DISTRICT COURT OF QUEENSLAND
CITATION:
R v Gallaty [2020] QDC 230
PARTIES:
R
v
RONALD TREVOR GALLATY
(defendant)
FILE NO/S:
BD 453/20
DIVISION:
Criminal
PROCEEDING:
Trial
DELIVERED ON:
18 September 2020
DELIVERED AT:
Brisbane
HEARING DATE:
12, 13, 17, 18 and 20 August 2020
JUDGE:
Barlow QC DCJ
VERDICT:
Guilty of dangerous operation of a vehicle causing death
CATCHWORDS:
CRIMINAL LAW – PARTICULAR OFFENCES – CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM – CAUSATION – defendant was driving a truck and trailer – trailer slid into oncoming lane – whether the defendant was driving too fast for the conditions – whether the automatic emergency application of the brakes by the truck’s automatic brake assist or its stability control function (or both) or faults in the trailer’s brakes caused the trailer to slide into oncoming lane
CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – ACCIDENT – EVENT OCCURING BY ACCIDENT OR CHANCE – defendant contended that the automatic emergency application of the truck’s brakes or faults in the trailer’s brakes were an act independent of the defendant’s will that caused the deceased’s death or were not foreseeable – whether the defence of accident applies
Criminal Code Act 1899 (Qld) s 23, s 328A, s 615B, s 615C
R v Falconer (1990) 171 CLR 30, applied
R v MMH [2020] QDC 70, applied
R v Neilan [1992] 1 VR 57, applied
R v Quinn [1962] 2 QB 245, applied
R v Summers [1990] 1 Qd R 92, applied
R v Taiters [1997] 1 Qd R 333, applied
COUNSEL:
DC Boyle for the Crown
AS McDougall for the defendant
SOLICITORS:
Office of the Director of Public Prosecutions for the Crown
TWC Lawyers for the defendant
Contents
Introduction
Preliminary principles
Elements of the alleged offence
The principal issues
Crown evidence
Eye witnesses
Anthony Simpson
Grace Ivory
Kerrilee Angus
Mark Cantlon
Expert witnesses
Neil James Campbell
Robert Tilney
David Oliver
Peter Briggs
Antony Cheyne
Timothy Woodcock
Andrew McLaren
Siva Jeevaratnam
Other Crown evidence
Mark Graham
Brayden Walker
Defendant’s evidence
Preliminary matters
Roadside interview
Formal interview
Evidence in court
Other defence evidence
Mark Sculthorpe
Steven Smith
Submissions
Defence
Defence of accident
Crown
Discussion and findings of fact
Was Mr Gallaty driving dangerously?
Vehicle speed
Vehicle path on the road
Conclusion on driving dangerously
What caused the trailer brakes to lock?
Active brake assist
Stability control
Braking by Mr Gallaty
The brake system faults
Conclusion on cause of braking
Defence of accident
Conclusions and verdict
Introduction
Thursday 17 November 2016 was a dry, sunny day in the Gold Coast hinterland in southern Queensland. Shortly after 9.00 o’clock that morning, Peter Wayne Bohlsen, an employed driver for Logan Coaches, was driving a bus in a northerly direction along Waterford-Tamborine Road, about 2 kilometres south of the township of Yarrabilba. Mr Bohlsen had two passengers on board. One was a fellow bus driver, Anthony Simpson, who was sitting in the front passenger seat chatting with Mr Bohlsen.
At about the same time, the defendant, Ronald Trevor Gallaty, was driving his Mercedes Benz Actros truck, towing a Hamelex quad axle tipper trailer, in a mostly southerly direction along Waterford-Tamborine Road. Shortly before, he had delivered a load of sand to an address in North Maclean, so both his truck and his trailer were empty. He was on his way to collect a fresh load from a sand and soil company in Boyland.
Waterford-Tamborine Road at the time could be described as a not unusual semi-rural road. It had one lane in each direction, constructed with bitumen and separated by continuous double white lines. Each lane was about 3 metres or less wide, had an edge line and beyond that line on the southbound lane was a bitumen edge about 0.5 metres wide. The surface of the road was cracked and bumpy in places, but it was by no means in substantial disrepair.
Mr Gallaty was well familiar with that road. He drove his truck and trailer 5½ days a week and he drove on that road about twice a month. He had owned the truck since July 2015, before when it had been a demonstrator vehicle and it had travelled about 20,000 kilometres. He had owned the trailer since 2011. He had been driving heavy vehicles since about 1990.
The weather was clear and the road was dry. The speed limit on that section of the road was 80kmh. Both Mr Gallaty and Mr Bohlsen were driving at about that speed while on straight sections of the road.
About 325 metres[1] roughly north of the intersection of Dollarbird Road there is a bend in Waterford-Tamborine Road. Travelling south, as Mr Gallaty was, the road bends to the left. Mr Gallaty’s truck and trailer and Mr Bohlsen’s bus met at about (or just south of) the apex of that bend. At that point and for some distance in each direction from the bend, the lanes on the road were separated by double white lines.
[1]I take this measurement from exhibit 7, an aerial photograph of the surrounding area with a scale of 1:2500.
As Mr Gallaty’s truck and trailer rounded the apex of that bend, the trailer started to skid to the right of the path of the truck. It crossed the centre lines and collided with the front right hand side of the bus, causing considerable damage to both the bus and the trailer. Mr Bohlsen suffered severe injuries, from which he died a few days later.
Mr Gallaty is charged that, on 17 November 2016, contrary to s 328A of the Criminal Code Act 1899, he dangerously operated a vehicle on Waterford-Tamborine Road and caused the death of Mr Bohlsen.
Mr Gallaty has pleaded not guilty. On 6 July 2020, an order was made pursuant to s 615 of the Code that the defendant be tried by a judge sitting without a jury. I have conducted the trial. It is my role to determine on the evidence whether Mr Gallaty is guilty or not guilty of the offence charged. It is also open to me to consider whether Mr Gallaty is guilty or not guilty of an alternative offence, namely dangerous operation of a vehicle.
Preliminary principles
In a trial by a judge sitting without a jury, the judge must apply, so far as is practicable, the same principles of law and procedure as would be applied in a trial by jury.[2] If statute or the common law requires that information, a warning or an instruction be given to a jury, the judge in a trial sitting without a jury must take that requirement into account if it is relevant to the trial.[3]
[2]Code, s 615B(1).
[3]Code, s 615B(3).
