Dykes, Kelvin v Roads Corporation
[2009] VCC 1415
•11 December 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES LIST
GENERAL DIVISION
Case No. CI-07-04524
| KELVIN DYKES | Plaintiff |
| v | |
| ROADS CORPORATION | Defendant |
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| JUDGE: | HIS HONOUR JUDGE O’NEILL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 17, 18, 19, 20, 23, 24 and 25 November 2009 |
| DATE OF JUDGMENT: | 11 December 2009 |
| CASE MAY BE CITED AS: | Dykes, Kelvin v Roads Corporation |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1415 |
REASONS FOR JUDGMENT
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Catchwords: TRANSPORT ACCIDENT – whether road signs and road markings designed and installed by defendant misleading – driver of vehicle in thick fog mistakenly turns onto side road believing it to be freeway entrance, striking a tree and suffering serious injury - nature and extent of duty owed by defendant – whether breach of that duty – whether breach causative – contributory negligence of driver in driving too fast in the circumstances and failing to pay adequate heed to road signs.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W Dyer with | John R Sharkie |
| Ms C Boyle | ||
| For the Defendant | Mr D G Brookes SC with | DLA Phillips Fox |
| Mr D J Wallis | ||
| HIS HONOUR: |
Preliminary
1 At about 5.30 am on 20 March 2001, the plaintiff was driving his motorcar in a northerly direction along Princes Way, Drouin, intending to enter the on-ramp to the Princes Freeway which would take him to his work as a truck driver at Dandenong. There was a thick fog in the area at the time. As he approached the on-ramp to the freeway, he observed a sign (“the advance direction sign”) which, in part, indicated the word “Melbourne” with an arrow at 45 degrees. This sign was a distance of approximately 15 metres to the north of an intersecting road, McGlones Road, which was located approximately 170 metres south of the freeway entrance.
2 The plaintiff, mistakenly thinking the entrance to McGlones Road was the entrance to the freeway, turned left, crossed a grass verge on the north side of McGlones Road, lost control of the vehicle, and struck a tree, travelling at approximately 80 kilometres per hour (“the transport accident”).
3 As a result, the plaintiff sustained significant injury to various areas of his face, a closed head injury and injury to his left knee. He was off work for a period of time, and eventually returned to his full-time employment as a heavy-haulage truck driver. It is alleged that, particularly due to degeneration in his knee condition, he will be unable to maintain such employment at some time in the future.
4 The plaintiff brings this proceeding against the defendant alleging negligence in the design, construction and installation of the sign and seeks damages for pain and suffering and loss of earning capacity.
5 The matter was listed to be tried by a judge and jury, but, at the outset of the trial, the parties agreed that given various objections as to the admissibility of certain lay and expert witnesses, the matter ought proceed as a cause. In my view, it was appropriate that the matter proceed as a cause.
The Proceeding
6 By his Amended Statement of Claim the plaintiff alleged, inter alia, that:
•
The defendant was responsible for the design, construction and installation of various traffic signals and facilities, including advisory signs and road markings on Princes Way near McGlones Road, Drouin.
•
At some time following the transport accident, the defendant caused that part of the advance direction sign containing the word “Melbourne” to be removed or covered.
•
The transport accident arose as a result of the negligence of the defendant in:
o erecting the advance direction sign north of McGlones Road; o failing to erect it further north or south of McGlones Road; o failing to include a diagrammatical reference to McGlones Road on
the advance direction sign;o
erecting the advance direction sign so as to lead drivers of motor vehicles to believe that McGlones Road was the entrance ramp to the Princes Freeway;
o failing to erect an advisory sign to indicate the position of McGlones
Road;o failing to have appropriate arrows upon the road surface; o
failing to take any adequate steps to ensure drivers travelling in a northerly direction along Princes Way did not mistake the advisory sign at McGlones Road for the entrance ramp to the Princes Freeway.
7 By its Amended Defence, the defendant, inter alia, alleged:
•
It admitted it designed, constructed and erected the advance direction sign.
• It denied any breach of duty. •
If there was negligence on the part of the defendant, there was contributory negligence on the part of the plaintiff in:
o driving at an excessive speed in low visibility; o failing to keep any or any proper lookout.
The Facts and the Evidence
8 The area where the transport accident occurred is shown in various photographs tendered by the parties.[1] Further, a plan of the area was tendered into evidence.[2] The sequence of photographs in Exhibit 9 shows the view of the area to be had as a driver travels north along Princes Way approaching the intersection of McGlones Road, albeit those photographs were taken in July 2008. The geography of the road was slightly different at the time of the transport accident.
[1] Photographs 1–4D of Exhibit A, and Exhibits E, 1, 6, 8, 9
[2] Exhibit B
9 Exhibit 1 is a photograph looking generally south to north. It shows generally Princes Way which, at the time, had a speed limit of 100 kilometres per hour. To the middle-left of the photograph is a blue sign on the south side of a road, McGlones Road, which indicates “Drouin Golf Club” and “Drouin Racecourse”. To the north of McGlones Road, a distance agreed at approximately 15 metres, is the advance direction sign. At the bottom of that sign is the word “Melbourne” with a 45-degree directional arrow; above that is “Warragul via freeway” with a directional arrow pointing ahead, and further, “Mt Baw Baw” with a directional arrow pointing ahead. From the photograph can further be seen the entrance to the Princes Freeway, an agreed distance of approximately 170 metres further to the north. At the entrance to the Freeway is a further sign (“the intersection sign”) above a black and white marked crash barrier with the word “Melbourne” and a 45-degree arrow.
10 On the day of the transport accident, at approximately 5.30 am, the plaintiff was driving from Drouin, north along Princes Way. Mistaking McGlones Road for the entrance to the freeway, he turned to the left into McGlones Road, travelling at approximately 80 kilometres per hour. Unable to control the speed of his vehicle, he crossed a grass median strip[3] (“the embankment”) which carried an uneven grass surface, his car became airborne, and he proceeded across part of McGlones Road and struck a tree, shown to the upper left in Photograph 3.[4] The general path of the vehicle prior to impact is shown in the tendered plan.[5]
[3] Seen in the middle of Photograph 1 of Exhibit A
[4] Exhibit A
[5] Exhibit B
11 On 18 November 2009, I had a view of the area, in company with the parties.
12 The plaintiff gave evidence that he was born in August 1963 and is currently forty-six years of age. He is married, with two children, now both adult, from a previous marriage. He did not complete Year 9 at secondary school, and joined the Army at age seventeen. He was always interested in work as a driver, and drove while working for the Army. In 1983, he left the Army and worked for a number of employers, as a truck driver. In 1993, he started work as a heavy-haulage truck driver, hauling large loads both locally and interstate.
13 He commenced work for O D Transport in February 2001. The head office of that company was in Dandenong, and that was the base from which his working day commenced.
14 Approximately twelve months before the transport accident, the plaintiff and his wife moved to Drouin, a town in Gippsland, approximately 74 kilometres from Dandenong.
15 Prior to the transport accident, he was in good health and rarely attended doctors. He enjoyed a range of recreational and social activities, including indoor cricket, which he played three or more times a week in organised teams, and went ten-pin bowling. In addition, the plaintiff went away regularly camping and motorbike riding.
16 On 20 March 2001, the plaintiff left his home in Drouin at about 5.30 am to travel to Dandenong to work. For a number of days, there had been a heavy fog in the area. On the day of the transport accident there was a particularly thick fog. The estimates of the distance the plaintiff was able to see as he travelled away from Drouin varied to some extent in the course of his evidence, but I generally accept that visibility was limited to something in the order of 10 to 20 feet. He left home and travelled from Drouin along Princes Way (the old Princes Highway), generally in a northerly direction. As he approached the area where the transport accident occurred, there was a slow decline down a hill from a point 300 or 400 metres back from McGlones Road. At a point approximately 300 metres back from McGlones Road, there was (and is) a blue sign on the side of the road which indicated “Drouin Racecourse – 300 metres – turn left” (“the 300 metre sign”).[6] The plaintiff had followed this same route over the previous twelve months each working day. On this morning, aside from the thickness of the fog, it was dark and the plaintiff had his headlights on low-beam. As he proceeded down the hill towards McGlones Road, he “kept his eye” on the continuous white line on the left side of the road (which he referred to as a “fog line”) to ensure that the four-wheel drive sedan vehicle he was travelling in, maintained its correct position on the roadway. As he proceeded down the hill he was travelling at approximately 80 to 85 kilometres an hour. He had reduced his speed somewhat because of the intense fog, but did not travel slower as he was concerned to ensure that vehicles travelling behind him would not come upon a slow moving car. He could not recall seeing the 300 metre sign.[7] His evidence as to what occurred as he approached the intersection was as follows:[8]
[6] See Photograph 4B – Exhibit A
[7] T 91
[8] T 91 L30
“I was coming down … sort of keeping my eye on the fog line and then I noticed the fog line veer off to the left and at that – that same incident, I looked up because I noticed the … directions sign – advanced directions sign as we know it, light up … there were the dotted lines. Um, I can’t exactly about the – the arrows, but I’m – I’m sort of, um, I’m – yes, I sort of can’t remember whether they were there or not.
… They [90 degree hooked arrows presently upon the roadway]
definitely weren’t there.
…
[There were] dotted lines on the left-hand side of the road. Yes, as the fog line veered off to the left … that’s when I saw the green sign light up with the direction to Melbourne. I saw the arrow to Melbourne and I thought that was an onramp to – to the freeway.
On a good day you can still do 100 kilometres an hour [to negotiate the entrance to the freeway] – and quite easily on that onramp.
Yes, I started to go to the left as if I was going onto the freeway entrance and then at that stage I hit the embankment and realised that I wasn’t actually on the freeway entrance.
Once I realised I hit the embankment I knew I was in the – in the air because I had my foot on the brake and there was nothing. Once I come down on the ground it bounced maybe once, twice and then I was into the tree.”
[sic]
17 The plaintiff identified the tree he struck as shown on the left-hand side of Photograph 3 of Exhibit A, and as depicted in Exhibit B.
18 The plaintiff was asked further:
“Q: Did you put your foot on the brake at any time before you hit the
embankment?---A: No, when – after I hit the embankment. Q: What was the first time that you observed the embankment? Was
that before you hit it or after you hit it?---A: Well, virtually right on the time that I hit it.”[9] [9] T 95
19 After the collision, the plaintiff believed that he lost consciousness for some time, but was able to go to a nearby house where an ambulance was called. He said had the visibility been good then the entrances to both McGlones Road, and the freeway could be easily seen. He stated that the Toyota Land Cruiser four-wheel drive vehicle he was travelling in at the time was in good mechanical condition.
