Curtis v Harden Shire Council - [2014] NSWCA 314

Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Curtis v Harden Shire Council [2014] NSWCA 314
Hearing dates: 25 September 2013
Decision date: 10 September 2014
Before: Bathurst CJ at [1];
Beazley P at [58];
Basten JA at [230]
Decision:
In each of the matters CA 2012/241825 and
CA 2012/241832:
1. Appeal allowed.
2. Set aside the verdict for the respondent made by Fullerton J on 9 July 2012.
3. Remit the matter to the Common Law Division of the Supreme Court for the assessment of damages.
4. Order the respondent pay the appellant's costs of the liability hearing at first instance and of the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
TORTS - negligence - duty of care - breach of duty - whether Civil Liability Act 2002 (NSW), s 43A applied - whether placing certain traffic control signs and omitting other signage involved the exercise of a "special statutory power" - prohibition on any person installing prescribed traffic control devices combined with requirement for statutory authority to undertake such activity

WORDS AND PHRASES - "special statutory power" - Civil Liability Act 2002 (NSW), s 43A

TORTS - negligence - duty of care - breach of duty - standard of liability - Civil Liability Act 2002 (NSW), s 43A - motor vehicle accident - whether omission of signs on road was an act no authority could properly consider a reasonable exercise of its power - expert evidence - evidence of council officer - omission of "slippery road" sign despite direction in Traffic Control Plan - common sense

TORTS - negligence - causation - onus - balance of probabilities - whether primary judge erred in comparison of probabilities with possibilities
TORTS - negligence - causation - motor vehicle accident - whether absence of signage caused driver to lose control on first resurfaced section - balance of probabilities - no direct proof - whether circumstances give rise to a reasonable and definite inference - consideration of state of the road, circumstances of accident, expert evidence and competing hypotheses
Legislation Cited: Civil Liability Act 2002 (NSW), ss 5D, 5E, 5T, 43A
Compensation to Relatives Act 1897 (NSW)
Criminal Procedure Act 1986 (NSW), s 214
Evidence Act 1995 (NSW), s 140
Judiciary Act 1903 (Cth), ss 56, 64
Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999 (NSW), cl 131
Road Transport (Safety and Traffic Management) Act 1999 (NSW), ss 50, 51, 52; Pt 4, Div 1
Road Transport Act 2013 (NSW), ss 121, 122, 123
Roads Act 1993 (NSW), s 87
Supreme Court Act 1970 (NSW), s 75A;
Transport Administration Act 1988 (NSW), ss 45E, 52A; Pt 6
Uniform Civil Procedure Rules 2005 (NSW), Pt 31, r 23
Cases Cited: Allianz Australia Insurance Ltd v Roads and Traffic Authority of New South Wales [2010] NSWCA 328
Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419
Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223
Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1997] AC 191
Bellingen Shire Council v Colavon Pty Ltd [2012] NSWCA 34
Bennett v Minister of Community Welfare [1992] HCA 27; 176 CLR 408
Betts v Whittingslowe [1945] HCA 31; 71 CLR 637
Board of Fire Commissioners (NSW) v Ardouin [1961] HCA 71; 109 CLR 105
Bolam v Friern Hospital Management Committee (1957) 1 WLR 582
Bradshaw v McEwans Pty Ltd [1951] HCA 480; 217 ALR 1
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512
Chester v Afshar [2005] 1 AC 134
Commissioner of Main Roads v Jones [2005] HCA 27; 79 ALJR 1104
Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1
Curtis v Harden Shire Council [2012] NSWSC 757
Duma v Mader International Pty Ltd [2013] VSCA 23
Evans v Queanbeyan City Council [2011] NSWCA 230
Flounders v Millar [2007] NSWCA 238; 49 MVR 53
Fox v Percy [2003] HCA 22; 214 CLR 118
Fraser v Burswood Resort (Management) Ltd [2014] WASCA 130
FTZK v Minister for Immigration and Border Protection [2014] HCA 26
Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057
Hargrave v Goldman [1963] HCA 56; 110 CLR 40
Helton v Allen [1940] HCA 20; 63 CLR 691
Jamal v Secretary, Department of Health (1988) 14 NSWLR 252
John Curtis v Harden Shire Council [2012] NSWSC 84
Jones v Dunkel [1959] HCA 8, 101 CLR 298
Kable v State of New South Wales [2012] NSWCA 243; 293 ALR 719
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361
Latoudis v Casey [1990] HCA 59; 170 CLR 534
Luxton v Vines [1952] HCA 19; 85 CLR 352
Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638
March v Stramare (E & M H) Pty Ltd [1991] HCA 12; 171 CLR 506
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611
MM Constructions (Aust) Pty Limited and Anor v Port Stephens Council (No 3) [2010] NSWSC 243
Nader v Urban Transit Authority of NSW (1985) 2 NSWLR 501
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; 67 ALJR 170
Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246
Presland v Hunter Area Health Service [2003] NSWSC 754
Puntoriero v Water Administration Ministerial Corporation [1999] HCA 45; 199 CLR 575
Qantas Airways Ltd v Gama [2008] FCAFC 69
Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd [2009] NSWCA 263; 77 NSWLR 360
Roads and Traffic Authority v Royal [2008] HCA 19; 82 ALJR 870
Rogers v Whitaker [1992] HCA 58; 175 CLR 479)
Royal v Smurthwaite [2007] NSWCA 76; 47 MVR 401
Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014
Secretary of State for Education and Science v Tameside Municipal Borough Council (1977) AC 1014
Shoeys Pty Ltd v Allan [1991] Aust Torts Rep Â¶81-104
Sneddon v State of New South Wales [2012] NSWCA 351
Stovin v Wise [1996] AC 923
Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182
Sutherland Shire Council v Heyman [1985] HCA 41; 157 CLR 424
Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153
Vyner and Waldenburg Bros Ltd [1946] KB 50
Wallace v Kam [2013] HCA 19; 250 CLR 375
Warren v Coombes [1979] HCA 9; 142 CLR 531
Woolworths Ltd v Strong [2010] NSWCA 282
Texts Cited:
Australian Standard 1742 - 2002 edition, Manual of uniform traffic control devices, Part 3

M Aronson, "Government Liability in Negligence" (2008) 32 Melb U L Rev 44 at 79
Review of the Law of Negligence, Final Report (Commonwealth of Australia 2002) at par 10.26
Category: Principal judgment
Parties: John Curtis (Appellant)
John Curtis on behalf of himself and Jasmine Patterson, Jacob Patterson, Angus Curtis and Emily Curtis (Appellants)
Harden Shire Council (Respondent)
Representation:
Counsel:
H M Marshall SC / R Taylor (Appellants)
R Sheldon SC (Respondent)
Solicitors:
McCabe Partners (Appellants)
DLA Piper (Respondent)

File Number(s): 2012/241825; 2012/241832
Decision under appeal

Citation:

[2012] NSWSC 757

Date of Decision:

09 July 2012

Before:

Fullerton J

File Number(s):

2007/293512; 2007/293513

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 20 August 2004, the appellant's partner, Ms Paterson, was fatally injured when the car she was driving ran off the road and hit a tree. At the time of the accident, the respondent, Harden Shire Council, was carrying out roadworks on the section of road where the accident occurred.

The appellant brought proceedings for damages for psychiatric injury arising from Ms Paterson's death, and, on behalf of himself and her children, for damages under the Compensation to Relatives Act 1897 (NSW). The appellant claimed that the accident was caused by loose gravel on the road surface, and that the respondent was negligent in failing to provide adequate signage to indicate that the road had been resurfaced and that motorists should reduce their speed.

The primary judge, Fullerton J, dismissed both claims: [2012] NSWSC 757. Her Honour found that the Council had breached its duty of care to Ms Paterson in failing to erect adequate signage. However, her Honour was not persuaded that this breach was the cause of Ms Paterson's accident. Her Honour also considered that the appellant did not establish a breach of duty to the standard required by the Civil Liability Act 2002 (NSW), s 43A. This section states that a public authority exercising (or failing to exercise) a special statutory power, within the meaning of that section, will not be liable unless the act or omission was in the circumstances so unreasonable that no authority having the special statutory power could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power.

On appeal to this Court, the appellant claimed that:

(1) The primary judge erred in holding that the statutory defence provided by the Civil Liability Act, s 43A, applied to the circumstances of the case, and that the appellant had not established a breach of duty to the standard required by that section;

(2) The primary judge erred in requiring the appellant to establish causation on a standard of proof that was higher than the balance of probabilities;

(3) The primary judge erred in failing to find that the accident was caused by the Council's negligence: Civil Liability Act, s 5D.

The Court allowed the appeal.

In relation to (1):

(Basten JA, Bathurst CJ and Beazley P agreeing)

1. Section 43A is engaged as the failure to provide adequate signage on the road involved the exercise of a special statutory power - the signs were a "prescribed traffic control device" under the Road Transport (Safety and Traffic Management) Act 1999 (NSW) which can only be installed by a public authority: [245]-[256] (Basten JA)

Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd [2009] NSWCA 263; 77 NSWLR 360; Bellingen Shire Council v Colavon Pty Ltd [2012] NSWCA 34; 188 LGERA 169 distinguished.

(Bathurst CJ, Beazley P and Basten JA)

2. The standard of liability once s 43A is engaged requires determining whether no authority could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power. The emphasis is on what a public authority exercising that statutory power could properly consider reasonable - not what the court considers reasonable: [6] (Bathurst CJ); [224] (Beazley P); [277]-[279] (Basten JA)

(Bathurst CJ, Beazley P and Basten JA)

3. The expert evidence established that the failure to include signage indicating that the road was slippery and that motorists should reduce their speed was a decision no body with the special statutory powers in question could reasonably have made in these circumstances: [12] (Bathurst CJ); [225]-[228] (Beazley P); [309]-[311] (Basten JA)

In relation to (2):

(Bathurst CJ, Basten JA)

1. No appealable error is disclosed in how the trial judge approached the issue of causation: [21] (Bathurst CJ), [335] (Basten JA).

(Basten JA)

2. The comparison of probabilities with possibilities, the former satisfying the standard of proof while the latter do not, is entirely conventional and does not demonstrate a misunderstanding of the applicable burden of proof: [332]-[335]

Nguyen v Cosmopolitan Homes [2008] NSWCA 246; Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153 approved.

(Beazley P)

3. The standard of proof of facts in respect of which a party bears the onus of proof requires the fact finder to compare the probability of the event having occurred against the probability that it did not occur: [177]-[178]

Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638; Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336

(Beazley P, dissenting)

4. The trial judge erred in holding that, to establish causation, the appellant was required to prove that the probability that the accident was caused by the respondent's breach was greater than the possibility that it was caused by hypothetical alternatives unrelated to the respondent's breach. This posed a wrong comparison for determining whether a fact has been established on the balance of probabilities: [179]-[187]

Bradshaw v McEwans Pty Ltd [1951] HCA 480; 217 ALR 1; Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246 disapproved

In relation to (3):

(Beazley P)

1. A finding on causation can be made by the drawing of available inferences, provided that the relevant standard of proof is satisfied: [193]

Betts v Whittingslowe [1945] HCA 31; 71 CLR 637; Roads and Traffic Authority v Royal [2008] HCA 19; 82 ALJR 870

(Bathurst CJ, Beazley P)

2. Having regard to the evidence, the trial judge erred in finding that causation was not established on the balance of probabilities: [51]-[53] (Bathurst CJ), [216] (Beazley P)

(Basten JA, dissenting)

3. The trial judge was entitled on the evidence to find that causation had not been established: [362], [368]

Judgment

BATHURST CJ: I have had the advantage of reading the judgments of Beazley P and Basten JA in draft. Subject to what I have said below, I agree with the analysis of s 43A of the Civil Liability Act 2002 (NSW) (the Act) carried out by Basten JA and with his conclusions concerning its application in the present case.

