Coombes v Roads and Traffic Authority & Ors - [2006] NSWCA 229

NEW SOUTH WALES COURT OF APPEAL

CITATION: Coombes v Roads and Traffic Authority & Ors [2006] NSWCA 229

FILE NUMBER(S):
40744/05

HEARING DATE(S): 17 & 19 May 2006

DECISION DATE: 17/08/2006

PARTIES:
Anne Marie Coombes (Appellant)
Roads & Traffic Authority (First Respondent)
Bombala Council (Second Respondent)
Stephen John Frece (Third Respondent)

JUDGMENT OF: Beazley JA Ipp JA Basten JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 2269/02

LOWER COURT JUDICIAL OFFICER: Armitage DCJ

COUNSEL:
H J Marshall SC; E Beilby (Appellant)
D T Miller (First Respondent)
D Davies SC; N Polin (Second Respondent)
W Fitzsimmons; C Mulvey (Third Respondent)

SOLICITORS:
Beilby Poulden Costello (Appellant)
Moray & Agnew (First Respondent)
Phillips Fox (Second Respondent)
QBE Insurance Limited (Third Respondent)

CATCHWORDS:
NEGLIGENCE – causation – failure of trial judge to appreciate extent of claim – failure of trial judge to appreciate evidence presented – findings on causation wrong in law
CONTRIBUTORY NEGLIGENCE – appellant not contributorally negligent
JUDGMENT – findings on causation based on credit finding – credit finding misplaced – appellate intervention not warranted
JUDGMENT – failure to deal with aspect of appellant’s submission – no substantial wrong or miscarriage – appellate intervention not warranted

LEGISLATION CITED:
Roads Act 1993 (NSW) ss 7(4), 61(1)(a), 145(3), 207
Supreme Court Rules 1970 (NSW) Pt 51 r 23

DECISION:
1. Appeal allowed in part and dismissed in part
2. Set aside the verdict for the second respondent (Bombala Council)
3. Verdict and judgment for the appellant against the second respondent (Bombala Council), for damages in an amount to be assessed
4. As against the second respondent (Bombala Council), remit the matter to the District Court for rehearing, limited to damages
5. Otherwise confirm the verdicts in favour of the first and third respondents (the RTA and Frece)
6. In respect of the claim between the appellant and the second respondent (Bombala Council), order the second respondent to pay the appellant’s costs of the appeal and at first instance
7. Order the appellant to pay the third respondent’s (Frece’s) costs of the appeal
8. The appellant and the first and second respondents (the RTA and Bombala Council) are to file written submissions as to the costs of the first respondent at trial and on appeal.

JUDGMENT:

- 18 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40744/05
BEAZLEY JA
IPP JA
BASTEN JA
17 August 2006

ANNE MARIE COOMBES
v
ROADS AND TRAFFIC AUTHORITY & ORS

Headnote

Facts

The appellant was injured when her vehicle collided with a vehicle being driven by the third respondent. The accident took place on a two-way portion of the old Monaro Highway which was being used as a detour while the second respondent, under contract with the first respondent, was carrying out road works on the new section of the Highway. The appellant had been driving southbound along the Highway and was of the belief that the detour was one-way.

The appellant brought proceedings against each of the respondents alleging negligence…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] NSWCA 229
Decision Date: 17 August 2006

CaseChat Overview and Summary

The appeal concerned a negligence claim brought by the appellant against the Roads and Traffic Authority (RTA), Frece, and Bombala Council. The appellant alleged that the respondents' failure to properly signpost roadworks caused her to believe the road was one-way, leading to a collision with a truck. The trial judge found that the appellant had failed to prove causation, specifically that the absence of a barrier on the opposite side of the road caused her confusion. This finding was based on the judge's interpretation of statements the appellant had made to the police at the scene and to the Victorian Traffic Accident Commission (VTAC) nearly a year later.

The legal issues before the appellate court were whether the trial judge erred in his findings on causation, whether those findings were based on a misapprehension of the evidence, and whether the appellant was contributorily negligent. The appellant argued that the trial judge's findings on causation were wrong in law and that his credit finding, which underpinned the causation finding, was misplaced. The court was also required to consider whether appellate intervention was warranted and to determine the appropriate orders, including the allocation of costs.

