Estephan v Lynsey Finch and Ors - [2007] NSWDC 285

No judgment structure available for this case.

CITATION: Estephan v Lynsey Finch and Ors [2007] NSWDC 285

HEARING DATE(S): 6 March 2006 - 24 March 2006

JUDGMENT DATE:
10 July 2007

JURISDICTION: Civil

JUDGMENT OF: Neilson DCJ at 1

DECISION: Matter No: 1042/04 - Plaintiff: Estephan Estephan; Verdict for the Plaintiff against the Defendants for damages to be assessed; Verdict for the First Cross Claimant (LCC) against the First and Second Cross Defendants for 20 per cent of the damages so assessed; Judgment for the Third Cross Defendant to the First Cross Claim against the First Cross Claimant; Order the First Cross Claimant to pay the costs of the Third Cross Defendant to the First Cross Claim; Verdict for the Second Cross Claimants against the Second Cross Defendant for 80 per cent of the damages so assessed; Matter No: 2124/04 - Plaintiff: Charlene Estephan; Verdict for the Plaintiff against the Defendants for damages to be assessed; Verdict for the First Cross Claimant (LCC) against the First and Second Cross Defendants for 20 per cent of the damages so assessed; Judgment for the Third Cross Defendant to the First Cross Claim against the First Cross Claimant; Order the First Cross Claimant to pay the costs of the Third Cross Defendant to the First Cross Claim; Verdict for the Second Cross Claimants against the Second Cross Defendant for 80 per cent of the damages so assessed; Matter No: 2125/04 - Plaintiff: Joanne Estephan; Verdict for the Plaintiff against the Defendants for damages to be assessed; Verdict for the First Cross Claimant (LCC) against the First and Second Cross Defendants for 20 per cent of the damages so assessed; Judgment for the Third Cross Defendant to the First Cross Claim against the First Cross Claimant; Order the First Cross Claimant to pay the costs of the Third Cross Defendant to the First Cross Claim; Verdict for the Second Cross Claimants against the Second Cross Defendant for 80 per cent of the damages so assessed; Matter No: 2126/04 - Plaintiff: Joseph Azzi; Verdict for the Plaintiff against the Defendants for damages to be assessed; Verdict for the First Cross Claimant (LCC) against the First and Second Cross Defendants for 20 per cent of the damages so assessed; Judgment for the Third Cross Defendant to the First Cross Claim against the First Cross Claimant; Order the First Cross Claimant to pay the costs of the Third Cross Defendant to the First Cross Claim; Verdict for the Second Cross Claimants against the Second Cross Defendant for 80 per cent of the damages so assessed; Matter No: 2127/04 - Plaintiff: Mary Azzi; Verdict for the Plaintiff against the Defendants for damages to be assessed; Verdict for the First Cross Claimant (LCC) against the First and Second Cross Defendants for 20 per cent of the damages so assessed; Judgment for the Third Cross Defendant to the First Cross Claim against the First Cross Claimant; Order the First Cross Claimant to pay the costs of the Third Cross Defendant to the First Cross Claim; Verdict for the Second Cross Claimants against the Second Cross Defendant for 80 per cent of the damages so assessed; Matter No: 3797/04 - Plaintiff: Lynsey Finch; Verdict for the Plaintiff against the Defendant for 80 per cent of damages to be assessed; Judgment for the Cross Defendant against the Cross Claimant; Order the Cross Claimant to pay the Cross Defendant’s costs; In each matter, I grant liberty to the parties to apply on 7 day’s notice for any special costs orders including, if sought, an order for the interim assessment of costs.

CATCHWORDS: Fatal collision between a stationwagon and a tip truck towing a trailer at an intersection (modified T intersection) at Rossmore in Liverpool local government area - Six actions arising from this collision were heard together on question of liability - Ultimate issues were whether the driver of the tip truck and trailer (F) was negligent, whether the driver of the stationwagon (JE) was negligent and whether the local government body (LCC), the applicable road authority were negligent and, if more than one were negligent, apportionment of liability - Lengthy consideration of the history of the intersection - Lengthy reconstruction of and consideration of the collision - Consideration of the applicable speed limit at [14] to [29] - Australian Road Rules 21 and 25 and definition of "built-up area" - Immediate causes of the collision were held to be: (a) JE knew she had right of way at the intersection which she exercised by making a right hand turn. (b) F erroneously believed that he had right of way. (c) only when F perceived that JE was not going to yield way to him and was going to turn right across the path of F's truck did he apply his footbrake, braking hard enough to seek to avoid the collision. (d) when JE's stationwagon emerged on F's left, F tried to turn or veer right to avoid it, had he continued on a straight path or attempted to veer to the left, the collision would have been avoided - Lengthy consideration of lay and expert evidence concerning speed of F's truck. A number of experts assessed his initial speed as in excess of 90kph in an area where 60kph limit applied. Held F was driving at about 70kph when he first perceived the lights of JE's vehicle - Held: (1) F was negligent: (a) he failed to keep a proper lookout. He ought to have observed and heeded a modified T intersection warning sign. (b) he failed to keep left by steering his truck into the right side of the carriageway. (2) F was not negligent in driving at 70kph in 60kph zone because of confusion about the speed limit and the difficulty of determining whether this was a "built-up area" and matters considered between [14] and [29]. Breach of a road rule is not itself negligence: Tucker v McCann [1948] VLR 222 at 227, Brulhart v Jarman [1964] NSWR 1210. The effective cause of the collision was not speed but F's lack of awareness of the altered priority of the T intersection. (3) JE was not negligent. This was a classic case of an "agony of the moment" decision. Fleming, The Law of Torts, 9th ed. (1998) p 319. (4) LCC was negligent as a Give Way sign ought to have been erected at the intersection facing traffic approaching it in the direction F did, as (a) the modified T intersection sign was possibly ambiguous. (b) that sign could be misinterpreted. (c) this had been requested on a number of occassions since 1992 by neighbouring residents and by a local councillor in 1998. (d) had been proper road engineering practice since 1994, and alterations had been made to the intersection in 1996 and 1998. Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201 at 214. (5) Liability apportioned 20 per cent to F and 80 per cent to LCC. Brodie v Singleton Shire Council (2001) 206 CLR 512 at 580, Liverpool City Council v Millet [2004] NSWCA 340 - 34 MVR 193. Argument that in an apportionment the Court should consider questions arising from different measures of damages rejected. Law Reform (Miscellaneous Provisions) Act 1946 s 5, Law Reform (Miscellaneous Provisions) Act 1965 s 9, Wynbergen v Hoyts Corporation Pty Ltd (1997) 72 ALJR 65 at 68, Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492, Josyln v Berryman [2003] HCA 34 at [124] - [128]

LEGISLATION CITED: Motor Accidents Compensation Act 1999
Law Reform (Miscellaneous Provisions) Act 1946
Law Reform (Miscellaneous Provisions) Act 1965
Roads Act 1993
Civil Liability Act 2002
Australian Road Rules

CASES CITED: Tucker v McCann [1948] VLR 222
Brulhart v Jarman [1964] NSWR 1210
Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201
Brodie v Singleton Shire Council (2001) 206 CLR 512
Liverpool City Council v Millet [2004] NSWCA 340; 34 MVR 193
Wynbergen v Hoyts Corporation Pty Ltd (1997) 72 ALJR 65
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492
Josyln v Berryman [2003] HCA 34

PARTIES:
Matter: 1042/04
Plaintiff: Estephan Estephan
First Defendant: Lynsey Finch
Second Defendant: Rocks Excavations and Plant Hire Pty Ltd
Third Defendant: Liverpool City Council
Matter: 2124/04
Plaintiff: Charlene Estephan by her tutor Estephan Estephan
First Defendant: Lynsey Finch
Second Defendant: Rocks Excavations and Plant Hire Pty Ltd
Third Defendant: Liverpool City Council
Matter: 2125/04
Plaintiff: Joanne Estephan by her tutor Estephan Estephan
First Defendant: Lynsey Finch
Second Defendant: Rocks Excavations and Plant Hire Pty Ltd
Third Defendant: Liverpool City Council
Matter: 2126/04
Plaintiff: Joseph Azzi
First Defendant: Lynsey Finch
Second Defendant: Rocks Excavations and Plant Hire Pty Ltd
Third Defendant: Liverpool City Council
Matter: 2127/04
Plaintiff: Mary Azzi
First Defendant: Lynsey Finch
Second Defendant: Rocks Excavations and Plant Hire Pty Ltd
Third Defendant: Liverpool City Council
Matter: 3797/04
Plaintiff: Lynsey Finch
Defendant: Liverpool City Council

FILE NUMBER(S): 1042/04; 2124/04; 2125/04; 2126/04; 2127/04; 3797/04

COUNSEL: Mr P. Semmler QC and Mr C. Thompson appeared for the plaintiffs in the first 5 matters.
Mr J. Heazlewood appeared for Mr Finch as plaintiff.
Mr R.R. Stitt QC and Mr H.W. Stitt appeared for Mr Finch as defendant and also for Rocks Excavations and Plant Hire Pty Ltd, by right of subrogation.
Mr M. Windsor appeared for Liverpool City Council.
Mr D.J. Russell SC appeared for Mr Estephan as executor of the estate of Mrs Estephan, by right of subrogation.

SOLICITORS: Carrol and O’Dea for the plaintiffs in the first five matters.
Michael Jokovic and Associates for the plaintiff in the sixth matter.
Sparke Helmore for the first and second defendants in the first five matters.
McCabe Terrill for Liverpool City Council.
TL Lawyers for the estate of the late Jocelyn Estephan.

JUDGMENT

Introduction

1 The matter named above is one of six actions that are currently before me. Those matters were heard together and the evidence in one case is evidence in each of the others. All six actions arise out of one tragic event: the collision between a tipper truck towing a trailer, driven by Mr Finch, and a Ford Falcon stationwagon, driven by Mrs Jocelyn Estephan, at the intersection of King Street and Devonshire Road, Rossmore in the Liverpool City Council local government area on 25 May 2001 at approximately 5.55p.m. Mrs Estephan (who turned 32 years of age that day) and her son Steven Estephan (aged 8 or 9 years), a passenger of the Ford Falcon stationwagon, were killed and Mrs Estephan’s two daughters, Charlene (aged 12) and Joanne (aged 4), other passengers in the stationwagon, were critically injured. The matters are before for me for the determination of liability only. The ultimate issues are whether Mr Finch was negligent; whether Liverpool City Council was negligent; whether Mrs Estephan was negligent; and, if more than one person were negligent, as to how liability ought be apportioned between them.