Section 43A of the Act

There was no issue between the parties that the respondent owed a duty of care to road users in carrying out road maintenance work including the placement of appropriate warning signs. As Basten JA has indicated, in these circumstances s 43A of the Act sets the standard to be applied in fulfilment of that duty, where the issue in question is the exercise or non-exercise of special statutory powers.

Section 43A of the Act provides as follows:

"43A(1) This section applies to proceedings for civil liability to which this Part applies to the extent that the liability is based on a public or other authority's exercise of, or failure to exercise, a special statutory power conferred on the authority.

(2) A special statutory power is a power:

(a) that is conferred by or under a statute, and

(b) that is of a kind that persons generally are not authorised to exercise without specific statutory authority.

(3) For the purposes of any such proceedings, any act or omission involving an exercise of, or failure to exercise, a special statutory power does not give rise to civil liability unless the act or omission was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power.

(4) In the case of a special statutory power of a public or other authority to prohibit or regulate an activity, this section applies in addition to section 44."

I agree with Basten JA that for the reasons given by him the work being carried out involved the exercise of a special statutory power within the meaning of that expression in the Act.

As Basten JA has pointed out, the standard of care required by the section derives from the judgment of Lord Greene in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223. The principle enunciated by Lord Greene in that case has caused difficulty in the field of administrative law and these difficulties are compounded when it falls for consideration in the context of tort liability. In one sense if any authority, having the powers in question and acting properly, could reasonably consider that an act or omission was appropriate, it is difficult to see how any liability in negligence could arise with respect to that act or omission, even if the relevant standard was that contained in s 5B of the Act. However, it is evident that the legislature was intending to set a different and lower standard.

It does not, in these circumstances, seem to be necessary to paraphrase the section by reference to cases derived from the administrative law area, although the manner in which courts have approached the question in these cases may inform consideration of the application of s 43A of the Act. It is sufficient to say that what is important is that the standard is set by what a holder of the statutory power could properly consider reasonable. The Court must look at the matter having regard to what the authority in question could properly consider a reasonable exercise of the power. If the authority could properly consider what was done was a reasonable exercise of the power then there will be no liability. This is so even if the Court considering the matter independently of the section would have concluded there was a failure to fulfil the duty. (Cf in an entirely different context Bolam v Friern Hospital Management Committee (1957) 1 WLR 582 and Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479).

In the present case, in my opinion, the appellant has satisfied the onus that the standard laid down was not met. The Traffic Control at Work Sites manual (the manual) prepared by the Roads and Traffic Authority (RTA) from which the Traffic Control Plan (TCP) was derived, stated that the manual must be used on all RTA road sites by all local bodies undertaking work on behalf of the RTA. The manual sets out a number of TCPs. It states that the selection of the appropriate TCP must only be undertaken by qualified persons. Mr Stephenson, who prepared the TCP for the site in question, was so qualified.

Section 4 of the manual deals with standard TCPs. Clause 4.4 permits minor modifications if a standard TCP does not exist for the work being planned. Clause 4.4 states that the modification power is not to be used to design new TCPs. The modifications suggested in cl 4.4 although not said to be exhaustive, do not include the removal of signs.

Mr Stephenson selected TCP 56. Subject to one matter, this selection was entirely appropriate. TCP 56 was designed for roads with speed limits of 60 km per hour or less. Kingsvale Road, where the accident occurred, had a speed limit of 100 km per hour. TCP 56 directed use of TCP 353 when the speed limit exceeded 60 km per hour and the average daily traffic exceeded 5,000 vehicles. Kingsvale Road did not carry this volume of traffic. There was, therefore, some discretion left in the designer to determine whether speed warning signs should be erected or a reduced speed limit imposed.

Critically, TCP 56 contained a "slippery road" sign with a direction it was to remain in place until loose aggregate was removed. The reason for this direction was clear from the evidence of Mr Coffey. Beazley P has summarised his evidence and I will not repeat it. However, the importance of a "slippery road" sign is self-evident from his comment that driving on loose gravel is like walking on marbles.

Beazley P has also summarised the expert evidence. Ultimately each expert agreed that a "slippery road" sign was necessary with either a "reduce speed" sign or a lower speed limit. Mr Stephenson was not called to give evidence of why he modified TCP 56 to exclude the "slippery road" sign or a "reduce speed" sign, a decision which his superior, Mr Coffey, said made no sense.

Having regard to this evidence, particularly the mandate in the manual and the statement by Mr Coffey that the decision to omit the signs made no sense, I am of the view that a failure to provide a speed warning sign and a "slippery road" sign was a decision nobody having the special statutory powers in question could reasonably have made in the circumstances.

Causation

Beazley P and Basten JA have set out the evidence concerning this issue in detail and I will only repeat that evidence insofar as is necessary for a proper understanding of this judgment.

Sections 5D and 5E of the Act, so far as relevant, provide as follows:

"5D(1) A determination that negligence caused particular harm comprises the following elements:

(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and

(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability).

(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

...

5E In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation."

The determination of factual causation involves nothing more than the application of the "but for test" for causation: Strong v Woolworths Limited [2012] HCA 5; (2012) 246 CLR 182 at [18] and Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 at [16]. In the present case this involves the determination of whether, but for the failure to erect a "slippery road" sign and either impose a lower speed limit or a "reduce speed" sign, the accident which resulted in the death of Ms Patterson (the deceased) would not have occurred.

The appellant's case was that the absence of such signage caused the deceased to drive onto the first resurfaced section of the road at or slightly under the speed limit of 100 km per hour, lose control of her vehicle on the loose gravel on the resurfaced section and ultimately collide with a tree resulting in her death. There was no issue that if this was proved on the balance of probabilities, factual causation was established. Nor was it contended, subject to the matters raised under s 43A of the Act to which I have referred earlier, that it was inappropriate for the respondent's liability to extend to the accused in those circumstances.

It is convenient to deal with the issues raised by reference to three subheadings.

(a) Did the primary judge apply the correct standard of proof on the question of causation?

As Beazley P has pointed out, the appellant was required to prove factual causation on the balance of probabilities. So much is clear from s 5E of the Act. In the passage from Bradshaw v McEwans Pty Ltd [1951] HCA 480; (1951) 217 ALR 1, cited by Beazley P in her judgment (par [180]), the High Court emphasised that where direct proof is not available it is enough that the circumstances give rise to a reasonable and definite inference. However, the evidence must do more than give rise to conflicting inferences of equal degree of probability so that the choice is a matter of conjecture: See also Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 at 358 and Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 at 304-305.

In the present case it was incumbent on the appellant to prove that the failure to erect the necessary signs was a necessary condition of the death of the deceased: Strong v Woolworths Limited supra at [44].

Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362 stated that reasonable satisfaction was not a state of mind attained or established independently of the nature and consequence of the fact to be proved. However, his Honour emphasised at 361-363 that what is enough is that the affirmant of the allegation is made out to the reasonable satisfaction of the tribunal, which may be based upon a preponderance of probability.

The primary judge stated (Curtis v Harden Shire Council [2012] NSWSC 757 (the primary judgment) at [109]) that what was required was a finding that the probability that control was lost in the first section of the resurfaced roadwork, due to encountering gravel under speed was greater, than the possibility that the deceased veered progressively onto the incorrect side of the road for reasons unrelated with the condition of the road in combination with the speed at which she was travelling. However, the primary judge immediately thereafter made reference to Flounders v Millar [2007] NSWCA 238; (2007) 49 MVR 53 at [35], where Ipp JA set out the standard of proof in the same manner as in Bradshaw v McEwans Pty Ltd supra and the other cases to which I have referred. In that context her ultimate conclusion (primary judgment at [113]) that she was not persuaded that but for the failure to provide for and position appropriate signage the accident would not have occurred, was not based on any misapplication of the appropriate onus.

(b) Legal principles on causation

As the plurality pointed out in Strong v Woolworths Limited supra, a necessary condition is a condition that must be present for the occurrence of the harm, although there may be more than one set of conditions necessary. Further, the onus can be discharged by a consideration of the competing probabilities.

Unlike Beazley P I do not derive any assistance from what was said by Dixon J in Betts v Whittingslowe [1945] HCA 31; (1945) 71 CLR 637. Dixon J in that case was dealing with a claim for breach of statutory duty. He stated, in the passage cited by Beazley P at par [193], that a breach complained of, together with an accident of a kind that might thereby be occurred, is enough to justify an inference, in the absence of "sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach of statutory duty" (emphasis added).

Roads and Traffic Authority v Royal [2008] HCA 19; (2008) 82 ALJR 870 involved a claim against the appellant for the incorrect positioning of the stop sign which it was said led to an accident at a "T" intersection. Gummow, Hayne and Heydon JJ in a joint judgment rejected reliance on Betts v Whittingslowe supra. They referred to the fact that after the passage in the judgment of Dixon J cited by Beazley P, his Honour said that in the case before him "the facts warrant no other inference inconsistent with liability on the part of the defendant". They pointed out at [31] that in the case before them there were other inferences available. Kiefel J at [139] referred to the same passage in the judgment of Dixon J and emphasised at [143] that it remained a requirement of the law that a plaintiff prove a defendant's conduct materially caused the injury. So much is made clear by s 5E of the Act.

In Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361, French CJ and Gummow J at [50] referred with approval to the remarks of Kiefel J in Roads and Traffic Authority v Royal supra. They pointed out that what was contended for by the appellant in the case before them was not the only inference that could be made. Although their Honours were in dissent as to the result, the majority placed no reliance on Betts v Whittingslowe supra.

The same approach to the dictum of Dixon J has been taken in relatively recent decisions of intermediate appellate courts: Duma v Mader International Pty Ltd [2013] VSCA 23 at [62]-[64] per Tate JA, Davies AJA agreeing and Fraser v Burswood Resort (Management) Ltd [2014] WASCA 130 at [144] per Martin CJ, McLure P and Newnes JA agreeing.

As is apparent from the evidence summarised by each of Beazley P and Basten JA, there are logical inferences contrary to those contended for by the appellant. It was for the appellant to prove on the balance of probabilities that the inference contended for should be drawn. It cannot be inferred from the nature of the breach.

(c) Was causation established in the present case?

Although, as I have indicated, I do not consider the primary judge applied the wrong test in concluding that the appellant had not discharged the onus of proof to establish causation, it remains necessary to determine whether the onus was in fact discharged. The appeal, by virtue of s 75A of the Supreme Court Act 1970 (NSW) is an appeal by way of rehearing and the Court, subject to the natural limitations imposed on an appellate court, must conduct its own review of the evidence. Further if, making proper allowance for the advantage of the trial judge, the Court concludes an error has been shown, it is authorised and obliged to discharge its appellate duties under the statute: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [22]-[25] and Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 551.

