- Unreported Judgment
SUPREME COURT OF QUEENSLAND
Berwick v Clark & Anor  QSC 116
MATTHEW JOHN BERWICK by his Litigation Guardian, KATELIN MAREE BERWICK
8290 of 2016
Supreme Court of Queensland at Brisbane
28 May 2018
16, 17, 18 and 19 April 2018
TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – LIABILITY OF DRIVERS OF VEHICLES – where the first defendant’s car collided at night with the plaintiff’s car as she turned across his path at an intersection – whether the plaintiff’s headlights were off – whether the first defendant failed to keep a proper lookout and yield to an oncoming vehicle – whether the plaintiff was driving at an excessive speed
TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – PARTICULAR CASES – ROAD ACCIDENT CASES – where the first defendant failed to exercise the high degree of vigilance required of a driver, contemplating a turn across the path of an oncoming vehicle – where the plaintiff was driving at an excessive speed – how responsibility should be apportioned
Transport Operations (Road Use Management – Road Rules) Regulations 2009 (Qld), r 72(5)
Anikin v Sierra  HCA 64; (2004) 79 ALJR 452 cited
Fox v Percy (2003) 214 CLR 118; 197 ALR 201; HCA 22 cited
Marien v Gardiner  NSWCA 396; (2013) 66 MVR 1 cited
Nominal Defendant v Stephens  NSWCA 312 cited
Podrebersek v Australian Iron & Steel Pty Ltd  HCA 34; (1985) 59 ALJR 529 cited
R v Bjordal (2005) 93 SASR 237 cited
R v Stephenson  QCA 519 cited
Read v Nominal Defendant  QSC 297 cited
Schill v O’Rourke (1985) 3 MVR 137 cited
Turkmani v Visvalingam  NSWCA 211; 53 MVR 176 cited
S C Williams QC, L T Barnes and S J Williams for the plaintiff
G W Diehm QC and S R Cilento for the defendants
McKeering Down for the plaintiff
Hall & Wilcox for the defendants
- On 9 August 2012, shortly after 6.50 pm, the plaintiff was driving his Mazda 6 northbound on Lacey Road, Carseldine. At the same time, the first defendant was driving home, south along Lacey Road, intending to turn across the northbound lane into Raynbird Place. As she drove across the intersection, her Mazda 2 collided with the plaintiff’s Mazda 6. The Mazda 6 hit a pole and the plaintiff suffered catastrophic injuries. The Mazda 2 spun backwards and the first defendant was severely injured.
- The plaintiff alleges that the first defendant negligently drove her car across his path by:
- failing to keep a proper lookout in circumstances in which she was required to exercise “the high degree of vigilance” required by a driver intending to turn across the path of an oncoming vehicle; and
- failing to yield way to the plaintiff’s car, in breach of Regulation 72(5) of the Transport Operations (Road Use Management – Road Rules) Regulations 2009.
- The second defendant, the compulsory insurer of the Mazda 2, defends the claim and says the first defendant was not negligent because the Mazda 6 was not able to be observed by her. It says the Mazda 6 was travelling in dark conditions without illuminated headlights at an excessive speed. It also alleges contributory negligence on the basis that the plaintiff was driving:
- on a dark, moonless night with limited street lighting, without his headlights illuminated;
- at a dangerously excessive speed; and
- failed to keep a proper lookout, observe the Mazda 2 and lower his speed.
- The plaintiff’s multiple injuries included very severe head injuries. He is permanently disabled. He sustained a 97 per cent whole person impairment as a consequence of his head injuries and cognitive deficit. He has spastic quadriparesis, various orthopaedic injuries and is confined to a wheelchair. He has no verbal communication ability. The quantum of his claim was compromised on the first morning of trial. Because of his cognitive deficits the plaintiff was not able to give evidence about the circumstances of the accident.
- He called witnesses, including an eye witness, Ms Iose, whose car was stopped at the T-shaped intersection of Raynbird Place and Lacey Road. She looked to her right and saw a vehicle with its headlights on travelling north. She looked to her left and saw a car, which must have been the Mazda 2, travelling south in the turning lane with its indicator on. Ms Iose then looked down to change a cassette tape and heard the sound of the collision between the Mazda 6 and the Mazda 2.
- The first defendant gave evidence of her approach to the intersection and effecting the turn. She saw the headlights of a car approaching and thought that it was a long way off, and far enough to allow her to make the turn.
- Three substantial issues arise:
1. Were the Mazda 6 headlights on?
Subsidiary issues are:
- Did Ms Iose see the Mazda 6 headlights?
- Did the first defendant see the Mazda 6 headlights?
- If they did not see the Mazda 6 headlights, then which vehicle’s headlights did they see?
The last question raises what I will describe as the second defendant’s three-car theory: that Ms Iose saw the headlights of a car in front of the Mazda 6, and the first defendant saw the headlights of a car following it. The three-car theory, with two cars with their headlights on, has to explain how Ms Iose and the first defendant each recall seeing only one northbound car with its lights on. Naturally, the plaintiff’s submissions reject the three-car theory, and contend that it is far more probable that Ms Iose and the first defendant saw the headlights of the same car, and that the first defendant simply misjudged matters and turned into the path of the Mazda 6.
The first defendant’s case that the Mazda 6’s headlights were off before the collision is supported by the fact that accident investigators found the headlight switch at the end of the indicator column in an off position.
The plaintiff’s case that the headlights were on relies on:
- the independent observations of Ms Iose and the first defendant of a northbound vehicle with its lights on immediately before the collision; and
- uncontradicted evidence that the Mazda 6 headlights were on when it left Red Hill on the plaintiff’s journey home that evening.
The plaintiff submits that explanations exist as to why the light switch was found in an off position. One is that the collision between the cars or the Mazda 6’s impact with the utility pole resulted in the switch being turned off. Another is that the lug on the light switch was knocked by heavy equipment used to cut open the vehicle and rescue the plaintiff, whose feet were trapped in the footwell of the vehicle.
2. What was the speed and direction of the Mazda 2 immediately before the collision?
This issue is relevant to the observations of the first defendant immediately before the collision, the primary issues of negligence and contributory negligence and to the next factual issue.
3. What was the speed and direction of the Mazda 6 immediately before the collision?
Neither Ms Iose nor the first defendant gave a precise estimate of the speed of the northbound car. Ms Iose told a police investigator on 22 August 2012 that she could not judge at what speed the northbound car was travelling because she could only see the headlights. She gave a written statement on 26 June 2013 which estimated the car’s speed at between 60 and 70 kilometres per hour. Her evidence at trial was that it was “normal, like 60 something”.
Any assessment of the speed of the Mazda 6 depends upon:
- resolution of the headlights issue;
- assessment of the evidence of eye witnesses about speed, distance and timing;
- “expert evidence”; and
- any inferences that can reasonably be drawn from the extent of damage to the vehicles.
Preview of expert evidence
- For reasons to be given, the “expert reports”, to the extent they contain admissible opinion evidence, are of slight probative value. Any expert estimate or calculation of the pre-accident speed of the Mazda 6 depends upon numerous assumptions, including:
- the pole impact speed of the Mazda 6;
- the approach speed of the Mazda 2;
- the way in which the Mazda 6 travelled between the point of impact and its impact with the kerb and nearby pole on the corner of Lacey Road and Raynbird Place, including for how long it was airborne or skidded before its left wheels hit the kerb and the car body hit the pole;
- the way in which the Mazda 2 travelled after impact, including the way in which its shell and its dislodged engine travelled to their respective resting points;
- the level of friction that was achieved after impact between the road surface and the Mazda 6, the Mazda 2 shell or tyres and the Mazda 2 engine.
- Mr Keramidas, who provided numerous reports to the second defendant, made a number of assumptions about these and other matters, some of which are unsupported by evidence. Leaving aside concerns about Mr Keramidas’ reports not displaying the qualities of detachment and objectivity to be expected of an expert in such a case, and the unstated or inadequately explained basis for certain assumptions he made, his calculations of the speed of the Mazda 6 were based on many assumptions. An accident reconstruction opinion which depends on so many assumptions and variables may render the opinion unreliable and inadmissible.
- The parties were content for me to not make a ruling on the admissibility of Mr Keramidas’ reports, responsive reports of Dr Gilmore, their joint expert report and parts of a Queensland Police Service crash analysis report in which opinions were expressed, and make such use of them as I considered appropriate.
- The calculations or estimates arrived at by Mr Keramidas depend upon momentum equations to arrive at the pre-impact speed of the Mazda 6. The probative value of any such opinion depends on the assumptions that are made and, in the absence of reliable eye witness evidence or definitive physical evidence about these variables, the speed of the Mazda 6 cannot be reliably estimated by an expert using such equations. For example, the equations used by Mr Keramidas depended upon an assumption being made about the post-impact speed of the Mazda 6 as it hit the pole. I agree with Dr Gilmore’s analysis that many of the assumptions made by Mr Keramidas are speculative and not founded on evidence. The police crash analysis report did not use such a momentum approach to calculate the impact speeds of both vehicles, recognising the difficulty of using such an approach due to the secondary collision of the Mazda 6 with the pole.
- As for the calculations made by Mr Keramidas, Dr Gilmore’s position remains that much of the information necessary to allow an accurate estimate of the pre-impact speed of the Mazda 6 is unavailable. If, however, one adopts more conservative assumptions than Mr Keramidas adopted, the pre-impact speed of the Mazda 6 can be shown to be less than 70 kilometres per hour. Depending upon the assumptions used, figures can be produced anywhere in a range between less than 70 kilometres to up to 120 kilometres per hour. Given the extent to which evidence is available to support the various assumptions, I agree with Dr Gilmore that it is not possible to calculate an accurate pre-impact speed of the Mazda 6 other than to say that it fell somewhere within a broad range of between 70 and 120 kilometres per hour. It is impermissible to use such a range to suppose that the actual pre-impact speed of the Mazda 6 was probably somewhere at a midway point in that range.
- For these reasons, and for many of the reasons advanced by the plaintiff in his submissions about the admissibility of the expert reports, I have concluded that the expert opinions about the speed of the Mazda 6, if admissible, are of slight probative value.
Intuitive responses to the extent of damage
- Before turning to the evidence of witnesses about their observations, it is appropriate to note the inference which is naturally drawn from photographs and other evidence of the aftermath of the collision. The Mazda 6 has been described as ending up “wrapped around” the pole. It slowly rotated and slid at some stage after the collision so that its left wheels hit the kerb on the north-western corner of the intersection, the car tilted and hit the nearby pole. It did not hit the pole in a direct sideways movement. It was not a side impact into the door area of the kind displayed in simulated tests. Instead, the Mazda 6 hit the pole at an angle causing its upper left-hand side and roof to crumble. The momentum of the front part of the car, including its engine, caused the body of the car to bend extensively around the pole.
- The impression gained from looking at photographs of the Mazda 6 after the collision is that it must have been travelling at a high speed. However, just how high that speed was, and whether it vastly exceeded the speed limit of 70 kilometres per hour, cannot be decided on the basis of impressions or guesses. It depends upon an assessment of the evidence of eye witnesses (including the absence of any eye witness evidence that the car was travelling at an excessively high speed), the drawing of reasonable inferences from the damage sustained to each vehicle and what can be ascertained from the accident scene about the post-collision movements of the cars. The expert evidence is useful in identifying the range of factors that need to be considered in arriving at any estimate of the pre-accident speed of the Mazda 6. There is a need for caution in reaching any conclusion about speed on the basis of an intuitive response to photographs of the Mazda 6 after the collision that, to sustain that much damage, the car must have been going at least 90 kilometres per hour or some other speed. Consideration of the evidence, including the fact that the point of impact on the nearby pole was in a vulnerable part of the body of the Mazda 6, leads to the obvious conclusion that this was a high speed accident. What speed depends on an assessment of all of the admissible evidence and the drawing of reasonable inferences. It begins with the eye witness evidence.