The Actions

2.1 Matter: 1042/04

The plaintiff is the widower of the late Mrs Estephan. This claim is made under the Motor Accidents Compensation Act 1999, section 113(1) and under the Compensation to Relatives Act 1897. The plaintiff makes the latter claim on his own behalf and on behalf of his two surviving children, Charlene and Joanne. The second defendant is the owner of the vehicle being driven by Mr Finch. Each defendant seeks contribution from the other, and in addition, the Liverpool City Council seeks contribution from Estephan Estephan as executor of the estate of Mrs Estephan.

2.2 Matter: 2124/04

This is Charlene’s claim for personal injury. The cross-claims are as in the first matter.

2.3 Matter: 2125/04

This is Joanne’s claim for personal injury. The cross-claims are as in the first matter.

2.4 Matter: 2126/04

Mr Azzi is the father of the late Mrs Estephan. His claim is for “nervous shock.” The cross-claims are as in the first matter.

2.5 Matter: 2127/04

Mrs Azzi is the mother of the late Mrs Estephan. Her claim is for “nervous shock.” The cross-claims are as in the first matter.

2.6 Matter: 3797/04

This is Mr Finch’s claim for psychological injury. The defendant has made a cross-claim against Estephan Estephan as executor of the estate of the late Mrs Estephan.

Appearances

3 As Mr Estephan has three roles in this litigation (plaintiff, tutor and executor of Mrs Estephan’s estate) and as Mr Finch has two roles (defendant and plaintiff) note must be made of the appearances:

1. Mr P. Semmler QC and Mr C. Thompson appeared for the plaintiffs in the first 5 matters;
2. Mr J. Heazlewood appeared for Mr Finch as plaintiff;
3. Mr R.R. Stitt QC and Mr H.W. Stitt appeared for Mr Finch as defendant and also for Rocks Excavations and Plant Hire Pty Ltd, by right of subrogation;
4. Mr M. Windsor appeared for Liverpool City Council;
5. Mr D.J. Russell SC appeared for Mr Estephan as executor of the estate of Mrs Estephan, by right of subrogation.

The Intersection

4 The southern end of King Street commences at Bringelly Road, at Rossmore. Bringelly Road is described as a main traffic route, running east – west from Camden Valley Way to The Northern Road at Bringelly. King Street runs south – north but ends before it reaches Twelfth Avenue. It is a “no through road”. The last intersection on King Street is with Devonshire Road. That intersection is, geometrically, a T intersection, with Devonshire Road being the stem of the T. This intersection is the southern end of Devonshire Road. It joins King Street on the western side of King Street. Devonshire Road runs westward from King Street for 230m and then turns to head northward. It then runs north to Elizabeth Drive at Kemps Creek, where it ends. Elizabeth Drive is a main traffic route running east – west, from Liverpool to The Northern Road at Luddenham. By following King Street north to its intersection with Devonshire Road and then Devonshire Road, a motorist can travel between Bringelly Road and Elizabeth Drive and the same route may be followed in the opposite direction. Street directories mark this route as an “alternative traffic route” and Mr J.W. Gill of the Roads and Traffic Authority of New South Wales (“RTA”) described King Street and Devonshire Road as “regional roads.”

The relevant Roads Authority

5 The Roads Act 1993, section 7 provides:

“(1) The RTA is the roads authority for all freeways.

(2) The Minister is the roads authority for all Crown roads.

(3) The regulations may declare that a specified public authority is the roads authority for a public road, or for all public roads within a specified area, other than any freeway or Crown road.

(4) The council of a local government area is the roads authority for all public roads within the area other than:

(a) any freeway or Crown road, and

(b) any public road for which some other public authority is declared by the regulations to be the roads authority.

(5) A roads authority has such functions as are conferred on it by or under this or any other Act or law.”

6 Sections 145 and 146 of the same Act provide:

“145 Roads authorities own public roads

(1) All freeways are vested in fee simple in the RTA.

(2) All Crown roads are vested in fee simple in the Crown as Crown land.

(3) All public roads within a local government area (other than freeways and Crown roads) are vested in fee simple in the appropriate roads authority.
(4) All public roads outside a local government area (other than freeways and Crown roads) are vested in fee simple in the Crown as Crown land.

146 Nature of ownership of public roads

(1) Except as otherwise provided by this Act, the dedication of land as a public road:
(a) does not impose any liability on the owner of the road that the owner would not have if the owner were merely a person having the care, control and management of the road, and
(b) does not affect the rights or liabilities of any person under any easement or under any Act or law, and
(c) does not affect any rights of any person with respect to minerals below the surface of the road, and
(d) does not constitute the owner of the road as an occupier of the land, and
(e) does not authorise the owner of the road to dispose of any interest (other than easement or covenant) in the land, and
(f) does not prevent any lands that were previously considered to be adjoining lands for the purposes of the Land Acquisition (Just Terms Compensation) Act 1991 from continuing to be so considered.

(2) This section does not restrict the power of a roads authority to regulate the digging up of public roads pursuant to the provisions of any other Act.”

7 It can be seen, therefore, that the relevant roads authority has the liability of a person having the care, control and management of a road.

8 It was only on the morning of the seventh day of hearing that the Liverpool City Council (“LCC”) admitted that the two roads were “local roads” for which it was responsible and that that responsibility extended to the intersection of the two roads. This was an extremely belated admission. On 13 May 2004 Messrs Carroll and O’Dea (for the first five plaintiffs) wrote to the RTA a letter, the relevant portion of which is:

“we request that you urgently advise us whether the Roads and Traffic Authority was in any way responsible for the following prior to 25 May 2001: -

1. the installation of and changes to the signage on King Street and Devonshire Road in Rossmore;
2. the line markings on King Street and Devonshire Road, Rossmore;
3. the installation and maintenance of street lighting along the abovementioned roads;
4. the installation of traffic signals at the intersection of King Street and Devonshire Road, Rossmore; and
5. modifications, repairs, design and maintenance of Devonshire Road and King Street in Rossmore.”

9 The reply from the RTA, under the hand of the General Manager of its Legal Branch, was:

“I refer to your letter dated 13 May 2004 in relation to the subject matter and advise that the Roads and Traffic Authority of NSW (RTA) isn’t responsible for any of the points mentioned.

The RTA would be responsible for the maintenance of traffic signals, however there are no traffic signals at the intersection of King Street and Devonshire Road, Rossmore.

The roads in question are under the care and control of Liverpool City Council, so accordingly Council may have the information sought.”

10 The other parties, and the Court, had been pressing the LCC to make this admission from the first day of the hearing. Owing to the dilatory behaviour of LCC, Mr Semmler QC made arrangements to call witnesses from the RTA to establish that fact. Those witnesses were to be called on the seventh day of the hearing, and they were, as they also established other matters. Mr J.W. Gill, Council Liaison Regional Projects Manager, and Mr N. Forrest, Sydney Assets Manager, both gave evidence that the body responsible for “regional roads” was the Local Council, in the present matter, LCC.

11 Even if the relevant powers and obligations are not imposed on LCC as the roads authority by the Roads Act 1993 or other Act of Parliament, they have been delegated by the RTA to the LCC: Exhibit EE. A Council is permitted to sub-delegate its powers to a councillor, its general manager or any employee of the Council. Ultimately, no submission was made by LCC that it did not have either the power or responsibility to do what the other parties suggested it ought to have done.

Relevant Relationships between RTA and LCC

12 During the hearing attempts were made by LCC to attribute responsibility for the intersection in question to the RTA and to absolve itself from responsibility by relying on the involvement and greater expertise of the RTA in the decision-making process. Ultimately, those arguments were not advanced in submissions by LCC but, in light of the evidence adduced, I ought record what it establishes.

(a) Funding

The State Treasury (perhaps from Parliamentary appropriation or perhaps from Federal grants) allocates to the RTA money to assist Local Government Councils to manage and maintain “regional roads.” This was referred to as a “block grant.” Two components of it are exclusively for regional roads. One of those components is the “traffic facilities” component which enables Local Councils to install and maintain signs on regional roads. Councils are not obliged to take the block grant. Thirty-one Local Councils do take it, nine do not. LCC is one of the nine. If a Council takes the grant it must install “lines and signs” itself, either by the Council’s own work gangs or by a contractor. If a Council does not take the grant, it asks the RTA to do the work. The RTA finances such work out of the unallocated grant money. According to Mr Gill, many Councils take the grant because it enables them to do the work more quickly and often those Councils believe they can do a better job than the RTA. On the other hand, Councils which do not take the block grant have the opportunity, if they act quickly, to have more work done by the RTA than they might do themselves because the total of the block grants unallocated is available. However, in Mr Gill’s experience, over the 4 financial years preceding 14 March 2006, there was “a surplus of funds” indicating that the nine Councils which did not take the block grant were not using all the funds collectively available to them.

(b) Performance of Work

For a Council such as LCC, work on its regional roads is done by the RTA but the evidence establishes that the RTA work gang is merely working as if it were a contractor to the Council. When a relevant decision has been made by a Council, a form, RTA Form 337 is completed and forwarded to the RTA. The form requires the relevant approval to be stated on it. The RTA then does the work “as a contractor” (Transcript 419.43). When asked to explain what he meant by that, Mr Gill continued:

“A. The RTA has been instructed to do some work on this form. It’s got the plans, the details, exactly where things are to go. The RTA would not put in something which was contrary to what was on this plan. That’s what I’m saying.

Q. They simply follow the plan?
A. We simply follow the plan in accordance with these instructions.

Q. Does the RTA bill the council for the work?
A. This work is done by our works depot in Yennora. The Yennora office bills our office. It has a purchase order, you might say; – an internal purchase order – where monies is transferred from one section to another section.

Q. Does the council ever get a bill for that work that’s done?
A. Never.”

It became very clear that once approval of the work to be done had been given by a Council that no further scrutiny of it was made by the RTA.

(c) Traffic Committee

Each local government area has a Traffic Committee. The evidence suggests that this may have been adopted at the instigation of the RTA but that is only of historical interest. Exhibit 12 is a Report and Recommendation to LCC, which recommendations were adopted by LCC with one amendment on 14 December 1992. The background of this report is to divide functions between the Traffic Committee and the “Traffic and Parking Department” of the Council. Functions assigned to the Department need not go before the Traffic Committee and could be approved by the Council under delegated authority. Some decisions made under delegated authority might have to receive the approval of the Police and RTA members of the Traffic Committee.

