Commissioner of Main Roads v Jones

[2004] HCATrans 409

[2004] HCATrans 409

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P31 of 2004

B e t w e e n -

COMMISSIONER OF MAIN ROADS

Appellant

and

LLOYD RUSSELL JONES

Respondent

GLEESON CJ
McHUGH J
GUMMOW J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON TUESDAY, 26 OCTOBER 2004, AT 10.00 AM

(Continued from 25/10/04)

Copyright in the High Court of Australia

GLEESON CJ:   Yes, Mr Walker.

MR WALKER:   Your Honours, can I answer some matters raised yesterday.  Your Honour Justice Callinan asked about the provisions regulating the appeal.  We have put together a further book of authorities, which has been supplied this morning.  I can go through it quickly.  In the District Court of Western Australia Act 1969 (WA), section 79 permits an appeal. Section 79(2) assimilates that to the position of an appeal from a judge of the Supreme Court to the Full Court of the Supreme Court. The Supreme Court Act 1935 (WA) in section 58 grants what is called jurisdiction to hear an appeal in 58(1)(b) “from a Judge”.

There is a somewhat tantalising reference in section 59(4) which assimilates the power upon the hearing of an application for a new trial to the position in relation to the powers possessed by the Full Court to those which are possessed upon the hearing of an appeal.  It then goes on to give specific powers which certainly are suggestive of an appeal by way of rehearing.  On the other hand, it is tantalising because those are given in a phrase introduced by the word “and”.  It is not clear whether that is meant to be cumulative or repetitive.  But the matter is put beyond any doubt by the Rules of the Supreme Court, Order 63, rule 10(1) and (2) make it clear that what has become known as an appeal by way of rehearing as opposed to an appeal in the strict sense is the nature of the procedure in the Full Court, with the consequences that we conceded at the outset of our address yesterday. 

Your Honour the Chief Justice asked a question which, in one sense, is based upon or raises, I should say, for consideration the nature of the evidence referred to by Justice Steytler in paragraph 106 at page 623, volume 3 of the appeal book, where the sentence reads:

On the evidence of the local residents, a speed limit of 110 kilometres per hour was far too high in the area between Rocky Creek and Mabel Spring Creek and one of 80 kilometres per hour should, in my opinion, have been imposed in that area. 

That conflates a number of matters, but principally the value judgment of Justice Steytler himself.  The evidence of the local residents does not include any specific animadversion to the question of a sign, in particular, the evidence in volume 1 of the appeal book from Mr Chulung at 67, line 39 to 68, line 7; Mr Hobbs 97, lines 6 and 8; Mr Dallas Purdie 147, lines 37 to 40.  In volume 2 of the appeal book, Mr Riggs, page 305, lines 25 to 34, speaks of the need observed by them in their own practices to slow down at the animal feeding time in the evening in the various vicinities which had been identified by them for various stretches, as your Honours appreciate, varying in degree quite considerably, but nothing in relation to a “Slow Down” sign in the accident site. 

GLEESON CJ:   Where did these local residents actually reside?

MR WALKER:   In quite a scatter.  It is not capable, certainly, so far as I can read the record, to put a dot on the map for a residence in a way that, as it were, scatters around the accident site.  It is clear from their evidence that quite a few of them were speaking about times when they lived in different places from where they are now living, and it is clear that for some of them they were talking about their experience of the whole road, particularly the professional drivers.  Some of them were talking about a regular run they made from, for example, around Turkey Creek to Halls Creek. 

It is not possible to generalise, your Honour.  Each of them lived in an area that made their evidence relevant, we concede.  However, it is not possible for me in support of my case to say they had, as it were, a blinkered vision of a very small part of the road in such a way as to render their evidence useless for all comparative purposes.  That is not a circumstance I call in aid at all.

GLEESON CJ:   Is there some map somewhere that places this locality by reference to townships or settlements? 

MR WALKER:   There is, in volume 2 of the appeal book.  Could I ask your Honours to go to page 315, 316.  Page 315 is the smaller locality of the accident site itself with an inset in the top left corner that shows Wyndham, Kununurra, the border with the Northern Territory and Halls Creek, whereby you can see the relation of the accident site to the Halls Creek Kununurra stretch of road.  The actual locality of the assumed site of accident is drawn in such a way as to show to your Honours the bridges and the accompanying signs in relation to them. 

The next page, 316, in a much more legible, larger form, was, as I think I said yesterday, the map of this route, Kununurra‑Halls Creek upon which there had been plotted the reports of accidents which was the basis of the finding by Mr Holdsworth as expert, adopted by the trial judge – which should have been adopted by the majority of the Full Court, was adopted by Justice Murray – to the effect that there was nothing special in terms of intensity of accident experience from straying animals about the accident locality.

GLEESON CJ:   What is Warmun?

MR WALKER:   Warmun is Turkey Creek.  Warmun is the name of the community at the locality called Turkey Creek. 

GLEESON CJ:   And what else is at Turkey Creek?

MR WALKER:   A roadhouse.

GUMMOW J:   We have a photograph of the roadhouse.

MR WALKER:   Yes, past which the plaintiff drove at greatly excessive speed, notwithstanding the speed sign of 90 kilometres an hour for the locality of Turkey Creek. 

GLEESON CJ:   And how far away was the speed sign of 90 kilometres an hour from the accident site?

MR WALKER:   About 6 kilometres, I think.

GLEESON CJ:   What was the plaintiff’s case as to where the 80 kilometre sign should have been?

MR WALKER:   The best one can answer that is from the particulars you find in volume 1 of the appeal book, page 6.  It is a little difficult, because it is expressed in these terms:

at least one (1) kilometre north and at least one (1) kilometre south of the accident scene.

Hence my references yesterday to this amazing coincidence that the 80 kilometre zone was one that would have the accident site right in the middle.  Now, the introduction of the phrase “at least” leads to some literal absurdities.  It ought to be read, I think, as to the case made, as being “about”. 

GLEESON CJ:   The 90 kilometre zone ended 6 kilometres north of the accident site, did it?

MR WALKER:   Yes.

GLEESON CJ:   Thank you.

MR WALKER:   Now, answer 1(a)(i) uses “at least”.  Answer 1(a)(ii) on page 6 of volume 1 of the appeal book, in relation to the warning of wild animals as opposed to the speed sign, specified points:

approximately one (1) kilometre north and one (1) kilometre south of the accident scene.

Reading the two together means that the answer to the Chief Justice’s question is that the case made by the plaintiff is that there is something in the nature of a 2 kilometre stretch that should have been signposted 80 kilometres an hour warning something or other.  I do not know whether it would be warning for the evening or what, or a warning in drier times?  It is difficult to know.

CALLINAN J:   Mr Walker, is there any evidence that 110 kilometres an hour is the maximum speed limit on all occasions in Western Australia?

MR WALKER:   Yes, there is.  In our first book of authorities – this is not evidence but law – the then extant Road Traffic Code which governed has regulation 1001 in Part X, “Speed Restrictions”.  It is page 49 of the print we have provided and it is in very direct terms addressed to people like the plaintiff:

A person shall not drive a vehicle at a speed exceeding 110 kilometres per hour and shall not drive a vehicle, –

(a)      in a built‑up area, at a speed exceeding 60 kilometres per hour . . . 
(b)      in a speed zone, at a speed exceeding, in kilometres per hour, that indicated by the numerals on the restriction sign –

which is what is being proposed in this case, that is, a zone where there is a sign posting a speed –

(c)      in a local traffic area, at a speed exceeding 40 kilometres per hour. 

So that 110 was the maximum permissible.  Even in his pleading and certainly on the openings – there was a form of opening by the defendant as well – it was crystal clear that his case was to be fought on the basis that he had averaged considerably in excess of the maximum permissible. 

Your Honour Justice Callinan asked about Tickalara Bore.  The photographs that we handed up yesterday that were exhibits at the trial contain, on the last page, image G1, headed “TICKALARA BORE”, which your Honours I hope have seen includes a “STOCK CROSSING” sign and a speed sign “80”.  The Tickalara Bore, according to Mr Chulung, was 47 kilometres south of Turkey Creek – volume 1 of the appeal book, page 53, lines 51 to 55.  That places it within the Mabel Downs Station of which Mr Riggs spoke as a former manager, because the Great Northern Highway, the main road in question, passed through that property, entering it about 6 kilometres north of Turkey Creek and continuing for about 70 kilometres south to Rocky Creek Bore, from which it follows that Tickalara Bore is well and truly inside the Mabel Downs Station territory when it was being traversed by this road. 

That is the place – Tickalara Bore – where there could be 1000 cattle a day crossing to water at the bore; see volume 2 of the appeal book, page 300, lines 42 to 58.  So the difference between Tickalara Bore as a site of known intense risk of a kind which would vary literally, according to when the cattle were going across and not, stands in stark contrast, in terms of justifying the sign and speed limit there, compared with the extraordinarily different intensity, capable of being seen from the impressionistic evidence about which I addressed yesterday, for the accident site.

GLEESON CJ:   Was the accident site within Mabel Downs Station?

MR WALKER:   Yes.

GLEESON CJ:   And is there a sign that says “You are entering Mabel Downs Station” or “Welcome to Mabel Downs Station”? 

MR WALKER:   I cannot say.  I do not think that is in the evidence.  I am sorry, I know it is not in the evidence, but I do not think there is any testimony that goes to that.  Just as there is no evidence of anything, as it were, said at either end of the road about what you might encounter along its stretch.  In relation to Tickalara Bore, I should also draw to attention Mr Mahoney’s evidence in volume 1 of the appeal book, page 122, lines 43 to 58, where there was specific discussion in question and answer concerning the use of signs and the way in which the decision to put a sign of that kind at that point would be reached.  Again, standing in contrast with the combination of the accident reports, statistics and the impressionistic forensic anecdotes ‑ ‑ ‑

GUMMOW J:   What page was that, Mr Walker?

MR WALKER:   That was page 122, your Honour.

GUMMOW J:   Thank you.

MR WALKER:   In volume 1.  Your Honours, in relation to the second point I have no more to add, really, than to adopt, in the way that your Honours have seen in our written submissions, the approach taken not only by the trial judge but also by Justice Murray, volume 3 of the appeal book at paragraphs 55 to 59 of his Honour’s reasoning.  That is at pages 609 and 610.  No point is served by my going to that in any further detail. 

This was a case where the choice was an easy and compelling one made by the trial judge and by Justice Murray.  A choice between evidence at the time, very close to the time, and a response of a kind that his passenger described as adapting to road signs and conditions, which showed no adaptation of any kind except one bordering on the reckless.  No adaptation suggested at all.  In our submission, for the majority in the Full Court to have preferred the generalised kind of description of a life’s habits from the wife and from the clearly incomplete, if not incorrect, description by the passenger concerning his experience on the trip was, in our submission, an error which can and should be corrected in this Court. 

