Coronial Division
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Appendix A

 

Friday, 17th May 2002

IN THE CORONERS COURT HELD AT BURNIE
INQUESTS INTO THE DEATHS OF :

JUDITH ANN FRANKLIN
YVONNE MacPHERSON
GEORGE MACKAY MacPHERSON
HENRY ALFRED MEREDITH

Before formally delivering my findings as to the deaths of Judith Ann FRANKLIN, Yvonne MacPHERSON, George Mackay MacPHERSON and Henry Alfred MEREDITH, I should first indicate the function and duty of a Coroner when investigating deaths.

Section 28 of the Coroners Act states:

28. (1) A coroner investigating a death must find, if possible –

(a) the identity of the deceased; and

(b) how death occurred; and

(c) the cause of death; and

(d) when and where death occurred; and

(e) the particulars needed to register the death under the Registration of Births and Deaths Act 1895 and

(f) the identity of any person who contributed to the cause of death.

(2) A coroner must, whenever appropriate make recommendations with respect to ways of preventing further deaths and on any matter that the coroner considers appropriate.

(3) A coroner may comment on any matter connected with the death including public health or safety or the administration of justice.

There is one important limitation that must not be overlooked and that is contained in Section 28(4) which provides:

A coroner must not include in a finding or comment any statement that a person is or may be guilty of an offence.

These are the statutory requirements in respect of all inquests held within the State of Tasmania.

Pursuant to a written authority (exhibit C1) under the hand of the Chief Magistrate of Tasmania, in accordance with section 50 of the Coroners Act 1995, each individual death was investigated at the one Inquest which was held, by me, at Burnie in the State of Tasmania on the 25th and 26th days of October 2001.

At this point, I would like to express my appreciation to Sergeant Rod Carrick, Coroners Associate for his assistance in relation to this matter and all of the members of the Hobart Coroners Office, without whose assistance I would not have been able to deal with this matter as expeditiously as I have, and I am indebted to them for their caring attitude towards the families and friends of those who died so tragically.

I FIND THE DEATHS OCCURRED IN THE FOLLOWING CIRCUMSTANCES:

The incident which led to these four deaths, which I will describe as a tragedy, occurred in one of Tasmania’s premier tourist destinations. It is a Wilderness World Heritage Area. Tasmanian’s and tourists alike visit the area to undertake a wilderness experience. The majority of visits to the area occur in the warmer months of the year, October through to March.

As early as 1913, Waldheim was well established as a tourist destination. The present road essentially follows the original access corridor into the valley leading to Waldheim. The road is a narrow, unsealed, winding route passing through the World Heritage listed area of Cradle Mountain - Lake St Clair National Park. Signage at the beginning of the route restricts access to vehicles with less than 29 seats. Speed at the time of the accident was restricted by sign to that of 40 kilometres.

The length of the tourist road to Dove Lake, commonly referred to as Dove Lake Road, is 7.14 kilometres in length. The road is unsealed and it width varies from 3 metres to just in excess of 5 metres. The road is heavily treed in places especially along the western side. On the eastern side the ground generally drops down into the valley with slopes varying in gradient from gently to steep.

At the time of the accident there was no safety fencing, railing or guide posts on the eastern side which delineated the edge of the roadway or provided protection against a vehicle leaving the road in the areas of these slopes. It is clear, that the road did not conform to the ‘Austroads Guide to the Geometric Design of Rural Roads’, either in road width or sight distance. However, according to the evidence, this road was never formally constructed or designed, it has merely developed through continued use over many years. The Guidelines apply to new roads constructed after the establishment of the guide, and whilst they are indicative of what would now be expected, they are not applicable or have force of law as to roads existing prior to the establishment of those guidelines.

There are limited opportunities along this section of roadway, due to the width, for oncoming vehicles to pass. Accurate judgement from drivers is not only necessary but mandatory. Poor judgement, and perhaps driver inexperience could have dire consequences when combined with the narrow formation, lack of safety barriers, unsealed surface and steep embankments. Areas of this road have been described as unforgiving in relation to driver error.

