20 May 2005 Amended Order made 25 May 2005 P31/2004
AMENDED ORDER
1.Appeal allowed.
2.Appellant to pay the costs of the respondent of the appeal.
3.Set aside orders 1 to 4 of the Full Court of the Supreme Court of Western Australia made on 20 November 2002 and in their place order that the appeal to that Court be dismissed.
On appeal from the Supreme Court of Western Australia
Representation:
B W Walker SC with G R Hancy for the appellant (instructed by Corser and Corser)
D F Jackson QC with K J Bradford for the respondent (instructed by Bradford & Co)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Commissioner of Main Roads v Jones
Negligence – Standard of care – Breach – Respondent driver injured after car collided with wild horse on highway – Appellant a body corporate upon which care, control and management of highways was conferred – Whether appellant should have been aware of attraction of animals to water sources near accident site and exercised power to reduce speed limit and to erect warning sign.
Courts – Appeals – Whether Full Court of the Supreme Court of Western Australia justified in overturning findings of trial judge on danger posed by animals straying on highway.
Negligence – Causation – Whether, if speed limit reduced or warning sign erected, respondent's injuries would have been prevented.
Practice – Discovery – Material discovered by appellant between trial and appeal – Whether availability at trial would have warranted different result.
GLEESON CJ. The facts are set out in the reasons for judgment of Callinan J.
The respondent sued the appellant for damages for negligence. The respondent suffered serious personal injury when a car he was driving collided with a horse on a stretch of unfenced road on the Great Northern Highway about 6 km south of Turkey Creek in Western Australia. The principal allegations of breach of duty of care on the part of the appellant were failure to erect road signs in the locality warning of the danger of animals on the highway, and failure to impose in the locality a speed limit lower than the general limit of 110 km per hour. The extent of "the locality" was rather imprecise. The argument concentrated on that part of the highway extending for a distance of about two or three kilometres either side of the point of impact. The trial judge rejected both allegations, holding that a reasonable response by the highway authority to the danger constituted by straying animals did not require either of those steps. The trial judge also found for the appellant on the issue of causation, holding that the conduct of the appellant before the accident showed that he would not…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Commissioner of Main Roads v Jones [2005] HCA 27
Case
[2005] HCA 27
Decision Date
CaseChat Overview and Summary
The Commissioner of Main Roads (the appellant) appealed to the High Court of Australia against a decision of the Full Court of the Supreme Court of Western Australia. The dispute concerned the appellant's alleged negligence in failing to take adequate steps to warn drivers of the risk of colliding with wild animals on a highway, which resulted in the respondent driver sustaining injuries when his car struck a wild horse.
The High Court was required to determine whether the appellant, as the body responsible for the care, control, and management of highways, had breached its duty of care to the respondent. Specifically, the court considered whether the appellant should have been aware of the attraction of animals to water sources near the accident site and whether it ought to have exercised its power to reduce the speed limit or erect warning signs. Further issues included whether the Full Court was justified in overturning the trial judge's findings regarding the danger posed by animals on the highway, whether any failure to reduce the speed limit or erect a warning sign caused or contributed to the respondent's injuries, and whether material discovered by the appellant between the trial and the appeal would have warranted a different outcome.
The High Court allowed the appeal, finding that the respondent's injuries were caused by his own grossly excessive speed and his determined flouting of speed limits. The court held that the presence or absence of warning signs in the vicinity of the accident would have had no bearing on the outcome. While acknowledging the appellant's failure to make proper discovery, the court scrutinised the fresh evidence and concluded it was not of a kind or quality that would have warranted a different result at trial. The court noted that the discovered material primarily concerned the dangers of straying stock rather than feral creatures, and that the relevant stretch of road was not shown to have a high percentage of accidents involving straying animals. The court also considered the potential for warning signs to be misleading and the appellant's policy of maintaining the credibility of such signs by only installing them where a hazard was considerably greater than normal.
The High Court ordered that the appeal be allowed, the orders of the Full Court of the Supreme Court of Western Australia be set aside, and that the appeal to that Court be dismissed. The appellant was ordered to pay the costs of the respondent of the appeal to the High Court.
Orders
Orders of the court
1. Appeal allowed.
2. Appellant to pay the costs of the respondent of the appeal.
3. Set aside orders 1 to 4 of the Full Court of the Supreme Court of Western Australia made on 20 November 2002 and in their place order that the appeal to that Court be dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
In Rosenberg v Percival[45] I counselled against too ready an acceptance of a plaintiff's evidence, given after the event, that had she been informed of a risk, even a slight one, subsequently realized, she would have elected not to take it[46]. Unfortunately the respondent in this case could give no useful evidence of any kind as to what he would have done in relation to signage because of the serious and disabling injuries that he suffered. But his inability to do so could provide no warrant for the drawing of an inference that he would have heeded a warning sign or signs in the light of the other, compelling evidence and inferences to the contrary to which I have referred. [45](2001) 205 CLR 434.[46](2001) 205 CLR 434 at 504-505 [221].Fresh evidence The appellant submits that the view of Murray J in the Full Court that the "fresh evidence" could not justify a new trial is correct. It is surprising that an arm of a State government should have failed, as the appellant here did, to make proper discovery. Governments and their emanations should be model litigants. The failure to discover does not mean however that the respondent is entitled to succeed but it does mean that the material in question should be carefully scrutinized to see whether its availability at trial could have made a difference. Unfortunately for the respondent I do not think it would have for these reasons. The relevant parts of it are principally concerned with the dangers presented by straying stock and the potential for liability of their owners on that account, rather than the straying of feral creatures. A manual compiled within the appellant's department – it is not clear whether it is a draft only – recommends the erection of signs to warn of the presence of stock, "where straying stock [are] known to present a significantly greater hazard than is normal for remote areas or where subsequent to an application from the owner of a pastoral property a thorough investigation ... shows that any particular section of road nominated by the owner does present a significantly greater hazard than normal." The materials suggested the erection of signs where warranted at intervals of 20 to 30 kilometres. The material did not disclose that the relevant stretch of road was one on which the percentage of accidents involving straying animals was high. Signs warning of stock crossings can be misleading by implying that the stock are being controlled. A sign of such a type would be inappropriate in the relevant region. Signs depicting the possible presence of wild animals are almost unknown in Western Australia. "Locals know to be careful". The appellant was alive to the need to maintain the credibility of warning signs. The responsible minister reported to a local progress association in May 1987 in these terms: "Cattle are evident on many roads in the north of the State but it is important that warning signs only be installed where a hazard is considerably greater than would normally be expected. The credibility of such signing can only be maintained if cattle are frequently sighted near the signs. The widespread indiscriminate use of the signs would detract from their value as a warning device. There is also a problem where the placing of signs on one road may lead motorists to believe that other unsigned roads are hazard free." I would hold accordingly, as Murray J did that the undiscovered evidence and any expert commentary that might have been obtained upon it, were not of such a kind or quality as to warrant any different a result. The cause of the collision was the respondent's grossly excessive speed. The respondent's determined flouting of speed limits throughout his journey meant that the presence or absence of signs in the vicinity of the place of the accident could have no bearing on the outcome of this case.
Decision
Reasons for decision
GLEESON CJ
(dissent)
HUGH J
GUMMOW AND HAYNE JJ
(dissent)
CALLINAN J
(dissent)