In volume 2 of the appeal book, pages 246 to 248 includes evidence which was given of a sign inventory along the road as at 1991.  Coming out of Turkey Creek – page 248, the right hand column, at the straight line kilometreage 2979.720 – is the “Speed Derestriction Sign” that your Honour the Chief Justice asked about, leaving Turkey Creek.  The speed derestriction sign. 

GLEESON CJ:   Thank you.

MR WALKER:   May it please the Court.

GLEESON CJ:   Yes, Mr Jackson.

MR JACKSON:   Your Honours, the argument on behalf of the appellant, in our submission, seeks to enlarge the case beyond that which was alleged and also beyond that which was found by the majority in the Court of Appeal.  Your Honours, the case that was made on behalf of the respondent was a narrow case:  The road was dangerous, but a particular area of it was particularly dangerous.  I will come to the detail in a moment.  The appellant’s argument, in our submission, does not truly engage with that case, nor did the judgment of the primary judge, nor did that of Justice Murray in the Full Court. 

Now, your Honours, may I deal initially with two aspects.  First of all, the geography, in perhaps a little more detail, and, secondly, the very precise and quite restricted findings made by Justice Steytler in the Full Court.  If I could deal with the geography, a basic map is in volume 2 at page 250.  There were larger maps available at the trial, but they are not in appeal book.  Could I take your Honours to page 250, and in the top right hand corner, in effect, you will see Kununurra and then beside Kununurra, with the Ord River Irrigation Area to the north of it, you will see immediately to the left of Kununurra the word “Victoria” on the roadway.  That then joins up with the Great Northern Highway. 

If one follows the highway south, your Honours will see that it goes to Turkey Creek, which is about at this point on the page, about point 4 from the top of the page.  At Turkey Creek, you will see immediately south of the other side of the road of the name “Turkey Creek” an airstrip, and then, a little further south of that, on the same eastern side of the highway, the name “Mabel Downs”, indicating a homestead which is just to the western side of the highway.  If one goes further down from there, further south, finally there is Halls Creek, in an area about point 7 on the page from the top. 

Now, your Honours, could I just mention that there are some things that are of obvious tourist interest, of course – the Ord River Irrigation area, north of Kununurra, Lake Argyle, directly south of Kununurra, and the Bungle Bungle National Park to the southeast of Turkey Creek.  It is not just an area where people travel for need, but an area for tourists. 

Could I just say one thing about it.  Your Honour the Chief Justice mentioned something about, should there be signs in different languages?  Well of course, in Australia, as with Australians in foreign countries, people who hire cars tend to be given brochures which indicate what the road signs are and mean.  Reference, if I could just say so in passing, was made by my learned friend, in something of a flourish, to Dutch tourists and should the sign be in Dutch?  Well, your Honours, it is a fairly well known thing that in many of the countries of Western Europe, other than France, English has been a compulsory subject for many years since the end of World War II, but I pass that over. 

Your Honours, the point where the accident happened was not entirely typical of the whole of the Kununurra‑Halls Creek road.

GLEESON CJ:   Where is it on this map that you must mentioned?

MR JACKSON:   Your Honour, it is between Mabel Downs and Turkey Creek.  I will indicate a little more exactly, your Honour, but later, if I may.  It is between those two places and it is about 5.8 kilometres south of Turkey Creek.  You will see that reference to the 5.8 kilometres in volume 2 at page 319, where the primary judge says that in the fourth line of his reasons. 

If your Honours would remain at page 319 for just a moment, in the first paragraph of the primary judge’s reasons, what your Honours will see is that the accident occurred when he was travelling in a southerly direction about 5.8 kilometres south of Turkey Creek and between two creeks known as Rocky Creek and Mabel Spring Creek.  Your Honours will see that Rocky Creek is the more southerly one of those two.  The point where the accident happened was a point in an area under a kilometre in length where there were two creeks and narrow bridges over them to be encountered.

If I could take your Honours to page 315, your Honours will see the assumed sight of the accident marked, and that is the point that is 5.8 kilometres south of Turkey Creek.  You will see that the road is marked with various kilometre markings, 2976.97 and so on, at the top.  They reduce as one gets closer to Perth. 

GLEESON CJ:   Where are they from?

MR JACKSON:   From Perth, your Honour.

GLEESON CJ:   From Perth.

MR JACKSON:   One sees, if I could just go to the assumed site of the accident, your Honours will see that it is at a distance of 2975.71 kilometres and there are bridges that your Honours will see to the north of it and to the south of it.  The one to the north of it is a distance – and this is worked out by subtracting one figure from the other – of only 0.48 kilometres.  The bridge to the south is 0.33 kilometres.  So the distance between the two bridges is only 0.81 kilometres.  Your Honours will see, if one imagines oneself travelling south along that road, first one comes to the first sign, just south of 2976.63, which says:

Narrow bridge, one lane –

Then there is another sign: 

No overtaking or passing –

Then there is the Mabel Spring Creek bridge.  One sees the signs on the other side of the road for travellers going north.  Then there is the assumed site of the accident with, very close to it, a sign: 

Narrow bridge, one lane –

and, again, another sign saying: 

No overtaking or passing –

Then there is the Rocky Creek bridge.  Now, your Honours, at the point of the accident, the narrow bridge sign for Rocky Creek was visible, and that can be seen from the photograph F9.  Your Honours have the book of photographs I think, which shows it rather better, but exhibit F9 which is at page 287 – your Honours will see that is the photograph that has the brake marks on it, and it is the braking of the vehicle itself.  Your Honours will see that on the left, although it is perhaps a little difficult to see, you can see the sign for the bridge immediately ahead of it.

GLEESON CJ:   What is that?  It looks like a light on the opposite side of the road?

MR JACKSON:   I think that may be a police vehicle or something of that nature.  Your Honours, could I just say that the two creeks, in very close proximity, were sources of water for feral horses.  There was evidence, from a report which was not the subject of any oral evidence or challenge, that horses have repetitive patterns in relation to water and come back to the same place.  That is Dr Adams’ evidence in volume 2 at page 292.  Essentially, his evidence is at pages 293 and 294, but could I refer particularly to the last three lines on page 293 and the whole of page 294.

GLEESON CJ:   I am sorry, what was the distance between those two creeks?

MR JACKSON:   Between the two bridges?  Just over 0.81 kilometres, 810 metres.

GLEESON CJ:   Thank you.

MR JACKSON:   Your Honour, without being unduly repetitive, if I can put it that way, one would see, of course, the sign to the first bridge, the bridge, the sign for the second bridge, the bridge, and it is between the first bridge and the sign for the second – where the second bridge sign was visible – that the accident happened. 

One other thing, if I could just mention it, is this.  Whilst there are, as that report indicates, in Australia, a surprisingly large number of feral horses, it is not the kind of thing, as distinct from cattle, that one encounters nearly so frequently.  The horses, as one of the witnesses said, and I will come to that a little later, your Honours – horses act in a way which is not quite as predictable as that of cattle and often rather faster and in odd ways. 

Your Honours, could I come then to the findings that were made.  I will come in a moment, if I may, to the evidence concerning the particular danger of horses in that area.  The majority’s view in the Full Court, which reflected the case which we had sought to make, was that this was a dangerous area and that there was, accordingly, a need for appropriate signs. 

Could I take your Honours to what actually was said by the majority in the Full Court on this issue, and may I start in volume 3 at page 621.  In paragraph 103 – why I am referring to this is that if one looks at the reasons of Justice Steytler, it makes it absolutely clear that there was no suggestion in his reasons that there should be a forest of signs or a wall of them or a fence of them along the highway.  What he was saying was that in areas that were dangerous, it was appropriate that there be signs, to put it shortly.  Could I take your Honours to paragraph 103, page 621.  What he said was, at the third last line on the page:

it seems to me that it provides overwhelming support for the proposition that the road from Kununurra to Halls Creek was, in 1992, a dangerous stretch of road as a consequence of the threat of straying animals.  The evidence also established, conclusively in my opinion, that the danger was at its greatest in areas such as those around Mabel Spring Creek and Rocky Creek, where animals wandered nearby and where water and good food were to be found. 

If I could go down to the last few lines of that paragraph, his Honour also said: 

What the evidence of the local inhabitants established was that that danger was at its most acute, as I have said, in areas such as Mabel Spring Creek and Rocky Creek in which water and good food were to be found. 

Now, could I pause to say that your Honours will note halfway through that paragraph, at about line 15 to 17 on page 622, that his Honour referred to the fact that the primary judge had not referred to the evidence of Mr Hobbs.  That was significant, because the unchallenged evidence of Hobbs – and he was an experienced driver, not just in the particular area, but I will take your Honours to the evidence in a moment – was that the Kununurra‑Halls Creek stretch of road was one of the worst stretches of road he had seen for encountering animals, and that the area where the accident actually happened was one of the worst parts of that section of the highway.  Could I take your Honours to that evidence briefly.  It is in volume 1 at page 94. 

GLEESON CJ:   Had there ever earlier been an accident between Mabel Spring Creek and Rocky Creek?

MR JACKSON:   Your Honour, in terms of people being injured, there was one where I think the exact location is not exactly identified, but in that area, where one of the witnesses had to take a little girl from the station who had been injured otherwise, I think – had to take her to Turkey Creek to make a phone call, and an animal came on the road which had the effect he had to drive off the road and she injured her hand putting it up to try to stop herself in the car.  That is the evidence of a personal injury one.  There was much evidence of people avoiding collisions or of there being animals being killed, 50 a year – I am sorry, one week.

GLEESON CJ:   Between those two creeks? 

MR JACKSON:   Well, in that area, your Honour, because the animals did not necessarily come from in the middle.  Sometimes they might, they might come north or south, but there was an area around the creeks where there was a particular danger. 

McHUGH J:   Dr Adams’ evidence is that they would usually be within 8 kilometres of the water and never more than 16 kilometres. 

MR JACKSON:   Yes.  It is very difficult, of course, in one sense, to say exactly what the outer limit of it was, but obviously the area where there was water and known to be water was the area where they were most likely to be. 

Could I just go to page 94 in volume 1, the evidence of Mr Hobbs.  Your Honours will see, if I could commence at line 15, at the time of the trial he was living in Lake Argyle, but you will see that he conducted the roadhouse for some years and that was in 1987.  He later became the manager and he managed it until 1993.  He had worked as a truck driver for 20 years before that, all over the Kimberley and in all States, and he was familiar with the Great Northern Highway. 

He described his experience, your Honours, through the remainder of that page, referring particularly to the fact that he had travelled the highway between Halls Creek and Kununurra frequently.  Your Honours will see the last two questions and answers on page 94, including the last answer: 

Well, in my opinion –

he is speaking about Kununurra to Halls Creek –

that road is one of the most dangerous roads for animals that I encountered at certain times of the day and all that sort of thing. 