The plaintiff’s drive north
- The plaintiff grew up on a farming property near Dalby, completed his secondary studies and at the time of the accident was enrolled in a Bachelor of Business degree. The accident occurred just after his nineteenth birthday. He was a talented footballer and was contracted to play with the Brisbane Broncos in its under 20s side. By August 2012 he was living at Bracken Ridge, an outer suburb on Brisbane’s north. On the afternoon of 9 August 2012 he attended a training session at the Brisbane Broncos training ground at Red Hill. After a recovery session he and some teammates left the training area and walked to the carpark, intending to leave in their respective cars. One of his friends, Mr Cameron Cullen, was with him.
- Mr Cullen’s uncontested evidence was that he, Daniel Alvaro and the plaintiff left the spa area and walked to the carpark together. The plaintiff had parked his Mazda 6 about ten metres from the door and Mr Cullen had parked his car further away towards the exit of the carpark. The area where Mr Cullen had parked his car was dimly lit. The plaintiff and Mr Cullen went to their respective vehicles. The plaintiff then drove his vehicle to where Mr Cullen was standing, and pulled up for a chat. Mr Cullen observed the Mazda 6’s approach with its headlights illuminated. It was dark and the headlights shone in his face. The Mazda 6 came to a halt and Mr Cullen spoke to the plaintiff through the driver’s side window. The plaintiff then drove off along a long, thin exit lane. Mr Cullen was not cross-examined about these matters. He was an impressive witness with a good recollection of detail, such as the hat the plaintiff was wearing as he left. The second defendant does not contest his evidence. I find that the Mazda 6’s headlights were on when the plaintiff started his journey north.
- That journey started from the training ground at Fulcher Road, Red Hill. The plaintiff had an established route for journeys between the Broncos training ground and his home. Another teammate, Mr Kodi Nikorima, lived in the same area. In 2012, after Mr Nikorima joined the Broncos, they would often share the driving to and from the Broncos’ ground. At other times one of them might have another commitment, such as attending lectures. That was the case on 9 August 2012 when Mr Nikorima drove his own car. Mr Nikorima’s evidence about the times when he and the plaintiff drove together was that they would always drive the same route between Red Hill and Bracken Ridge. Mr Nikorima’s evidence was that after leaving Red Hill they would take some side streets by way of a shortcut, and then travel on major roads, including Maundrell Terrace which joins Gympie Road near the Aspley Hyperdome. They would then head north along Gympie Road, turn right into Beams Road at Carseldine and then turn left onto Lacey Road.
- Lacey Road serves as a connecting road and carries a reasonable volume of traffic at peak hours when commuters use it. The speed limit along it was 70 kilometres per hour. It was poorly lit. Exhibit 24 depicts occasional overhead street lighting along Lacey Road, including a street light at the intersection with Raynbird Place. The police report describes the approach along Lacey Road in both directions as being “relatively dark with observed intermittent areas of darkness”. At the time of the collision there was no moonlight. The weather was fine and the road was dry.
- A witness, Mr Dean Simmons, recently measured the distance along Lacey Road from the Beams Road corner to the intersection on his odometer and thought that it measured 1.38 kilometres. Counsel for the second defendant suggested to him that it was 1.03 kilometres, but Mr Simmons thought that it was further than that. The police report does not state the distance and the second defendant’s figure relies on a scale from a UBD street directory. I proceed on the basis that it is at least a kilometre from the corner of Beams Road and Lacey Road to the intersection of Lacey Road and Raynbird Place.
- The second defendant, whilst accepting that the Mazda 6 left Red Hill with its headlights on, raises the possibility that the plaintiff stopped along the route to purchase petrol, a drink or food and neglected to turn his lights back on. There is no direct evidence that he made any such purchases or evidence in the form of food or drink packaging in the car’s wreckage from which such an inference can be drawn. The plaintiff submits that the suggestion that the plaintiff stopped along his route is no more than speculation and that it is more probable than not that he did not do so. The inference the second defendant seeks to draw is supported, however, by the fact that the light switch was in the off position after the plaintiff was rescued from the vehicle and forensic crash investigators inspected its condition.
- The plaintiff’s case is that, if it be assumed for the purpose of argument that the plaintiff stopped along his route home and did not turn his lights back on, then this would have been detected by him during the balance of the journey. His journey was not short. Dr Gilmore measured it at approximately 17 kilometres, and drove it on Thursday, 14 August 2013 when there was no moonlight, leaving Red Hill at about 6.20 pm and arriving at the site of the collision at about 6.55 pm. He took photographs of the illumination along Maundrell Terrace and along Lacey Road, with and without headlights. He also took a video of the traffic encountered enroute and of the ambient light on the various roadways. Maundrell Terrace carries a significant volume of traffic.
- The plaintiff’s case is that if he had travelled along this route without lights on when it was dark in the half hour or so before 6.55 pm and there was no moonlight, he would have been alerted to the fact that his headlights were not switched on by other motorists drawing attention to this or by an inability to see the road ahead, particularly along the dark stretch of Lacey Road. There would have been much less traffic heading south along Lacey Road at that time of night than along major roads such as Maundrell Terrace. Incidentally, this observation draws some support from the photographs appearing in Appendix 2 to Dr Gilmore’s report dated 26 August 2014.
- As to the plaintiff’s ability to notice that his headlights were not switched on, there is no suggestion that the plaintiff was affected by drugs or alcohol. Despite his age, he was an experienced driver. He began to drive at a young age on his family’s farm, driving small body trucks and tractors. He obtained a learner’s permit at 16. He drove long distances, both in order to qualify for his licence and to drive to Brisbane for training with the Broncos each Monday afternoon, before returning to Dalby in the evening. He played for a Toowoomba team and would drive to and from Toowoomba. After he obtained his provisional licence, he would drive to and from football training and also to attend university. During 2012 Mr Nikorima accompanied the plaintiff on drives to and from Broncos training at Red Hill. He regarded the plaintiff as a good driver, and did not observe the plaintiff to speed. When they travelled together he preferred the plaintiff to drive and was happy to drive with him. Most relevant for present purposes, the plaintiff’s extensive travel between Brisbane and Dalby, and also to Toowoomba, gave him substantial experience of driving at night.
- Mr Dean Simmons was driving home on the evening of 9 August 2012 along the same northbound route along Gympie Road and Beams Road before turning into Lacey Road. His evidence and the police evidence is that after that turn Lacey Road is straight and relatively flat. Mr Simmons says that shortly after turning into Lacey Road when he was about 60 or 80 metres from the Beams Road corner, he saw “an amazing bright white light”. What he saw was the impact of the collision about a kilometre away. He continued along Lacey Road. Mr Simmons’ evidence was that it was “an extremely quiet night”, which I took to mean that there was little or no traffic travelling along Lacey Road at that time of night. There was no evidence that he saw the tail lights of any car as he approached the collision scene. He believed that he was the first person on the scene, but not long after other people and a police patrol arrived. After arriving at the scene Mr Simmons drove past the pole and stopped his Land Rover. He obtained a fire extinguisher out of his car (although there is no evidence that he used it) and tried to communicate with the plaintiff. He also saw the first defendant injured in her car. Like others, Mr Simmons called 000. These 000 calls were received at 6.54 pm.
- Ms Iose is of Samoan heritage and had lived in Australia for a few years at the date of the accident. At that time she worked as a domestic cleaner at an aged care home. On 9 August 2012 she was on her way home from work and drove along Raynbird Place to its intersection with Lacey Road. She stopped at the T junction where she was required to give way. It is uncontroversial that:
- she stopped her car;
- she looked to her right and saw a car with headlights on travelling north;
- she then looked to her left and saw possibly two cars, one of which was in the vicinity of the intersection where there is a turning lane, and that car had its indicator on;
- having seen the two cars approaching the intersection, she looked down to change a tape in a cassette player and heard a loud bang;
- she looked up immediately and saw the Mazda 6 pass close in front of her and crash into the nearby utility pole;
- at some point she reversed her car back up Raynbird Place and remained in it, traumatised; and
- some time later she spoke to a bystander and asked him to call 000 because she did not have a telephone with her to do so.
- Ms Iose is a mature-aged woman and she required the assistance of an interpreter when giving evidence. She was interviewed by Senior Constable Bach without the assistance of an interpreter on 22 August 2012. The written record of that interview is not in the form of direct quotations of questions and answers. On 26 June 2013 Ms Iose signed a statement in response to a request by the plaintiff’s lawyers. Ms Iose was obviously traumatised on the night of the accident. She returned to the vicinity of the accident scene in the following days. Shortly before the trial she attended the scene again in the company of the plaintiff’s legal advisers.
- Some inconsistencies emerged between the police notebook statement of 22 August 2012, the one-page statement dated 26 June 2013 and her evidence at trial. The 2012 and 2013 statements give the impression that she only saw the northbound vehicle once and that was when it was a distance of about 40 metres from her. The plaintiff’s case is that neither statement explored the issue of when she first saw the northbound car, and this deficiency arises from her English language limitations and the fact that she did not have the assistance of an interpreter.
- Her evidence at trial was that the first time she saw the northbound vehicle it was at about the third electricity pole on her right, which she marked in a photograph (Exhibit 15). This is a distance of about 240 metres. She said that when she saw the car her car was stopped. She wanted to change the tape in a cassette player that was in the console of her car, so she looked down. Having done so she looked up again and observed for the first time a car approaching from the left. It had its headlights and indicators on. Although her evidence-in-chief, given through an interpreter, was not entirely clear on this point, her evidence was that after looking at the car to her left with its indicators on, she looked to the right again and saw the car coming from her right a second time. She says that she then looked back at the tape and heard the bang of the accident.
- When asked to estimate the speed of the car that had been coming from her right and that she saw twice, she said:
“I look at the car still on the normal, like, 60 something.”
Ms Iose did not give any evidence of another car with headlights following the car which she saw to her right. She saw only one car with headlights on travelling north. Her evidence, both in statement form and in her oral evidence, puts this car in close proximity in place and time to the southbound car that was indicating. In other words, she saw the northbound car at about the same time as she saw what must have been the Mazda 2 preparing to make the turn.
- Ms Iose said that after hearing the bang and looking up and seeing smoke, she did not see any cars on the road.
- She was tested under cross-examination about the evidence she gave in-chief about two occasions when she looked down to the tape and whether she saw the car on her right twice. She agreed that she saw the car on her right, then saw the car on her left, then looked down to change the tape and that is when she heard the bang of the collision. When asked about when her memory of having looked down twice came to her, she said that sometimes when she stayed at home her memory came back to her, but she was not able to recall when she first remembered looking down twice.
- As to her recollection of the speed at which the northbound car was travelling, and what was recorded about that matter in the police notebook on 22 August 2012, she stated it was the best answer she could give to the police at the time. She later explained with the benefit of the interpreter that, when she spoke to the police on 22 August 2012, she was “still sort of traumatised by what happened” and that she did not think very clearly when the police called.
- In re-examination she said that she could not now recall all the questions that the police asked that day, but said that the police had not asked her how many times she looked at the tape player or how many times she looked at the car coming from her right. Instead, her recollection is that she was asked by police if she checked the right side and checked the left side.
- Ms Iose impressed me as an honest witness. My assessment of her reliability must take account of her limitations with the English language and the fact that, particularly in 2012, she would not have been likely to give a fluent or full account to police of what happened. Instead, without the aid of an interpreter, her recollection would have needed to have been prompted by specific questions. Senior Constable Bach could not recall the circumstance of the interview and accepted that the police notebook was not a verbatim account of Ms Iose’s words. For example, where it records, “I couldn’t judge what speed the car was coming at because I could only see the headlights”, this was not necessarily Ms Iose’s words. It may have been the substance of an affirmative response to a question along those lines. I doubt whether Ms Iose can recall much about the detail of the police interview and I doubt whether she can now specifically recall whether she was asked by police how many times she looked at the tape player. Unfortunately, the notebook is not in the form of questions and answers and there is no audio recording of the interview. I conclude that Ms Iose had difficulty in giving a full and fluent account of matters in that police interview. She had difficulty with spoken English and I accept her evidence that she was still fairly traumatised by what she had seen. She did not have the benefit of an interpreter.