20 He was taken to Warragul Hospital by ambulance, and subsequently to the Alfred Hospital. He was there diagnosed as suffering various fractures to his face and jaw.[10] He also suffered a penetrating injury to his left knee. He underwent surgery at the Alfred Hospital conducted by Professor Rosenfeld, neurosurgeon. Various surgical repairs were carried out to his facial fractures, including a bifrontal craniotomy with a repair to the floor of the anterior cranial fossa. He suffered a fracture to his mandible which was surgically repaired by Mr John Redman by open reduction and internal fixation. He underwent an arthrotomy to the left knee injury and debridement and closure of the wound. He also suffered a fracture to the left eye socket resulting in a loss of visual acuity. He spent several days in the Intensive Care Unit and was subsequently transferred to a general ward. On 6 April 2001, he was transferred to the Victorian Rehabilitation Centre for ongoing care. He spent approximately six weeks at that Centre and required speech pathology and physiotherapy. It was noted that he had a closed head injury, and his ability to concentrate and remain attentive was affected. The brain injury was described as a mild traumatic brain injury with disturbance in cognitive and behavioural areas. He was noted to have reduced verbal fluency, planning and organisational capacities, including verbal reasoning and non-verbal reasoning skills. His ability to read was affected by blurred vision.
[10] See Photographs 5 and 6 of Exhibit A
21 He undertook physiotherapy after discharge from the Victorian Rehabilitation Centre, and after a period of recuperation, returned to truck driving. He has continued as an interstate heavy haulage truck driver through to the present time. He remained with his then employer, OD Transport, for a period of approximately six years, and more recently has driven for McAleese Transport.
22 He stated that at the present time, he found his work becoming more and more difficult to bear, particularly with his left leg injury. Not only does driving of large trucks require regular use of the left leg to change gears, but in addition, in the course of loading the vehicles, he is required to climb onto the load to ensure it is properly secured with ropes and chains. He described that as hard physical work. Also, he regularly suffers headaches and on occasions has been forced to pull his vehicle to the side of the road to rest. He has two to three headaches a week which can last at worst for several days. He takes non-prescription pain-relieving medication from time to time. He stated that he was unable to take stronger drugs because they affect his capacity to drive.
23 In addition, his ability to plan a journey is affected. He cannot plan how to distribute his load before a journey, nor is he able to navigate in the same way as before and regularly has to consult maps.
24 For these various reasons, he is struggling to maintain full-time work, and does not expect that he will be able to do so into the future.
25 He receives very little in the way of treatment and does not go to doctors. He has regular jaw pain, and pain in the forehead area. He has pain on the left- hand side of his mouth and jaw. There are occasional spasms. In the course of the surgery to repair the damaged facial bones, plates were inserted into the jaw and eye socket.
26 He has difficulties with his eyesight and sometimes finds it hard to focus. The eye weeps from time to time. Because of nerve damage, sometimes he is unaware that food or liquid has dribbled from his mouth which he finds embarrassing. He has lost almost completely his sense of smell. He cannot smell fire nor smoke, nor car fumes.
27 He has some neck stiffness and a tingling sensation into his arm.
28 I observed scarring to various parts of the plaintiff’s body. There were two relatively large, but not particularly prominent scars on his knee. Scarring to his face and scalp was difficult to see.
29 The plaintiff was cross-examined extensively as to the circumstances leading up to the transport accident. He was questioned by Mr Brookes about the account of the transport accident which he gave in an insurance questionnaire[11] and to the histories given to various doctors that he made no mention of seeing the advance direction sign immediately before turning left into McGlones Road and mistaking that sign as indicating the entrance to the freeway.
[11] Exhibit 7
30 Mr Brookes cross-examined the plaintiff as to the lane he was in immediately prior to turning into McGlones Road. The following exchange occurred:[12]
[12] T 103 L4
“Q:
What would normally happen, would it not, is that you say your normal practice is to keep a lookout on the left-hand side as you approach. Is that right, for I think you use it as a fog line?---
A: A fog line, that’s correct. Yes. Q:
And at some stage coming down the road the single lane becomes two lanes doesn’t it, as we see in Photograph number 2?[13]---
A: One – one through lane, one slip lane. Q:
Yes, so you’ve got a left turn lane. Photographs 1 and 2 show at the intersection of McGlones Road there is a left-hand turn lane, if you like, and there’s a lane for traffic going straight ahead. Is that correct?---
A: That’s correct. Q: At some point in time you veered your vehicle sharply to the left.
That’s right, isn’t it, at some point?---A: Yes. Q: Just before you hit the embankment it’s as a result of you veering
to the left?---A: That’s correct. Q: As you were coming down there, you say that you were keeping
your eye on the fog line?---A: That’s correct. Q: And if we’re at the top of the hill, say at or about the 300 metre
sign, do you know where I’m talking about?---A: Yes. Q: You’ve got the continuous white line?--- A: That’s correct. Q: All right. Now at some stage as you come down the road, did you
realise that the two lanes had formed?---A: I realised because the fog line went to the left and the dotted line
appeared.Q:
So you realised – you saw the fog line to go to the left and you saw at some point after that the appearance of the dotted white line … did you?---
A: Straight away, as soon as it started veering left, I saw the dotted
line straight away.. . .
Q:Yes, and you, the reason why you veered left, you didn’t want to veer left where you did veer left, you wanted to veer left onto the freeway?---
A: That’s correct, yes. Q:
And you thought, when you looked up and you saw the green arrow, you thought that that was the arrow at the top of the ramp indicating that you should turn left?---
A: Yes. Q:
And what you would normally do in order to do that, in say good weather, you wouldn’t take up a position in the left-hand lane to go left into McGlones Road, you’d stay in the straight line, in the normal lane until you got to the start of the – of the ramp for the freeway wouldn’t you?---
A: In a clear day, yes. Q:
And what you would normally do then is get to a point, if we just go back to Photograph number 4, you’d be coming up to a point where – or first, before I ask you that. When you say that the green arrow flashed in front of you, as a result of that you veered your car to the left and mounted the embankment, that’s what happened?---
A: That’s correct. Q:
And when you mounted the embankment, you went to the left of the sign because you didn’t hit that sign, and you went across the embankment and hit the tree?---
A: That’s correct. Q:
So that when you – when the – when the arrow flashes up and you think that’s where you are, it seems that you must have been slightly to the right of the arrow, you thought, oh-oh that’s the ramp arrow, and you veered to the left and gone in front of it, would that be correct?---
A: I was, in my opinion, I was heading towards the sign because I
was already in the left-hand lane.Q: You say you were already in the left lane?--- A: Well I was coming into the left-hand lane, yes. Q: You say that you were already in the left-hand lane?--- A: Well I was coming into the left-hand lane, yes. Q: Were you in the left-hand lane or the right hand lane when you
saw the arrow?---A: Well I was in the left-hand lane. Q: Why didn’t you realise that you were in the left-hand lane?--- A: Well. Q: That left-hand lane starts some time back from McGlones Road
doesn’t it?---A: Well I know what the freeway entrance looks like and it’s a very
wide intersection.. . .
Q:Yes, but what you’re saying here, if this had been a clear day, you’d have stayed in the centre lane, you wouldn’t have gone into McGlones Road lane and you would’ve then continued on until you’d veered left up onto the ramp which----?
A: On a clear day I would have, yes. Q:
But what I want to ask you now is, we know it was not a clear day, but at the time that you looked up, do you know where on the roadway you were, which lane you were in, or would you be guessing?---
A: No, I was in the left lane. Q: You were in the left lane?--- A: Yes. Q: And you shouldn’t have been in the left lane?--- A: Well, no, I shouldn’t have been if I knew where I was.”
[13] Exhibit A
31 It should be noted that in the course of this part of the cross-examination, the plaintiff was taken to various photographs in Exhibit A. It was agreed these photographs were taken in 2008 and did not represent the geography of the intersection as it had been in 2001. A more accurate reflection of the geography of the area is as set forth in Exhibit 6, photographs taken in December 2003, shortly after the inspection of the area by the defendant’s former employee, Mr Neil Jones.
32 The plaintiff was cross-examined as to what steps he had taken immediately he realised that the left-hand turn into McGlones Road was not the freeway. He said he realised that when he saw the grass embankment immediately in front of him. I accept that even travelling at approximately 80 kilometres an hour, the plaintiff had very little if any time to take evasive measures either by steering away from the area, or braking. In fact, he said[14] that he did brake while the car was in the air but to no effect. He accepted[15] that because of the reduced visibility due to the fog, he would not have been able to see any of the signs between Drouin and the accident scene as his concentration was directed to the white line. In such circumstances, it was suggested that he could not have seen the advance direction sign before making the left-hand turn into McGlones Road. He stated:[16]
“That’s – that’s lit up because it was reflected, and that’s the only thing I saw was the Melbourne sign – the bottom Melbourne sign. … I could see it when I was in that left-hand lane, the turning lane. … I couldn’t see anything that was in 10 feet in front of me but when it – the headlights shine on something reflective it sort of comes up a lot quicker than anything solid in front of you.”
[14] T 144
[15] T 146
[16] T 151 L2
33 The plaintiff said that he did not consider travelling at 80 to 85 kilometres an hour on the morning of the transport accident in the thick fog was too fast in the circumstances.[17]
[17] T 159 L8
34 In further explanation of the circumstances, the plaintiff, in re-examination, said:[18]
“I was coming down that slight incline. I noticed the fog line veer off to the left where the dotted line started. I thought that was the entrance to the freeway and then the headlight – headlights picked up the sign to Melbourne and then I veered to the left and then saw the embankment, struck it and then whatever happened after that … .”
[18] T 169 L10
35 He said that he did not see anything of the advance direction sign save the word “Melbourne”.[19]
[19] T 171 L29
36 Evidence was given by Mr Gregory Reidy, a tow-truck driver. He had lived and worked in the area for thirty-three years. He was taken to six photographs taken on the day of the view, 18 November 2009, depicting, it was suggested, tyre marks and scrape marks upon the grass embankment which were said to represent the tracks of cars. However, I could not discern with sufficient certainty that they represented the movement of cars over the embankment.
37 Over the last several months, Mr Reidy, in a professional capacity, had attended the area of McGlones Road. On those occasions, he had been responsible for recovering damaged motor vehicles which had driven from Princes Way onto McGlones Road and across the grass embankment. He marked the end position of the vehicles on an aerial photograph.[20] He had previously attended the plaintiff’s vehicle on the date of the transport accident. As a result of that, he had made a complaint to Sergeant Clint Wilson, a senior police officer in the district, about the intersection. Some short time later, an alteration was made to the advance direction sign, in that the word “Melbourne” together with the arrow, were covered with black material. He considered that that had occurred several days after making the complaint to the police officer. He considered that approximately eighteen months ago, the covering on the sign had been removed. During the period when the sign was covered, he could not recall attending any accidents in this area.
[20] Exhibit C
38 In the weeks prior to the plaintiff’s transport accident, Reidy had attended two other accidents in the same area where vehicles had been damaged “through the same fence at the same spot”.[21] He confirmed that the 90-degree arrow markings (“hook arrows”) presently on the road at the entrance to McGlones Road[22] were not in place in 2001. Mr Reidy considered that there were a number of 45-degree directional arrows on that part of Princes Way immediately before and at the intersection of McGlones Road. He said those arrows could just be seen as faded arrows depicted on Photographs 1 and 2 of Exhibit A.