In reaching a verdict, the judge may make any finding or give any verdict that a jury could have made or given if the trial had been before a jury. Any finding made or verdict given by the judge has the same effect as a finding or verdict of a jury.[4] Unlike a jury, a judge must give reasons for his or her verdict. The reasons must include the principles of law that the judge has applied and the findings of fact relied upon.[5]
[4]Code, s 615C(1).
[5]Code, s 615C(3).
The burden of proof rests on the prosecution to prove the defendant’s guilt. There is no burden on the defendant to establish any fact, let alone his innocence. A defendant in a criminal trial is presumed to be innocent. The Crown has the burden of proving the defendant’s guilt of the offence charged beyond reasonable doubt. Before I may find the defendant guilty, the Crown must satisfy me, beyond reasonable doubt, of all the essential elements of the offence. If I am left with a reasonable doubt about the defendant’s guilt, my duty is to acquit him. If I am not left with any such doubt, my duty is to convict him. I must approach my duty completely impartially and emotion or sympathy (whether for the defendant, the deceased or anyone else) must play no part in my decision.
In conducting the trial and in considering the verdict, I also adopt, with respect, the principles set out by Smith DCJA in R v MMH [2020] QDC 70 at [10] (some of which I have expanded upon in this section of these reasons).
I must reach my verdict only on the evidence presented in court. The evidence comprises what the witnesses said from the witness box, by telephone or by video link, the admissions that have been made and the other exhibits that have been tendered. Nothing else is evidence, including, of course, the opening statements and the closing addresses of counsel for the Crown and for the defence.
Much of the evidence in this case was given by expert witnesses. On the whole, neither party disputed that the expert witnesses called by the other had the necessary expertise to express opinions on matters within their expertise. Where I consider that such a witness has expressed an opinion in an area outside that person’s expertise, I shall record that fact and disregard that opinion. The fact that they are experts does not mean that I must automatically accept their evidence. As with other evidence, I assess and accept or reject any such opinion evidence as I see fit. It is up to me to give such weight to the opinions of the expert witnesses as I think should be given, having regard in each case to the qualifications of the witness, whether I thought the witness to be impartial or partial to either side and the extent to which the witness’s opinion accords with whatever other facts I find proved.
If the facts on which an expert’s opinion is based are not in accordance with the relevant facts that I find, I would not accept the expert’s opinion (unless there is some other legitimate basis that I accept). I am also, to some degree, entitled to use overall common sense and to take into account my own experiences, if they are relevant to an issue to which an expert’s opinion relates.
Some of the experts (and indeed some of the non-expert witnesses) gave evidence by telephone or by video link. I do not give any of that evidence any more or less weight, nor draw any adverse inferences against either party, simply because the evidence was given by telephone or video.
Some of the evidence tendered during the trial constituted recordings of conversations, each of which was transcribed and the transcripts were also tendered. Notwithstanding that the transcripts were tendered as exhibits, they are not really evidence, but merely an aid to my understanding of the recordings. It is what I hear that matters; so if I hear something different from what appears in the transcript I should act on what I have heard, not on the transcript.
Similarly, some video recordings were tendered in evidence. Some witnesses expressed their opinions of what could be seen from those recordings. Their opinions in that respect are theirs, not mine. Their opinions may assist me, but they do not bind me. It is up to me to draw my own conclusions of fact (including any inferences) from what I see in the videos and not from what witnesses (or counsel) may see or seek to infer from those videos.
In addition to finding facts by reference to primary evidence, I can draw inferences – that is, deductions or conclusions – from facts which I find to be established by the evidence. Similarly, evidence of direct facts may be circumstantial evidence from which I may logically conclude that another fact occurred. However, I may only draw reasonable inferences; and any inferences must be based on facts that I find proved by the evidence. There must be a logical and rational connection between the facts that I find and any inferences I draw. I am not to indulge in intuition or guessing.
To bring in a verdict of guilty based entirely or substantially upon circumstantial evidence, it is necessary that guilt should not only be a rational inference but also that it should be the only rational inference that could be drawn from the circumstances. If there is any reasonable possibility consistent with the defendant’s innocence, it is my duty to find the defendant not guilty. This follows from the requirement that guilt must be established beyond reasonable doubt.
Elements of the alleged offence
In order to convict the defendant of the offence, the Crown must prove, beyond reasonable doubt, all the following facts.[6]
(a)The defendant operated a vehicle.
The operation of a vehicle includes the speed at which the vehicle is driven and all matters connected with the management and control of the vehicle by the driver, such as keeping a lookout, turning, slowing down and stopping.
A “vehicle” includes a motor vehicle and anything else used or to be used to carry persons or goods from place to place.[7] In this case, the vehicles involved were Mr Gallaty’s truck and the trailer it was towing.
In this case, the fact that Mr Gallaty was the driver of the truck, towing the trailer, is sufficient to satisfy the requirement that he “operated” each of those vehicles. Neither party contended otherwise.
(b)He did so in a place: in this case, Waterford-Tamborine Road.
This is not in issue.
(c)The defendant’s operation of the vehicle was dangerous.
(d)The defendant thereby caused the death of the deceased.
[6]Code, s 328A(4).
[7]Code, s 1.
Operating a vehicle dangerously means operating a vehicle at a speed or in a way that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place; the nature and condition of the vehicle; the number of persons, vehicles or other objects that are, or might reasonably be expected to be, in the place; the concentration of alcohol in the operator’s blood or breath; and the presence of any other substance in the operator’s body.[8]
[8]Code, s 328A(6).
The expression “operates a vehicle dangerously” in general does not require any given state of mind on the part of the driver as an essential element of the offence. A motorist may believe he or she is driving carefully, yet be guilty of operating a vehicle dangerously. “Dangerously” is to be given its ordinary meaning: that is, something that presents a real risk of injury or damage. The ordinary meaning of “dangerous” is “fraught with or causing danger; involving risk; perilous; hazardous; unsafe.” When applied to driving, it describes a manner or speed of driving which gives rise to a risk to others, including motorists, cyclists, pedestrians and the driver’s own passengers.[9] The same can be said about the operation of a towed vehicle such as a trailer.
[9]King v The Queen (2012) 245 CLR 588.
The prosecution must prove that there was a situation which, viewed objectively, was dangerous.[10] For the operation of a vehicle to be dangerous, there must be some feature which is identified, not as a mere want of care, but as subjecting the public to some risk over and above that ordinarily associated with the operation of a vehicle, including operation by a person who may, on occasions, operate the vehicle with less than due care and attention.[11]
[10]R v Jiminez(1992) 173 CLR 572, 583; R v McBride(1966) 115 CLR 44, 50-51.
[11]Jiminez, 579.