- The police notebook records Ms Iose saying that the car which she saw heading north “was about 40 metre from me when I saw it”. That estimate may not have been tested by the police officer conducting the interview, for example, by asking Ms Iose to point out something that was 40 metres away from her at the time she was interviewed. Therefore, limited reliance can be placed upon it. This is particularly so because in her evidence Ms Iose explained, through the interpreter, that she did not understand how long 40 metres was. At the time of the police interview she thought she understood what 40 metres was and that is why the figure of 40 metres was put down both in the police statement and the statement she gave to the solicitor. She also told the solicitor that the car indicating to turn right from Lacey Road into Raynbird Place “was moving at a slow speed and was about 20 to 30 metres away from me when I saw it”. However, it is not clear from her cross-examination whether she had a good understanding of a distance of 20 to 30 metres when she spoke to the solicitor about the car coming from the left. She said that she understood that it was 20 to 30 metres away because “the car is far away so I’m just figure out it’s 20 …”
- A similar imprecision probably affects the estimate she gave to the solicitor in June 2013 in which she said “I estimate that from the time I saw the car on my right and looked down to the time I heard the bang was about four to five seconds”.
- I turn to assess the reliability and meaning of the accounts given by Ms Iose about the speed of the northbound car which she saw with headlights on. A statement to the police on 22 August 2012 to the effect that she could not “judge what speed the car was coming at because I could only see the headlights” may not have been in her own words. In any event, they are capable of meaning that she could not judge the precise speed, but could tell that it was not going very slow or very fast. They are also open to the interpretation that she had no idea at all how fast the car was going. By the time she spoke to the plaintiff’s solicitor in June 2013, and having reflected on the matter, she estimated that the speed of the vehicle was between 60 and 70 kilometres per hour. That one-page statement incorporates much of what was recorded in the police notebook and does not explain the basis upon which she estimated the speed. At trial, when she was in a position to give her recollection with the benefit of an interpreter, but with a dimmed recollection of matters years after the event, she said the speed of the car was “normal, like 60 something”.
- The plaintiff submits that no challenge was made in critical respects as to Ms Iose’s observation of the car to her right, that its headlights were illuminated or her assessment of its speed as “normal”. However, in cross-examination, she agreed that when speaking to the police on 22 August 2012, she told them she did not actually know what speed the car was travelling. It was the best answer she could give police. Instead of directly putting to Ms Iose that she was simply wrong in her 2013 and trial estimates of the speed of the car, the second defendant relies upon the absence of such an estimate in the original statement to police and reasons to doubt the reliability of Ms Iose’s later estimates.
- A significant issue to emerge from Ms Iose’s evidence at trial is her first seeing the car near the third pole to her right (a distance of about 240 metres), and then seeing it again after she had looked down to her cassette player. The issue is whether her recollection of first seeing the car at that place is a reconstruction, or the product of not being specifically asked that question and the circumstances under which she was interviewed by police. In my view, it is entirely possible that due to the absence of an interpreter and her emotional state, she gave an abbreviated recollection on 22 August 2012 of what she saw, the focus of which was seeing a car to her right and a car to her left immediately before the collision. It is entirely possible that she did not volunteer to police when she first saw the car to her right and was not specifically asked about that matter. It was not explained why any such additional detail was not given when another statement was taken in June 2013. One inference is that she had similar problems with communication, was unassisted by an interpreter and the topic was not properly explored. However, there is no explanation as to why these details of when she first saw the car and whether she saw it more than once were not explored in that interview.
- While it is entirely possible that Ms Iose was not asked about when she first saw the car to her right, and did not volunteer this information until close to trial, I should adopt a cautious approach to the matter and recognise the possibility that she has honestly, but mistakenly, reconstructed a recollection of seeing the car to her right twice. Given the passage of time and the risk of reconstruction, I decline to find that Ms Iose looked down to her cassette player twice, once after seeing the vehicle to her right the first time and the next time after seeing it much closer. I do so in circumstances in which there is a need for caution, despite the explanations for why she did not tell police about these matters in 2012.
- Despite my caution in this regard, there are reliable aspects of Ms Iose’s evidence. Having assessed the 2012 and 2013 statements and her evidence at trial, I find that she:
- stopped at the intersection, looked to her right and saw a car with headlights on travelling in the northbound lane;
- then immediately looked to her left and saw the Mazda 2 in the turning lane close to the intersection with its indicator on;
- then looked down and heard the bang of the collision.
A reasonable inference from her observations is that the collision was between the car which she had just seen to her right and the Mazda 2. This inference is not undermined by the imprecision in her estimates of distance in which she gave estimates of 40, 30 and 20 metres. The relevant point is that both cars were fairly close to the intersection, but the Mazda 2 was closer than the northbound car.
- Other significant matters emerge from Ms Iose’s evidence. She did not give evidence of seeing two cars with headlights on to her right. If there had been then, given the position at which she stopped her car so as to comply with the give way sign and to look right, she probably would have done so. The road to her right was flat and straight. According to the second defendant’s three-car theory, there must have been some distance between the first and second illuminated car to Ms Iose’s right.
- Next, Ms Iose did not report to police that the only car which she saw to her right was speeding. She told police that she could not judge its speed, but there is no evidence that she was asked specifically whether it was going very fast or very slow. If she had gained such an impression one would have expected that matter to be elicited, notwithstanding the difficulties under which she came to be interviewed. It is sufficient to conclude for present purposes that if the car she saw to her right was the Mazda 6, she does not say that it was travelling well in excess of the speed limit and at the kind of speeds for which the second defendant contends. In fact, her evidence at trial was that it was travelling at a normal speed.
- Having regard to the contents of the police statement, her June 2013 statement and her evidence at trial, I conclude that Ms Iose was not in a position to make any precise estimate of the speed of the car which she saw. However, she did not gain the impression from the speed at which it approached that it was travelling well in excess of the speed limit. The limitations upon her ability to precisely assess speed in the circumstances, and the absence of any explanation about how she was able to estimate the speed at 60 or 70 kilometres per hour, disincline me to rely upon her June 2013 statement or her evidence at trial to conclude that the Mazda 6 was travelling at a normal speed or at about the speed limit of 70 kilometres per hour. However, her statements to the police and her later statements do not support the conclusion that the Mazda 6 was travelling at a dangerous speed in excess of 100 kilometres per hour. If it had been, Ms Iose probably would have been in a position to observe that, even if she could not put a precise speed upon what she observed.
- In summary, I accept Ms Iose’s evidence that she saw the car to her right and the car to her left a few seconds before the collision. A reasonable inference to be drawn from her evidence is that the two cars which she saw close to the intersection collided with each other.
The evidence of the first defendant
- The first defendant, Ms Clark, was born in Brazil in 1975 and acquired her driver’s licence when she was 19 or 20. By August 2012 she had been living in Australia for several years and was an experienced driver. She and her husband lived at Carseldine and she would drive along Lacey Road going to or from her home almost every day. She was used to driving along Lacey Road at both day and night.
- On the evening of 9 August 2012 she was returning home, having been to the supermarket and to a petrol station. She drove southbound along Lacey Road and, although she could not recall her precise speed, thought that she would have been doing around 60 kilometres per hour. Her usual practice in preparing to turn right into Raynbird Place would be to decelerate and change down through the gears. If she did not have to give way to oncoming cars she would make the turn at “around 20 kilometres an hour, probably less”.
- The evidence of the first defendant’s recollection of what she did and what she observed on the evening on 9 August 2012 is located in three sources. The first is an interview with Senior Constable Bach on 7 September 2012, which was recorded at her home. The recording is Exhibit 4 and a transcript of it became Exhibit 5. The second source is a statement which she gave to an investigator appointed by the second defendant, which was signed by her on 7 February 2013. The third is her evidence at trial. Counsel for the plaintiff points to alleged inconsistencies between her statements. In assessing the first defendant’s evidence I have listened to Exhibit 4, and had to consider the accuracy of parts of the trial transcript by listening, at the parties’ request, to some parts of the digitally recorded trial evidence. Simply reading the transcript of her police interview on 7 September 2012 and the trial transcript does not capture the manner in which the first defendant speaks. Although she displayed a good command of English, it is not her first language. The punctuation of Exhibit 5 and the punctuation of parts of the trial transcript do not always capture her intonation or the meaning which her words convey to a listener. She struck me as an intelligent woman who attempted to answer the questions asked of her to the best of her ability.
- The issues in contention between the parties in relation to her evidence include:
- The position she was in when she first saw the headlights of a vehicle coming in the opposite direction;
- How far away from her the lights were when she first saw them;
- How far they were away when she committed herself to making the turn, and as she began to effect the turn into Raynbird Place; and
- The speed of the Mazda 2.
- The first defendant fairly conceded that her recollection of matters was better when she spoke to police on 7 September 2012 compared to when she gave evidence almost six years after the events in question. Uncontentious matters in her record of interview are that the weather was fine, that she had “clear vision” and could see there was only one car coming in the opposite direction. On 7 September 2012 she could not remember if there were any cars behind her but could remember that “the traffic was really good, it was calm, I basically only remember that car there maybe there was more but I don’t remember”. She confirmed in her evidence at the trial that she did not remember seeing any vehicle passing her going in the opposite direction as she came towards the turn lane.
- After preliminary discussions on 7 September 2012 about her background, she was asked by Senior Constable Bach what she could remember. She gave the following response:
“Yep, I went to supermarket, I was coming to Lacey Road. I just I remember that the traffic, the traffic was normal, was really quiet. I remember the one car coming in the opposite direction. I think [it] was the only one that I saw was everything okay in my judgement. The car was really far and I think [I] remember that I actually was turning. …”
Prompted by her sister who was in attendance at the interview, she then refers to the white airbag that came into her face.
- Shortly later in the interview Senior Constable Bach asked the first defendant whether she stopped before she turned right, to which the first defendant responded:
“I just remember coming and giving sign you know to turn and I remember a car really far in my judgment was really far away and then I think I remember you know going, turning …”
The first defendant could not be sure whether she stopped or only slowed down before making the right turn.
- She was then asked to explain what she meant when she said that the other car was “far away”. She was asked whether she could give a distance in metres about how far away it was, or pick a spot on the road “where it might have been when you first saw it”. The first defendant replied that maybe she could. She was prompted to give an estimate in terms of metres and Senior Constable Bach asked her whether she knew the size of a 50 metre Olympic-size pool. The first defendant did not reply to that question and instead asked Senior Constable Bach “how much would it be from here to let’s say there?”, and it is apparent that she was referring to a fence. Senior Constable Bach told her that it was about 30 metres or so. The first defendant’s sister volunteered a figure of 60 metres and offered to step it out. Senior Constable Bach (seemingly in reference to the fence) asked, “So that far away?”, to which the first defendant responded: “Yeah maybe something like that or even farther that”. Senior Constable Bach asked “Further away?”, to which the first defendant responded:
“Because I just remember this you know his small lights and was really far and in my mind …”
- The discussion then turned to the lights and the first defendant said she remembered seeing “two really whole lights and then some small lights”. She was asked whether these small lights would have been fog lights on the car, to which the first defendant said that she could not really remember. Later, the first defendant said “I just remember the car really far away”.
- As to the first contentious issues, namely the position the first defendant was in when she first saw the headlights coming in the opposite direction, her initial substantive answer in the police interview tends to suggest that she first saw the lights when she started turning, however, the matter is far from clear. In her witness statement dated 7 February 2013, she said she could not recall whether there were any cars in front of her when she put her indicators on and could not recall seeing any cars with any headlights coming towards her. Relevantly, her statement continued:
“As I was turning I recall seeing lights coming towards me in my direction. I recall thinking it was a really big car and I had plenty of time to turn. I am not sure but I think that I had just started to turn right to when I saw the car lights and I thought I had plenty of time to turn.” (emphasis added)
The only thing that she could remember was that the other car’s lights were “very small and low down”. The words which I have emphasised suggest that the first defendant only saw the lights of the oncoming vehicle as she was turning. Later in the statement she said:
“I can’t remember how long it was between when I saw the headlights and when [the] explosion happened but the lights seemed to be a long way away and I didn’t see nothing coming and then the bang.”