I am satisfied on the evidence that traffic volume varies significantly with higher numbers using the road during the summer months. Doctor Giles, who gave evidence before me, conducted a count of vehicles using the road only 2 days post accident. His count revealed a total of 218 vehicles using the road in a period of 3 hours and 10 minutes. He quite properly conceded in evidence that his count may well have been influenced by the number of vehicles using the road as a result of the accident. Vehicle usage data from 1990 to 31 January 2001 was tendered at the Inquest. This data clearly establishes that the assessed annual daily traffic as required by the ‘Austroad Guidelines’ was below 1,000 vehicles daily and therefore low volume when averaged.

The roadway is under the control of the State through the Department of Infrastructure Energy and Resources. A contractor (Civil Construction Corporation) is engaged by the State to inspect and carry out maintenance and minor repairs on the road. Records reveal that 1 to 1½ days work per week on a regular basis was carried out by the contractor prior to the accident. In addition to this the road is graded biannually. Shortly before the accident there had been a light grade of the road and this was in addition to the biannual grade. I am satisfied, on the evidence presented before me, that the road was properly maintained.

This roadway had not featured highly in accident statistics prior to the 18th day of February 2001. There was evidence, in documentary form, of 4 reported accidents. All of these have been attributed, in one way or another, to the narrow road and have only involved property damage.

The evidence clearly indicates that this road had been under review by the State (DIER) for a number of years. The area of road at the site of the accident had not been identified as requiring the installation or implementation of any safety measures to ameliorate exiting and/or potential risks to public safety.

I am satisfied the installation of guide posts, delineators or a safety fence would not have been contrary to the intent or application of the World Heritage Management Plan. I am of the view that this area of road and its surrounds should have been identified for the innate danger of an errant vehicle rolling down the ravine, and it is surprising that safety audits had not identified such problem, although with only 4 reported incidents, and those involving property damage only, it may have been assumed that the road conditions themselves acted as a deterrent to erratic driving.

Cradle Mountain Lodge, at the date of the accident and since, have operated ‘Night Excursion Tours’ in the area. The purpose of the excursion is for tourists/guests to observe the unique wildlife via spotlight from the comfort of a vehicle. As at February 2001 the night excursion commenced from outside the Lodge at 9.45pm. The driver of the vehicle, who was, at the relevant date, a lodge employee, also operated the spotlight. On occasions the driver will request a guest on the tour to act as a spotter. When an animal is observed the vehicle would be stopped so that the passengers could view the animal by spotlight in its normal surrounds

Persons wishing to partake in the excursion were required to make a booking at the Lodge. If the number of passengers was 12 or less a lodge vehicle would be used. The Lodge vehicle is fully equipped with seat belts for all occupants. If the number of person booking the excursion exceeded 12 passengers it was necessary for the Lodge to utilise a Maxwell Mini Bus (19 seater). In this vehicle, seat belts are fitted to the driver and front passenger seats only. The Maxwell bus is located at the lodge.

On the 18th day of February 2001 as there were 17 registrations for the excursion it was necessary to use the 19 seat mini bus. The driver and guide on the excursion was Kathleen Michelle Grayson. Miss Grayson had only been employed at the lodge since early January 2001. Evidence presented before me indicates that she was adequately qualified and properly licensed to drive such a vehicle. During the course of her evidence Miss Grayson fully detailed the experience that she had in relation to the driving of similar and larger passenger vehicles. I have no hesitation in finding not only was she qualified to drive the vehicle but was also competent and well skilled in their handling.

The 17 passengers for the tour were collected outside the front of the lodge at 9.45pm on this evening. Out of the passengers there were 16 tourists to the state and one former employee of the lodge a Miss Rachel White. Two seat belts only were fitted in the bus, the front seat passenger, Miss White, was wearing the fitted seat belt, and although a seat belt was fitted for the driver, Miss Grayson was not wearing it at the time of the accident.

The deceased, George MacKay MacPherson and Yvonne MacPherson were seated on the driver’s side one seat in front of the rear seat in the bus. Mrs. MacPherson had the window seat and Mr. MacPherson was on her left. Judith Ann Franklin was seated on the rear seat closest to the window on the driver’s side next to her husband. Henry Alfred Meredith was also on the rear seat to the right of his wife who had the window seat on the passenger side.

