Delaney v Leighton Interlink Pty Ltd

[2000] NSWCA 151

Reported Decision: [2000] 32 MVR 185

New South Wales

Court of Appeal

CITATION:	Delaney v Leighton Interlink Pty Ltd [2000] NSWCA 151
FILE NUMBER(S):	CA 40019/99
HEARING DATE(S):	21 June 2000
JUDGMENT DATE:	21 June 2000
PARTIES :	Suzanne Delaney (Appellant) Leighton Interlink Pty Ltd (Respondent)
JUDGMENT OF:	Handley JA at 1, 34, 36; Powell JA at 35; Heydon JA at 2

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 4449/98
LOWER COURT JUDICIAL OFFICER :	Sinclair DCJ

COUNSEL:	D Kennedy SC/P Seery (Appellant) J Sexton SC (Respondent)
SOLICITORS:	Harpers (Appellant) Moray & Agnew (Respondent)
CATCHWORDS:	NEGLIGENCE - damages for nervous shock - Compensation to Relatives Act 1897 (NSW) - trial judge found that the defendant had breached its duty of care to provide adequate warning of the road closure at which the plaintiff's son died when his motor cycle collided with a chain wire fence. - Appeal against decision by the trial judge that the breach of duty was not a contributing cause of the accident - appellant contended that the trial judge should have found that the defendant owed a higher duty of care to the deceased and that there was a causal link between the breach of that higher duty and the accident. - On appeal trial judge held not to have imposed too low a duty on the defendant - trial judge held not to have erred in finding that the plaintiff had failed to discharge the legal burden of proof that adequate warning of the road closure would have prevented the accident. ND
CASES CITED:	March v E & MH Stramare Pty Limited (1991) 171 CLR 506 Chappel v Hart (1998) 195 CLR 232
DECISION:	Appeal dismissed; Cross-appeal dismissed; Appellant to pay the respondent's costs of the appellate proceedings other than the costs of the cross-appeal

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40019/99
DC 4449/98

HANDLEY JA

POWELL JA
HEYDON JA

Wednesday, 21 June 2000

SUZANNE DELANEY v LEIGHTON INTERLINK PTY LIMITED

JUDGMENT

1    HANDLEY JA: I will ask Heydon JA to deliver the first judgment.
2    HEYDON JA: The plaintiff claimed damages for nervous shock and under the compensation to relatives legislation by reason of the death of her son on 20 February 1994. He died on the afternoon of that day after suffering serious head injuries when a motor cycle he was riding collided with a chain wire fence shortly before 4.40am that day.
3    The defendant had contracted with the Road Traffic Authority of New South Wales to construct an extension of the M5 motorway in the vicinity of Graham Avenue Casula. The fence was just past the intersection of Graham Avenue and Carnation Avenue, which was referred to in the judgment and on occasion at the trial as Carnation Street.
4    The trial judge made the following findings at Red 69M-72H:

