District Council of Ridley v McIntyre

[1992] HCATrans 76

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A27 of 1991

B e t w e e n -

THE DISTRICT COUNCIL OF RIDLEY

Applicant

and

GAYE McINTYRE

Respondent

Application for special leave

to appeal

BRENNAN J
TOOHEY J

McHUGH J

Ridley 1 13/3/92

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 13 MARCH 1992, AT 10.50 AM

Copyright in the High Court of Australia

MR D.M.J. BENNETT, QC:  May it please the Court, I appear

with my learned friend, MR D.H. GREENWELL for the

applicant. (instructed by Piper Alderman)

MR S.W. TILMOUTH, QC:  May it please the Court, I appear

with my learned friend, MR M.A. CRAWLEY for the

respondent. (instructed by Moody Rossi & Co)

BRENNAN J: Yes, Mr Bennett.

MR BENNETT:  The area of motor vehicle law is one in which

questions of fact and law often tends to be a bit
confused, perhaps because most judges like most

members of the community drive as a regular matter.

The problem which arose on this case, arose because

of the statement which appears at paragraph 2(b) of

our submissions and at page 47 of the application

book. Your Honours will see that there the learned

Chief Justice said this:

a road construction authority which creates a

section of road which can be safely negotiated

only at certain restricted speeds is under a

duty to warn the motoring public of the

advisory speed for that section of the road.

Now this was not a case in which the issue was

tried in that form. There was certainly an issue

at the trial as to whether there ought or ought not

to have been an advisory speed sign and that was

debated and two experts very briefly gave evidence about it, about which I will say more in a moment.

But this was not a case where one expert got up and

said, "As a general matter it is desirable that

there be advisory speed signs in the form of a
general proposition stated by the Chief Justice",
nor where the other side then said, "It is not the

case that there should generally be advisory speed

signs in such cases.".

It is not a case therefore where the issue the

Chief Justice refers to was debated between experts

and decided.	What occurred was, there was very
minimal evidence.	The broad statements we have

made in paragraphs (a) to (c) are perhaps a little

stronger than the evidence justifies; there were a

few other references in the evidence of Mr Read and

Mr Henke, but they are very brief and take the

matter no further. There was certainly no evidence

given suggesting that there was some general
proposition that there ought to be advisory speed
signs in general. Yet the Chief Justice has

overruled the trial judge who found no negligence

on this or any other count and has said, because of

this broad principle, which appears nowhere in the

evidence and which is no doubt drawn as a matter of

Ridley 2 13/3/92

a priori or general experience, that from that

general principle there is negligence in failing to

have an advisory speed sign here.

Now it is a matter of importance because

His Honour's decision will no doubt be cited in numerous other cases against traffic authorities.

If correct it means that there is a general duty on all traffic authorities whenever there is a section

of road which cannot be safely negotiated at the

speed limit to put up an advisory speed sign. That

is a huge proposition.

It is even huger when it is applied, as it was

applied here, to gravel roads, because the evidence

of Mr Henke and indeed, we would submit, simple

common sense, is that it is not the practice to put

advisory speed signs on gravel roads for the very

obvious reason that conditions vary so much.	A
speed which is safe on a gravel road in wet

conditions is very different to a speed which is

safe in dry conditions, and if one needed to have

an advisory speed sign that was appropriate to all
conditions, it would be ridiculously low, but if

one had one which was only appropriate to dry

conditions, it might be misleading and cause more

accidents and people would apply a sort of

expressio unius when they see it.

Now, there was no evidence to the contrary of

that, except Mr Read's general statements that he

thought there should have been an advisory speed

sign here and Mr Henke's - - -

BRENNAN J:  Mr Bennett, the proposition on which your

argument is founded is that the general observation

cited in your paragraph 2(b) was the sole basis of

the decision with respect to speed signs and it was

an a priori proposition. For my part I do not read

the Chief Justice as saying that.

MR BENNETT:  No, Your Honour, the Chief Justice did not.

The Chief Justice put it on two alternative bases,

one of which was that the reverse camber required

an advisory speed sign; the other of which was that

any place where the road is unsafe at the normal

speed requires an advisory speed sign.	But
Mr Justice Olsson took a different view.	He held,

with the trial judge, that the reverse camber was

not causative of the accident. So that part of the

Chief Justice's decision was not shared by

Mr Justice Olsson, and the third judge, and, in relation to that proposition, the two

judgments are inconsistent. So one cannot really

read His Honour as supporting either on that point.

Ridley 3 13/3/92

So the result is the proposition that the

reverse camber required a sign is one which appears

only in the Chief Justice's judgment and as to

which there is no majority, whereas the

proposition - - -

BRENNAN J: Well, that is a matter of how one construes what

was said by the concurring judge and although he

concurs perhaps with inconsistent propositions as a

matter of precedent, one cannot construe this case

as being other than a decision that where a road is

so constructed as to create an adverse camber which

poses a particular danger for motorists, then if

the appropriate warning is one by way of a sign,

put it up, and that seems to be implicit in what

His Honour is saying at page 49.