If a driver adopts a manner of driving that is, in all the circumstances of the case, dangerous to other road users, it does not matter whether the driver is deliberately reckless, careless, momentarily inattentive or even doing the driver’s incompetent best. However, the prosecution must prove that there was some serious breach of the proper conduct of the vehicle upon the roadway, so serious as to be in reality, and not speculatively, potentially dangerous to others.[12]
[12]McBride, 49-50.
The Crown contends that Mr Gallaty’s allegedly dangerous operation of the vehicles in this case (the truck and the trailer) arises principally from the manner in which he was driving his truck. For simplicity, I shall therefore mostly refer to his operation of those vehicles as driving, but by doing so I do not exclude the fact that he was using the truck to tow the trailer and was thereby operating both the truck and the trailer. This is also the manner in which counsel approached the issues during the trial.
The consequences of the defendant’s acts or omissions cannot add to the criminality of his driving. The quality of being dangerous to the public does not depend on the resultant damage. Whilst the immediate result of driving may afford evidence from which the quality of the driving may be inferred, it is not the result which gives that quality.[13]
[13]McBride, 50.
As to the element of causing a person’s death, to cause means to cause directly or indirectly. It is not necessary for the prosecution to prove that the dangerous operation of the vehicle was the only cause of Mr Bohlsen’s death. It is sufficient for it to show that dangerous driving by Mr Gallaty was a substantial or significant cause of Mr Bohlsen’s death or contributed substantially to it.[14]
[14]Royall v The Queen(1991) 172 CLR 378, 398, 411-412, 423.
The principal issues
Before considering the evidence, it is useful to identify the real factual issues in this case, which go to whether Mr Gallaty was driving dangerously and whether his manner of driving caused Mr Bohlsen’s death.
In short, the Crown contends that Mr Gallaty approached, entered and navigated the bend at a speed that was too high and was dangerous in all the circumstances. The Crown alleges that it was particularly dangerous because the truck and the trailer were both empty, which reduced the friction of the tyres on the road, making the combination more unstable and more likely to lead to the stability control function of the truck activating the brakes, with a risk that the brakes on the trailer would lock up, causing an uncontrolled slide of the trailer into the oncoming lane. The Crown says that is what happened, or alternatively Mr Gallaty himself applied the brakes in the bend, causing the trailer to slide. Whichever of those was the cause, it resulted from Mr Gallaty’s dangerous driving and therefore it was his operation of the vehicle that caused Mr Bohlsen’s death.
Mr Gallaty admits that, as his truck rounded the bend, the trailer skidded across the road and struck the bus being driven by Mr Bohlsen. He also admits that Mr Bohlsen died from the injuries he sustained from that collision.[15] I do not understand the Crown to allege that Mr Gallaty intended to drive dangerously at that time.
[15]These admissions are made in exhibit 2.
It is convenient here to set out the circumstances that the Crown alleges led to Mr Gallaty’s operation of the truck and trailer being dangerous:[16]
[16]Set out in the particulars of the charge, exhibit 1.
(a)excessive speed;
(b)the curve in the road;
(c)the road was in poor condition and was a single lane carriageway in each direction separated by two continuous dividing lines;
(d)the size and heavy nature of the truck and trailer;
(e)the trailer was unladen;
(f)the traffic on the road travelling in the opposite direction;
(g)the different brake systems for the truck (ABS[17]) and the trailer (non-ABS) which, on actuation, caused the brakes on the trailer to lock; and
(h)the brakes on the trailer were actuated by:
(i) the operation of the truck’s stability control caused by the speed and steering of the defendant in driving the truck; and/or
(ii) the application of the brakes by the defendant.
[17]That is, an anti-skid braking system that prevents the wheels locking up fully and therefore skidding.
The defence contends, in summary, that the Crown and the court cannot exclude beyond reasonable doubt that the trailer may have skidded because its brakes locked up as a result of the automatic emergency application of the brakes by the truck’s automatic brake assist (ABA) function or its stability control (SR[18]) function (or both). It may also have been caused or contributed to by faults in the trailer’s brakes. Whichever was the cause, it occurred in circumstances where neither of those functions ought to have operated and Mr Gallaty could not have foreseen or prevented their operation. Nor could he have foreseen the defects in the trailer’s brakes (if I find that those defects caused or contributed to the collision). The expert evidence was directed principally to these questions.
[18]The electronic stability control function in this truck was labelled SR, which appears to be a shortened anagram of the German term for what is now a part of the stability control system known as “drive slip control” – Antriebsschlupfregelung. I shall therefore refer to it either in that manner or simply as stability control.
The Crown contends that the court can be satisfied beyond reasonable doubt that the ABA function would not have operated so as to cause the brakes to be applied before the collision. If any automatic system applied the brakes, it was the electronic stability control system, which is designed to detect a risk of the truck tipping and to attempt to prevent it by selectively activating its brakes. However, the application of brakes in such a case can cause the brakes on a non-ABS trailer to lock the wheels instead of simply slowing them. That can cause a loss of directional control of the trailer. The loss of control of the trailer in this case was caused either by Mr Gallaty braking (and perhaps turning the steering wheel sharply to the left) or by the SR system detecting instability in the truck as it went around the corner and applying the brakes in an attempt to correct that situation. In either case, the court can be satisfied beyond reasonable doubt that it was Mr Gallaty’s manner of driving the truck and trailer that caused the trailer to skid into the opposite lane and into the path of the oncoming bus.
Related to these issues are how fast Mr Gallaty’s truck was travelling as it entered and rounded the bend and whether that was a safe speed in all the circumstances. Some of the expert evidence and much of the lay witnesses’ evidence was directed to those questions.
I turn now to review the evidence.
Crown evidence
Eye witnesses
The Crown called four witnesses who saw or were involved in the collision.
Anthony Simpson
Mr Simpson was, at the time, employed by Logan Coaches as a bus driver. He was a passenger in the bus driven by Mr Bohlsen, sitting in the front passenger seat on the left side of the bus, just behind the entrance stairwell.
Mr Simpson said that he had a very good view out of the large windscreen in front of him. He said that, after passing the intersection with Dollarbird Road, the bus started slowing down. As it approached the bend he saw a truck coming around the bend in the opposite direction. The right front wheel of the truck was very near the centre double white lines on the road. He saw the driver “reef” the wheel to the left[19] and then he saw the trailer begin to lose traction and to slide out and stop following the truck. The trailer swung out and the right front side of the trailer connected with the right front side of the bus. At that stage, the bus was just before the corner, a bit to the left of its lane. When the trailer hit the bus, Mr Simpson was thrown into the windscreen and landed facing down the entry stairs.