In considering whether the necessary connection can be inferred from the evidence, there are a number of matters which I consider to be of relevance. First, the state of the road. Second, what facts are known or can be inferred as to the circumstances of the accident. Third, the expert evidence of Mr Johnston and Mr Stuart-Smith.

(i) The state of the road

Senior Constable Hando described the portion of the road where the accident occurred in his statement as follows:

"7. The section of the roadway where the collision occurred runs generally in a north/south direction. The Kingsvale Road has a posted speed limit of 100KM/H. The roadway consisted of a sealed bitumen surface with one northbound lane and one south bound lane separated by double unbroken lines. When travelling in the southbound lane approaching the scene there was a slight uphill grade with a moderate right hand bend followed by a slight downhill grade into a straight section. The section of roadway where the collision occurred was under repair, with sections of recently laid road surface."

Senior Constable Hando also observed the following:

"There was recently laid road surface along two sections of roadway prior to the collision scene. There was loose gravel on the surface, which covered the entire width of the roadway.

The first section was on the bend. This section was 86.9 metres in length and 7.1 metres in width. There were no visible marks on the road surface.

Following this section was a sealed bitumen section 32 metres in length.

The second section was along the straight and was 32 metres in length and 7.3 metres in width. There were faint marks on the road surface in the northbound lane.

Following this section was a sealed section of bitumen. This section was 53.2 metres in length. There was a set of tyre skid marks beginning in the southbound lane, which continued into the northbound lane leading towards the vehicle.

The road surface was dry."

A diagram, prepared by Senior Constable Ryan, showed the first resealed portion commencing as the road eased out of a right hand curve. The road was straight from approximately halfway through the first resealed section until the second resealed section. Senior Constable Ryan estimated the distance between the two resealed sections to be 40 metres, although Senior Constable Hando estimated it at 32 metres. The experts retained by the parties in a joint report expressed the view that the first resealed surface extended for 89 metres, the distance between it and the second resealed surface was 38-39 metres, the second resealed surface extended for 31 metres, whilst there was a gap of 54 metres from that area to the point where the deceased's car collided with a tree.

It is important to note that Senior Constable Hando stated that there was loose gravel on the surface of each of the resealed sections along the entire width of the roadway. It was in that context that Mr Coffey gave the evidence referred to in pars [91] and [92] of the judgment of Beazley P. He described the effect of driving on the road with loose gravel on the top as walking on marbles, this being the reason speed warning signs were necessary.

Mr Johnston's opinion was the same. In the portion of his evidence set out in par [298] of the judgment of Basten JA, he expressed the view that a speed limit of 60 km per hour should have been imposed and a "slippery road" sign should have been erected, as the road was "recently sealed with reduced traction".

Mr Stuart-Smith in the passage of his evidence referred to in par [299] of the judgment of Basten JA, stated that it was better to have a "reduce speed" sign because a driver could lose control on loose gravel. He also agreed that speed was an obvious additional risk where there is a risk of loss of traction by reason of surface gravel.

(ii) The circumstances of the accident

Senior Constable Brand who attended the scene of the accident noted the accident occurred at about 11.28 am. His notes reported that the deceased was 42 years of age at the time of the accident and that a blood alcohol test was negative. In a statement subsequently prepared, he said the day in question was "a clear sunny day". He also recorded the following observations:

"9. I noticed that there was skid marks apparent on the road surface. These skid marks were evident on the section of road immediately preceding the accident site and showed several things. Firstly that the vehicle had been travelling in a Southerly direction on the incorrect side of the road and the deceased applied the vehicles brakes whilst doing so. Secondly that the vehicle returned to the correct side of the road briefly - still under brakes. Thirdly that the deceased over corrected and swerved back across the incorrect side of the road, the vehicle turning 180 degrees as this occurred. Finally, that the vehicle travelled a short distance before impacting with a tree."

Mr Mark Ellis, the Director of Works of the respondent, attended the scene of the accident at approximately 12.15 pm on the day in question, some 45 minutes after it had occurred. He made an incident report which contained the following remarks:

"At the time of the accident [the deceased] was driving in a southerly direction from Kingsvale and had just been around through a short winding section of hilly terrain known as 'Stone Rises' and was just rounding a slight curve in the road when it appears she has crossed to the wrong side of the road and then overcorrected before losing control of the vehicle and it skidding sideways into the tree. Impact being the passenger side door. At the time of the accident it was a bright day with little cloud cover.

It is also apparent that as the vehicle rounded the curve in the road it was at the start of recent Council Roadworks which involved resurfacing of the road pavement (undertaken on Thursday 19th Aug). As the vehicle traveled [sic] around the bend commencing on then [sic] correct side of the road it appears that at the end of the 1st sealed patch the vehicle was on the wrong side of the road. This being a distance of 90.0 metres. The vehicle has then traveled 38 metres on the wrong side before hitting a second sealed patch of 31.7 metres [in] length.

Towards the end of this second patch is were [sic] the vehicle appears to have commenced sliding back across the road (to [the] correct side) for 33.3 metres before completely sliding sideways back (another 54.6 m) to the wrong side of the road, across the road shoulder and hitting the tree some 3.0 metres from the edge of the road.

On inspecting the roadworks it is not evident that the vehicle lost control after hitting the first patch or even the second patch. There is no discernible skid marks through the sealing aggregate on the first patch, only some light marks were [sic] it appears the vehicle attempted to correct its path."

Mr Mark Crisp, the Director of Technical Services of the respondent, attended the site with Mr Ellis. He took photographs of the site. Photograph No 19 (P 19) is of particular importance as it shows a tyre mark on the first section of the resealed surface running from the correct to the incorrect side of the road.

Mr Crisp also drew a diagram based on his observations. As Beazley P has pointed out, it showed that at the point of entry onto the resealed surface the vehicle was on the correct side of the road. It showed the vehicle commencing to veer to the incorrect side. It then showed tyre marks on the second resurfaced section, again on the incorrect side of the road, which then travelled onto the correct side of the road and then almost immediately had veered to the right and off the road into the tree.

In the joint report the experts expressed the following view as to the path taken by the vehicle:

"Messrs Johnston and Stuart-Smith generally agree that:

The vehicle appears to have deviated from the left side of the road within the first patch to the right side of the road at the end of the second patch.

The evidence for this is a possible/probable (RSS/GJ) tyre mark shown in some diagrams and possibly evident in a Council photograph.

On reaching the right side of the road, (towards the end of the second patch about 60 m before the POI) the vehicle deviated to the left. The evidence for this is the observation by Police and others of a faint tyre mark on the extreme right side of the road towards the end of the second patch. The mark is possibly evident in a Police photograph.

The vehicle then passed on to an old section of pavement and crossed substantially back onto the left side of the road before deviating sharply to its right. The vehicle commenced to rotate clockwise and passed back onto the right side of the road and collided in a lateral impact (left side leading) with a tree located a metre or two off the right side of the road. The tree was located approximately level with the start of a new resealed surface. The evidence for this is the presence of diverging tyre marks shown in Police photographs, commencing about 45 m before the POI, as well as vehicle damage.

Opposing Views

Mr Stuart-Smith is of the view that there is no clear evidence of the vehicle's movement from the first patch to the point where it reached the right side of the road. The possible initial tyre mark was not recorded or photographed by Police and the photograph of the possible mark is not clear.

Mr Johnston agrees that the photographic evidence is not definitive but does tend to support the view of the Council Officer who drew the contemporaneous diagrams showing what was understood to be his observation of assumed tyre tracks."

In the joint report Mr Stuart-Smith was prepared to accept only that it was possible that P 19 showed a tyre mark on the first resealed section veering to the wrong side of the road. However, in cross-examination he conceded that the marks in P 19 were consistent with the observations of Mr Ellis.

(iii) The evidence as to when and for what reason the deceased lost control of her vehicle

The experts were also asked to give their opinion of the earliest evidence of the deceased losing control of her vehicle. The following views were expressed in the joint report:

"Mr Johnston's View

Mr Johnston is of the view that the driver has commenced to lose control around the start of the first section of reseal within the right horizontal curve. The evidence of this is the contemporaneous diagrams by a Council officer, the possible indication of a tyre mark within the Council photographs and the known passage of the vehicle from the left side of the road to the right side of the road commencing within a right horizontal curve consistent with the Council officers drawing of the initial tyre marks.

Mr Stuart-Smith's View

The earliest clear evidence of loss of control is at the start of the tyre marks located about 45 m before the POI. At this point the vehicle was commencing a clockwise yaw. However, it is probable that the vehicle was out of control about 10 to 20 m earlier at the location of a possible tyre mark at the end of the second patch. It was likely that the vehicle was over-steered to the left at this point.

There is no evidence of loss of control at the curve overlapping the first patch, as suggested by Mr Johnston. The factors identified by Mr Johnston are not evidence.

Had the vehicle been out of control giving rise to an oversteer to the right (as would be necessary for it to continue towards the POI), evidence, such as tyre marks and windrows on the loose material of the first patch would have been present. No such evidence was recorded by Police or photographed. The long distance of over 100 m from the curve to the point on the right side of the road where the vehicle deviated left is generally inconsistent with it having been out of control.

Mr Johnston's suggestion that the deceased lost control at the curve on the first patch is not supported by evidence where evidence would have been expected."

A further question was asked, "[w]hat does the evidence say was the most likely cause of the loss of control". The experts gave the following report:

"Mr Johnston's View

Mr Johnston is of the view that initial loss of control was probably due to a partial loss of traction upon transitioning into the first section of reseal. This has caused increased clockwise slip angle and a resulting deviation of the vehicle path to the right.

The evidence for this loss of control has been discussed above.

Mr Stuart-Smith's Views

There is no evidence of loss of control at the curve overlapping the first patch.

Had the vehicle lost control in loose gravel, evidence, such as tyre marks and windrows on the loose material of the first patch would have been present. No such evidence was recorded by Police or can be seen in photographs.

Mr Johnston's suggestion that the vehicle lost control as a result of rounding the curve in loose gravel is not supported by evidence where evidence would have been expected.

An oversteer to the left at the faint tyre mark was the likely cause of loss of control when the vehicle approached the right side of the road about 60 m before the POI. Alternatively, an oversteer to the right less than 45 m before the POI, as evidenced by the diverging tyre marks leading to the POI was the cause of loss of control."

Mr Stuart-Smith elaborated on his views in his evidence at the trial. The experts gave their evidence jointly and the following exchange sets out his conclusion. After agreeing that what appeared in P 19 was consistent with the observations of Mr Ellis, the following exchange occurred:

"MARSHALL: - would you agree that the marks that are shown, the tyre marks that are shown of a vehicle, crossing to its incorrect side of the road, if it be Ms Paterson's vehicle, cause lateral displacement of stones?

WITNESS STUART-SMITH: No, no, and - or the marks could be a vehicle going the other way, but assuming it's Ms Paterson's vehicle coming this way, they certainly don't show any evidence of - I'm sorry, they don't show any evidence of lateral displacement of stones in - to one particular side. There could be a lateral displacement of stones either side.

MARSHALL: Either side?

WITNESS STUART-SMITH: Yes, I'm sorry, yes. I would agree that's possible, yes.

MARSHALL: And that would be consistent with a vehicle attempting to get on its correct side of the road, having, for some reason, gone on to its incorrect side?

