Nash v Damorange Pty Ltd[2017] QDC 275

DISTRICT COURT OF QUEENSLAND

1. [1]
   On 18 July 2012, at the intersection of an off-ramp and service road for Ipswich Road, a truck ran headlong into a prime mover travelling across its lane. Fortunately, no one was hurt, but the vehicles suffered substantial damage. The owner of the prime mover, together with its driver, Daniel Montague, brought an action for negligence against Alan Nash, the driver of the truck. Mr Nash counterclaimed damages for negligence. The learned Magistrate gave judgment for the plaintiff.

2. [2]
   The ground of appeal concerns the decision of His Honour to exclude the evidence of crash scene analysis. The evidence was wrongly excluded. Mr Nash was deprived of the opportunity to lead relevant evidence in his defence. Regrettably, the matter must now be remitted to the Magistrates Court for rehearing.

3. [3]
   The area of dispute was narrow. The location and path of travel was uncontroversial. The prime mover was towing 2 trailers (referred to as the B Double). It had travelled north east along the Ipswich Service Road towards the intersection with Ashover Road at Rocklea. The Ipswich Service Road was a divided road for two-way travel. A Mitsubishi rigid truck with a crane (the truck) was on the opposite side of the intersection travelling toward the south west bound lane of the Ipswich Service Road. It had taken the Granard Road off-ramp onto the slip road.

4. [4]
   The B Double’s lane ended at the intersection at a stop sign and stop line. The road ahead arced around a triangular traffic island to effect a right hand turn towards Ashover Road. The road straightened to cut across the slip road before running onto Ashover Road. To use the intersection, the B Double had to drive across the path of the oncoming slip road. This was the road taken by the truck. It was a single, one-way lane which continued straight ahead, passing through the intersection to the other side of the Ipswich Service Road without a stop sign or give way sign. The posted speed limit was 60 kilometres per hour.

5. [5]
   Further back from the intersection, there were some bushes on a curve in the slip road. The bushes obstructed the view of traffic from both sides of the intersection. In other words, the line of sight for oncoming vehicles on both sides of the intersection began after the bushes.

6. [6]
   Evidence was given by the 2 drivers and an independent eyewitness called by the plaintiff.

The pleadings

7. [7]
   The plaintiff claimed that Mr Nash was negligent in that he caused his truck to collide with the B Double by, inter alia, failing to keep a proper lookout, driving too fast, failing to give way to the B Double and/or failing to swerve out of its path. The Second Amended Defence and Counterclaim denied any negligence by Mr Nash and attributed the collision to Mr Montague’s negligence in, inter alia, failing to stop or give way to the truck, failing to keep a proper lookout, and/or conducting a right-hand turn when it was unsafe to do so.

The excluded evidence

8. [8]
   Mr Nash had sought to call crash scene analyst John Ruller. Mr Ruller had visited the scene and taken various measurements. He used the skid marks and physics equations to calculate back from the point of impact to the area where the prime mover would have been when the truck came into view, and to calculate the time and distance each vehicle would require to stop.

9. [9]
   The learned Magistrate excluded Mr Ruller’s evidence in its entirety. The transcript suggests His Honour did not read the report. He also did not accept Mr Ruller’s experience was an area of recognised expertise. His Honour found that he did not need a “so called expert” to analyse the evidence. He considered himself to be sufficiently qualified through general driving experience, a period of driving smaller army trucks 30 years ago, involvement in “crash and bash” cases, and his common sense.

10. [10]
    His Honour identified his awareness that large vehicles needed time to stop, but it is not clear what, if any, special knowledge he applied. A court may take judicial notice of matters that are notorious or common knowledge. Reliance, however, on specialist information from extraneous sources may jeopardise a fair trial. Reliability would be difficult, if not impossible, for the parties to test. In Dasreef (Australia) Pty Ltd v Hawchar^[1], the High Court rejected a trial court’s reliance on its own experience as a specialist tribunal.