[21] T 179 L31
[22] Photographs 1 and 2 – Exhibit A
39 He was shown the photographs taken in November of this year,[23] and in relation to one of the transport accidents he recently attended, a vehicle involved ended up approximately where the three persons were standing in Photograph 2.
[23] Exhibit D
40 At some later time Mr Reidy said that the sign, which had been covered, had the cover removed. On that occasion he rang the police to complain. In relation to the various blue and green signs at and near the intersection, he considered that the blue signs were more reflective, but that may have been because they were newer.[24]
[24] T 192
41 In cross-examination, it was put to Mr Reidy that he could not say what if any arrows were upon the road surface of Princes Way at the McGlones Road intersection. He was shown photographs purportedly taken in October 2000 which showed a light area of gravel on the side or shoulder of the road in the northbound lane which would tend to indicate there were no arrows. He said that at some time there were 45-degree arrows upon the roadway, but he was unable to say when. He agreed that depending upon the weather conditions, a driver’s speed down Princes Way may have to be adjusted. He had experienced thick fogs from time to time. Even in fogs with very low visibility, the headlights of a vehicle would sometimes reflect upon a large sign which could be seen beyond the usual limit of visibility. On occasions the fog could be so bad that it was difficult to see beyond 20 feet. When the fog was that thick, it was necessary to drive to the conditions.
42 Evidence was given by Ms Louise Stewart. She had lived upon McGlones Road since May 2007. The property in which she and her family live may be seen in the bottom middle of Photograph 4D of Exhibit A. It is the property immediately to the left as one enters McGlones Road from Princes Way.
43 She gave evidence that at least twice a week cars turned into McGlones Road, stopped, did a U-turn and went back out onto Princes Way. Earlier this year there was an accident on the embankment on McGlones Road to the front of her property. A car was in a ditch on the embankment. Quite often there is a heavy fog upon the intersection. There is one street light at the intersection, but it does not actually illuminate the area. On a clear day, Ms Stewart could drive at approximately 50 kilometres per hour to take the left- hand turn into McGlones Road, but that would involve cutting the corner. On a very foggy day, and to ensure that she would not miss the turnoff to McGlones Road, Ms Stewart would travel at approximately 20 to 30 kilometres per hour. She stated that she would probably take the bend at approximately 15 kilometres per hour. On a foggy day, it is possible to see the word “Melbourne” and the angled arrow of the advance direction sign as you come to McGlones Road. At the present time, Ms Stewart uses the hook turn arrows into McGlones Road as a cue.
44 Evidence was given by Mr Huffam, orthopaedic surgeon, and his reports of 9 September 2008, 10 February 2009 and 17 November 2009 were tendered.[25] In the transport accident, Mr Huffam noted the plaintiff had suffered:
[25] Exhibit F
• A closed head injury involving a fracture of the frontal sinus on the right side, fractures of the ethmoid with a pneumatocele in the cranium; • Le Fort II and III facial fractures; • Facial lacerations; • Lacerations of the left knee with a penetrating injury to the left knee joint. 45 Mr Huffam’s assessment was concerned substantially with the plaintiff’s left knee injury. He noted he had returned to work within months of the transport accident, and was able, as at 2008, to work up to seven days per week and drive for up to ten hours a day at a time.
46 Upon examination, Mr Huffam found wasting at the left thigh of approximately 3 centimetres. Examination of x-rays taken in August 2008 demonstrated extensive areas of ectopic ossification on the medial side of the patella. There was significant narrowing of the articular cartilage between the patella and the femur, with narrowing of the joint space by 3 millimetres. He considered that there may be some improvement to the condition of the plaintiff’s left knee joint by an operation to excise the ectopic mass of bone on the side of the patella. He considered generally that the plaintiff would suffer a gradual deterioration in the function of the knee joint with the development of osteoarthritis in the long-term. The plaintiff complained that his knee locked from time to time, and that he walked with a slight limp. He thought it was likely that the plaintiff would continue to develop osteoarthritis of the knee joint and that as the years passed he would have more difficulty operating the clutch on trucks, which required some force. In terms of prognosis, his report stated:
“It is difficult to provide precise answers to this question because this will depend upon the rate of deterioration of the knee joint which is difficult to predict precisely and also the pain tolerance of Mr Dykes and how much pain he is prepared to put up with while continuing driving. However, I think a reasonable answer to this question would be that Mr Dykes will possibly have to stop driving these vehicles by five years’ time and will probably have to stop driving heavy vehicles with manual clutches by ten years.”
47 Mr Huffam also noted that the plaintiff had symptoms arising from his neck, which he considered were accident-related. There was some pain and stiffness of the neck which was probably an aggravation of an underlying degenerative condition. Mr Huffam assessed the plaintiff as a rather stoic person, prepared to put up with significant pain.
48 Evidence was given by the plaintiff’s wife, Mrs Lori Dykes. The couple had been married for approximately six years, and together for approximately ten years. They now live in Cockatoo, having moved there from Drouin seven years ago. At the time of the transport accident, they had been living in Drouin for approximately twelve months. Before the transport accident, her husband enjoyed camping and four-wheel driving. He played indoor cricket two or three times per week with a team. He played ten-pin bowling each week or so. The family enjoyed bushwalking and they would holiday at Dargo twice a year. Before injury, she stated the plaintiff was a happy-go-lucky, confident and social person. He was witty and mentally acute, particularly in relation to spelling and simple mathematics. They were a happy couple in a good relationship.
49 She was called to the accident scene, and went with the plaintiff to hospital. His rehabilitation was difficult. He had nightmares and his speech was slurred. She confirmed she completed the RACV Insurance Claim Form.[26]
[26] Exhibit 7
50 The plaintiff returned to work approximately two months after the transport accident as he was bored at home. To the present time, he is greatly restricted in social and recreational activities. He no longer plays cricket nor goes ten-pin bowling. They are less social and the plaintiff has become a “home body”. He has not done any trail bike riding, and has sold his trail bike. She said that her husband became frustrated at not being as active. He had lost confidence. His mental acuity was significantly affected. He becomes tired and drained and does not appear to have the same energy. He finds walking difficult and has to go at a slow pace. The plaintiff has migraines from time to time which can sometimes last for several days. He gets these about weekly.
51 She said that her husband had never liked going to doctors, that he was a hard worker and at the present time could work up to seven days in a week, working up to ten hours per day. He would sometimes go interstate for more than a week.
52 Evidence was given by Sergeant Clinton Wilson, Senior Sergeant of Police currently stationed at the Latrobe Traffic Management Unit. In 2001, he was in charge of the Traffic Management Unit in the Warragul area. The intersection at which the transport accident occurred was within his province.
53 I made a Ruling as to the admissibility of parts of Sergeant Wilson’s evidence, notably his opinion as to the appropriateness or otherwise of signage at the intersection.
54 He attended the scene of the transport accident some days afterwards, inspected the area and spoke to Mr Reidy, the tow-truck driver. Mr Reidy had reported to him that there had been a number of collisions at the intersection, and that was the reason for his inspection. He was required to maintain statistics as to areas considered “black spots”, that is where collisions had occurred, and to target those areas. Generally, two collisions at any intersection involving injury was sufficient to require investigation with a view to some action to be taken, either by police enforcement, or by engineering. He was very familiar with the area. He had undertaken various courses, including an advanced traffic studies course, and the Victoria Police Accident Investigation Course over five weeks. He is and was well experienced in accident investigation and reconstruction and has given evidence in a number of courts, including the Coroner’s Court and the Magistrates’ Court.
55 When he attended the scene of the transport accident, he observed tyre and skid marks across the grass embankment, and into a tree on the far side of McGlones Road. He stated that the path of this vehicle was almost identical to the path of another vehicle which he had witnessed enter McGlones Road approximately twelve months before the transport accident. On that occasion, a vehicle was travelling at high speed along Princes Way. He observed it travel into McGlones Road, and take a path very similar to that of the plaintiff’s vehicle.
56 As a result of his observation of these transport accidents, and the information provided to him by Mr Reidy, he contacted the Roads Corporation as he believed the sign at the intersection was being mistaken by road users to indicate that the onramp to the freeway was in fact McGlones Road. In low visibility, the situation would become worse for the driver.[27] As a result of that complaint, the bottom part of the sign was covered up. Sergeant Wilson stated:[28]
“… When I did look at the scene I, I was aware that it was a foggy morning, and that … the sign may have ..., have been a contributing factor, so therefore I looked at the rest of the environment and the white- edge line there. It seemed to me that ... it was quite likely that if you were aided by the white-edge line and the sign, the location of the sign in the way that the white-edged line was there at the time … and so on that basis ... that was, that was the basis of the report to VicRoads.”
“From there … that was the nature of ... the complaint that I’d made to VicRoads. So based on my observations of the scene it appeared as though the road environment may have contributed to this, this collision, so that’s why I contacted VicRoads for an engineer to have a look at it.”
“…, the sign was in a position that ... could be seen quite clearly prior to getting to McGlones Road, and with the sign indicating Melbourne with an arrow off, off on a 45-degree angle, it may well be read that the ... the entrance to the freeway was in fact McGlones Road.”
[sic]
[27] T 295
[28] T 296 L4
57 At this point I ruled that this opinion evidence of the witness was admissible only as a basis for the complaint to the defendant, and not admissible as an opinion as to the appropriateness or otherwise of the signage and markings at the intersection.
58 Sergeant Wilson was shown Photographs 1 and 2 of Exhibit A and said that his memory was refreshed that at the time of the transport accident, the 45- degree arrow vaguely visible under the hook arrow was present at the time.
59 In cross-examination, he stated that at the time of his examination of the intersection in 2001, there was an arrow on Princes Way at the McGlones Road intersection similar to the faded 45-degree arrow shown in Photographs 1 and 2 of Exhibit A.
60 Evidence was given by Mr Keith Salmon, currently a resident of Drouin. In 1998 or 1999, he met the plaintiff as they were working for the same truck haulage company. He described the plaintiff as a good worker, very reliable and mechanically skilled. He arranged for the plaintiff to commence work for OD Transport some short time prior to the transport accident. He said the plaintiff would regularly go four-wheel driving, and use trail bikes. He enjoyed camping and was a good general handyman. He saw the plaintiff in hospital and in the course of his rehabilitation and noted that he returned to work a couple of hours per day. He said the plaintiff pushed himself and took some long trips when he was not ready. He observed that the plaintiff had become short tempered and got into arguments. He was pushed pretty hard by his employer. He would lose concentration and drift away in the course of a conversation.