His next answer on page 95, he said it was one of the most dangerous:

compared to other places in the territory or the Kimberley, that particular 3 or 4 hundred K of road was sort of notorious.  We all knew that it was, sort of, pretty bad or could be bad, you know. 

Then the next answer: 

Mainly between Turkey Creek and Halls Creek was a bad spot. 

Could I just pause to say that one notices, in the questioning at the trial and in a sense in the argument before your Honours, the endeavour to direct attention to the whole of the road or particularly to the area between Turkey Creek and Kununurra north.  One can understand why that course might be adopted because the evidence, the burden of the evidence, was that the area from Turkey Creek south was the area that was more dangerous in the whole of the area.

Could I go back to page 95, your Honours.  At about line 19 he spoke of the journey between Turkey Creek and Halls Creek being about 160 kilometres, and your Honours will then see in the next answer:

Certain areas where they would come down to water and that sort of thing, you know, or cross the road to their watering points. 

He was asked then, could he explain where they were?  He indicated – I will not read out that answer.  Then line 35:

What about as you get towards Turkey Creek?---Yes, from the Mabel Downs turn‑off back to Turkey Creek or Warmin itself, it’s always been pretty bad there. 

So that’s from the Mabel Downs Station?---Yes, at the bottom of what we call the jump‑up –

which I think is the grid –

So where does that section commence from?---More or less about where the Mabel Downs gate is or the homestead is. 

He said it was the 20 kilometres from Mabel Downs to Turkey Creek. 

Now, your Honours, that evidence, which was evidence of a person who was a very experienced driver, not just in the Kununurra area but elsewhere, it was not as though it was ever referred to by the primary judge, but it made some of his observations, with respect, insupportable.  Could I take your Honours to two of those.  The first is at volume 2 at page 328.  Your Honours will see at page 328, about line 54, he said:

There is no evidence to lead me to believe that the risk is greater upon that part of the highway between Kununurra and Halls Creek –

He is speaking, as you will see from the earlier part of the paragraph, about the whole Kimberley area.  There was evidence quite to the contrary by Mr Hobbs, to which the judge did not refer.  Could I also say, at page 330, your Honours will see he said, about line 44:

There was no particular propensity for animals to approach the section of the highway between the two creeks in question – which I shall call “the area”. 

You will see the remainder of that paragraph, and then on the next page, the top of the page:

That risk was not extraordinary to the area – it was a risk equally foreseeable to the whole highway between Kununurra and Halls Creek. 

Well, your Honour, I will not labour the point, but one did have the evidence of Mr Hobbs, just speaking of him for the moment, whose evidence was quite to the contrary of that and not referred to by the primary judge. 

Could I go back then to what was said by Justice Steytler in volume 3, and, in particular, to paragraph 105 of his reasons at page 622.  Now, your Honours will see that in paragraph 105 he said:

The evidence, taken in its entirety, seems to me quite plainly to have established that there was a need, throughout the length of the road between Kununurra and Halls Creek, to place signs, warning of the danger of straying animals, on those parts of the road (including that in which the accident occurred) in which animals were more frequently to be found. 

If one paused just at those words, one might think, well, there would be an enormous number of signs, but what is apparent, if one reads the remainder of his reasons, is that he spoke of places, “the areas of highest risk”, that is the second last line on page 622, and at page 623, if one goes to paragraph 106 in the second line, “areas where the danger was most acute”. 

Perhaps I could pause there, your Honours.  Your Honours will have seen, if I can just go back to paragraph 105 for a moment, he referred to the Department – this is line 60 on page 622 – the Department being:

well aware of the risk of straying animals –

If one had to identify anywhere between Kununurra and Halls Creek as a place where the appellant should have been familiar with the danger from animals on the road, it was this area, and the reason ‑ ‑ ‑

GLEESON CJ:   You mean between Rocky Creek and Mabel Spring Creek?

MR JACKSON:   Yes.

GLEESON CJ:   That is what is talked about in 106.  That is a distance of 0.8 kilometre, is that right?

MR JACKSON:   Yes, your Honour.  I am sorry.  I had gone back to paragraph 105.  If I could answer your Honour’s question, yes, that is the area he is talking about between those two creeks.  If I could just go back to paragraph 105 for a moment, his Honour speaks of the Department being well aware of the risk and I was seeking to say this, that if one had to identify anywhere between Kununurra and Halls Creek as a place being a place where the appellant should have been familiar with the danger from animals on the road it was this area.  The reason for that is that the appellant had a maintenance depot at Turkey Creek and had had it for years.  It was not manned 100 per cent of the time but for much of it.

May I take your Honours very briefly to the evidence in relation to that.  It appears in three passages, first of all in volume 1, at page 151.  You will see, your Honours, this is Mr Mahoney giving evidence about line 10.  He said at about the third line:

Generally our information came by either motorists reporting or we had maintenance crews which travelled up and down the road quite regularly.  In fact we have got a maintenance depot at Turkey Creek so they would be reasonably familiar with the area.  Also pastoralists obviously have a vested [interest] in the number of animals that might get killed on the road because they are valuable animals.

He was asked about the maintenance depot in the next three questions and answers on that page.  Your Honours will see then at page 152 in a passage which goes down to about line 20, that it was not permanently manned but there were employees at various times of the year working out of the depot and that was the case before 1992.  If one goes over, your Honours, to page 153 your Honours will see in the passage which commences about line 23 that he says:

I wasn’t there in 92 . . . there was a depot in Turkey Creek where although men were not present permanently, they came and went from?‑‑‑Yes.

And those men would be no doubt familiar with the conditions of the road –

Could I refer also, your Honours, to the evidence of Mr Riggs in volume 2 at page 306.  At the top of page 306, at about line 10, he had been asked about animals in the Rocky Creek area:

the Rocky Creek junction area –

Then he was asked:

Did you ever notice any Main Roads people around there in years gone by, working out of Turkey Creek?---Oh, yes, they’re all the time up along there repairing the roads and everything like that.  I don’t know if they ever repaired them but there’s always a truck on the road putting bitumen in holes and that.

The area he was being asked about was an area in the immediate vicinity of Rocky Creek.  Your Honours, could I also say just in relation to this interpolation, as it were, that Mr Holdsworth’s evidence – and he was the expert who gave evidence by a not entirely satisfactory telephone in volume 1 at page 133 - he agreed at lines 49 to 53 “most definitely” “local knowledge” had “a role to play” in determining, to put it shortly, whether “safeguards should be implemented”.

Your Honours, I was referring – if I may go back to volume 3 to the reasons for judgment of Justice Steytler and in particular I had taken your Honours to paragraph 106 where he referred to the danger being “most acute”.  You will see also in paragraph 107, about lines 36 or 37, that:

there was nothing to suggest that he knew which areas along his chosen route were particularly dangerous.

Your Honours will also see a reference a few lines further down between lines 40 and 45 to the particular, to the fact that he would not have known:

in the absence of any warning signs . . . of the particular danger presented by straying animals in the Rocky Creek and Mabel Spring Creek area.

Your Honour, similar references can be seen in paragraphs 108, 112 and 113.

What emerges from that, in our submission, is the judgment of the majority was directed to the placement of signs, not festooned over the whole 304 kilometres, but in areas where there was particular danger and where the risk was acute.  Some rather sustained criticism was advanced by our learned friends on the basis that it was wrong to work back from the point where the accident happened, that to do so was to arrive, in a sense, at the self‑justifying proposition.

Your Honours, that approach really converts the respondent’s case into something which it was not and then tries to knock that something down.  In reality, the case that was advanced was that it was a very simple one along the lines to which I have referred earlier, this is the point where the accident happened.  Inevitably, that is where one starts in relation to motor accident cases.  It was in the middle of an area where feral animals came to drink.  It is between two creeks less than a kilometre apart and it was an area of particular danger of which the appellant knew or ought to have known.  That is why the contention was, and I will not take your Honours back to it, on page 6 of volume 1, that there should be a speed restriction at least a kilometre north and a kilometre south of the accident scene.

HAYNE J:   If we are to fasten upon the presence of water as being the fact that generates the danger why is it that there is so much evidence about the whole stretch of road from Kununurra right through as being particularly prone to straying animals?

MR JACKSON:   Your Honour, I suppose there are a number of reasons.  One reason is that a significant part of that road was a road that was unfenced.  The evidence seemed to demonstrate there was a fencing program going on in which there was an endeavour to get fencing along the highway but there were large parts that were unfenced.  A second feature of it was that the areas surrounding it were the areas which were cattle stations, that relating to the unfencing method.  There were cattle that were likely to be wandering across the roads.

A further feature was that there were particular concentrations of wild horses and there was a concentration of feral horses in the particular area with which one is concerned.  In the slightly more mountainous area they came down from it for their water.  Your Honour, it is probably the first two things that accounted for the area being thought to be more dangerous than others.  Other areas have more agriculture or simply fewer cattle in the areas, but these are areas of very big stations, largely or significant areas of unfenced and that is probably why, and, of course, the highway running north, as my learned friend said, carries some substantial vehicles and perhaps a considerable amount of traffic.

HAYNE J:   And two more, as I think Tickalara Bore and one other bore were singled out for special attention because of the numbers of stock.

MR JACKSON:   They were formal stock crossings so the stock could be conducted to water.  They were bores to that end.

HAYNE J:   How much conducting to water was occurring when the stock were going there?

MR JACKSON:   Yes, your Honour, Tickalara Bore and the other one – the name of which eludes me for just a moment – were places that were, if I could put this way – formal bores established and they were places where a thousand cattle and a herd would go across.  One would expect there to be some “Stock Crossing” sign where that happens.  Could I just say something in relation to warning signs.  I will come in just a moment, if I may, to what would be an appropriate warning sign.  Could I just note that there was no restriction on the power of the appellant as to types of signs.

I will take your Honours to the provisions of the regulations again in just a moment.  Could we note also two other matters in doing that.  The first is that our learned friend’s argument relies in part on the analogy of children in built‑up areas and the fact that the only place one sees signs is outside kindergartens and schools.  The analogy in fact works the other way.  The reason why there are signs and speed restrictions in school areas and such areas is because that is an area of special danger, one where there is a concentration of children who are likely to behave in the ways children do.

The second point, your Honours, concerns the knowledge of the respondent and the emphasis placed on his knowledge of the area.  What emerged from the evidence was that whilst he had experience of the area north of Turkey Creek he had very limited experience indeed in the area south of Turkey Creek.  I took your Honours earlier to what was said by Justice Steytler in relation to that in volume 3 at page 623, paragraph 107 where Justice Steytler said that:

He had previously driven in the area, and in the Kimberleys, generally . . . there was nothing to suggest that he knew which areas along his chosen route were particularly dangerous.  He had, on the available evidence, only limited experience of this particular stretch of road –

In relation to the evidence of his knowledge of this area of the road the evidence was very scanty indeed and your Honours will see really three passages.  One concerns the answers given by the plaintiff to interrogatories in volume 2, page 249, and your Honours will see the answers were that he:

had travelled on the Great Northern Highway –

not further defined:

approximately . . . 