The bus was driven out of the car park, turned right and travelled past the visitor centre onto Dove Lake Road. I find that when the excursion commenced it was dark and the headlights on the bus were operating. I further find that at all times the bus was being driven very slowly and at no time did it reach or exceed the 40 kilometre per hour speed restriction. The bus stopped on a number of occasions to view wildlife with the aid of a spotlight.

Approximately 4 kilometres south of the visitor centre the lights of an oncoming vehicle was observed by Miss Grayson. I find that this oncoming vehicle was a Subaru Forester vehicle being driven in a northerly direction by Charles David Livesey. Mr. Livesey, was at that time, a summer interpretation ranger employed at Cradle Mountain by the Parks & Wildlife Service, a division of the Department of Primary Industries, Water & Environment.

I find that Mr. Livesey was returning to his accommodation at Cradle Mountain after having taken a number of tourists for a night walk at Waldheim. The night walks are organised and operated on a regular basis by the Parks & Wildlife Service.

The evidence before me clearly indicates that Mr. Livesey had driven on Dove Lake Road on a number of occasions. I find however, that he was unaware of the steep ravine to the left hand side of the approaching vehicle (mini bus). To explain this, whilst he was aware of the contours of the countryside, the absence of lighting would make it impossible to pinpoint with any accuracy where the vehicle was at a given moment unless you were trying to identify particular landmarks as you drove along, and then you would need to be using a torch or lighting device to illuminate them. I am satisfied that Mr. Livesey was driving his vehicle in an appropriate and proper manner and that his speed was under the allowable maximum of 40 kilometres an hour.

Mr. Livesey, in evidence before me, stated that he first saw the approaching headlights when he was about 80 metres from the vehicle. He thought at the time that the headlights of the approaching vehicle were on high beam due to the fact that he had four (4) headlights coming towards him. Miss Grayson, on the other hand, states that the bus headlights were on low beam and the evidence of the accident investigator, Constable S Mason, supports her belief. I formally find that the headlights of the bus were on low beam and that Mr. Livesey is mistaken in his belief.

As Mr. Livesey approached the mini bus he formed the view that the driver of the bus was stopping or slowing down to allow him to pass due to the narrow dimension of the road. Miss. Grayson in evidence agreed that initially she was travelling in the centre of the road and when she saw the approaching headlights she slowed and pulled over to the left to allow the vehicle room to pass. Mr. Livesey was unsure as to how far the mini bus pulled over to the left but, in answer to a question put to him by Mr. McTaggart, counsel acting for Mr. Franklin and Mr. and Mrs. Tyler, he stated that there was ample room.

Although, the phrase "ample room" is a matter of interpretation. The accident investigator measured the width of the roadway at the scene of the accident at 4.6 metres. Approximately 35 metres north of the scene, the road width was found to be 5.8 metres. The combined chassis width of both vehicles excluding exterior rear vision mirrors was 3.6 metres. The measurements indicated that there was an area of less than 1 metre wide for both vehicles to pass safely at the accident site. I should add, when I attended at the scene, I caused two vehicles to be parked on the road near the accident site, and the photographs clearly show that it would be difficult for two vehicle to pass comfortably at this particular location without the benefit of illumination or side of the road delineators.

Miss Grayson is unable to say whether the mini bus was still moving forward slowly or had come to a stop when Mr. Livesey commenced to pass. The evidence clearly suggests that Miss Grayson had unintentionally driven the vehicle too close to the eastern edge of the road in allowing room for the approaching vehicle to pass. It is my view that this conclusion is unequivocal but has to be viewed in light of the lack of road edge delineation in such a treacherous area. It is more likely than not that the left hand wheels have been balanced right on the edge of the road.

Mr. Livesey’s vehicle has passed the bus, it can therefore be assumed there was sufficient clearance for this manoeuvre to take place. It is clear that the rear left hand wheel or perhaps both left hand side wheels of the bus have slid off the edge of the road surface causing the bus to teeter and rock on the edge of the road. This was seen by Mr. Livesey after he had passed the bus. The bus has then rolled a number of times down the steep ravine before coming to rest some 33 metres from the edge of the road. From the evidence I formed the view that it was the rear left hand wheel that had initially left the road surface, and this would seem consistent with the manner in which the bus has rolled down the embankment.