According to Exhibit 12, the “formal members” of the Traffic Committee, those entitled to vote, were: all councillors, the Traffic and Parking Manager (a Council employee), a representative from the Chamber of Commerce, representatives of the Police, the Department of Transport and RTA and local members of Parliament. The recommendation divided functions between two Schedules. One recommendation adopted was that the Traffic and Parking Manager be granted delegated authority to approve such matters referred to as Schedule 2 items. Schedule 2 items included:

§ Stop/Give Way signs
§ Regulatory Line-marking
§ Street Lighting

The arguments of the LCC were eventually abandoned when it became clear that the relevant decision was made by a Council employee under delegated authority and no evidence was adduced that the relevant decision had been referred to either the RTA or the Police.

History of the Intersection Prior to the Collision

13.1 As I have already pointed out, the intersection, as initially formed, was a classic T intersection, with traffic in King Street having right of way over traffic turning out of Devonshire Road.

13.2 Correspondence from LCC to Prospect Electricity dated 23 September 1991 led to street lights being installed on the western side of King Street as far as Devonshire Road (Exhibit M, p.31).

13.3 About 5.15pm on 26 May 1992, the son of Mrs D. Nicholls of Rossmore was involved in “a serious accident” at the intersection. He was travelling north along King Street towards its end and collided with a car “travelling on Devonshire Road, which failed to give way before attempting a right hand turn” into King Street. Mrs Nicholls wrote to the LCC on the following day, a letter which it received on 28 May 1992. The letter contained this request:

“I am requesting that a give way sign be erected on this corner and would ask that sincere consideration be given to this request as soon as possible to perhaps help prevent further such incidents.”

LCC replied on 9 June 1992 that “(t)his matter is being investigated and you will be advised of the outcome in due course.” There is no evidence of any such investigation or of any further advice to Mrs Nicholls. The mechanism of this collision is the same mechanism as that of the collision with which I am dealing. It occurred nine years later.

13.4 Western Road, Kemps Creek runs parallel to Devonshire Road between Fifteenth Avenue (southern end) and Elizabeth Drive (northern end). Western and Devonshire Roads are approximately one kilometre apart, Devonshire Road being the more easterly. At a Council meeting on 21 December 1993, one councillor asked whether any traffic counts had been made on Western Road for heavy traffic. He reported that trucks were speeding. It appears that concerns about an increase in heavy vehicle traffic were raised with the local member of Parliament by the Kemps Creek Precinct Committee. The local member wrote to the RTA and received a reply dated 14 February 1994:

“I refer to your letter in relation to conversations expressed by the Kemps Creek Precinct Committee over an increase in heavy vehicular traffic on Western Road, Kemps Creek. As part of its commitment to the community to monitor road user performance and the promotion of safe and efficient use of the road network, the Authority conducts Mobile Vehicle Testing of vehicles in the Kemps Creek area.

Investigations reveal that while Devonshire Road is the preferred route to access the two waste tips north of Elizabeth Drive, Western Road is being used by trucks to get to that destination avoiding Devonshire Road which is being patrolled by the Authority’s Inspectors.

Both Devonshire and Western Roads are local roads looked after by Liverpool Council. However, in view of the concerns expressed, the Authority will raise the matter through its representative at the next meeting of the Council’s Traffic Committee. The Authority will propose that a 3 tonne load limit be placed on Western Road, and Devonshire Road be signposted as the access road to the tip.”

Traffic surveys were carried out on both Western and Devonshire Roads between 17 and 27 June 1994.

For Devonshire Road, the following data can be noted:

Average Daily Traffic: 4461 v.p.d (vehicles per day)
South-bound Traffic: 2239 v.p.d
85th Percentile Speed: 78 kph
Speed Range up to 60: 797 v.p.d – 17.87%
Speed Range 61 to 70: 1580 v.p.d – 35.52%
Speed Range 71 to 80: 1546 v.p.d – 34.64%
Speed Range 81 to 90: 450 v.p.d – 10.08%
Light Vehicles: 3924 v.p.d
Trucks 2 or more axles: 538 v.p.d North-bound
Trucks 3 or more axles: 288 v.p.d South-bound

The data for Western Road shows lower usage:

Average Daily Traffic: 1491 v.p.d
South-bound Traffic: 729 v.p.d
85th Percentile Speed: 80 kph
Light Vehicles: 1335 v.p.d
Trucks 2 or more axles: 156 v.p.d North-bound
Trucks 3 or more axles: 84 v.p.d South-bound

Armed with this information, LCC wrote to the local member on 21 September 1994:

“Council has carried out vehicle classification counts on both roads, which have demonstrated a high level of usage by heavy vehicles on both roads, Devonshire Road (12%), Western Road (10.5%). Levels of this magnitude are not acceptable generally, unless the road in question is designated arterial or sub-arterial.

In this instance Council will consider the imposition of a light load limit on Western Road at the October Traffic Committee, thereby diverting heavy vehicle traffic to Devonshire Road which is the more appropriate of the two.”

The Traffic Committee recommended the imposition of the light load limit on Western Road on 5 October 1994 and that was adopted by LCC on 10 October 1994. Notations in Exhibit 19 indicate that the appropriate signs were erected later in that month.

Mr Stitt QC argued that King Street / Devonshire Road was a “heavy traffic route.” Technically that is not so – Western Road was a “light traffic route.” However, the volume of traffic recorded in the northern section of Devonshire Road, which must have increased after the light load limit was imposed on Western Road, gives some indication of what traffic may have passed along the Devonshire Road South / King Street route and is consistent with other evidence of the use of the southern section by heavy traffic.

13.5 New street lighting appears to have been installed along King Street in mid 1996. An Integral Energy lighting plan annexed to Exhibit M is dated 31 May 1996. For King Street south of the intersection the new plan suggests a luminaire on every second power pole, but with greater lighting on the two bends on the southern part of King Street near to Bringelly Road. North of Devonshire Road it required the one existing luminaire to be replaced and proposed an additional two luminaires. The existing luminaire had been installed shortly after 24 January 1992. However, other evidence strongly suggests that no additional lighting in the last section of King Street was added at this time.

13.6 On 31 October 1996, Mrs Vincenza Camilleri wrote the following letter to LCC (omitting the opening formalities and Mrs Camilleri’s contact details in the last paragraph):

“I am writing with regard to the T intersection on the corner of King Street and Devonshire Road, Rossmore.

There are no ‘Give Way’ or ‘Stop’ signs at this Point, and even though road rules exist, it appears drivers who proceed to turn right from Devonshire Road onto King Street are ‘assuming’ that there is no traffic alighting to and from the ‘No Through Road’ end of King Street.

Although there are approximately 5 properties on this dirt road Section, traffic flows constantly through this area, and I believe there is great cause for concern.

I, and the residents of ‘King Street No Through Road section’ would be pleased if your Department could install ‘Give Way’ signs at this intersection, before an horrific accident occurs.”

13.7 On 25 November 1996, Mr Rajen Kumar, an employee of LCC, prepared a “Sketch of Proposed Sign” to be erected at the intersection. It proposed a holding line across King Street, north of Devonshire Road and the erection of one give way sign facing traffic travelling south along King Street. This was attached to a Council decision made on the same day by Mr Victor Lim, a traffic-planning engineer, another employee of the Council, under delegated authority. The “Comment” contained in the Council decision is this:

“The provision of ‘Give Way’ restrictions and associated line-marking for the ‘No Through Road’ section of King Street is required to formalise the intersection priority. Major arms of this T intersection are King Street and Devonshire Road where most traffic flows.”

The decision was forwarded to the RTA which gave its concurrence on 26 November 1996, and to the Police who gave their concurrence on 27 November. Form 337 was prepared on 28 January 1997 and bears a notation that the work was completed on 22 April 1997, nearly six months after Mrs Camilleri’s request for action.

With the benefit of hindsight, although one would hope with the benefit of prescience, one can see that this decision did not solve the problem originally raised by Mrs Nicholls in 1992 or all the difficulties to which Mrs Camilleri may have been adverting: it failed to solve priority for traffic travelling north along King Street. North-bound traffic, which wished to proceed into the “dead end”, still had priority over traffic turning right out of Devonshire Road.

13.8 At the ordinary meeting of the LCC held on 14 April 1998, Councillor Harrington posed the following question:

“Asked can a ‘Give Way’ sign be placed at the intersection of King Street and Devonshire Road, Rossmore as there has been a lot of near misses caused by cars going straight through towards the unsealed end of King Street, travelling north.”

That question was referred to the “Corporate Manager Transport” for attention. (Titles for Council employees / officers appear to have constantly changed). Over three months later, Councillor Harrington was sent this memorandum (dated 20 July 1998) by Mr R Kennedy, “Transport Network Facilities Manager”:

“I refer to your Question Without Notice at Council’s Ordinary Meeting of 14 April 1998 regarding the above intersection. Please accept my apology for the delay of this response.

King Street (north of Devonshire Road), is already controlled by ‘Give Way’ signs and markings. However, motorists travelling north along King Street toward Devonshire Road are not advised which movements have priority. The potential for collision at this intersection is apparent.

To assist motorists in determining which movements have priority, centrelines, raised reflective pavement markers and advanced warning signs will be installed along Devonshire Road and King Street. A sketch showing the proposed treatment has been attached.

It is anticipated that this work will be completed within two months.”

This memorandum was accompanied by a computer generated sketch plan (Exhibit P) which exaggerates the extent of the curve for vehicles turning left from King into Devonshire and contains an error which is also contained in the memorandum: it shows give way signs on both the western and eastern sides of King Street north, when there was only one on the eastern side. The “advanced warning signs” proposed were modified T intersection signs, showing a T intersection but with the limbs of the route having priority marked more widely than the limb without priority. These signs are only warning signs, not regulatory signs. To regulate traffic a double unbroken centre line, going from King Street left into Devonshire Road was proposed, but with a large opening in it, allowing traffic into the dead end section of King Street to make a theoretical but fictional right hand turn. No regulatory sign was proposed, such as the give way sign suggested by Councillor Harrington in his question.

On 8 October 1998, a “Sketch of Proposed Signposting, Kemps Creek” was prepared by a Council employee to accompany Form 337 to go to the RTA. The Sketch bears the initials “R.K” which could be those of Mr R Kennedy but are more likely to be those of Mr Rajen Kumar. This Sketch continues the error I pointed to when discussing Exhibit P. It proposed that the advanced warning signs be erected 80 metres from the intersection on each of King Street south and Devonshire Road. A double white barrier line (DWBL) with round reflective pavement markers (RRPM) type YY at each 6 metre length was to be provided commencing 30 metres south of the intersection on King Street south and 30 metres west of the intersection on Devonshire Road. Only over the last six-metre section of DWBL in King Street was it to curve to the left. The curve in Devonshire Road is drawn over the last two six-metre sections.