61 Although he had not seen the plaintiff in recent years, he said that the plaintiff’s personality had changed to fit his injuries and circumstances. He was upset he had changed, and noted that he had lost a core group of friends. In cross-examination, he was asked about trucks with automatic transmission which would reduce the requirement for a driver to use the clutch in changing gears. He stated that such transmissions were available on lighter trucks, but not the heavier haulage vehicles that the plaintiff had driven. In addition, it was still necessary to use the clutch to take off and to stop.
62 The plaintiff called Ms Deborah Donald, an expert traffic engineer, who had been practicing in civil engineering for approximately twenty-five years. She has extensive experience in the area of road and traffic engineering, and in fact worked for a period for the defendant.
63 Again, an objection was made to the giving of opinion evidence by the witness. I ruled various aspects of the witness’s opinion evidence as inadmissible. However, she was permitted to give evidence in a range of areas, including as to alternative street signage at various other intersections around Melbourne.
64 She noted that the advance direction sign, and the other relevant signage and road markings at the intersection complied generally with a range of Australian Standards, and VicRoads manuals.[29] She stated that the advance direction sign had been in place at the intersection since approximately 1994.
[29] Report of Ms Donald – Exhibit G – page 13
65 She observed there were distinct similarities between the advance direction sign, and the intersection sign as follows:
•
The word “Melbourne” was laid out in the same manner, although she was unable to say whether the size of the word upon each sign was identical;
• Each had a 45-degree directional arrow alongside the word; •
The position of each sign, just beyond the relevant intersection was the same.
66 Although there was no breach of any Australian Standard, nor any VicRoads requirement, there was no particular standard, nor requirement in respect of a situation where, in the immediate vicinity of a freeway entrance, there was a side street.
67 In her report,[30] she described and photographed various locations around Melbourne where advance direction signs made reference to side roads in the vicinity of freeway entrances. She described:
[30] at paragraph 8 and following – Exhibit G
• An advance direction sign at Boronia Road on the westbound entry ramp to the EastLink Freeway;[31] • An advance direction sign on the Maroondah Highway, eastbound – entry ramp to EastLink Freeway;[32] • Westbound on Ferntree Gully Road – entry ramp to the Monash Freeway;[33] • Eastbound on the Maroondah Highway, west of Mitcham Road.[34] [31] paragraph 8.1
[32] paragraph 8.2
[33] paragraph 8.3
[34] paragraph 8.4
68 In relation to the first three intersections referred to, she accepted that those signs had been erected in 2007 or 2008. However, she stated the sign at Maroondah Highway, west of Mitcham Road had been in place for a considerable period, in the order of seven to eight years. She was able to give this evidence, as she travelled the area regularly.
69 Had she been responsible for the construction at the intersection, she stated that she would have had an advance direction sign south of McGlones Road. She agreed that each case had to be assessed on its particular merits, but on such a sign, she would have had a marking to indicate a side road at McGlones Road as shown in the examples given. She referred to this as a “stub road”, that is a short straight line upon an arrow to indicate a side road before a main freeway turnoff (“a stub road sign”). It was her view that it was better to have such a sign before the intersection to make clear the existence of the side road.
70 She did not accept that signs were developed over time as a matter of natural evolution, but rather, in her view, generally signs were developed to respond to a particular problem of traffic management. She made various comments about the report of a witness called on behalf of the defendant, Mr David Nash.
71 Evidence was given by Mr Lance Daldry, a Drouin resident. He was familiar with the intersection of McGlones Road and Princes Way as he had travelled that road every working day for eight years. On 19 June 2009, he was travelling in a northerly direction along Princes Way at about 6.30 in the morning. The visibility was down to approximately 20 to 30 metres because of a heavy fog. On that occasion, he saw the advance direction sign when the vehicle he was travelling in was at or shortly before the McGlones Road entrance. He misread the sign as indicating the freeway entrance and turned off to the left. His vehicle was unable to take the corner, and entered the embankment, skidding along into a ditch approximately 10 to 20 metres to the north of the advance direction sign. At the time, he was travelling at about 70 kilometres per hour.
72 He said he had done the same manoeuvre some twelve months before, seeing the sign as he was changing the station on his car radio. Again, he veered to the left into McGlones Road, mistaking it for the entrance to the freeway.
73 He said that foggy conditions prevailed regularly in the Drouin area.
74 In cross-examination, he accepted that on a clear day, as one descended the hill shown in Exhibit 1, the entrance to McGlones Road and the freeway were clearly visible. On a dark or foggy morning, he used the double lines in the middle of the road as a guide. He used various cues around the area as a guide to where the freeway entrance was.
75 Associate Professor Richard Stark, neurologist, examined the plaintiff in April 2007, and reported.[35] He noted the plaintiff had suffered a closed head injury in the transport accident with a brief period of loss of consciousness. According to the hospital report, there were fractures to the skull of the ethmoid and frontal sinuses. There was air noted within the cranium. The head injury was complicated by partial third and sixth nerve palsies, and as a result the plaintiff was treated on 27 May 2001 with a bifrontal craniotomy with dural repair of the floor of the anterior cranial fossa. Professor Stark explained this as a large incision made at the top of the cranium, with the brain lifted to enable access to the cranial fossa, for repair.
[35] Exhibit H
76 When he examined the plaintiff, he received a complaint of pain across the forehead with headaches of a moderate degree two to three times a week. The plaintiff said that his face ached in cold weather and which affected his jaw. There was numbness to the left side of the cheek and he may dribble from the left corner of the mouth without realising it. The plaintiff stated that his memory was affected and required different aids for various tasks. He was unable to plan as before and had to read a map as part of his work. His sense of smell was affected although there was now some limited return. He had blurred vision for a period, and double vision, but his had improved.
77 Associate Professor Stark concluded that the plaintiff had suffered severe facial injuries with various fractures requiring open reduction and internal fixation. He considered that the plaintiff had suffered a mild but not trivial closed head injury, with mild to moderate brain damage. This affected his capacity to work in the same manner as before in terms of cognitive difficulties. He considered that the plaintiff’s condition had stabilised and there was no indication for any surgical treatment. He noted a significant interference with domestic and leisure activities and that the plaintiff was unable to resume his sporting interests. He accepted the impaired sense of smell was related to the transport accident as a result of olfactory nerve damage. He said that the plaintiff’s claimed fatigue was consistent with the head injury.
78 In addition to the viva voce medical evidence, reports of various medical practitioners were tendered:
• Dr D MacDonald of the Alfred Hospital – 15 May 2001 – Exhibit J • Dr Regina Hoeppner – rehabilitation specialist – 24 May 2001 – Exhibit K • Dr Nathan Serry – psychiatrist – 2 October 2007 – Exhibit L • Mr Donald Marshall – plastic surgeon – 2 October 2007 – Exhibit M • Mr Hugh Miller – head and neck surgeon – 3 October 2007 – Exhibit N • Mr Michael Shannon – orthopaedic surgeon – 4 October 2007 – Exhibit O • Dr Ian Stuart – clinical neuropsychologist – 31 October 2007 – Exhibit P. 79 A summary of the plaintiff’s taxation earnings over the years 1999 to 2009 was also tendered – Exhibit Q.
80 The report of the Alfred Hospital of May 2001 noted that when the plaintiff was admitted on 20 March 2001, his injuries and treatment included:
• Left-sided partial third and sixth cranial nerve palsy. • Fracture of the frontal sinus on the right-hand side and ethmoidal fractures with pneumatocele in the cranium. • Professor Rosenfeld performed a bifrontal craniotomy and dural repair to the anterior floor of the cranial fossa. • Fracture of the mandible. • Le Fort facial fractures which were reduced and fixed by Mr Redman, faciomaxillary surgeon. There was further surgery on 3 April 2001 for revision. • Facial laceration. • Penetrating laceration injury to the left knee requiring arthrotomy and lavage with debridement and closure of the wound. 81 The report noted that the plaintiff required admission to the Intensive Care Unit over a number of days, progressed to the general ward, and was discharged on 6 April 2001 to the Victorian Rehabilitation Centre. Generally, he had made a good post-trauma recovery.
82 Dr Regina Hoeppner reported on 24 May 2001, and referred to the plaintiff’s progress at the Victorian Rehabilitation Centre where he attended from 6 to 21 April 2001. She noted the plaintiff had coped remarkably well and had returned to independent activities of daily living. He was very keen to return to employment and resumed on a voluntary basis doing minor duties. She cleared him for a return to truck driving on 20 June 2001, three months after the accident.
83 Dr Nathan Serry, psychiatrist, examined the plaintiff on 2 October 2007. He received a complaint that the accident “has slowed him down a fair bit. It comes to mind especially when driving in fog and he is a more cautious and watchful driver irrespective of whether he is in a truck or car”. Psychiatrically, Dr Serry diagnosed a mild impairment in complex integrated cerebral function secondary to the closed head injury, with a mild adjustment disorder with anxiety, depression and features of traumatisation. He noted the plaintiff was somewhat stressed, anxious and depressed and had certain post-traumatic anxiety features. These included intermittent accident related dreams, flashbacks and caution on the roads. The plaintiff’s concentration was affected and he was subject to fatigue. He was also more irritable and frustrated with a shorter temper than before. He said that the plaintiff’s lifestyle had been affected, including that he was less mobile. There was an effect upon his personal relationship and capacity to socialise. He noted the plaintiff had a robust and positive attitude.
84 Mr Donald Marshall, in his report of 2 October 2007, examined the plaintiff’s various facial scars, and a 15-centimetre scar upon his left knee. Mr Marshall considered that the scarring had a significant impact upon the plaintiff’s lifestyle as it had altered his facial appearance. He considered there was some facial asymmetry. He said the scar upon the plaintiff’s scalp was obvious when his hair was wet. Any further surgical revision of the scar was not indicated.
85 Mr Hugh Millar, head and neck surgeon, examined the plaintiff in October 2007. He noted mild restriction of the nasal airways as a result of the fractures to the sinus. He considered that the plaintiff had effectively lost his sense of smell. He also considered that this loss impacted upon the plaintiff’s work, in that he was unable to recognise petrol fumes, or other potentially noxious substances. He noted the plaintiff had minor eating difficulties with some slurring of speech.
86 Mr Michael Shannon, orthopaedic surgeon, examined the plaintiff in October 2007. At that time he noted the plaintiff was back driving full-time hauling machinery, and heavy equipment, and noted the plaintiff was able to load and unload such machinery, and climb over his vehicle, tying down the loads. He noted stiffness in his neck with headaches and thought that the prognosis for his neck condition was excellent. In relation to the knee, he considered that there was a slightly increased risk of the development of degenerative change to the knee. He noted the patella was a little unstable with mild crepitus. He accepted, while the plaintiff was able to walk reasonably well and climb, he was unable to run, or play any sport.