- In summary, neither in her police interview nor in her statement to the second defendant’s investigator did the first defendant clearly state the position she was in when she first saw the headlights coming in the opposite direction, or how far those lights were away when she first saw them. The plaintiff places particular reliance on the discussion in the police interview in which an attempt was made to judge the distance by reference to a fence at her home. Reference may be made to the survey plan and to photographs of the house where the interview took place in order to conclude that the fence which was pointed out was not that far away. Senior Constable Bach, who might be regarded as a good estimator of distance given her role as a forensic crash investigator, thought it was about 30 metres. The second defendant submits that the relevant exchange may have been about the length of an Olympic swimming pool and that the questioning introduced “a potentially culturally irrelevant concept” to the first defendant which served as a distraction to the inquiry being made. In my view, the questions and answers which related to the fence were not an attempt to arrive at the length of a 50 metre Olympic swimming pool. In any event, the exchanges about the distance to the fence were inconclusive. It seems that the first defendant was attempting to explain how far away the car was when she first saw it, and her answers tended to suggest that it was something like the distance to the fence or even further away. The end result is that the first defendant could not give to the police any reliable estimate of how far away the headlights of the approaching car were when she first saw them.
- Significantly, in her written statement dated 7 February 2013, the first defendant did not venture an estimate in terms of metres of how far away the lights were when she first saw them, or how far away they were as she was turning. She did not venture even a general estimate of whether they were more or less than 50 metres away from her at that time.
- In her evidence at the trial the first defendant said that she could “remember seeing the lights quite far away”. Again, she did not venture an estimate in terms of metres or a place on the road by reference to photographs taken of Lacey Road. Instead, and whilst explaining that it “was a while ago”, she said that the lights were “really far in the distance” and “a good distance that I could actually turn”. In her evidence-in-chief she said that she did not feel “in a rush to cross or anything”, and that it was “just really far and I could easily turn”.
- The first defendant could not remember the speed to which she decelerated before making the turn. In fact, she fairly conceded that it was a while ago and “I don’t remember actually going or turning”. She reiterated that she just remembered the lights were far away. She volunteered that she thought that the lights may have been “low beam lights” by which she seemed to mean parking lights. Her recollection was that the lights seemed to be “quite far apart, that would be a big vehicle”. Under cross-examination she confirmed that the lights were “quite separate”. This occurred in the context of an important passage which I will set out. The parties made submissions about transcript corrections and punctuation. The following incorporates revised punctuation and the inclusion of words which were recorded as indistinct in the original transcript.
“Okay. All right. The only car you saw then was the headlights that you saw, which you describe as far away?‑‑‑Yes.
Okay. And your impression from seeing those headlights was that it was a big car far away?‑‑‑Yes, because the lights were quite separate, so I would say was, you know, a bigger car. It was – because it was dark, I couldn’t see much of the car, because the lights were quite separate. So it was a bigger car, but there was – again, was six years ago, you know.
Yes. All right. But you’re describing now seeing two distinct headlights?‑‑‑Yes. That is what I remember that I saw; the lights. Yes.
All right. And you saw a separation distance between those headlights?‑‑‑Yes.
And you thought it was a big car?‑‑‑Yes.
But it might’ve been a small car much closer to you?‑‑‑That is not what I saw.
That’s not what you understood from what you saw, is it?‑‑‑I – what I remember today – there’s a lot of things that, again, I forgot, because a while ago, but what I remember was there was some lights; it was really far away, okay. I don’t know how many metres, but was really far, and I was confident to go. I didn’t hesitate that, you know, oh I should just rush now, you know, I have time if I go quickly. I just remember that there was some lights, you know, far away. That’s what I saw.
Okay. By “far away”, you mean far enough away that you had time to turn?‑‑‑Yes.
All right. By “far away”, you’re not suggesting these lights were hundreds of metres down the road?‑‑‑I don’t know how many metres. Again, it was a long time ago. I just – the only thing that I remember now from that moment, you know, it is the lights. They were far away and it was okay for me to drive. It was six years ago.”
- Leaving aside their differences over the proper punctuation of the transcript, the parties disagree about the proper interpretation of what the first defendant said. I did not understand the first defendant’s words, when she said them or when I listened to them again from the recording of her evidence, as meaning that she thought that she should rush or that she would only have time if she went quickly. On the contrary, the meaning which I apprehend she was intending to convey is that she did not think those things. Incidentally, this accords with her evidence-in-chief in which she said that she did not feel that she had to rush and thought that she could easily turn.
- Later in her cross-examination the first defendant seemed to accept that if a car is a long way off with its headlights on then one cannot distinguish between the two headlights. However, her response was not altogether clear. Counsel for the plaintiff took the first defendant to her earlier statements and suggested to her that her observation of the oncoming headlights occurred as she was turning her car into Raynbird Place. The first defendant disagreed and said: “I saw the lights before”. However, she could not say how long before. She accepted that what she said appeared in the transcript of the police interview, but sought to explain that she made a decision to turn and started to turn. She said that paragraph 14 of her February 2013 statement was wrong insofar as it suggested that she saw the light coming towards her only as she was turning. However, she accepted that her recollection in 2012 and 2013 was better than her recollection at the trial.
- I turn to assess the first defendant’s evidence about the three issues which I earlier identified. The first is the first defendant’s position when she first saw the headlights of the car coming in the opposite direction. Her statements to police and to the insurance investigator in 2012 and 2013 are open to the interpretation that she first saw the headlights only when she was actually turning. However, they are ambiguous since “as I was turning” may mean at a stage when she was in the turning lane with her indicator on.
- As to the related question of how far the lights were from her when she first saw them, the first defendant was unable to venture a good estimate of distance when asked that direct question in her police interview. The exchange to which I have earlier referred suggests that it was something like the distance to her fence or even further away.
- The second defendant submits that the evidence establishes that the first defendant saw the oncoming vehicle before she commenced to make her turn and, given the geography, it would seem she could still see the vehicle as she made the turn. The plaintiff submits, principally in reliance upon her earlier versions that, having been questioned by an investigator in February 2013, she gave a version entirely consistent with the police interview of her observation of the oncoming vehicle as she was turning. The plaintiff submits that the version proffered in cross-examination that she saw the headlights before turning is inconsistent with both earlier versions, and should be rejected because her memory is now dimmed.
- It is apparent that the first defendant had a poor recollection, even at the time of the police interview, of where her car was positioned, and how far away the oncoming car was, when she first saw its headlights. Her statements to police suggest that it could be as close as 30 – 50 metres away and her references to it being “far away” were imprecise. Her evidence at trial was no more precise in relation to these matters. To say words to the effect that the lights were a long way away is of limited assistance. Her evidence about the lights on the car, that she could see separate headlights and she thought they were on a big car, possibly on “low beam”, are of some assistance. The fact that she could see separate headlights does not suggest that the car she saw was about a kilometre away. Her evidence that she saw separate headlights is inconsistent with the car being several hundred metres away, and effectively excludes the headlights being those of Mr Dean Simmons’ car which was about a kilometre away, or possibly more, when he saw the flash of the collision. The first defendant did not give evidence that the car whose headlights she saw had its right indicator on. The absence of any such observation reduces the possibility advanced by the second defendant in submissions that the vehicle which she saw may have turned right into Somerset Drive, about 200 metres south of the intersection with Raynbird Place.
- The evidence of the first defendant is consistent with the headlights seen by her being those of the Mazda 6, and mistaking it for a bigger car which was further away with its lights on “low beam”.
- The first defendant was an honest witness who had a poor recollection, even at the time she was first interviewed by police, of where she was when she first saw the oncoming headlights and how far away those lights were. She fairly conceded that she had a poor recollection of these matters in giving her evidence at trial, so long after the event. Her trial evidence probably has a substantial element of reconstruction. I have had regard to differences between her statements given in 2012 and 2013 and her evidence at trial. I have considered the possibility that any inconsistencies may be the product of the manner in which she was asked questions by investigators and the manner in which she explains herself in English. Having assessed her statements and her sworn evidence, I draw the following conclusions:
- The first defendant approached the intersection initially at around 60 kilometres per hour before decelerating and changing down through the gears in her manual car. She entered the turning lane and indicated her intention to turn right. As she approached the intersection her speed had probably slowed to less than 20 kilometres per hour and, given her evidence, it may have been substantially less than that.
- Despite some imprecision in statements made to police and to the second defendant’s investigator which suggest that she only saw the lights of an oncoming vehicle as she was making the turn, namely after she committed to making the turn and had embarked upon it, it is probable that, in the clear conditions that prevailed and with the topography of the straight road ahead of her, she saw the headlights while still in the turning lane and after she had slowed.
- While slowing to make the turn and while in the turning lane, the first defendant saw only one set of lights coming from the opposite direction. She was not required to slow or stop or yield to another oncoming car with its lights on.
- Having seen the approaching headlights of the car in the northbound lane, the first defendant decided that it was sufficiently far away to make her intended right-hand turn without a need to rush or to accelerate rapidly.
- Having made that decision, the first defendant continued to see the oncoming lights while in the process of starting to turn. This is the observation to which she referred in her police record of interview and in paragraph 14 of Exhibit 16. She still did not perceive a need to rush or to accelerate rapidly.
- Because the first defendant was confident that she had sufficient time to make the turn, she probably looked in the direction of her intended path in a westbound direction along Raynbird Place.
- Having regard to evidence about the probable point of impact reflected in a gouge mark in the road and depicted in photographs and plans that were tendered in the course of the trial, the first defendant was reasonably advanced into the turn when her car hit the Mazda 6 at an angle. The collision was not a head-on or near head-on collision. The point of impact was at the front of the Mazda 6 and in the front side and front of the Mazda 2.
- The first defendant’s imperfect recollection and the direction in which she probably was looking at the moment of impact explain why she cannot recall seeing the lights of the car that hit her immediately before impact.
- The only oncoming car which the first defendant saw was not hundreds of metres away when she first observed it, and not hundreds of metres away when she continued to observe it in the course of making the turn. It was probably much closer.
- In addition to making the above findings based upon an analysis of what the first defendant said she saw and observed, some significance should be attached to the fact that she did not give evidence about certain matters. First, she did not say that whilst approaching the intersection she saw two northbound cars with their lights on, and had to wait for the first of them to pass through the intersection before she made her right turn. Second, she did not say that the only vehicle she saw was travelling at what seemed to be a very high speed. A finding that it was travelling very fast is open if she was not paying sufficient attention to the oncoming car or otherwise misjudged the speed of its approach. However, the first defendant did not say to the police, to the second defendant’s investigator or at trial, that the only car she saw with its lights on was travelling at a speed far in excess of the speed limit.
Were the Mazda 6 headlights on?
- A critical issue is whether Ms Iose and the first defendant saw the headlights of the same northbound car. If so, was it the Mazda 6?
- As to whether Ms Iose saw the Mazda 6 headlights, as summarised at , she saw the car to her right and the car to her left a few seconds before the collision. A reasonable inference to be drawn from her evidence is that the two cars which she saw close to the intersection collided with each other. This inference does not depend on the accuracy of her estimates of distances of 40, 30 or 20 metres. It arises because each car was relatively close to the intersection at the same time and no other car travelling north was observed by her. Given the imprecision of the first defendant’s evidence about how far away the oncoming car was, her evidence is not necessarily inconsistent with the conclusion that the headlights which she saw were those of the Mazda 6, especially if she misjudged its distance from the intersection or its speed.
- The second defendant submits that the first defendant observed a lit vehicle that was further away than the Mazda 6, though it is not possible to say precisely how far. It raises the possibility that the other car may have been Mr Simmons’ Land Rover, a car whose driver came to the scene of the accident and spoke to Ms Iose, or a car that may have turned right into Somerset Drive, 200 metres south of the intersection with Raynbird Place.
- As to the possibility that it was Mr Simmons’ car, his evidence, which I accept, is that he had only travelled about 60 or 80 metres along Lacey Road from the Beams Road corner when he saw the light of the collision. According to his measurement he would have been about 1.2 kilometres away from the collision. According to the second defendant, the distance to the intersection from Beams Road is 1.03 kilometres, when scaled from a map. In any case, Mr Simmons was approximately a kilometre away from the collision. The first defendant’s evidence that she could see the separate headlights of the oncoming car makes it unlikely that she saw the separate headlights of Mr Simmons’ car from that distance. The first defendant’s description in her interview with police of seeing “two really whole lights” and then some other lights (which were not fog lights) does not assist much in the identification of the car which she saw. The model of Land Rover which Mr Simmons drove is depicted in Exhibits 22 and 23 and it has standard lights. The Mazda 6 had a configuration of lights on its front, as depicted in Exhibit 18. Neither car appears to have lights “on top”.