On 22 October 1998 Mr Rajen Kumar forwarded a Form 337 to the RTA for the completion of his work. That form states that the relevant decision was made by “delegated authority.” In Interrogatories which became Exhibit W, LCC admitted that the decision was made by Delegated Authority but was unable to state who exercised the delegated authority. According to the Interrogatories, the decision was confirmed by a subsequent meeting of LCC. There is no evidence that LCC or its delegate sought the concurrence of either the Police or the RTA. The work was completed by the RTA on 4 December 1998, some five and a half months after Councillor Harrington was told that it would be “completed in two months.”

13.9 Collision 19 May 1999

This collision occurred at approximately 10.40pm. George Osman was driving an Isuzu 2 tonne truck, in the last section of Devonshire Road, towards its intersection with King Street. He was travelling at about 20 kph and slowed to turn right into King Street. He saw a Mitsubishi Magna approaching on his right, travelling north along King Street. Mr Osman told the attending Police that he believed he had right of way and proceeded with his turn. Mr Graham Hodson was driving the Mitsubishi Magna. About 20 metres from the intersection he was travelling at 55 kph. He told the Police that he was unfamiliar with the intersection and believed that King Street continued past Devonshire Road. Mr Hodson saw that the Isuzu had its right hand indicator on. As the Isuzu turned right into King Street Mr Hodson applied his breaks but was unable to stop to avoid the collision.The attending Police thought that Mr Osman was at fault and issued a Traffic Infringement Notice for “not giving way at a terminating street.” The attempt by LCC to regulate priority at this intersection eluded the attending Police, two senior constables. RTA records indicate that both vehicles had to be towed away.

13.10 Collision 8 September 1999

This collision occurred at approximately 5.20pm. Mr Pei Ting Cai was driving a Honda Civic along Devonshire Road heading towards the intersection. Mr Dennis Pittman was driving a small Mitsubishi truck north along King Street. I shall take the narrative from the COPS entry E 7189076, correcting grammatical and spelling errors and amending it to make it more intelligible:

“[Cai] slowed to a speed of 40 – 45 kph as he approached the intersection. [He] saw the truck and stated that [it] was turning left. He then began to make a right hand turn. As he pulled out the truck and car have collided.

[Pittman] … stated that he would always turn [left] into Devonshire, however he received a phone call. The hands-free was not working so [he] went straight ahead. He had his hand ready to put on his indicator. He continued through the intersection when [the Honda] pulled out and the two vehicles collided.

The north section of King Street from the intersection is [a] no through road. It is possible that due to [Pittman’s] pulling over to talk on the phone [that] [Cai] may have thought that he was turning the corner. [Cai] could not be sure whether the indicator of [the truck] was on. However he states the truck was turning. There was no independent [witness] to the accident. The truck was moved from the intersection before police arrived and was being inspected by the RTA. [Cai] had already been conveyed to Liverpool Hospital where he was treated for cuts to his head.

There is no give way or stop [sign] for traffic turning right into King. There [are] lines marked out for traffic to turn right[.] This line [goes] into King Street. There is [a] give way [sign] on the north side (terminated street section) of King Street for traffic entering the intersection. However there is no [sign] stating that traffic heading north on King Street must give way or turn [left]. At the scene four [members of the] Highway Patrol were asked who would be at fault due to the road markings. Two stated [Cai] and two stated [Pittman]. Due to lack of evidence at the scene, the conflicting statements and the road markings at the intersection, no action will be taken unless advised [by] the Traffic Supervisor.”

On this occasion, the attempt by LCC to regulate priority at this intersection did not elude the attending Police, it merely befuddled them.

13.11 In April 1999 Mr Eddie Zajac and his wife Mrs Deirdre Zajac moved to 315 King Street, Rossmore. Their property is on the eastern side of King Street, and is the fourth property north of Devonshire Street or the fifth if one counts the property on the eastern side on King Street which straddles the intersection. Mr and Mrs Zajac were the first people to come to the scene of the fatal collision with which I am dealing: “the dust was still in the air.” In about May 2000 they had a meeting at their property with an officer of LCC whose surname has been transcribed as both “Fonseker” and “Von Seca” and “Vonseca.” I shall use the last alternative. Mr Vonseca’s exact position was no longer recalled by the Zajacs. However, he came to discuss with them three issues which they had raised with LCC:

Mr Zajac gave this evidence in chief as to his discussion with Mr Vonseca about the intersection:

“Q. Is there anything that you can recall that you did discuss with him about the intersection and the safety - -
A. The – basically the condition of the corner with the lighting factor, the signs and to me the fact that I had to give way to my left coming north on King Street, going to my own house meant that I had to give way to vehicles on my left coming from Devonshire Road.

Q. Do you remember - -
A. I had to stop. Basically I had to stop at the intersection to allow cars from my left to turn to King Street and when I did that, quite often cars would come from behind and brake behind me and beep their horns and say, ‘Why are you breaking here?’
Q. You’re telling his Honour now about experiences that you had. Are you able to say whether or not you told Mr [Vonseca] those things?
A. I would say yes, I can remember that, yes.”

In cross-examination by Mr Windsor, Mr Zajac said that motorists become impatient when he was travelling north on King Street and was “having to stop and wait for cars coming from [his] left from Devonshire.” This was explained in re-examination. After the fatal collision, a give way sign was placed on the southern side of the intersection facing motorists travelling north along King Street. After a further reconstruction of the intersection it was removed. Mr Zajac said:

“Q. Are you able to tell his Honour what was put in and taken away?
A. They did put a give way sign in from heading south to north on King Street, so we had a determination then I could actually come to that corner, I had a give way sign in front of me. I knew I had to stop. I could give way to the cars on my left. That’s how it should be. Since that - -

HH: And people behind you would know that that’s what you’re doing?
A. That’s right, because we’re coming up to a give way sign. That give way sign is no longer there.”

In further cross-examination by Mr Windsor, Mr Zajac said:

“Q. What were those other issues that you in fact recall speaking to Mr [Vonseca] about when you were discussing the intersection?
A. Signage.

Q. Was it the situation that you knew that there was a sign south on King Street, indicating that the traffic approaching the intersection from south on King Street, that is, the side opposite your own, the priority road went from King Street around into Devonshire Road?
A. Yes.

Q. That the presence of the double unbroken lines on King Street indicated that you and other vehicles had to stay on the correct side of the roadway and you couldn’t go over the double unbroken lines?
A. Yes.

Q. And that the lines, the double unbroken lines, curved around?
A. Well, they were not visible, but yes.

Q. But it was apparent, if you were looking out for the lines, just those double unbroken lines, that they did in fact curve around?
A. Yes.

Q. And you were able to see that in the daytime?
A. Yes.

Q. And when you had your car lights on at night-time, it was possible to see them when you’re looking out for them?
A. I think it would be very hard to see them, actually.

Q. That is the curved part. Is that what you are saying?
A. Yes.”

In chief, Mrs Zajac gave this evidence at her interview with Mr Vonseca on this occasion:

“Q. Now, in relation to the intersection, do you recall what was said between you and Mr [Vonseca] in relation to that intersection?
A. I just said it because a dangerous corner.

Q. Did you tell him why?
A. Yes, because often we’d be at home, we’d hear screeching, we’d often see trucks go straight through that intersection. There was also accidents up there and there was no give way signs, stop signs, and there was no lines that you could see. They were faded.

Q. Are you able to say whether or not you told Mr Vonseca all of those things or some of them or what you told him?
A. I probably said some of them.
Q. Do you know which ones you told him?
A. Well, he was aware there was no stop sign there and he was aware that we had mentioned there was only give way signs going out of our street, heading out of our street, which is the dead end, heading towards King Street.

Q. What did he say, if anything, when you told him those things?
A. He did say that he would look into it or pass it on to someone.”

It is clear that the problems associated with the intersection were drawn to the attention of an officer of LCC in about May 1999.

13.12 LCC did respond to one of the issues raised by the Zajacs. On 18 July 2000, LCC responded to a letter from Integral Energy of 10 July 2000 regarding improved street lighting in the northern end of King Street. LCC accepted the earlier proposal of Integral Energy for the upgrading which required a Capital Construction of $899.90 and an annual charge increase of $278.16. LCC’s letter was clearly generated by Mr Rajen Kumar. Exhibit 9 (a Lighting Appraisal Report) contains an earlier letter in the same subject, again generated by Mr Kumar, requesting the upgrading, which letter is dated 12 May 1999, i.e. before Mr Vonseca’s meeting with the Zajacs. That letter appears to have been prompted by a telephone request made by Mr Tony Greco of 305 King Street on 25 March 1999 asking for more street lights as there was “only one street light in the street.” Mr Kumar had been allocated to deal with Mr Greco’s request. The evidence is silent as to what occurred on this topic between 12 May 1999 and 10 July 2000. The inference is open, and I draw it, that the Zajacs’ raising of the issue spurred LCC into further action on the subject after over a year’s inaction.

13.13 Collision 11 August 2000

This collision occurred at approximately 4.15pm. Mr Joe Camilleri was driving a Toyota Hilux utility eastwards along Devonshire Road at 30 kph, intending to turn right into King Street. Mr Cresto Tzortzis was driving a Ford Falcon utility north along King Street at 30 – 40 kph, intending to turn left into Devonshire Road. As the two vehicles turned the corner the front right hand side of the Falcon collided with the middle of the Toyota.

Mr Camilleri made this statement to the Police:

“I was travelling east on Devonshire Rd. As I approached the intersection of King St. I slowed down ready to turn right into King St. At this time the other vehicle was turning left into Devonshire St. The front right of his car collided with the middle of mine in the tool box. The road is really narrow and there is no signs or anything. The double yellow lines are faded and you can’t see them. Due to the indications on the road I was probably in the middle. As I said the road is narrow and you can’t see any markings. My vehicle is fairly wide. The right side of my vehicle would have been in the middle of the road.”

As both vehicles had been removed from the roadway when the Police attended, the Police were unable to ascribe fault. The COPS entry (E 11602480) states that “[t]he roadway is divided by double unbroken separation lines which are faded and not easily seen.” Later the COPS entry makes this comment:

“Police believe that the intersection [was] a contributing factor to this [collision] as it is a narrow road with faded dividing lines. The intersection is a T intersection but it is not set up like a T intersection. It allows the traffic from Devonshire Road to turn right into King as if it [were] the one continuous road.”

According to the RTA records both vehicles needed to be towed away.

13.14 On 20 September 2000 the additional lighting was installed in the northern end of King Street.

13.15 In or about November 2000 Mrs Zajac had another meeting with Mr Vonseca. He visited her at her home. She gave this evidence in chief about this second meeting:

“Q. What was the subject of that discussion?
A. We discussed, okay, you’ve done – lighting had been done, but the intersection hasn’t been done at all.
Q. What did you say, if anything, about the intersection?
A. Well, at that time there was even people talking to me, there was accidents up there.