“In late 1993 construction of the M5 Motorway required the closure of Graham Avenue. Graham Avenue runs in a westerly direction from the Hume Highway for about 2 kilometres. About 1 kilometre west of the Highway at the intersection of Graham Avenue and Carnation Road the road was closed and traffic was diverted down Carnation Street and then west for several blocks before turning north and rejoining Graham Avenue. The closure was effected by the defendant as contractors to the RTA after appropriate notices of intention to close the road were erected between the Hume Highway and the area where the road was closed, and consultation with local authorities. The closure at the intersection of Graham Avenue and Carnation Street was effected by the erection of a cyclone type mesh fence the principal purpose of which was to prevent people unauthorised entry in the construction zone. The speed limit along Graham Avenue was 60 km/hour and there were street lights positioned on the southern side of Graham Avenue.
On the night 19th and 20th February 1994 the plaintiff attended a 21st Birthday party at the API Hall in Kurrajong Road Casula. He arrived at the party at about 7.30 pm and was observed by his host to be drunk or at least affected by liquor. As the party progressed he was observed to be drinking bottled beer throughout the night and was last seen by his host at 2 am when he looked drunk and went outside.
Shortly before 4.40 am he rode a large powerful motorcycle west along Graham Avenue and collided with the cyclone fencing across the roadway. There is evidence to establish that he was riding at high speed, that he was adversely affected by liquor and that he was not wearing a safety helmet. The cycle crashed into the cyclone wire barrier which is supported by galvanised iron posts secured in holes in the road surface rock and concrete. The cyclone fence was pushed back a distance of about 8 metres and when the cycle came to rest on the ground the boy was still astride it. He suffered very serious head injuries from which he died later that day in Liverpool Hospital. Police officers who attended the scene at about 5 am on the Sunday morning on 20th February 1994, observed a skid mark on the westbound lane of Graham Avenue approximately 52.5 metres long leading towards the point of impact. There was also a second skid mark parallel to the first, 36 metres in length. The point of impact with the cyclone wire fence was where it divided Graham Avenue from the M5 extension roadworks. The Police Officers also observed that the collision had carried the cyclone fence approximately 8 metres in a westerly direction and observed there were two black and yellow coloured striped road signs on the ground. One of the road signs had attached to it a yellow board with the words ‘ROAD CLOSED’ written in black.
There was no sign of a motor cyclist’s safety helmet at the scene of the accident, a blood alcohol sample taken from the body at 5.20pm on 20th February 1994 disclosed a reading of 0.146 grams of alcohol per 100 millilitres of blood.
The hospital records disclose that the deceased was admitted to hospital at 05.00 having been taken from the scene by Ambulance, which was called out at 04.44; and that death occurred at 14.00 that day, after he had been on a life support system for some hours.
There are a number of specific questions of fact to be determined. Firstly - What warning signs and warning lights were there on or near the cyclone fence, when the accident occurred.
Constable Sandra Nichols, one of the police officers who attended the scene observed two black and yellow coloured striped road signs on the ground. One of these road signs had attached to it a yellow board with the words ‘Road Closed’ written in black. She also observed along the south side of Graham Avenue between the highway and the closure several yellow coloured signs attached to street light poles with the words ‘This road will be permanently closed ahead from the 24th of September 1993’.
Photographs of the area taken in late 1993, the 11th of February 1994 and on 20th February 1994, Exhibit B, Q and D suggest that on the 11th of February 1994 there were attached to the cyclone wire fence across the road standing close to it, facing east, two barrier boards of yellow and black stripes and one ‘Road Closed’ sign attached to one of the yellow and black barrier boards. The evidence of Mr Schofield, Mr B Bryant and Mr T Bryant and Const Nichols supports that conclusion and I find that to be so. There is no suggestion in any of those three photographs of lamps or blinking lights and the evidence of the above mentioned witnesses satisfy me that there were no such lamps there on the night the accident occurred, though blinking lights battery driven were probably provided earlier on in the construction and then later either removed or stolen.
Second - From what distance were the signs in place on the night of the accident visible to the motorcyclist travelling west along Graham Ave? Graham Ave is more or less level in the relevant area but there is a slight crest at about 105 metres east of where the accident occurred. I am satisfied on the evidence particularly that of Mr Schnerring Traffic Investigation Engineer, Exhibit U, and others that this slight crest is situated about 105 metres east of the fence and that the motor cyclist would have a line of sight of, that is, a view of the signs on the fence, as illuminated by his headlights on high beam from a position at least 150 metres east of the fence. See for example the evidence of a photograph taken by Mr Schnerring quite recently at night which suggests that from that distance, 150 metres east of the cyclone fence it is most likely that had the deceased been paying attention to the road ahead of him that he would have been able to observe the two barrier boards and the road closed sign from that distance.”