[19]By “reef”, Mr Simpson meant that the driver turned the steering wheel suddenly: T2-67:43-46.
Under further questioning, Mr Simpson said that when the truck came out of the bend it was moving at excessive speed, leaning to its right, and had come over the centre double white lines onto the wrong side of the road, then it moved back onto its correct side, causing the trailer to travel further into the bus’s lane. By reference to the dash camera footage from the truck, he identified the point at which he saw the driver “reefing” the wheel to the left at about 1:12:28 on the timer.[20]
[20]References to the “timer” or “counter” are to the timer embedded in footage from Mr Gallaty’s dash camera installed in the truck. That footage forms part of exhibit 10. The collision occurred at 1:12:29.
Mr McDougall, appearing for the defendant, showed Mr Simpson the relevant part of the dash camera footage and put to him that it demonstrated that the truck never crossed the centre lines. Mr Simpson did not accept that and agreed that he had a firm picture in his mind that the truck came onto the double white line.
Grace Ivory
Grace Ivory was also a passenger on the bus. She was sitting in a seat on the left side, about seven seats back from the entrance, talking to a friend on her telephone as the bus approached the bend. She said that she was looking straight ahead as she was talking and nothing blocked her view of the windscreen.[21]
[21]It was not put to her that Mr Simpson was at least partially blocking her view, as seems likely.
Ms Ivory said that she was familiar with the road and the relevant bend. The bus appeared to her to be slowing down as it was approaching the bend. At a point that she thought was about 200 metres before the bend, she saw a truck approaching the corner “at speed”. She saw its front right wheel cross the double white lines. As it came out of the bend, it appeared to her to start to brake and at the same time the trailer started to swing out so that it hit the bus.
When asked to identify, on the dash camera footage, where the truck was when she saw its right wheel on the double white lines, Ms Ivory said it was at about 1:12:26 or 27. However, she accepted the proposition put to her by Mr McDougall that at that stage the truck was well and truly within the parameters of both the left edge line and the double white lines, although she was not convinced that that was the case from that footage.
Kerrilee Angus
Kerrilee Angus was driving her car behind the bus as it travelled along the road toward the bend. She said that, as they approached the bend, the bus and she started to slow and the bus moved toward the left of the lane. She then saw a truck coming around the bend “at speed”. It was sitting on the white lines and crossed over them “a fraction.” She could see the driver and saw him turn the steering wheel to the left, as if to get off the lines. Then the collision occurred. She thought the bus had slowed to about 60kmh.
In cross-examination, Ms Angus said she thought the truck’s front wheel was about two or three inches over the central lines when she first saw it.
It was pointed out to her that, in a statement made at the scene, she had said that the truck was travelling at at least 120kmh. She said she realised later that that was an exaggeration. She was asked if she was sure about that speed and she said, “Maybe not.” She said the occasion was traumatising and she was not thinking straight at that time, in giving the speed.
Ms Angus was asked to identify, from the dash camera footage, where the truck was when its tyre was over the white lines. She said it was at about 1:12:28 on the counter. She said that, from her perspective, in her car, she could see that the tyres were over the lines.
Mark Cantlon
Mark Cantlon was riding a motorcycle behind Ms Angus’ car. He said that, as they approached the bend, the bus, the car and he slowed to take the bend. He heard a noise and then saw a truck coming around the bend. It seemed to him to be going fast and it was leaning and over the centre white lines as it came around the bend. He thought the truck was going to roll. He could see the driver, who appeared to be turning the steering wheel to the left, as if to correct where the truck was going. He then saw the trailer come across to the other side of the road and hit the bus. The bus appeared to be pushed backwards.
In cross-examination, Mr Cantlon at first said he thought that the front of the truck was about a metre over the centre lines when he first saw it. He was then shown the dash camera footage, after which he said it may have been less, but he saw some part of the truck over the centre lines. He was then asked if he saw the driver move the wheel to the left just as the truck was beside the bus, with which he at first appeared to agree, but later was not certain. He also accepted that, although he thought the truck was going to roll, it may have been an impression caused because the driver’s cabin was separated by air compression from the chassis.
Expert witnesses
The Crown called the following witnesses to give factual and expert evidence about their investigations after the collision.
Neil James Campbell
Neil Campbell is a Senior Constable in the Queensland Police Service and was the investigating officer in this matter. He was a member of the Springwood Forensic Crash Unit at the time and has been a motor vehicle accident investigator for over 20 years.
Snr Const Campbell attended at the scene of the collision later that morning. He produced a number of plans that he had prepared after surveying the approaches to and the scene of the collision, including the final resting places of the bus and the truck and trailer. He also identified, marked on the road and showed to scale on the plans the location and number of tyre marks that he said were those of the trailer skidding, together with what he called a heavy vehicle tyre mark that he said was caused by the front right hand side wheel of the truck as it rounded the bend.[22] Snr Const Campbell also produced an aerial photograph of the general location, on which he had superimposed the locations of a traffic advisory speed sign facing traffic approaching from the north and warning chevron signs on the bend.[23]
[22]Whether the mark was a heavy vehicle tyre mark and whether it was caused by Mr Gallaty’s truck were contentious. I will review the evidence closely later.
[23]Exhibits 3 and 4 are plans showing the resting places and tyre marks plus some features of the roadside. Exhibit 6 is the aerial photograph.
Mr Gallaty had a dash camera installed on the windscreen of his truck. Snr Const Campbell arranged for the relevant video footage from the camera to be recovered and for analysis of that footage to be undertaken by an appropriate expert, Timothy Woodcock, to determine the average speeds at which the truck and trailer were travelling on approach to and while negotiating the bend in the road up to the time of collision. Those speeds were overlaid on one of the plans of the scene prepared by Snr Const Campbell.[24]
[24]Exhibit 5. The speeds were calculated by Mr Woodcock, who explained the process in three reports (exhibit 20), supplemented by oral evidence.
Snr Const Campbell had also arranged for data from a trip data recorder on the bus to be downloaded, from which it was possible to determine the bus’s speeds approaching and in the bend, up to the moment of the collision, using GPS data from the recorder. He produced a copy of the aerial photograph on which the track and speeds of the bus were superimposed.[25] That showed that, from about 9:09:50,[26] the bus travelled at about 80kmh along the straight section of road between Curlew Court and the bend (about 575 metres). It slowed to 67kmh before reaching the start of the bend at 9:10:17. At that point, the bus quickly slowed to 46kmh, recorded at 9:10:18 and 9:10:19. At 9:10:20 it slowed to 16kmh, then at 9:10:21 to 7kmh and 0kmh, at which time the recording stopped.