WITNESS STUART-SMITH: No, no, the reason is that a vehicle in Ms Paterson's - assuming Ms Paterson had lost control and was making that mark, she would have been in what we call a clockwise yaw. The rear would have started to move, swing to the left, and - and there would be a displacement of material towards the outside.

So looking at the photograph, that's on the right-hand side of the photograph, in other words, Ms Paterson's left as she's coming towards us, so one would have expected some windrow or some build up of material, or some - some shading of the tyre mark to indicate some lateral displacement. But not only that. A vehicle doesn't just sideslip over - just sideslip and then continue just travelling in that same sort of general direction. Once it starts to sideslip, it continues to rotate until the steering has twisted in the other direction, in which case, you either correct - control is regained or else you end up with an oversteer, and the mark is too long.

It's - the photograph is like 80 metres from - it's 80 metres from the police car to the end of that tyre, the end of that patch. There's 150 metres from the police car to where the plaintiff's vehicle most likely was on the incorrect side of the road at the end of the second patch. So what we would have to assume for that to have been made by her car out of control, is that she sideslipped - been sideslipping for about 150 metres without her car seriously rotating.

It's not really feasible for that to occur over such a long distance without other marks having started to occur, without the car sort of turning around to a greater extent. 150 metres is just too long for some - some little bit of sideslip to have been caused at an originating point, and then to have continued at the speed that she was travelling.

MARSHALL: Do you agree with that, Mr Johnston?

WITNESS JOHNSTON: No, I don't agree with the last point. I agree that she wasn't in complete loss of control when the car started rotating at the start and continued to rotate at 150 metres. There was a loss of traction that has caused her vehicle to orient and travel the incorrect side of the roadway. She has then made a series of manoeuvres that she has presumably tried to correct the vehicle, and stops leaving marks because it's on the wrong side of the road. And then there's a second patch, and then has a catastrophic loss at the end of that."

Subsequently the experts were asked the following questions:

"MARSHALL: Is, can I then say on the balance of probabilities, what is available to this Court to which I have just referred you, consistent with a loss of some control, at or near the beginning of the first patch, a conservative correction through the first patch into the second, and a subsequent catastrophic loss of control?

WITNESS JOHNSTON: Yes

MARSHALL: In fairness, I should ask the same question to Mr Stuart-Smith. Do you accept on the balance of probabilities that scenario?

WITNESS STUART-SMITH: No, I don't accept that on the balance of probabilities at all.

HER HONOUR: It's a possible scenario.

WITNESS STUART-SMITH: A possible scenario.

HER HONOUR: Is there a more probable scenario in your view?

WITNESS STUART-SMITH: I believe so, yes, your Honour.

HER HONOUR: What's that?

WITNESS STUART-SMITH: A more probable scenario is that the driver deviated for an unknown reason. The reasons for that, are that it's only a balance of probabilities in my view, in that we have the statement by Mr Ellis where he specifically said he couldn't see any, what he called skid marks in there, and had - I think loss of control, in this case, we should only really be concerned with loss of control as a result of traction, and that's all I - what we're dealing with here. But that's all that matters.

If she lost control for some other reason, then it's not the loose material that caused her to lose control, but there's no evidence of loss of control from traction where evidence would be expected in that material either through Mr Ellis's statement or from observations by police officers. There are no photographs of that area there, and so that's the actual lack of evidence to support that theory.

We then come and look at some objective sort of factors, and that is, that even if you use the minimum likely friction, reduced friction, as proposed by Mr Johnston, it was traversable at a very high speed, admittedly, with constant steering and without braking at those high speeds, and Mr Johnston made that point, and I accept those qualifications.

But nonetheless, even if you then apply various other actions which may well have reduced - had the effect of reducing the friction such as braking, such as transitioning from one side to another, it's still traversable, should be comfortably traversable at 100 kilometres per hour without loss of traction, and so given that on one hand, the absence of objective evidence, of loss of traction, and on the other hand, the theoretical calculations that suggest that it was traversable, comfortably traversable at high speed - when I say that high speed, I'm talking 100 kilometres per hour - I say those two elements add up to a balance of probabilities that she lost, she deviated for a reason other than loss of traction.

HER HONOUR: What if I added this into your assessment, that despite the theoretical possibility of safe passage through the curve at 100 kilometres an hour, the loss of traction under that speed on this gravel, was the extent of this gravel, was such as to render that theoretical possibility far less likely, such that there was in fact a loss of traction or it was not safely - the curve was not safely traversed at that speed - would that alter your view as to the probabilities of control having been compromised, leading to the driver not maintaining her orientation on the correct side of the road?

WITNESS STUART-SMITH: Well, I that that would - that obviously, that reduces the degree to which one could say that what my previous opinion - there is another factor too, and I accept that once a driver has lost control, they can do a number of things, but the fact that if we assume this tyre mark to be hers, that she did travel in this relatively straight line for 150 metres, is, on the far side of likelihood for a driver who has just lost control, it's reasonably uncommon for a driver to freeze or just to do that for that length of time, so whilst I couldn't say that a driver wouldn't do that, it adds weight to the likelihood that it wasn't a loss of traction that caused her to deviate."

Mr Johnston pointed to the fact that the deceased's vehicle veered onto the incorrect side of the road contemporaneously with entering onto the unsealed surface. He then gave the following evidence:

"SHELDON: But if that is the path the vehicle took later on, wouldn't you have to assume the regaining by the driver of complete control of the vehicle in the absence of marks, indicating that the vehicle was in a yaw, as to came [sic] down the incorrect side of the road?

WITNESS JOHNSTON: Certainly not complete control, but I would expect the vehicle was under control and largely corrected. So, it was now heading in the wrong direction, but was no longer continuing to rotate.

SHELDON: Would you expect there to be marks on the road showing the loss of control that precipitated that manoeuvre?

WITNESS JOHNSTON: Provided the area was not completely contaminated by material, yes. I would expect somewhere up near where the police car is, a trained eye would see, or find, that evidence, potentially.

HER HONOUR: A trained eye would find what?

WITNESS JOHNSTON: A trained eye would find some evidence of that type of loss of control. By that I don't mean general duties police officers or crime scene officers.

HER HONOUR: When you say that loss of control - -

WITNESS JOHNSTON: A clock-wise rotation of the vehicles due to traction. I suggest if Mr Stuart-Smith or I, if we investigated, might find it.

SHELDON: When you say might find it, that is in the realms of speculation - -

HER HONOUR: No, would find it; find evidence of that loss of control, that is, a clock-wise rotation of the vehicle due to traction on the road surface?

SHELDON: When you say that Mr Stuart-Smith and you might pick it up - you did say 'might' didn't you?

WITNESS JOHNSTON: I said that subject to a lot of contamination being up there. So, if we got there fresh, and no one else had been on the roadway and it was clear, I would be fairly confident we would pick it up, when I have been at scenes of crashes."

It was this evidence that the primary judge criticised as circular. Her Honour made the following remarks:

"[107] It is clear from this evidence that Mr Johnston's opinion was also informed by his belief (or expectation) that physical evidence on the road surface in the first section where he believed traction was lost would likely have been discernable to 'a trained eye', and that neither officers Brand and Hando nor Messrs Ellis and Curtis were sufficiently qualified to discern what Mr Johnston claimed he and Mr Stuart-Smith would have been able to discern and indentify as a tyre mark of a vehicle in a clockwise yaw.

[108] Mr Johnston's assumption that the tyre marks were present but not seen could only support a finding that they were probably there if there were some evidence that the marks were there to be seen but overlooked. The obvious flaw in his reasoning is that if there were evidence of a yaw mark or sideslip proximate to where Ms Paterson entered the first resurfaced section (whether or not she regained control of the vehicle thereafter) there would be no need to proceed on the assumption that it was overlooked. To the extent that Mr Johnston's opinion that the probable cause of the accident was a loss of control in the first resurfaced section due to a loss of traction is based on the assumption that there either was physical evidence which was missed by all observers, or there might have been evidence that was missed by those people, the reasoning suffers from circularity in the sense that it is assumed that there were marks on the road because one would expect them to be present if there was a loss of control due to lack of traction. I am not persuaded that the theoretical possibility that the tyre marks were missed by those at the scene (and, in the case of Sergeant Brand, missed despite the fact that he was specifically looking for some evidence of the loss of control) permits an inference to be drawn that the tyre marks were there but missed."

Consideration

The primary judge concluded on that evidence that she was not satisfied on the balance of probabilities that the cause of the accident was the deceased losing control as a result of encountering loose gravel on the first resealed section of the road. Her Honour's conclusions were as follows:

"[110] I accept that the competing hypotheses for Ms Paterson's loss of control, being a lack of concentration, inattention, drowsiness or fatigue, would logically need to subsist at the very point on the road where there was increased risk of a loss of control by reason of excess speed on gravel. While this state of affairs might undermine the likelihood of either of them (or any combination of them) being the explanation for the loss of control, it is necessary for me to be actually persuaded of one scenario over another as the more probable explanation and I am unable to reach that level of satisfaction.

[111] In the absence of any physical evidence of sideslipping due to a clockwise rotation of the vehicle in the first resurfaced section in circumstances where it would be expected to be obvious, and where the road surface was examined and none noted; where the photographic evidence favours a finding of a gradual veering from the correct to the incorrect side of the road before a faint but definite mark 150 metres after the gravel is first encountered and after an intervening section of unworked road without tyre marks; and where Mr Curtis' sketch and Mr Ellis' report are open to interpretation, the balance of the evidence, which includes the evidence of another accident on a stretch of road under the same road repair works 24 hours earlier, simply does not induce in my mind an actual persuasion that the precipitating cause of Ms Paterson's accident was her losing control of her vehicle in the first resurfaced section due to the presence of gravel and her unchecked speed.

...

[113] Given the way the plaintiffs have put their case, the failure to persuade me that control was probably lost because of a loss of traction at the beginning of the first resurfaced section, a primary fact upon which the further and critical finding of factual causation depends, carries with it the consequence that I am not persuaded that but for the failure to provide for and position appropriate signage the accident would not have occurred."

The first question which needs to be considered is whether on the balance of probabilities the deceased lost control of her vehicle on the first section of the unsealed road. In my opinion the photographic evidence of P 19, the statement by Mr Ellis and the drawing by Mr Crisp based on their observations, lead to an inference that on the balance of probabilities there was a loss of control at that point of time. As Constable Hando observed the northbound and southbound lanes were separated by double unbroken lines. A competent driver in control of her vehicle would take care not to cross those lines. I appreciate as her Honour pointed out (primary judgment at [110]) that the report of Mr Ellis is open to interpretation, in that it does not provide certainty that the car veered to the right on encountering the first resealed surface. However, the question is to be decided by reference to the probabilities. The evidence available, particularly P 19, satisfies me to that standard that that was what occurred.

Even if it is inferred that the vehicle travelled in a straight line following its veering to the right, that does not lead to the conclusion that there was no loss of control or that the deceased regained control. It appears from the evidence of Senior Constable Brand and Mr Ellis that the vehicle was on the wrong side of the road when it reached the second resealed surface. The fact that the car travelled on the wrong side of the road, albeit in a straight line from the end of the first resealed surface to the second, does not indicate to me that the driver was in control or had regained control of the vehicle. Nor do I consider that that fact renders it more probable that the reason the deceased was on the wrong side of the road was due to a loss of concentration, inattention, drowsiness or fatigue as opposed to a loss of control as a result of encountering loose gravel. This is particularly the case given the distance covered by the deceased on the wrong side of the road (approximately 100 to 150 metres) would have been covered within a matter of seconds. In that regard I would prefer the conclusion of Mr Johnston in the passage to which I have referred in par [43] above.