5    The speed limit in the area was 60 kilometres an hour, the weather was fine and the road was dry.
6    One question of fact which the trial judge had to determine was the extent to which the deceased was under the influence of alcohol. In that regard, he made the following findings at Red 73X-74P:

“The statement of Michael Gregory Rookes establishes clearly that when the deceased arrived at Rookes twenty first birthday party, which was being held at the ATI Hall at Kurrajong Rd that he looked like he was drunk or had been drinking alcohol. Rookes goes on to say that he noticed the deceased drinking bottled beer throughout the night and that the last time he saw the deceased was about 2.00am on the Sunday morning by which time Rookes says he was drunk and ‘Troy looked drunk as well’. There is no direct evidence as to how he came to be riding the motorcycle, a large 1100cc Yamaha owned by Aiden Thomas, Edward Grant’s father. According to Grant the last he saw of the bike on the Saturday was that it was parked out the front of their house at Lurnea secured by a steering lock. Grant didn’t attend the twenty first birthday party and was unaware that the bike was missing until 1.45pm on the Sunday afternoon when he returned after having spent the night with his girlfriend. The blood test certificate was taken from the body of the deceased at 5.20am. The reading was 0.146 and the accident had occurred not more than an hour earlier. I find that the deceased was adversely affected by liquor at the time of the accident to a substantial extent.
That the deceased cyclist was riding the motorcycle in a negligent manner is not seriously disputed - I am quite satisfied he was drunk, riding a powerful motorcycle to which he was probably a stranger at high speed along a suburban street, at night and that his conduct was the cause of his death."

7    After a three day trial, Sinclair DCJ reserved judgment. He found that the defendant was in breach of a duty of care to provide adequate warning of the road closure in that it should have arranged for blinking lights to be provided at either end of at least one of the two barrier boards which were bearing yellow and black stripes and were attached to the cyclone wire fence. However, he was not persuaded that that breach of duty was a contributing cause of the accident, in view of the fact that the deceased "was drunk, riding a powerful motor cycle, to which he was probably a stranger, at high speed along a suburban street, at night."
8    In effect, he found that the blinking warning lights, which in his judgment should have been provided, would not have made any difference.
9    One other finding made by the trial judge related to the speed of travel of the deceased. After discussing the evidence of Mr Schnerring, an expert called by the plaintiff, and Mr Wingrove, an expert called by the defendant, the trial judge said at 73E-73T:

“Based on the 52.5 metre long tyre skid marks Mr Wingrove is of the opinion that the motorcycle was travelling substantially in excess of 110km’s per hour when the skid mark commenced. At a speed of 110km’s an hour, he says, taking into account the 2.5 second reaction time the motorcycle travelling at 110km’s per hour could not have avoided the accident. He expressed the opinion that the speed of which the motorcycle came over the crest of the hill on Graham Ave was in excess of 110km’s per hour and that the rider could not have stopped the motor vehicle in the available length of roadway between his motorcycle and the cyclone wire fence. His conclusions are based to some extent on an assumption that the cyclist applied both brakes.
One of his calculations is to the effect that an alert motorcyclist who reached the crest of the road at 110km’s an hour would have been able to brake in sufficient time to avoid the fence. The substantial dispute between the two expert witnesses is as to whether the plaintiff applied both brakes or only one. I am inclined to prefer the view of Wingrove having seen both the witnesses giving their evidence and being cross examined. I am also satisfied that it is likely that when the cyclist applied his brake initially he was not less than 100 metres back along the road and it seems likely it was then he became aware of a hazard ahead of him marked by the two safety boards and the road closed sign. The skid mark was 52.5 metres and a reaction time of 2.5 seconds at 80km/h is 57.5 metres.”

