Rawlings, Scott Peter v Cawthorn, Wendy Margaret

Court:Full Supreme Court
Docket Number:FCA 19/2010
Judge:Blow J, Porter J, Wood J
Judgment Date:17 Dec 2010
Jurisdiction:Tasmania

[2010] TASFC 8

[2009] TASSC 119

SUPREME COURT OF TASMANIA (FULL COURT)

Blow, Porter and Wood JJ

FCA 19/2010

Rawlings, Scott Peter
and
Cawthorn, Wendy Margaret
Cawthorn
and
Rawlings

Aust Dig Torts [103]

Torts — Negligence — Road accident cases — Actions for negligence — Evidence — Onus of proof and sufficiency of evidence — Rollover of log truck — Collision with car — Cause of collision — Whether truck driver negligent.

REASONS FOR JUDGMENT
FULL COURT
Blow J
1

This appeal concerns the causation of a fatal log truck accident. It occurred before dawn, at about 4.45am on 30 August 2006, on the Lyell Highway between Granton and New Norfolk. The appellant, Scott Rawlings, was driving a Volvo prime mover towing two trailers, each fully laden with logs, west towards New Norfolk. The respondent's husband, Roger Cawthorn, was driving alone in the other direction in a Pajero four-wheel-drive vehicle. The Pajero came into collision with either the appellant's rear trailer, or with logs that had fallen from it, or both. Mr Cawthorn died at the scene. The respondent, Wendy Cawthorn, sued the appellant for damages. Agreement was reached as to the quantum of damages, but the parties went to trial in relation to questions of liability. Tennent J held that the appellant had driven the truck negligently, and that there had been no contributory negligence on the part of the deceased, and gave judgment accordingly:Cawthorn v Rawlings [2009] TASSC 119. In this appeal, the appellant contends that her Honour should not have made any finding that he was negligent.

2

At the trial, the case for the plaintiff (now the respondent) was that the second of the two log trailers (sometimes referred to as ‘the B-trailer’) rolled over onto the Pajero's side of the road, either into the path of the Pajero or on top of it. The case for the defendant (now the appellant) was that the Pajero was driven by the deceased into the outer right rear wheel of the rear trailer, causing that trailer to capsize. The prime mover and the front trailer did not capsize.

3

The plaintiff's case as to negligence was based entirely on circumstantial evidence. The only people present at the time of the collision were the two drivers, one of whom was killed. The defendant was unable to say what caused the collision. When interviewed by a police officer, Sgt Carrick, six days afterwards, he said that he remembered going around a corner; that he remembered seeing a vehicle coming in the opposite direction; that he heard a bang; that he assumed that it was a tyre blowing out; that he looked in his mirror and saw logs and sparks going everywhere; that he realised that one of his trailers had gone over; that he rang 000 to say that logs were all over the road; and that he thereafter learned from another driver that another vehicle had been involved. He adhered to that version of events in his evidence at the trial.

4

The circumstantial evidence relevant to the issue of negligence consisted of the following:

  • • Evidence as to the road and its physical characteristics, including evidence of measurements.

  • • Photographs taken after the accident.

  • • Evidence of observations at the accident scene, including evidence as to marks on the road surface, the damage to the vehicles, and their final resting places.

  • • Evidence as to the log truck, its trailers, their load, and the means of securing the load.

  • • Evidence as to the defendant's speed and manner of driving prior to the rollover.

  • • Evidence as to the defendant's driving experience.

  • • Evidence as to the past behaviour of the log truck, and the behaviour of a similar truck, on the same stretch of road.

  • • Evidence from a Mr Reid who heard the collision when fishing nearby.

5

Three witnesses gave expert opinion evidence as to the cause of the collision—Sgt Carrick, Mr Jamieson, and Mr Elphinstone. Sgt Carrick is a police accident investigator who investigated this collision. He was called as a witness for the plaintiff, but in cross-examination gave opinion evidence favourable to the defendant. Mr Jamieson, a consulting engineer, gave expert evidence for the plaintiff, to the effect that the collision was caused by the negligence of the defendant. Mr Elphinstone gave expert evidence for the defendant. He had no academic qualifications, but was the manager of a business that had manufactured trailers for log trucks for over 30 years, and had investigated 30 to 40 trucking accidents, including about 15 high speed rollovers, most of them involving log trucks.