1.   In the year preceding 11 May –

preceding the accident, approximately twice in the previous year and once or twice in the year before that.  That is the Great Northern Highway in toto.  That is the first piece, your Honour.  The second piece is found in the evidence of his wife in volume 1, first of all, page 14.  Your Honours will see in the passage that commences about line 15 and goes through to about line 37 she said that his work – he was one of three partners, I think, who were management consultants, one of their clients – they had clients in the Aboriginal communities – he would fly up to look after their work.

Most of the time the work that he did was out of Broome and he would fly up to Broome and then just sort of work out of Broome.  I don’t remember a lot of occasions where he actually drove sort of from Kununurra to Halls Creek . . . I would say about three times . . . 

To Turkey Creek more than to Halls Creek.

This is from Kununurra.  Your Honours will see the remainder of that answer.  At page 15 in a passage that goes from about line 11 through to the top of the next page it is apparent that whilst he had been to the Kimberleys a number of times the evidence that he had been beyond that or that he had been from Turkey Creek south was rather skimpy.  The passage goes through to page 17, line 44, I should have said.

GLEESON CJ:   Did the evidence show whether kangaroos are a problem on this road?

MR JACKSON:   It showed, your Honour, that there were kangaroos and there was some evidence to demonstrate that as the number that – and I think in the period after the accident as the number of cattle had been reduced in the area for various reasons that I do not think really appeared, kangaroos started to reappear.  There were other various wild animals there, of course, but kangaroos did not seem to be a problem, as such.

Finally, your Honours, in relation to Mr Hobbs who at relevant times had conducted the roadhouse, he said he had met him there, he thought.  That is page 108, lines 14 to 40.  He “had met him several times” he thought, but he “couldn’t put a figure on it”.

So, your Honours, the point I am seeking to make about it is that it is all right to say he was familiar with the road but if one looks to see the evidence it does not demonstrate any great familiarity with the part of the road where the accident happened nor any familiarity with the particular danger.

Could I come then to what the Commissioner’s powers were.  Your Honours were referred to the powers in relation to roads.  They derived from the Main Roads Act.  May I just mention, without going to the detail of it, as well as section 16(1)(a) there is also section 16(1)(b).  To the extent to which the regulations, the relevant regulations were in the Road Traffic Code which is behind tab 4 in the volume that your Honours have, I think.  Could I just mention, your Honours were referred to regulation 301 which, in sub‑regulation (1), empowers the Commissioner to:

erect, establish . . . traffic sign –

Then I should also refer your Honours to regulation 304 which says:

An inscription on a traffic sign operates and has effect according to its tenor –

There are some related definitions perhaps I should mention, traffic sign, restriction sign and speed zone, that are not referred to.

GLEESON CJ:   This case was decided at first instance before Brodie v Singleton Shire Council.

MR JACKSON:   Yes, it was.

GLEESON CJ:   Questions of nonfeasance and misfeasance were not regarded as relevant to anything.

MR JACKSON:   The primary judge relied on nonfeasance.  Your Honour, I would have to check that because the issue then went away in the Court of Appeal.  Could I just say just one other feature about why perhaps there was not a great discussion about the extent of the statutory powers and that is because to whatever might be the precise effect one would give to it, there was an answer to interrogatories in volume 2 by the appellant - in volume 2 at page 196.  You will see, your Honours, that the Answer 2 in the first three or four lines, (a) and going down to (iii) – (a)(iii).

GUMMOW J:   The reference in (a)(ii) ‑ ‑ ‑

MR JACKSON:   Yes, your Honour, the “Routine maintenance ‑ ‑ ‑

GUMMOW J:  

resealed in 1983 –

Yes, I thought it was earlier.  Anyhow.

MR JACKSON:   Yes, your Honour, I think sealing was earlier.  There was a gravel road ‑ ‑ ‑

GUMMOW J:   Yes, I think sealing was pursuant to the Western Australia Grant Act No 61 of the Commonwealth.  Federal money went into this.

GLEESON CJ:   It is a wonder there was not a sign saying that.

MR JACKSON:   That would come as a great shock, your Honour. 

GLEESON CJ:   A federally funded highway.

GUMMOW J:   Not federally signed.

MR JACKSON:   Your Honour, could I come, and endeavour to do so as briefly as I may, with the evidence that, in our submission, quite apart from the evidence I have already referred to, really supported the approach taken by Justice Steytler in the Court of Appeal in the Full Court.  I have taken your Honours to Mr Hall’s evidence and I shall not go back to that.  There is only a further passage in it to which I would refer, and that is that at the time when he was managing the Turkey Creek roadhouse he would not travel at night if he could help it.  You will see that in volume 1, page 96, about line 55, through to page 97 at line 19. 

There was the evidence, your Honours, to which I do wish to go for a moment, if I may, of Mr Frank Chulung, which your Honours will see in volume 1, commencing at page 46.  He was a person who lived in Kununurra – that is page 42 – but he had spent his entire life in the Kimberley, apart from a few short stints elsewhere.  He had been on the road many times.  Your Honours will see that at page 46, in a passage commencing about line 10, in which he referred to the sections of the highway in which animals were most noticed, he referred to an area:

the stretch of road about 5 kilometres north of Turkey Creek right down to Mabel Downs jump‑up –

which he referred to as being a grid.  That passage goes through to about line 27 on the page.  He was very wary of animals there.  In June 1975, he collided with a horse about 5 kilometres north of Turkey Creek.  Your Honours will see that he said at the bottom of the page, about line 55, in a passage that went through to page 47, going through to about line 11, that that area:

5 kilometres north of Turkey Creek to a point 25 kilometres south of Turkey Creek, what were you seeing in that area?---Mainly horses.  Well, not mainly horses, but I was very wary of horses because they are fast‑fleeted animals and obviously you don’t know which way they are going to go, especially when they are all confused; not like the cattle. 

Your Honours will see that developed in the next page.  Could I refer also to the passage at page 47 going through to line 20 ‑ ‑ ‑

GLEESON CJ:   You are coming to the question of what the sign would have been and where it would have been. 

MR JACKSON:   Yes, I will be there in a moment, if I may, your Honour.  I do not intend to go through all the evidence that we have referred to in our written submissions; may I simply go to this witness and then refer to the others.  I was going to refer your Honours to page 51, about line 25, in a passage that goes through to about line 53 on that page, and on page 52, about line 43 through to line 54, and at page 53, line 38 through to about line 48.  Your Honours, at page 54, about line 27, he was asked: 

So you say it’s worse, the problem is worse, around Stony Creek –

which apparently meant Rocky Creek –

and Little Mabel Creek and the Six Mile Bore?---Stony Creek or Rocky Creek?

Rocky Creek?---Yes.

Is that the case also with the horses?---Yes.

The cross examination – the closest one gets to it, if anything, is on page 57, the last few lines on the page; pages 60 to 61, in the passage commencing about line 36 through to page 61, line 28; and page 67, lines 23 to 35. 

Your Honours, once again, there was evidence, essentially unchallenged, that this area was a bad area.  Could I refer to it without attempting to go to the detail of it.  The references we have given in our written submissions in paragraphs 15 to 18, dealing with the evidence of Mr Carter, paragraph 15, Mr Purdie Snr in paragraph 16 and Mr Dallas Purdie, paragraph 17, who, your Honours will see, said that this was one of the “bad spots for animals” south of Turkey Creek.  Mr Riggs’ evidence was part of an exhibit.  He had given a statement and then there was an examination of him that took place out of court, and a transcript of that forms part of the exhibit.  Your Honours will see the substance of his evidence there referred to. 

The evidence to the contrary was evidence directed to showing that there was a problem right along the highway.  As your Honours see, we have referred to that evidence in paragraphs 19 through to 23 of our written submissions.  We invite your Honours to read that in due course, but it does not affect the burden of the evidence to which I have already referred. 

Your Honours, could I come then to the question your Honour was asking me in relation to the type of sign that should be put up.  If I could refer your Honours to our written submissions in paragraphs 30 and 31, we would submit, first of all, there was no restriction on the form of sign that might be put up to deal with the problem ‑ ‑ ‑

GUMMOW J:   Do we not have to go back earlier, though?  Do we not have to look at this road safety audit system at page 133 and following?  It is conducted by traffic engineers and designers, so it seems, at 134, line 20.  Is not the complaint really that this road safety audit system miscarried or was misdesigned?

MR JACKSON:   Your Honour, that is right in the sense that ‑ ‑ ‑

GUMMOW J:   That is the exercise of the power, by setting up this road audit system.  That is what they do.

MR JACKSON:   Well, your Honour, it is a question of exercise and non‑exercise and perhaps mis‑exercise, if I could use that expression.  But to set up a system, such as it may be, and describe it as a road audit system and then to say “Did it or did it not comply with that?” is not really quite the test, with respect.  The test is whether the danger was something of which they knew or ought to have known.  One way of finding out about it might be to have some form of road audit system, but as your Honours will see ‑ ‑ ‑

GUMMOW J:   Well, there is one, and it has been formalised in the last 10 years or so.  That is what the evidence was.

MR JACKSON:   A formal approach to it has only become common in the last decade, your Honour.  It is at page 134, line 10, around there.  But, your Honours, that was not the only thing about it.  One sees on the preceding page, line 49, that local knowledge did definitely have a part to play, said Mr Holdsworth, and also ‑ ‑ ‑

GUMMOW J:   Yes, but what part?  That has never been made clear:

Has local knowledge any role to play . . . ?---Yes, most definitely. 

Well, what role? 

MR JACKSON:   Then he goes on to say how local knowledge: 

that process is summed up in the activity called road safety audit . . . A road safety audit comprises driving along the route and making an assessment ‑ ‑ ‑

GUMMOW J:   It does not sound like talking to the locals.

MR JACKSON:   It leaves it out.  It seems a fairly primitive way of doing it, with respect, an inadequate way of doing it.  Your Honours, could I also say that that was not the total that might be done in relation to it.  Could I just refer to the passage, which I think is at page 154, in the evidence of Mr Mahoney.  Your Honours will see, in the passage commencing about line 40, he was asked:

Are you saying that because there is water there, the cattle and other animals are attracted.  That’s a known fact, so that you put up a sign as a precaution really so the traffic slows down?---Yes.

A little further down, the next answer, speaking about Tickalara Bore, he said:

The crossing of the road or animals being attracted to other parts of the highway could be quite random but if there’s a place where it’s specifically known that there are animals there, we would be obliged to put a sign up and say that we know that there is that hazard there, if you want to call it a hazard. 