The appellate court found that the trial judge's interpretation of the appellant's statements was flawed. Specifically, the court noted that the trial judge had failed to appreciate the full extent of the appellant's claim and the evidence presented, particularly the appellant's later, more detailed statement to the VTAC. This statement indicated that signs gave her the impression she was entering a one-way track and that she never saw signs indicating a two-way section. The court concluded that the trial judge's credit finding was misplaced and that his findings on causation were wrong in law. However, the court also considered whether a substantial wrong or miscarriage of justice had occurred, and whether appellate intervention was warranted.

The appeal was allowed in part and dismissed in part. The verdict for Bombala Council was set aside, and a verdict and judgment were entered for the appellant against Bombala Council for damages to be assessed. The matter was remitted to the District Court for a rehearing limited to damages against Bombala Council. The verdicts in favour of the RTA and Frece were confirmed. Bombala Council was ordered to pay the appellant's costs of the appeal and at first instance. The appellant was ordered to pay Frece's costs of the appeal. Written submissions were to be filed regarding the costs of the RTA at trial and on appeal.

Orders

Orders of the court

1. Appeal allowed in part and dismissed in part; 2. Set aside the verdict for the second respondent (Bombala Council); 3. Verdict and judgment for the appellant against the second respondent (Bombala Council), for damages in an amount to be assessed; 4. As against the second respondent (Bombala Council), remit the matter to the District Court for rehearing, limited to damages; 5. Otherwise confirm the verdicts in favour of the first and third respondents (the RTA and Frece); 6. In respect of the claim between the appellant and the second respondent (Bombala Council), order the second respondent to pay the appellant's costs of the appeal and at first instance; 7. Order the appellant to pay the third respondent's (Frece's) costs of the appeal; 8. The appellant and the first and second respondents (the RTA and Bombala Council) are to file written submissions as to the costs of the first respondent at trial and on appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

His Honour’s finding that the appellant had failed to prove that the absence of a barrier on the opposite side of the road caused her confusion was based upon his interpretation of two statements the appellant had given prior to trial about the circumstances of the accident. The first was her statement given to the police at the scene of the accident. The second was a statement made nearly a year later to the Victorian Traffic Accident Commission (the VTAC).The appellant’s evidenceStatement to police A police officer, Constable Woods, attended at the scene of the accident and took a statement from both the appellant and Frece. The statements were written by Constable Woods and signed by the appellant. In her statement the appellant said:"About 8pm on Sunday the 18th of April 1999, I was driving a hire car no. PLV-837 along a road. I was barely going 30, 35 we [sic] I first started on the track. I saw the arrows to come down and they were on both sides of the road so I naturally way [sic] it was a one-way thing with another bit for other traffic coming along. So I thought I could travel in the middle and I didn't see any cars until the truck came along and then it's suddenly came [sic] around the corner. I didn't see any lights or anything and then when I did see it I tried to get out of it's way. It came around fairly quickly and fairly wide and it came around and it made it hard for me to get out of the road and we hit." (Emphasis added) The appellant's sister, Rosemary, who was a passenger and aged 16 at the time, also gave a statement to Constable Woods in which she said:"We were driving along the road and I thought it was a one-way road the same [sic] because of the arrows. We were only travelling 30, 35 because I had a look and we were travelling in the middle of the road and we got to the bend and we didn't see the truck's lights because [sic] a metre before the lights and we went bang." Statement to the VTAC In a more detailed statement given to the VTAC almost 12 months later, the appellant set out the circumstances of the accident. After giving a general description of the scene of the accident and the speed at which she was travelling, the appellant said:"I had come across road work signs. The signs were worded 'Detour ahead'. Directly ahead, a barrier was across the road. This barrier would not allow me to continue straight ahead but to veer left onto what was like a side track. There were other signs that gave me the impression that I was entering a one-way track. I can't remember the wording or description of these signs. I never saw any signs that showed it was a two-way section of the road.On entering into this road work area there were no other cars around at this time. I saw another section of road that was running parallel to the road I was on and to my right. It gave me the impression that this road was for vehicles to travel the opposite direction to me." (Emphasis added) The appellant then gave a description of the actual collision.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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