It would appear that whilst the bus was teetering on the edge of the road a number of persons seated on the right hand side (drivers side) of the bus have stood up in their seats, and I refer to the affidavit evidence of Jeffrey Richard Gray, (exhibit C35). There is insufficient available evidence for me to make a definitive finding as to whether the actions of these persons have contributed to the fate of the mini bus, but it could be that this activity caused the bus to commence a rocking motion and this may have, coupled with the precarious position of the bus led to it slipping off the edge of the road.

There is no evidence to suggest structural failure of the road. I am satisfied that the road material that was dislodged from the eastern side of the road was the result of the under carriage of the bus resting on the edge of the road after the wheels have slipped off. The bus has then moved and rolled to its left causing the displacement of the road material. It is difficult to be definitive as to this, as when I attended at the scene, much of the edge of the road had collapsed due to the movement of rescuers during the night. I do not intend this to be a criticism of the rescuers as they had no other alternative than to put the safety of the passengers as a first priority.

Mr. Livesey returned to the scene, by that time other persons had also arrived. The alarm was raised and emergency services from the North West Coast were notified and later attended. In the interim, assistance was offered and given to the injured by those present at the scene, Parks & Wildlife personnel and staff from the Cradle Mountain Lodge.

The deceased, Henry Alfred Meredith, George MacKay MacPherson and Judith Ann Franklin all died at the scene of the accident. Yvonne MacPherson died whilst being transported by helicopter from Cradle Mountain to the North West Regional Hospital at Burnie.

The assistance to emergency services offered and given by the Parks & Wildlife Service and Cradle Mountain Lodge staff should be highly praised.

Comments and Recommendations

The vehicle involved in this accident was a 1987 Mazda T3500 19 seat mini bus. Inspection subsequent to the accident did not reveal any defect that may have caused or contributed to the accident.

As previously alluded to the bus is fitted with two (2) seat belts only. One for the driver and one for the front seat passenger. The bus at the time of its construction, 1987, was only required, by the Australian Design Rules (ADR), to have a seat belt fitted for the driver. The same rule is applicable to the subject mini bus. There is no evidence before me to suggest or imply that the absence of seat belts contributed to any of the causes of death. As to whether or not passengers in public vehicles should be fitted with a seat belt is a perplexing question.

It is axiomatic and there are many reports and studies which demonstrate that the fitting of seat belts in motor vehicles has led to a reduction in the numbers of deaths and serious injuries resulting from motor vehicle accidents. In Western Australia a study found that a person was ten times more likely to be killed in a road crash if that person was not wearing a seat belt (See Analysis of Road Crash Statistics, 1990 to 1999, Road Safety Council of Western Australia).

It is sometimes suggested that the wearing of a seat belt in buses can cause further injuries, others say that this is in a small number of instances only. There are debates as to whether a lap and sash seat belt is safer than a lap seat belt. Mr Elson in his evidence indicated that lap seat belts in buses can cause greater injury as opposed to not wearing a seat belt at all. There have been many reports and studies carried out but none seem to have been definitive as to the appropriateness of a legal requirement that buses should be fitted with seat belts.

One study examined the issue, confining it to the fitting of seat belt in school buses, School bus seat belts, Their Fitment, Effectiveness and Cost by Michael Henderson and Michael Paine was prepared for the Bus Safety Advisory Committee, New South Wales Department of Transport in December 1994 and recommended, inter alia, that the mandatory fitting of lap-only or lap/sash seat belts in large route service buses be not recommended. A search of the internet discloses the issue has been hotly debated ever since and continues to draw its advocates and opponents.

The current situation would appear to be that many public vehicles still in use were never designed or constructed to permit seat belts to be fitted and the costs of requiring these vehicle to be modified to the standard necessary for the fitting of seat belts would be prohibitive. New vehicles are now required to be constructed with sufficient strengthening to enable seat belts to be fitted to anchorage points. However it would seem that the requirement to fit seat belts can be avoided by having the backs of seats below a certain height and therefore not suitable for lap and sash seat belts.

In my view I am not possessed of sufficient information where I could make an informed recommendation, as to the appropriateness of the fitting of seat belts to passenger vehicles and I desist from doing so.