Your Honours, if I can say two things about that, that indicates that if there was a knowledge of a hazard, there was a recognised obligation to put up a sign.  The second thing about it is that if you have a situation where the area is one where it becomes pretty much common knowledge that this is an area of some danger, then the commonness of the knowledge applies as well to the road authority as to anybody else.  That is why I said this is a place where – Turkey Creek – the only major place between the two areas of Kununurra and Halls Creek.  There was a depot, not a full‑time one, of course, but they had people working there the whole time.

GLEESON CJ:   You pointed us earlier to some specific evidence that from 5 kilometres north of Turkey Creek to 25 kilometres south of Turkey Creek was regarded by a witness as a particularly dangerous locality.  So presumably the sign and the speed limit should have covered that whole 30 kilometres. 

MR JACKSON:   Well, if one accepted the whole of that evidence.  A possibility, your Honour, would have been for there to be signs at particularly bad parts in that, because the evidence was – one would not expect the evidence to be exactly precise as to where exactly the worst parts were, but it was clear that, first of all, the evidence was that Kununurra to Halls Creek appeared to be worse than most other parts, most other roads, but in the area around Turkey Creek, particularly south of it, there was an area that was particularly dangerous, which was in the area where the accident happened.  Now, the exact boundaries or limits of that vary a little, as one might expect, with the witnesses’ experience.

GLEESON CJ:   But you would not want to put a sign somewhere that indicated that you did not have to worry about straying animals elsewhere. 

MR JACKSON:   No, your Honour, that is so. 

GLEESON CJ:   Because there is nowhere between Halls Creek and Kununurra where you do not have to worry about straying animals. 

MR JACKSON:   Well, your Honour, it is a question of what one means by “worry about”, really.

GLEESON CJ:   I was just looking at your written submissions in paragraph 30, where you say what the sign would be.  That sign, if you were going to have one, could and should have applied to the whole road between Halls Creek and Kununurra, should it not?

MR JACKSON:   Your Honour, there would have been a number of ways of dealing with it.  One would be to have, at the start of the townships – as one leaves the townships, I suppose – something saying, “These are areas where there are cattle and animals likely to be on the road”.

GLEESON CJ:   Another way of dealing with it, and I suppose this is the sort of thing for an expert witness to deal with, but one does see signs saying, “Animal watering place”, in other words, a sign specific to the particular hazard at the bore, for example.  If what makes the area of 30 kilometres, 5 kilometres north of Turkey Creek and 25 kilometres south of it, particularly hazardous is water, then the sign would be specific to animals watering, would it not?

MR JACKSON:   Your Honour, that would be an appropriate sign. 

GLEESON CJ:   I am just suggesting, for your comment, that a sign of the kind you have put in paragraph 30, if confined to 30 kilometres, or even worse, if confined to 0.8 kilometres, would create a very misleading and dangerous impression in relation to the rest of the road.

MR JACKSON:   Your Honour, I suppose that is possibly so, but it is a question of the degree of enthusiasm of the sign, if I can put it that way, and the degree of specificity.  Obviously, if one said simply, “Straying animals, 2 kilometres”, that might seem to be something that might create the impression that there were not animals elsewhere, but there is not any reason why there could not have been signs, for example, in the area between Turkey Creek and where the accident happened, saying to the effect, as your Honour has put it, “Straying animals”, “Watering points for animals”, something along those lines.  The short fact is there was nothing, and no attempt to have anything. 

HAYNE J:   Did the evidence not suggest that the definition of watering points in this part of the country was not without its own difficulties, (a) seasonal, (b) depending on the quality of the season, et cetera? 

MR JACKSON:   Your Honour, what the evidence tended to suggest was that there could be at times a lot of water, sometimes there was not.  One would have thought the best evidence in relation to the particular place at the particular time was the evidence of Mr Hobbs, who actually looked over the Rocky Creek – I think it was – bridge to see some water in it at the time.  But the evidence also was that Turkey Creek, which ran more or less to the eastern side of the road and into which these two creeks flowed west‑east, was a permanent watercourse.  So one is not really dealing with areas that have just occasional rain; the Turkey Creek was a watercourse.  These two creeks were in an area that ran into that watercourse. 

The evidence about the fact that there might be a lot of water around at various times really just meant that it was, at times, pretty wet.  I suppose that is what one would get out of it – not much more than that, really, your Honour.  That is where you had the evidence of Dr Adams that animals followed their usual behavioural patterns and went to the same places for water. 

GLEESON CJ:   The argument that was put against you, whether it is right or wrong, is that the evidence of these local residents proves too much, that it proves that that sign that you proposed in paragraph 30 of your written submissions would be apposite to the whole stretch of road from Halls Creek to Kununurra. 

MR JACKSON:   With respect, your Honour, it did not.  I mean, what the evidence demonstrated was that if there were areas where there were predominant numbers of animals, that is where you would put up the sign.  Could I take your Honours to page 158 in volume 1, the evidence of Mr Mahoney.  You will see the judge asking about line 36:

What are the kinds of signs that you do have available for warning motorists about animals?  We have all seen kangaroo signs, for example.  What else?‑‑‑In terms of cattle in 94 there was introduced the same sort of sign as kangaroos.

Your Honours will see that:

if there are predominant numbers of other animals, you can put up things like emus and, as you said, kangaroos.

At page 159, the top of the page, he said:

The idea of those signs is to make the drivers alert of the risk . . . normally does say “Over the next X K’s” . . . 

That’s the advice that is normally given in conjunction with the pictorial sign.

At page 160, between lines 7 and 24, he said there were signs for ducks, tortoises, for different reasons, of course, but so, your Honour, maybe no lions, maybe no tigers, as your Honour observed yesterday, but a fair amount of the menagerie could be covered.  Your Honours will see also on that page, between lines 18 to 22, the reference, I think, to the increase in kangaroos with the change in stock numbers and fencing.

Now, your Honours, what one needed to have, in our submission, was in relation to the particular area, if one makes the assumption that people should know there are animals by looking at the carcasses on the road, in effect, and by seeing animals around through the whole distance, one would think that one of the things that would make people aware of an increased danger is in the place where they had seen the sign.  It just does not all work one way, your Honour.  If you have an area that is said to be an area that has a problem all the way, if there is a sign that particularly deals with it, that should indicate, your Honours, the nature of the particular problem.

Your Honours, I have taken your Honours to the evidence of Mr Mahoney already to the effect that if it was known that the area was one where it was specifically known there were animals a sign should be put up – that is at page 154.  Your Honours, could I go for a moment then to the statistics that were relied on?  They are summarised by Mr Holdsworth in volume 2 at page 222.  Now, your Honours, I will not read it out, but the relevant part commences at about line 20 and goes through to the bottom of the page.  He bases his report on the record of reported accidents involving animals on the road between Kununurra and Halls Creek in the period of 7.33 years preceding the accident, and only 50 such accidents occurred in that stretch of road in that time.

The figures, your Honours, on the evidence, must have been a long way out.  There was the evidence of Mr Riggs, the Mabel Downs Station manager, who was there for 16 years, 1978 to 1994 and at volume 2, page 286, his evidence, your Honours, was that he lost about 50 cattle a year to collisions on the highway.  That appears at page 307 of volume 2, and the highway ran through Mabel Downs for about 76 kilometres.  That is at page 296.

HAYNE J:   Was there an attack made in cross‑examination of Mr Holdsworth on the conclusion at the foot of 222, namely:

that the subject location was in fact representative with respect to the probability of an accident involving an animal for the entire Highway between Kununurra and a point approximately 20 kilometres to the north of Halls Creek.

MR JACKSON:   Yes, your Honour.  May I take your Honour to his evidence?  Could I just say in relation to it – it is in volume 2, your Honours, at ‑ ‑ ‑

HAYNE J:   If you want to come back to it, come back to it.

MR JACKSON:   Yes, may I do so, your Honour?  I have just lost the particular place, because he gave evidence by telephone, and it is inserted in the rest of the evidence.  Your Honours, if I could just continue with Mr Riggs for just a moment, the figure he gave of 50 collisions with his own cattle ‑ he said he was not aware of other ones, because he was only interested in his own cattle numbers – does not sit very well with 50 over seven and a bit years.

The statistics, of course, do not include the accidents which were not reported to the police – that is volume 2, page 189.  There was evidence of those.  One was Mr Riggs himself where he said in volume 2 at page 305, lines 37 to 52, that he had been involved in a collision with a bullock, I think, and had not reported it.  They do not include accidents reported by telephone where a database form was not completed.  That is at page 189 of volume 2, the last paragraph, and to be included in the database the collision had to result in personal injury or in property damage in excess of $1,000.  That is in volume 1, page 133, lines 10 to 14, and of course, did not include any near misses – an example of one is Mr Purdie Senior, volume 1, pages 90 to 91.

GLEESON CJ:   On page 227, he expresses in the concluding paragraph two opinions.  They were received without objection, were they?

MR JACKSON:   Yes.  Your Honour will appreciate that he was in Queensland.  He had not been to the site.  All he had was the statistics and he had been shown a video of the road.

HAYNE J:   The statistics are illustrated graphically at 232, I think.  Is that right?

MR JACKSON:   Yes, he has a number of ‑ ‑ ‑

HAYNE J:   Bar charts.

MR JACKSON:   Of charts, yes, attachment D and following, your Honour.

GUMMOW J:   They are all about reported accidents?

MR JACKSON:   Yes.

GUMMOW J:   These are not the sort of folk who rush and report things, as is pointed out.

GLEESON CJ:   It might be a question of who you would report it to, in some cases.

GUMMOW J:   Exactly.  At 306, there is an example of that, I think.  Yes, 305 line 50, the witness – he was run into the gully, but he did not report it.

MR JACKSON:   Yes.  Your Honour, the point I was seeking to make earlier was that this is not a situation – I mean, Turkey Creek, with great respect to those who live there, is not a metropolis.  One of the groups of people who are there pretty often are people from the Main Roads Department.  They work on the roads and they would, one would expect, be as familiar with the roads as anyone else.  They would have, more than anyone else, for years, the collective experience of driving up and down the road.

Your Honours, our submission is that Justice Steytler was correct in identifying the deficiencies in the statistics and what should be derived from them.  Could I refer your Honours to volume 3, page 622, paragraphs 104 and 105, and your Honours will see at paragraph 104 his description of the number of accidents and what they tended to indicate and, your Honours, that he went on to say that that demonstrated a need to signpost “the areas of highest risk”.  That is in paragraph 105.

GLEESON CJ:   This trial was conducted six years after the accident?

MR JACKSON:   Yes.

GLEESON CJ:   Just as this appeal is being heard six years after the trial.  Was there any evidence of any signage that had been erected over that period of six years?

MR JACKSON:   I think the answer is no, your Honour.  Your Honour, I am conscious of the question of your Honour Justice Hayne’s I have not answered.  May I endeavour to do so later or if necessary give your Honours a note?