OBJECTION (WINDSOR). NON-RESPONSIVE. ANSWER ALLOWED

Q. Do you remember what it was that you said to Mr Vonseca concerning the intersection?
A. I said it was dangerous and someone’s going to get hurt.

Q. Did you tell him why you had formed that view?
A. We often heard screech marks, I did see people stop there and they were exchanging details from the accidents.

Q. What, if anything, did he say when you told him that?
A. At that time, he said he was going to [do] a traffic survey, get in contact with someone with a traffic survey.

HH: Just before we go on, Mrs Zajac, you told me that you would hear the screeching of the trucks and hear the screeching of the brakes?
A. Often.

Q. And you said that sometimes trucks went straight through the intersection?
A. Yes, there was trucks and one time I did see a bus.

Q. So it went straight ahead into your end?
A. Straight ahead.
Q. And then they had to turn around?
A. Yes. One time we had to open our gates up to get a truck to turn.”

Mr Stitt QC elicited from Mrs Zajac that large trucks and heavy trucks frequently used the King Street / Devonshire Road route. She also said that prior to the fatal collision there were skid marks of different sizes and shapes in the vicinity of the intersection. In cross-examination by Mr Windsor, Mrs Zajac made this concession:

“Q. But you can’t recall what you said to him on that second occasion. Is that right?
A. I recall that I said, ‘You’ve redone the lights, but you haven’t done anything to the intersection.’

Q. Is that the extent, that you recall, of that second conversation that you had with Mr [Vonseca]?
A. Yes.”

However, that concession does not negate the earlier evidence that Mr Vonseca told Mrs Zajac that he would make an enquiry about a traffic survey. Such an enquiry could only be considered if concerns had been raised about the intersection and the only concern expressed by the Zajacs was safety. Such inferences can be readily drawn in light of the failure of LCC to call Mr Vonseca or to explain his absence from the witness box. There is no evidence that LCC did anything in answer to the concerns raised by the Zajacs about the intersection.

The Applicable Speed Limit

14 One might think that the answer to a question about the applicable speed limit would be an easy one, but it is not. There are before me six COPS entries for accidents near this intersection. Those entries relate to the three earlier collisions I have already discussed, to two one car accidents which are not otherwise relevant, and to the fatal collision with which I am dealing. Those COPS entries record the speed limit as:

Date of Accident	Speed Limit
19 – 5 – 1999	60 kph
8 – 9 – 1999	70 kph
15 – 3 – 2000	60 kph
11 – 8 – 2000	60 kph
3 – 11 – 2000	60 kph
25 – 5 – 2001	80 kph

15 Senior Constable Aram Holger Kraefft of the Metropolitan Crash Investigation Unit, who was the officer in charge of the investigation into the fatal collision, said, in cross-examination, that the applicable speed limit was 80 kph (p.110). It is probable that his opinion is that reflected in the COPS entry for the fatal collision. Mr Adam Zadro who was a regular user of the route and was familiar with it and with the intersection said that the speed limit was 80 kph (p.249). To those opinions one should add the information as to speed obtained from the traffic survey of June 1994 which established that the 85th Percentile Speed was 78 kph and that 34.64% of traffic travelled at speeds between 70 and 80 kph in Devonshire Road north. Since less than 18% of traffic travelled under 60 kph it is difficult to accept that the speed limit in Devonshire Road north was 60 kph.

16 LCC believed that the speed limit was 80 kph. After the fatal collision, LCC wrote a letter to the RTA bearing date 2 July 2001. Its likely author was Mr Rajen Kumar, a traffic engineer at this time. The substance of the letter is:

“Council has received representations requesting reduction of the existing speed limit from 80 to 60 km/h on the subject road. Residents have expressed concern about the safety along the full length of King Street, Rossmore.

King Street is aligned generally north/south and forms a T intersection with Devonshire Road. Devonshire Road is aligned east/west being the stem of the intersection. King Street to the north of the intersection is a gravel road, which has been closed to through traffic. The predominant northbound traffic movements along King Street turns left into Devonshire Road and conversely eastbound traffic from Devonshire Road turns right and travels south along King Street. Due to the tight geometry of the intersection trucks travelling north on King Street turning left into Devonshire Road often move close to the centre line and in some cases over the centre line to make their turn. On the 25 May, 2001 a double fatality occurred at this intersection. Reduction in speed will enhance road safety at the same location.

As the implementation of speed zones come under the jurisdiction and responsibility of the Authority, this matter is therefore referred for your consideration.

A quick response in this matter would be appreciated.”

17 There does not appear to have been any speedy reply by the RTA. The basis of Mr Kumar’s opinion as to the speed limit is set out in a report he prepared for the ordinary meeting of LCC to be held on 26 August 2002. This concerned a proposed reconstruction of the intersection. Under the heading “Speed Limit” the following is stated:

“The last speed limit signs that the motorist see are on Bringelly Road and also on the northern end of Devonshire Road which specifies 80 km/h. The Roads and Traffic Authority has been requested to consider reduction of the existing speed limit from 80 km/h to 60 km/h on the subject roads. Reduction in speed limit will enhance road safety.”

18 One can see from that information that a speed sign on Devonshire Road north regulated speed for traffic travelling south to 80 kph. However, there was no speed limit sign on any section of King Street.

19 Chief Inspector Richard Trent Le Merton, at the time of the fatal collision, was a Sergeant and the team leader of the Wetherill Park Highway Patrol. He was the first Police officer to arrive at the scene, between 6.00 and 6.05pm. On this issue he gave the following evidence in chief:

“Q. What was the speed limit for vehicles travelling north along King Street?
A. Well, by the presence of street lighting in a residential area, it becomes default 60 kilometres per hour.

Q. 60 kilometres an hour.
A. Yes, unless signposted otherwise.
Q. Was it signposted otherwise?
A. No, there was signposting in the areas around it, but not that particular section of roadway.

HH: Q. Yes, but what was the last speed sign that a driver travelling north along King Street would have seen?
A. From my recollection, it would be an 80 – kilometre – per – hour zone.

Q. So unless he sees otherwise, he’s entitled to accept that that’s the speed limit, isn’t it?
A. Well, except coming into a built-up area, where there’s provision for street lighting. It then became a default 60 kilometres per hour speed limit, a de facto limit.”

20 His opinion is also reflected in a “Road Safety Audit” which he instigated immediately after the fatal collision by arranging an on-site inspection on Monday 28 May 2001. The Audit, which the then Sergeant Le Merton signed, is Exhibit H. Under the heading “Assessment” the following sentence appears: “The area is designated as a 60 kph speed limit by virtue [of] the sparse residential development and provision for street lighting.” In cross-examination by Mr Stitt QC, the Chief Inspector agreed that the area was “semi-rural”, with large blocks of land containing residences but not a “normal residential area.” He agreed that the presence of houses in the area would not draw to a motorist’s attention that it was a residential area (p.221). Later he confirmed that there was no actual speed limit sign on King Street, and the last speed limit sign a motorist in Mr Finch’s position would see was an 80 kph sign on Bringelly Road.

21 Australian Road Rule (ARR) 21 provides:

“(1) The speed limit applying to a driver for a length of road to which a speed-limit sign applies is the number of kilometres per hour indicated by the number on the sign.

(2) [Maximum speed for heavy vehicles 100 kph]
(3) A speed-limit sign on a road applies to the length of road beginning at the sign and ending at the nearest of the following:

(a) a speed-limit sign on the road with a different number on the sign;
(b) an end speed-limit sign or speed de-restriction sign on the road;
(c) if a road ends at a T intersection or dead end – the end of the road.”

22 One can state, therefore, that the speed limit for motorists travelling south on Devonshire Road was 80 kph until it ended at King Street.

23 ARR 25 provides:

“(1) If a speed-limit sign does not apply to a length of road and the length of road is not in a speed-limited area, school zone or shared zone, the speed limit applying to a driver for the length of the road is the default speed-limit.

(2) The default speed-limit applying to a driver for a length of road in a built-up area is 60 kilometres per hour.
(3) The default speed-limit applying to a driver for any other length of road is:

(a) [for heavy vehicles 100 kph]
(b) for any other driver – 100 kilometres per hour or as otherwise provided under another law of this jurisdiction.”

None of the provisos of rule 25 is applicable. The issue therefore is whether King Street passed through a built-up area with a speed limit of 60 kph or, if not, the speed limit was 100 kph as submitted by Mr Stitt QC.

24 Built-up area, is defined in the Dictionary to the ARR:

“ built-up area , in relation to a length of road, means an area in which there are buildings on land next to the road, or there is street-lighting, at intervals not over 100 metres for a distance of at least 500 metres or if the road is shorter than 500 metres, for the whole road.”

25 Appendix B to Exhibit 9, the Lighting Appraisal Report, is a ‘site plan’ marked with power poles as ○ (without a luminaire) and ● (with a luminaire). Fortunately it provides distances between some of the power poles. On the northwest corner of the intersection was a power pole (ID 135) with a luminaire. Going south from that point identifying poles with luminaires and distances in between:

Pole
Distance

ID 135
0

ID 144
42.3m (but light not working on day of accident)

ID 148
116.7m (or 159m because of above failure)

ID 154
234.7m

At Corner of Wynyard Ave
Not stated, but clearly greater than 100m

26 The site plan ends after the pole without a luminaire south of the pole with luminaire on the south-western corner of the intersection of King Street and Wynyard Avenue. From a lighting plan annexed to Exhibit M, it is clear that there is lighting south of Wynyard Avenue and as far as Bringelly Road. Doing the best I can to interpret that document (dated 31 May 1996) there was to be a luminaire on every second power pole, after some existing luminaires were removed, others retained and some new ones installed. However, the distances between the poles I cannot discern. Based on the information contained in the site plan to which I have just referred, it appears that, roughly, the distance between power poles is 70m, so that the distance between luminaires is 140m. However they were closer together at the two bends at the southern end of King Street. After the last of those bends there was a distance of approximately 500m to the intersection with Wynyard Avenue and then about 700m to the intersection with Devonshire Road, a total distance of over one kilometre. On the information available I could not and do not find that there was “street lighting at intervals not over 100 metres for a distance of at least 500 metres.”