MR BENNETT: Well, Your Honour, we would submit that

proposition appears only from the Chief Justice's

judgment, whereas the proposition we attack in 2(b)

appears in the Chief Justice's judgment and is

supported by the agreement of

Mr Acting Justice Zelling, and to some extent

appears to have been accepted by Mr Justice Olsson,

because that seems to be the only basis which is

left for His Honour to have reached his conclusion.

The passage in the judgment of Mr Justice Olsson is

at page 64 of the application book, and His Honour

said:

in my opinion, such were the obvious

dangers attendant upon proceeding over the

crest into a curve, the safe maximum design

speed of which was of the order of 65-73 kph,

that it behoved the respondent clearly to warn

motorists of the danger in ample time and in

an unmistakable fashion.

And that should have been done, he goes on to say, by an advisory speed sign. That seems to adopt a combination, but certainly it seems to adopt the

whenever there is a section of road which can	general statement which appears at page 47, that	safely be negotiated only at restricted speeds,
there is a duty to warn. The concern which, in my
respectful submission, justifies a grant of special
leave, is that the statement of the Chief Justice,
which is part of ratio, will be cited as authority
for what it says and is not only a proposition not
based on the evidence, it is an a priori proposition, but also one which, in our respectful submission, is one which is wrong as a matter of
fact and certainly, put as a generalization, wrong
as a matter of law.

BRENNAN J:  Mr Bennett, is that not the very problem that

you face if you are trying to spell this out of the

Ridley 4 13/3/92

judgment? If one looks at Mr Justice Olsson's judgment in the passage to which you have just drawn our attention, one does not find any a priori

principle being spelt out here. His Honour is

referring to a specific situation of danger created

by the mode of construction of the curve.

That seems to me to support, as a matter of

coincidence of judicial view, what the
Chief Justice said at page 49, but not to support

what he said in the passage on which you are

placing reliance at page 47, the difference between
the two being that the Chief Justice thought that

camber was a relevant factor to take into

consideration in determining whether there should

be a sign, as well as the other circumstances.

Justice Olsson is saying camber need not be taken

into consideration, but notwithstanding that, the other methods of construction are such as to call for a sign in this instance.

MR BENNETT: But, Your Honour, the reason Mr Justice Olsson

says that at line 5 on page 64 is that the safe

maximum design speed was 65 to 73 - the speed limit

we know was 100 - therefore, he says, because the

safe maximum speed is less than the speed limit,

there must be an advisory speed sign. Your Honour,

that is very close, we would submit, to what the

Chief Justice says. It is because the permitted speed is unsafe on the corner that there must be an

advisory sign. That is the general proposition for

which there was no evidence, and that is the

proposition for which this case will -

McHUGH J:  You are misconstruing what the Chief Justice

said, are you not? What he said was that where:

a road construction authority which creates a

section of road which can be safely negotiated

only at certain restricted speeds is under a

duty to warn the motoring public of the

advisory speed for that section of the road.

What is the matter with that, anyway, as a matter

of fact, or law for that matter?

MR BENNETT:	Your Honour, as a matter of fact, we say it is totally impractical in relation to gravel roads.
There was evidence about that which His Honour has
not referred to, and no evidence to the contrary.
But leave that aside for the moment, there was no
evidence - - -
McHUGH J:	He uses the term, "certain restricted speeds", so

he must have in mind something other than the

ordinary speed one would be using on a gravel road.

Ridley	5	13/3/92
MR BENNETT:	Yes.	The a priori proposition, Your Honour, as

we understand it and as I have paraphrased it, we
would submit is this, that wherever it is unsafe to

negotiate a section of road at the permitted speed,

you must have an advisory sign, and if not, you are

negligent. That is the proposition which, in my

respectful submission, both judges are relying on.

TOOHEY J: Let it be assumed that that is stated too

broadly. You are still left with the conclusion of

the Chief Justice on page 47 at about line 18 that

a clear warning was required:

having regard to the possibility that they

would use portion of the adversely cambered

section.

That is a view expressed in relation to the

particular facts.	Do you suggest that cannot stand
on its own?

MR BENNETT:	No, Your Honour, we accept that, and in fact at this intersection there was a curve sign and a
chevron sign straight ahead, so one could see a
series of chevrons pointing round the curve. So
there were two signs, one of which was reasonably
dramatic, indicating the curve.  What we take issue
with and what the Full Court found against us is
that the failure to have an advisory speed sign was
itself negligence.

That is the proposition which imposes, we

would submit, an enormous burden upon road

construction authorities and which - where the

evidence was, the uncontested evidence, that it is

not the practice to have advisory signs at all on
gravel roads, where there is a reason given for

that, an obvious reason, that the gravel roads vary

much more than bitumen roads in different

conditions, and therefore an advisory speed sign

would either be misleading or ridiculously low.