Daniel Montague

11. [11]
    Mr Montague drove the B Double. He testified that he stopped at the intersection, checked the road was clear of oncoming traffic, checked the rear vision mirrors, checked the front road again, and began to move onto the intersection. “Before I’ve entered the oncoming traffic line, I’ve checked my mirrors again, also looked where I intended turning and looked out my windscreen before I began to turn right. At this point, I’ve checked my mirrors to make sure my trailers are mounting kerbs and gutters, and proceed to turn into the intersection. Approximately half way through the lane, I checked my left hand window that’s now where the oncoming traffic would be coming from and that’s when I saw the truck coming towards me. And from that point….I just hung on and the truck hit me.”^[2]

12. [12]
    The time between his first awareness of the truck and the collision was not very long at all.^[3]He confirmed the front of his prime mover was already halfway across the oncoming lane when he first saw the truck. It was only 20 to 30 metres away. He marked his location and that of the truck on exhibit 1.^[4]

13. [13]
    He could not estimate his speed, but he said the rig was “very very slow” to take off.^[5]It might take three or four seconds to get the rig in motion.^[6]He accepted the distance from the stop sign to the middle of the intersection where the accident occurred was 17 metres.^[7]It may have taken him 20 seconds to get there.^[8]

14. [14]
    He was cross-examined about his ability to stop. He conceded he could have stopped when the prime mover’s nose was a couple of metres past the stop line if he had seen an oncoming vehicle.^[9]

Alan Nash

15. [15]
    Mr Nash was the driver of the rigid truck. He estimated the point at which drivers on the off-ramp had visibility was 80 metres back from the stop line and 60 metres from the collision site.^[10]

16. [16]
    He recalled the road was clear when he came around the corner.^[11]His initial view of the prime mover was front on. He knew it faced a stop sign. He could not tell if it was before, or at, or through the stop line. He did not know if it was moving.^[12]He assumed that it would not drive across his path because of the stop sign.^[13]

17. [17]
    He noticed it start to turn about 25 metres out from the point of impact. At that point, a collision was inevitable. The prime mover was in the middle of his lane and travelling across it.^[14]He knew he could not stop the truck. He had nowhere to turn, with a 3 metre ditch on the right, and a traffic island to his left. Either side he would still have hit the rig.^[15]He slammed the brakes, and the truck slid about 18 metres into the B double.^[16]He braked when he realised it was turning.^[17]The time between seeing it in front of him and impact was a few seconds.

18. [18]
    He clarified that when he was 20 to 25 metres out from the intersection, the B Double started to turn. It was not in the middle of the intersection at that point.^[18]He said he completed the last 20 to 25 metres in the time it took the Prime Mover to cross the lane and reach the edge of it.^[19]

19. [19]
    He recalled entering the off-ramp at 60 kilometres per hour and slowing down. At the time he first saw the prime mover he was travelling at 55 kilometres per hour. He continued at that speed until he applied the brakes.^[20]

20. [20]
    He was questioned about the speed. The speed limit was 60 kilometres per hour. He was familiar with the road. He was experienced in driving big rigs. He knew those heavy vehicles entered the intersection. He knew he would not see the intersection until he was 60 metres away from it. He debated whether he should have driven at 50, rather than 55 kilometres an hour. The relevant passage was this:^[21]

“…you knew if you weren’t able to bring your vehicle to a stop within that 60 metres whilst driving at the speed limit you would have to drive at a lesser speed? --…I suppose, yes. That’s correct.

And that would mean …driving at a speed less than 60 kilometres per hour ---?---I was driving at a speed less than 60 kilometres per hour.

I suggest that that would be a speed you would be required to drive your vehicle at a speed of less than 55 kilometres an hour? --- Well, how low do you want to go?

Do you agree that you should have been driving your vehicle at less than 55 kilometres an hour? --- No…I agree that I should have been driving it at 50 with the vision that I had. It’s all well and good in hindsight but… the road was clear in front of me so…Im talking about the hindsight of having a clear road in front of me at 60 metres and then getting to within 20 metres and a vehicle pulls out in front of you…I mean the situation has changed from being a clear road to all of a sudden a vehicle has jumped into the lane I’m going to cross…about 20, 25 metres…”

21. [21]
    There was no other evidence about a safe speed for the truck. There was no evidence of the speed which would have permitted him to stop before the intersection.

22. [22]
    Mr Nash described the way in which B Doubles manoeuvred through the intersection from the service road. This part of his evidence was not challenged. He said they have to first drive straight forward of the stop line before turning across the slip road. “They travel in a straight line before they start to turn so that the trailers actually clear the curve. So it actually travels a straight line and then they swing around the corner.”^[22]When driving towards a prime mover head on, it was impossible to discern whether the prime mover was slowly moving or stationary.