As Mr Stuart-Smith pointed out in the evidence I have summarised in par [44] above, the key question is whether the loss of control was as a result of a loss of traction caused by the loose gravel. The experts disagreed on this point. Mr Johnston stated he regarded the loss of control as a result of the loose gravel the probable cause. Mr Stuart-Smith, whilst conceding that that was a possibility, disagreed.

In considering this issue it is appropriate to look at the competing hypotheses. There was no suggestion of mechanical failure and no suggestion that the deceased was affected by drugs or alcohol. The deceased was driving at an estimated speed at or slightly under the speed limit (100 km per hour) on a bright sunny day. The evidence of the experts was that absent any loose gravel, the bend could be safely negotiated at least at 145 km per hour.

In these circumstances the only alternatives suggested were a loss of concentration, inattention, drowsiness or fatigue, coincidentally subsisting at the very point where there was an increased risk of loss of control by reason of excess speed on gravel (primary judgment at [110]). However, it must be remembered that the deceased had negotiated a significant part of the curve successfully, a fact tending against these explanations. It seems to be more probable than not that in those circumstances, the appellant lost control as a result of loss of traction on encountering loose gravel on the first resealed surface and was unable to regain full control before encountering the second resealed section and ultimately the tree which caused her death.

In reaching this conclusion I appreciate the force of the fact that there was no physical evidence of sideslipping due to a clockwise rotation of the vehicle in the first resurfaced section and the somewhat circular nature of Mr Johnston's explanation for its absence. Notwithstanding I remain of the view that it was more probable than not that the deceased lost control on the first resealed section due to the lack of traction caused by loose gravel. It must be remembered that Mr Stuart-Smith conceded that that remained a possibility. Taking this and the matters to which I have referred in pars [51] and [52] into account and bearing in mind the hazardous nature of the road as described by Mr Coffey and Mr Johnston (and ultimately accepted by Mr Stuart-Smith), the absence of evidence of sideslipping does not cause me to alter my conclusion.

In reaching this conclusion I do not draw any support from the fact that there was evidence that a Ms Laura Skorulis apparently had an accident as a result of slipping on loose gravel whilst travelling on the road in the opposite direction to the deceased. I do not think that this demonstrates anything more than it was hazardous to drive at speed on a resurfaced road which had loose gravel on it. That was not ultimately in issue.

The respondent accepted that if it was established that one of the causes of the accident was loss of control on the first resurfaced section as a result of a loss of traction due to loose gravel, the necessary connection between the breach of duty and the injuries leading to the death of the deceased was established. In these circumstances the appeal should be allowed.

Conclusion

In the result, the appeal should be allowed. There does not appear to be an order for separate questions, so it is not clear whether contributory negligence, which was pleaded in the defence of the respondent remains in issue.

In those circumstances I agree with the orders proposed by Beazley P.

BEAZLEY P: On 20 August 2004, Debbie Paterson was fatally injured when, whilst travelling along Kingsvale Road between Young and Harden in country New South Wales, the car she was driving ran off the road and hit a tree. Ms Paterson was the sole occupant of the vehicle and there were no witnesses to the accident. Ms Paterson was 42 years old at the time of the accident. Her occupation was that of home duties.

The appellant, who was Ms Paterson's partner, brought proceedings for psychiatric injury arising from Ms Paterson's death. He also brought proceedings on his own behalf and on behalf of her children under the Compensation to Relatives Act 1897.

At the time of the accident, roadworks were being carried out on Kingsvale Road. The appellant claimed that the accident was caused by the presence of loose gravel on the road surface which was present due to the negligence of the respondent, Harden Shire Council (the Council).

The Council denied negligence and also pleaded contributory negligence pursuant to the Civil Liability Act 2002, s 5T. The Council also pleaded that to the extent the claim relied upon a failure to warn, the risk was obvious: see the Civil Liability Act, Pt 1A, Div 4, s 5G(1). The Council also relied upon the provisions of the Civil Liability Act, Pt 5, ss 42, 43, 43A and 44 relating to limitations on the tortious liability of public authorities.

The trial judge, in her reasons for judgment given on 9 July 2012, gave judgment for the Council. Her Honour found that the Council had breached its duty of care to Ms Paterson in failing to provide pictorial signage indicating that the road had been resurfaced and speed reduction signage in advance of the commencement of the roadworks. However, her Honour concluded, at [111], that the evidence did not induce in her an actual persuasion that the cause of Ms Paterson's accident was her loss of control of her vehicle in the first resurfaced section of the roadwork due to the presence of gravel on that surface and her unchecked speed.

Her Honour also held, at [70], that although the Council had been negligent, the appellant had not established that the Council's conduct met "the necessary test for Wednesbury unreasonableness within the meaning of s 43A", applicable to a public authority when acting under a special statutory power within the meaning of that section. The Council was accordingly protected under that section from liability for negligence.

Issues on the appeal

The appellant submitted that her Honour, in giving judgment for the Council, erred in the following respects: first, in the manner in which she applied the Civil Liability Act, s 5D (the causation issue); secondly, in requiring the appellant to establish his claim on a standard of proof that was higher than the balance of probabilities (the standard of proof issue); thirdly, in confining her finding of breach of duty to the Council's failure to erect "Slippery Road" and "Reduce Speed" signs, when her Honour ought to have found that the Council had been negligent in the preparation of the Traffic Control Plan (TCP) (the breach of duty issue); and fourthly, in holding that the statutory defence provided by the Civil Liability Act, s 43A applied to the circumstances of the case (the s 43A issue).

The first two issues are interrelated and will be addressed in this judgment together as the causation issue. The third and fourth issues are also interrelated and will be addressed together as the s 43 issue.

Factual background

The circumstances relating to the accident, other than how the accident occurred, were uncontroversial and the following account is derived principally from her Honour's judgment.

As already noted, the accident occurred on Kingsvale Road. Kingsvale Road is a rural highway running generally in a north/south direction between Harden to the south and Young to the north. It has a designated speed limit of 100 km/h.

The day before the accident, the Council had completed laying bituminous material on the stretch of Kingsvale Road where the accident occurred as part of its road maintenance works program. The work was carried out in five discontinuous sections, of differing lengths, over a distance of about 500 m. Unworked sections of the road, also of differing lengths, separated the resurfaced sections. The work involved spraying bituminous material onto the prepared road surface which was then dressed with loose blue metal gravel (or aggregate). It is an expected incident of that method of resurfacing that an excess of gravel will remain on the road surface. The gravel is progressively embedded in the new surface by passing traffic. The road surface is swept as the final phase in the resurfacing process.

Just before midday on 20 August 2004, Ms Paterson was travelling south towards Harden. Ms Paterson was travelling at, or perhaps slightly under, the speed limit when she entered the right hand curve in the road at the commencement of the new work. The point of impact was 210 m south of the commencement of the work, adjacent to the start of the third resurfaced section. Ms Paterson's vehicle collided with a tree on the verge of the right hand side (the incorrect side, given Ms Paterson's direction of travel) of the roadway. Her vehicle had rotated approximately 180 degrees whilst still on the roadway and was facing north (that is, in the opposite direction to her direction of travel) at the point of impact with the tree. Neither the condition of the vehicle nor the weather had any relevant bearing on the cause of the accident. It was common ground that Ms Paterson was a careful and experienced driver who was familiar with the road. There were no witnesses to the accident or to any part of the driving sequence that preceded it.

The respective lengths of the worked and unworked sections were measured by Senior Constable Hando from the Goulburn Crime Scene Section of the New South Wales Police. In his report of the accident, he recorded the following:

"● There was recently laid road surface along two sections of roadway prior to the collision scene. There was loose gravel on the surface, which covered the entire width of the roadway.

● The first section was on the bend. This section was 86.9 metres in length and 7.1 metres in width ...

● Following this section was a sealed bitumen section 32 metres in length.

● The second section was along the straight and was 32 metres in length and 7.3 metres in width ...

● Following this section was a sealed section of bitumen. This section was 53.2 metres in length."

The roadworks were governed by a Traffic Control Plan (TCP) which had been adapted by the Works Manager employed by the Council from a generic plan (TCP 56) in the applicable Roads and Traffic Authority's (RTA) Traffic Control at Worksites Manual (the Manual). It was common ground that the TCP (as adapted) was designed to address the risks associated with or likely to arise from the roadworks on Kingsvale Road, including the risks to road users presented by the presence of loose gravel on the road surface.

A sign advising of the presence of (unspecified) roadworks was erected approximately one kilometre in advance of the first section of resurfaced roadway. In addition, within 60 m of the commencement of the first resealed section and at various intervals thereafter, signage was placed which advised that there were no centre lines marked and that vehicles should not overtake. There were also pictorial signs indicating the potential for windscreen damage from the presence of stones or gravel. These signs were identified in the evidence as "Chip Hazard" signs. There was no provision made in the adapted TCP for signage advising that the road had been resurfaced or imposing a reduction in the speed limit. Nor did the adapted TCP provide for any pictorial signage warning specifically of the risk of slippage (or loss of traction) due to the presence of loose gravel on the new surface and no such signs were in place.

It was agreed by the parties that the evidence supported a finding that Ms Paterson entered the first resurfaced section with her vehicle under control. Mr Johnston, the expert retained by the appellant, considered that Ms Paterson lost control in the first section of the new work, whereas Mr Stuart-Smith, the expert retained by the respondent, considered that there was no evidence that Ms Paterson lost control until she underwent the final movements in the last unworked section of the roadway before the collision where skid marks revealed that Ms Paterson's vehicle had spun 180 degrees before leaving the roadway. The differing views of the experts are considered below.

Technical requirements for road sealing

There were various technical requirements and guidelines for signposting and for the implementation of other safety measures issued by the RTA when roadworks were being undertaken. Aspects of these requirements are discussed below in relation to the Council's "public authority defences". Presently relevant, however, are sections 12, 13 and 14 of the National Association of Australian State Road Authorities (now renamed Austroads) (NAASRA) Technical Report, Bituminous Surfacing Sprayed Work, which include the following requirements:

"Immediately the binder has hardened to the stage at which no more aggregate can be pressed into it by rolling or by traffic moving at slow speeds all loose aggregate should be removed by sweeping it clear of the edge of the seal ... The road should not be opened to unrestricted traffic until the loose aggregate has been removed."

In addition, the Council's Safe Work Method Statement for Sweeping Pavement provided that speed restrictions were to be in place until after the road surface was "completely broomed".

Inspection of the accident site

Two Council employees, Mr Crisp and Mr Ellis, attended the scene shortly after the accident.

Mr Ellis, who was the Council's Director of Works, prepared a report of the accident. Mr Crisp, who was an engineering assistant, prepared a sketch of the scene of the accident. Both the sketch and the report were prepared on the day of the accident. Neither Mr Crisp nor Mr Ellis gave evidence at trial. No Jones v Dunkel inference was drawn from the Council's failure to call these two witnesses, as her Honour considered that there was nothing to suggest that their evidence would be different from their contemporaneous notes: Jones v Dunkel [1959] HCA 8; 101 CLR 298.

