Calvaresi v Beare and Ors No. Scgrg-96-889

CALVARESI v BEARE, THE ADELAIDE HILLS COUNCIL AND
THE STATE OF SOUTH AUSTRALIA
[2000] SASC 21
Civil
DOYLE CJ.
Introduction

These proceedings arise out of a claim for damages for negligence following a collision between a motor vehicle driven by the defendant and a bicycle ridden by the plaintiff. The defendant has joined the Adelaide Hills Council (the Council) as third party alleging negligence in the construction, design and maintenance of the junction at which the accident occurred. The Council has joined the State of South Australia as fourth party claiming a right to indemnity on the basis that the junction was designed and constructed by the Highways Department of South Australia and has not been materially altered by the Council since it assumed the care and control of the junction in 1985. The defendant has served a contribution notice on the fourth party.
The plaintiff and defendant reached a settlement. A consent judgment was entered for the plaintiff against the defendant on 20 July 1999 for $2m in addition to an amount in excess of $400,000 already paid by the defendant. The only issues that remain are those between the defendant and third and fourth parties. The third and fourth parties agree that the settlement between the plaintiff and defendant was reasonable in all respects, that the defendant properly admitted negligence, and that the damages reflect an appropriate reduction for contributory negligence on the part of the plaintiff. I am asked only to determine the liability of the third and fourth parties.
The proceedings between the defendant, the third party and the fourth party were heard together. Each party has agreed to be bound by the result of the trial between the others.
The junction
The accident occurred at approximately 6:45pm (daylight saving time) on 27 February 1995 at the junction of Shurdington Road and Pottery Drive, Crafers.
Given that much of the evidence before me concerns the configuration, signposting, delineation and marking of the junction and the vegetation on the corners of the junction, it is useful at the outset to describe the junction in some detail. I make the following findings.
Crafers is a suburb in the Adelaide Hills. The junction in question is in a locality typical of the Adelaide Hills region. The locality is hilly with fairly dense roadside vegetation.
The junction is essentially a T-junction with Shurdington Road as the through or continuing road and Pottery Drive as the terminating road. Shurdington Road runs roughly north-south. Just south of the junction it curves to the west. Pottery Drive runs approximately east-west at the junction, after a curve to the right for traffic approaching the T-junction.
I say that the junction is essentially a T-junction because Shurdington Road and Pottery Drive do not meet one another at right angles nor on a flat plane. Shurdington Road falls at a gradient of about 10 per cent from north to south as one approaches the T-junction and after the T-junction drops more sharply and curves to the west, or to the right for a south-bound driver on Shurdington Road. Pottery Drive rises quite steeply, as it approaches Shurdington Road, and joins Shurdington Road at an angle of about 70 degrees (at the north eastern corner) on the outside of the beginning of the curve to the west on Shurdington Road.
I shall on occasions refer to that part of Shurdington Road to the south of the junction as Shurdington Road west and to that part of Shurdington Road to the north of the junction and past a further junction with Wonnaminta Drive, as Shurdington Road east, because that is how they are known locally and how they were referred to by some witnesses.
Shurdington Road extends for approximately 75 metres north of the T‑junction before meeting Wonnaminta Drive in a Y-junction and veering away to the east or to the right (for a north-bound driver). A driver entering the T‑junction from Pottery Drive would need to look to the right up Shurdington Road towards the Wonnaminta Drive junction, and to the left down Shurdington Road west which continues out of sight around the bend which begins about where Pottery Drive joins Shurdington Road.
There is a give-way sign and a painted holding line (a solid painted line across the relevant half of the road surface) on Shurdington Road west just before the Pottery Drive junction. There is no give-way sign for traffic entering the junction from either Pottery Drive or from Shurdington Road east. There are white centre lines marked on Shurdington Road and on Pottery Drive, which lines terminate a short distance before the junction. There are no line markings within the junction itself.
A driver approaching the junction from Pottery Drive cannot see the surface of Shurdington Road. But the driver is faced with an embankment which runs along the far side or western side of Shurdington Road. A bi‑directional hazard board is located at the bottom of the embankment directly opposite Pottery Drive. The embankment and hazard board are visible as one approaches the junction. There are metal ‘armco’ safety railings on both sides of Pottery Drive leading into the junction. These armco railings extend around the corners of the junction some way into Shurdington Road. These things combine to indicate that the driver is approaching an intersection or junction, despite the absence of signs specifically indicating that.
There is a mixture of native and introduced vegetation on the sides of both Shurdington Road and Pottery Drive and on the corners of the junction. I will return to this vegetation in more detail.
Both Shurdington Road and Pottery Drive are low volume roads. Approximately 137 vehicles pass through the junction daily. Most of the drivers using the junction are local to the area. As such, most are frequent users of the road and are familiar with the junction.
Only one accident has been recorded at this junction, that being the accident the subject of these proceedings.
The Council is responsible for the roads and for the junction. The District Council of Stirling was responsible for the junction at the date of the accident. The Council has succeeded to the obligations of the District Council. The District Council assumed responsibility for the junction on 11 October 1985. Prior to that date the design, layout, delineation, marking, signposting and configuration of the junction were undertaken by the Commissioner of Highways pursuant to s 26 of the Highways Act 1926.
The delineation, signposting, marking and configuration of the junction at the date of the accident were the same as when the Council assumed responsibility in 1985 save that the line marking had been re-painted and ‘beaded’ by the Council from time to time.
A number of changes have been made to the junction since the accident occurred in 1995. The give-way sign on Shurdington Road west and the accompanying hold line have been moved back (or south) from the junction by some 3 metres. The end of the centre white line on Pottery Drive has been extended towards the junction by 3-4 metres. There has been some clearance of the vegetation at the north east corner of the junction at various times since the accident. For now, it is necessary to note only that clearance work was undertaken in April 1995.
The accident
Both the plaintiff and defendant gave evidence as to the circumstances of the accident. Much of the evidence is undisputed and uncontroversial. I will summarise the evidence, deferring my findings on contentious points.
The plaintiff, Mr Calvaresi, was riding his mountain bike down Shurdington Road approaching the junction, with the entrance to Pottery Drive on his left. Mr Calvaresi had intended to continue through the junction into Shurdington Road west, his house being a short distance past the junction on the right hand side of Shurdington Road. This was the first time Mr Calvaresi had ridden his bike along that stretch of road. He had been riding with a companion, Ms Burns, who was some distance behind him as he approached the junction.
It was about 6:45pm. The weather was fine. Visibility was good, although trees on the western side of Shurdington Road were casting some shadows across the road surface. Mr Calvaresi was wearing dark clothing.
Mr Calvaresi says that he reduced speed as he came down Shurdington Road east and through the Wonnaminta Drive Y-junction, and continued down Shurdington Road towards Pottery Drive. A 'speedo' device had recently been fitted to Mr Calvaresi’s bike. He says that he looked at this at some point between the two junctions and saw that the reading was approximately 20-25kph. [T48]
Mr Calvaresi says that he was in the middle of the left-hand lane as he travelled down Shurdington Road. When he first saw the defendant, Mrs Beare, he estimates that she was only 4-5 metres away from him. On sighting Mrs Beare’s car, Mr Calvaresi says that he braked heavily causing his bike to tip forward and pitch him over the handlebars. Mr Calvaresi recalls hitting Mrs Beare’s car with his head.
Although his evidence on this point was somewhat unclear, Mr Calvaresi’s recollection was that when he first saw Mrs Beare’s car it was past the end of the centre white line on Pottery Drive and to the right of it. If his evidence on this point is accepted it would suggest that Mrs Beare “cut” the corner slightly.
He does not recall what happened after he hit the car.
Despite wearing a bicycle safety helmet at the time of the accident, he sustained very serious injuries. He has quadriplegia with some limited movement of his arms and hands.
The defendant, Mrs Beare, also lived locally. She had negotiated this junction, turning right from Pottery Drive onto Shurdington Road, on a daily basis since 1991, it being her habit to travel home that way from work.
On the day of the accident she was driving her red Alpha Romeo home from a dental appointment. Mrs Beare says that she approached the crest of Pottery Drive with caution and looked to her right up Shurdington Road once her car had reached a point which was a little forward of the end of the centre white line on Pottery Drive. She could see up Shurdington Road to the junction with Wonnaminta Drive. [T108] She did not see anything coming. She then looked left. She began to turn to the right, and proceeded through the junction at low speed. Her evidence was that she would have been travelling at less than 10-15 kph as she made her turn through the junction. [T106 and T108] She did not stop her car before executing the turn.
Mrs Beare says that she did not cut the corner but was to the left of the centre white line in Pottery Drive when she commenced her turn. She had travelled only a short distance, a few metres, when she saw Mr Calvaresi. Mr Calvaresi was then only a few metres from Mrs Beare’s car. [T132] She was part way through her turn onto Shurdington Road. Her impression is that Mr Calvaresi was coming down the middle of the road, possibly slightly to his right of the centre white line. She says that she stopped her car immediately but that it was too late for her to take any evasive action. Mr Calvaresi collided headfirst with the driver’s door of Mrs Beare’s car. Very little damage was done to Mrs Beare’s car, there being only a slight dent on the driver’s door and a small scratch on the bonnet.
In the course of her evidence, Mrs Beare indicated the final position of her car on a scale plan of the junction. The drawing she made of her vehicle indicates that she stopped a short distance south of the end of the centre white line on Shurdington Road and on an angle to it, so that if the centre white line of Shurdington Road had continued through the junction her car would have straddled that line. When it was put to Mrs Beare that her drawing suggested she had stopped 1-2 metres from the end of the centre white line she said that she could not say precisely how far she stopped from that line. Mrs Beare said that she recalls that she had not passed the end of the centre white line but she did not have a clear recollection of the precise angle of her car. She was, however, able to say that she had not completed her turn and that her car was not yet parallel to the centre white line on Shurdington Road.
Mr Calvaresi, having lost consciousness following the collision, was not able to give any evidence as to the final position of either himself or Mrs Beare’s vehicle.
There were no witnesses to the accident. A few minutes after the accident occurred Mr Meynell-James, a local pizza delivery driver, drove past and stopped to help. Mr Meynell-James’ recollection is that the right-hand wheels of the car were over the line on the incorrect side of the road but the majority of the vehicle was on the correct (that is Mrs Beare’s left-hand) side of the road. His evidence was that the car was almost parallel to the centre line on Shurdington Road, on perhaps a 15 degree angle to that line. The difference between his evidence and that given by Mrs Beare is that Mr Meynell-James placed the car further through the junction into Shurdington Road, and in particular north of the end of the centre line, and on less of an angle to the centre line. That is, his evidence suggested that Mrs Beare was further through her turn before she stopped. I note, however, that Mr Meynell-James said that his mental reference points in recalling the position of Mrs Beare’s car were the armco railing and the embankment rather than the white line. He agreed that the car might not have been as far up Shurdington Road as he had indicated. [T756]
A short time after Mr Meynell-James arrived, Mr Calvaresi’s riding companion, Ms Burns, rode down Shurdington Road to the accident scene. Ms Burns was not called to give evidence.