Todd Scott

23. [23]
    Mr Scott did not know either party. He was standing near a corner opposite the service road stop line. Like the other witnesses, he was an experienced driver of heavy vehicles and familiar with the area. He could see the Ipswich Service Road and the Granard Road slip road. He estimated the view up the slip road from the accident site was 60 to 70 metres. He stood a further 10 metres away.^[23]He had a view of the B Double and the truck at the same time, although at the time of impact the angle of the B Double blocked his view of the truck.

24. [24]
    Mr Scott testified the slip road was clear when the B Double was stopped at the stop line.^[24]He recalled first seeing the truck when the prime mover had reached the middle of the intersection and the first axle of the lead trailer was back at the stop line.^[25]It is apparent that he did not know how far the truck had travelled along the slip road in full view before he noticed it. Moreover, he did not nominate the location of the B Double when the truck came past the bend into view.

25. [25]
    When cross examined about the location of the truck when the prime mover was in the middle of the intersection, he said “40 to 50 metres” from himself,^[26]which suggests the truck was only 30 to 40 metres from the prime mover. He was then asked to clarify if that what where he first saw the truck. He then said he had first seen the truck come from the bushes, 80 metres away, before conceding he may not have seen the truck until it was “a lot closer than” 80 metres away.^[27]His attention directed more at B Double.^[28]

26. [26]
    It would be difficult to accurately observe and recall the exact location of 2 moving vehicles at exactly the same time when they were a significant distance apart, but travelling towards each other. Mr Nash’s confusion is understandable, but his testimony did not advance the important question as to where the B Double was when the truck came into view.

The Magistrates findings

27. [27]
    The Magistrate accepted Mr Montague’s account of the collision and rejected the version from Mr Nash. He thought the evidence of Mr Montague and the independent eyewitness matched “in almost every particular”. He described their accounts as putting the prime mover halfway across the lane when Mr Nash’s truck “came into view”.  This finding is at the heart of the judgment. It appears to have been the critical reason why His Honour found there was nothing Mr Montague could have done to prevent a collision and rejected Mr Nash’s defence and counterclaim. Yet the location of the B Double when the truck became visible was not the subject of direct evidence. Moreover, His Honour’s finding as to when Mr Nash’s truck became visible was contrary to the evidence. The middle of the intersection was only the point at which Mr Montague noticed the truck. Mr Montague testified that he did not notice the truck until it was 20 or 30 metres away from him. The implication of his evidence is that the truck had travelled 30 to 40 metres within view before he noticed it. His Honour did not address Mr Montague’s failure to notice the oncoming truck at an earlier point.

28. [28]
    It was common ground that from the Ipswich Service Road stop line and the bushes on the Granard Road slip road, there was about 80 metres of clear sight. Mr Montague accepted the distance from the stop line to “the middle of the intersection where the accident occurred” was 17 metres.^[29]Shortly afterwards, he did not demur when the 17 metres was expressed to be “from the stop sign to the middle of the road”.^[30]That suggests the first point at which it would be possible to view traffic entering the slip road would be at least 60 metres back from the collision site, which fits with Mr Scott’s estimate of 60 to 70 metres. There was no dispute that Mr Nash had come from Granard Road and travelled the length of the slip road. There was no claim of any obstruction to Mr Montague’s view, at any point in his travel from the stop line, up the slip road back to the bushy bend. It follows that Mr Nash’s truck would have been visible when it first came around the bushes, an estimated 60 to 70 metres from the crash. Yet Mr Montague’s evidence was that he did not see the truck until it was only 20 or 30 metres away from his position in the middle of the lane. The truck may have travelled 30 to 50 metres in plain view before Mr Montague noticed it.

29. [29]
    His Honour did not appear to consider whether Mr Montague had breached his duty to keep a proper lookout and otherwise may have avoided the collision. His Honour found only that Mr Montague’s obligation was to stop at the stop line and, thereafter, to move through the intersection “as quickly as possible”. Once he saw a clear path, he could move into and across the intersection with right of way against the oncoming traffic. His Honour said, “There are no circumstances in which it would have been appropriate or lawful for Mr Montague to have stopped across the traffic lane, had he even been able to do so, to supposedly avoid an accident when the defendant’s truck came into view.” That is a puzzling statement. The only intersecting traffic was from Mr Nash’s lane, which was had an unbroken flow through the intersection, without stop or give way lines. All motorists have a continuing duty to drive reasonably in the circumstances to avoid a collision.^[31]Manoeuvrability issues notwithstanding, the importance of vigilance by drivers of big rigs is obvious.