- The suggestion that the lights which the first defendant saw were from the car of another driver who appeared on the scene and spoke to Ms Iose does not derive much support from the evidence. Ms Iose’s evidence was that after the collision she sat in her car for a long time, then reversed it and parked it. She thought that she sat in the car for something like five or ten minutes. She told police that she did not have a mobile phone with her and “told another man who pulled up in front of me what happened and to call 000”. The man who pulled up in front of her was the first person who she saw arrive at the scene. She got out of her car and spoke to him and the man called the police. The evidence of Mr Simmons establishes that he did not speak to Ms Iose at the scene, so the man she spoke to must have been someone else. Ms Iose did not describe from which direction the man who pulled up in front of her had come, but it is consistent with a car driving from the same estate to the west from which Ms Iose had come. It is also relevant that immediately after the collision, when Ms Iose saw smoke, she did not see any cars on the road. She did not see the man who pulled up in front of her turn the corner into Raynbird Place from Lacey Road very shortly after the collision. In fact, she places his arrival on the scene some minutes after the collision, which does not suggest that his car was closely following the Mazda 6. The identity of the man was not established by the evidence despite his calling 000.
- In the light of Ms Iose’s evidence about where and when this unidentified man appeared on the scene, I conclude that the first car to follow the Mazda 6 northbound along Lacey Road probably was Mr Simmons’ vehicle, who believed he was first on the scene, and who did not give evidence of seeing tail lights between his car and the scene of the crash as he approached it.
- The other possibility canvassed in the defendant’s submissions about a lit vehicle that was following the Mazda 6 is that the car which the first defendant saw turned right into Somerset Drive about 200 metres south of the intersection. This seems to be a speculative possibility. Neither Ms Iose nor the first defendant saw a car turn into Somerset Drive or a northbound car with its indicator on. There were few cars travelling along Lacey Road at that time of the evening. In any case, one would expect only a relatively small percentage of cars travelling along a connecting road like Lacey Road at any time of the day to turn into a side street like Somerset Drive. So the possibility canvassed by the second defendant is speculative.
- If that possibility is excluded, the second defendant’s theory that there was a following lit vehicle which the first defendant observed, but which Ms Iose did not see and which went unidentified, encounters another problem. It depends upon the proposition that the following car avoided the accident, did not stop and its driver did not report to police that he or she was following an unlit car which was involved in the accident. This seems improbable.
- The plaintiff’s case that the observed headlights are more likely to have been those of the Mazda 6 rather than two unidentified cars is supported by a number of matters:
- It accords with Ms Iose seeing one set of headlights to her right at about the same time as she saw the Mazda 2, just a few seconds before the collision which occurred when she was looking down at her tape player;
- It accords with the first defendant’s evidence of only recalling one set of northbound headlights;
- If there had been two lit cars (on either side of the Mazda 6), then Ms Iose probably would have seen the second set of lights;
- The lights that Ms Iose saw to her right at about the same time as she saw the Mazda 2 must have been seen at about the same time as the first defendant saw lights approaching the intersection.
- The second defendant supports the three-car theory on the basis that:
- The car that Ms Iose saw to her right must have passed through the intersection and been, as it were, out of the picture, so that the first defendant did not see it as she approached the intersection or does not recall it; and
- Ms Iose did not see the second lit car because she was not looking.
- As to (a), unless the lit car which Ms Iose saw had passed through the intersection before the first defendant was preparing to turn right, then the first defendant would have seen it as she was in the turning lane. She would have seen it at about the same time as Ms Iose saw her approaching the intersection with her indicator on (at a distance which Ms Iose estimated to be 20 to 30 metres). Ms Iose and the first defendant would have seen the northbound car at about the same time, and the first defendant probably would have been required to adjust her speed and yield to the oncoming car.
- As to (b), if there were two lit cars to Ms Iose’s right then she was in a position to see both of them as she looked in their direction. In addition, as soon as she heard the collision and looked up she did not see a following car come through the intersection.
- The second defendant’s case that there was a lit car behind an unlit Mazda 6 is supported by the difficulty which the first defendant has in associating the car that hit her with the car she had seen, and which she thought was “really far”. The second defendant’s hypothesis is supported by the evidence of the first defendant that she does not recall seeing the lights of the car she had earlier seen just before the collision. The second defendant argues that if the Mazda 6 had its headlights on then the first defendant would have seen them immediately before the impact, either in her direct or peripheral vision. This is a persuasive argument. However, this matter may be explained by the first defendant making an error of judgment about the distance to the oncoming lights and underestimating the speed of the oncoming vehicle. As she explained in her statements and in her evidence, she was confident she had enough time to make the turn. Therefore, she may not have kept the oncoming car under observation, preferring to look at her path of intended travel. This lack of observation and the angle of her car to the path of the Mazda 6 at the point of impact may explain why she does not recall seeing the lights of the Mazda 6 immediately before impact.
- A significant piece of evidence supporting the second defendant’s case is that the light switch in the Mazda 6 was observed to be in an off position after the car was cut open and the plaintiff was rescued from his trapped position. As the second defendant contends, this evidence tends to corroborate the first defendant’s account of not seeing the lights of the car that hit her immediately before the collision.
- In response to this, and as earlier noted, the plaintiff relies on the fact that his lights were on when he left Red Hill, the improbability that he stopped en route and failed to turn them back on and also the probability that if he had not turned his lights back on, he would have been alerted to this fact by other motorists or by an inability to see the road ahead, particularly along the dark stretch of Lacey Road. In addition, the plaintiff advances possible explanations as to why the light switch was found in an off position. He points to the configuration of the switch and a protrusion on its upper side which is said to render it easily capable of being knocked into the off position. The plaintiff also notes that the driver’s console and dashboard of the Mazda 6, its steering wheel and steering column were severely distorted and with significant disorganisation by two impacts (one with the Mazda 2, the second with the pole). Photograph 2484 in Exhibit 1B is said to reveal the distortion of the steering wheel and the steering column on which the light switch column is mounted. Next, the plaintiff raises the possibility that one of the Queensland Fire Service or Queensland Ambulance Service officers who attended the scene other than those whose file notes were tendered may have intervened to switch off the lights as a potential ignition source. Another possibility is that a bystander who arrived before the emergency services switched off the light switch. Finally, the plaintiff says that because of the number of emergency personnel involved in the plaintiff’s extraction and the work involved in that endeavour, it is entirely possible that the switch was accidentally knocked. This possibility cannot be excluded, especially in the light of evidence that the rescue crews working from a platform used tools which weighed up to 20 kilograms each. They had to use jaws, cutters and spreaders to rescue the plaintiff, whose feet were trapped in the footwell of the vehicle.
- As to these various possibilities, the second defendant accepts that enormous forces would have been generated by the impacts. Examples of such switches are in evidence and the second defendant accepts that not a great deal of force is required to turn the light switch off. However, a driver is required to grip the switch to do so and turn it counter-clockwise through two sequential positions. This avoids the risk of inadvertent closure. There is no expert scientific or engineering evidence to suggest that the impacts which the car sustained would have imparted rotational forces which would result in the light switch being turned off.
- The second defendant submits that the column (which appears to be an indicator column) upon which the light switch is located appears to remain in its ordinary position. If this is so, then the force which applied to it was not sufficient to bend it or to break it off. However, the photographic evidence does not appear to me to prove that the light switch column is in its ordinary position. Photograph 2484 in Exhibit 1B supports the plaintiff’s contention about the damage done to the steering wheel and steering column upon which the light switch was mounted. It is not possible to say whether the damage to that part of the car and the driver’s console was sustained during the collision or during the rescue operation. In any event, the proximity of the light switch as depicted in the photograph with the heavily damaged console and nearby parts of the car’s interior supports the possibility that the protrusion or lug on the switch was knocked during the collision or in the course of freeing the plaintiff.
- The possibility that the light switch was turned off by a bystander who arrived at the scene or emergency services personnel is extremely small. Mr Simmons did not do so. Although there were bystanders on the scene by the time Sergeant Old and his fellow officer arrived a few minutes after the collision, some of them were near the Mazda 2. There is no evidence that any bystander inserted his or her hand into the wreckage of the Mazda 6. Sergeant Old had a number of matters to quickly attend to, but soon prioritised care of the plaintiff. Emergency services soon appeared on the scene. As the file notes taken from several attending members indicate, there was no occasion for any of them to turn off the light switch so as to avoid the risk of a spark. Although not every member of the emergency services who attended the scene gave a file note, there is no reason to suppose that any of them intervened and turned off the light switch.
- Of the various possibilities canvassed by the plaintiff’s submissions as to how the light switch may have been turned off, impact during the collision or a knock during the rescue attempt are the most likely. The light switch must have been in the vicinity of the plaintiff’s trapped body. Mr Waugh recalls that the plaintiff’s feet were trapped in the footwell of the vehicle. He described the position from which rescue workers had to operate large, powerful tools to free the plaintiff. It is possible that in using those tools the light switch was knocked.
- Ultimately, these possibilities need to be weighed along with other possibilities, including the possibilities that are involved in the three car theory. The evidence of eye witnesses does not support the three car theory. Their evidence makes it more probable that Ms Iose and the first defendant saw the same northbound vehicle, and that this vehicle was the Mazda 6. This conclusion is supported by the timing of the observed approach of the Mazda 2 and the northbound lights which Ms Iose observed. Both Ms Iose and the first defendant each recall seeing only one lit car heading north. The lit car seen by Ms Iose was still south of the intersection when she saw both it and the Mazda 2 with its indicator on about to turn. It is probable that the first defendant was in a position to see the same northbound car.
- The three-car theory involves a number of elements. It does not depend simply upon the proposition that the first defendant saw an unidentified vehicle further south than the Mazda 6. It also requires the conclusion that the lit car which Ms Iose saw had passed through the intersection before the Mazda 2 arrived at that intersection and was not seen and recalled by the first defendant. The three-car theory also requires an explanation as to why Ms Iose did not recall seeing the second lit car, despite being in a position to do so. It also requires there to have been a sufficient gap between the lit car that Ms Iose saw and the lit car which the first defendant saw so as to allow the presence between them of the Mazda 6 which, on the second defendant’s case, was travelling at a very high speed. Finally, it involves the proposition that the following car avoided the accident scene, did not stop and its driver did not report to police that he or she had been following an unlit car and saw the accident.
- In my view, the three-car theory derives limited support from the evidence and I find it improbable. In my view, it is more probable that Ms Iose and the first defendant saw the same car. The plaintiff’s case that this car was the Mazda 6 must address the possibility that the plaintiff stopped along his route and neglected to turn his lights back on (or fully on). There is no evidence that the plaintiff was in the habit of stopping on his way home, but the possibility that he did so to make a purchase is not fanciful. It is possible that he did so on the evening of 9 August 2012 and neglected to turn his lights back on. However, this possibility should be discounted to take account of the possibility that, after doing so, he was alerted by other motorists to the fact that his lights were off or noticed this himself, particularly as he was travelling along the dark stretches of Lacey Road.
- The second defendant notes that it is common experience that people do manage to drive at night, sometimes for considerable distances, without realising that their headlights are off. It submits that this prospect is increased where there is some illumination of the dashboard. If the Mazda 6’s lights had been switched off then the back lighting of the speedometer dial and the dial which measures engine revolutions would have been turned off. There would have been some residual illumination from the odometer and trip meter lights. The photographs which form part of Exhibit 34 show quite a difference in the illumination of the two major dials on the dashboard, including the speedometer, when the light switch is turned off.
- As to the possibility that the plaintiff would have noticed his lights were turned off because of a difficulty in seeing the road ahead, a difficulty in seeing his speedometer or because other motorists would have alerted him to the fact that his headlights were off, this depends upon the stage at which it is assumed his lights were turned off along his long drive home. For example, the longer he drove along Maundrell Terrace and other major roads without his lights on, the more likely it is that he would have noticed they were turned off or been alerted to that fact by another motorist.
