T 154.27-.33 195. T 154.43 196. T 170.10 197. T 170.40-.50 198. Exhibit H, p 67 199. T 166.26 200. T 193.13-.20 201. T 222.27 202. T 222.31 203. T 260.47-261.3 204. T 261.32 205. T 261.49-262.20 206. T 222.38 207. Exhibit 5.2, p 77 208. Exhibit 5.2, p 78 209. Exhibit 5.2, p 78 210. Exhibit 5.2, p 206 211. Plaintiff's submissions at [23]-[25] 212. Plaintiff's submissions at [46] 213. (1990) Aust Torts Reports 81-028 214. [2003] NSWCA 152 at [42]-[43] 215. T 38.35 216. T 41.32 217. Exhibit 5.1,p 3.21 218. Exhibit 5.1,p 3.40 219. T 292.32 220. T 237.1 221. This word was used in Exhibit 5.2 at p 17 as amended by Exhibit 5.3 222. Exhibit 5.2, p 17 223. Exhibit 5.2, p 21 224. T 228.32 225. T 228.35 226. T 228.37 227. T 237.1-238.30 228. T 238.20 229. T 250.5-.27 230. T 250.29-.37 231. T 251.35-.40 232. T 251.46 233. T 252.36-.47 234. T 255.30-256.7 235. Exhibit 5.2, p 12 236. Exhibit J at Q.91 237. T 181.36 238. T 181.39-.43 239. See discussion in I Frecklelton and H Selby, Expert Evidence –Law, Practice, Procedure and Advocacy, Thomson Reuters, 5th Edition, 2013 at [7.5.490] 240. [2015] NSWCA 320 per Leeming JA (with whom Basten and Simpson JJA agreed) at [100]-[122] 241. [2015] NSWCA 485 at [79] 242. [2015] NSWCA 72 243. Cheng v Geussens [2014] NSWCA 113 244. [1985] HCA 34 at [10] 245. T 276.4-.22 246. [2013] NSWCA 311 247. T 294.15-34 248. Civil Liability Act 2002 (NSW), s 5I(2) 249. [2004] NSWCA 247 250. Paul v Cooke [2013] NSWCA 311 per Leeming JA at [72] 251. See Cooke v Roberts 12/07/1990 SCSA 914/1990 at [2] per Duggan J 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. Decision last updated: 08 December 2015