Mr Meynell-James went to a house owned by Mr and Mrs Thompson-Austring, situated directly above the accident site on the western side of Shurdington Road, in order to phone for an ambulance. Mr Thompson-Austring went to the accident scene to assist. Mrs Thompson-Austring observed the accident scene from the top of the embankment until the ambulance had left with Mr Calvaresi and then she came down to offer her assistance. Mrs Thompson-Austring gave evidence at the trial but did not have a clear recollection of the final position of Mrs Beare’s car except that it was “on an angle”. She did not recall where the car was in relation to the centre white line on Shurdington Road.
Senior Constable Turner arrived at 6:59pm. Constable Turner drew a diagram of the junction showing the final position of Mrs Beare’s vehicle: Ex 3P40. That drawing showed Mrs Beare’s car on an angle of approximately 45 degrees to the centre white line on Shurdington Road. Constable Turner’s evidence was that Mrs Beare’s car was in a position such that the centre line on Shurdington Road was at least up to the front of the vehicle. He could not say whether that line had continued under the car.
Issues for determination
The defendant admits her liability to the plaintiff. She claims that the personal injury and loss to the plaintiff were caused or contributed to by the negligence of the Council. On this basis she claims contribution from the Council pursuant to s 25(1)(c) and s 26 of the Wrongs Act 1936. The claim for contribution is made on the basis that the Council had responsibility for the configuration, signposting, delineation and marking of the junction.
The defendant pleads that the Council had statutory powers in relation to those matters under s 314(d) of the Local Government Act. In exercising those statutory powers, or in considering their exercise, the defendant alleges that the Council had a duty to provide a “safe environment” for members of the public using the junction. That is, a “safe environment” in relation to configuration, signposting, delineation and marking. The defendant further alleges that as an occupier of land within the meaning of s 17C of the Wrongs Act 1936, the Council owed a duty of care to persons using the junction.
Although not pleaded, at trial the defendant also made reference to the Council’s powers under the Road Traffic Act 1961 (the “RTA”) in relation to traffic control devices. A “traffic control device” includes a sign and road markings: s 2. It is common ground that the Minister had exercised either the power conferred by s 11 of the RTA to delegate to the Council power to install and to use the traffic control devices relevant to the case, or the power conferred by s 17 of the RTA to approve in general terms of the Council installing and using the relevant traffic control devices: see Ex D2 item 10. Subject to some points to be made in due course, the Council had the power to do the things that the defendant claimed it should have done. The case was conducted on the footing that the defendant’s allegations of negligence embraced allegations of negligence by the Council in the exercise of, or failure to exercise, the powers available under the RTA.
The defendant pleads that the junction presented a danger to members of the public, that danger arising from a breach of duty by the Council.
The defendant alleges that the configuration or lay-out of the junction, and the signs and road marking, rendered it unsafe. Detailed Particulars are provided in par 7 of the Further Amended Statement of Claim Against the Third Party (“the Statement of Claim”). In essence, the claim is that the “design and execution of the work” of constructing the intersection, and signposting and marking it, was improper and unsafe according to the standards applicable when the work was done, or according to standards applicable at the time of the accident: see Buckle v Bayswater Road Board (1936) 57 CLR 259 at 284-285 Dixon J.
At trial, the particulars of negligence pleaded against the Council were reduced to two main allegations, tendered as Ex D17. First, that the signposting and line marking of the junction was inappropriate. Second, that the line of sight for drivers turning right from Pottery Drive into Shurdington Road was inadequate due to the presence of vegetation on the north east corner of the junction.
It is necessary to set out in more detail the submissions made by the defendant in support of each of these allegations
Counsel for the defendant, Mr Walsh QC, made the following criticisms of the signposting and line marking of the junction. He said that there should not have been a give-way sign on the Shurdington Road west leg of the junction. There should instead have been a give-way sign and holding line marked on the Pottery Drive leg of the junction. He argued that the combination of a T-junction and give-way sign on its continuing leg, Shurdington Road west, created an unorthodox give way situation which gave rise to ambiguity and confusion in relation to the give-way rule to be applied. He submitted that the signs installed did not comply with the applicable legal requirements.
He argued that the unorthodox treatment of the junction caused confusion in the mind of the defendant and thereby contributed to the accident. Mrs Beare gave evidence that had there been a give-way sign on Pottery Drive, she would have stopped at the junction before commencing her turn.
Mr Verco, an expert witness called by the defendant, presented two plans setting out how the safety of the junction could be improved by changes to the signposting and line marking. One of those plans was prepared on the assumption that the give-way sign on Shurdington Road west would be shifted to Pottery Drive and one was prepared on the assumption that the give-way sign would remain in its present location. Mr Verco emphasised that his preferred plan was to move the give-way sign to Pottery Drive but that the second option would also improve the safety of the junction. Each of his suggested options involved realigning and extending the centre line on Shurdington Road and Pottery Drive, moving the bi-directional hazard board slightly towards Shurdington Road west, clearing and maintaining the clearance of foliage on the north east corner of the junction and making certain changes to the Wonnaminta Drive junction.

On the assumption that the give-way sign would be moved from its present location to Pottery Drive, Mr Verco also recommended that there be an advance give-way sign installed on Pottery Drive approximately 80 metres before the give-way sign and painted hold line.
On the assumption that the give-way sign would remain in its present location Mr Verco recommended that there be a continuity line painted across Pottery Drive. A continuity line is a broken white line which would run across the entrance to Pottery Drive to delineate the end of Pottery Drive and the beginning of the Shurdington Road carriageway.
It was also pleaded that if the road with priority was intended to be from Pottery Drive into Shurdington Road east, as indicated by the give-way sign on Shurdington Road west, the Shurdington Road/Pottery Drive junction should have been realigned or have pavement markings, kerbs or other indications aligned in such a way that the priority was clearly defined. The defendant did not pursue this claim at trial.
The second broad complaint made by the defendant is that a full view to her right up Shurdington Road was not available to her from Pottery Drive until she had entered Shurdington Road, and that this was due in part to the presence of foliage on the north east corner of the junction.
She says that the Council knew or ought to have known that it should clear and keep cleared the vegetation at the north east corner of the junction, because it created a danger by obstructing the line of sight from Pottery Drive up Shurdington Road. At trial the Statement of Claim was amended to provide particulars of this allegation: see par 7.3. Mr Walsh argued that the Council did not undertake clearance work necessary to provide an adequate line of sight and did not have an adequate program of vegetation clearance for the purpose of maintaining acceptable sight lines.
Shortly stated, the defendant says against the Council that because of the inappropriate signposting and line markings, and obstruction to line of sight by the vegetation on the north east corner, the junction did not conform with minimum standards of prudent road design and maintenance, was confusing and unsafe: Statement of Claim par 7.4. The defendant says that this amounted to a breach of the Council’s duty of care owed to road users and caused the loss and injury suffered by the plaintiff. The defendant claims contribution from the Council on this basis.
The Council denies that it was in breach of duty and in the alternative claims immunity as a highway authority under the so-called non-feasance rule.
I turn now to the allegations against the fourth party.
The design, layout, delineation, marking, signposting and configuration of the junction were originally undertaken by the fourth party through the Highways Department of South Australia. As I have said, it is not disputed that the Council took over the responsibility for the junction from the fourth party on 11 October 1985, but that prior to the accident, the Council had not altered the junction except to re-paint and ‘bead’ the line markings. The Council says that in such circumstances, the fourth party is liable as a joint tort-feasor pursuant to s 25 of the Wrongs Act 1936. The Council has not pleaded any issue against the fourth party in relation to the failure to clear vegetation.
The fourth party denies that it had any responsibility for the junction at the date of the accident given that the Council assumed sole responsibility in 1985. In the alternative, the fourth party relies on s 29(1) of the Highways Act 1926 saying that it acted in good faith at all times.
The issues for determination in relation to the liability of the Council are as follows. Did a traffic control device installed at the junction, or a failure to install a traffic control device materially contribute to the occurrence of the accident? If it did so materially contribute, did the presence of or failure to install that device represent a breach of the Council’s duty of care to road users? Did the vegetation at the north east corner obstruct the line of sight available to users of the junction? Did that obstruction materially contribute to the occurrence of the accident? If it did, was it a breach of the Council’s duty of care to allow that to occur?
The issue for determination in relation to the liability of the fourth party is whether, given the time that had elapsed between it ceasing to have responsibility for the care, control and maintenance of the junction and the accident, it can be held responsible for any negligent signposting and marking of that junction. As well, there is the issue of whether the signposting and marking of the junction met standards applicable when they were installed and made respectively, or the time when responsibility for the junction was transferred to the Council.
I will deal first with the liability of the Council. It is convenient to consider separately the issues in relation to vegetation and line of sight, and the issues as to the appropriate signposting and line marking of the junction. However, before doing so, it is necessary for me to make findings relating to the collision between the plaintiff and the defendant.
The accident - findings
I am satisfied that all of the witnesses referred to in my earlier summary of the circumstances of the accident were truthful in their evidence. However, there are some gaps and conflicts in their evidence. I accept the substance of Mr Calvaresi’s evidence as far as it went. Mrs Beare was an impressive witness. I also accept the substance of her evidence. On some points I have not accepted their evidence, when it conflicts with other more persuasive evidence, or with what seems to me the more likely course of events.
Having considered the evidence given by the witnesses referred to and the expert evidence of Mr Aust and Mr Hall I make the following findings.
Mr Calvaresi was travelling down Shurdington Road at between about 25kph and 40kph. Mr Calvaresi said that he looked at his ‘speedo’ at some point between the two junctions and that is how he knew he was travelling at 25kph. I note, however, that photographs of the 'speedo' indicate that it displayed a reading in miles per hour not kilometres per hour: see the report of Mr Aust Ex D23. Mr Calvaresi was not asked about this when he gave evidence. There is also evidence to suggest the ‘speedo’ device was not fitted to the bike in such a way as to provide an accurate reading: Ex D23 p 4. Accordingly, I am cautious about acting on Mr Calvaresi’s evidence that his speed was 25kph. However, on his basis of the evidence, there is no reason to think that he was travelling slowly or fast. On that basis, I am satisfied that his speed was within the range stated.
I find that Mr Calvaresi was travelling in about the centre of his half of the road. When Mrs Beare first saw him he might have been on or part way across the centre line. If he was, I find that that was the result of a last minute attempt to avoid the accident.
I accept the evidence of Mrs Beare, that her speed as she executed the turn was approximately 15 kph or a little less from when she began the turn until very shortly before the accident when she braked severely.
Mr Aust and Mr Hall gave various estimates of the period of time during which Mr Calvaresi and Mrs Beare could have observed each other, had they been fully alert. The estimates depend upon their respective speeds, their respective positions on the carriageway, the effect of the vegetation at the north-eastern corner on the line of sight, and the location of the point at which the collision occurred. Matters such as reaction time and braking effect also affect the estimates.
Precision in these matters is impossible. Nor, I consider, is there much point in attempting to be too precise. The evidence of the experts indicates that Mrs Beare was turning for between about 3 seconds and 4 ½ seconds from the moment when she began to turn until the collision occurred. Assuming that the vegetation formed a complete barrier to sight, right up to the alignment of the armco railing, Mrs Beare and Mr Calvaresi had the opportunity to observe each other for between about 3 seconds and 4 seconds. If Mr Calvaresi was travelling at 40kph, he could have stopped (assuming an average reaction time) over a distance of between 30 metres and 40 metres. At a speed of 25kph, he could have stopped over a distance of about 17 metres to 20 metres. These are approximations, but there was not much difference between the estimates of Mr Hall and of Mr Aust. Because of the unknowns there is, as I have already said, no point in trying to make a final and precise finding on these matters.