In his report, Mr Ellis recorded the following:

"At the time of the accident [Ms Paterson] was driving in a southerly direction from Kingsvale and had just been around through a short winding section of hilly terrain known as 'Stony Rises' and was just rounding a slight curve in the road when it appears she has crossed to the wrong side of the road and then overcorrected before losing control of the vehicle and it skidding sideways into the tree. Impact being the passenger side door. At the time of the accident it was a bright day with little cloud cover.

It is also apparent that as the vehicle rounded the curve in the road it was at the start of recent Council Roadworks which involved resurfacing of the road pavement (undertaken on Thursday 19th Aug). As the vehicle traveled around the bend commencing on then correct side of the road it appears that at the end of the 1st sealed patch the vehicle was on the wrong side of the road. This being a distance of 90.0 metres. The vehicle has then traveled 38 metres on the wrong side before hitting a second sealed patch of 31.7 metres length.

Towards the end of this second patch is were [sic] the vehicle appears to have commenced sliding back across the road (to correct side) for 33.3 metres before completely sliding sideways back (another 54.6 m) to the wrong side of the road, across the road shoulder and hitting the tree some 3.0 metres from the edge of the road.

On inspecting the roadworks it is not evident that the vehicle lost control after hitting the first patch or even the second patch. There is no discernable skid marks through the sealing aggregate on the first patch, only some light marks where it appears the vehicle attempted to correct its path." (emphasis added).

Mr Crisp also took photographs of the road, the roadworks, the loose gravel and the crashed vehicle. The sketch drawn by Mr Crisp depicted the path of Mr Paterson's vehicle from its entry onto the first section of new work to the point of impact with the tree. At the point of entry onto the first section of new work, the vehicle was depicted to be on its correct side of the road. The sketch then showed the vehicle commencing to veer to its incorrect side of the road. No tyre marks were visible on the next section of the road, which was an old unworked section. Tyre marks were next seen on the second new section of roadway on the incorrect side of the road. The tyre marks were shown to have then travelled onto the correct side of the road on the second unworked section and to then almost immediately have veered to the right and off the road into the tree adjacent to the third resealed section.

Of the photographs taken at the accident site, the photograph numbered 19 was of particular importance, as it was found to show a tyre mark on the first section of new work running from the correct to the incorrect side of the road.

A number of police officers also attended the scene of the accident. The notes in the police notebook recorded at the scene of the accident indicated that the skid marks leading directly to the vehicle were 69 feet (as paced out). The notes also stated that it was "[n]ot known if the resealed road surface was contributing factor in accident".

Senior Constable Brand, of Harden Police Station, attended at the scene of the accident, arriving at about 12 noon. In a statement made on 13 September 2004, he recorded that he had observed skid marks on the road. He said that:

"These skid marks were evident on the section of the road immediately preceding the accident site and showed several things. Firstly that the vehicle had been travelling in a Southerly direction on the incorrect side of the road and the deceased applied the vehicles brakes whilst doing so. Secondly that the vehicle returned to the correct side of the road briefly - still under brakes. Thirdly that the deceased over corrected and swerved back across the incorrect side of the road, the vehicle turning 180 degrees as this occurred. Finally, that the vehicle travelled a short distance before impacting with a tree."

This was a description of the vehicle's path of travel in the second unworked section of the road until the point of collision. Senior Constable Brand stated that he did not have the expertise to determine the speed of the vehicle prior to the collision based upon his observation of the skid marks on the road surface and, in the absence of any physical evidence to indicate the cause of the accident, advanced the possibility that Ms Paterson may have fallen asleep or have been distracted.

Senior Constable Brand inspected the road until approximately 100 m north of the point from where the vehicle left the road. It will be recalled that the accident occurred 210 m from the commencement of the roadworks. Senior Constable Brand stated he was unable to find any physical evidence to indicate a cause for the vehicle to be on the incorrect side of the road. It is apparent, both from Senior Constable Brand's statement and the statements of the other police officers who attended the scene of the accident, that in looking for a cause for the accident, they were seeking to ascertain if there were potholes that Ms Paterson may have tried to avoid, or the presence of broken glass or an animal carcass that would suggest a collision with another vehicle or an animal. There was no evidence of that type.

Constable Ryan, who was on highway patrol duties, attended the scene of the accident at 12.10 pm. He was also unable to express a reason for Ms Paterson's vehicle having travelled onto the wrong side of the road. However, his observations of the roadway support the observations of Mr Ellis and Mr Crisp of a mark on the first section of new work (see bolded section below). As Constable Ryan also provided a clear explanation of the marks on the road in the section immediately preceding the accident, I will set out this part of his statement in full:

"... I continued south and saw a dark set of skid marks. The skid marks consisted of two lines, which began virtually from the centre of the roadway. They then arched in a clockwise direction towards the eastern side of the road before crossing the incorrect side of the road and arching towards the western side of the road ...

I looked at the skid marks and determined that the mark closest to the eastern side of the road would have been the rear nearside tyre and the inner mark would have been the rear offside tyre. I walked back to the skid marks and stood where they had begun. I walked in the direction of the marks, which took me onto the incorrect side of the road. I continued on this course until I met the resurfaced section ... where there were two marks, which I thought were marks caused by vehicle tyres, on the point where the new and old surface joined. These marks were some sixty metres north of the impact point. The distance between these marks was the similar size to that of a car and they appeared to be slightly skewed, facing south-southeast, leading me to believe that the marks were made by a car not travelling in a straight line. It appeared to me as though these marks lined up with the beginning of the skid marks. I continued north and I saw a very faint tyre path on the very western side of the road, which when I looked back south, thought possible they may have ran into the path of the previous marks mentioned above. This path was very faint however and I am unable to say with any certainty that the path was caused by the deceased's vehicle." (emphasis added)

Senior Constable Hando attended the scene at 2.40 pm on the day of the accident and measured the length and breadth of the sections of new work and the old roadway (see [70] above). He observed "faint marks on the road surface in the northbound lane" of the second section of new work. He also observed "a set of tyre skid marks beginning in the southbound lane, which continued into the northbound land leading towards the vehicle [at the point where it collided with the tree]". According to Senior Constable Hando, there were no visible marks on the road surface in the first section of the new work.

Senior Constable Hando, who had completed the Introduction into Crash Investigation Course conducted by the New South Wales Police Crash Investigation Unit, as well as the Certificate IV in Forensic Investigation accredited by the Canberra Institute of Technology, concluded:

"From my examination of the scene and the vehicle it would appear that the yellow 1980 Holden Commodore ... travelled at an unknown speed in a southerly direction along the Kingsvale Road, Kingsvale. Upon entering the right hand bend in the roadway the deceased has lost control of the vehicle, which has slid out of control along the roadway in a southerly direction. The vehicle has rotated in a clockwise direction almost 180 degrees travelling in a westerly direction with middle nearside portion of the vehicle impacting heavily with a gum tree on the western side of the roadway."

The comparison of probabilities with possibilities, the former satisfying the standard of proof while the latter do not, as used by Ipp JA and McDougall J, is entirely conventional. In one sense, any competing finding may be described as a possibility and the likelihood of its occurrence as a probability; in this context, however, it is common to use the term "probability" to refer to a state of satisfaction greater than 50% and the term "possibility" to refer to something less likely. In any event, such linguistic usage could not demonstrate error.

It is true that McDougall J referred in Nguyen at [44] to Dixon J in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336. However, Briginshaw stands for more than a single proposition. The proposition relied on by McDougall J was expressly identified by him as that set out by Dixon, Evatt and McTiernan JJ in Helton v Allen [1940] HCA 20; 63 CLR 691 at 712:

"'When the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality'."

This straightforward proposition, applied daily by judges in civil cases, was not misunderstood by this Court in Nguyen, nor is there any reason to suppose that the trial judge misapprehended its meaning in this case.

The evidence relied on by the parties fell into three categories. First, there were the objective features of the environment in which the accident occurred, including the signs, the resealed sections of the road with loose aggregate, the unaltered sections and the general topography. Secondly, there was the evidence which sought to reconstruct the events immediately preceding the impact of the car with the tree after it left the roadway. This evidence was primarily the analysis by the expert engineers, based on notes and photographs taken by two Council engineers (Messrs Ellis and Crisp) and the police officers (Messrs Hando and Brand) who attended the scene and recorded their observations. The engineers also made their own observations of the scene of the accident, although much later.

Thirdly, there was an assortment of material from which less direct inferences could be drawn as to the probabilities of various events. This evidence included the circumstances in which another driver, Ms Skorulis, travelling in the opposite direction, had lost control some 12 hours earlier in the same area. It also included the character and driving history of the deceased, namely that she had an "unblemished driving record over 20 years" and had not been involved in previous accidents, together with the absence of any evidence that her capacity to drive on the day of the accident was impaired in any way.

The only significant evidence given orally in relation to this issue was that of the two engineering experts. The appellants noted that Mr Stuart-Smith, called by the respondent, had been the subject of "pointed questions" by the trial judge, the passage in the transcript being that set out above at [299]. The submissions on appeal stated:

"At the very least, the exchanges between her Honour and the Respondent's expert illustrate that his evidence was presented from a partisan perspective. Where it conflicted with that of the Appellants' expert, it ought to have been entirely rejected."

This submission should not be accepted. First, the passage set out above in which the trial judge pressed Mr Stuart-Smith to consider whether his adherence to his written report was credible related specifically to the need for a restricted speed limit and a warning sign. It had nothing to do with the issue of causation. Secondly, the trial judge made no finding adverse to the reliability of Mr Stuart-Smith's testimony, either in respect of this issue, or more generally. Given that the issue had been raised specifically by the judge, this cannot have been an oversight. Thirdly, even bearing this robust exchange in mind, there is no hint in Mr Stuart-Smith's evidence with respect to causation that his opinions did not comply with the obligations of an expert witness, with which he said he was familiar.

In oral submissions, the appellants focused on two specific passages in the reasoning of the trial judge with respect to causation which were said to reveal error. The first, at [77], was in the following terms:

"It was agreed between the experts that there was no physical evidence which was capable of fixing where Ms Paterson was likely to have first lost control of her vehicle over that 210 metres."

The distance of 210m was calculated from the commencement of the first resurfaced section to the point of impact. The trial judge also noted (again as a matter of agreement) that, according to the physical evidence, the vehicle was under control when the deceased entered upon the first resurfaced section. Importantly, neither expert viewed the physical evidence in situ: Mr Johnston was not engaged by the plaintiffs until more than three years after the accident. The road surface was swept clear of gravel later on the afternoon of the accident: at [78]. Accordingly, both experts were dependent upon the sketches and photographs taken by police and Council officers on the day of the accident.

Mr Crisp, the Council's engineering assistant at the time of the accident, prepared a sketch diagram which included tyre marks running the length of the first resealed section (some 87m) which commenced with the vehicle in its correct lane and left at the southern end of the resealed section with the nearside tyre mark approximately at the centre lane of the road (meaning that the vehicle was almost entirely on the wrong side of the road and continuing in that direction). Senior Constable Hando, who attended the scene and prepared the primary police account of the events stated, in relation to the first resealed section (which he measured with precision) that "[t]here were no visible marks on the road surface." He took a number of photographs of the roadway.