10    In effect, the trial judge thus found that the deceased was travelling at over 110 kilometres per hour. Mr Wingrove propounded calculations which led to the conclusion that the deceased observed danger at least about 138 metres from the fence. His assumptions in making those calculations were conservative. First, he assumed as a perception and reaction time for the deceased 2.5 seconds though he said it could be three seconds or longer. Secondly, he assumed in relation to the eight metres which the deceased pushed the fence back that the fence would not have had a decelerating effect, though in fact he said that it would be "quite substantial" and "quite significant" (Combined Appeal Book 104Y-105B and 114Q). Mr Schnerring too accepted that there would be a "drag effect, it would probably be more retarding on a motor bike than on a car" (Combined Appeal Book 78K).
11    The plaintiff-appellant, whose argument was vigorously put by Mr D T Kennedy SC and Mr P Seery, contended in essence that the trial judge ought to have imposed a higher duty on the defendant and failed to take into account various aspects of the evidence which might have led him to conclude not only that there was a higher duty on the defendant but also that there was a causal link between the breach of that higher duty and the accident.
12    In my opinion, the trial judge did not err in imposing too low a duty on the defendant. The plaintiff contended that there should have been additional boards, including three chevrons high on the fence, an advanced curve warning sign and an advisory speed sign.
13    In evaluating that submission, it must be remembered that there were three signs located 250 metres, 100 metres and 60 metres before the point of the accident. A police officer, Constable Nicol, gave evidence of the last two signs and a local resident, Mr Schoefield, of all three. These signs said "This road will be permanently closed at this point from 24 September 1993". In addition, there were the two warning signs just in front of the fence. The road was lighted and the lights ceased just before the fence.
14    The plaintiff submitted that the trial judge failed to take into account four or five accidents involving collisions with the fence between the time when the road was closed in September 1993 and the date of the deceased’s accident on 20 February 1994. The plaintiff also submitted that the defendant must have learned of these accidents because it repaired the fence. The submission was that with that knowledge the defendant had a duty to take precautions of the type which the plaintiff submitted were appropriate.
15    The evidence about those earlier accidents is sparse and vague. One accident left no damage because the car went under the fence and then returned under the fence, leaving the fence intact. The best evidence from the plaintiff's point of view was an accident in which a car went through the fence very near the time of the death of the deceased, requiring a new section to be put in, presumably by the defendant. It was not however in fact established that the defendant knew that the damage had been caused by a car accident. In daylight both the fence and the signs on it were clearly visible. Those accidents point not to negligence by the defendant but to reckless driving by the car drivers involved.
16    Mr Schoefield, a neighbour who witnessed some of the accidents, gave evidence that he found it necessary to prohibit his children from playing at the accident site (Combined Appeal Book 19):

“Q. And why did you put that prohibition on them?
A. There were a lot of, what we used to call in the street petrol heads, maniacs, lunatics, call them whatever. There were a lot of young guys around the place used to speed in cars and Graham Avenue was a, when it used to go straight through guys would get up to 70, 80 miles an hour racing up Graham Avenue. When Graham Avenue was blocked off and Carnation Avenue was the only exit from the end of Graham, they'd come round the corner at phenomenal speeds.

Q. And these cars that used to race up and down, did you ever hear them screeching their tyres on the roadway or anything?
A. Quite often.
Q. Pardon?
A. Quite often.
Q. And were some of these vehicles that raced up and down motor bikes?
A. At times, yeah.
Q. And was that pretty much the situation right up to when Troy had his accident?
A. I'm sure it was. And beyond.”