On the basis of this evidence, I find that as Mrs Beare began to make her turn to the right, she was first able to see up Shurdington Road to Wonnaminta Drive (a position just forward of the end of the centre line on Pottery Drive), Mr Calvaresi was no less than about 20 metres away and no more than about 40 to 50 metres away.
It follows that Mr Calvaresi was there to be seen, and likewise that Mr Calvaresi had the opportunity to see Mrs Beare’s Alfa Romeo. If either of them had seen the other straight away, and had reacted appropriately, the collision might have been avoided.
I find that Mrs Beare looked in the manner described by her in evidence, but did not see Mr Calvaresi. One or more of a number of factors contributed to this failure to see Mr Calvaresi. Several possibilities were suggested by Professor Triggs. They include dappling effect (that is shadows cast by trees onto the roadway), a low expectation that she would encounter a cyclist at that junction, the dark clothing worn by Mr Calvaresi, the visual difficulty in identifying the relatively small object the bike and rider presented, and any number of other ‘individual’ factors which may or may not have affected Mrs Beare at the time of the accident, for example tiredness or distraction. I note that the sun would have been relatively low in the sky and would have cast shadows across the roadway, although I acknowledge that neither Mr Calvaresi nor Mrs Beare recall being aware of this in particular. It is neither possible nor necessary to find exactly why Mrs Beare did not see Mr Calvaresi before she did, except to say that I accept that each of these factors may have played a part in the accident. I will return shortly to the issue of whether sight obstruction by vegetation on the north east corner contributed to her failure to observe Mr Calvaresi.
For whatever reason, Mrs Beare ‘looked but did not see’ Mr Calvaresi and as a result failed to yield right of way to him.
I find that at some point during his approach to the junction, but not until he was quite close to the junction, Mr Calvaresi observed Mrs Beare’s car turning in front of him, braked sharply and as a result pitched forward over the handlebars of his bike. I accept the evidence of Mr Aust that as a result of this heavy braking his bike would have been travelling at a relatively low speed at the time he went over the handlebars: Ex D23 p 19. I find that due to inattention Mr Calvaresi did not observe Mrs Beare’s Alfa Romeo until she was well into her turn to the right and some time after she was first able to be seen. I find that his lookout was defective.
I find that Mrs Beare began her turn, as she said, at a point just forward of the end of the centre white line on Pottery Drive. The final position of her vehicle was part way through her turn and at least up to, and possibly just beyond, the end of the centre white line on Shurdington Road. Her vehicle was straddling the centre line, or its prolongation. Given the state of the evidence it is impossible to be more precise than this. In any event, I do not consider the precise final position of her car to be of any great significance.
I find that Mrs Beare’s lookout was defective. Mr Calvaresi was there to be seen when she commenced her turn onto Shurdington Road east. She did not see him until she was well into her turn.
I find that Mrs Beare was negligent in failing to keep a proper lookout and, as a result, in failing to yield right of way to Mr Calvaresi. I find that Mr Calvaresi was contributorily negligent in also failing to keep a proper lookout. I would, were it necessary, quantify that contributory negligence at 20 per cent.
The accident was caused by Mrs Beare’s defective lookout. She could and should have seen Mr Calvaresi sooner than she did. The accident was contributed to by Mr Calvaresi’s defective lookout.
It is convenient at this point to deal with the part played in the collision by the vegetation.
Without making any finding at this stage about the extent of the vegetation at the north-eastern corner, I can say that the vegetation may have contributed materially to the collision. If the vegetation was cleared so as to allow Mrs Beare and Mr Calvaresi to see each other sooner than they were able to, it may be that one or other of them would have seen the other sooner than he or she did, and the collision might have been avoided.
In one sense, this conclusion might seem both obvious and inevitable. If vegetation had been cleared from the corner in such a fashion as to permit Mrs Beare and Mr Calvaresi to see each other sooner than they did, there must be a chance that one or other of them would have done so and would have avoided the collision. Whether that would in fact have happened depends upon the circumstances of the accident, and the reason why neither of them saw the other until it was too late.
The reports by Mr Aust and Mr Hall, and their oral evidence, support the view that clearance of the vegetation at the corner might have resulted in the collision being avoided.
In considering the causes of the accident, the expert witnesses generally assumed that the vegetation at the north east corner of the junction extended to the alignment of the armco barrier, and formed a barrier to sight along its alignment. In my view that is a reasonable assumption. The assumption does not exactly reflect the facts. But as will appear in due course, I consider that that assumption is a fair approximation to the facts as they were on the day of the accident.
In his report, Ex D24, Mr Aust assumed that the vegetation had been cleared to the extent shown in photographs in Ex D4. The photographs were taken in April 1995, not long after the vegetation had been cut back by the Council. Mr Aust relied in particular on photographs 3 and 7 to 10.
Once again, to form a view as to the effect of the improved line of sight that this would make available, Mr Aust had to make a number of assumptions about the speed, position and movements of the parties. Assuming, in particular, that Mrs Beare was travelling at 15 kph, and Mr Calvaresi at 40 kph, Mr Aust calculated an additional “avoidance time” of 1.4 seconds. That is, that each of them would have had an additional 1.4 seconds within which to see the other and to begin to react to that observation. In his report Ex D26 Mr Hall appears to agree with the approach taken by Mr Aust to this matter.
The conclusions of these two experts are necessarily hypothetical and cautious. In effect, their conclusions are that given the additional time Mr Calvaresi might have been able to slow his bicycle in a manner that would have avoided a collision, or avoided capsizing, and Mrs Beare might have brought her car to a halt without crossing Mr Calvaresi’s probable path of travel.
I am not prepared to make a finding on the balance of probabilities that the accident would have been avoided if the relevant corner had been cleared to the extent shown in the photographs in Ex D4. There are too many unknowns for me to make that finding. To establish causation it is not necessary to make that finding in a case in which several factors contribute to an event. It is not necessary to find that “but for” one of those factors the event would not have occurred. The issue is whether the factor “materially contributed” to the event: March v Stramare (1991) 171 CLR 507. I accept that the vegetation was such that Mrs Beare and Mr Calvaresi could see each other only relatively late in the piece, and was, on the balance of probabilities, a factor which materially contributed to the occurrence of the accident. It follows that giving them extra time, and on the experts’ calculations, time within which one or other of them might have been able to take evasive action that would have avoided a collision, might have resulted in the accident not occurring. That is sufficient to support a finding that the extent of the vegetation materially contributed to the collision.
On the other hand, I find that when Mrs Beare began her turn to the right, she could see up Shurdington Road to the junction with Wonnaminta Drive, a distance of about 80 metres.
In relation to the complaint that the vegetation was such as to deny Mrs Beare an appropriate line of sight to her right, the issue is not so much whether the vegetation at the corner played any part in the accident, but whether the line of sight that it allowed was sufficient to discharge the Council’s obligations to take reasonable care for road users.
I will deal next with the liability of the Council. It is convenient to consider separately the issues in relation to vegetation and line of sight, and the issues as to the appropriate signposting and line marking of the junction.
Vegetation and line of sight - findings
On the north east corner of the junction is a roughly triangular shaped area behind the armco railing in which there is a variety of native and introduced vegetation. A short distance from the armco barrier, in approximately the centre of this triangular area, is a fence post to which is attached cyclone wire mesh stretching diagonally away from the junction towards a large tree.
No photographs were available to show the state and extent of vegetation on the north east corner at the date of the accident, that is, prior to clearance work undertaken by the Council in April of 1995. However, photographs were tendered showing the state of the vegetation on that corner at various dates after the 1995 clearing had been undertaken. Most of the witnesses were shown a selection of these photographs and asked to make comparisons between the state of the vegetation in those photographs and the state of the vegetation at the time of, or before, the accident. For the sake of simplicity I will concentrate on the comparisons made by witnesses with a series of photographs taken in February 1998. These photographs, six in all, are Exhibit D8. The photographs are numbered 60, 61, 62, 63, 64 and 65. Photographs 64 and 65 in particular give a fair indication of the view up Shurdington Road to Wonnaminta Drive from about the point at which Mrs Beare began her turn to the right.
The vegetation shown in the photographs Ex D8 is a mixture of grasses and shrubs as well as one large and several smaller trees. There is vegetation hanging over the armco railing in places, but the railing is plainly visible along its length. The cyclone wire mesh fence and post are also partially covered, but visible. One of those photographs was taken from about where the centre white line on Pottery Drive finished on the day of the accident. From that position it is possible to see up the length of Shurdington Road to the Wonnaminta Drive junction. In my view, the vegetation shown in that photograph does not impede the line of sight from that position up to Shurdington Road east. This is consistent with the evidence of Mrs Beare that when she was just forward of the end of the centre line, she could see up Shurdington Road to the junction with Wonnaminta Drive.
The defendant has alleged that the line of sight up to Shurdington Road east on the day of the accident was inadequate. Her evidence was that the foliage on the north eastern corner was “a mixture of large trees, undergrowth, broom which is a tall spiky plant, vines”. [T106] She said that this foliage restricted her sight to the right up Shurdington Road and caused her to move out further into the junction, that is beyond the end of the white line, so that she could see up Shurdington Road as far as Wonnaminta Drive. [T106, T108] Compared to the photographs taken in 1998, Mrs Beare said that the foliage on the day of the accident was higher, denser, more overhanging, came out further over the guardrail and that you could not see the guard rail going down Pottery Drive. [T123, T124]

Mr Calvaresi gave evidence that the north-east corner of the junction was overgrown with trees and shrubs with some overhanging the armco railing. He said that on the day of the accident he could not see anything on the other side of the foliage on that corner. [T57] I take this to mean that the foliage prevented him from seeing anything on Pottery Drive behind, or through the vegetation. His evidence was that on the occasions when he turned right into Shurdington Road from Pottery Drive, this foliage affected his vision up Shurdington Road and that he would almost have to cross Shurdington Road in order to see up the road. I note, however, that it was not Mr Calvaresi’s usual practice to turn right onto Shurdington Road. His house being on Shurdington Road west, his usual practice was to turn left. Mr Calvaresi conceded that he had, in fact, only turned right into Shurdington Road from Pottery Drive “once or twice”.
His evidence was that the foliage on that corner was a lot fuller, denser and probably a bit broader over the armco rail at the time of the accident than was shown in the photographs Ex D8 which were taken in 1998. Mr Calvaresi said that after his release from hospital in September 1995 he observed that the vegetation on the corner had been cut back and that the view up Shurdington Road was “a lot clearer”.
The defendant’s husband, Mr Beare, also gave evidence as to the state of the vegetation on the north east corner. His evidence was that the foliage shortly before the accident was “quite similar” to that shown in photographs Ex D8 but “perhaps a bit more overgrown around the actual kerb” with “a bit more bushiness around the armco railing”. [T172] Mr Beare noted that parts of the armco railing had been obscured by vegetation.