87 Dr Ian Stuart, clinical neuropsychologist, examined the plaintiff in October 2007, and administered a range of neuropsychological tests. He found the plaintiff suffering a degree of anxiety with problems of sleep disturbance, fatigue, irritability, depression, feeling frustrated, poor concentration and poor memory. Testing indicated good planning and organisational skills and self- monitoring was intact. However, there was marked impairment upon verbal reasoning and logical thought, well below the expected level of intelligence. He noted the plaintiff’s verbal fluency was only fair, and close to impaired. Verbal memory was affected showing signs of impairment in the functioning of high level language skills, most marked in relation to capacity for logical thought, and some loss of efficiency in verbal memory. There was a slowing of speed of information processing. These signs were consistent with an injury to the left side of the brain, although Dr Stuart noted that in the course of cranial surgery, the brain had been retracted and there may have been damage to the left frontal lobe.
88 Evidence was given by a number of witnesses on behalf of the defendant. Garry Peterson is a surveillance manager for the Eastern Region of VicRoads.[36] He held that post in March 2001. Another employee of the defendant, Mr Darrell Lancaster, advised him that a police officer had requested a sign near Drouin be covered. This information was conveyed on 29 March 2001 in relation to a sign at McGlones Road near the Drouin Golf Club. The witness identified the lower part of the advanced direction sign as the sign referred to.
[36] VicRoads is the same and an identical corporate entity to the defendant, the Roads Corporation.
89 Mr Peterson attended the site and made observations. After reporting back to Mr Lancaster, he was directed to cover the lower part of the sign. He arranged for a road patrolman to cover the sign. He was unaware of what happened to the sign thereafter. He was unaware of any other complaint in relation to the advance direction sign.
90 Evidence was given by Mr Darrell Lancaster, who is the senior construction and maintenance officer of the Eastern Region of VicRoads. In 2001, he was employed by VicRoads as a technical officer. Part of his duties then was to ensure maintenance was carried out to Vic Roads’ assets.
91 In accordance with notes recorded in his diary at the time, he received a “general public enquiry” regarding the advance direction sign and, after discussion with other persons, a decision was made to cover the lower part of the sign. The persons he discussed the matter with were a Mr Stan Edwards, who he thought was from the Baw Baw Shire, and Ms Linda Collette, who worked in the Traffic Engineering Group for VicRoads at Traralgon. His diary records:
“Sign to be covered up or removed on Friday, the 30th.”
92 He stated that Linda Collette was the person who was most likely to have made the decision to cover up the sign.
93 Mr Michael McKeown gave evidence. He is the team leader, information management and customer support at VicRoads, Eastern Region. His duties include the co-ordination of freedom of information activities for the Eastern Region. He made a search of the various databases of VicRoads, and apart from the complaint referred to the in evidence of Messrs Peterson and Lancaster, there was no record of any customer complaint in respect of the advance direction sign, or in relation to the intersection of McGlones Road and Princes Way. According to the records of VicRoads, and various photographs referred to, it is clear that the advance direction sign was covered up on 30 April 2001, as a result of the complaint by the police officer and the decision made at VicRoads. The covering was removed at some time after December 2003.
94 Evidence was given by Mr Neil Morris who is the signing and regulations officer at VicRoads’ Eastern Region. As a result of being notified of this proceeding, Mr Morris discussed as to whether the advance direction sign should be covered or altered with another VicRoads’ officer, Mr David Nash. He was advised to leave the sign as it was. He also inspected the VicRoads’ databases to determine whether there was any evidence of complaint in relation to the sign, and found that there was none.
95 Mr Neil Jones gave evidence. He is a civil engineer currently working as a consultant for VicRoads. Prior to that, he was a VicRoads’ employee. In November 2003, he was requested by the Baw Baw Shire Council to inspect the intersection of Princes Way and McGlones Road. He attended the site on 26 November 2003 and made various observations. He was taken to the photographs contained in Exhibit 6, taken in December 2003, some short time after he inspected the area, and to the continuous white line along the left- hand edge of the northbound carriageway as it progressed to McGlones Road. He was responsible for the changes to the area which led to the left turning lane with hooked arrows shown in Photographs 1 and 2 of Exhibit A. He stated that the lighter coloured gravel shoulder to the left of the northbound lane subsequently became the left turn lane into McGlones Road. At the time he inspected the area, there were no arrows pointing to the left on the northbound lane at the point of the intersection. He considered that the shoulder area had been sealed for approximately three to five years.
96 Mr Jones agreed that when he inspected the area in 2003 there was a continuous white line marking the boundary of the northbound carriageway and the sealed gravel shoulder which continued to the intersection, and then around to the left in McGlones Road.[37] The witness was responsible for extending the continuous white line out into McGlones Road in December 2003, as can be seen in Photograph 1 of Exhibit A. He described the continuous line into McGlones Road as a “sharp curve”.[38] At low speeds, he said you could follow that line around.
[37] T 495 L22
[38] T 497 L23
97 Evidence was given by Mr David Nash, a civil engineer who had been employed by VicRoads over a considerable period. His area of speciality is traffic engineering and he has worked in that field for the defendant for thirty years. He stated that the advance direction sign was installed in 1993 or 1994 and that at that time, and through to the present time, it complied with all Australian Design Standards, and the defendant’s Guidelines. He stated, as to the location of the signs, that the Guidelines recommended they be placed 175 to 250 metres before a freeway intersection. There was often a degree of interpretation in relation to such distances, depending upon the particular geography of the area. In relation to the alternative signs proposed by Ms Donald in her report, including a stub sign, he stated that these were used in limited circumstances, and mainly in relation to the EastLink development from 2007. He acknowledged that there was such a sign on the Maroondah Highway as referred to by Ms Donald, which had been installed before that time.
98 He considered that it was not appropriate to locate an advance direction sign on the approach side to McGlones Road. He considered that that situation would be more likely to lead motorists to turn into McGlones Road thinking it was the entrance to the freeway. He stated that drivers do not necessarily appreciate the subtleties of signs. He considered for that reason the best location for the advance direction sign was on the departure side of the first intersection.
99 He said that a stub sign was inappropriate to the location at Drouin. He said the environment was very different to that of the Metropolitan areas and that at the EastLink and other locations, there was multi-lane urban environment, different from the rural surrounds of Drouin. Mr Nash sits as a member of the Australian Standards Committee and considers the effect of different signs upon drivers.
100 He acknowledged the advance direction sign and the intersection sign were the same, save possibly for their size. He agreed that when travelling in fog the first part of the advance direction sign a driver was likely to see was the bottom part.[39] He stated that the sign should not have been covered in 2001, but should have been referred to himself or his staff for consideration. He said if it was considered accidents occurred at an intersection which may be as a result of signage, investigations would be undertaken by regional officers who may take into account police crash records. When it was put to him that there may have been six drivers over the years since 1994 who had been involved in collisions at the intersection, he said he would be interested in interviewing them, if he had the time to do so. He thought it was unlikely a VicRoads’ officer would ever go to that level of detail.[40]
[39] T 508 L12
[40] T 523 L20
101 I permitted the tender of Mr Nash’s Expert Witness Statement into evidence.[41] In that statement, he responded to the views of Ms Donald in her report in relation to the various other signs incorporating a stub turn. Such stub signs were not contemplated within the Australian Standards. He stated “hooked arrow with stub” signs were used as a last resort. The preferred practice was to place an advance direction sign after the first intersection and use standard signing conventions to indicate the second intersection. He said the “hooked arrow with stub sign” would convey to drivers the message that there was a right angle turn rather than a gentle diverge ahead. Foggy conditions made driving tasks much more difficult as site distances were substantially reduced. Traffic engineers could assume that drivers would adjust their speed to match the conditions.
[41] Exhibit R
102 Various clinical notes of the Alfred Hospital, West Gippsland Healthcare Group and the Victorian Rehabilitation Centre were tendered in evidence.[42]
[42] Exhibits 10, 11, 12 and 13
103 Evidence was given by Mr Peter Dobeli, a solicitor employed by Messrs. DLA Phillips Fox, the solicitors for the defendant. He gave evidence about various investigations made by him to locate the witness, Linda Collette, formerly employed by VicRoads. She had last worked as a consultant for VicRoads in April or May 2009 but her present whereabouts could not be ascertained.
Submissions on behalf of the Defendant
104 Mr Brookes conceded the defendant owed the plaintiff a duty of care. That duty was not a specialised duty, as referred to in Brodie v Singleton Shire Council.[43] He stated the duty of care was as expressed by Gillard J in Montfroy v Roads Corporation.[44]
[43] (2001) 206 CLR 512, at paragraph 35
[44] [2005] VSC 320, at paragraph 35
105 In summary, while accepting the defendant owed the plaintiff the duty of care, Mr Brookes submitted that there was no breach of that duty, and even if there was a breach it was not causatively related to the plaintiff’s loss.
106 Mr Brookes submitted that it was appropriate to consider the case in chronological sequence.
(a) 1994 – 2000
107 He said that the advance direction sign was erected in approximately 1994. At that time it complied with all Australian Standards, and the defendant’s own internal requirements. There was, up to 2000, no complaint of any nature made to the defendant, and there were no accident statistics available to it. As to the propensity which it was alleged the advance direction sign had to cause confusion, while it was conceded that there were signs referred to in the evidence of Ms Donald which included stub road signs, they were generally related to the development of the EastLink complex in 2007 and there was no evidence that such signs were in use in 2001. Nor was there any evidence, said Mr Brookes, that if they existed, they were brought into existence to cure any confusion at intersections. There was no basis upon which the defendant knew, or could have reasonably been expected to know of any problem with the sign during this period.
(b) Early 2001, up to and including 20 March 2001 108 Including the relevant transport accidents, there were three incidents which occurred at the intersection in this period, according to the evidence of Mr Reidy. He considered these accidents of a sufficient problem to contact Sergeant Wilson, who formed the same view and reported the matter to the defendant. Mr Brookes submitted I can draw no inferences from the two incidents before the plaintiff’s transport accident as there is insufficient evidence to determine whether those two vehicles suffered the same fate as the plaintiff because of any misinterpretation of the advance direction sign. All the evidence disclosed was that two vehicles were towed from the embankment by Mr Reidy, and in order to draw any inference, it would be necessary for the drivers to be called to give evidence. While Mr Brookes conceded these first two incidents occurred in foggy conditions, no conclusions could be drawn because it was clear that the intersection would have been affected by significant fogs in previous years, and there was no evidence of any incidents in those years.
(c) March 2001 – 2006 109 Mr Brookes conceded that the bottom part of the advance direction sign was covered by VicRoads’ employees over this period, although it was uncertain when the covering was removed. The evidence of Mr Reidy was that given his knowledge and experience of the area, there were no incidents at the intersection to his knowledge over that period. Mr Brookes submitted that the decision by VicRoads to cover the sign was essentially a reaction to a complaint from a senior police officer, and did not reflect any considered decision by the defendant based upon a proper analysis of the issues. In fact, when Mr Nash subsequently attended the scene and observed the sign, he determined that it was perfectly appropriate.