HAYNE J:   By all means.

MR JACKSON:   Your Honours, could I turn to the questions which tend to merge together a little of speed, causation and contributory negligence?  Your Honours, in our submission, Justice Steytler was right in saying, on the evidence, that it is unlikely that the respondent would have been aware of the particular danger.  I took your Honours to the passage before ‑ it is in paragraph 107 ‑ his experience of this area was not great.

Your Honours, as we say in our written submissions in paragraph 33, no doubt the evidence demonstrated that his average speed was in excess of the State‑wide limit of 110 kilometres, and there was evidence about, on which it could be found, that he was well in excess of that speed limit when he went past the roadhouse at Turkey Creek.  At the time when the accident happened, he was on a particular stretch of road where there were two narrow bridges in a short space and the sign for one directly ahead.  Now, in respect of ‑ ‑ ‑

McHUGH J:   People seem to have driven very quickly there.  I notice that Senior Constable Thompson who went to the scene of the accident said it was 210 kilometres from Kununurra to the scene of the accident, and it would have taken about an hour and twenty minutes.

MR JACKSON:   I was about to say that, your Honour, and that works out roughly at 157.5 kilometres an hour.  No doubt, I do not know how the cattle and the horses would have taken the siren and the flashing lights, but ‑ ‑ ‑

GLEESON CJ:   What was the evidence about the speed through Turkey Creek?  Was that evidence of observation or was it just inference?

MR JACKSON:   Observation, your Honour.  There were two people – although, I think, one did not agree the other one was there at the time - two people saw a car go through Turkey Creek.  One was a man named Jackson and he had been a former speedway driver at some point – quite some time before.  He saw the vehicle go through which he thought was going fast, with a kind of shimmer – I have forgotten the exact words, I will take your Honours to it in a moment – at the back of it which tended to indicate that – he said that was the reason why on some cars they put something up the back to hold them down, but it seemed to be going very fast.

His evidence, your Honours, is in volume 1.  It commences at page 161.  At page 162, line 38, he was staying in the dongas at the roadhouse, and he then was sitting on the verandah outside the roadhouse.  He could see the Great Northern Highway apart from the petrol bowsers.  Your Honours will see a description on page 163 of the vehicle, then he says it was “a floating effect” - page 164, between lines 25 and 30 - and later there was an accident, and he had spoken of a yellow Falcon going through and there was a yellowish Falcon that was the car that was involved in the accident.  That was essentially his evidence.

The other evidence was that of Mr Purdie ‑ the two Purdies.  This was Mr Purdie Junior who was also at the roadhouse, and his evidence, your Honours, commences at page 141, and at page 142, between lines 20 and 30, it was going “faster than 90 kilometres . . . There’s a 90 K zone”, and he thought – I do not think he actually expressed a view, your Honour, as to any speed it was going at, although it was going over 90.

Your Honours, could I just say that that was the vehicle going through there, but at the time when the accident happened, he was in a rather different situation.  Could I also say that the average – that all this was based essentially on the average time it was said to have taken, and in respect of the earlier period, that is the period, or the part of the road, that is the part of the road north of Turkey Creek, Constable Thompson gave evidence that it was a very:

an open – very long, open, lonely road.

You will see that in volume 1, page 26, and as I said a moment ago, your Honours, he had made it, in emergency circumstances, in 1 hour 20 minutes.

Could I also say, your Honours, that if one is looking to see what hard evidence there was, as it were, of the speed he was doing at the time, there were, of course, some skid marks, and they were adverted to by the police officer – and can I take your Honours to that, for just a moment, in volume 1, at page 28.  At the bottom of that page, your Honours, about line 50, he referred to the skid marks that appeared to have been left by the vehicle.  He paced them out but he did not have the exact distance, and you will see at the top of the page he did not any longer have the exact distance.  At the top of the next page down to line 15 he said:

they were only 20 to 30 metres and it didn’t indicate . . . any excessive speed for that particular area –

not in his experience.  He was cross‑examined about that.  At page 31, there is a passage that commences at the bottom of the page about line 54 and goes through to, I think, page 33 line 40, and what he said, in essence, was that it was ultimately a matter of his impression, but that the state of the skid marks, as it were, did not indicate that there was any excessive speed – an impression, no doubt, but based on experience of someone who has seen a number of accidents.

Your Honours, the case was one, in our submission, where we have to accept, of course, that there was negligence in driving too fast, but equally that there was negligence in failing to warn of a particular situation and the speed limit, of course, and, your Honours, we rely on the other matters in our written submissions.

Could I come then to the question which arises in relation to the disposition of the appeal.  What your Honours will have seen is this, that an issue was raised in the Full Court concerning what should happen to the appeal in the light of further material that had become available after the trial and had not been discovered.  The issue is one that was not dealt with by the majority and you will see that at page 623 in volume 3 in paragraph 108.  Your Honours will see that there. 

You will see that Justice Murray at page 599 in paragraphs 20 to 24 was of the view that the material – it comes down to this, your Honours.  Paragraph 24, “the new evidence . . . supports an application for a new trial.”  Could I just say in relation to it first of all that Justice Murray seems to have looked only at one of the possible bases on which the evidence was sought to be before the court.  There were three bases.  One, if the court itself decided to receive the evidence, and it would have been difficult for it to do so itself and rule upon the issue because there may be some further questions involved.  The second question was whether, if the appeal would otherwise fail as our appeal in the Full Court, there should yet be a fresh trial because of the undiscovered material that might have been used in cross‑examination and as a source for further evidence. 

I will come to the detail of it in just a moment if I may, but so far as the present case is concerned, the contention we advance is that if the appeal in this Court were to succeed, then our submission is that the matter should be remitted to the Full Court to deal with the issue with which it did not deal on the previous occasion.  If I could go back for a moment then to our written submissions and to paragraph ‑ ‑ ‑

CALLINAN J:   Excuse me, Mr Jackson, would you have needed a notice of contention for that?

MR JACKSON:   In our submission not, your Honour.  It is a question of what follows from the allowance of the appeal.  This indicates where we say the judgment of the court below should be maintained because of this.

McHUGH J:   It is like Whisprun.  It is exactly the same sort of ‑ ‑ ‑

MR JACKSON:   Yes.  It is a case where, in our submission, it goes to what should happen to the appeal if the appeal is allowed.  Our position is the matter would be remitted to the Full Court to determine.  Could I indicate in perhaps a little more detail what we say about it.  Your Honours will see in paragraph 36 of our written submissions that we say that the material might have been used for the purposes which are there set out.  May I deal specifically with the first three of them.  If one goes to page 367 in volume 3, your Honours will see in paragraphs 38 to 44 the contention advanced on our behalf – this is an affidavit in support of the matter before the -

Had the Respondent (Defendant) discovered the Procedure Manual and Hazardous Country Roads Study –

then your Honours will see the consequences it is said would have followed from that in paragraphs 38 to 44.

In relation to possible witnesses, could I refer your Honours to paragraphs 11 to 25 of the same affidavit at page 358.  Could I also refer your Honours to page 365, paragraphs 25 to 28.  If I could just elaborate upon that a little, affidavits had been obtained from two potential witnesses in relation to the material that had been disclosed.  One of them appears at page 393 from a Mr Klumpp.  May I say in relation to his evidence that whilst this affidavit was - Mr Klumpp was not available because of ill‑health to give evidence in the Full Court, and so his affidavit was not relied on as evidence that might be itself used by the Full Court because the Full Court had before it the application put in a number of ways, one being that it should itself deal with the matter, the others being that there should be a new trial.

However, the existence of Mr Klumpp’s affidavit showed that there was further evidence available in relation to the area and it also enclosed two documents which appeared separately elsewhere.  Your Honours will see, if I could go very briefly to his affidavit, paragraphs 1 to 4, the tasks that he was engaged on.  So far as his affidavit is concerned, if I could go particularly to paragraphs 24 and following, he spoke of:

The situation north of Six Mile Bore was not the same.

The area to the south had had some fencing.  You will see he discusses brumbies in paragraphs 25 to 29.  In paragraph 30:

the fencing which was erected in 1983 did not impact on the brumbies in the area –

He said in paragraph 31:

In other parts of the Mabel Downs Station you would rarely see brumbies.

Your Honours will see that he would have given evidence in paragraph 35 that they were losing about one per week and he thought Mr Riggs’ estimate was about right.

There were two letters that appear at pages 398 and 399 and also separately later where he speaks in the first one at page 398:

Because of the serious loss of stock . . . our company . . . has undertaken to fence both sides of the Great Northern Highway between the Mabel Down Homestead and the six mile bore.

That is heading up to the area presently in question.  You will see a diagram on the preceding page.  The six mile bore is I, the site of the accident is D and I think H is the grid.  Similarly, in the next letter, page 399:

my company has completed a cost conscious job in this serious Traffic Hazzard area.

Mr Parker, whose evidence is at page 400, referred to documents he had been provided with at paragraph 4 on page 401, but in particular to a traffic control procedures manual.  He referred in paragraph 7 to the view at page 404 that a:

“Straying Stock Unfenced Road” ought to have been erected at all locations –

Your Honours will see that there referred to.

If I could go to the procedure manual at page 410, this was a document that was in being at the time of the accident.  Your Honours will see at page 480 it refers to straying stock and unfenced highways and main roads warning signs.  The fifth line on the page:

It has been decided, therefore, that the interests of motorists and stock owners would best be served if signs were erected at appropriate points on main roads warning motorists that the roads are unfenced from there on, and that straying stock may be encountered on them.

Your Honours will see paragraphs 1.1 and 1.2 and the sign on the next page.

CALLINAN J:   Mr Jackson, I just noticed that there was a notice of contention in Whisprun. That is at 204 ALR 22. It really does look like this case in lots of ways.

MR JACKSON:   There was a contention about the notice of contention, as it were.

McHUGH J:   I think I put to you during argument that it was not appropriate, was it?  I am not sure ‑ ‑ ‑

MR JACKSON:   Your Honour, the argument, as I recall it, was that – I do not recall who it was now.  I do not mean by the Court but that some point was raised and there was an argument about an inconsistency between the rule and the terms of the relevant part of Order 70.  I do not think the issue was resolved in the end.

CALLINAN J:   Mr Jackson, you really are saying though, are you not, that the appeal to the Full Court should have been allowed but perhaps there should have been a different result.  It should have been allowed upon the basis that the evidence should have been received in the Full Court either for itself to reach a different result or in order to have the matter retried, to found an order for retrial.

MR JACKSON:   Your Honour, I suppose if that were so, it would really be a matter of – there are really three possibilities, your Honour.  One is notice of contention.  The notice of contention is required where one is seeking to maintain the order below but on a ground not dealt with or decided adversely by the court below.  The order that was made below was simply:  appeal allowed.  The order that we are seeking is one that if the appeal is allowed in this Court, we are not seeking to maintain in effect that order; we are seeking to maintain an order that allowed the appeal and gave a new trial, which would be different and would not fit, in our submission, in the notice of contention provisions.