27 The question whether there were “buildings on land next to the road … at intervals not over 100 metres for a distance of at least 500 metres” is even more problematic. It is to be noted that the definition requires that there be “buildings on land next to the road” not “buildings next to the road.” The only evidence of this is contained in Exhibit 11, a cadastrally enhanced aerial photograph of the vicinity of the intersection. That map does not extend as far south as Wynyard Avenue. On the western side of King Street is a block numbered 132. From the information available from the sight plan in Exhibit 9 it appears to be about 250 – 220m long. On the eastern side of King Street, opposite block 132, are 2 blocks and portions of 2 blocks. When one counts the buildings on those blocks and notes their extent, it appears to me that there are buildings on land next to the road at intervals of less than 100 metres. Whether that continues further south I am unable to say. The buildings on block 132 appear to be greenhouses and on the block south of it to be a residence and either greenhouses or poultry sheds. However, such structures are all “buildings.” In those circumstances I must rely on the evidence of the Chief Inspector who was present at the scene on the night of the fatal collision and subsequently visited it in daylight hours. I find therefore that King Street was a “built-up area” in its relevant portion between Wynyard Avenue and Devonshire Road and that the applicable speed limit was 60 kph.

28 One other piece of evidence needs to be considered in this regard. In chief, Chief Inspector Le Merton said that he had a concern about a “speed limit reminder.” He continued (at p.178):

“All the roads in the near vicinity were 80 kilometres per hour zones; however, whilst clearly by the provision of street lighting it became a de facto – 60 kilometres per hour speed limit, there was no reminder sign of that change in speed zone for motorists travelling in that portion of roadway.”

The important point is the first clause in that evidence, that all nearby roads had 80 kph speed limit.

29 Speed limits are imposed by the RTA, not LCC. The relevance of the speed limit concerns the liability of Mr Finch. He gave evidence that he thought it was 80 kph. He could certainly be forgiven for holding such a belief in light of the confusing evidence about this issue, the various opinions expressed, the ambiguity of having to measure out distances between street lights and buildings and the fact that it has taken three silks, four junior barristers and a judge to ascertain (it is to be hoped correctly) what it was.

The Configuration of the Intersection immediately prior to the Fatal Collision

30 From Bringelly Road, King Street travels north for about 730m and then turns sharply (90^o) to the left then travels westward for about 250m and then turns sharply to the right (90^o) to go northwards again. Approximately 500m further north there is a T intersection with Wynyard Avenue. This is an ordinary T intersection. There is a street light on the south-western corner of it. About 700m further north is the intersection with Devonshire Road. 85m south of the intersection is power pole ID 145 onto which the RTA affixed the modified T intersection warning sign (that was probably easier than erecting it on a pole at 80m from the intersection, as Mr Kumar had requested). Exhibit C (a Terrestrial Photogrammetry survey) and Exhibit E (an unlaminated copy of Exhibit C) show pole ID 145 as a “pole with light” but that caption is incorrect: it ought be “pole with a sign.” 49m further north is power pole ID 144 which is marked on Exhibit C and E as “pole with transformer and light.” That is correct but it is common ground that on the evening of the collision the luminaire was not functioning. For how long it had been inoperative, the evidence does not disclose. According to Exhibits C and E, the DWBL starts just south of pole ID 144 which aligns with other evidence that pole ID 144 is 35m south of the intersection and that the DWBL commences 37m south of the intersection (rather than the 30m originally proposed by Mr Kumar). Whilst RRPMs (“catseyes”) may have been emplaced when the work was completed on 4 December 1998, none is evident in any of the photographs taken by the Police on the evening of the collision (Exhibit B) or in any of the photographs taken in daylight on the following day (Exhibit D). I indicated to Counsel during the hearing that I was unable to see any evidence of the catseyes on the material before me and that I intended to make a finding that there were none on the evening of the collision. No one sought to persuade me otherwise. Assuming that they were in fact embedded on 4 December 1998 I can only conclude that they had been abraded from the surface of the pavement of the road by 25 May 2001. It is likely that that was done by vehicles (and more particularly heavy vehicles) driving over them although one cannot exclude the possibility that they were removed by errant schoolboys to be used as marbles! On the evening of the collision, they were not there to act as a visual cue to motorists at night of the presence of the DWBL. Chief Inspector Le Merton was unable to see any catseyes on his inspection of the scene (p.168). The curve in the DWBL commences 6m before the intersection. It is offset to the left. In the Road Safety Audit (Exhibit H) the then Sergeant Le Merton described it as “a slight kick to the left” and in his evidence as a “deflection” (p.239). The gap in the DWBL, to allow vehicles to make the theoretical right hand turn into King Street north is 6.2m (Exhibit T) or 6.5m (evidence of Snr Constable Kraefft p 31.05). Whilst there is evidence that the DWBL was faded (from a motorist and the Police involved in the collision on 11 August 2000 and from the Zajacs) all the experts in this matter accept that the DWBL was legible and the photographic evidence confirms that. However I do accept that in places the lines were obscured by skid marks laid down prior to this collision. An example of that is shown on Exhibit D10 (a photograph) showing a large black skid mark over the DWBL in Devonshire Road that could not possibly have been created on the evening of 25 May 2001, less than 24 hours before the photograph was taken.

31 Across King Street, immediately north of the intersection, a holding line has been painted across King Street on the same alignment as the northern pavement of Devonshire Road. 4m north of that line, there is a power pole on the eastern side of the road, 3m west of the eastern alignment of the pavement edge of King Street which carries street signs. Besides that is a give way sign facing traffic heading south. On the western side of King Street, 5.5m north of the holding line and 3m west of the western alignment of the pavement of King Street is a post with a “No Through Road” sign. When that sign was erected is unknown but it was not in recent times as the sign is smaller then the current standard size sign. From photographs B6 and B7 it appears to only become legible when one is about 40m from it. Also on the north-western corner of the intersection is power pole ID 135 which carries a luminaire on a long outreach arm of 6.5m. However that did not reach over the intersection. It placed the luminaire above King Street north of the holding line on the alignment of the western edge of the pavement of King Street.

32 On each side of the western end of Devonshire Road, were large concrete culverts with a guide post with reflectors on either side. The significance of the culvert on the south side is that it made it difficult for large vehicles to turn left from King Street to Devonshire, without crossing the DWBL in Devonshire Road. The culverts are best seen in photograph Exhibit D5.

33 The gradient of King Street is level. The pavement is 6.3m wide. The shoulders are gravel. There is a slight camber, the crown of the road is at the centreline (this is clearly shown in Exhibit D). The pavement of the northbound lane is 3.2m wide. North of the holding line across King Street, the street itself is not paved, the surface being gravel. However, it has not been suggested in these proceedings that this change of surface of King Street would give any visual cue to a motorist at night, approaching the intersection from the south, that King Street was not the through road. Rather, the visual cue of street lighting along King Street north of the intersection was a cue to the contrary.

34 The last 230m of Devonshire Road is the section which heads due east to make the T with King Street. The pavement is 6.5m wide and the eastbound lane is 3.8m wide. As one approaches King Street, there is a modified T intersection sign. There is no actual distance given as to where it was placed. One could assume that it was at 80m west of the western alignment of King Street, as originally proposed by Mr Kumar or 8 October 1998. This sign can be seen in Exhibit D8, a little distance west of a power pole which is that shown as pole ID 499 in Exhibit 9. Pole ID 499 is 81.5m west of the intersection, so the sign must be about 82m west of the intersection. On the eastern side of King Street, opposite the eastbound lane of Devonshire Road, there is a sign containing chevron markings which indicate the direction that traffic should take when turning into King Street. The chevrons indicate that traffic should head south. This can clearly be seen in Exhibit D10. The chevrons also indicate that Devonshire Road ends.

35 The DWBL extends for at least 25m from the interaction along Devonshire Road (the limit of the photogrammetry survey) and there is nothing to suggest that they also do not extend the 30m originally proposed by Mr Kumar.

36 Mr Adam Zadro, a motorist who was following Mrs Estephan’s vehicle immediately prior to the collision, did not recall street lighting on Devonshire Road, although he did remember that there was lighting on King Street. However, Exhibit 9 (Lighting Appraisal) establishes that there was one streetlight in pole ID 503 but that was 135.4m west of the intersection, i.e. well west of both the modified T intersection sign and the commencement of the DWBL. The distance between the lights should also be contrasted with the more frequently appearing luminaries in King Street. However, Mr Zadro’s failure to recollect lighting in Devonshire Road (he was a frequent user of the two roads) can be taken as his impression that Devonshire Road was poorly illuminated, an inference that I also draw.

37 The length of the turn that the motorist would have to take from the eastbound lane of Devonshire Road, to the southbound lane of King Street is approximately 11m (evidence of Mr Stuart-Smith, p.457.05). How long would it take to make this turn? That, of course, depends on the speed at which a particular motorist drives his or her vehicle around the curve. At what speed could cars negotiate this corner? I have used the word “car” advisedly, to mean ordinary vehicles such as sedans and stationwagons, not heavy or large vehicles. After the fatal collision, LCC caused to be erected an advisory speed sign for those making this turn. The advised speed was 35 kph. Mr Stuart-Smith estimated that Mrs Estephan was travelling between 20 kph and 30 kph during this turn. That enables me to adopt as a time for making the turn between 1.3 and 2 seconds. Mr Bailey thought that turn could be made at 35 kph. He agreed that the turn could be made in between 1.5 and 2 seconds “perhaps a fraction more.” Mr Bailey’s report (Exhibit 7) at page 26 sets out material from a report of Mr Sculthorpe (which is not in evidence) but no objection was taken to Mr Bailey’s incorporating this in his report. This material is:

“Time taken by the white van to move from a position in line with the power pole at the south west of the intersection to the point of impact (i.e. as illustrated in Figure 15) was timed at approx 2.5 seconds in the video and this appears consistent with times measured for light vehicles which turned right in the daytime video by Mr Sculthorpe, which took approx 2.0 to 2.5 seconds to move from adjacent to the power pole, to the assumed point of impact.”

Footnote 4 reads:

“Times measured using a stopwatch from when the front of the vehicle was aligned with the power pole at the north-west of the intersection and when the vehicle reached the point of impact per Figure 15.”

38 A body travelling at 20 kph travels 5.5m per second. This indicates that it would take 2 seconds to make the turn. A body travelling at 30 kph travels 8.3m per second indicating that the turn could be made in 1.3 seconds. However, cars have a length so that the time taken from the first part of the car commencing to make the turn to the last part of the car finishing the turn will be longer. However, considering the 35 kph advised speed subsequently posted and Mr Bailey’s view as to the time that he could make the turn at a “reasonable upper bound” at which he could comfortably make the turn (p. 664) of 35 kph, I consider it reasonable to find that an ordinary, prudent motorist with the knowledge of the intersection layout could complete the turn in 2 seconds.