- I do not accept the plaintiff’s submission that the suggestion that he stopped somewhere along his route and then failed to turn his lights on is “entirely speculative”. It is possible that he stopped to make a purchase and the possibility that he did not turn his lights on again is supported by the position of the light switch after he was rescued. In turn, the possibility that the light switch was knocked into an off position during two forceful impacts or during the difficult process of rescuing the plaintiff from his trapped position needs to be taken into account.
- An overall assessment of whether the headlights of the Mazda 6 were on prior to the collision includes a consideration of what eye witnesses saw and what they did not see. In my view, it is probable that Ms Iose saw the same northbound lit car as the first defendant saw. The eye witness evidence is capable of a simple and not improbable reconciliation. Neither eye witness recalled seeing two lit cars heading north along Lacey Road shortly before the collision. Each saw one lit car to the south of the intersection. Ms Iose and the first defendant probably saw the same car heading north at about the same time. The first defendant’s inability to recall seeing the lights of the car that hit her momentarily before impact can be explained on the basis of:
- her generally poor recollection of matters; and
- her not looking in the direction of the oncoming car immediately before impact, her looking instead in the direction of her intended travel, confident she had enough time, but having misjudged the distance or speed (or both) of the oncoming car.
- To prove a breach of duty the plaintiff must prove that the first defendant driver would have perceived the presence of his car had reasonable care been exercised. If the plaintiff’s car was unlit and incapable of being reasonably seen, then the plaintiff will fail to prove a breach of duty. Therefore, in the circumstances of this case the plaintiff must prove on the balance of probabilities that the lights of the Mazda 6 were on. He is not required to exclude other possibilities beyond reasonable doubt. However, he is required to advance possible and plausible explanations as to why the light switch was found in an off position, and prove that the whole of the evidence makes it more likely than not that his headlights were on. In my view, the second defendant’s three car theory is not supported by a consideration of all of the evidence. It is more likely than not that the headlights which Ms Iose saw were the same headlights that the first defendant saw. It is more likely than not that those were the headlights of the Mazda 6.
The speed and direction of the Mazda 2 immediately before the collision
- The first defendant was unable to recall if she stopped or only slowed before commencing to turn into the intersection. It is reasonable to assume that she slowed to substantially less than 20 kilometres per hour before deciding to turn, and then began to accelerate. The first defendant cannot say what speed she had reached at the point of impact. However, she did not perceive a need to accelerate rapidly to avoid a collision, and therefore the speed of the Mazda 2 at the point of impact was probably less than 20 kilometres per hour. No finding about its precise speed can be reached. Its probable speed was between 10 kilometres and 20 kilometres per hour.
- The point of impact between the Mazda 2 and the Mazda 6 in the northbound lane of Lacey Road is depicted in photograph 4 of Exhibit 21 by reference to the gouge and scrape marks located in that lane, and also on forensic maps that were prepared by Senior Constable Bach as part of her investigation (Exhibit 20). The position of the gouge marks is also depicted and discussed at page 32 of Mr Keramidas’ report dated 30 September 2013 (Exhibit 25). The gouge marks are on the left side of the northbound carriageway. Their position creates the possibility that, immediately before impact, the Mazda 6 took evasive action and steered to the left side of the northbound carriageway. In any event, the point of impact indicates that the Mazda 2 had progressed some way into the turn. Its turning path cannot be charted with accuracy. It depends on the type of curve that the Mazda 2 took and from precisely where in the southbound turning lane it started the turn. The impact with the Mazda 6 was to the front part of the Mazda 2. Several panels suffered impact damage including the front bumper, grill, bonnet and front guards. The car’s engine and transmission separated due to impact. The damage profile of the Mazda 2, as discussed in Mr Keramidas’ first report, supports the conclusion that the Mazda 2 suffered a frontal impact which moved laterally.
- The impact configuration between the two cars requires an assessment of their respective damage profiles and an assumption about the turning path of the Mazda 2. Mr Keramidas’ opinion of the likely impact configuration appears at page 35 of his first report. In my view, he is correct to conclude that while the front of the Mazda 6 collided with the front of the Mazda 2, it was not a direct head-on impact. He thought that the Mazda 2 collided at a 40 per cent angle from the near side of the Mazda 6, as depicted in his diagram. An assumption about the likely impact configuration is required for any momentum analysis of the kind undertaken by Mr Keramidas. It is one of many variables. As will be apparent, the selection of a 40 degree angle is a matter of opinion rather than measurement and it is possible that the angle of impact was substantially greater than 40 per cent. The angle of impact needs to be factored in to calculations of the kinds performed by Mr Keramidas. For example, if the Mazda 2 was travelling at a speed of about 20 kilometres per hour, then based upon the impact angle which he adopted, about 14 kilometres per hour of that speed would be directed towards the south and would need to be overcome by the Mazda 6’s momentum prior to it commencing to push the Mazda 2 back in a northerly direction. On the same assumptions, any 10 kilometre per hour speed for the Mazda 2 would add about five to six kilometres per hour to the speed of the Mazda 6, using such calculations. However, Mr Keramidas notes the absence of witness accounts of the speed of the Mazda 2 and notes that it is not possible to calculate the speed of the Mazda 2 using certain processes.
- In summary, no firm conclusion can be reached about the precise speed of the Mazda 2 at the point of impact, other than to conclude that it was probably less than 20 kilometres per hour. Any expert analysis depends on assumptions about its course and the curve of the turn that it made prior to impact. It can, however, be said that, based on the damage profiles of each vehicle, the Mazda 6 was hit on its front right side, as depicted in the photographs F and G in Mr Keramidas’ report which show the region where maximum engagement occurred. It also can be said that the front of the Mazda 2 collided with the Mazda 6. The angle of impact can only be guessed. However, the Mazda 2 seemingly had progressed a substantial way into the turn so that the impact configuration was a substantial number of degrees from a head-on collision. As earlier noted, this substantial angle and the fact that the first defendant was looking in her direction of travel may explain why she apparently did not see the lights of the Mazda 6 momentarily before impact.
The speed and direction of the Mazda 6 immediately before the collision
- Any finding about the speed and direction of the Mazda 6 before the collision depends upon an assessment of all of the evidence. This includes the evidence of eye witnesses, the contents of expert reports (to the extent certain opinions have any probative value) and the drawing of reasonable inferences from evidence, particularly evidence of the extent of damage to the vehicles and what is known about their movement after the collision.
Eye witness evidence
- As discussed, Ms Iose did not venture an estimate of the speed of the Mazda 6 when she spoke to police in 2012, but estimated its speed as being between 60 and 70 kilometres when she spoke to a solicitor in June 2013. Her sworn evidence was that the Mazda 6 was travelling at a normal speed. She did not explain how she arrived at that estimate, but nor was she cross-examined specifically about it. While she did not explain in her evidence at trial how she came to form such an estimate in 2013 or in giving her evidence at trial, her estimate cannot be ignored. It must, however, be taken as an estimate only with a margin for error because the car to her right was travelling at night and she did not keep it under constant observation. Nevertheless, her estimate, with its margin for error, does not support a finding that the Mazda 6 was travelling at an extraordinarily high speed of 100 kilometres or more.
- The first defendant gave no assessment of the speed of the Mazda 6. Her evidence leaves open a number of possibilities, including the possibility that she misjudged the time she had to make the turn because she did not judge or misjudged the speed of the oncoming car. It is also possible that the Mazda 6 was travelling at about the speed limit and she simply misjudged its distance from her car. Account must be taken of the fact that the first defendant did not tell police or anyone else that she perceived the Mazda 6 to be speeding substantially in excess of the 70 kilometre speed limit, but still thought that she had sufficient time to make the turn.
- At the start of these reasons I previewed the expert evidence and my conclusion that the expert opinion about the speed of the Mazda 6, if admissible, is of slight probative value.
- I am not persuaded that the reports of Mr Keramidas display the detachment, objectivity and scientific rigour required to place any substantial weight upon his opinions. For example, at page 25 of his first report he reported upon retrieving the tail light assemblies from the Mazda 6 and examining the filaments. He stated that the absence of distortion to the filaments in either the brake lights or the tail lights was consistent with the car’s tail lights (and therefore necessarily the headlights) not being on at the time of the incident. For the reasons given in Dr Gilmore’s report dated 26 August 2014, which included as an appendix an article about lamp examination, the state of the Mazda 6’s tail light filaments could not add any useful information to enable determination of whether the tail lights themselves were incandescent at the time of the collision. The second defendant, in its submissions on admissibility, pointed out that Mr Keramidas only said that examination of the tail lights was “consistent with” the vehicle’s lights being off at the time of the incident. Mr Keramidas might just as well have said that they were consistent with the lights being on. The experts in their joint report agreed that the condition of the tail light filaments on the Mazda 6 could not establish with any certainty whether the Mazda 6 headlights were on or off at the time of impact. The form in which Mr Keramidas reported his finding about the condition of the tail light filaments is illustrative of a lack of detachment.
- A further concerning aspect of Mr Keramidas’ report was his preparedness to go beyond expressing opinions in an area in which expert opinion is admissible and of assistance, and reaching conclusions about how the accident happened. This appears at pages 47 – 51 of his first report, where he canvasses the evidence of witnesses. Unfortunately, Mr Keramidas did so without the benefit of Ms Iose’s statement, having only had available to him a witness summary contained in one paragraph of the police report.
- I turn to areas of expertise possessed by Mr Keramidas and Dr Gilmore, such as calculations of momentum. As I previewed at -, any estimate or calculation of the pre-accident speed of the Mazda 6 depends upon numerous assumptions. One of them is the pole impact speed of the Mazda 6. Mr Keramidas addresses this issue at page 41 and following of his first report and in subsequent reports. He describes how the intrusion of the utility pole into the passenger compartment at the “B” pillar led to the collapse of the roof and bowing of the entire structure. He refers to video footage from the European NCAP testing on a Mazda 6 of similar construction to the plaintiff’s Mazda 6. The images from that testing depict intrusion into the driver’s door and partial distortion of the “B” pillar. Mr Keramidas’ report at page 44 states:
“Based on the European NCAP testing as well as the author’s own experience of having examined numerous vehicles involved in high speed pole impacts, it is quite probable that the vehicle’s speed would have been at least 50 km/h at the time of impact with the pole. It is possible that it could have been as high as 60 km/h to produce the damage observed.”
Mr Keramidas then performs a calculation which includes a slip angle in arriving at a post-impact speed for the Mazda 6 of between 62 to 70 kilometres per hour. The difficulty with any such analysis is that it is based on images of an impact of a different configuration (the side of a Mazda 6) to an area reinforced for safety, a point which Mr Keramidas accepted after his first report was critiqued by Dr Gilmore. Still, the side impact test was an important “foundation” for his estimation of the impact speed. Another was his unspecified “own experience” of having examined “numerous vehicles” involved in high speed pole impacts. His precise experience and the angle and speed at which those other vehicles hit poles is not explained.
- I agree with Dr Gilmore’s comment about Mr Keramidas’ assumptions. In particular, given that the Mazda 6 had rotated and hit the utility pole partly on its side and partly on its roof line, Mr Keramidas’ assumption that the impact can be compared with a pure horizontal, unrotated side impact NCAP test on a Mazda 6 is unsupported. As Dr Gilmore notes, vehicles do not require impact strengthening bars in their roof line and are generally not designed against impact on the roofline. A vehicle such as the Mazda 6 in this case will reflect this lack of stiffness and bend more freely. The vehicle will appear as if significant speed has been involved, and a comparison with NCAP side impact tests will be misleading and over-estimate the impact speed.
- Another assumption made by Mr Keramidas, in arriving at a figure for the post-impact speed for the Mazda 6, was an assumption that the vehicle slid or skidded to the point where it collided with the kerb line. I have had regard to Dr Gilmore’s comments about the validity of this assumption in the light of the absence of skid marks, together with Mr Keramidas’ responses in relation to what Dr Gilmore referred to as “Assumption 5” and “Assumption 13” in Mr Keramidas’ original report. I have also had regard to Mr Keramidas’ assumption underlying the correction factors he adopted. It is sufficient for present purposes to comment that each assumption made by Mr Keramidas in arriving at the post-impact speed of each vehicle is contentious, and not supported by clear evidence about the behaviour of each vehicle after impact, including the distance each vehicle may have been airborne or skidded or how it skidded.