CALLINAN J:   You want to maintain part of the order of the Full Court; that is:  appeal allowed.

MR JACKSON:   What we want to maintain is – sorry, I will start again.  The order that, in our contention, should be made by the Court – the issue only arises if the appellant’s appeal is allowed in this Court.  If that happens, the judgment of the Full Court would be set aside.  The question is – which would mean that the appeal to that – which would be set aside and our appeal to that court would have failed.  The question which arises, however, is:  what order should this Court make?  Because the Full Court has not dealt with part of the case, that aspect of the case as part of this Court’s order should be that the matter be remitted to that court.  That does not, in our submission, fall within either the requirement for special leave to cross-appeal or the notice of contention provisions.  It is an argument concerning the appropriate order to be made by this Court if the appeal succeeds.  Your Honours, it is in the third category of cases really.  It is not, at least presently, dealt with by the Court’s rules.

McHUGH J:   It does not seem to be caught by Order 70 rule 6.  You are not seeking to argue that there is some question of fact or law that should have been decided in your favour.

MR JACKSON:   We are saying it has not been decided, your Honour.  It has not been decided one way or the other and it is an issue remaining in the case that has yet to be resolved.

HAYNE J:   Which affects the nature of the consequential orders that should be made if the appeal otherwise were to be allowed.

MR JACKSON:   Yes, your Honour.

GUMMOW J:   Was there a ground of appeal in the Full Court based upon the delinquency really of the defendant in not giving adequate discovery?

MR JACKSON:   Yes, your Honour.  At page 340 in volume 2 there is a notice of appeal amended by order of the Court and the result of it is that you will see the relief sought is at the top of page 341 and then you will see the various forms of relief at paragraphs 4, 5 and 6 and the grounds at paragraph 8, page 345 and ground 9, including ground 10, and your Honours will see particularly ground 9 on page 346:

(Plaintiff) was deprived of the opportunity to conduct the original trial, adduce evidence and cross examine witnesses in a way which would have –

demonstrated they were wrong and so on.

HAYNE J:   Giving rise on this aspect of the argument to the engagement of one combination of relief - paragraph 3, plus paragraph 5 at page 341 is the way it works, is it not?  Ground 9 gives rise as one of the combinations, either 3 plus 5 or simply 5.

MR JACKSON:   Yes.  Your Honour, those are our submissions.

GLEESON CJ:   Thank you, Mr Jackson.

MR JACKSON:   I am sorry, your Honour, may I answer your Honour Justice Hayne’s question?  May I refer your Honour to page 134, lines 43 to page 135 about line 10 and also page 139, line 43 to about line 50.

HAYNE J:   Thank you.

GLEESON CJ:   Yes, Mr Walker.

MR WALKER:   May it please your Honours.  On the question of what ought to be done ‑ ‑ ‑

GUMMOW J:   Is there any explanation as to the inadequacy in discovery?

MR WALKER:   There was a deal of evidence by which the narrative of later finding out of these documents was brought to light by my client’s officers and disclosed to the other side.  I do not think I am able to say anything directly to your Honour other than that evidence explains how it is that the people who had conducted discovery originally did not come to either know of or understand where they might have found this other material.  Your Honours have seen that this similar material has quite some age on it.  Leave aside the question of discoverability, as such, assume that ‑ ‑ ‑

GUMMOW J:   You discovered it.

MR WALKER:   I say, assume that against my client, secure in the knowledge that acting no doubt with a sense of propriety it was in fact disclosed.  Nonetheless, I cannot say more than that there was a description of how it was that it had not been originally discovered, a description of the narrative by which it had later been found out and then promptly disclosed.  In volume 1 of the appeal book, starting at page 170 a rather lengthy narrative of all of that appears.

GUMMOW J:   Thank you.

MR WALKER:   What it does not reveal – and my friend, of course, has not said anything to suggest any differently – what it does not reveal is what I will call a deep, dark perfidy on the part of the defendant leading up to the trial of the action.

McHUGH J:   That is right, that is hardly relevant.  What it does reveal, though, is that the procedures manual declared that it was in the best interest of motorists and stock owners if signs were erected at appropriate highways warning motorists that the road is unfenced and straying stock may be encountered on that particular section of the road. 

MR WALKER:   Of course.

McHUGH J:   And where there were long sections of the road, repeater signs should be erected at 20 to 30 kilometre intervals.

MR WALKER:   Of course, your Honour.

McHUGH J:   It is pretty powerful evidence against you.

MR WALKER:   No, it is not powerful evidence at all in relation to the plaintiff’s case.  Not in relation to this plaintiff’s case.  This was most definitely not a case where he said what should have been done by way of a reasonable response to the well perceived danger was to place general signs, not specific to locations.  He chose to run a case which was entirely different in relation to the factual investigation it therefore required to be conducted forensically, and that was about a particular spot. 

McHUGH J:   But one of the things you put forward in the forefront of your argument on the special leave application, in a case that was basically concerned with fact, was how important this was from the Department’s point of view and the financial consequences of it – that was the implied statement.

MR WALKER:   Yes.

McHUGH J:   And yet here we find that the Department itself, years ago, was saying that it would be in the best interest of motorists to do this, and it was part of the procedures manual.

MR WALKER:   Your Honour, the science, psychology or ‑ ‑ ‑

McHUGH J:   If I had have known about this document, I very much doubt whether I would have been in favour of a grant of special leave.

MR WALKER:   This was a document known at the time of the special leave application, your Honour.

McHUGH J:   Well, nobody referred to it.

MR WALKER:   Well, with respect, for good reason.  In our submission, that is not a document that knocks out the defendant at all.  The notion that that document, for all time, prevents the Department from saying, “No, repeated signs are dangerous” ‑ ‑ ‑

McHUGH J:   No, but I am talking about the fact you have a grant of special leave on what is a pure question of fact.

MR WALKER:   Your Honour, it is a question of fact in each ‑ ‑ ‑

McHUGH J:   And only because of the public importance of the matter, from the point of view of the Department and the State.

MR WALKER:   There is great public importance that negligent actions, all of which, as to negligence, are questions of fact only, are not decided on the basis that one attributes to an accident site a spurious specialness where there is a well understood danger – not a danger that dispenses us from a duty of care, but which requires us to consider the kind of material which was available at trial, and which is not affected fatally by the material that came to light after trial. 

It simply is not the case that previous departmental expressions of opinion – not special to this road and not special to the 2 kilometres in question for the accident site – talked about repeated signs where there was the unchallenged and much more recent, up‑to‑date and supported by citation evidence concerning the danger of repeated signs.  In our submission, it was another piece of evidence appropriately to be considered, obviously, by those advising the plaintiff, and therefore forming the basis of their application to the Full Court.

My submission in relation to what, if our appeal were otherwise to succeed, should happen in this Court starts first with accepting, supporting what my learned friend has said about the inapplicability of a notice of contention procedure, but, for more abundant caution, to make it clear that if a notice of contention were considered by this Bench as necessary, then we hereby consent to it being done nunc pro tunc, so as to permit my friend to put the point.

McHUGH J:   I had a look at Whisprun (No 2), and the view we took in Whisprun (No 2) was that a notice of contention was not appropriate.

MR WALKER:   And that is no doubt why the same pair of counsel take the same position in this case, and we do repeat the position.  It was a bit different in Whisprun, because there had actually been more talk about it at the appeal in a way that required then the decision in (No 2).  However, not least to avoid that problem, may we make it crystal clear that my friend’s argument about it being appropriate to be remitted is an argument appropriately before this Court.  We have resisted for the reasons we have put in‑chief.  I do not have anything further to add on that basis.  None of this material – and my friend has taken you to what he obviously regards as justifying a remitter for further consideration of the Full Court – none of that material comes anywhere near singling out a 2 kilometre accident zone as having required a speed reduction zone.

What it does show is that which the evidence on both sides – the evidence which my predecessor in brief had been intent on cross‑examining from plaintiffs’ witnesses – showed, namely, there was real danger, remarkable danger, along the whole stretch of road.  On well established principles, on the consideration of further evidence – including evidence which, ex hypothesi, should have been but was not available for trial, on the application of well established principles – see Justice Murray’s approach to it – it would not have made a difference, and therefore it should not be allowed to alter the result.  That is all I have to say on that point.

My learned friend accepted, as it were, the challenge here to show the evidence which justified the conclusions expressed in the by now well‑known paragraphs 105, 106 and 107 in Justice Steytler’s reasons, pages 622 and 623 in volume 3 of the appeal book.  But Mr Riggs, whose evidence was summarised by Justice Steytler, simply does not make good that which is attributed to him either by Justice Steytler in paragraph 101 or by implication and adoption by my learned friend’s argument.

Mr Riggs gave evidence by an agreed written statement in‑chief and then a telephone conversation so‑called, in which both counsel asked him questions; not quite but almost in the way one would have done in a court in terms of the order of events.  Re‑examination was a little, as it were, informal.  If one goes to volume 2 of the appeal book to page 297, lines 13 to 24, there is the passage which showed that his statements about accidents were quite confined to those pieces of livestock which might be of value to his employer; cattle station only.  Nothing there about the 50, which comes up, of course, later. 

In relation to horses, page 299 lines 30 to 43 has him referring, when he is giving his evidence in writing for evidence in‑chief, to “the occasional stray horse” with some pains being made to say in what he called this “small paddock”, which included the accident site and the creek crossings, in this small paddock there had been cattle, there had been rodeo horses, but they had all been cleared off.  There was no stock in the paddock.  So you were left at this stage, in his evidence, with the occasional stray horse in the paddock; a paddock, small as it was, with boundaries, I think, in the order of six and two miles respectively. 

In relation to the water aspect of things, picking up on a comment by way of a question to my friend from your Honour Justice Hayne, it was, of course, the fact that, as was shown in his evidence in‑chief, page 299, line 45, to page 300, line 30, it was well understood that there was water to which stock might be attracted in far more than just these two creeks.  The “lookout”, which his evidence in‑chief referred to as being required – the lookout for animals was from Kununurra to Halls Creek, page 300, lines 35 to 41.

Again in‑chief, what he volunteered in relation to special places, to adapt his language, where there was stock in any number or any particular concentration of stock – and one could be forgiven for thinking he was only talking about cattle rather than horses – was Tickalara Bore and Rose’s Yard, page 300, line 44, to page 301, line 21.  This is quite contrary to the case, obviously, now being made by the plaintiff.  In relation to the combination of feed by the roadside, water and feral animals, he was then asked questions – see page 303, lines 55 to 61, page 304, line 47, to 305, line 23 – none of which enabled the accident site to be located. 