Opinion Evidence

30. [30]
    The general rule is that opinions are inadmissible. Witnesses may testify about relevant facts that they have observed, but not their opinion of them. The tribunal of fact is presumed to be competent to draw its own appropriate inferences from the evidence. Expert opinion is the exception. It requires an area of specialised knowledge, something that goes beyond general knowledge and common sense and which is credible. Secondly, a witness must have sufficient knowledge or expertise in that field to be held out as a witness who could assist the court. Thirdly, it requires disclosure of the facts on which the opinion is based^[32]and the reasoning which underpins the expert’s opinion.^[33]

Specialist field

31. [31]
    The specialist field must have credibility.^[34]It should be reliable. Appropriate recognition may demonstrate reliability. In HG v R^[35], Gaudron J referred to the common law’s requirement for the specialist knowledge to be in an area “sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience”.

32. [32]
    The Magistrate dismissed Mr Ruller as “a copper,basically,” to which the respondent’s counsel replied, “Not even a police officer”.^[36]Those comments sit uncomfortably with the depth and nature of Mr Ruller’s experience. His curriculum vitae indicates not only international recognition and acceptance of the science, but the prominence of John Ruller within his field. It lists extensive continuing education, research and practical experience spanning 30 years. Mr Ruller has completed courses in applied physics of accident reconstruction, vehicle dynamics and commercial vehicle investigations. He has had relevant association with a long list of organisations and universities. Over 24 years he conducted skid tests on various surfaces. He has published at least 9 papers on braking and spoken at 9 international seminars. He has staged and observed heavy vehicle crashes. He also claims specific expertise with braking times and distances for trucks, for example, in 2010, he ran research on multi-trailer combinations and in New Orleans in 2011 presented his paper on “brake activation timing methodology and its effect on the overall stopping distance of tractor trailer combinations”. He was involved in the reconstruction of more than 1000 serious collisions during his 25 years with Queensland Police Service, including 10 years as the Senior Collision Analyst. Over that time, his evidence in areas such as skid marks and time, speed and distance was received by judges and magistrates in Queensland courts and elsewhere.

33. [33]
    The respondents disputed the existence of an organised branch of knowledge in “accident reconstruction”. This passage from Callinan J in Fox v Percy^[37]was adopted by White J in Read v Nominal Defendant^[38]:

“Three things may be said about the evidence in this case and running down cases generally. Rarely in my opinion will such evidence have very much, or any, utility. Usually it will be based upon accounts, often subjective and partisan accounts, of events occurring very rapidly and involving estimates of time, space, speed and distance made by people unused to the making of such estimates. Minor, and even unintended but inevitable discrepancies in relation to any of these are capable of distorting the opinions of the experts who depend on them. It is also open to question whether variables in relation to surfaces, weather, and the tyres, weight and mechanical capacities of the vehicles involved can ever be suitably accounted for so as to provide any sound basis for the expression of an opinion of any value to a court. The engagement of experts in running down cases, other than in exceptional circumstances, is not a practice to be encouraged.”

34. [34]
    Callinan J’s remarks were obiter dicta. The expert evidence in question was inadmissible because it lacked probative value in that case. Further, the High Court did not reject accident reconstruction as an area of specialist knowledge. Callinan J had questioned whether, in general, the necessary factual foundation for opinions about time, space and distance could be sufficiently established. Any opinion is likely to be worthless unless the facts on which it is premised are reliable.

35. [35]
    Recent decisions of the Court of Appeal have accepted the legitimacy of the science. In R v Mackenzie^[39], a trained forensic crash investigator had formulated an opinion about the point of impact from gouge marks and the final location of the vehicles. There was no challenge to the “field of specialised knowledge with respect to the causes of motor vehicle collisions”.^[40]The Court held the evidence had substantial probative value and was properly admitted.  In R v Sheldon^[41],a traffic investigation officer from the Queensland Police Service had interpreted road marks at the trial. On appeal, Mr Sheldon sought to introduce new evidence from a “road safety and traffic engineering consultant” about stopping times and distance. The new evidence was rejected for want of an evidentiary basis, but the court did not did not question the field of expertise or the qualification of either witness.

36. [36]
    I am satisfied that crash reconstruction is a scientific process of analysis for drawing conclusions about causes and events of collisions. I am also satisfied that John Ruller is qualified to testify as an expert in that area.

The nature of Mr Ruller’s evidence

37. [37]
    The present was a different kind of case to Fox v Percy. Many facts were not controversial. The path of travel for each vehicle and the location of impact were identified with relative precision. There was general agreement about the point from which the prime mover had started moving and the point from which the truck would come within the line of sight. Accurate measurement of those points was possible. Similarly, there was no dispute that the truck initially travelled at about 55 kilometres per hour, and the prime mover was travelling very slowly. The distances involved were short.