17    The plaintiff further relied upon Mr Schnerring's attack on the signs placed on the fence as being misleading, in the sense that a driver might have read them as indicating that it was safe to drive to the left of the sign and to what may have appeared as a huge playing field beyond, that is to say the site on which the M5 was being constructed. However, this criticism of the signs does not indicate that that deficiency in the signs, if it existed, played any role in causing the accident. The deceased did not suffer his injuries because he was seeking to go to the left of the signs or thought it safe to do so.
18    The plaintiff further pointed to evidence that the fence was hard to see, that the street lights did not shine satisfactorily onto it and that a tree prevented the fence from being seen well. This evidence did not point to the conclusion that there should have been more precautions than the trial judge found, because the signs that were on the fence were visible at least 150 metres away at night and the fence itself was visible in daylight (Combined Appeal Book 42H-55J).
19    Assuming for present purposes that the defendant had a duty to provide the blinking lights which the trial judge considered that it did, they, together with the other signs, were adequate to warn of the danger created by the fence.
20    A second area of criticism levelled by the plaintiff at the trial judge's reasoning was its reliance upon the intoxication of the deceased. It was submitted that that conclusion rested on the evidence of the host of the party which the deceased attended, who was himself drunk. It was submitted that expert pharmacological evidence should have been called in relation to the blood alcohol reading of the deceased. Further, the fact that a post mortem report indicated no blood alcohol was pointed to.
21    In my opinion, the lay witness and the blood alcohol reading were sufficient to support the trial judge's conclusions. In addition, it appears that he relied upon Mr Wingrove's adoption of 2.5 seconds as a reaction time, being a standard measure for drivers whose alertness has been affected by the ingestion of alcohol or drugs. Mr Wingrove's expertise in this regard was attacked, but he had, by reading and experience, sufficient expertise to justify selection of that figure, which was a figure that Mr Schnerring also employed. The post mortem report is without significance, since there is no evidence of when that reading was taken. The deceased survived for eight or nine hours after arrival at hospital.
22    In relation to causation, the defendant cited March v E & MH Stramare Pty Limited (1991) 171 CLR 506 at 515, 521, 524 and 537 and Chappel v Hart (1998) 195 CLR 232 at 244 to 246 and 273. These cases do not contradict and in part support the view that the plaintiff had a burden of proving that the defendant's failure to employ blinking lights made a difference to the deceased's course of action. It had to exclude the proposition that even with blinking lights visible the deceased would have behaved in the same way.
23    Accepting that blinking lights were needed, the question is whether they would have avoided the accident. The plaintiff relied heavily on the following evidence of Mr Sanson, a witness called by the defendant, who had worked for the Road Traffic Authority for twenty years. In cross-examination, the following evidence was given about the blinking lights which the trial judge had found necessary (Combined Appeal Book 98K-98Q):

"Q. And was there any general requirement as to how many lamps would be appropriate for this type of closure?
A. Yeah. RTA guidelines on barrier boards have a lamp at either end of the barrier board. That's the requirement affecting them.
Q. So as to bring to the attention of the motorist the extremities of the sign?
A. Yes.
Q. In addition to warning them at night time and bringing that to their attention perhaps from a longer way back than they could see the barrier?
A. Yes."

24    The force of this evidence is weakened by its tentative character. Its force was also weakened by what immediately followed (Combined Appeal Book 98Q-99D):

"Q. And thus give them a greater time in which to slow down their vehicle or bring it to a halt, if necessary?
A. Yes.
Q. Or to negotiate a sharp left hand turn.
A. Bearing in mind that there are other turns in very close proximity to get into Carnation you must make sharp turns.
Q. Yes, at night time. This is one of the functions of the lamps were, so as to show people approaching that intersection and show them when they're a long way back that there's some sort of hazard down below and give them a greater opportunity to slow down and negotiate that left hand turn?
A. More a change than a hazard.
Q. But there wasn't any specific indication that a left hand turn was required, was there?
A. No.
Q. And so that the lamps were, in this particular case, very important for anybody approaching that area?
A. I would debate that that was the case, with the street lighting in existence and the fact that there was a roundabout in advance that the speeds should have been such that that would be acceptable."