In his initial written report, Mr Johnston stated:

"9.46 As there were no witnesses to the actual loss of control event, the fact that Ms Curtis did not survive to provide an account and the limited quality of post incident recording of the forensic evidence it is necessary to hypothesise on the probable loss of control mechanism.

9.47 It is certainly suggested by all descriptions of the tyremarks that this event is initiated by a loss of traction."

In his written report, Mr Stuart-Smith stated at 12.2:

"As was stated by Senior Constable Brand, there is no apparent reason for the Deceased having drifted or steered to the right side of the road. There is no evidence in the photographs of slideslip marks in the loose material in either of the two resealed surfaces traversed by the Deceased up to the point where she approached the right side of the road where the preliminary tyre mark was reported to have been located."

In the joint expert report, the engineers were asked:

"What was the path taken by the deceased's vehicle from the curve at the start of the roadworks to the point at which the vehicle came to rest? Please list the physical and other evidence which supports the conclusion as to the path taken."

The agreed answer commenced:

"The vehicle appears to have deviated from the left side of the road within the first patch to the right side of the road at the end of the second patch.

The evidence for this is a possible/probable (RSS/GJ) tyre mark shown in some diagrams and possibly evident in a Council photograph."

The latter sentence indicates that Mr Stuart-Smith thought that the tyre mark indicated in diagrams was only possibly a tyre mark, whereas Mr Johnston thought it was indicated as being probably a tyre mark, although both agreed that it was only "possibly evident" in a Council photograph. There is no suggestion that it was evident in any of the photographs taken by the police officer.

The engineers were then asked, "What is the earliest evidence of the deceased losing control? What and where is that evidence?" Mr Stuart-Smith expressed the view that "[t]he earliest clear evidence of loss of control is at the start of the tyre marks located about 45 metres before the [point of impact]." In his view:

"There is no evidence of loss of control at the curve overlapping the first patch", as suggested by Mr Johnston. The factors identified by Mr Johnston are not evidence."

Mr Johnston expressed the view that the driver had "commenced to lose control around the start of the first section of reseal within the first horizontal curve." He described the evidence as being "the contemporaneous diagrams by a Council officer, the possible indication of a tyre mark within the Council photographs and the known passage of the vehicle from the left side of the road to the right side of the road". The trial judge was entitled to take the view adopted by Mr Stuart-Smith that this material was not "physical evidence" of a loss of control in the first section of resealed surface. That view was not shown to be wrong.

The experts were asked a further question: "What does the evidence say was the most likely cause of the loss of control...?" Mr Johnston's view was recorded as being "that initial loss of control was probably due to a partial loss of traction upon transitioning into the first section of reseal. This has caused increased clockwise slip angle and a resulting deviation of the vehicle path to the right." Mr Stuart-Smith repeated his view that there was no loss of control at the curve overlapping the first patch and continued:

"Had the vehicle lost control in loose gravel, evidence, such as tyre marks and windrows on the loose material of the first patch would have been present. No such evidence was recorded by Police or can be seen in photographs.

Mr Johnston's suggestion that the vehicle lost control as a result of rounding the curve in loose gravel is not supported by evidence where evidence would have been expected."

Mr Johnston did not identify any other evidence for the proposed loss of control in the first section, merely referring back to that which had been identified before. If that did not constitute "physical evidence", none was added.

In the course of oral evidence, Mr Johnston expressed the view that because the "potential effect of the loose gravel" was to reduce traction, that was the "precipitating factor": Tcpt, p 204(35). He then explained (Tcpt, 205(30)):

"If she lost traction on that corner, would you expect an initiation of a clock-wise rotation of the vehicle, or a sense of clock-wise rotation of the vehicle, yes."

The questioning continued by Mr Sheldon (for the Council):

"SHELDON: If you consider that Ms [Paterson] lost control with a clock-wise rotation of the vehicle, you would not expect to see a straight line across to the opposite side of the road as a result of that loss of control, would you?

WITNESS JOHNSTON: Not where that actually occurred. Later on, if that was the path the vehicle took, you might. But where the initial precipitating event was, no, you I would not expect a line there.

SHELDON: But if that is the path the vehicle took later on, wouldn't you have to assume the regaining by the driver of complete control of the vehicle in the absence of marks, indicating that the vehicle was in a yaw, as to [come] down the incorrect side of the road?

WITNESS JOHNSTON: Certainly not complete control, but I would expect the vehicle was under control and largely corrected. So, it was now heading in the wrong direction, but was no longer continuing to rotate.

SHELDON: Would you expect there to be marks on the road showing the loss of control that precipitated that manoeuvre?

WITNESS JOHNSTON: Provided the area was not completely contaminated by material, yes. I would expect somewhere up near where the police car is, a trained eye would see, or find, that evidence, potentially.

HER HONOUR: A trained eye would find what?

WITNESS JOHNSTON: A trained eye would find some evidence of that type of loss of control. By that I don't mean general duties police officers or crime scene officers.

HER HONOUR: When you say that loss of control --

WITNESS JOHNSTON: A clock-wise rotation of the vehicles due to traction. I suggest if Mr Stuart-Smith or I, if we investigated, might find it.

SHELDON: When you say might find it, that is in the realms of speculation --

...

WITNESS JOHNSON: I said that subject to a lot of contamination being up there. So, if we got there fresh, and no one else had been on the roadway and it was clear, I would be fairly confident we would pick it up....

SHELDON: As far as that view applies to this case, that is mere speculation, isn't it?

WITNESS JOHNSTON: That's right, we can't even look at a photograph of that area and tell you it's there. There's just not even a photograph there of that."

The first passage in the judgment of the trial judge subject to challenge (that there was no physical evidence which was capable of fixing where Ms Paterson was likely to have first lost control of her vehicle) was intended to refer to the question whether there was evidence of any loss of control in the first resealed section. The statement is clearly correct: the submissions to the contrary must be rejected.

The second challenge came to a passage at [83]:

"Although Mr Stuart-Smith conceded that it was possible that control was lost in the first resurfaced section, the absence of physical evidence showing the vehicle's passage from the correct to the incorrect side of the road under a loss of traction on the curve - evidence which he expected would have been clearly visible on the road surface were that to have occurred - did not allow him to conclude that the loss of control was probably due to a loss of available friction when, in his view, other competing hypotheses were open, including momentary inattention, drowsiness or fatigue."

The trial judge continued, in a passage central to her conclusion:

"[99] Accepting that the light tyre marks observed by Mr Ellis, and shown in photographs 19 and 20, were probably deposited by Ms Paterson's vehicle, Mr Stuart-Smith noted that she deviated from left to right over the first section of resurfaced roadway in a reasonably straight line without any obvious attempt to correct that course. The photographs objectively support that description. In his view, this was inconsistent with a driver experiencing a loss of traction or recovering or attempting to recover from a loss of traction.

[100] He also placed considerable reliance on the absence of any physical evidence indicating the tyres were rotating in a clockwise yaw or sideslip, which might have suggested that the precipitating cause of the deviation to the incorrect side of the road was a result of a loss of traction upon encountering the gravel surface as Ms Paterson continued to negotiate the moderate curve to the right. With no photograph of the road surface where the roadworks commenced or within metres of it (and where, on the plaintiffs' case, traction was lost) and no physical evidence on the road surface of any attempt by Ms Paterson to correct any sideslip or undertake any corrective manoeuvres noted either by the police, Mr Ellis or Mr [Crisp], evidence which Mr Stuart-Smith expected would be visible even to an untrained eye, it was his view that it was unlikely that control was lost as a result of a loss of traction upon encountering the gravel at the commencement of the roadworks. He was of the opinion that the probabilities favoured Ms Paterson deviating from her path around the curve in the first resurfaced section for a reason or reasons unconnected with encountering the gravel at an unsafe speed. While he appointed other hypotheses, including drowsiness or inattention, he was not invited to address whether such physical evidence as was apparent at the accident site supported either hypothesis."

Although the appellants did not challenge the reasoning in [99], they did assert that the trial judge confused "loss of control" and "loss of traction". For this purpose, they relied upon a passage in the reasoning at [108] (italicised below), but in order to understand the particular passage, it is necessary to put it in its context, commencing at [107].

"[107] It is clear from this evidence that Mr Johnston's opinion was also informed by his belief (or expectation) that physical evidence on the road surface in the first section where he believed traction was lost would likely have been discernable to 'a trained eye', and that neither officers Brand and Hando nor Messrs Ellis and [Crisp] were sufficiently qualified to discern what Mr Johnston claimed he and Mr Stuart-Smith would have been able to discern and [identify] as a tyre mark of a vehicle in a clockwise yaw.

[108] Mr Johnston's assumption that the tyre marks were present but not seen could only support a finding that they were probably there if there were some evidence that the marks were there to be seen but overlooked. The obvious flaw in his reasoning is that if there were evidence of a yaw mark or sideslip proximate to where Ms Paterson entered the first resurfaced section (whether or not she regained control of the vehicle thereafter) there would be no need to proceed on the assumption that it was overlooked. To the extent that Mr Johnston's opinion that the probable cause of the accident was a loss of control in the first resurfaced section due to a loss of traction is based on the assumption that there either was physical evidence which was missed by all observers, or there might have been evidence that was missed by those people, the reasoning suffers from circularity in the sense that it is assumed that there were marks on the road because one would expect them to be present if there was a loss of control due to lack of traction. I am not persuaded that the theoretical possibility that the tyre marks were missed by those at the scene (and, in the case of Sergeant Brand, missed despite the fact that he was specifically looking for some evidence of the loss of control) permits an inference to be drawn that the tyre marks were there but missed."

Referring to the italicised passage, as an example of the confusion, counsel's submissions proceeded (CA Tcpt, p 34(38)):

"Firstly, that passage ... involves a misconception that there would have to be a yaw or side-slipping mark for the vehicle to have lost control in the first section when it entered. That ignores Mr Johnson's evidence that a loss of control may be something less than a loss of traction. It is not the same as. The second error apparent in that paragraph is that Mr Johnson's opinion was based upon a loss of traction. It was never suggested that there was a loss of traction per se. What was suggested was loss of control occurred in the first section evident by those marks that Crisp and Ellis saw and which accounted for the crossing from the correct to the incorrect side of the road in circumstances where you would not expect it to have occurred."

The criticism is obscure. As appears from the passage set out above at [343], from his first report, Mr Johnston was at pains to explain that the "mechanism" by which control was lost was a loss of traction on entering the first resurfaced section. From the appellants' perspective, there was a good reason to maintain such a position. If loss of traction did not lead to a loss of control, causing the vehicle to veer across the road, then the veering was to be accounted for by some other mechanism which was independent of the negligence of the respondent. Furthermore, "loss of traction" is a relative concept: it may or may not lead to a loss of control which causes the vehicle to go in an unintended direction. The appellants' case required that the loss of traction had that consequence. For the trial judge to refer to "a loss of control in the first resurfaced section due to a loss of traction" was to identify precisely what Mr Johnston hypothesised: it was the appellants' case.