Indeed, when he was asked questions about so‑called particular spots, he said there were two of them, page 305, line 60, to page 306, line 7.  They were Tickalara and, I think, Rose’s Yard, a bore.  They did not include the accident site, and the question from what I will call the cross‑examining counsel on this telephone call then said:

And you could also expect to see them around the Rocky Creek junction area –

and accepted by him.  Scarcely an adoption of that is a particular spot at all, and a most insecure basis for the argument now put by the plaintiff.  Of course, the immediate follow‑up question – what appears to be re‑examination by Mr Pullin – the witness then said, well, that is just as you would expect to see all the way from Halls Creek to Kununurra. 

So that evidence really did not do, and cannot do, what my learned friend now requires of this aspect of the case.  As to the 50 a year, which my friend has referred to, when one actually looks at the way in which that evidence came out, page 307, line 47 through to page 308, line 9 – turning over the page is important – one again finds it is Halls Creek to Kununurra, which is characterised by the problem of cattle on the road.  The 50 a year was got out of him by being pressed, having first answered, “hard to say” how many and then his estimate of 50. 

CALLINAN J:   Mr Walker, he was travelling at 85 miles an hour, average.  He would not even have seen signs at that speed, I would not have thought.  He must have constantly and repeatedly paid no attention to any speed limits at all.

MR WALKER:   One is talking about the plaintiff.

CALLINAN J:   Yes.

MR WALKER:   Well, we adopt ‑ ‑ ‑

CALLINAN J:   And in a sense speed signs are totally irrelevant to this case.

MR WALKER:   Yes, in the sense your Honour has put to me, except for the fact that that is how the plaintiff made their case.

CALLINAN J:   I know.

MR WALKER:   And, in our submission, that is why it was properly dismissed by the trial judge.  In relation to Mr Hobbs, my learned friend having made something of the fact that no, it is not really immaterial, it was quite important.  In the passage commencing in volume 1 of the appeal book, pages 94 and following, it is of some significance that it is Tickalara Bore that he regarded of any special quality, and that is the one with the sign, page 108, lines 45 to 56.  In relation to water, he adopted what Mr Riggs had said – he was cross‑examined, in effect, from Mr Riggs’ proof – volume 1 of the appeal book, pages 112, line 22, to 113, line 22. 

Then when it came to the matter that one might be forgiven for thinking is another attempt by the plaintiff to reason about his speed, your Honours will remember my friend talked about the difference of the road being traversed at the time of the accident because of the two bridges, there is of course no direct evidence – alas, the passenger was asleep and the plaintiff cannot give evidence as to whether there had been any response, the so‑called adaptation to road conditions, by way of slowing down as one went through these bridges.  But what we do have is evidence from Mr Hobbs about grids and narrow bridges, at volume 1 of the appeal book, page 109, lines 13 to 34, which rather indicates that one could infer that this plaintiff was not exactly crawling through these one lane bridges with no oncoming traffic. 

CALLINAN J:   Well, he must have been doing over 100 miles an hour at other points if he was crawling through the bridges. 

MR WALKER:   He certainly was not crawling through.  There is absolutely no evidence of that at all.  There were, after all, other bridges and the like, where one could have asked the passenger if there had been them crossed at the time when he had been awake. 

Your Honour the Chief Justice asked about kangaroos.  If one goes to volume 2 of the appeal book at pages 190 to 191, here is some of the maligned statistical material for the period 1985 to 1992 in relation to animal accidents.  This is a version arranged by distance.  The distance from Perth is sometimes abbreviated as SLK (straight line kilometrage).  By putting together what one finds at 243 in volume 2 of the appeal book, one can assign about 2974 to the accident site.  That is because 2973.6 is Rocky Creek and you can work backwards from the nearest sign, using the map at 215. 

Having then established the accident start was about 2974, at page 190 what you see is that during those seven years of experience from reported incidents – and I will come back to that as an artefact – one has two reports, the closest being at 2972.84 and 2972.56.  So it may be a good 800 metres from the site of this, which may or may not be relevant – the plaintiff did not bother to explore that – in relation to animal attraction and the like.  In 1987, 1988, both of them are cattle hits, not horse hits.  This is not the feral animal that Dr Adams has – rather unspecific animal behaviour material.  These are cattle hits, and you had one of them property damage more than 1,000 and one of them property damage less than 1,000.  The property damage less than 1,000 could be reported, but did not require to be.  When it was less than 1,000 it was so marked in a statistic. 

As for kangaroos, what one finds is that in all of that list, there are three horses, three kangaroos, who collide with vehicles, 38 cattle and 13 indeterminate animals in relation to swerves.  That is not the stuff of showing, either in this site or on this stretch, that feral horses were something which required anything particularly special, and it matches, of course, with Mr Riggs’ “occasional horse”. 

Your Honour Justice Gummow asked about the audit system which is referred to in Mr Holdsworth’s evidence, with a little bit of the state of art history, in volume 1 of the appeal book, pages 133 to 134.  There is, of course, nothing in the plaintiff’s case by way of challenge or, if you like, pre‑trial consideration of Mr Holdsworth as to an alternative version of the best way in which to conduct so‑called audits or to survey or to find out what is happening on a road.  But one can, as a layman from a Bar table, say that it is a little remarkable to suggest that putting together the differently expressed, differently inspired anecdotal stories of locals – I am not quite sure how you would beat the doors of the neighbourhood to find them all out, but ‑ ‑ ‑

CALLINAN J:   None of them would be exaggerated in any way, either.

MR WALKER:   No, of course not, nor would they be coming from solipsistic points of view.  But compare that with the man whose job it is to drive along the highway, applying a more or less consistent view and assessment of matters, and, in our submission, it is not surprising the plaintiff did not run any such case.  Justice Steytler should not have taken that task on for himself. 

Mr Mahoney, at volume 1 of the appeal book, page 153, lines 7 to 21 and line 36, to page 154, line 55, also gives some material about the kangaroos and the like.  Again, none of it is specific to suggest that wild horses in the vicinity of the accident site was anything special at all. 

Your Honour Justice Gummow raised, in effect, what has to be seen very plainly and was volunteered by the Department’s officers and by their expert as being the sub‑class only of accidents – including the perhaps very informative near misses that you see with swerves – sub‑class only contained in the statistics.  Well, of course, it is only a sub‑class, not least because you cannot collect statistics of reported material which will include unreported material.  But there is nothing in the nature of this Court’s capacity to apply its own common sense to the matter.  There is nothing in the nature of this subject matter which would suggest that there is some bias going on which, as it were, differentially left out information locating this 2 kilometre stretch of the accident site as being especially dangerous, from a statistical approach that embraces its own weakness or characteristic, namely, you can only collect figures on what is reported. 

There is no question of those statistics either concealing or revealing anything special about this accident site.  The artefactual nature of a statistic, whereby it explicitly embraces the fact that it is an incomplete picture, is one which is relevantly unbiased in relation to whether it was showing anything about this accident site or not.  Put against that, the impressions and estimates and stories of the so‑called local witnesses, none of which, for the reasons I have put in‑chief, focused on the accident site in the way in which my learned friend’s address really assumed it should. 

Just a tiny point, the policeman Constable Thompson and his skid marks my learned friend referred to, that is seen to be part of this not quite open attempt to suggest that the driver was not going perhaps as is fast as the clear acceptance of matters show that he was.  The cross‑examination which culminates in volume 1 of the appeal book, page 34, lines 37 to 41, really demolished entirely any use of the policeman’s skid marks to show anything of assistance to the plaintiff’s case as it was then perceived to be.

To the matter that your Honour Justice McHugh raised with me about the earlier material, I think, your Honour, the material which is relevant includes, for example, in volume 3 the material at page 488, a draft procedure manual which talks about at 1.3, lines 55 and following ‑ ‑ ‑

McHUGH J:   Well, earlier at 480.

MR WALKER:   I was about to say, then one goes back I think in time to 480 – sorry, one goes back in the book, but on in time.  That was a draft 18 January 1982 and then there is an issue, 31 March 1982 at page 480, and there is a reference there to being at the owner’s expense and upon request.

McHUGH J:   But that is when it is going through the property.

MR WALKER:   That is scarcely a judgment about what the highway authority thinks is appropriate in terms of material, and then at page ‑ ‑ ‑

McHUGH J:   There are two, are there not?  There are two different situations, one is where an unfenced main road passes through a pastoral property.  There the cost of the sign is to be met by the owner, but in the case of the general warning sign, then the Department meets the cost.  That is at line 42 on page 480.

MR WALKER:   Yes, but it is not the costs point that I am trying to make.  What one finds at page 480, lines 30 through 55, is discrimination in relation to whether from the roads authority’s point of view you want them, and then whether you will supply them at owner’s cost if they want them.  But we are being judged as a highways authority as a defendant, our reasonable response and ‑ ‑ ‑

McHUGH J:   But what do you say about 480 at line 16:

It has been decided, therefore, that the interests of motorists and stock owners would best be served if signs were erected at appropriate points on main roads warning motorists that the roads are unfenced from there on, and that straying stock may be encountered on them.

MR WALKER:   That when one reads on, one finds out how the appropriateness of points is then ascertained.  That is what I say to it and:

STRAYING STOCK
UNFENCED ROAD –

lines 26 and following, refers in particular to, as it were, the initial warning to people when you are entering such a zone, and then line 35:

Repeater signs are not required.

In other words, if there was going to be something of a kind the plaintiff sued on, this is not going to assist them at all because the plaintiff did not sue for want of a general sign warning “You are now entering cattle station country”.  It did not see to that.

McHUGH J:   Well, that seems to be something of what is at 488 and it was not the way that Mr Parker, the expert engineer, read it.  He took the view that there was an obligation where as soon as you found unfenced ‑ ‑ ‑

MR WALKER:   Your Honour, we were not sued for failing to warn of what might be called the extremely obvious, namely, this is unfenced cattle station country.  At page 569, it is a very obscure number I am afraid, in the same volume, one finds as part of an answer to a Country Women’s Association representation some five years later, there is a view reached in the Department as to the inappropriateness of the kind of signs that your Honour Justice McHugh has been asking me about.  My point is that none of this material enabled any further light to be cast on the plaintiff’s case as pleaded, particularised and fought, and merely was further information about the fact that, given the danger, one would think about signage.

CALLINAN J:   Mr Walker, what was the case in this Court reversing Searle v Wallbank?  It does not matter much but different considerations might operate on the minds of landowners after that case as to their involvement in the erection of signs, the requirement of signs.

MR WALKER:   Yes.  Now there is also different considerations that have not played a role in this case between domestic stock and feral animals, but all this material, of course, had to do with stock.  May it please the Court.

GLEESON CJ:   Thank you, Mr Walker.  We will reserve our decision in this matter and will adjourn for a short time to reconstitute.

AT 12.25 PM THE MATTER WAS ADJOURNED