Six-year-old Carla Neems died as a result of the collision outside her family's home. Photo / Supplied
Six-year-old Carla Neems died as a result of the collision outside her family's home. Photo / Supplied
The driver of a Waste Management recycling truck involved in a fatal collision with 6-year-old Carla Neems, has been cleared of any wrongdoing.
Sau Tulua Aliifaalogo, 37, was yesterday found not guilty of careless use causing Carla's death, by Judge Arthur Tompkins on the third day of a judge-alone trialin Gisborne District Court.
The judge retired for 15 minutes before delivering his decision, which was met with silence by supporters of the Neems and Aliifaalogo families.
The judge acknowledged Carla's tragic and untimely death, and the effect of it on her family and the wider community.
She died as a result of the collision outside her family's Russell Street home, as she arrived home from school on her scooter about 3pm on May 2 last year.
Judge Tompkins said the single issue for him to decide was a stark one — whether the prosecution had proved beyond reasonable doubt that Aliifaalogo failed to exercise the care and attention reasonably required of a prudent driver.
"The application of the legal test required the court to avoid the wisdom of hindsight.
"That is particularly important here, where the outcome has been so tragic, and the temptation to investigate speculative counter factual possibilities is so strong," Judge Tompkins said.
Emergency services at the scene of the accident. Photo / Supplied
A comprehensive police crash investigation report ruled out any other causative or contributing factors, and concluded speculatively that Carla's death was likely to have been due to either driver inattention, in-cab distraction or her collision with the front of the truck.
An expert crash investigator Paul Bass (commissioned by counsel Adam Simperingham) had also prepared a comprehensive report, concluding there were too many unknown variables to say whether Aliifaalogo should have seen Carla before moving the truck forward.
In reaching his decision, Judge Tompkins said he relied on the cumulative effect of the evidence.
The driver's left-side standing position in the single-operator, dual-steered 10-tonne truck, fitted the description in legal authorities of an unusual situation, which required a heightened degree of care and caution by the driver and greater obligation to keep a vigilant lookout.
Carla likely entered a blind corridor a half-metre wide
He accepted that Aliifaalogo had obliviously carried on with his work duties, had not noticed, heard or felt anything untoward at the time of the collision, and that he had made prudent checks before proceeding.
Evidence showed that as she crossed the road toward her driveway, over some of which the truck was parked, Carla likely entered a blind corridor, about a half metre wide, that would have extended right across the carriageway.
She must then have moved directly in front of the truck which, to her, would have seemed stationary, Judge Tompkins said.
Despite the truck's flashing beacons front and rear, she would not have been aware, at her young age, of the potential for it to move forward.
As she emerged from the blind corridor to the front of the truck, she would have been visible to the driver only in a small convex mirror mounted at the top of the left mirror pillar, and only for less than a second or slightly longer than a second (depending on whether she was riding her scooter or pushing it, which was not known).
The judge noted there were no proximity alarms fitted anywhere on the truck.
It seemed clear that had there been — particularly at that front right corner — Carla's presence in the area would have been audibly known to Aliifaalogo.
The judge said he was satisfied Aliifaalogo had appropriately checked his mirrors and that, despite police submissions to the contrary, it was prudent for him to have looked forward through the windscreen before next applying the accelerator.
Police prosecutor Tony Rielly submitted Aliifaalogo's final check should have been of the convex mirror to see what was immediately in front of him.
The judge accepted the evidence of defence witness Auckland University Professor of Optometry Dr Phil Turnbull, that Aliifaalogo — despite having a peripheral vision response time better than most — could not have been expected to see any movement in the convex mirror while he was focused forward on the road ahead.
Had he been focused on the convex mirror, all other objects ahead would have been blurred.
It was impossible to check that mirror and the roadway beyond its view at the same time.
The judge rejected the prosecution's references to lack of indicator use by Aliifaalogo, that he was parked over the Neems' driveway, and that he had not changed to the normal right-hand seated driving position before departing the Neem's property (police say he should have done so, if it was the last collection point in that street's run).
Those matters were not indicative of causative carelessness or in breach of the relevant operating standards and procedures, the judge said.