25    Mr Sanson was not asked to be specific as to how much sooner the blinking lights would have alerted drivers and in particular the deceased to danger.
26    Normally in warning cases, the person to whom the duty to warn was owed is able to give evidence as to what response would have been made to a particular warning. The evidence is often weak, because circumstances conspire to suggest to plaintiffs what evidence it is appropriate for them to give. Here, there could not be any such evidence. It became a question of trying to divine what effect blinking lights would have had on a young man affected by alcohol and presumably fatigue, driving at 110 kilometres an hour or faster, and on a machine which was very powerful, which he had stolen and which he may have had little capacity to handle. The skidmarks reveal that he did respond to an apprehension of danger. In my judgment, it is a matter of complete speculation as to whether the blinking lights would have warned him of danger at an earlier stage so as to permit him to slow down safely.
27    The plaintiff stressed that an evidential burden arose on the defendant once a breach of duty "closely followed by damage" was established. Even assuming that to be so, the legal burden remains on the plaintiff at the end of the day. If an evidential burden was in fact placed on the defendant, the defendant called sufficient evidence to bring about the result that the trial judge's conclusion was not invalid. That evidence was the evidence of the deceased's sobriety and speed and the power of his motor cycle. In the light of that evidence, the plaintiff did not discharge the legal burden of proof that the blinking lights would have avoided the accident.
28    I ought not to leave the submissions of the plaintiff without dealing with a particular submission that she made in relation to the evidence of Mr Wingrove. The plaintiff submitted that the trial judge, in accepting some of Mr Wingrove's evidence that a motorist travelling at 110 kilometres an hour could not have avoided the accident, ignored other evidence given by Mr Wingrove in cross-examination that an alert motor cyclist, travelling at 110 kilometres an hour, would have had sufficient time to have braked in order to avoid the fence. There is no conflict either within Mr Wingrove's evidence or between one part of it and the trial judge's acceptance of another part of it. The first part of the evidence rested on an assumption of a 2.5 second reaction time, that is that the deceased was not alert because of affectation by alcohol. The second part of the evidence dealt with the outcome in the case of an alert motor cyclist.
29    The plaintiff was in a very difficult forensic position, even accepting that it is foreseeable that the roads will be used by persons who are drunk or driving at an excessive speed on vehicles which they may not be able fully to control. There must be some limit to the duties to be imposed upon defendants. Success by the plaintiff in this case depended on failure by the defendant to perform a duty to accommodate itself to the particular position of the deceased.
30    In cross-examination, Mr Schnerring gave the following evidence (Combined Appeal Book 74O-75B):

"Q [If] persons concerned with the design of roads and road signs and safety signs in this city were to design all roads and junctions to permit persons driving at about twice the allowed speed and at about three times the permitted alcohol limit in the blood, there would be a very, very different road environment in this city wouldn't there?
A. Yes.
Q. And whilst a person designing a road and signs must as you say take into account the fact that some people don't obey the traffic laws, you can't ensure by design that nobody will ever be hurt can you in accidents, by road design?
…
A. No, we won't have a fail safe road environment.
Q. And it is a matter of degree in terms of those making those decisions as to how much allowance you make for the motorist that doesn't comply with the law, would you agree with that?
A. Yes."

31    The degree to which the deceased had passed beyond what is ordinarily to be expected was such that the burden on the plaintiff was rendered extremely heavy. In my judgment she has not discharged it.
32    The defendant filed a cross-appeal challenging the trial judge’s finding that the defendant was in breach of duty. Mr J F Sexton SC who appeared for the defendant indicated at the end of the argument that he did not press that cross-appeal.
33    I would propose the following orders:

1. Appeal dismissed.
2. Cross-appeal dismissed.
3. Appellant to pay the respondent's costs of the appellate proceedings other than the costs of the cross-appeal.

34    HANDLEY JA: I agree.
35    POWELL JA: I agree that the appeal should be dismissed but I would add that, in my view, the plaintiff failed as well to establish that there had been a breach of duty. In the circumstances, however, it is unnecessary for me to record my reasons for that conclusion, as I also agree that even, if it had been otherwise, the plaintiff had failed to establish a causal relationship between the alleged breach of duty and her son's death.
36    HANDLEY JA: The orders of the court therefore will be as announced by Heydon JA.

**********