Yet all that is ignored. A broad proposition

is stated, for which there was no authority and

which we submit is wrong a priori in any event,

that an advisory speed sign is needed whenever the

authorized speed is too high. In my respectful

submission, that is an enormous proposition, one

put a priori and one for which this case will be

cited as authority in the future. In my respectful

submission, it is important that at this stage the

decision be reversed on that point.

TOOHEY J:  But if special leave were granted, Mr Bennett, it

is at least conceivable that this Court could say

that the statement by the Chief Justice on page 47

was too broadly stated but, having regard to the

Ridley 6 13/3/92

particular facts and the construction of the

roadway at this point, it was reasonable to

conclude that a speed sign was necessary. Now, if

that were the outcome, really, nothing has been

achieved, has it?

MR BENNETT:  Your Honour, there is no secret of the fact

that my client is more concerned with the general

proposition than with the outcome of the case and so, in that sense, something very important would

have been achieved. But, Your Honour, it is also

possible that the court would say, on the evidence,

the trial judge was right - and there is very

little evidence, we are only looking at a few pages

- and that there was no evidence on which a court

could conclude that the absence of an advisory

speed sign was itself causative.

I should say, we do not seek to upset the

plaintiff's verdict. The result, if we are

ultimately successful, would simply be to have the

matter returned to the Full Court to reapportion

because instead of finding two heads of negligence

against the Council there would only be one. So,

it would be a question of reapportioning the weight

of the contributory negligence against the fact

that there was only one, rather than two, aspects

of principal negligence.

The importance of the case, Your Honour, is

the general proposition, and is the concern of

highway authorities that that general proposition,

which is regarded as being wrong as a matter of

fact and law, will be cited in the future as one

which should be followed. And in my respectful

submission it is simply wrong, as an a priori

proposition, and wrong as a matter of law, because

there is no room for making that sort of a priori

proposition in this area, and that is the error of

law bearing in mind the function and purpose of

advisory speed signs.

Now, there are two other matters I should

mention. One is that there is a secondary ground

that the finding is inconsistent with Buckle v

Bayswater Road Board, that it assimilates misfeasance to nonfeasance and, in effect,

attributes nonfeasance against a highway authority.

There is one decision of the New South Wales Court

of Appeal which is contrary to that proposition and

which says that a failure to do something in the erection of a road can constitute misfeasance in

the relevant sense. We would respectfully wish to

submit that that is not the case and we would

submit that is an important issue which arises.

Ridley 7 13/3/92

The other matter raised in the case is the

causation issue. The evidence there was that the

plaintiff had not seen either the curve sign or the

chevron sign. The trial judge accordingly found,

among other things, there was no question of any

causation in relation to the sign. The Full Court

said, and said unanimously, "We don't accept that

finding of fact because we draw the inference that

had there been an advisory speed sign, she probably

would have seen it. Although she did not see the

sign, the curve sign, although the advisory speed

sign would have been affixed to it and would have

been smaller than it, although she did not see the

chevron sign which was a big conspicuous sign in

front, nevertheless", the Full Court said, "we

think she would have seen the advisory speed sign

because we think people notice advisory speed signs

more readily".

That again was an a priori finding. It is one

which, in my respectful submission, simply could

not be drawn on the evidence. There was no

evidence for it or against it. It is a matter of

inference, and it is an inference which we would

submit is simply not open as an appropriate

inference to be drawn by an appellate court. That,

we submit again, is - while I cannot put that as

being of the same general importance as the other

except perhaps in relation to the function of

appellate courts, in my respectful submission it is

another clear reason why this aspect of the Full advisory speed sign. For those reasons, it is my

respectful submission that the application for

special leave should be granted.	May it please the
Court.

BRENNAN J:  The Court need not trouble you, Mr Tilmouth.
In this case King C.J., with the agreement

of Zelling A.J., observed that: 

I think that a road construction authority

which creates a section of road which can be

safely negotiated only at certain restricted

speeds is under a duty to warn the motoring

public of the advisory speed for that section

of the road.

As a general a priori observation, that may well be

too broad. However, in all of the judgments, the

conclusion that a speed sign was required was

founded on the circumstance that the manner of

construction of the curve was such that a danger

was presented to motorists against which some

warning was required.

Ridley 13/3/92

We see no reason to doubt the correctness of the conclusion on this basis, and there is no

warrant for the granting of special leave to

consider whether the Chief Justice's observation

was incorrect. The finding of fact on causation
was, as counsel concedes, a matter of inference.

The drawing of the inference is not an issue which justifies the grant of special leave. Accordingly,

special leave will be refused.

MR TILMOUTH:	I apply for costs, if the Court pleases.
BRENNAN J:	Have you anything to say to that, Mr Bennett?
MR BENNETT:	No, Your Honour.

BRENNAN J: Refused with costs.

AT 11.12 AM THE MATTER WAS ADJOURNED SINE DIE

Ridley 9 13/3/92