39 The final matter to consider at this stage is the visibility between King Street and Devonshire Road for those in the positions of Mrs Estephan and Mr Finch. The land on the southwestern corner of he intersection is an open paddock with wire fencing and some small trees. This can be seen in Exhibits D9 and D11. In cross-examination Senior Constable Kraefft gave this evidence:

“Q. Is the court to understand that it was your observation that it was possible from that location, that is, if in Devonshire looking south-east into King, that you could see vehicles on that roadway as well; that is, on King?
A. Yes.

Q. Would you agree with this proposition: that if a driver of a sedan was 150 metres west of the intersection, that is, the driver of the sedan in Devonshire Street was 150 metres west of the intersection, and if that driver looked to the south-east towards King, he could see a vehicle which was not less than 250 metres away on King?
A. Are you talking night-time as relevant for these proceedings?
Q. Yes, for present purposes, thankyou.
A. Referring back to my memory, I came down along Devonshire and came around the left-hand bend and approached – and apart from seeing everything at the intersection, I would agree that if one did look from that position you would be able to see traffic with headlights on as per the scenario you’re proposing; based on the topography that’s across.

Q. Just to clarify what you mean by the topography, is this the situation: that the topography between Devonshire and King – and I’m talking now the area south of Devonshire and west of King – was a grass paddock?
A. Yes.
Q. It was flat?
A. There were a few trees around, but nothing that would - -

Q. I’ll come back to those in a moment; I’m talking about the grass paddock?
A. Yes, there was.

Q. It was flat?
A. Yes.

Q. Flat in the sense of there were no hills - -
A. Slightly undulating, but generally flat, yes.

Q. No hills between Devonshire and King?
A. Correct.
Q. There were a few trees, as you say, but they were scattered?
A. Yes.

Q. They had no real impediment to viewing from Devonshire at the point that I indicated earlier, through to King at the point I indicated earlier?
A. No real impediment, no.

Q. Likewise, no impediment to a person on King looking north-west onto Devonshire from the locations or the positions that I indicated earlier?
A. That is correct. If one looks between – there may have been a couple of houses along Devonshire Road. There were no houses or dwellings on the western side of King, but up near the – you’re talking 150 metres back.”

There is also no reason to doubt that evidence.

Mrs Estephan

40 As I have already pointed out, Mrs Estephan turned 32 years old on the day of her death. She lived with her family at 40 Clementson Drive, Rossmore. Clementson Drive is a ‘U’ shaped road, the two ends of which join Fifteenth Avenue from the south. The eastern mouth of Clementson Drive is the next intersection on Fifteenth Avenue west of its intersection with Devonshire Road. The distance between that intersection and the intersection of Devonshire Road and King Street is approximately 3 kilometres. The parties, other than LCC, admitted that Mrs Estephan was acquainted with the intersection of Devonshire Road and King Street and was familiar with it. LCC admitted that she was acquainted with the intersection and that she travelled regularly to her relatives from her home east on Devonshire Road and south on King Street on Friday evenings and also that she travelled on the road at other times during the day and evening. I do not understand the quibble of LCC in not making the admission made by the other parties. I have no hesitation in concluding that Mrs Estephan was familiar with this intersection.

41 Mr Jamieson testified that it is normally considered difficult to judge precisely the speed of an oncoming vehicle with its headlights on (p. 335.50) but conceded that it is easier to gauge the speed of a vehicle from side-on if, at night, the vehicle has side lights (pp. 529 - 530).

Mrs Estephan’s Vehicle

42 Mrs Estephan was driving a blue 1993 Ford Falcon stationwagon registration number WEM 473. I shall refer to this vehicle as “the Ford” hence forward. It was 5.003m long, 1.857m wide and had a kerb mass of 1.59 tonnes. The COPS report (Exhibit 20) suggests that Charlene was in the front passenger seat, Steven was the rear driver’s side passenger and Joanne was the rear left side passenger. The two right side occupants of the Ford were those killed in the collision.

Mr Finch

43 Mr Finch was born in 5 August 1969 and was 31 years old at the time of the fatal collision. He was first licensed to drive at the age of 17 and commenced to drive trucks when he was about 19 years old. He had been a truck driver for 12 or 13 years at the time of the collision. At first he drove rigid trucks but 3 or 4 years later commenced to drive semi-trailers. Later still he obtained a licence to drive road trains. He was continuously employed as a truck driver since obtaining his first truck driver’s licence.

160 Mr Windsor concluded his cross-examination by putting to Mr Stuart-Smith that this intersection was not “inadequate”. He disagreed.

161 Mr Bailey’s report contains these comments:

“1) Modified Intersection warning sign (Black on Yellow W9-1L) which was located on a pole approx 85 metres from the intersection and reportedly in somewhat faded but still in reasonably legible condition.

Because the Modified Intersection sign is used infrequently and differs from the frequently encountered Side Road Junction sign (W2-4), only by the (i) addition of a taper to the branch road leg and (ii) width reduction of the vertical extension, there is a real risk that the variation will not be readily perceived by drivers.

The risk will be substantially increased when:

§ The sign is used in isolation – that is when no other indicators are reasonably detectible in the drivers field of view to indicate a critical change to traffic rules
§ Lighting conditions are poor, such as at night when normal fading has occurred and the sign is lit only by headlamps.

Mr FINCH says that he did not see the sign at all and this may reflect either that he did not notice the sign at any time or that he had noticed a sign, but had no later recollection – in the latter case, there was the real possibility that in failing to identify the sign as a modified intersection type, its presence served to reinforce an incorrect perception that the vehicle had right of way.

2) Curving of the double unbroken centreline at the intersection. Police plan indicates that the lines curve to the west by approx 0.9m over approx the last 6 metres on the southbound approach to the intersection before breaking for a distance of approx 6 metres. The lines appear to have been in faded but serviceable condition at the time of the police attendance and their conspicuousness in Mr FINCH’s field of view would depend largely on his distance from them and the range/effectiveness of his headlights.

There is no realistic possibility that the slight curvature could be readily seen whilst the Modified Intersection warning sign was in sight. (Refer Figure 6)

At whatever distance the centreline curvature did become visible, it is not clear that many road users would be aware of the critical change in traffic priority because (i) it is a rarely encountered traffic control device for most users and (ii) the NSW RTA handbook advice for the modified T intersections, shows the give way vehicle turning through the marked centreline and states that the continuing road (which is marked with broken white lines) goes around the corner … (see below) and (iii) in the context of a somewhat broken up, sealed road in a semi-rural area, the deflection may initially appear as simply a distortion of the road surface.”

162 Mr Bailey then sets out the General Principles from AS 1742.2 of 1994 referable to traffic control devices and continued:

“Critical to this intersection was AS 1742.2 advice that signs should:

§ Command attention
§ Convey a clear, simple meaning with the minimum number of messages required to obtain the desired response from the driver
§ Contain warning hazards which may not be self-evident

The decision to modify traffic priority at the King and Devonshire Road intersection introduced a hazard which would not be self-evident to northbound drivers and it was essential that traffic control devices be used which commanded attention and conveyed the changed priority with the minimum number of messages to obtain the desired driver response.

c) Because the rarely used Modified Intersection warning sign was the critical device, and it is only slightly different from the commonly used Side Road sign which conveys the opposite meaning, there was an inherent need to command driver attention to the change. As a minimum this should have included:

§ Using an oversize W9-1(L) sign preferably lit by an existing streetlamp, and
§ Installing unidirectional hazard markers at and near the intersection per C1 3.6.7 (see below) which notes that Typical uses of these marks are … (iii) to indicate vehicle paths at intersections.”

163 He then sets out a description of hazard markers which I have described above as “chevron markers”, indicating with black and white chevrons the route to be taken, and continued:

“Because hazard markers are reflectorized, they would be readily identified in vehicle headlamps at the time the Modified Intersection warning sign was in sight and provide enhanced recognition of the directional change and the changed priority. It was observed that hazard markers had been installed on two previous 90 ^o bends in King Street prior to reaching the intersection with Devonshire Road …

The cost of ensuring that markings for northbound traffic were capable of fulfilling the requirements of the relevant standard was minimal and it could be anticipated that as traffic volumes increased with the transition from rural to more intensive usage, that the ‘curve’ would be realigned to provide adequate turn radius for heavy vehicles turning left into Devonshire Road. By increasing superelevation on the north-eastern boundary of the road, this would substantially assist vehicles during the turn whilst also elevating the (broken white line) road markings at the entrance to King Street (north) into the field of view of northbound drivers.

Assuming there was only low traffic volume into King Street (North) there was no reason to put a 6 metre break in the centrelines as it is permissible to make a right turn across unbroken lines in NSW and this had the potential to provide additional warning to northbound drivers.

Additional guidance to northbound drivers could have included a combination of W1-1(L) sign and speed advisory W8-2 at 25 km/hr, to indicate that drivers would have substantially reduce speed from the posted limit before making the left hand turn.”

164 When giving evidence in chief Mr Bailey said this about the modified T intersection sign:

“HH: Q. I myself would have difficulty interpreting the sign, even with reading glasses on, on the photographs. I think one of the problems is to working out the difference between the ordinary T intersection sign, W24, and the modified T intersection sign, the W9.1L.
A. Yes, your Honour.

Q. Now, at what distance – for example, it could have been a level crossing sign, which would be very easy to distinguish, but when you’ve got two similar sorts of signs, at what range, given normal eyesight and adequate lighting, would an adult be able to interpret the difference between similar signs like these?
A. When you say to interpret the difference – there’s a difficulty for me there, and could I explain what the difficulty is?

Q. Yes.
A. A sign doesn’t just switch on. It wasn’t over a crest. It simply emerges. So that a driver goes from a position at which he sees a backboard, and realises there’s a sign. As he approaches this particular sign, the Modified Intersection sign, it initially appears indistinguishable from the standard T intersection. Your Honour alluded to it in – I think it’s Exhibit B1.

Q. Yes.
A. That even under full flood lighting, with a photograph, with a static image, it’s essentially indistinguishable from the standard sign. A driver who focuses their attention, focuses the central one degree, spheroidal degree, of their eyesight on something. As I look at you Honour, my one degree extends approximately to the width of your chair or a little less. And so even though I’m aware and my brain has an image of the other things in this room, I can’t tell as they change because they are in peripheral vision. My visual acuity or human visual acuity reduces rapidly away from the 1 per cent so that a driver who initially identified a sign as very familiar type and then directed their attention, their foveal vision, the things that they were looking at, away from that sign, I doubt that there would be a sufficient stimulus in peripheral vision to attract attention away even forgetting the issue of expectation, that it would simply be a blur, indistinguishable in peripheral vision at all times.”

165 Like Mr Stuart-Smith, Mr Bailey was cross-examined at some length by Mr Windsor, but he did not resile from the opinions expressed in his report.