[25]Exhibit 7.
[26]To clarify, that is the time of day recorded in hours:minutes:seconds on the data recorder.
Snr Const Campbell also produced photographs of the scene and surroundings, photographs of the truck and bus taken later, the footage from Mr Gallaty’s dash camera and the recording and transcript of an interview of Mr Gallaty that he conducted on 31 July 2017.[27] He pointed out a number of things that he said appeared from the photographs and the dash camera footage.
[27]Exhibits 8, 9, 10, 11 and 12 respectively.
The photographs – and Snr Const Campbell’s observations of the tyres of the truck and the trailer on the day – showed that many of the trailer’s tyres had earth and vegetation stuck to them, as well as having substantial scuffing or skid marks. Snr Const Campbell concluded from those facts that the tyres of the trailer had locked up and skidded. However, the tyres on the left side of the third axle did not have such debris attached to them, which indicated to him that they had continued turning even after the other wheels had locked up.[28]
[28]T1-29:5-18; T1-54:7-28.
Photographs 3 and 34 of exhibit 8 show the road surface in the southbound lane in the 30 metres or so before the location where the bus came to rest. Snr Const Campbell marked on the road, as shown in photograph 34, the tyre marks that he said appeared to him to have been produced by Mr Gallaty’s truck and trailer leading up to the collision. Most of the tyre marks appear to be skid marks. It is not contentious that they are marks made mostly, if not all, by the trailer after its wheels locked up and it started sliding.
Snr Const Campbell also pointed to one other mark, fainter than the skid marks and that started about 10 metres before the skid marks and stopped about the same distance after the first of the skid marks began. He said that that mark was a heavy vehicle mark made by the front right (steer) tyre of the truck as it was going around the bend. He said that it indicated that the truck was travelling at sufficient speed that the weight of the vehicle was transferred onto that outside wheel, deforming the tyre profile to the point where the outer edge of the tread surface was in contact with the road surface, producing the mark on the road and a corresponding black mark on the outside rim of the tyre (shown in photographs 15 and 16 of exhibit 8).
Snr Const Campbell also inspected the truck on 25 November 2016, at the towing yard to which it had been taken. On that occasion the tipper of the truck was raised and he noticed that the front right hand drive tyre had a similar mark on it (shown in photograph 1 of exhibit 9). He concluded that it was also a heavy wheel mark and, as there was such a mark on the drive tyre as well as the steering tyre, there had been a lot of lateral force on the truck.[29]
[29]T1-31:30-45. That tyre was on the second axle from the front of the vehicle: the front axle under the tipper body, as opposed to the steering axle under the cabin.
Snr Const Campbell said that such a mark, both on the road and on the tyres, would not remain in place for long. He considered that they had been made recently and he concluded that they were made due to the speed at which the truck was travelling around the bend. Those facts satisfied him that the truck had travelled at all times in the southbound lane, whereas the skid marks showed that the trailer skidded across the centre lines into the northbound lane.
Snr Const Campbell later said that he had determined that the heavy wheel mark on the road was between 0.80 and 0.87 metres from the centre of the centre lines on the road. The truck was 2.5 metres wide.[30] The southbound lane was three metres wide (from the centre of the centre lines to the middle of the left edge line). The position of the heavy wheel mark on the road indicated that the left hand tyres of the truck were over the left edge line of the road, but otherwise the truck was well within its lane.[31] He also agreed that there was no evidence that Mr Gallaty himself had braked heavily at any time before the collision, nor that he had made any sudden steering manoeuvre to avoid a collision. Rather, he maintained a course around the bend, with the right side of his truck within his lane at all times.
[30]Mr Gallaty later gave evidence that he had measured the distance from the outside edges of the left and right tyres at 2.32 to 2.33 metres.
[31]On my calculation, if the mark was a heavy vehicle mark made by the truck’s right hand steering tyre, then the left side of the left front tyre would have been 120mm over the left edge line and the right side of the cabin would have been 620mm to the left of the centre of the road.
Snr Const Campbell was asked, in cross-examination, whether he could exclude the possibility that the mark on the steering tyre had been made on an earlier occasion. He said he believed it was made on the occasion of the collision because it was fresh, such marks on the road and on the tyre tend to fade quickly, the mark on the tyre was only consistent with heavy cornering and it matched the heavy vehicle mark on the road. When it was put to him that he could not exclude the possibility that the marks on the tyres occurred earlier that morning, he said that he was satisfied that they did not but, as he was not in the truck for the entire day’s work, he could not exclude that possibility. He also agreed that, if the truck had gone around a similar left hand bend earlier that morning, that may have caused the marks on the tyres.[32]
[32]T1-52:18-23, 34-36.
Snr Const Campbell was also cross-examined about the position of the truck in its lane by reference to the dash camera footage. He agreed with the proposition that it did not appear from the footage that the truck was hugging the left side of the road as it rounded the bend.[33]
[33]T1-49:26 to T1-51:7.
Robert Tilney
Robert Tilney is the National Technical Product Manager for Mercedes Benz Trucks Australia. He produced three reports,[34] which he supplemented with oral evidence. He gave his evidence by video link to the court room. He is a heavy vehicle technician and a Mercedes Benz certified diagnosis technician. There was no challenge to his expertise to give the evidence he did.
[34]Exhibit 15.
Mr Tilney described how the ABA system and the SR system in Mr Gallaty’s truck operate.
ABA is a radar-based collision prevention system. It is operated by short range and long range radar sensors in the front bumper of the vehicle. It scans 15 degrees each way from its centre point up to 150 metres ahead (creating an arrow-like detection range). The system modulates between those sensors 30 times a second and identifies moving or stationary vehicles or other objects within those ranges. The radar sensors detect vehicles in the lane in front of the truck and in the opposite lane (that is, oncoming vehicles), but the system calculates the speed at which the truck is approaching the objects and (having regard to the speed of the truck) determines whether the object ahead is stationary or travelling forward in the same direction as the truck or is an oncoming vehicle. The system then determines whether there is a risk of collision with the object in front of the truck and, if it determines that there is such a risk,[35] it will take appropriate action to alert the driver and, if necessary, to brake the truck and trailer to avoid a collision. However, it will not react in that way to oncoming vehicles.
[35]In doing so, it takes account of both the information from the radars and information about the truck’s operation by the driver.
ABA can identify that a vehicle within its range is oncoming from a number of factors, but particularly two. First, that vehicle would be approaching at significantly greater speed than that at which the truck is travelling and therefore must be moving in the opposite direction to the truck. Secondly, the truck has a steering angle sensor from which the ABA can determine its direction of travel and thus whether it is turning out of the path of the oncoming vehicle.