110 Mr Brookes submitted no admission as to negligence could be said to result from the actions of the defendant. At best it was evidence that steps were reasonably available to be taken to alleviate the situation.[45]
(d) 2006 – 2008
[45] See State Electricity Commission of Victoria v Gay [1951] VLR 104, at 116, and Montfroy (supra), at paragraph 100
111 In the period during which the sign was uncovered, even notwithstanding there would have been fogs in the area, there was no complaint to the defendant of any incident or other matter to alert it to any difficulty with the sign.
(e) 2008 – 2009
112 According to the evidence of Mr Reidy, there were three incidents in the last twelve months. One involved Mr Daldry, who gave evidence. He said he was located by the plaintiff through Mr Reidy’s tow-truck records. In relation to the other two witnesses, Mr Brookes submitted, given that the plaintiff was able to locate Mr Daldry, it would be reasonable to infer that the plaintiff was also able to locate the other two witnesses and because they had not been called, I could draw the inference that had they been called, their evidence would not have assisted the plaintiff’s case.[46]
[46] See Jones v Dunkel (1959) 101 CLR 298, and O’Donnell v Reichard [1975] VR 916
113 In relation to Mr Daldry, Mr Brookes submitted that he had done precisely what the plaintiff had done, that is misread the sign, and the cause of his misadventure was just that, his own inattention or misreading of the sign, particularly given he was familiar with the area. In relation to the evidence of Ms Stewart that since 2007, several times per week she observed cars turn into McGlones Road, do a u-turn and go back out.[47] Again, there was no evidence those manoeuvres were caused by any misunderstanding of the advance direction sign. Further, there was no evidence that such instances occurred in fog, as was the case with the plaintiff and Mr Daldry. As such, the circumstances of the misadventure of those drivers were not related.
(f) Causation
[47] T 221 L11
114 Mr Brookes submitted that the real cause of the plaintiff’s transport accident was that he was travelling far too fast in the circumstances, was travelling in the left-hand lane, which was the wrong lane at the time, and that he failed to take notice of various cues which were easily available to him. If there was any misreading of the sign, which he submitted was a subsequent reconstruction by the plaintiff, then that was a matter of the plaintiff’s own inadvertence, and not a matter of any inherent fault in the design or placement of the sign.
115 Mr Brookes submitted that the real causes of the accident were that the plaintiff had got himself into the wrong lane and, in driving too fast, had taken the turn into McGlones Road. Possibly in the process thereafter, he had seen the sign and had subsequently reconstructed it as being the reason for his demise. This was consistent, said Mr Brookes, with the failure by the plaintiff to mention the sign in his affidavit,[48] in Answers to Interrogatories[49] and in the RACV Insurance Claim Form.[50]
[48] Exhibit 5
[49] Exhibit 4
[50] Exhibit 7
116 Even if the sign was in some way causatively involved, it was not a “legal” cause and was too remote. He submitted there was no evidence that it was reasonably foreseeable to the defendant that any person may be misled by the advance direction sign.[51]
(g) Damages
[51] See Montfroy (supra), at paragraph 101
117 While denying the plaintiff had any entitlement to damages, Mr Brookes submitted an appropriate figure for general damages was $100,000 to $150,000. He said the plaintiff, while acknowledging he had suffered significant injuries, had made a good recovery. He did not take any medication nor receive any treatment. His brain injury was in the mild category and notwithstanding, he was able to work full-time in arduous employment, working long hours.
118 In terms of economic loss, he submitted there was no sufficient evidence to justify any award for economic loss. Even acknowledging there was some risk the plaintiff would be unable to maintain his current employment, he was a hardworking man who had the capacity for a wide range of employment, including alternative truck driving in vehicles which may have the option for an automatic clutch, thus taking much stress off the plaintiff’s left knee.
(h) Contributory negligence 119 Mr Brookes submitted that if I was to find breach of duty which was causatively related, for all of the reasons set forth above, the plaintiff’s contributory negligence ought be at the very high end of the scale.
Submissions on behalf of the Plaintiff
120 Mr Dyer accepted the duty of care as being a general duty on the part of the defendant as the authority empowered to design, maintain and place traffic warning signs, to take reasonable care for the safety of road users, including the plaintiff against the foreseeable risk of injury.
121 Such a duty, said Mr Dyer, contemplated a driver travelling in dark and foggy conditions as occurred on the day of the transport accident. He stated it was foreseeable a person in the position of the plaintiff, and in those conditions, could be mislead into thinking the advance direction sign indicated the entrance to the freeway at that point. It did not depend, he stated, necessarily upon any complaints being made, although he submitted that when one looked at the cohort of complaints made over a lengthy period of time, they all indicated clear evidence of a distinct confusion and misinterpretation of the advance direction sign sufficient to cause motorists to mistakenly turn into McGlones Road.
122 Mr Dyer stated the defendant was in breach of its duty of care as follows:
(a) Evidence was given by Mr Reidy that he kept records of accidents attended, known as “tow books” which were “all kept for the VicRoads”.[52] Given the obligation upon the defendant to design and install signs, at least in part to prevent accidents, it had an obligation to obtain such statistics, from, inter alia, tow-truck drivers, and police, and had that been done, the relevant intersection would have been highlighted as an area of concern. This alleged breach was not pleaded in the plaintiff’s Amended Statement of Claim, and Mr Brookes raised objection. In my view, given it was not pleaded and was the subject of little evidence in the course of the trial, I am not satisfied the plaintiff is able to allege it as a breach of the duty of care.
[52] T 193 L29 – see further the evidence of Sergeant Wilson at T 294
(b)
The advance direction sign was misleading or inadequate in that it lead motorists, particularly in foggy conditions to drive into McGlones Road thinking it was the freeway. Mr Dyer pointed to the various similarities between the advance direction sign, and the intersection sign, and its position upon the road beyond the intersection in each case.
(c)
Mr Dyer submitted that the sign ought to have been placed on the leading side of McGlones Road, and ought to have been of a type referred to in the evidence of Ms Donald, a stub road sign to show McGlones Road. Alternatively, it ought to have been located closer to the freeway entrance to ensure no confusion as between the two intersections. A further possible alternative was that a sign ought to indicate the precise distance to the freeway entrance so a motorist, upon seeing it, would understand how far away the freeway ramp was.
(d)
There ought to have been clearly indicated on the roadway, a short distance prior to McGlones Road, hook turn arrows to indicate the angle of the turn at McGlones Road was very different from the freeway.
123 Mr Dyer accepted that there were various factors which caused or contributed to the plaintiff’s loss. These included the thick fog on the morning of the transport accident, as well as the misleading sign. He submitted the plaintiff’s speed at the time was reasonable given his evidence that he was concerned not to have vehicles strike his vehicle from behind.
124 He submitted I could draw an inference from the evidence of Mr Reidy, that before the plaintiff’s accident, two other vehicles came to grief in a similar way to the plaintiff, having misinterpreted the sign in the same manner. These incidents had to be seen in light of the various other subsequent incidents, all of which pointed towards a misleading directional sign.
125 He submitted the same inference ought to be drawn against the defendant as Mr Brookes alleged ought to be drawn against the plaintiff, that is that a corporation in the position of the defendant with its capacity to obtain statistical information about accidents at intersections, should have been expected to obtain details of the various collisions which were said to have occurred, and interview the drivers. Given the defendant called no such witnesses, the Jones v Dunkel inference could be drawn.
126 He agreed that the covering of the sign could be taken into consideration in the manner submitted by Mr Brookes, that is as evidence of a readily available alternative, but submitted that the decision by the defendant to cover the sign was not a “kneejerk” reaction by the corporation, rather a considered decision based upon information it had obtained from the police officer, and Mr Peterson. He said the failure to call Ms Collette, the officer who had made the decision, was significant, and the explanation for her non-attendance, inadequate.
127 In relation to general damages, Mr Dyer submitted that an appropriate figure was $200,000 to $250,000 for general damages.
128 He submitted the following were relevant matters:
•
The plaintiff had suffered mild to moderate brain damage which had significant implications.
• He had completely or almost completely lost his sense of smell. •
The facial fractures that he had suffered were very severe, required significant surgery, and still caused ongoing symptoms.
• He regularly suffered from headaches sufficient to interrupt his driving. •
His concentration, memory and capacity to plan were all affected by the brain damage.
• He had suffered a mild Adjustment Disorder as described by Dr Serry. •
His personal relationship with his wife, and close friends, was affected and he was changed markedly by the various injuries.
•
His left knee was likely to deteriorate, and within five to ten years he would be unable to work in his present truck driving position.
•
He was only taking over-the-counter medication, but this was not a reflection on a paucity of his symptoms, but rather that such medication could interfere with his capacity to drive heavy vehicles.
•
He was receiving little treatment, but was a stoic gentleman, prepared to put up with the pain.
• He had pain and stiffness in his neck. •
There was a very significant restriction in his pre-accident recreational and sporting activities.
129 The plaintiff made no claim in relation to past economic loss.
130 As to the future, Mr Dyer submitted that upon the appropriate six per cent deferred multipliers,[53] if one were to assume that the plaintiff would be unable to work from a date five years hence by reason of his various injuries, he would suffer a loss of earning capacity to age sixty-five of $466,587.00, undiscounted for vicissitudes. If one were to assume that he would be unable to work as a result of his injuries from a date ten years hence, upon the same basis he would suffer a loss of earning capacity of $344,047.00, undiscounted for vicissitudes.
[53] as were agreed by Mr Brookes
131 He submitted there ought be little reduction from these figures for the prospect of the plaintiff obtaining alternative employment given his education, training and capacity for other employment.
Conclusions to be Drawn from the Evidence
(a) The credibility of the plaintiff 132 I found the plaintiff an impressive and honest witness. Throughout the course of his evidence, particularly in cross-examination, he answered questions directly and made the concessions I would expect of an honest witness. Generally I accept his description of the transport accident and the circumstances leading up to it. It should be remembered that it is now eight years since the accident, and that it had happened in a very short space of time, so I would expect some vagueness in the plaintiff’s recollection. Noting those matters however, I accept the version as given by the plaintiff.
133 In the extracts of the various clinical notes, there is reference to a history being taken of the plaintiff falling asleep at the wheel. The plaintiff emphatically denied he ever gave any such history. While it is uncertain as to the source of such histories, and how they could have come to appear upon the clinical notes, I accept his denial.
134 Mr Brookes submitted that the plaintiff had reconstructed what had occurred in his mind at some time subsequent to the accident. This reconstruction was as to the part played by the advance direction sign. Mr Brookes submitted that the plaintiff had committed himself to the wrong path and the sign had nothing to do with that misdirection. Possibly, he fleetingly saw the sign at some time after he made the turn into McGlones Road, but it played no real part in misleading him into that action. This was consistent, said Mr Brookes, with the lack of any reference to the sign in the plaintiff’s answer to Interrogatory 6.[54] Further, in paragraph 36 of his affidavit sworn in February 2008, in support of an application for leave to extend the time to bring proceedings pursuant to the Limitation of Actions Act 1958, upon his attendance with solicitors, Slater & Gordon, in 2001, there was nothing in the affidavit to suggest that he made mention of the advance direction sign, or its causative relationship to the transport accident. Had he made mention, submitted Mr Brookes, it would have been referred to. I note there was reference to the sign in paragraph 6 of that affidavit.