During the course of the Inquest evidence was sought as to the desirability and suitability of an ambulance being permanently stationed at Cradle Mountain. If so, would we have had a different outcome in relation to the deceased? The evidence of Mr. Stendrup indicated that manning an ambulance in the Cradle Mountain area would be difficult due to the high turn over of staff at the Lodge and also staff within the Parks & Wildlife Service at the Mountain. The nearest ambulance is stationed at Waratah approximately 35 minutes from Cradle Mountain. I find, that there is no evidence to suggest or infer that the stationing or manning of an ambulance at Cradle Mountain would have prevented the deaths’ of the persons who are the subject of this Inquest. Three of the deceased, as previously alluded to, died at the scene and Mrs. MacPherson died in a helicopter on route to hospital.

I note that a very short time after the accident the speed limit on Dove Lake Road was reduced from 40 kilometres an hour to that of 30 kilometres an hour. Although speed was not a factor in this accident, it is my view, that the reduction in the permissible maximum speed limit was appropriate and proper having regard to the nature and construction of the road, and it enabled the appropriate authority to given consideration to the making of improvements to the area.

The Department of Infrastructure, Energy and Resources also commissioned a road safety audit to review the operation of the road and identify works required to improve its safe operation. The site of the accident on Dove Lake Road, was within the audited area. The audit was conducted by the company Pitt and Sherry. The written report in relation to the audit was tendered into evidence and marked, exhibit C 71.

It is clear that a number of areas, including the accident site, were identified by the auditor as requiring some form of attention for the purpose of safe operation. The audit’s assessment priorities were identified in three (3) categories, namely: For Immediate Attention: Important or Routine.

The area of the accident site was identified as requiring immediate attention. It was one of the narrowest sections of the road and on the eastern side there was no safety fence, no guide posts to define the edge of the road. The auditor on page 17 of his report makes the following comments:

"The consequences of the slightest error of driver judgement is severe due to the fact that there is no safety fence along the LHS of this section which has a very steep drop of over 30 metres into the Dove River Valley. No guide posts are installed to assist in defining the edge of the road and at night drivers have no concept of the presence of the steep unprotected embankment on their left.

Other sections of road are similar width but provide passing bay (pull off areas). There are no such facilities at this site meaning opposing drivers first see each other after they are committed to driving this narrow section".

As a result of the audit and recommendations made thereunder road alterations and modifications were undertaken in all areas that were identified as requiring immediate attention – this of course included the area of the accident. As a result of the Department alacrity in commissioning the alterations, which I find were totally appropriate, the possibility of an accident occurring in similar circumstances at the particular location of this accident is highly improbable.

Although the width of the road has been slightly reduced at the site of the accident a safety fence has been erected on the eastern side and passing bays formalised. Road signs either side regulate the passage of vehicles through this area.

Evidence before me indicates that in the course of the next 24 months further works will be carried out on the road so as to address all issues identified in the audit. This, to my mind, is an appropriate and proper response to the audit by the Government.

During the course of the coronial investigation a report, under the hand of Doctor D. L. Giles, was received by my office. This report related to an audit that Dr. Giles had carried out in relation to the Cradle Mountain Road. Dr. Giles was summonsed at my direction and gave sworn evidence at the Inquest. His report was tendered and marked as exhibit C 75. Dr. Giles was questioned by Mr. Turner, acting for the State, at some length in relation to his qualifications and motivation for preparing the report. Dr. Giles stated in evidence his qualifications and experience and I found his evidence to be enlightening and helpful to me in my deliberations. Clearly, Dr Giles has a great interest in road construction and it is pleasing to note that there are people such as Dr Giles who are prepared to give of their own time to assist and to put matter before an inquest in such a constructive manner. I am indebted to Dr Giles for his very thorough and detailed investigation and report.