Mr Tilney was not asked directly what ABA will do if it detects an oncoming vehicle travelling wrongly in the lane of the truck, but he was clear that the system will not react to an oncoming vehicle. I infer, therefore, that it does not react to oncoming vehicles in any instances. This would appear to be necessary to avoid ABA mistakenly identifying an oncoming vehicle in another lane as being in the truck’s lane – for example, when at an acute angle on a bend – and reacting accordingly, which might cause a dangerous situation.
Mr Tilney said that, when ABA detects a danger ahead (that is, a stationary or slower vehicle in the truck’s lane that the truck is approaching at a speed risking collision), it will take action in three stages. Each stage will last a minimum of one second before initiating the next stage.
(a)First, it will sound an intermittent audible alarm and show a warning indicator on the dash display, at the same time muting the radio and hands free systems. It may also partially actuate the brakes (up to 30%).
(b)Secondly, if the driver does not respond appropriately, while continuing the intermittent alarm and the dash warning ABA will actuate up to 50% braking.
(c)Thirdly, if no driver response is detected and the threat of collision remains, ABA will actuate emergency braking until the vehicle comes to a complete stop.
ABA actuates the brakes on both the truck and the trailer.
ABA will not operate, relevantly, if there is an ABA system error, a malfunction in the ABS or if vehicle air suspension is not at driving level.[36] Mr Tilney identified that analysis of the truck’s systems revealed that two errors were recorded. One indicated that, at some time since the data had last been erased, the truck had been driven out of level suspension. That causes the ABA system to shut down. It will then cause yellow lights and the message, “ABA not active” to appear on the dash display when the ignition is on. It is not possible to tell, from the error codes, when this occurred, nor whether ABA was active at the time of the collision.
[36]The suspension of the truck can be adjusted up and down and must be level in order to drive safely and for ABA to operate (so the radars are pointing forward, not up or down).
The other code indicated that communication between the radar and the ABA control unit had stopped, so the ABA system was not operative. Again, that could have been at any time since the data was last erased and did not indicate that the ABA system was not active at the time of the collision.
Mr Tilney had also viewed the dash camera footage. He said that there was no vehicle or object – no risk – in front and in the direction of travel of the truck and therefore there was nothing that, in his opinion, would trigger ABA to operate. When asked, in cross-examination, whether he could rule out that ABA may have activated, he replied that he could not say 100%, but he was 99.9% sure that ABA would not have been activated by the radar recording the oncoming bus, because of the reliability and the frequency of the radar system.[37]
[37]Exhibit 15, report of 4 August 2020, item 6 and T2-16:15-33.
Mr Tilney also described the operation of the stability control system. It detects instabilities that could lead to skidding, jack-knifing or tipping over of the truck and trailer combination. It attempts to counteract them by braking specific wheels of the truck, actuating the trailer brakes and changing the engine torque. It identifies potentially dangerous situations by using the steering wheel angle sensor, the wheel speed sensors and a control module called the vehicle dynamic control module to determine the driver’s proposed direction of travel, the truck’s lateral acceleration and its yaw. If it detects impending understeer, oversteer or tipping, it will intervene to re-stabilise the vehicle by targeted braking of individual wheels of the truck and, in the case of tipping, by disabling the accelerator. The SR system operates within milliseconds of detecting a critical situation.
Oversteer is when a vehicle is going around a bend at excessive speed, so its drive axles will tend to swing out to the opposite direction to the bend, it may lose traction in its rearward wheels and commence to slide at the rear of the vehicle. Understeer is when the driving wheels threaten to lose traction as they are turned into the bend, leading to them potentially sliding. A tipping risk arises when going around a bend with a higher centre of gravity than is acceptable for the physical limits of the bend.
In any of these cases, if the driver failed to observe the correct speed for the bend, having regard to the operating conditions of the vehicle, if a critical situation was active then the SR system would react to that situation to try its best to minimise or reduce the effects. If SR actuated, a light would flash on the dash display, but no audible alarm would sound.
Mr Tilney said that, as the trailer in this case did not have ABS brakes, if SR or ABA actuated the trailer’s brakes, it could lead to them locking the wheels and inducing the trailer to slide into the opposite lane.
David Oliver
David Oliver is a Sales Engineer and Technical Sales Manager for Knorr-Bremse Australia, a subsidiary of a German company that primarily develops and manufactures braking systems for rail and heavy commercial vehicles. He has been responsible for developing a number of heavy vehicle braking systems for trucks of various makes (not including Mercedes Benz trucks) and he has tested the dynamics of large trucks in order to calculate the parameters within which there may be understeer, oversteer and rollover thresholds. He gave oral evidence, having also provided a short report,[38] in which he reviewed and commented on a report that had been produced on behalf of the defendant by Mark Sculthorpe,[39] as well as making some additional points.
[38]Exhibit 17.
[39]Exhibit 32.
Mr Oliver gave similar evidence to Mr Tilney about the way that ABA works and the circumstances in which ABA will acuate. In particular, he said that it will not react to oncoming vehicles. He also gave evidence that, where a truck has ABS but the trailer it tows does not, in a heavy application of brakes the ABS of the truck will control the truck’s braking so as not to lock the wheels or lose directional control, but the trailer will have a predisposition to lock the brakes. If ABA causes a heavy braking application, it could cause the trailer to lock up.
Mr Oliver also said that, if SR actuated rather than ABA, that would happen in milliseconds and be unlikely to be detected by the driver. It can apply the brakes of the truck heavily, but the ABS would prevent the truck’s wheels locking up. However, it would send a signal to the trailer to apply its brakes and, if the trailer does not have ABS, there is a high possibility that it will lock up. This is particularly the case if it is unladen, because the brakes are designed to stop a fully laden trailer travelling at 80kmh. He said that he had done physical testing of truck and trailer combinations, pushing them to their limits to understand at what stage they become uncontrolled. Only a few kilometres an hour in speed can make a huge difference to the stability of a truck or a truck and trailer combination, making it unstable.
Peter Briggs
Peter Briggs is an auto-electrician who has been employed by Daimler Trucks in Brisbane for 27 years. He is very familiar with Mercedes Benz trucks, including the model owned by Mr Gallaty.
Mr Briggs described the “Telligent” braking system of those trucks, which comprises ABS, ABA and SR. He described how the ABA and SR systems work and, in this respect, his evidence was mostly similar to that of Mr Tilney and Mr Oliver. It is relevant, however, to refer to some of his descriptions of how they operate.