Mr Beare used the junction 5-6 times per week between 1991 and 1996 and said that it was difficult to see what was coming down Shurdington Road. He said that although you did not need to stop at the junction, you had to approach it at a fairly slow pace as you edged up to see beyond the bushes.
Mr Lombardo was a local resident. He also expressed the opinion that the vegetation present at the time of the accident obstructed motorists’ view into Shurdington Road and that a proper view was not available until well into the junction. He described the vegetation as extending just over the armco railing and onto the bitumen. [T181] Compared to the photographs taken in 1998, he recalled the vegetation as being “considerably worse” before the accident. It was a lot “denser” and “higher” although the armco railing was visible.
Mrs Thompson-Austring has lived above the junction since 1989 and uses the junction approximately 6 times a day for various reasons, her direction of travel being right onto Shurdington Road from Pottery Drive. Her evidence was that you have to come right into the junction “before you could determine which way you were going” [T219] and that the nature of the junction is that people would just “naturally” cut the corner. [T229]
When asked to make a comparison between the state and extent of the vegetation at the time of the accident with that shown in the 1998 photographs Mrs Thompson-Austring described the vegetation on the day of the accident as being “fuller”, “denser”, “taller” and “more overhanging generally”. [T221] Her recollection was that the guardrail was more fully, but not completely obscured and that the view of the junction was not as “generous” as in the 1998 photographs. [T221]
Mr Meynell-James was able to give some limited evidence about the state of the vegetation on the north east corner. I accept his evidence. He had picked up Mr Calvaresi’s mountain bike in order to move it out of the way of the ambulance. Initially he thought about placing it on the other side of the armco railing at about the apex of the corner. He decided against this on the basis that the bike might not be found there later. The importance of his evidence was that although he noticed that there was some “green sort of bracken type shrub” growing behind the armco railing, the vegetation at that point was about 30-40cms back from the railing leaving him enough room to have placed the bike on the other side. [T746, T749] He said that at the point where he considered placing the bike, there was no vegetation hanging over the railing. He did not take particular notice of the extent of the vegetation behind the rest of the railing, but had the impression that it might have become somewhat denser further down towards Pottery Drive.
Mr Harrison is the Council’s Engineer and was the Engineer at the date of the accident. He has been employed by the Council since 1991. Two complaints were made about the junction after the accident occurred. One by Mrs Beare and one by Mrs Thompson-Austring. Following receipt of these complaints Mr Harrison went to the junction for the purpose of deciding whether any changes needed to be made. That inspection was made prior to any clearing taking place. Mr Harrison drove up to the junction, stopped at the top of Pottery Drive (although he did not get out of his car) and considered the lines of sight. [T556, T600] He said that all vegetation was behind the armco barrier, and in comparison with the photographs Ex D8 there was not a lot of difference. There may have been a little more vegetation just behind the armco barrier in 1995 but it would not have been any more than 2 feet higher. [T557, T558] He could see clearly up to the junction with Wonnaminta Drive. His opinion was that the vegetation did not affect his line of sight and he formed the view that it did not need to be cleared. [T558, T562] He had driven through the junction on a number of occasions prior to this, when attending to Council business.
Mr Thomas, a technical assistant with the Council, whose responsibility it was to deal with ratepayer requests, also visited the junction after receiving the complaint from Mrs Thompson-Austring. He says that the vision looking up Shurdington Road to the Wonnaminta Drive junction was “very good”.[T627] There were no trees hanging over the road, and although there was a lot of regrowth behind the guardrail, the rail was visible. His recollection was that the regrowth was approximately 6 feet to 7 feet high and about a metre to a metre and a half behind the guardrail. He described the vegetation in the photographs Ex D8 as being “a little bit worse” than it was just after the accident. [T628]
I find that the vegetation at the north-east corner was similar to but slightly thicker than the vegetation shown in the photographs Ex D8. I proceed on the basis that from the point of view of a road user the vegetation was thick enough to form a more or less complete screen out to or close to the edge of the armco railing. It can be seen from the photographs Ex D8, that were taken from about the end of the centre white line on Pottery Drive as at the time of the accident, that if vegetation formed a screen up to but not past the armco railing there was a clear and unobstructed view up the length of Shurdington Road as far as the Wonnaminta Drive junction.
I find that while in some places the vegetation may have overhung the railing, it did not do so to such an extent as to prevent a person in a motor car, and positioned at about the end of the centre line on Pottery Drive, from having a clear view up Shurdington Road to the junction with Wonnaminta Drive. This finding is consistent with the evidence given by Mrs Beare. To the extent that the finding involves a rejection of the evidence of other witnesses, I rely upon the evidence of Mr Harrison, and the support given to that evidence by Mr Thomas.
I was impressed by Mr Harrison. He gave his evidence in a clear and matter of fact way. He went to the intersection soon after the accident. I accept his evidence that he gave particular consideration to the line of sight. I rely also on the fact that he is the only person with relevant expert qualifications who examined the line of sight when the vegetation was the same as it was at the time of the accident. His inspection of the intersection was made with the line of sight in mind, even though he did not know at the time how the collision had happened.
Vegetation and line of sight - the Council’s duty
In the light of that finding, I turn to the question of whether the Council was in breach of any relevant duty by allowing that state of affairs to exist or to continue.
For present purposes I will assume that the Council cannot escape a liability that would otherwise exist, in relation to the state of the vegetation, on the basis that a highway authority has no duty to undertake active measures to maintain or to repair a highway. I will deal later with the question whether the absence of any such duty is relevant to a case like this, and whether the absence of a duty of maintenance or repair has survived the enactment of s 17C of the Wrongs Act.
For present purposes I am prepared to assume that the Council was under a duty to exercise its powers so as to take reasonable care to ensure that vegetation at roadsides in its area, and in particular at corners and junctions, did not obscure lines of sight so as to make the use of the relevant part of a road or of a junction unsafe. The case was conducted on the footing that the Council had the legal power and authority to cut back the vegetation at the corner, and I will make that further assumption, although the actual source of the power was not identified.
The formulation of the duty of the Council is mine. Counsel, as best I can recall, did not formulate the duty of the Council with any precision. It was assumed that the Council was under a duty to take reasonable care, subject to the so-called non-feasance principle.
It may be that the relevant duty is better expressed in more specific terms. If it is, the duty that I assume for present purposes is a duty to take reasonable care, or to take reasonable measures to clear roadside vegetation to the extent necessary to provide drivers at the junction with a sufficient line of sight to enable them to use the junction with reasonable safety.
Recognising the generality of that proposition, I turn to the question of whether the available line of sight in February 1995 was sufficient to enable a driver to negotiate the junction with reasonable safety. In considering what is required, the Council was obliged to make due allowance for the fact that from time to time road users will not always take due care. The Council was obliged to cater for the ordinary driver who occasionally fails to pay sufficient attention to the task in hand. On the other hand, the Council could not be expected to achieve what might be called fool proof conditions, or a complete absence of any obstructions. It is common experience that lines of sight are not ideal at many corners and junctions, for all sorts of reasons.
Neither counsel nor the expert witnesses pointed to any objective standard or measure by which I can or should determine the adequacy of the available line of sight. At one stage I thought that table 6.3 of Mr Verco’s report Ex D18 might provide such a standard, but his oral evidence was to the effect that it did not, and certainly not for the driver in Mrs Beare’s position. [T306-T308, T313-T314] A sight distance survey carried out by Mr Meredith related to the possible justification for the placement of a stop-sign, not to the adequacy of the sight line in the sense now under consideration. [T874]
It was common ground that the vegetation at the corner restricted the line of sight available to Mr Calvaresi and to Mrs Beare. That was beyond question. It was likewise common ground, as I have already noted, that the removal of the vegetation at the corner would have improved the line of sight. But the question for me is whether the situation in February 1995 reflected a breach of the duty that the Council bore.
Not only did none of the experts identify any objective measure for determining what was a sufficient line of sight, none of them clearly expressed the specific opinion, as a matter of professional judgment, that the available line of sight was not adequate for the safe use of the junction, and was not consistent with proper standards of roadside clearance. Perhaps that opinion was implied in what Mr Verco and Mr Hall said. They were the main road engineering witnesses relied upon by the defendant. For example, in his report Ex D18 p 10 Mr Verco describes the sight lines as “reasonably short”. In evidence he said that the sight line restrictions required a give-way sign on Pottery Drive to re-enforce in a driver’s mind the need for caution. [T257] A little later he said that the sight distance was severely restricted. [T268]
Mr Verco did come close to saying this when I asked him whether the junction as it was laid out met an acceptable professional standard. I asked him to clarify any features that did not, and he said: [T389]
“Yes; I believe the current location of the give-way line and sign, and probably the state of the vegetation.”
I emphasise that Mr Verco considered that the obstruction to the line of sight that the vegetation created was a difficulty for drivers. However, it is another thing to say that the vegetation rendered the junction unsafe.
Mr Harrison gave his professional opinion that the line of sight up Shurdington Road was adequate. [T556] He said in terms that the line of sight was “safe and sufficient”. [T562, T609] The fact that he later authorised the clearance of vegetation at this corner does not erode that opinion. I accept that this was probably done as a response to requests by rate-payers, and because one of the trees at the corner was dead. [T579, T581, T611]
Mr Meredith’s reports (Ex 3P35 and Ex 3P36) seem to indicate that he considered the line of sight to be adequate, although they are not entirely clear on this point.
The remaining witness with relevant expertise was Mr Smith. He also impressed me. I found his approach to the issues logical and convincing. I will return to his evidence later. In his report (Ex 4P43) he said (p 4) that the line of sight was satisfactory. That opinion is based on inspections carried out in October 1999, when the state of the vegetation was not the same as at the time of the accident.
On the basis of my finding as to the line of sight that was available, and taking into account the expert opinions, I now turn to the question of whether the available line of sight was sufficient to enable the ordinary or average road user, likely on occasions to fail to take adequate care, to negotiate the junction reasonably safely.
Bearing in mind that no objective criteria were identified as a basis for answering this question, I must make my own assessment of the facts.
I consider that for a driver turning right from Pottery Drive into Shurdington Road, the line of sight was adequate. Mrs Beare was able to see up Shurdington Road to the junction with Wonnaminta Drive, from a point before her car entered the carriageway of Shurdington Road. She knew that she had to give way to traffic coming down Shurdington Road, as would the ordinary road user. Thus, her duty to pause or slow and to look to her right was clear. If she did so, she had a reasonable line of sight available to her right. Indeed, once she got to the point at which she looked to her right, the vegetation ceased to be an obstruction. I recognise that an ability to see to the right up Shurdington Road to Wonnaminta Drive at an earlier stage would improve safety, but I remain of the view that the line of sight available was sufficient. A line of sight to Wonnaminta Drive became available before Mrs Beare entered Shurdington Road, and at a point readily recognisable as close to the point of entrance to the T-junction.