- To return to Mr Keramidas’ assumption, based upon the NCAP testing and his “own experience”, the decision of the South Australian Court of Criminal Appeal in R v Bjordal is instructive in this context. In that case, an expert purported to give an opinion about a co-efficient of friction, based upon the co-efficient of friction that had been determined after extensive empirical testing on bitumen roads. However, there had been little empirical testing of the co-efficient of friction for a vehicle sliding around a bend on a loose gravel surface. The expert had purported to take account of that by adopting a co-efficient of friction lower than the lowest shown on a table. The Court analysed the principles governing reception of expert evidence. The critical factual premise on which the expert’s estimate of speed of the appellant’s vehicle rested was a co-efficient of friction of the tyres in loose gravel. The issue was whether his adjustment was valid and whether he had the expertise to make the adjustment. The Court concluded that he did not and that the relevant evidence should not have been admitted. Besanko and Vanstone JJ identified the issue of whether there was “any reliable body of knowledge or experience which could justify his selection of an appropriate co-efficient of friction”. The evidence failed to demonstrate that there was or, even if there was, that the expert was qualified to apply it so as to justify his methodology. Their Honours also noted that the estimate of speed provided by the expert was an extremely wide one. Having regard to the wide-ranging estimate before it, the jury could have determined that taking a mid-point was a safe course. However, that would have resulted in a miscarriage of justice and the appeal was allowed.
- A similar issue arises in this matter concerning Mr Keramidas’ use of the NCAP tests for side impacts as a basis upon which to reach a conclusion about a different kind of impact.
- I have addressed only one of many assumptions made by Mr Keramidas. There are many others, including assumptions about the movement of the Mazda 2, its shell and its engine after impact. Certain assumptions were made about the Mazda 2’s movement including the length that all four wheels were skidding on the ground and whether wheels were bearing the entire weight of the car. Assumptions also were made about when the Mazda 2’s engine was dislodged and whether, after it was dislodged, it rolled, bounced or skidded to its eventual resting place. With no data in relation to the drag factor of an engine, Mr Keramidas found it necessary to “subjectively assess” it. Mr Keramidas had regard to a friction co-efficient for a motorcycle. He acknowledged that the properties of the Mazda 2, in particular with the engine removed, could not be determined with any precision. He said that he had adopted therefore “a conservative approach”, however, what was meant by that and how such a conservative figure was arrived at is largely unexplained by him.
- It is unnecessary for present purposes to list all of the assumptions made by Mr Keramidas, Dr Gilmore’s critique of them and Mr Keramidas’ responses to those criticisms. To the extent Mr Keramidas’ opinions rested on matters within his expertise, his calculations depended upon the making of numerous assumptions and many of the assumptions were not shown to be based upon agreed facts, reliable evidence or empirical testing. A significant degree of speculation or guesswork was involved. Opinions based upon such assumptions do not command acceptance because they are said to be based upon the expert’s “experience”.
- The number of variables about which assumptions were made by Mr Keramidas also raises the problem of the scope for relatively minor variations in each assumption to produce a significantly different result. This was demonstrated by Dr Gilmore’s reports in which, by adopting different assumptions and applying the same methodology as Mr Keramidas, one could arrive at a pre-impact speed by the Mazda 6 at below 70 kilometres per hour. Dr Gilmore did not assert that the Mazda 6 did travel at that speed before impact. Instead, his approach was to identify the numerous assumptions made by Mr Keramidas and to adopt different assumptions. Dr Gilmore did not say that the assumptions that he made were the most conservative which could be made. Instead, the calculations which he performed yielded a pre-impact speed of below 70 kilometres to above 120 kilometres per hour. He concluded that, given the available evidence, it was not possible to calculate an accurate pre-impact speed of the Mazda 6. All one could say was that “it was between less than 70 kilometres per hour and up to 120 kilometres per hour”. After their joint report, some additional information was obtained from police which enabled Mr Keramidas to produce a fourth supplementary report. However, whilst this may call for some slight upward adjustment to the lower end of the range, it does not alter the fact that much of the information necessary to produce an accurate estimate of the pre-impact speed of the Mazda 6 is unavailable. A number of the assumptions adopted by Mr Keramidas are not well-founded in the evidence and involve a degree of speculation.
- I have not been required to rule on the admissibility of the expert reports. However, in assessing the probative value of those reports, reference may be made to authoritative statements on the admissibility and use of such evidence. Evidence from experts will not be received where it depends on speculative assumptions and guesswork. The observations of Callinan J in Fox v Percy concerning the reception of such reports and evidence of slight probative value should be noted. In R v Stephenson is an example in which a defendant in a criminal case was unable to rely upon a forensic report about the speed of a motorcycle because there were so many assumptions and variables that were the basis for the expert’s opinion. White J in Read v Nominal Defendant observed that the engagement of experts in running down cases, other than in exceptional circumstances, is not a practice to be encouraged. In Anikin v Sierra, Gleeson CJ, Gummow, Kirby and Hayne JJ observed that:
“Expert evidence, grounded in the proved testimony, can therefore occasionally be useful. But in the end, such evidence is weighed only in respect of matters within the relevant field of expertise and is only as helpful as the evidence and assumptions on which it is based. Such evidence may not usurp the ultimate decisions which remain for the trial judge.”
- I conclude that the opinions of Mr Keramidas about the speed of the Mazda 6, if admissible, are of slight probative value.
- Some of the assumptions made by Dr Gilmore are open to question. For example, it is possible to arrive at different calculations to his by adopting a forward speed of the Mazda 2 of 14 kilometres per hour in a southerly direction and a co-efficient of friction of 0.7. On the last matter, there was evidence from a police officer who conducted friction tests on Lacey Road, many months after the event in question, using a police vehicle. He also gave evidence about the range of co-efficients which he had experienced in performing such tests on different Brisbane roads using police vehicles. The co-efficient of friction adopted by the police may be a useful working assumption. However, the officer’s evidence that “slight” differences might be called for in respect of a different car with a different suspension and similar tyres does not permit one to arrive at a precise co‑efficient of friction for the relevant vehicles on the relevant day. He did not refer to tests using different vehicles, or the basis upon which he concluded that the differences would therefore be “slight”. His evidence means that the co-efficient of friction may not be markedly different from that used for calculation purposes by the police in the police report.
- Whilst it is possible to adjust some of the assumptions used by Dr Gilmore in arriving at the figure at the lower end of the broad range which he calculated, Dr Gilmore did not say that the assumptions that he used were the most conservative which could be adopted. Ultimately, the expert evidence involves making numerous assumptions. The number of assumptions means that the result is highly sensitive to variations in each of them. In the absence of a reliable basis to support all or most of the assumptions made, including the absence of an accurate figure for the impact speed of the Mazda 6 before it hit the post, I place little weight upon the opinions of Mr Keramidas. In addition, there is a need for a cautionary approach in the use of any range of speeds which is arrived at, given the numerous assumptions that need to be made in order to calculate the pre-impact speed of the Mazda 6 and the lack of a reliable foundation for many of them. I have concluded that the expert opinions about the speed of the Mazda 6, if admissible, are of slight probative value.
- This conclusion also applies to the opinions expressed in the police report, which adopted a different methodology to that adopted by Mr Keramidas. The police report noted the difficulty of arriving at a pre-impact speed for the Mazda 6 by determining the post-impact speeds of each vehicle. This was because of the secondary collision with the pole. The police adopted a different approach utilising an assumed restitution of the collision between two vehicles. This involves adopting a restitution figure of “e” in an equation. The report did so based on barrier crash testing the restitution, and it also assumed a head-on collision. As Dr Gilmore explains, the “co-efficient of restitution” simplifies the calculation by bundling many characteristics of the behaviour of the collision into one key variable. He concluded that the variable, which is unable to be quantified, must necessarily take account of the impact of the Mazda 6 with the utility pole, just as Mr Keramidas’ calculations used it as a key component of his calculations. However, on either basis there was a figure that could not be quantified and as a result the choice of the “e” value was also speculative. This was so because it was made based upon an unreferenced barrier crash testing of an unspecified vehicle type. Again, the police calculation was sensitive to assumptions. Adopting a slightly different restitution assumption of 0.25 rather than 0.2 (namely a 25 per cent variation) and a different assumption of the braking which was assumed to occur as the Mazda 2 slid backwards, resulted in a calculated pre-impact speed of the Mazda 6 at below 63.5 kilometres per hour on an assumption that the Mazda 2 was at 0 kilometres per hour. Different figures would apply on the assumption that the Mazda 2 had a southward pre-impact speed.
- In my view, Dr Gilmore’s comments explain why the opinions expressed in the police report and about the speed of the Mazda 6 should be approached with caution.
- As I outlined in the preview of the expert evidence at the beginning of these reasons, a broad range of between 70 and 120 kilometres per hour, or any other similar broad range, is of limited use in determining where within that range the speed of the Mazda 6 falls. It would be wrong to assume a midway point in that range. A range is simply that, whether it be a range of temperatures, a range of incomes or any other range. Because the range of speeds is a product of so many variables and many of the variables are contentious, one simply cannot assume that the speed of the Mazda 6 probably fell somewhere in the middle of that range.
Intuitive responses to the extent of damage and reasonable inferences
- These issues were previewed at  –  of my reasons. The photographs of the wreckage of the Mazda 6 and the Mazda 2 show that this was a “high speed” collision. However, that is a term of indeterminate reference. The expert evidence helpfully identifies the range of factors that need to be taken into account in arriving at any assessment of the pre-impact speed of the Mazda 6. They also identify how, after the collision, the Mazda 6 moved and collided with a nearby utility pole. It was not a simple horizontal impact into the side door, but also along the roof line. An intuitive response to photographs of the Mazda 6 after the collision to the effect that it must have been travelling at least 100 kilometres per hour to sustain such damage may be wrong, since it is possible that such damage could have been sustained at a lower speed.
- Mr Waugh from the Queensland Fire and Emergency Services, who was one of the leaders of the rescue effort that night, said that it was “the most extensive entanglement of a vehicle he had witnessed”. The number of car impacts with a utility pole that he had seen, whether they were horizontal side impacts or some other angle and the cars’ speeds were not the subject of evidence from Mr Waugh. His passing observation in a solicitor’s file note confirms that this was a remarkable accident in terms of the appearance of the Mazda 6 being bent around the utility pole.
- Caution is required in basing any conclusion about the speed of the Mazda 6 simply upon an intuitive reaction to the extent of damage sustained to the Mazda 6 and the Mazda 2. This is because the angle of impact on the pole made the Mazda 6 especially vulnerable to crumpling and bending in the way it did, so as to cause greater damage to it than a horizontal side impact with a pole.
- While it would be an error to simply adopt a mid-point in the wide range of speeds left open by the expert evidence or to guess at a speed based simply upon an intuitive response to photographs of the Mazda 6 wrapped around the utility pole, it is still possible to draw reasonable inferences based on the extent of damage to the Mazda 6 and to the Mazda 2. Any such inference must take account of the point of impact of each vehicle and the likely angle at which they collided, so as to cause the Mazda 2’s engine to be dislodged and for the Mazda 2 and its engine to each travel a substantial distance. How each of those components moved cannot be said for certain, save that tyre marks indicate where some of the wheels of the Mazda 2 skidded and engine oil on the road also assists in ascertaining a trajectory for the engine.
- The Mazda 6 was fitted with ABS and so the absence of skid marks from the Mazda 6 prior to impact does not assist in deciding whether the plaintiff braked immediately before impact. The point of impact suggests that he may have steered to avoid the collision immediately before impact.
- Having regard to the information provided by the expert reports into what is known (for example, distances of movement of objects after the collision) and what is unknown (for example, how far objects travelled through the air and how far they skidded or bounced) and having regard to the extent of damage, it is reasonable to infer, in my view, that the Mazda 6 had a speed of more than 70 kilometres per hour at the point of impact.
Evidence of habit
- The evidence establishes that the plaintiff was a good driver who did not usually speed. There is no evidence of any speeding or other traffic infringements by either the plaintiff or the first defendant.