He said the SR system knows, by the position of the steering wheel (communicated by the steering angle sensor), what the expected yaw rate is for the path of the truck, compares that to the actual yaw rate (communicated by the yaw rate sensor) and can adjust the yaw by applying one brake to correct either an understeer or an oversteer or a potential rollover. If the truck is towing a trailer and is over-steering, SR will apply pressure to the trailer’s brakes to stop it from pushing the truck further into an increased oversteer condition by jack-knifing or just pushing the back end around. So, by applying a “bit more” brake pressure, it can drag the truck back into the correct yaw that was expected having regard to the steering wheel sensor.
Mr Briggs was not sure if ABA would operate when it detected an oncoming vehicle. It was put to him that he had given a statement in which he had said that ABA “should not respond to an oncoming vehicle when cornering.” In answer to the question what he meant by “should not”, he said that he was simply quoting from the manual.[40] When asked if it can respond to an oncoming vehicle, he said he did not know.
[40]In fact, he was not. The manual says, “ABA does not react to … oncoming vehicles” – exhibit 16, p214.
Antony Cheyne
Antony Cheyne is the Application Engineering Manager for WABCO (Australia) Pty Ltd. That company is the manufacturer of the radars used in the ABA function of Mr Gallaty’s truck. He is a heavy equipment automotive engineer with considerable experience in designing, fitting, testing and certifying heavy vehicle braking systems. At WABCO, he is responsible for installation, testing and certification of electronic systems such as ABS, electronic braking systems, electronic stability control and autonomous emergency braking systems (ABA). His role includes physically testing heavy vehicles on test tracks, including taking them to and beyond the point of rollover in order to calibrate rollover systems to particular vehicle characteristics.
Mr Cheyne prepared a report[41] commenting on aspects of Mr Sculthorpe’s report, supplemented by oral evidence. He gave his evidence by video link to the court room. He commenced his report by making the following comment:
the combination of truck and trailer involved here, is completely legal and compliant for use in Australia. It is also potentially dangerous to operate, particularly in an unladen state, or when road surface friction is low. This is due to the fact the trailer brakes must be capable of stopping a fully laden unit, so when unladen, the trailer is overbraked, which means locked wheels are almost inevitable, with resulting loss of directional control.
[41]Exhibit 18.
He confirmed orally that, where the trailer is unladen, it is very easy to cause a lock up if the brakes are applied by any source (that is, electronically or by the driver).
Mr Cheyne said that ABA detects, but does not react to, oncoming vehicles. Both in his report and orally, he gave similar descriptions of the working of SR[42] and ABA to those of Mr Tilney and Mr Oliver.
[42]Although he referred to SR using the terms ESC (electronic stability control) and RSC (roll stability control).
Mr Cheyne had been informed that, when Mr Gallaty’s trailer was inspected after the collision, it was discovered that a pin (known as a clevis pin) was missing from the left side brake on the third axle. He said that, without that pin, the automatic adjuster for that brake would not work. That would cause an imbalance of brake force across the axle, which would then have a tendency to pull the axle to the right when the brakes were operated. On the other hand, in that state the wheel missing the pin could be expected to continue rotating, rather than to lock up, notwithstanding the application of the brakes. That would, to a minor extent, counteract the opposite force to the right from the right hand brake. However, especially while travelling around a left hand bend, the centrifugal force would also give the trailer a tendency to pull to the right, so the still rotating left wheel would be unlikely to have any substantive effect to overcome that drift. Overall, Mr Cheyne considered that the missing pin would not have made an enormous difference to the situation, even though the rotating wheel would be working against the overall drift to the right.
Timothy Woodcock
Timothy Woodcock is a senior forensic recording analyst with the Queensland Police Service. He produced two reports[43] and also gave oral evidence. He analysed the footage from Mr Gallaty’s dash camera and, using a technique known as videogrammetry, he determined the average speed of the truck and trailer between the various points shown on exhibit 5. In simple terms, this was done by locating clear points or landmarks on the video by viewing it frame by frame, identifying those landmarks and the distances between them on an aerial mapping service known as Nearmap, identifying the time it took for the truck to travel between those points and thereby calculating the average speed at which the truck travelled between the points, allowing for known error factors in the video frames and the Nearmap photographs.[44] He then produced a graphic depiction of the distances and speeds that he had calculated.[45]
[43]Exhibit 20.
[44]Nearmap is accurate to within 0.3 metres. Mr Woodcock explained his methodology in far more detail, both in his reports and in his oral evidence.
[45]That depiction was superimposed onto Snr Const Campbell’s chart (exhibit 3) to create exhibit 5.
Mr Woodcock’s methodology and results were not challenged by counsel for the defendant. I find them convincing and I accept his evidence.
The net results of Mr Woodcock’s analysis are summarised in the following table.
Points
Distance (metres)
Time (seconds)
Average speed (kmh)
Lowest average speed (kmh)
A to B
49.88
2.067-2.223
83.665 +/- 3.745
79.92
B to C
48.9
2.200-2.333
77.747 +/- 2.763
74.984
C to D
24.8
1.333-1.467
63.953 +/- 3.817
62.136
A to D
123.58
5.733-5.900
76.503 +/- 1.281
75.222
The times and speeds of travel are expressed in terms of a range. Mr Woodcock explained that each range allowed for a margin of error based on variables that could not be determined with certainty (for example, that Nearmap was accurate to within 0.3 metres). Mr McDougall submitted that I should give Mr Gallaty the benefit of the margins and, if I accept Mr Woodcock’s evidence, find that the average speeds at which he was driving the truck between the various points were the lowest speeds calculated by Mr Woodcock. The Crown accepted that proposition, as do I. For that reason I have included the fifth column in the table, setting out the lowest speeds based on those calculations.
Comparison of exhibits 3, 5, 7 and photographs 3 and 4 in exhibit 8 indicates to me that the collision occurred just after the truck passed point C. The bus came to rest, diagonally across the road, between points C and D. In his address to me, Mr McDougall agreed with this proposition.[46]
[46]T5-26:16-39. (The transcript of the addresses is not paginated as 5-26 etc, but it was the fifth day of the trial, so I will refer to that day’s transcript in that manner.)
Andrew McLaren
Andrew McLaren is a vehicle inspection officer with the Queensland Police Service. He is an A grade motor mechanic and a licensed examiner of motor vehicles.
Mr McLaren examined Mr Gallaty’s truck and trailer on 21 November 2016, at the yard to which they had been taken after the collision. His examination included the braking system of each vehicle. He concluded that the brake system and the steering components on the truck were all operating correctly, with no faults. He expressed the opinion that the truck was in a satisfactory mechanical condition and no defects were found which would have contributed to the collision (in the circumstances described to him).