Much less attention was paid, during the trial, to the line of sight available to Mr Calvaresi. My impression is that clearing the vegetation at the corner would have made a material difference to his line of sight only over the last 30 metres or so before he reached the junction: see Ex D4 photographs numbered 7, 8 and 9. The configuration of the junction is such that a person travelling down Shurdington Road may find that a vehicle emerges from Pottery Drive with comparatively little warning. However, this will be the case even if the vegetation is cleared well back from the junction. The photographs in Ex D4, when compared with the photographs in Ex D9 (photographs 125, 126, 133 and 134), indicate that the improved vision for a person travelling down Shurdington Road, as a result of vegetation clearance at the corner, is relatively limited. That is not to say that, in a given case, the improvement might not be significant. I refer to my earlier remarks about the evidence from Mr Aust and Mr Hall about the effect of vegetation clearance on avoidance time. In the end, I am not satisfied that the line of sight available to Mr Calvaresi was not reasonably adequate.
My finding is, therefore, that the line of sight available across the north-eastern corner of the junction was adequate. It was not so limited as to render the junction unsafe. I have relied upon Mr Harrison’s assessment made when the vegetation was in the same state as it was at the time of the accident, and the opinion that he expressed drawing on his expertise. I have also used my own judgment of what can reasonably be expected under the circumstances.
If the vegetation produced the result that the line of sight was not sufficient, it does not follow as a matter of course that the Council is liable (along with the defendant) for the plaintiff’s injuries and loss. The duty of the Council was to take reasonable measures to clear vegetation to the extent necessary to provide drivers with a sufficient line of right to enable them to negotiate the junction with reasonable safety.
As to that last point, I should say a little more. The junction is located in an area of the Adelaide Hills where roadside vegetation is widespread and tends to be fairly thick. It would not be reasonable to require of the Council that it achieve a standard of vegetation clearance that might be expected in some other localities.
I accept the evidence of Mr Harrison that the clearance of roadside vegetation is and was a sensitive issue in the Adelaide Hills. Residents and ratepayers object to what they regard as excessive clearance. As well, bearing in mind the Council’s responsibilities for all roads, junctions and intersections in its area, and its other responsibilities, one has to consider whether it adopted reasonable measures to clear roadside vegetation, and to maintain appropriate sight lines at roadsides, junctions and intersections.
The Council’s duty was not to ensure that adequate lines of sight were maintained at all roadsides, corners, intersections and junctions at all times. The duty of care does not require perfection, only reasonable care and the adoption of reasonable measures. The Council’s duty required that it have a reasonable and appropriate program for the clearance of vegetation with a view to maintaining adequate sight lines. If a proper system were shown to have been in force, and the Council adhered to it, the Council would not necessarily have breached its duty of care even if it could be shown that the sight lines at this corner were not adequate. I must be satisfied that the exercise of reasonable care on the part of the Council in the maintenance of all verges and corners under its control required that it clear this corner more often than it did, and in particular that exercising reasonable care the Council would not have allowed the vegetation to obscure the slight lines as it did.
The Council had a written policy in relation to the maintenance of roadside verges. This policy was in existence at the time of the accident and was conceded by Mr Harrison to apply to this junction and in particular to the north east corner of the junction.

The relevant policy, numbered R3.17 and entitled “Roads and Streets - Slashing and Clearing of Verges”, Ex 3P30, sets out “Work Practices” to be followed in relation to the clearance of verges. The following work practice is relevant:
“Sealed carriageways:
Road shoulders should be generally slashed or mown for a distance of 1.0m from the edge of the road seal ... Selected areas (for example, bends and intersections) may be cleared at the discretion of the District Engineer (in consultation with the Parks and Gardens Supervisor), with such clearing being performed having regard to safety of road users, sight distance requirements and the nature of the vegetation. Vegetation encroaching on to roadways which causes a hazard to road users, shall be removed at the discretion of the District Engineer (in consultation with the Parks and Gardens Supervisor), except in emergency situations.”
This was the only evidence before me of a formal policy of any kind. A computerised road register known as “ALARM” was adopted by the Council in 1994 for the purpose of facilitating the inspection and maintenance of roads and intersections in the Council area. However, as I understood the evidence, that system did not encompass details about line of sight or roadside vegetation or vegetation clearance. [T592]
The system used by the Council to ensure that an appropriate level of vegetation clearance was undertaken was essentially an informal one. Broadly speaking it was left to the works manager, the works supervisor and their staff to go out and view roads and intersections in order to decide what needed to be done. [T588, T589] As well, the relevant Council staff were expected to keep their eyes open as they moved through the Council area for one reason or another, and to take note of vegetation that might require clearance. [T678] There was no system in place akin to the Council’s rotational line-marking system whereby each road was checked on an annual or bi-annual basis. Roads and intersections were instead inspected when the works manager thought it appropriate to do so or when a problem was brought to the attention of the Council by either a member of its staff or a ratepayer. Mr Binney, the then works manager conceded that the Council did not have a program in place for ensuring that vegetation that had been cleared at intersections remained cleared.
There was a general instruction to Council staff to “keep their eyes open” as they went around the district. Staff such as line-markers would periodically report problems associated with roadside vegetation, but they were not specifically told that this was part of their duties. It was left to their “commonsense” that they would report any difficulties they happened to notice.
In implementing a system as to the clearance of vegetation, the Council was entitled to take into account a variety of considerations including any legislative constraints on the clearance of native vegetation, the sensitivity of residents to excessive clearance, the cost of such clearance and the resources available to the Council. I acknowledge, however, that issues of safety would be of particular, and to some degree, over-riding importance.
The clearance of native vegetation in the Adelaide Hills is a sensitive issue. Not only are residents quick to object to clearing by the Council, restrictions are also imposed by the Native Vegetation Act and the Local Government Act. Mr Harrison said that bearing those considerations in mind it was the practice of Council not to trim excessively. He said that Council had “to work very carefully through [its] policies in trimming along roadsides ...”. [T566-T567] Mr Harrison acknowledged, however, that most of the vegetation on the north east corner was in fact non-indigenous. As such, while considerations about native vegetation played a part in the overall approach and policies of Council in relation to clearance, they were not a particular concern in relation to this corner. Nevertheless, such considerations would certainly have ruled out a program which involved the clearing of vegetation where this was not necessary.
The rateable income of the District Council of Stirling for the 1994/95 financial year was approximately $4.6m with the budget devoted to road construction and maintenance being just under $1.5m. [T541] At that time the District Council of Stirling had 230kms of sealed roads and 80kms of unsealed roads under its care and control. [T541] In 1995 Mr Harrison, the Council’s engineer had available to him a workforce of 38 people. [T540] Mr Binney gave evidence that while “it would have been nice” to have achieved clearance to 1.0m on all their roads in accordance with their written policy, the resources at their disposal did not allow them to maintain all of their roads to this standard. [T685] This was the only evidence lead by the Council to suggest that it would not have been feasible for it to have implemented a more thorough program of clearance.
It is also important to bear in mind the fact that this was not the only junction with which the Council was concerned and certainly not the only corner on which vegetation was an issue.
No evidence was led at trial to establish the existence of any Codes or Standards or practices, applicable as a matter of law, or commonly followed by local government bodies or highway authorities in South Australia, relating to the required standard of clearance of roadside vegetation or relating to an appropriate program for roadside vegetation clearance. There is no basis for a finding that the Council was ignoring a recognised best practice or appropriate practice. I consider that to be a significant point.
That means that I must consider the matter using my own experience and as a matter of common sense.
Mr Verco gave some evidence on the matter, based on his experience as an engineer with the Highways Department. The evidence was very general. He said that shoulders of a road should be kept clear of vegetation,[T285] and that an authority should ensure “the crown of a tree or street planting is at a height such that it doesn’t restrict sight lines at a junction”. [T285] In relation to clearance programs, and the need to clear vegetation he said: [T285]
“It certainly has been dealt with by myself but I also indicate there that this is a very variable situation because the rate of growth of vegetation in a hills area, for instance, versus some other zone is completely different, the type of vegetation it is as well. So what I would just like to say is that setting a set regime of clearance cannot be done by program necessarily because it also depends on the rainfall of the area, et cetera. It will be a variable scenario. I guess what is in question is how frequently you review that to know it is an appropriate time to undertake that work.”
He was asked some questions based on his own experience as a member of a local government body. When asked about how maintenance programs operated in relation to roadside vegetation, he said: [T286]
“Certainly that came from several sources. There were initially observation by the works manager or technical services director, whichever you like to call them, from the engineering department, also other council personnel, that, in the course of their duties, like garbage truck drivers, et cetera, that had difficulty with sight lines, may highlight that, but other people that raised it were generally areas of concern from the public, where they would write to council requesting clearance of vegetation.”
He was asked if the local government body in which he was involved had a maintenance program. He said: [T287]
“We certainly did. But it was more a judgment basis. It wasn’t a set program, whereby on certain months of the year you shall undertake mowing. Certainly it depended on the rainfall of that year, as I previously indicated, and how early the season commenced, as far as spring was concerned, the rapid growth period, if you like, that was a judgment issue. And also it was influenced by people requesting changes.”
A little later he indicated [T268-9] that there might be some codes or standards relating to the control of roadside vegetation, but he was not familiar with them. He was not aware of any codes or standards relating to the frequency with which roadside vegetation should be inspected. He emphasised that it was a matter of judgment, depending on rainfall, local conditions and so on.
On the evidence before me, I find that the Council’s approach to the clearance of roadside vegetation was reasonable, and that it took reasonable measures, under all the circumstances, to clear roadside vegetation in the interests of safety. Bearing in mind the frequency with which people like Mr Harrison, Mr Binney, Mr Thomas and maintenance workers moved through the district, a system which depended largely upon the observations of Council staff and ratepayer requests is a reasonable response to the problem of roadside vegetation. To the extent that Mr Verco’s evidence assists on this point, it indicates that an experienced engineer called by the defendant was not aware of any code or common practice that the Council should have adopted. No witness suggested an approach commonly adopted by local government or highway authorities in this State. As well, Mr Verco’s own limited experience was of practices consistent with those of the Council.
Finally, I add that Mr Harrison gave evidence, that I accept, that records of accidents available to the Council up to February 1995 did not suggest a problem at the junction with the line of sight. [T551] I also accept his evidence and that of Mr Binney that before February 1995 the Council had received no requests or complaints from ratepayers that indicated a safety problem at this junction. [T669-T670] I accept the evidence of Mr Thomas to the same effect. [T625] In short, nothing had come to the attention of the Council to suggest that the line of sight at the junction was not adequate.
For those reasons I find that the Council’s approach to the clearance of roadside vegetation was reasonable and proper. Nor had anything come to the Council’s attention to indicate that the vegetation at the corner required clearance. If, contrary to my finding, the vegetation at the corner rendered the junction unsafe in February 1995, that was not attributable to a lack of a proper approach to the clearance of vegetation.
If I am wrong in my conclusions, and the failure of the Council to clear the vegetation amounted to a breach of its duty of care, and that breach was a legal cause of the accident, I would apportion liability to the Council (as between Council and defendant) at one-third of the amount payable by the defendant to the plaintiff.
On this approach I would not find, on the limited evidence called, that the Council, having regard to its resources, could not reasonably have maintained the appropriate level of clearance: see Hill v Commissioner for Main Roads (NSW) (1999) 9 MVR 45.
Sign posting and line marking - causation
As with the issue of vegetation and line of sight, I find it convenient to consider first whether the signposting and line marking (or its absence) of the junction was a legal cause of the accident, and second whether that signposting and line marking amounted to a breach of the Council’s duty of care.