6

Sgt Carrick and Mr Elphinstone both expressed the opinion that the collision had been caused by the Pajero colliding with the outer right wheel on the rear axle of the log truck's rear trailer. There was substantial impact damage to the metal rim of that wheel. Mr Jamieson's opinion was that the collision had been caused by the rear trailer commencing to roll, and losing its load as the Pajero reached it.

7

The learned trial judge made findings that the rear wheels of the rear trailer crossed slightly onto the wrong side of the road; that the trailer began to roll onto its right hand side of the road prior to any impact with the Pajero; that its load came loose and logs began to spill onto the road; and that the Pajero then collided with it. She rejected arguments that the appellant had failed to keep a proper lookout, negligently failed to apply his brakes, negligently failed to take evasive action, driven at an excessive speed, driven on the incorrect side of the road, and driven in such a manner and at such a speed as to cause the rear trailer to cross onto its incorrect side. She found only one particular of negligence proven. That particular alleged that the appellant ‘drove in such a manner and at such a speed as to cause the second of the two trailers to roll over and into the path of the vehicle driven by the deceased’.

8

Counsel for the appellant submitted that that finding was inconsistent with the learned trial judge's rejection of the allegations that his client had driven at an excessive speed, driven on the incorrect side of the road, and driven in such a manner and at such a speed as to cause the rear trailer to cross onto its incorrect side.

9

At the hearing of the appeal, counsel for the appellant submitted that this Court should substitute its own findings of fact for those of the learned trial judge, in accordance with the principles discussed by the High Court inFox v Percy (2003) 214 CLR 118; Suvaal v Cessnock City Council (2003) 77 ALJR 1449; Pledge v Roads and Traffic Authority (2004) 78 ALJR 572; Anikin v Sierra (2004) 79 ALJR 452; Commissioner of Main Roads v Jones (2005) 79 ALJR 1104; and Roads and Traffic Authority v Royal (2008) 82 ALJR 870.

10

Much of the evidence before the learned trial judge was uncontroversial and provided no support at all for any finding of negligence. There is no challenge to the facts as found by the learned trial judge in the following passages in her reasons:

‘The defendant was employed as a log truck driver by a firm called Lloyds North. He had held a licence to enable him to drive the type of truck he was driving this day, for some four years. He had held a heavy vehicle licence for some time before that. On the day of the accident, he began work at 1am at the company's depot at Cooee. His role that day was to drive the B Double rig laden with logs from Cooee to the Norske Sk?g mill at Boyer. He had been doing the same trip five to six days a week for the previous eight months. On some occasions he drove alone. On others, another truck would drive the route with him. On this particular day, the defendant did the trip in convoy with another, slightly smaller, rig driven by Shaun Butler. The pair drove their trucks down the Midland Highway to Bridgewater. Because of the size of the defendant's rig, once he reached Bridgewater, he was unable to drive the most direct route to the Boyer mill. Instead, he had to cross the Bridgewater bridge and then turnonto the Lyell Highway and travel towards New Norfolk. Butler had the defendant's rig in his sight for most of the trip from Cooee, but did not have it in his sight at the time of the accident.

The Lyell Highway between Granton and New Norfolk runs approximately in an east/west direction. A vehicle travelling to New Norfolk is travelling in a westerly direction, while a vehicle travelling towards Hobart is travelling east. The highway runs more or less parallel to the Derwent River. The river is to the side of the Hobart bound lane and can be accessed, in the vicinity of the accident site, down a steep bank through bush. In that vicinity, the west bound lane of the highway is 3.6 metres wide, while the east bound lane is 3.4 metres wide. The lanes are divided by double unbroken white lines. In the west bound lane in the direction of New Norfolk, there is a sweeping left hand bend in the road. On the river side of the east bound lane, between the road and the river, at and just past the apex of the bend (looking towards New Norfolk), there is a gravel verge, then a low metal security fence with a gravelled area on the other side. That fence ends at a point just past the apex of the bend. After that, a wide gravel verge continues some distance along the side of the road to a large tree on the top of the river bank.

Vehicles travelling west into the sweeping left hand bend and just through it would travel slightly downhill. Through the bend, the road straightens out and flattens. The bend itself had what the police accident investigator Sergeant Carrick ('Carrick') called a positive camber, that is, it sloped down from the direction of the east bound lane towards the west bound lane and the southern side of the road.

Having regard to the evidence, I can be satisfied that the B Double the defendant was driving on the day of the accident was loaded with pine logs and had been driven from Cooee...

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