[54] Exhibit 4
135 Further, said Mr Brookes, there were histories to various of the medical practitioners in which there was no reference to the sign.
136 Generally, I do not accept that the plaintiff reconstructed the circumstances of the transport accident so as to include reference to the sign misdirecting him. As stated, I found the plaintiff an honest witness. It is always possible that over a lapse of eight years, particularly in a person who would no doubt be regularly thinking of what had occurred to him such as to change his life, that he may, over time, conclude that events occurred in a manner different from what actually happened. Some matters can receive more emphasis, the chronology can become distorted, and things can come to mind which were not considered relevant earlier. Memories of an event over eight years past can be uncertain. However, I am satisfied that the plaintiff has not reconstructed events so as to include the reference to the sign. In my view, the evidence he gave of the influence upon his judgment of the sign prior to making the turn into McGlones Road is credible.
160 It is important in considering this question to ensure the issue is not viewed with convenient litigious hindsight.[70] I have found there were various causes of the transport accident and it is not difficult to focus too much upon one aspect, which is the centre of the litigation.
[70] See Montfroy (supra), at paragraph 66, referring to Commission of Main Roads v Jones (2005) 79 ALJR 1104, at 1106
161 In considering this matter, I have had regard to the evidence of the plaintiff and Mr Daldry, and to the drivers observed by Ms Stewart. I have further considered the placement of the sign, its position upon the roadway and the similarities it bears to the intersection sign.
162 I have considered the submission of Mr Brookes that the advanced direction sign itself is not misleading nor in any other way inappropriate, but it was in fact the driver error of the plaintiff and Mr Daldry in failing to properly observe and interpret the sign in the foggy conditions in which they encountered it. Putting aside for a moment the various drivers referred to in the evidence of Ms Stewart in respect of whom there is no evidence they were driving in foggy conditions, Mr Brookes’ submission was that the cause of the demise of the plaintiff and Mr Daldry was driver error, and not sign error. Any motorist is reliant upon roadway signs to dictate the course his or her vehicle takes upon a roadway, particularly at an intersection. Such signs must be designed and installed in the knowledge that they ought to provide relatively clear directions to drivers in all conditions, particularly in the dark and foggy conditions which prevailed on the morning of the accident.
163 I have concluded that the advance direction sign was capable of and did mislead drivers approaching the intersection of McGlones Road to believe that they were upon the freeway entrance. I am of the view that it was the capacity of the sign to mislead, and not misinterpretation by the driver which caused the plaintiff to veer to the left at McGlones Road. The advance direction sign made no reference to McGlones Road, notwithstanding its position some short distance to the north. It was distinctly open to drivers descending the hill, particularly in foggy conditions, to reasonably interpret the sign as indicating McGlones Road as the freeway entrance. This was because of the position of the sign just past the intersection, and its similarity to the intersection sign. To that end, the sign was misleading.
Nature and Extent of the Duty of Care
164 As stated, there was no debate that the defendant owed the plaintiff a duty of care. It was agreed this case was not concerned with the question of immunity of a highway authority for nonfeasance.
165 In Montfroy,[71] Gillard J stated:
“… In my opinion, the Roads Corporation owed a general duty of care to the plaintiff in its role as the body responsible and empowered to erect and maintain traffic warning signs. Whilst the power to do so is expressed in discretionary terms, in accordance with the general principles laid down in Donoghue v Stephenson, it is reasonably foreseeable that if it fails to erect and/or maintain proper and appropriate road warning signs to road users, injury could occur and secondly, the relationship of the authority having exclusive powers concerning signs on State highways and road users is sufficiently proximate to establish the duty of care. The Roads Corporation is the body empowered to erect proper adequate and suitable signs and is entrusted by Parliament to do so. ... It is in control of the task of erecting the signs. It had a duty to take reasonable care to erect in appropriate places proper warning signs of any known hazards. …”
[71] (supra), at paragraph 35
166 The facts of Montfroy were different from the current case in that His Honour was concerned with a low hump upon a bridge in an area of black ice and the extent to which the Roads Corporation knew or ought to have known of the existence of the hump. While the current case is not concerned with “known hazards”, it is concerned with the erection of appropriate signs in such places and in such a manner to ensure persons using the roadway receive relatively clear directions.
167 The duty owed by the defendant was a duty to take reasonable care to the plaintiff and other road users against the foreseeable risk of injury.
Was the Defendant in Breach of the Duty of Care?
168 The defendant is empowered by Parliament as the sole body responsible for the design, erection and placement of traffic signs, including the advance direction sign. As such, it has a responsibility to ensure, so far as is reasonable, that those signs provide relatively clear directions which such signs are intended to convey.
169 It would be unreasonable, indeed impossible, for signs to provide an accurate direction in every circumstance. Collisions will occur in many instances because drivers fail to pay proper attention to traffic signs, or misinterpret them despite the direction conveyed by the sign as being clear and not reasonably open to misinterpretation. The standard is not one of perfection but only reasonableness. Nonetheless, the duty requires the defendant to design, erect and place such signs bearing in mind their interpretation by drivers will occur sometimes when it is dark, and in conditions of thick fog. Regard should also be had to the fact that drivers would descend the hill in a speed zone of 100 kilometres per hour.
170 In considering whether there has been a breach of the duty of care, I bear in mind alternative signage as was suggested by Ms Donald. It was her view that, notwithstanding the compliance of the signs with the various regulations, that:
(a)
The advance direction sign ought to have been placed to the south of the intersection;
(b)
The advance direction sign ought to have made reference to McGlones Road, by way of a stub sign or otherwise;
(c) There ought to have been hook turn arrows upon the roadway. 171 In my view, the defendant was in breach of the duty it owed for the following reasons:
(a)
The advance direction sign was located too close to McGlones Road. Its position, albeit some 12 to 15 metres to the north, was capable, and did mislead drivers into believing McGlones Road was the freeway entrance;
(b)
The advance direction sign, in at least its bottom part, was too similar in size, configuration and position to the intersection sign. It was easily capable of, and did mislead drivers, including the plaintiff;
(c)
It made no reference to McGlones Road. Whether it was placed either to the south or the north, a reference, either by stub road sign or otherwise, to McGlones Road would, in my view, have lessened the risk of misdirection;
(d)
I am unable to determine from the evidence whether it would have been appropriate to have positioned an advance direction sign to the south or to the north. Such a matter could only be determined after careful investigation, and possibly statistical survey. Nonetheless whether it was positioned to the north or the south, it ought to have been positioned a sufficient distance away from McGlones Road to avoid the risk of misdirection;
(e)
If it was to be placed close to the McGlones Road intersection, it ought to have given some indication of the distance to the freeway entrance. Without that, it was again capable of misleading;
(f)
In my view, it is no defence for the Roads Corporation to say that stub signs indicating side roads were either not available or not in general use in 2001. I accept the evidence of Ms Donald that the sign upon the Maroondah Highway, including a stub road sign, had been in existence for many years. A rigid adherence to a specified formula, while appropriate in many situations, is not appropriate in all situations. Regard must be had to the particular intersection and geography of the area to be signed.
(g)
Hook turn arrows ought to have been placed upon the roadway at the entrance to McGlones Road to make clear the difference in angle of the turn.
172 For all of these reasons, I am of the view the defendant was in breach of its duty.
Was the Breach Causative of the Plaintiff’s Injury and Loss?
173 Mr Brookes submitted that even accepting the defendant was in breach (which he staunchly denied) then any such breach was not a “legal breach”, or a breach of such little substance that it could not be said to be causative. In March v E & MH Stramare Pty Ltd & Ors,[72] Mason CJ stated:[73]
“Some of the confusion surrounding the legal concept of causation has been occasioned by the terminology employed in the various attempts which have been made over the years to express the principles governing the measure of damages recoverable in tort or contract. Not infrequently these endeavours have invoked the language of causation with a view to limiting liability by reference to causal considerations. Thus, it has been said that a wrongdoer is liable for consequences of his or her wrongful conduct which have been variously described as ‘direct’ (Re Polemis and Furness, Withy & Co [1921] 3 KB 560), ‘natural and probable’ (Haynes v Harwood [1935] 1 KB 146 at 156; Dorset Yacht Co v Home Office [1970] AC 1004 at 1028–30), ‘direct and natural’ (The Edison [1932] P 52 at 62–4, 74; affd sub nom Liesbosch, Dredger v Edison, SS (Owners) [1933] AC 449), when the wrongful act is ‘the proximate cause’ (Yorkshire Dale Steamship Co v Minister of War Transport [1942] AC 691) or ‘the real effective cause’ (Leyland Shipping Co v Norwich Union Fire Insurance Society [1918] AC 350 at 370).”
[72] (1991) 171 CLR 506
[73] at 509
174 Further:[74]
“None the less, the law's recognition that concurrent or successive tortious acts may each amount to a cause of the injuries sustained by a plaintiff is reflected in the proposition that it is for the plaintiff to establish that his or her injuries are ‘caused or materially contributed to’ by the defendant's wrongful conduct: …”
[74] at 514
175 Further:[75]
“The common law tradition is that what was the cause of a particular occurrence is a question of fact which ‘must be determined by applying common sense to the facts of each particular case’, … “
[75] at 515
176 Further, Dean J stated:[76]
“For the purposes of the law of negligence, the question of causation arose in the context of the attribution of fault or responsibility whether an identified negligent act or omission of the defendant was so connected with the plaintiff's loss or injury that, as a matter of ordinary common sense and experience, it should be regarded as a cause of it. …
The ‘but for’ (or ‘causa sine qua non’) test may well be a useful aid in determining whether something is properly to be seen as an effective cause of something else in that sense. …”
[76] at 522
177 The subject of causation was examined in detail by various justices of the High Court in Roads and Traffic Authority v Royal.[77] In particular, Kirby J[78] set forth seven principles to be considered in determining the issue of causation. I have read and been assisted by those principles.
[77] [2008] HCA 19
[78] at paragraphs 79-94
178 As stated, I am of the view there were various causes of the transport accident. The capacity of the advance direction sign to mislead was one of them. That cause was not, in my view, remote nor fanciful. It was “so connected” with the plaintiff’s loss[79] so as to make it a legal cause. The authorities have made reference to the “but for” test in determining causation.[80] While that test does not appear to have solid current support, particularly in situations where there are a number of causes, it is, nonetheless, of some assistance. I am satisfied that but for the presence of the sign, it was probable the transport accident would not have occurred. For all these reasons, I am satisfied that the breach of duty by the defendant was causatively related to the plaintiff’s injury and loss.