Mrs Beare knew the junction very well. She knew its layout, its sight lines and the manner in which it was sign posted and marked. She did not need to be reminded at this junction of her legal duty to give way to her right. She knew that there was a give-way sign on her left.
I conclude that Mrs Beare would not have behaved in any appreciably different way if there had been a give-way sign on Pottery Drive and no give-way sign on Shurdington Road. I do not accept her evidence that she would have stopped at the crest of Pottery Drive had there been a give-way sign there. In her evidence she stated that she would have stopped because it was her pattern of driving to stop at give-way signs because they indicate “some form of danger”. [T120] However, as I have said, she was very familiar with this junction. It was not her practice to stop at the junction, if there were no vehicles approaching. [T129] The addition of a sign would not have alerted Mrs Beare to any danger of which she was not already aware as a regular user of the junction. My impression is that she is a careful driver. She did not need to be reminded of her obligations. In so finding I am not implying that Mrs Beare was an untruthful witness. I am simply not persuaded that the suggested sign would have altered her usual behaviour at the junction. Her statement that she would have stopped is an understandable one in light of the accident which occurred, viewed with the benefit of hindsight.
I find that the presence of the give-way sign on the Shurdington Road west leg of the junction played no part in the accident. Mrs Beare gave evidence that the give-way sign on Shurdington Road west “gave the impression that the flow of traffic” was from Pottery Drive to the right into Shurdington Road. [T117] But there is no suggestion in her evidence that this impression affected the manner in which she drove through the intersection. While the presence of that give-way sign, in an admittedly unusual position, may have caused confusion in the mind of someone who was not familiar with the junction, I do not accept that it could have caused any confusion in the mind of Mrs Beare, a frequent user of the junction. Mrs Beare conceded that she knew she had to give way to her right. [T159] I do not see how any relevant confusion could have remained. As such, I find that the presence of that sign was not causative of the accident. If anything, the presence of a give-way sign at that position should assist a driver turning right from Pottery Drive onto Shurdington Road as it would allow the driver to concentrate on traffic coming from the right, by reducing the need to attend to the approach of vehicles from Shurdington Road west.
In so concluding, I have taken into account the evidence of Professor Triggs.
In his report Ex D32, he argues that the give-way sign on Shurdington Road west causes a conflict of expectations on the part of a driver intending to turn right from Pottery Drive into Shurdington Road. He said:
“Because of the approach to the T-intersection, drivers would have an expectation based on general long-term experience that they should give way to all traffic on Shurdington Drive both north east - and west - bound. On the other hand, local knowledge of the intersection would indicate that drivers on Pottery Drive would have some priority based on the Give-Way sign on east-bound Shurdington Road. However, this is only a partial priority as such drivers still would formally be required to give way to vehicles west-bound on Shurdington Road and continuing without turning through the intersection. The ambiguity caused by this conflict is exacerbated by the fact that the intersection departs from the geometry of a standard T-intersection. Human performance theory and experience predicts that ambiguous or conflicting expectancies will lead to delays in responses, increased incorrect responses, or even no avoidance response in normal drivers.” [Professor Triggs treats Shurdington Road as running in an east-west direction.]
In his evidence, Professor Triggs adhered to this point of view. With respect, while I accept that the give-way sign on Shurdington Road west has the potential to cause some limited confusion or uncertainty on the part of a driver approaching the junction from Pottery Driver, or at least in the case of a driver who is unfamiliar with the junction, I do not accept that the factor to which Professor Triggs refers had any effect upon Mrs Beare’s manner of driving on the day in question. I so conclude even though Professor Triggs expressed the view, in evidence, that this conflict of expectation might operate even in the case of a driver who is familiar with the intersection. [T491-T492 and T521-T522]
My conclusion and finding is that there is no suggestion in the evidence that any uncertainty on the part of Mrs Beare about her obligations in respect of traffic approaching the junction from Shurdington Road west had any effect upon Mrs Beare’s manner of driving on the day in question. As well, Mrs Beare observed no vehicles approaching the junction from her left, nor is there any suggestion that there were any such vehicles. There is nothing at all to suggest that the presence of the give-way sign on Shurdington Road west had any effect on her manner of driving.
I cannot think of any basis upon which some sort of subconscious or mental uncertainty generated by the sign in question could have affected her manner of driving. For the same reason, I do not accept the somewhat similar opinion expressed by Mr Verco in his report Ex D18 (p 8) and in evidence. [T257 and T258] I find that Mrs Beare did not need any reminder or re‑enforcement of the need for caution as a result of the restricted sight line that existed to her right. I find that she was a cautious driver, and well aware of the need for caution. Likewise, I find that the presence of the give-way sign did not, in Mr Verco’s words, generate a “false sense of security” on the part of Mrs Beare. [T258]
There is nothing to suggest that the presence of a painted continuity line would have made any difference to Mrs Beare’s driving.
I also find that the give-way sign on Shurdington Road west, and the lack of a give-way sign on Pottery Drive, had no effect on the manner in which Mr Calvaresi rode his bicycle at the time in question.
Traffic control devices - the submission for the defendant
Although it is strictly unnecessary for me to consider whether the presence of a give-way sign on Shurdington Road west or the failure to erect a give-way sign on Pottery Drive amounted to a breach of the Council’s duty of care, it is appropriate to do so.
The defendant has essentially made two allegations in relation to the signposting and line marking of the junction. First, that the give-way sign on the Shurdington Road west leg of the junction should not have been there, but should have been moved by the Council after it took over the care and control of the junction in 1985. Second, that there should have been a give-way sign and associated line marking on the Pottery Drive leg of the junction.
I shall deal first with the existing give-way sign on the Shurdington Road west leg of the junction.
At the date of the accident, the applicable South Australian Code dealing with the placement of give-way signs at T-junctions was the “Code of Practice for the Installation of Traffic Control Devices in South Australia” (“the Code”). The Code was tendered as Ex 3P22. At the relevant time the Code was given force of law by s 25 of the RTA and by Reg 2.02 of the Road Traffic Regulations. Section 25(1)(a) of the RTA provided at the relevant time that every traffic control device must comply with any regulations applicable to it. Regulation 2.02(1) provides that a traffic control device must comply with the requirements of the Code applicable to that device.
The Code is to be read in conjunction with the relevant Australian Standard No 1742 (“AS”) and other documents referred to in the Code. But the primary document for my purposes is the Code. The Code takes precedence over the AS: cl 1.5.
Par 2.2.1 is the relevant part of the Code. It provides as follows:
“Intersections and Junctions
The GIVE WAY sign, when used to control traffic at an intersection or junction, must conform to the design, installation and justification requirements specified in the standard except that:
...
(c)A GIVE WAY sign must not be used at a clearly defined T-junction where there is no confusion regarding give way requirements. The law requires motorists on the terminating approach to give way to all traffic on the continuing approaches of a T-junction.”

Par 2.2.2 of the Code regulates the use of a stop sign. After making certain provisions relating to stop signs, it provides as follows:
“Justification Criteria
A STOP sign may be used instead of a GIVE WAY sign on an approach to an intersection or junction when:
(a)the sight distance from the road to be controlled is severely limited. This is determined by using the survey method described in section 2.2.3.
Note: Where the severe sight distance limitation is due to vegetation, an earth bank or some other removable obstruction, steps shall be taken, where practicable, to restore adequate sight distance by clearing or benching, or by otherwise removing the sight obstruction;
(b)the road to be controlled joins the road which is allocated for through traffic at an angle of 40º or less; or
(c)irrespective of the sight distance available there has been, in the preceding three years, an average of three or more right angle accidents per year at the location, involving traffic on the approach being considered for STOP sign control.”
The evidence was that par 2.2.1(c) is a departure from the AS. Very little evidence was lead as to the content of the AS and it was not tendered in evidence. Part of the AS is attached to Mr Verco’s report Ex D18 as Appendix C. The relevant clause, cl 2.5.1(b) does not seem to me to differ much from the Code provisions, but nothing turns on that.
At my direction, most of the experts who were called as witnesses met to discuss the issues in the case, and to identify the points of agreement and of disagreement.
They agreed that while the lay-out or configuration of the junction was not ideal, when allowance was made for the constraints that the locality imposed, the lay-out or configuration was appropriate. In other words, the case turns on the use of traffic control devices, rather than on more fundamental issues of design.
It is convenient to record here my finding that the Council had the authority and power to make the changes that Mr Walsh submitted should have been made, and my finding that the cost of doing so would have been moderate, and no reason not to make the changes.
I remarked earlier that the junction is essentially a T-junction, because Pottery Drive and Shurdington Road do not meet at right angles.
The experts who met agreed that the junction was a T-junction, and that Pottery Drive was the terminating road and Shurdington Road the through road. I take this to mean that the experts agreed that for the purposes of the RTA and of the Code it was to be treated as a T-junction. I so find.
As I understood their evidence, the experts also agreed that the ordinary driver would recognise the junction as a T-junction, despite the difficulties associated with the curving up-hill approach from Pottery Drive, and the relatively poor line of sight around the bend and up-hill to Shurdington Road east as one approaches from Shurdington Road west. I agree, and find accordingly.
Again, it was common ground among the experts that this meant a give-way sign was not to be used at the junction unless par 2.2.1(c) of the Code permitted its use, or some other basis for its use could be found.
It follows that the give-way sign on Shurdington Road west requires some justification. The experts agreed that the presence of that sign was “a non-standard treatment of a through road for a standard right-angled “T” junction with open visibility”: Ex D21.
The argument advanced by Mr Walsh QC had the following elements to it. First, that the give-way sign on Shurdington Road west was an unauthorised placement, or, if authorised, the sign was nevertheless placed there in breach of a duty of care owed by the Minister or the Commissioner of Highways. Secondly, that the placement of the give-way sign was not authorised by the Code, and that by allowing it to remain there the Council became responsible for it. Thirdly, that its presence contributed to making the junction a danger for motorists. Fourthly, (and this leads into the issue of a give-way sign of Pottery Drive), that the give-way sign on Shurdington Road west could be justified only if there was “confusion regarding give-way requirements” (par 2.2.1(c) of the Code), and if that was the case the only proper solution was a give-way sign on Pottery Drive, and the solution chosen or permitted to continue was not a proper one. Fifthly, that even if there was no give-way sign on Shurdington Road west, there should have been one on Pottery Drive.
The application of the Code to the placement of the give-way sign on Shurdington Road west, and the suggested placement of a give-way sign on Pottery Driver, emerges to some extent from the following questions put by me to Mr Verco and from his answers: [T374-T376]
“Q.Then isn’t the sequence of reasoning, first of all: no give way sign if no confusion.
A.That is correct.
Q.The existence of confusion is a matter of engineering judgment.
A.I would agree with that.
Q.The code doesn’t define the meaning of ‘confusion’.
A.I think that’s correct.
Q.So if you decide there is confusion, the prohibition on a give way sign no longer applies.
A.Yes, I believe that’s correct.
Q.It wouldn’t automatically follow that you put one there, but in deciding whether to put one there, as I understand it your evidence is the code does not answer that question, namely, that if there is confusion will I put one there’ the answer isn’t found in the code.