- Evidence of the plaintiff’s good driving habits, like evidence of the good habits of the first defendant, is relevant and I take it into account. Evidence of the plaintiff’s good driving habits would make it wrong for anyone to assume that he fell into some stereotype of impulsive young men who may tend to drive at an excessive speed.
- Evidence that he was a good driver must be taken into account. However, it does not preclude a finding that, contrary to his usual habit, he exceeded the speed limit on a straight road which was relatively free of traffic that night.
Finding in relation to the speed of the Mazda 6
- My finding in relation to the speed of the Mazda 6 turns on the different categories of evidence I have discussed, and a consideration of what inferences may reasonably be drawn from what is known about the movement of each vehicle before and after the collision. The first category is the evidence of the two eye witnesses, neither of whom was able to give a precise estimate of the speed of the Mazda 6. As earlier noted, Ms Iose’s estimate of a normal speed or a speed of between 60 and 70 kilometres per hour is simply that, and subject to a margin of error in the circumstances.
- The opinions of the experts, if admissible, are of slight probative value. A supposition that the speed must have been somewhere around the midpoint of a broad range cannot be made. The speed of the Mazda 2 at the point of impact is uncertain, but it is unlikely to have exceeded 20 kilometres per hour and may have been substantially less. It must have had a certain momentum which must be adjusted to take account of the angle of impact.
- While recognising that on certain assumptions made by Dr Gilmore it is possible that the Mazda 6 was travelling close to, or even slightly below, 70 kilometres per hour, account must be taken of:
- the inability of Ms Iose to originally judge the speed of the Mazda 6, and the margin for error in her later estimate of its speed as normal;
- the absence of any estimate by the first defendant of the speed of the vehicle whose headlights she saw;
- the fact that the Mazda 2 probably was travelling at a speed of between 10 and 20 kilometres per hour, at a substantial but uncertain angle to the approaching Mazda 6, and thereby contributed a southbound momentum to the collision (whereas Dr Gilmore’s calculations adopted a nil speed for the Mazda 2); and
- the extent of damage to the cars, and what can reasonably be inferred from that and what is known about the movement of the cars before and after the collision.
- Having regard to the eye witness evidence and inferences that can reasonably be drawn from what is known about the movement of the vehicles, I conclude that it is more probable than not that the Mazda 6 was travelling substantially in excess of 70 kilometres per hour. However, the evidence does not persuade me that it is more probable than not that its speed exceeded 100 kilometres per hour. Whilst its precise speed cannot be stated, it probably was close to 90 kilometres per hour.
Review of main findings
- My conclusion about the probable speed of the Mazda 6 accords with my conclusion that the Mazda 6 was the car which both Ms Iose and the first defendant saw in the northbound lane.
- If the Mazda 6 was travelling at a speed of close to 90 kilometres per hour, it would have covered close to 25 metres per second. If the first defendant saw the Mazda 6 when it was and seemed a long way off, say in the vicinity of 150 metres away, and Ms Iose saw it a few seconds later, the Mazda 6 would by then have been somewhere between 50 and 100 metres south of the intersection. Ms Iose then looked to her left and saw the Mazda 2 approaching the intersection, before she looked down for a few seconds. During those few seconds the Mazda 6 would have reached the point of collision, and the Mazda 2 would have covered the relatively shorter distance to the same point. If, on the other hand, the first defendant and Ms Iose saw the Mazda 6 at almost the same time, when it was about 100 metres south of the intersection, then there were four seconds for each vehicle to travel to the point of impact.
Conclusion on negligence
- I find that the first defendant failed to keep a proper lookout in circumstances in which she was required to exercise a high degree of vigilance as a driver intending to turn across the path of an oncoming vehicle. I conclude that she did not properly assess the distance to the Mazda 6 when she first saw it or its speed, and misjudged that it was further away from her than it actually was. Having failed to keep a proper lookout, and being confident that she could turn in front of the oncoming car, the first defendant probably looked in the direction of her intended path of travel and continued to fail to keep a proper observation of the car whose path she intended to cross. The first defendant also was negligent in failing to yield way to the plaintiff’s car, as required by transport regulations. Leaving aside those regulations, if she was not sure of the distance to, and speed of, the oncoming car, her duty of care required her to yield to it rather than risk a collision.
- The first defendant was negligent in failing to keep a proper lookout and in failing to yield.
Conclusion on contributory negligence
- The second defendant’s submissions fairly acknowledge that the precise speed at which the Mazda 6 was travelling “is not able to be identified”. However, I am satisfied that it is more probable than not that it was travelling substantially in excess of 70 kilometres per hour. The evidence does not persuade me, and the second defendant has not proven, that it was probably travelling in excess of 100 kilometres per hour. It was probably travelling close to 90 kilometres per hour.
- The plaintiff’s excessive speed was negligent.
- The negligence of the first defendant and the contributory negligence of the plaintiff was each a cause of the collision and the plaintiff’s consequent injuries. If the first defendant had kept a proper lookout she would have yielded way to the Mazda 6. If she had kept a proper lookout then she would have better assessed its distance and speed. If she was in doubt about those matters, then her duty of care required her to exercise vigilance and yield way to the Mazda 6.
- The plaintiff argues that the collision would have occurred regardless of what speed his vehicle was travelling because the first defendant’s actions would have placed her vehicle in the direct path of travel of his with a right of way in less than one second, without warning, and, indeed, where her earlier actions would have been reasonably perceived as indicating an intention to give way to the northbound vehicle. The plaintiff contends that once the first defendant turned, “a collision was inevitable and that is so regardless of any inflated evidence of the plaintiff’s speed”.
- I do not agree that a collision still would have happened had the plaintiff been travelling at 70 kilometres per hour or less as he approached the intersection. Had the Mazda 6 been travelling at less than 70 kilometres per hour rather than substantially in excess of it, it would have arrived at the intersection later, probably after the first defendant had completed the turn. The first defendant misjudged the amount of time which she had to complete the turn and the speed of the Mazda 6 contributed to that misjudgement. A collision was not inevitable and it probably would not have occurred if the plaintiff had not been speeding in the first place or reduced his speed to 70 kilometres or less when he was a substantial distance from the intersection. In any case, the plaintiff’s excessive speed contributed to the first defendant’s perception that she had sufficient time to complete the turn, based upon an assumption that the oncoming car was observing the speed limit.
- Because I have concluded that the first defendant was negligent and that there was also contributory negligence, responsibility must be apportioned. I should have regard to the degree of departure of each party from the standard of care of a reasonable driver and the relative importance of their respective conduct in causing the loss sustained by the plaintiff. In short, regard should be had to the degree of culpability of each driver and the causative force to be attributed to each of them.
- In my view, the first defendant’s degree of departure from the standard of care of a reasonable driver was significantly greater than the plaintiff’s.
- The first defendant was expected to exercise the high degree of vigilance required of a driver approaching an intersection, contemplating a turn across the path of an oncoming vehicle. It might be said that the plaintiff was expected to exercise a similar, high degree of vigilance in approaching the intersection, at a time when the Mazda 2 was in the turning lane and indicating an intention to turn across the northbound lane. Whilst the possibility that the Mazda 2 might turn across his path required consideration, it did not require the plaintiff to slow down to the extent that he could stop or take evasive action. That would place upon a driver approaching an intersection an unreasonably high duty of care. A driver is not required to be in a position where he or she can react to everything that 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.
- Whilst the plaintiff was not required upon seeing the Mazda 2 to either stop or slow to such a speed as to be able to avoid any collision, he was required to be vigilant and to lower his speed to a speed at or below the designated speed limit. I have concluded that he was driving at a speed substantially in excess of the speed limit, probably close to 90 kilometres per hour. In driving at that speed he contributed to the collision and the first defendant’s misjudgement that she had sufficient time to turn.
- Having regard to the degree of culpability of each driver and the respects in which each driver’s negligence caused the collision, I conclude that the liability should be apportioned in favour of the plaintiff and that there should be a reduction on account of contributory negligence of 30 per cent.
- For completeness, I should refer to a possible view of the evidence which I canvassed in the course of oral submissions: the possibility that the plaintiff had his lights on the parking setting. This possibility arises because of the first defendant’s reference in her evidence to thinking that the approaching lights were “maybe low beam lights”. The expression “low beam” in that context seemed to be intended by her to mean parking lights. She was not making a distinction between headlights being on low or high beam. I record that a statement which the first defendant gave to an insurance investigator dated 25 October 2012, and which was quoted at page 13 of Mr Keramidas’s report, gave an account of the headlights not being “very bright, they were maybe on low beam”. This statement was not admitted into evidence and was marked “I” for identification. In a witness statement dated 7 February 2013 (Exhibit 36) the first defendant said that she could remember that the other cars’ lights were “very small and low down”.
- I was not invited by either party to find that the headlights of the Mazda 6 were on parking mode. I have not found that they were, notwithstanding the first defendant’s evidence and what I took her to mean by “low beam”. This is because:
- The first defendant did not have a very good recollection of many matters, including distance and the intensity of the headlights; and
- Ms Iose did not give evidence that the headlights which she saw were not fully illuminated.
- Nevertheless, I recognise that a different view is open on the evidence in circumstances in which the first defendant noticed lights that were separate and thought that they may have been what she described as “low beam lights”. The possibility that Mazda 6’s lights were in parking mode arises if the plaintiff had stopped on his journey to make a purchase and, upon returning to his car, neglected to turn the light switch fully on. If his lights were in parking mode then this might explain why he did not detect that his lights were not fully on, particularly if his speedometer dial was illuminated and his parking lights provided some illumination of the road ahead. On this scenario, the two collisions (and the consequent damage to the car’s interior) or rescue efforts knocked the light switch through one station, rather than two, into an off position.
- If I had concluded that the Mazda 6 lights were on parking mode, then my apportionment of liability would not have been very different. This is because the first defendant was still able to see approaching lights and to detect that they were possibly on parking mode. There would have been something unusual about the lights of the oncoming car. Her observation would have called for even greater vigilance in assessing the speed of, and distance to, the oncoming car. On this alternative scenario, the plaintiff would have been negligent in an additional respect in inadvertently not turning his lights fully on when he returned to his car. However, for the reason I just mentioned, the first defendant’s departure from the standard of care would still have been very significant in terms of apportioning responsibility. If I had found that the lights of the Mazda 6 were on parking mode, then I would have apportioned liability 65:35 in favour of the plaintiff.
- There will be judgment for the plaintiff.
- Quantum having been agreed, it will be necessary for the parties to calculate damages on the basis of my apportionment of liability and agree, if possible, appropriate orders to sanction the settlement of the plaintiff’s quantum.
- I will adjourn the matter to a date to be fixed to enable the parties to resolve these matters or identify any matter which requires my determination.
 Turkmani v Visvalingham (2009) 53 MVR 176 at 182 .
 R v Stephenson  QCA 519 at .
 R v Bjordal (2005) 93 SASR 237 at 254 .
 Exhibit 17.
 Exhibit 16.
 Exhibit 16 .
 Exhibit 16 .
 I have modified the punctuation slightly from that appearing in Exhibit 5 to reflect what I understood to be the sentence structure. However, these changes do not affect the essential meaning of what she recalled.
 Exhibit 25 at p A12.
 (2005) 93 SASR 237.
 Exhibit 25 at p 38.
 Nominal Defendant v Stephens  NSWCA 312 at .
 (2003) 214 CLR 118 at 167 .
  QCA 519.
  QSC 297 at  citing Fox v Percy (2003) 214 CLR 118 at 166-167.
  HCA 64; (2004) 211 ALR 621 at 627  at .
 Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 529 at 532-533.
 Schill v O’Rourke (1985) 3 MVR 137 at 138-139.
 Marien v Gardiner  NSWCA 396 at  and the cases cited therein.
- Published Case Name:
Berwick v Clark & Anor
- Shortened Case Name:
Berwick v Clark
 QSC 116
28 May 2018
|Event||Citation or File||Date||Notes|
|Primary Judgment|| QSC 116||28 May 2018||Judgment for the plaintiff (with a reduction of 30% on account of contributory negligence): Applegarth J.|