The trial judge considered that Mr Johnston's position was, if not circular, at least compromised. Mr Stuart-Smith's evidence, set out by the trial judge at [101], included the following proposition:

"So looking at the photograph, that's on the right-hand side of the photograph, in other words, Ms Paterson's left as she's coming towards us, so one would have expected some windrow or some build up of material, or some ... shading of the tyre mark to indicate some lateral displacement. But not only that. A vehicle doesn't just sideslip ... and then continue just travelling in that same sort of general direction. Once it starts to sideslip, it continues to rotate until the steering has twisted in the other direction, in which case, you either correct - control is regained or else you end up with an oversteer, and the mark is too long."

Although, as the trial judge noted, Mr Johnston disagreed that "definite windrows or furrows would be expected to be created (or visible) under lateral displacement" - at [105] - she also accepted that it was his opinion that physical evidence would have been available "to a trained eye": at [107]. That approach was entirely consistent with the evidence set out above at [351]. In other words, Mr Johnston's hypothesis depended upon there being some physical evidence which had not been detected. Her Honour concluded that it remained just that: an hypothesis, which she could not be satisfied was probable rather than possible.

There is nothing in that reasoning which gives rise to doubt: indeed, a careful consideration of the evidence and the manner in which the trial judge dealt with it leads me to the same conclusion.

The thrust of the appellants' remaining submissions was that had proper weight been given to the circumstances in which another driver, Ms Skorulis, also lost control and went off the road, and had proper weight been given to the known characteristics of the deceased as a driver, it was more probable than not that the reduced traction on the first resealed section which led to her losing control of her vehicle.

The submissions are unpersuasive. Although at times counsel sought to contend that the trial judge had ignored or not taken account of aspects of the evidence, her consideration of the relevant material was comprehensive. The real force of her rejection of the significance of Ms Skorulis' accident was that Mr Johnston had placed significant weight on aspects which he found compelling, as supportive of his conclusions as to how Ms Paterson lost control. However, Ms Skorulis had been travelling in the opposite direction, at midnight, and lost control on a different section of the road. The trial judge noted, at [112], "that Ms Skorulis' evidence and the objective facts bearing upon her accident, were capable of informing in a rational way how and why it was that Ms Paterson was on the incorrect side of the road some 150 metres from the commencement of roadwork". The trial judge continued:

"While I accept that there are a constellation of objective features in both accidents that Mr Johnston found compelling, and which prima facie would tend to suggest the accidents shared a common cause, to make the finding that they were both probably the result of encountering the gravel without adequate forewarning and under speed would also require me to be able to comfortably draw the inference (as distinct from simply assuming) that Ms Paterson, being a more experienced driver than Ms Skorulis, had managed to regain some control of her vehicle after a loss of traction (thus explaining the distance of 150 metres or more over which her vehicle travelled before control was ultimately lost) but Ms Skorulis did not. I am unable to draw that inference. Moreover, it was only after the experts gave further evidence that the marked dissimilarities between the known passage of Ms Skorulis' vehicle and the reconstructed passage of Ms Paterson's vehicle were highlighted."

Ms Skorulis' accident in effect demonstrated that part of the appellants' case which was upheld, namely the need for speed restrictions and warnings as to the slippery surface. When one reaches the issue of causation, the risk is not in doubt: that the evidence establishes that another driver succumbed to the risk is of little significance in establishing how the deceased lost control. The trial judge was correct to focus on the evidence relating to the passage of the deceased's vehicle.

So far as Ms Paterson's characteristics were concerned, there is nothing suggestive of error in the trial judge's analysis. It took into account and gave weight to the evidence of Ms Paterson's experience and carefulness as a driver. How much weight was given to her "unblemished" record was a matter for the trial judge. Even experienced drivers with good records are capable of momentary inadvertence; further, the evidence that she reached the resurfacing roadworks maintaining a speed of 100km/h, despite the 'roadworks ahead' and 'loose stones' signs required some allowance to be made for error of judgment. The trial judge had referred to the fact that it was "common ground that Ms Paterson was a careful and experienced driver who was familiar with the road": at [2]. It was referred to again in the passage at [112] set out above.

Conclusion

Without diminishing the high standard of unreasonableness, as explained for example in Allianz Australia v Roads and Traffic Authority, the application of the test was satisfied in the present case. Mr Coffey's evidence justified such a conclusion; that of the traffic engineers did not, but they were not asked to address the relevant standard.

The trial judge dealt lucidly and comprehensively with the issue of causation, without appellable error. As the appellants' claim must fail on this issue, the appeal must be dismissed; the appellants must pay the respondent's costs in this Court.

**********

Amendments

16 March 2015 - correction to coversheet

Decision last updated: 17 March 2015

Medium Neutral Citation:	Curtis v Harden Shire Council [2014] NSWCA 314
Hearing dates:	25 September 2013
Decision date:	10 September 2014
Before:	Bathurst CJ at [1]; Beazley P at [58]; Basten JA at [230]
Decision:	In each of the matters CA 2012/241825 and CA 2012/241832: 1. Appeal allowed. 2. Set aside the verdict for the respondent made by Fullerton J on 9 July 2012. 3. Remit the matter to the Common Law Division of the Supreme Court for the assessment of damages. 4. Order the respondent pay the appellant's costs of the liability hearing at first instance and of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	TORTS - negligence - duty of care - breach of duty - whether Civil Liability Act 2002 (NSW), s 43A applied - whether placing certain traffic control signs and omitting other signage involved the exercise of a "special statutory power" - prohibition on any person installing prescribed traffic control devices combined with requirement for statutory authority to undertake such activity WORDS AND PHRASES - "special statutory power" - Civil Liability Act 2002 (NSW), s 43A TORTS - negligence - duty of care - breach of duty - standard of liability - Civil Liability Act 2002 (NSW), s 43A - motor vehicle accident - whether omission of signs on road was an act no authority could properly consider a reasonable exercise of its power - expert evidence - evidence of council officer - omission of "slippery road" sign despite direction in Traffic Control Plan - common sense TORTS - negligence - causation - onus - balance of probabilities - whether primary judge erred in comparison of probabilities with possibilities TORTS - negligence - causation - motor vehicle accident - whether absence of signage caused driver to lose control on first resurfaced section - balance of probabilities - no direct proof - whether circumstances give rise to a reasonable and definite inference - consideration of state of the road, circumstances of accident, expert evidence and competing hypotheses
Legislation Cited:	Civil Liability Act 2002 (NSW), ss 5D, 5E, 5T, 43A Compensation to Relatives Act 1897 (NSW) Criminal Procedure Act 1986 (NSW), s 214 Evidence Act 1995 (NSW), s 140 Judiciary Act 1903 (Cth), ss 56, 64 Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999 (NSW), cl 131 Road Transport (Safety and Traffic Management) Act 1999 (NSW), ss 50, 51, 52; Pt 4, Div 1 Road Transport Act 2013 (NSW), ss 121, 122, 123 Roads Act 1993 (NSW), s 87 Supreme Court Act 1970 (NSW), s 75A; Transport Administration Act 1988 (NSW), ss 45E, 52A; Pt 6 Uniform Civil Procedure Rules 2005 (NSW), Pt 31, r 23
Cases Cited:	Allianz Australia Insurance Ltd v Roads and Traffic Authority of New South Wales [2010] NSWCA 328 Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1997] AC 191 Bellingen Shire Council v Colavon Pty Ltd [2012] NSWCA 34 Bennett v Minister of Community Welfare [1992] HCA 27; 176 CLR 408 Betts v Whittingslowe [1945] HCA 31; 71 CLR 637 Board of Fire Commissioners (NSW) v Ardouin [1961] HCA 71; 109 CLR 105 Bolam v Friern Hospital Management Committee (1957) 1 WLR 582 Bradshaw v McEwans Pty Ltd [1951] HCA 480; 217 ALR 1 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512 Chester v Afshar [2005] 1 AC 134 Commissioner of Main Roads v Jones [2005] HCA 27; 79 ALJR 1104 Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1 Curtis v Harden Shire Council [2012] NSWSC 757 Duma v Mader International Pty Ltd [2013] VSCA 23 Evans v Queanbeyan City Council [2011] NSWCA 230 Flounders v Millar [2007] NSWCA 238; 49 MVR 53 Fox v Percy [2003] HCA 22; 214 CLR 118 Fraser v Burswood Resort (Management) Ltd [2014] WASCA 130 FTZK v Minister for Immigration and Border Protection [2014] HCA 26 Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057 Hargrave v Goldman [1963] HCA 56; 110 CLR 40 Helton v Allen [1940] HCA 20; 63 CLR 691 Jamal v Secretary, Department of Health (1988) 14 NSWLR 252 John Curtis v Harden Shire Council [2012] NSWSC 84 Jones v Dunkel [1959] HCA 8, 101 CLR 298 Kable v State of New South Wales [2012] NSWCA 243; 293 ALR 719 Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 Latoudis v Casey [1990] HCA 59; 170 CLR 534 Luxton v Vines [1952] HCA 19; 85 CLR 352 Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 March v Stramare (E & M H) Pty Ltd [1991] HCA 12; 171 CLR 506 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 MM Constructions (Aust) Pty Limited and Anor v Port Stephens Council (No 3) [2010] NSWSC 243 Nader v Urban Transit Authority of NSW (1985) 2 NSWLR 501 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; 67 ALJR 170 Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246 Presland v Hunter Area Health Service [2003] NSWSC 754 Puntoriero v Water Administration Ministerial Corporation [1999] HCA 45; 199 CLR 575 Qantas Airways Ltd v Gama [2008] FCAFC 69 Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd [2009] NSWCA 263; 77 NSWLR 360 Roads and Traffic Authority v Royal [2008] HCA 19; 82 ALJR 870 Rogers v Whitaker [1992] HCA 58; 175 CLR 479) Royal v Smurthwaite [2007] NSWCA 76; 47 MVR 401 Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 Secretary of State for Education and Science v Tameside Municipal Borough Council (1977) AC 1014 Shoeys Pty Ltd v Allan [1991] Aust Torts Rep Â¶81-104 Sneddon v State of New South Wales [2012] NSWCA 351 Stovin v Wise [1996] AC 923 Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182 Sutherland Shire Council v Heyman [1985] HCA 41; 157 CLR 424 Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153 Vyner and Waldenburg Bros Ltd [1946] KB 50 Wallace v Kam [2013] HCA 19; 250 CLR 375 Warren v Coombes [1979] HCA 9; 142 CLR 531 Woolworths Ltd v Strong [2010] NSWCA 282
Texts Cited:	Australian Standard 1742 - 2002 edition, Manual of uniform traffic control devices, Part 3 M Aronson, "Government Liability in Negligence" (2008) 32 Melb U L Rev 44 at 79 Review of the Law of Negligence, Final Report (Commonwealth of Australia 2002) at par 10.26
Category:	Principal judgment
Parties:	John Curtis (Appellant) John Curtis on behalf of himself and Jasmine Patterson, Jacob Patterson, Angus Curtis and Emily Curtis (Appellants) Harden Shire Council (Respondent)
Representation:	Counsel: H M Marshall SC / R Taylor (Appellants) R Sheldon SC (Respondent) Solicitors: McCabe Partners (Appellants) DLA Piper (Respondent)
File Number(s):	2012/241825; 2012/241832
Decision under appeal	Citation: [2012] NSWSC 757 Date of Decision: 09 July 2012 Before: Fullerton J File Number(s): 2007/293512; 2007/293513