As already alluded to the road does not comply with the ‘Austroads Guide to the Geometric Design of Rural Roads’ in some aspects. As I have already found, the road itself was never designed nor constructed. The guidelines came into existence sometime after the date on which the State took control of the road. The Guidelines apply to the construction of new roads however, they are followed by road authorities. Mr. Turner, at page 5 of his submission, makes the following comment:

"Many roads in Tasmania and indeed throughout the country are in this category – having been constructed or developed or maintained (or a combination of these things) well before any guidelines became applicable. Even Dr. Giles agreed with the proposition that it would cost billions Australia wide and hundreds of millions in Tasmania to have all roads compliant with the various Guidelines;"

I agree with the comment made by Mr. Turner. The suggestion of all roads (of the type referred to above) being compliant with the various guidelines is unrealistic and any recommendation made to the contrary would be unreasonable.

It is also clear that there should not be substantial alteration to the roads in this area without proper consultation with all interested parties, with proper consideration, not only to the safety aspects but also environmental concerns. It is the natural beauty of this area which attracts tourists and, no doubt attracted the passengers on this fateful night, it would be a pity to see it destroyed by the construction of substantial roads merely because of a particular standard.

It is noted that some of the concerns of Dr Giles have been or will be addressed following the audit undertaken by the Department of Infrastructure, Energy and Resources, although his main recommendation has not, and I do not believe, from the evidence and information that I have received, I could, or should, recommend the implementation of a redesign and reconstruction of Dove Lake Road to "acceptable engineering standards" as suggested by Dr Giles. Such development may unduly impact on the World Heritage value of the area.

It is my view, there needs to be a balance between protecting world heritage areas and the desire and the right of citizens to have the opportunity of seeing and viewing them.

There would seem little point of having one of the world’s greatest natural assets and to lock it up and deny the general population access to it. Equally, development of roads and the provision of access should not unduly impact on the natural beauty of the area, and should harmonise with it, whilst ensuring the safety of those using such access.

Again, I would like to express my gratitude to Dr Giles for his evidence. He has an obvious passion in relation to road safety and has volunteered much of his time in investigating the needs as he sees them, and has produced an excellent report as to the ideal road requirement for this area as he perceives it.

I would also like to express my gratitude to Constable Sven Mason for his assistance and the meticulous manner in which he prepares his files to assist the Coroners. To have an officer with such extensive experience in accident investigation is invaluable.

During his evidence, Constable Mason referred to the reduced speed limit that was imposed initially after the accident. It was his opinion, and one with which I do not disagree, that the requirement that vehicles travel at a reduced speed over a lengthy distance can lead to driver frustration and inattention. With the modifications undertaken immediately following the accident it is highly unlikely a similar incident would occur. Whilst, I acknowledge that the reduction in speed was appropriate at the time, it should now be reconsidered, noting that speed was not a relevant factor in this accident, and there has not been any reported accident due to excessive speed. I, of course, would not recommend increasing the speed above the previously designated speed limit, and any consideration should take into account the effect such increase may have on the stability of the road.

I would also recommend that regular safety audits be undertaken in relation Dove Lake Road to consider implementation of modifications from time to time, which would give consideration to road usage and its effect on the road structure and the ever changing sight distances. The audit should also take into account the greater stresses placed on the road structure by the higher volume of traffic during the summer months. Whilst it averages to less than 1,000 vehicles according to the statistical information, it is clear that the volume is much greater during the summer months, and therefore the resultant effect upon the road would be greater during this period. This situation may become exacerbated by the possible increase in tourist numbers with the provision of two monohulls on Bass Strait, and the increased visitor numbers to the Cradle Lake area.

On the evidence, that has been presented before me, I find that the accident has been a direct result of Kathleen Michelle Grayson driving a mini bus too close to the eastern edge of the road whilst manoeuvring her vehicle to allow the approaching vehicle being driven by Charles David Livesey to pass, and in doing so has caused the rear passenger side tyre to move too close to the edge of the road surface. This error in judgment has been contributed to by the lack of appropriate road edge delineation and appropriate safety railing in such a treacherous area. It is highly probable that this manoeuvre caused the rear passenger tyre of the bus to lose contact with the road surface with the resultant effect that the bus lost stability causing the left rear corner of the bus to slip from the road surface. It is possible that the movement of passengers within the bus exacerbated the movement of the bus.

To the families of the deceased I extend my sincere condolences on your loss. It is always very hard to come to terms with the loss of a loved one.

I make no further comments or recommendations.

This matter is now concluded.

DONALD J JONES
Coroner

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