A.I believe that’s correct.
Q.On the other hand, the code under the justification criteria does tell you when to use a stop sign rather than a give-way sign.
A.Correct.
Q.The decision to use a give-way sign would rest on a judgment that there is confusion, first of all; secondly, I suppose a judgment that a give-way sign is the solution; and, thirdly, the decision that you are not directed by the code to use a stop sign instead of a give-way sign.
A.Correct.
MR GREENWELL:             There’s only one matter I add to that, your Honour. Under the justification criteria, it says ‘A stop sign may be used instead of a give-way sign’.
HIS HONOUR:  It’s permissive.
MR GREENWELL:             Yes.”
As to the give-way sign on Shurdington Road west, the submission was that its placement there was not authorised, and that it caused danger at the junction. I have already referred to this topic when dealing with Mrs Beare’s evidence about the question of signs at the junction. Mr Walsh submits that the give-way sign on Shurdington Road west was likely to be productive of confusion and uncertainty on the part of drivers approaching the junction from Pottery Drive, and in this way was a source of danger. But, as I understood his submissions, the main emphasis was that there should have been a give-way sign on Pottery Drive, and no give-way sign on Shurdington Road west. The give-way sign on Pottery Drive was called for because there was ambiguity or confusion regarding give way requirements for a driver approaching the junction from Pottery Drive. In his report Ex D18 (p 8) Mr Verco said, referring to what he considered to be deficiencies in the road configuration and signing:
“These deficiencies would perhaps contribute to the confusion of road users, and may even encourage driving habits that are dangerous.”
I have already referred to the question of confusion. I am not sure what he meant by dangerous driving habits. That may be a reference to a possible confusion as to the give way obligation as between a driver on Pottery Drive and a driver approaching from Shurdington Road west. On the other hand, it may be a reference to a point he made at p 12 of his report, to the effect that without a give-way sign and line on Pottery Drive:
“...there is no delineation provided to a driver indicating where to pull up and observe the adjacent road. If the glance was made just too early, then the vegetation would have obscured the view.”
In short, the argument advanced by Mr Walsh, and supported in evidence by Mr Verco in particular, is that there was no call for a give-way sign on Shurdington Road west, and the placement of the give-way sign there actually was a source of danger. As well, there was a need to reinforce in the mind of drivers the need for caution when approaching the junction, because of the poor view to the left into Shurdington Road west and because of the restrictions on the line of sight to the right. As well, the submission is that there was some likelihood of confusion regarding give way requirements, even if there had been no give-way sign on Shurdington Road west and that called for a give-way sign on Pottery Drive. Thus, there are two legs to the argument. The need to reinforce in the mind of drivers the need for caution, and the confusion regarding give way requirements.
Traffic control devices - findings
The evidence relating to the original placement of the give-way sign was very limited. It was installed before the Council accepted responsibility for the junction. Mr Meredith’s report (Ex 3P35) discloses that he had researched the matter, and found that the placement of the sign was approved in November 1981. His evidence being the only evidence on this topic, and not having been challenged, I accept it, and find that the installation of the sign was lawful. Moreover, as he points out in Ex 3P35, par 1.3 of the Code provides:
“Traffic control devices lawfully erected or installed prior to 1 July 1986 are deemed to comply with the requirements of this Code of Practice.”
That provision appears to mean that the placement of the give-way sign remains lawful, even if the rules governing the placement decision have changed.
But that is not the end of the matter. It is possible that the placement of a sign could be lawful but nevertheless its placement might be negligent, in the sense of creating a danger for road users that a competent highway authority would not allow to occur. For that reason I move now to the merits of the placement decision, and consider that in light of the provisions of the Code.
There was a good deal of questioning of the experts about the correct application of the Code to the junction. Much of it I found rather confusing at the time, and on re-reading the evidence.
In the end, I am persuaded of the correctness of the approach advocated by Mr Smith, an expert called by the fourth party, although my reasoning does not accord precisely with his.
His view was that a driver approaching the junction from Shurdington Road west might be confused about give-way requirements. This was because of poor visibility around the bend to the left and up to Shurdington Road east, and because at certain stages of that approach the junction with Pottery Drive had the appearance of a Y-junction. This could cause a driver approaching from Shurdington Road west, and intending to turn into Pottery Drive, to think that the driver did not have to give way to a vehicle approaching the junction from Shurdington Road east. This argument is advanced in his report (Ex 4P43) and in his evidence. [For example at T921.]
If that premise is accepted, and I do accept it, par 2.2.1(c) of the Code does not prohibit the installation of the give-way sign. It does not prohibit the installation of the sign, because a judgment has been properly made that there is a likelihood of confusion regarding give way requirements. The decision to install it is a proper and reasonable response to that likelihood of confusion.
I realise it is unusual to place a give-way sign on the continuing leg of a T-junction, but I consider that the matters identified by Mr Smith support the decision to do so.
I find Mr Smith’s reasoning persuasive. I consider that the likelihood of confusion to which he refers is a real one. There is a justification for placing the sign where it is. Placing the sign there has other benefits identified in his report Ex 4P43. First of all, as he says at p 8, absent a give-way sign, there is a risk that a driver turning right from Shurdington Road west into Pottery Drive will begin to make that turn from a point further back from the junction than the sign is placed, where the sight distance up Shurdington Road is more restricted. There is a risk of such a driver cutting the corner of the turn into Pottery Drive. The give-way sign tends to control the point at which a person turning right into Pottery Drive begins that turn. As well, bearing in mind the restricted view available from Pottery Drive up to Shurdington Road west, the give-way sign eases the problem that might arise as a result of a driver in Pottery Drive, intending to turn right, failing to pay sufficient attention to the rather poor view to the left up to Shurdington Road west.
Mr Smith’s reasoning in this respect was generally supported by Mr Meredith. [T802 and T822]
Mr Verco rejected this reasoning. In essence his view was that this was an unorthodox approach on a continuing road, and that it creates an “intransitive” and undesirable situation in which a driver on Shurdington Road west and a driver turning right from Pottery Drive into Shurdington Road must each give way to the other: see, for example, his second report Ex D19. Mr Smith said that the latter problem could be resolved by the exercise of common sense by each driver. I agree.
There is nevertheless some substance in the points made by Mr Verco, even though I agree with Mr Smith. The placement of the give-way sign on Shurdington Road west is capable of generating some confusion or uncertainty for a driver unfamiliar with the junction. But, as I have already found, the give-way sign had no effect on the behaviour of Mrs Beare or Mr Calvaresi on the day in question.
In any event, the issue for me is not what is the best solution to the difficulties at this junction, but whether the particular solution adopted is one that is not an acceptable or proper solution, having regard to the provisions of the Code and to the duty of a highway authority to exercise its powers with reasonable care for the safety of road users.
My conclusion is that the placement of the give-way sign on Shurdington Road west was a reasonable response to the difficulties presented by the junction. It is arguable that it would be better to leave the junction without any give-way signs, or to have a give-way sign on Pottery Drive, but in my opinion it was not a breach of duty by the Council to permit the give-way sign to remain.
This is clearly a non-standard treatment of a T-junction but it is not outside the terms of the Code. The Code says that a give-way sign must not be used at a clearly defined T-junction where no confusion exists. Whether a T-junction is clearly defined, or whether confusion exists are matters left by the Code to be determined according to engineering judgment and experience. Although reasonable minds may differ as to whether this treatment was justified, I consider that it was one option validly open to the officers of the Highways Department when they designed and constructed the junction, and that there was no need for it to be removed by the Council after it assumed the care and control of the junction. I consider that if the matter is to be considered in terms of the law and proper practice as it was in 1995, the conclusion is the same.
As to the argument advanced by Mr Verco, that a give-way sign should instead have been placed on Pottery Drive, I do not agree. Once again, I agree by and large with the argument advanced by Mr Smith.
Pottery Drive is the terminating road of this junction. The starting point is that a give-way sign is not required. Drivers are taken to know their obligation to give way at a T-junction. I do not agree that a driver approaching the junction from Pottery Drive would be unsure that the junction was a T‑junction, or of the obligation (subject to the give-way sign on Shurdington Road west) to give way in both directions. To my mind, there is no ambiguity for a driver on Pottery Drive, and no reason to anticipate confusion about the driver’s obligations. I do not accept what I have called the confusion argument.
I do not agree with Mr Verco that the sight lines were so limited as to require re-inforcement of the need for caution or the need to give way by installing a give-way sign. The sight line up to Shurdington Road east is reasonable. The sight line into Shurdington Road west is restricted, but there is no reason to anticipate that a driver should have the need for caution or to give way re-inforced. Indeed, as Mr Smith said, the placement of the give-way sign on Shurdington Road west means that a driver turning right from Pottery Drive need not devote the same care or attention to scanning the road to the left. It is a reasonable point of view that the sign assists a safe right turn by protecting the driver from the sudden appearance of a vehicle passing through the junction from Shurdington Road west. I do not accept the re-enforcement argument.
Nor do I agree with Mr Verco that the gradient of Shurdington Road, and the crest where it meets Pottery Drive, calls for the installation of a give-way sign on Pottery Drive. In my opinion it is sufficiently clear to drivers approaching the junction on Pottery Drive that they are approaching a junction or intersection. The bank on the western side of the junction, and the hazard board facing into Pottery Drive, clearly indicate that some sort of intersection is ahead. Once a driver is closer to the junction, it is sufficiently clear that it is a T-junction, and, as I have already said, the give-way obligations are clear.
Without setting them out, I generally adopt the opinions given by Mr Smith in his report Ex 4P43 in s 7.1, s 7.3, s 9.1 and s 9.2. I agree generally with Mr Smith’s views simply because I find those views more persuasive than the views expressed by Mr Verco. I note also that Mr Meredith agreed generally, although not in all respects, with Mr Smith.
It follows that there was no need for an advance warning sign on Pottery Drive.
I should add that I also disagree with Mr Verco’s view that the centre lines on Pottery Drive and Shurdington Road should have been extended and re-aligned, and that a continuity line should have been painted across Pottery Drive where it meets the alignment of Shurdington Road. I consider that altering the centre line on Shurdington Road would have had no relevant effect on driver behaviour. Extending and re-aligning the centre line on Pottery Drive might discourage drivers from cutting the corner at all when turning right. I am by no means confident that it would. A survey conducted by Mr Meredith suggests it would not. But at best this would result in drivers positioning themselves two or three metres further south before entering the junction. I do not agree that this would, in any event, make a material difference to the safety of the junction. The same applies to the continuity line. In my opinion there is no reason to think that drivers need any reminding that they are entering a junction, or any assistance in the safe positioning of their vehicles when giving way to passing vehicles. As well, I accept the evidence of Mr Harrison and Mr Meredith that a continuity line in such a situation is not a usual road treatment. Nor is a continuity line usual on a local road. [T795]
I find that an extended separation line on Pottery Drive, or a continuity line on Shurdington Road, would not have had any significant effect on Mrs Beare’s driving on the day in question.