On the trailer, he noted that the third axle left wheel brakes were out of adjustment and, on the fourth axle, the left brake chamber was larger than the other chambers on all axles. He considered both those conditions to be unsatisfactory. Apart from damage caused by the collision, he otherwise found no faults in the trailer.
Mr McLaren said that the problem with the third axle left brake was that the push rod was extended out, giving reduced efficiency to that brake. That was because the clevis pin connecting the automatic adjuster was missing. Mr McLaren pointed out the relevant parts in photographs of the axle forming part of exhibit 27. He said that, in an emergency braking situation, that would cause a minor reduction in brake efficiency and in the overall efficiency of the combination vehicle, but it would not make a great difference to the overall vehicle (he went on to describe the difference as miniscule). But, if the brakes were locking up, it would actually operate to reduce the instability caused by locking brakes, because the wheel would be likely to keep turning and to reduce the slide caused by the other locking brakes. It may help control the back of the vehicle. The missing pin would have no effect on the roll of the trailer.
Mr McLaren was also asked about the effect of the difference in sizes of the brake chambers on the fourth (rear) axle of the trailer. By reference to photograph 7 of exhibit 27, he showed that the left chamber was larger than the right chamber on that axle. The brake chambers relate only to the operation of the foot brake, not the emergency or park brake, and would also react to application of the equivalent of the foot brake by the stability control system. He said that the larger size of the left chamber would make it more efficient than the right chamber (and than the chambers on the third axle, which were both the same size as the right chamber on the fourth axle). The effect would be that, in an emergency braking situation, the left brake on the fourth axle would lock slightly earlier than the other brakes, but only by milliseconds. He said that he did not believe that that difference would have contributed to the cause of the collision.
Siva Jeevaratnam
Siva Jeevaratnam is a senior traffic engineer employed by the Department of Transport and Main Roads (TMR), having a degree in civil engineering, including traffic engineering.
Mr Jeevaratnam undertook an investigation of this collision for TMR. He provided three reports for the purpose of this prosecution,[47] in which he commented on Mr Sculthorpe’s report and answered some questions. He also gave oral evidence.
[47]Exhibit 24.
Mr Jeevaratnam described how an advisory speed for approaching a curve in a road is determined. That speed is the maximum speed at which a curve may be comfortably negotiated under good road, traffic and weather conditions. That speed is determined in accordance with Part 2 and appendix C of the Queensland Government Manual of Uniform Traffic Control Devices (MUTCD).[48] Based on factors determined in that manual and elsewhere, the curve in the Waterford-Tamborine Road where the collision occurred is classified as sub-standard.
[48]Relevant extracts from that manual are exhibit 26. The manual reflects the Australian standard.
The advisory sign facing Mr Gallaty before this curve indicated a sharp left bend and a speed of 40kmh. TMR does not have records of when that sign was installed and what tests were done to determine that speed.
The MUTCD has a prescribed method of determining an advisory speed, based on site investigation and measurements and a ball bank indicator or similar testing device.[49] That device measures the centripetal force of a vehicle negotiating a curve at a specific speed, from which the advisory speed is determined by reference to a pre-determined acceptable maximum centripetal force. The measurement devices take account only of the speed of the vehicle in which they are placed and the road alignment, including the angle of the curve and the cross fall of the road.[50]
[49]It also prescribes an alternative method using an electronic accelerometer.
[50]The cross fall is the angle of the road from one side to the other. Around a curve, it tilts so that it is lower on the inside of the curve than the outside.
Mr Jeevaratnam said that, after this collision, TMR reviewed the site and decided to make some changes to the road and roadside, intended to make it safer. He produced four drawings[51] that showed the design of the road before the collision, the changes that were made and the design after the collision. The works included removing some of the vegetation on the sides of the approaches to the curve and the curve itself (to improve visibility for approaching vehicles) and widening the lanes and the shoulders of the road through the curve. The radius of the curve was not changed, nor was the cross fall.
[51]Exhibit 25.
After the roadworks were completed, Mr Jeevaratnam conducted a fresh assessment of the advisory speed, using manual and digital ball bank indicators. This resulted in a new advisory speed of 60kmh. Mr Jeevaratnam explained how he reached that conclusion. The actual advisory speed is determined solely by the objective factors specified in the MUTCD, although he said that he selected the speeds at which to drive through the curve during the tests as speeds at which he personally was comfortable driving through it. He tested it at 50, 60 and 70kmh. The latter speed was well outside the permissible range of advisory speeds. Importantly, in determining that speed, the cross fall and the road alignment had not been altered from the road as it existed at the date of the collision. The improvement to visibility was irrelevant to determining the advisory speed. I infer from those facts, in favour of Mr Gallaty, that in fact 60kmh was a more appropriate advisory speed at the date of the collision.
In my opinion, a reasonable person in Mr Gallaty’s position would foresee that, if he drove the unladen truck and trailer around a bend at too high a speed, the SR may detect incipient instability and may apply the trailer’s brakes. As it did not have ABS, that would be likely to lock up all the trailer’s brakes and cause it to start skidding. Depending on its speed around the corner, once it started skidding, the trailer may not follow the truck around the corner, but may travel straight ahead or to the right, moving into the opposite lane and colliding with any oncoming vehicle. In the result, an ordinary person would foresee the death of a person in an oncoming vehicle as a possible consequence of the act of driving around the corner at too high a speed.
If it be necessary to consider whether the defence can apply to the lesser charge of dangerous operation of a vehicle (not causing death), it would clearly have been foreseeable to an ordinary person in Mr Gallaty’s position that to drive around that bend in that combination at that speed would be dangerous (in the ordinary sense that I have described at [24] above) to other traffic or persons on or next to the road at the bend. Section 23 can have no application to that situation.
Therefore, the Crown has satisfied me, beyond reasonable doubt, that the defence under s 23 does not apply in this case.
Conclusions and verdict
I have found that it was dangerous for Mr Gallaty to drive his unladen truck and trailer around that bend at that speed. His act of driving in that manner caused the stability control system in his truck to actuate the trailer’s brakes, which caused it to travel into the opposite lane and to collide with the bus being driven by Mr Bohlsen. The injuries sustained by Mr Bohlsen in that collision caused his death a few days later. Therefore, Mr Gallaty’s manner of operating his truck and trailer caused Mr Bohlsen’s death.
In these highly unfortunate circumstances, I find Mr Gallaty guilty of dangerous operation of a vehicle causing death.