[79] March v E & MH Stramare Pty Ltd & Ors. (supra) at page 522
[80] See further Pledge v Roads and Traffic Authority 78 ALJR 572 – per Hayne J, at paragraph 9
Contributory Negligence of the Plaintiff
179 It is submitted by Mr Brookes that should I find the defendant in breach of its duty, that the extent to which the plaintiff contributed to his injury and loss as a result of his own conduct was very substantial and ought to reflect at the very higher end of contributory negligence range. The standard applicable to the plaintiff is that of the reasonable driver in the circumstances prevailing at the time.
180 There are, in my view, two factors which bear consideration. The first is the speed at which the plaintiff was travelling shortly prior to the intersection of McGlones Road. In his evidence, he stated he was travelling at 80 to 85 kilometres per hour. The speed limit prevailing at the time for northbound traffic was 100 kilometres per hour. The fact that the plaintiff was travelling within the speed limit does not preclude a finding of contributory negligence as it is the conditions at the time which were relevant, the speed limit being only one factor. In my view, bearing in mind that the plaintiff was only able to see something in the order of 10 to 20 feet in front of him, to travel down the hill before the intersection at a speed of 80 to 85 kilometres per hour was too fast in the circumstances. The plaintiff was aware that he had to be alert to the turnoff onto the freeway. He stated that he was travelling at that speed as he was concerned that vehicles coming from behind upon a slow moving car could be a danger. There is merit in that concern but that does not of itself justify a speed of 80 to 85 kilometres an hour when the visibility was so restricted. Such was the fog that the plaintiff found it difficult to see various signs upon the road. He did not observe the 300 metre sign towards the top of the hill. The fog was such as to require him to drive carefully, observing the fog line on the left-hand side of the carriageway to ensure his vehicle stayed in the appropriate position.
181 I am not able, from the evidence, to say what an appropriate speed would have been. There was evidence from Ms Stewart[81] she would drive slowly down the hill in a thick fog. She said if she was to turn into McGlones Road she would travel at about 20 to 30 kilometres per hour and would take the turn into that road at about 15 kilometres per hour. However, Mr Dykes was not intending to turn into McGlones Road. The best I am able to determine is that it would have been appropriate for the plaintiff to drive at a speed less than 80 kilometres per hour in the circumstances which prevailed.
[81] T 227, T 230
182 Secondly, the plaintiff failed to observe and comprehend various cues which were available to him to determine whereupon the highway he was. He did not observe the 300 metre sign. It is clear that the advance direction sign was the first sign indicating the freeway entrance and the intersection sign was the second. His observance was not such as to be aware, when he saw the advance direction sign, that it was in fact the first of the two freeway signs. He knew the area well, having travelled it over the past twelve months and, in my view, ought to have been alerted to these cues. The fact that he was not reflects some lack of attention on his part.
183 Drivers who travel roads regularly become aware of various cues to indicate distances and directions to and from certain points. A driver may become aware of a flat area of road rather than an incline or decline. There may be subtle cues such as houses, foliage or changes in road geography which indicate the driver is at a certain point in the road. In my view, in the conditions that prevailed, the plaintiff ought to have been more cognisant of the need to pay careful attention to such cues. The fact that he turned into McGlones Road is a reflection, in part, of the failure to pay such attention.
184 In Podrebersek v Australian Iron & Steel Pty Ltd,[82] the majority of the High Court, in relation to the assessment of contributory negligence, said:[83]
“A finding on a question of apportionment is a finding upon a ‘question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds’: British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 201. …
. . .
The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man … and of the relative importance of the acts of the parties in causing the damage. …”
[82] [1985] HCA 34
[83] paragraph 8-10
185 In considering the relative departures, both of the defendant and the plaintiff from the duty owed, in my view, the provision by the defendant of a sign which had the capacity to mislead drivers, or the failure to provide a sign which provided a relatively clear direction, was a factor of greater significance or importance than the breaches by the plaintiff as referred to above. In weighing the respective breaches and assessing matters of “proportion, balance and relative emphasis” in my view, it is appropriate to apportion responsibility as to two-thirds to the defendant, and as to one-third to the plaintiff.
Damages
General Damages
186 The plaintiff suffered very significant facial fractures, including to the frontal sinus and mandible, and Le Fort fractures. He underwent a craniotomy to repair the floor of the cranial fossa. He further suffered partial cranial nerve palsy.
187 Considering the seriousness of these fractures, the plaintiff has made a remarkable recovery. I observed facial scarring which I did not detect as significant.
188 He further suffered a closed head injury which has resulted in mild to moderate brain damage. The facial fractures required bouts of surgery by different surgeons. He suffered a penetrating injury to his left knee requiring surgery. He remained in hospital for a considerable period, including in the Intensive Care Unit at the Alfred Hospital, and several weeks at the Victorian Rehabilitation Centre.
189 He further suffered a soft tissue injury to his neck.
190 The consequences of these various injuries have had a very marked affect upon the plaintiff’s life. He has effectively lost his sense of smell which affects him in various ways and in particular, he is unable to detect petrol fumes and other noxious substances in his work as a truck driver. He suffered some blurred vision and difficulties with sight, but these appear to have largely resolved.
191 The closed head injury has resulted in mild to moderate brain damage. Dr Stuart, neuropsychologist, assessed this as affecting functions such as higher language levels, capacity for logical thought, and loss of efficiency of verbal memory. Information processing was also affected. This has resulted in some alteration in the plaintiff’s moods, affecting his relationship with his wife, the ability to plan, particularly in relation to his work as a truck driver, and left him lacking in energy and tired after work. Further, he suffers headaches two to three times a week. The worst sometimes last for several days. Sometimes he is required to pull off the road as he is unable to continue driving.
192 He suffers regular jaw pain and pain into his forehead. There is nerve damage to the side of his face which causes embarrassment when food or liquid dribbles down the side of his mouth.
193 Evidence was given by Mr Huffam, orthopaedic surgeon, as to the injury to the plaintiff’s left knee. His examination of x-rays recently taken demonstrated ectopic bone growth around the area of the patella, with narrowing of the articular cartilage. There was evidence of osteoarthritis, and that was likely to develop further in the long-term. The plaintiff’s knee locks from time to time and he walks with a slight limp. Mr Huffam considered that with the development of osteoarthritis it was possible he would be unable to work in five years’ time, and probable that he would be unable to work in ten years’ time.
194 In relation to the plaintiff’s neck, Mr Huffam thought there had been an aggravation of an underlying degenerative condition causing pain and restriction of movement. The opinion in relation to the left knee provided by Mr Huffam was different to some extent from that provided by Mr Shannon, orthopaedic surgeon. The latter made little reference to the development of osteoarthritis. To the extent that there is a divergence in opinion, and having heard from Mr Huffam, I prefer his opinion. I accept the evidence of Mr Huffam as to particularly the development and progress of osteoarthritis, and the effect it is likely to have upon the plaintiff’s work capacity.
195 From a psychological perspective, Dr Serry diagnosed the plaintiff as suffering an Adjustment Disorder with some post-traumatic anxiety features. The plaintiff suffers intermittent dreams and flashbacks. His concentration was affected and he was subject to fatigue.
196 Evidence was given by the plaintiff’s wife and from a former co-employee, Mr Salmon, both of whom described the extensive effects the injuries have had upon the plaintiff’s lifestyle.
197 I accept the plaintiff is unable to play the indoor cricket he enjoyed regularly before injury. Likewise, his capacity to play ten-pin bowling has been lost. He is no longer able to enjoy camping and outdoor activities as he did before the transport accident.
198 It is pointed out by Mr Brookes that the plaintiff has no active treatment at the present time and takes little medication. I accept his explanation that he takes no medication, aside from “over the counter” pain relief as he is concerned about its effect upon his capacity to drive large trucks. I assess the plaintiff as a stoic person, with a high pain tolerance, and someone reluctant to go to doctors for treatment.
199 Further, Mr Brookes submits that the plaintiff, since a relatively short time after the accident, resumed work full-time in local and interstate heavy haulage truck driving. This is demanding employment requiring the plaintiff to work on occasions up to seven days a week, and sometimes 10 hours per day. He is required not only to drive the vehicles, but load them and tie down the loads. This, says Mr Brookes, reflects the plaintiff has largely recovered from his injuries and that they do not incapacitate him significantly at the present time.
200 Mr Brookes urged general damages ought be assessed in the range of $100,000 to $150,000. Mr Dyer urged $200,000 to $250,000. Given the injuries suffered by the plaintiff, and the consequences of those injuries, in my view, the range as suggested by the plaintiff’s counsel, is appropriate.
201 I assess general damages in the sum of $225,000.
Loss of Earning Capacity
202 The plaintiff makes no claim for past economic loss. His claim is that in possibly five years’ time, and probably ten years’ time, he will be unable to maintain his current work.
203 I am satisfied from the evidence, particularly from Mr Huffam, that as a consequence principally of his left knee injury, that he will be unable to continue in employment that he is presently undertaking in ten years’ time. The plaintiff said even at the present time, he found the work duties becoming more difficult to bear. It was more difficult for him to tie down his loads, and to climb over the truck for that purpose. His capacity to plan trips, and properly distribute his load was affected. I am satisfied, on the balance of probabilities, that the plaintiff will be unable to perform his duties from a time approximately ten years hence.
204 The plaintiff’s current net weekly earnings, including a provision for superannuation, is $1,085.30 per week. Accepting the plaintiff is likely to cease work in ten years’ time, at age fifty-six, the calculation using the appropriate multiplier on a deferred basis shows a loss of $344,047.00.
205 It is put on behalf of the defendant that given the plaintiff’s capacity for work, and the fact that he has a family to support,[84] the likelihood is that he will obtain some form of employment either in truck driving of a less strenuous nature, or some other type of manual employment.
[84] The plaintiff and his wife are involved in the IVF program and hope to have children.
206 The prospect of any such employment ought, in my view, reflect in a reduction for the vicissitudes of life. The plaintiff completed only Year 9 at secondary school and joined the Army at a young age. He has known no other form of employment save truck driving. He has no formal qualifications nor training in any other area of employment. He was said to be a good handyman in areas mechanical. Should the plaintiff be unable to do his present work in ten years’ time, he faces the prospect, at age fifty-seven, of seeking alternative employment. I accept that by that time he will be considerably impaired by his knee injury, and very probably the other injuries which he is currently suffering. At that point, in my view, his prospects of obtaining alternative employment, be it in less strenuous truck driving or some other form of manual employment, are bleak.
207 Accepting that he is a person with a strong work ethic with a real drive to properly provide for his family, there is the prospect that he will obtain some form of employment. Doing the best that I am able in assessing what is likely to occur in the future, in my view, it is appropriate to reduce the sum of $344,047.00 by 20 per cent. This reduction takes into account not only the prospects of obtaining employment in the future, but also the prospect that he will be forced out of the workforce at some time prior to age fifty-seven.
208 In summary, my finding as to damages is as follows:
General Damages $225,000.00 Loss of Earning Capacity $344,047.00 –
reduced by 20 per cent $275,238.00 __________
$500,238.00
==========
209 I will hear from the parties further as to interest, and the calculations for reduction for contributory negligence.
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