I accept the evidence given by Professor Triggs about the importance of providing consistent cues or guidance or instruction for drivers, and about the importance of avoiding ambiguity or inconsistent cues. I also accept that the give-way sign on Shurdington Road west provides, in a sense, an inconsistent cue. It tells a driver on Pottery Drive that the driver on the left must give way, in a situation in which the driver on Pottery Drive must also give way. This is what the experts called an intransitive situation. But, for reasons already given, I consider that the placement of that sign is justifiable, despite this. I do not agree that in any relevant sense the presence of the sign made the junction unsafe. It permits the driver in Mrs Beare’s situation to concentrate on traffic coming from the right, even though it also, I realise, encourages or facilitates the turn to the right.

For those reasons, I conclude that the placement of the give-way sign on Shurdington Road west was lawful. I consider that the exercise of the power to do so, and the Council’s conduct in permitting it to remain, were not a failure to take reasonable care for the safety of road users. The decision is open to argument, but is not a breach of duty. I firmly disagree with the view that a give-way sign was called for on Pottery Drive, in the sense that a failure to install one was a breach of the duty of care owed by the Council. I disagree with the view that, under the circumstances, the existing give-way sign caused confusion or uncertainty for a driver in Mrs Beare’s situation, or was likely to cause such a driver to behave in an unsafe manner.
Finally, I must stand back and look at the matter as a whole. Did the configuration of the junction, the existing traffic control devices and road markings, and the known vegetation, in combination create a sufficient risk of danger to road users negotiating the junction to require action from the Council of the type identified by Mr Walsh in Ex D17? My answer is “no”. The configuration was reasonable, given the site constraints. The use of traffic control devices and road markings were appropriate. It was foreseeable that vegetation could limit the line of sight unless cut back and controlled, but I consider that the lines of sight available were reasonable, and that the Council adopted reasonable measures to deal with roadside vegetation.. It was not suggested that the shadows thrown across the road, late in the day, by vegetation on the western side of Shurdington Road, imposed any particular duty on the Council.
In dealing with that final question, and more generally, it is relevant to bear in mind that this junction is lightly used by traffic, that most drivers using it are locals who are familiar with it, and that there was (in February 1995) no history of accidents at the junction, or of complaints from residents, that suggested a problem at the junction or that required the Council, in the discharge of its duty, to take some remedial action. These matters support the view that the Council was not negligent in allowing the junction to remain in the same condition as it was when the Council assumed responsibility for it.
I do not need to deal with par 2.2.2 of the Code. I accept the evidence from Mr Meredith in particular that it does not support the use of a Stop Sign at Pottery Drive.
Non-feasance rule
In light of my conclusions it is unnecessary for me to decide if the so-called non-feasance rule applies.
Nevertheless, it is appropriate that I should indicate my views briefly, in case the matter is taken on appeal.
I do not consider that the common law principle, that a highway authority owes no duty to undertake active measures to maintain or to repair a highway, applies to the Commissioner of Highways or to the Council when exercising powers under the RTA in relation to traffic control devices. In my opinion it is likely that the principle denying the existence of a duty of care is limited to the state of the highway or road surface and to matters closely analogous to that. There is considerable force in the reasoning to that effect in Turner v Ku-Ring-Gai Municipal Council (1990) 12 MVR 321 (Court of Appeal of New South Wales).
I also doubt whether the principle in question applies to a failure by the Council to clear vegetation on a road verge (assuming, as I do, that the relevant area of land was vested in the Council or was under its control) when that failure to clear vegetation creates a danger to traffic, the danger not being related to the condition or state of repair of the road surface, but rather to the movement of traffic and to matters of traffic control. I therefore doubt whether the common law principle applies to the case to the extent that it is based upon the failure to clear vegetation from the corner.
Returning to the question of traffic control devices, to some extent the complaint in the present case is that the placement of the give-way sign on Shurdington Road west gave rise to a foreseeable source of danger, because it was likely to cause confusion or uncertainty on the part of road users. To that extent the case advanced by the defendant appears to me to be a case of misfeasance rather than a case of non-feasance. If the placement of the give‑way sign on Shurdington Road west is, contrary to my finding, a breach of duty, and if it was, contrary to my finding, a cause of the accident, then to that extent the so-called non-feasance rule is not an obstacle to the defendant recovering from the third party. This point does not apply to the extent that the defendant’s case rests upon a finding that a give-way sign should have been installed on Pottery Drive, although, as I have indicated, I doubt whether it applies to that argument in any event as a matter of principle.
In making these observations I have assumed that the Council was responsible for the safety of the intersection, having assumed responsibility for it some ten years before the accident occurred. Whatever might have been the position if the accident had occurred soon after the Council assumed responsibility, I have proceeded on the premise that by 1995 the Council could not escape responsibility for the safety of the junction in relation to traffic control devices and vegetation clearance.
Finally, I consider that in any event I should follow the decision of this Court in Wade v Australian Railway Historical Society (SA) (trading as Steam Ranger) v Alexandrina Council (1999) 204 LSJS 119; [1999] SASC 311. The effect of that decision is that the common law principle that denies a duty of care, when the duty is sought to be imposed in relation to the state of a highway, has been abrogated by Part 1B of the Wrongs Act 1936. That Part substantially restates the common law in relation to the duty of care owed by an occupier of premises. In Wade Judge Burley, a Master of this Court, concluded that the relevant provisions applied to a local government body in relation to its duty or liability as a highway authority to clear vegetation at a roadside. Although that decision is a decision by a Master of this Court, it was given by the Master exercising the powers of this Court to hear the trial of a civil action. I consider that the decision of the Master has the same status, in that respect, as a decision of a Justice of the Court, and for that reason I should follow the decision in the interests of uniformity, without needing to consider its correctness. I was informed by counsel that an appeal has been instituted against the decision in Wade, and that the matter should come before the Full Court in the not too distant future.
Duty of care - general remarks
The submissions of all counsel appeared to proceed on the assumption that the Council owed a duty of care to the plaintiff in relation to the placement and use of traffic control devices and other non-regulatory devices, and in relation to the clearance of vegetation at the junction. In this area the dispute was whether there had been a breach of the duty of care owed by the Council. In relation to the question of whether a duty of care was owed, none of the counsel based submissions upon the decision of the High Court in Crimmins v Stevedoring Industry Finance Committee (2000) 74 ALJR 1, or upon the authorities referred to in that case.
I record that it was not argued by counsel for the Council that the Local Government Act or the RTA contained provisions inconsistent with the imposition upon the Council of a common law duty of care in relation to the use of traffic control devices and non-regulatory devices, and in relation to the clearance of vegetation.
In the light of my conclusions, it is not necessary for me to reach a decision on this point. I am prepared to proceed on the basis that there is nothing in the legislation inconsistent with the imposition of a duty of care.
As the High Court decision in Crimmins makes plain, it does not follow from that conclusion that a common law duty of care will be imposed.
In relation to the placement of traffic control devices, and the relevant exercise of powers under the RTA, the case is not one in which the defendant's claim rests upon an asserted duty to exercise a statutory power. At times, in argument, it was expressed that way. However, it seems to me that the defendant's complaint is, in substance, that in exercising the powers that it did exercise the Council failed to take reasonable care. The substance of the defendant's case is that the original decision as to the placement of traffic control devices, a decision which it is submitted the Council has adopted, reflects a careless exercise of the element of judgment that the Code and the RTA allow to be exercised, in deciding whether a traffic control device is to be used and, if so, what device is to be used and where and how it is to be used. In other words, in substance the case for the defendant is that having decided to exercise its statutory powers to install traffic control devices at the intersection, the original decision-maker, and by adoption, the Council, failed to act with due care in the making and adopting of the decision. As I said, the complaint is not that the original decision-maker or the Council failed to comply with a common law duty to exercise a statutory power available to them. The complaint is that they chose to exercise that power, but that in the exercise of it, and in the making of the engineering judgments that were to be made, there was a failure to act with due care.
I also record that, as I understood the submissions put to me, counsel for the third and fourth parties did not argue that no duty of care was owed in this respect, subject of course to the result of the application of the non-feasance principle.
I am prepared to assume that a duty of care in this relatively narrow respect was owed. The Code permits the exercise of an informed and expert judgment in deciding whether or not to use traffic control devices in certain situations, including a T-junction such as that under consideration in the present case. I am prepared to assume that, having made a decision that the available powers should be exercised to place traffic control devices at the junction, or to allow them to remain there, there was a common law duty to exercise reasonable care in the selection and placement of those traffic control devices. There is nothing in the reasons of the members of the High Court in Crimmins inconsistent with the imposition of a duty of care in that relatively confined area of the responsibilities of the original decision-maker and of the Council by adoption.
However, I wish to make it clear that my decision does not proceed upon the premise that a person or body with a statutory power to place traffic control devices, of an obligatory or non-obligatory kind, is necessarily under a duty of care to exercise that power. That is a wider question that I do not have to consider in the present case.
As to the clearance of vegetation, the claim by the defendant in this case is that the failure to exercise the power to clear vegetation was a breach of a common law duty of care owed to road users, including the plaintiff.
In that respect the present case is a case based upon a failure to exercise a statutory power. But on the facts of this case, in my view, the statutory power and the statutory aspects of the case become rather remote. The Council was exercising its powers in relation to the clearance of roadside vegetation in its area. As I understood the submissions, the Council really did not dispute that it owed a duty to take reasonable care in relation to the clearance of roadside vegetation. The dispute in the present case was as to the nature and extent of that duty.
On that point I have found in favour of the Council. It seems to me that there is no difficulty in concluding that the Council was under a duty to take reasonable care to maintain an appropriate clearance of roadside vegetation.
Liability of the fourth party
The liability of the fourth party must be viewed against the background of the law and the standards as they were at the time when the traffic control devices were installed and when the control, care and maintenance of the junction were handed over to the Council. The only evidence as to the standards prevailing at and prior to 11 October 1985 and the conformance of the junction with those standards was given by Mr Smith. Mr Smith stated that the junction complied with the appropriate standards up to 11 October 1985. His view was that the question of whether the current signposting and marking of the junction was appropriate was simply no different whether the question was considered in 1985 or 1995. [T903] I can only assume that this view reflects the fact that the junction was in the same state at the date of the accident as when handed over to the Council on 11 October 1985 and that the applicable standards were no different in 1985. I accept the uncontroverted expert evidence of Mr Smith in this regard.
Mr Verco’s evidence suggests that the standards were essentially the same when the give-way sign on Shurdington Road west was installed or approved, but the evidence about that is unclear. [T305-T308]
As such, my finding that the Council is not liable in negligence in respect of the signposting or line marking of the junction applies equally to the fourth party. For the sake of completeness, I indicate that I should not have found the fourth party liable to contribute to the plaintiff’s damages even if I had reached a decision adverse to the Council on the issue of signposting and line marking. The care, control and maintenance of the junction had been the sole responsibility of the Council since 1985. In those circumstances I find that no residual liability could attach to the fourth party even in circumstances where it was originally responsible for the negligent signposting and line marking. The length of time involved would make such a conclusion untenable.
It is unnecessary for me to consider the application of s 29(1) of the Highways Act.
Conclusion
The claim by the defendant against the third party should be dismissed, and judgment should be entered for the third party. The claim by the third party against the fourth party should be dismissed, as should the contribution notice issued by the defendant against the fourth party.

[2000] SASC 21

15 February 2000