38. [38]
    Mr Ruller’s evidence was in the nature of equations based upon his own measurements and other circumstances that do not appear to have been controversial at trial. From those, he calculated time and speed. He referenced published studies^[42]and set out the equations he used and the values he applied, with an index of presumed facts.  He thereby provided a demonstrable, objective procedure for reaching his conclusions.^[43]His work could be tested and reviewed. He provided calculations for the range of variables, but the conclusion was the same. According to his calculations, if Mr Montague had braked when Mr Nash had braked, the prime mover could have stopped before the slip road, thus avoiding collision with the truck. Mr Ruller concluded he would have stopped at least 4 metres from the lane and perhaps as far back as 11.9 metres.

39. [39]
    The respondents pointed out that Mr Ruller’s calculations were premised upon a prime mover with a load totalling 35 to 37 tonnes, whereas the unchallenged evidence was a total mass of 50 tonnes. The accuracy of the factual foundation of the opinion goes to its relevance and weight. That does not mean that the proven facts must exactly match those assumed by the expert. It is a question of fact whether the facts are sufficiently similar for the opinion to have value. “(I)f other admissible evidence establishes that the matters assumed are “sufficiently like” the matters established to “render the opinion of the expert of any value”, even though they may not correspond “with complete precision” , the opinion will be admissible and  material.”^[44]To have value, the opinion must have some “rational relationship” with the facts proved. The less value an opinion has, the less relevant it will be.^[45]An expert opinion without relevance would be inadmissible.

40. [40]
    One might expect that Mr Ruller would address the scenario of 50 tonnes in his testimony, but, logically, the calculations done for a lighter rig did not present the appellant’s case more favourably than if the weight had been factored in correctly. Basic laws of physics suggest a heavier vehicle would result in slower acceleration by the B Double, which in turn would put it further away from the slip lane at the time the truck came into view, thus allowing more time to stop. The factual discrepancy does not deprive Mr Ruller’s report of value.

Other criticism

41. [41]
    The respondents asserted that the opinion was not needed to decide the matter because there were 3 eyewitnesses. The existence of eyewitnesses does not make expert evidence about relevant matters inadmissible. The test is not the absence of eyewitness evidence, but whether the expert would offer assistance to the court beyond common knowledge. Expert evidence may tend to strengthen, refute or supplement direct testimony.

Pages 28 – 30

42. [42]
    The appellant had abandoned reliance on the last section of Mr Ruller’s report, headed “Review of Pacific Claims Group Report”. The Pacific Claims Report was not in evidence.

43. [43]
    The second half of the preceding section, headed “Mr Nash’s Avoidance Measures”, is also questionable.

44. [44]
    The third paragraph, beginning at line 16 on page 28, refers to the Pacific Claims Report and would appear irrelevant. The fourth paragraph, beginning at line 20 on page 28, opines that the B Double moving slowly may well have appeared, from a head-on perspective, to be stopped. It is not clear whether this is offered as an expert opinion or mere conjecture. An opinion expressed by the witness must be wholly or substantially based on the witness’ expert knowledge.^[46]Unless Mr Ruller claims some relevant experience of viewing similar oncoming vehicles at a slow speed, that part of his report trespasses beyond his expertise and therefore would be inadmissible.

45. [45]
    The last 3 paragraphs, from line 24 on page 28, comment on the reasonableness of Mr Nash’s reaction. Whilst it would be open to Mr Ruller to address the options open to either driver, if any, to avoid the collision, he is not permitted to supplant the function of the Magistrate. The reasonableness of both parties’ driving was the very issue before the court. The last 3 paragraphs from line 24 on page 28 are therefore inadmissible.

Conclusion

46. [46]
    It follows that I am satisfied that the report of John Ruller dated 24 June 2014 (together with his curriculum vitae and the Statement of Assumptions dated 18 December 2014) is admissible, subject to the above observations about pages 28 to 30. Mr Ruller’s expert opinion has substantial probative value to the facts in issue. The appellant was wrongly deprived of that evidence in his defence and counterclaim.

47. [47]
    Order

1. 1The appeal is allowed.

2. 2The judgment of the Magistrate at Brisbane is quashed and the matter is remitted to the Magistrates Court for rehearing.

3. 3I will hear the parties as to costs.