166 Finally, the consideration reached in the Lighting Appraisal should be considered:

“From the material examined, it is apparent the intersection at King Street and Devonshire Road has had a history of problems due to the number of accidents and complaints from the local residents in the past. Liverpool City Council was aware of these problems and in response requested that the lighting installation be upgraded on several occasions between 1991 and 2001;

1. Packet No. 5, Letter from Liverpool City Council to Prospect Electricity dated 24 January 1992 for the addition of one 80 Watt mercury vapour luminaire on King Street north of the intersection with Devonshire Road.

2. Packet No. 5, a letter dated 12 May 1999 from Liverpool City Council requested the upgrade of street lighting at King Street Rossmore by Integral Energy. The lighting category nominated by Liverpool City Council was Category B2 in accordance with AS/NZS 1158:1997.

3. Packet No. 5, Letter from Liverpool City Council to Integral Energy dated 18 July 2000 for the addition of four 80 Watt mercury vapour luminaires on King Street north of the intersection with Devonshire Road.

However, no attempt was made to review the existing lighting on the approach roads and at the intersection in conjunction with the traffic control measures and advisory signs. This has resulted in numerous piecemeal lighting designs being undertaken in isolation on various parts of the surrounding roads without reference to the intersection as a whole. To compound matters, the most recent lighting designs undertaken by Integral Energy prior to the accident clearly did not comply with Category P5 to AS/NZS 1158.3.1:1999 as nominated by Liverpool City Council.

Assuming the first defendant was unfamiliar with the surrounding roadways compounded by the dark surrounds and the poor road lighting installation, this would have made sighting the intersection and any conflict points on the approach to the intersection very difficult.”

167 I have no hesitation in concluding that LCC, through its various traffic engineers, was negligent in failing to do in 1996 and 1998 what it did immediately after this collision in 2001. That is the opinion of Mr Jamieson. An alternative arrangement was that proposed by Mr Bailey. The minimum requirement, in light of the possible ambiguity of the modified T intersection sign, the possibility of its being misinterpreted, was the erection of Give Way signs at the intersection facing traffic facing north and the painting of a holding line at the intersection across the northbound lane of King Street. It is noteworthy that Mrs Nicholls requested a Give Way sign on 26 May 1992, Mrs Camilleri requested it on 31 October 1996 and Councillor Harrington requested it on 14 April 1998. This is not a benefit of hindsight finding, it was at least since 1994 proper road traffic engineering practice. Furthermore, a tribunal of fact is entitled to look at what was done after an accident to eliminate or minimise a risk, to see if that risk was foreseeable prior to the accident: Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201 at 214. The street lighting north of the intersection increased the need to adopt additional measures to reinforce in a motorist’s mind that priority at this T intersection had been modified. Merely adjusting the line marking to comply with the diagram for Australian Road Rule 73(5) or painting the line over the gap left in it, as suggested by Mr Bailey, would be insufficient because of problems with lighting of the intersection at night and cars travelling with headlights on low beam with, effectively, only 50m forward vision would not see the line marking in adequate time, as the experts suggest. Signs were called for and, the cost of those was minimal. The problem with the intersection is highlighted in two illustrations in Mr Bailey’s report, Figures 5 and 6. Figure 5 is a view northwards towards the intersection taken before the ‘Give Way Sign Ahead’ sign taken after the works of 2001 were completed. The photograph was taken at night from a sedan travelling with headlights on low beam. Mr Bailey acknowledges in his report that there are limitations with such a photograph, but it is indicative. Figure 6 is the same photograph with some visual stimuli removed, to seek to replicate the view that Mr Finch would have had on the evening of the collision. However, Figure 6 still shows the extra large ‘No Through Road’ sign erected after the collision and the yellow high-pressure sodium luminaire installed after the collision. Accepting the limitations of the photographs and noting that it has visual stimuli in it different to those confronted by Mr Finch, Figure 6 is in itself telling evidence of very poor traffic engineering.

Apportionment

168 Having concluded that both Mr Finch and LCC were negligent, it is necessary to apportion liability between them. I must firstly deal with two submissions that were put to me by Counsel for LCC.

169 The first of those submissions was that, as far as Mr Finch as plaintiff was concerned, LCC owed him no duty of care as he was himself negligent. Counsel relied on [160] in the joint judgment of Gaudron, McHugh and Gummow JJ in Brodie v Singleton Shire Council (2001) 206 CLR 512 at 580:

“In dealing with questions of breach of duty, whilst there is to be taken into account as a ‘variable factor’ the results of ‘inadvertence’ and ‘thoughtlessness’ (345), a proper starting point may be the proposition that the persons using the road will themselves take ordinary care (346).”

I find it exceedingly strange that Counsel for LCC did not refer me to Liverpool City Council v Millet [2004] NSWCA 340; 43 MVR 193. Even if Counsel were unaware of it, his client would have been. In that matter an offset head on collision occurred between Millet’s vehicle being driven north on Second Avenue, West Hoxton and Wade’s vehicle being driven south on Second Avenue. The collision was at the intersection of Second Avenue and Sixteenth Avenue, which was on a crest. There was no centreline on Second Avenue. Millet had strayed partially onto the incorrect side of the carriageway. Millet did not see the oncoming lights of Wade’s car. Norrish QC, J held that LCC was negligent in failing to mark a centreline along Second Avenue at this intersection, in areas approaching the crest. The majority (Tobias JA with whom Mason P agreed), after considering the case law, concluded that Millet’s negligence did not mean that LCC owed him no duty of care, it amounted only to contributory negligence. Factually, the present matter is analogous and this decision of the Court of Appeal is binding, I must reject this submission.

170 The other submission put to me is that in apportioning liability I should take into account questions in relation to quantum.

171 Mr Windsor pointed out that damages payable by his client are governed by the Civil Liability Act 2002 and damages payable by Mr Finch are governed by the Motor Accidents Compensation Act 1999 and that, for example, the quantum of general damages is larger under the former Act than under the latter Act.

172 Contribution between tortfeasors is governed by the Law Reform (Miscellaneous Provisions) Act 1946 s. 5.

Subsection (2) provides:

“In any proceedings for contribution under this section the amount of the contribution recoverable from any person shall be such as may be found by the Court to be just and reasonable having regard to the extent of the person’s responsibility for the damage : and the Court shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity” [my emphasis]

173 This provision governs apportionment to the first five actions. The sixth action, Mr Finch’s claim against LCC, is governed by the Law Reform (Miscellaneous Provisions) Act 1965 s. 9.

Subsection (1) provides:

“If a person (the claimant ) suffers damage as a result partly of the claimant ’ s failure to take reasonable care ( contributory negligence ) and partly of the wrong of any other person:

(a) a claim in respect of the damage is not deflected by reason of the contributory negligence of the claimant, and
(b) the damages recoverable in respect of the wrong are to be reduced to such extent as the Court thinks just and equitable having regard to claimant’s share in the responsibility for the damage .” [my emphasis]

174 The test in each provision is the same. They require me to apportion in accordance with the person’s “responsibility for the damage”, not in accordance with the person’s liability for payment of monetary compensation. This is made clear in the judgment of Hayne J (with whom Gaudron, McHugh, Gummow and Kirby JJ concurred) in Wynbergen v Hoyts Corporation Pty Ltd (1997) 72 ALJR 65 at 68 when discussing the latter provision:

“No doubt the making of the apportionment which the legislation requires involves comparison of culpability of the parties, ie, the degree to which each has departed from the standard of what is reasonable, but that is not the only element to be considered. Regard must be had to the ‘relative importance of the acts of the parties in causing the damage’ and it is ‘the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination’ (italics added).”

His Honour was quoting from Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492. The same point is clear from [124] to [128] of the judgment of Kirby J in Josyln v Berryman [2003] HCA 34. I therefore reject this submission by LCC.

175 Furthermore, it must be remembered that there are, in this State, a number of different ways of assessing damages, each of which ends up providing a different monetary amount:

(i) the Common Law,
(ii) Motor Vehicle Law (2 regimes)
(iii) Workers Compensation Law (2 regimes), and
(iv) Civil Liability Act 2002

One would think that if this point were arguable, it would have been argued, and settled, at some time prior to this.

176 I turn now to apportionment. Mr Jamieson commented on this in his second report (22 October 2004) in which he said:

“In summary, all crashes are the outcome of a combination of:

§ road elements,
§ vehicle elements and
§ driver elements

If one or more of the elements was eliminated or rectified, then the crash would probably not have occurred.

In this instance, the crash almost certainly occurred as a combination of the poorly designed and ambiguous intersection warning and signposting, with the excessive speed of the truck driver.

It should be noted however, that had the intersection been signposted and delineated as it is now, then the truck driver would not have been approaching at such an excessive speed in any case.”

177 In this matter there is no relevant “vehicle element”. I have already excluded “speed” as a relevant factor in this collision but I have found two “driver elements”, Mr Finch’s failure to observe the modified T intersection sign and his steering his truck onto the incorrect side of the carriageway. It is those two culpable elements that must be weighed with the “road elements”, the culpability of LCC. Mr Stitt QC submitted that the risk caused by the acts and omissions of LCC was “serious, obvious and manifest”. I adopt that submission. LCC had a duty to consider all users of this intersection, both “locals” and complete strangers to it, both light and heavy vehicle drivers, both by day and at night. Here the evidence establishes that the Council failed to properly exercise that duty to strangers to the intersection by day, and, more acutely, at night. The Council knew about the problems with the intersection, Mr Finch did not. As Mr Russell SC so pithily observed the Council had 9 years to “get this intersection right”, Mr Finch had but a few seconds in which to do so. In my view, the culpability of the Council far exceeds that of Mr Finch. Mr Stitt QC submitted that the level of culpability of Mr Finch was “less than 10 per cent”. Mr Semmler QC submitted that an appropriate apportionment was 20 per cent to Mr Finch and 80 per cent to LCC. The apportionment suggested by Mr Semmler QC is, in my view, appropriate and adequately reflects a just, equitable and reasonable weighing of the relevant culpabilities. I therefore apportion liability 20 per cent to Mr Finch and 80 per cent to LCC.

Orders

178 Matter No: 1042/04

Plaintiff

179 Matter No: 2124/04

Plaintiff

180 Matter No: 2125/04

Plaintiff

181 Matter No: 2126/04

Plaintiff

182 Matter No: 2127/04

Plaintiff

183 Matter No: 3797/04

Plaintiff

184 In each matter, I grant liberty to the parties to apply on 7 day’s notice for any special costs orders including, if sought, an order for the interim assessment of costs.

Solicitors

185 Messrs Carrol and O’Dea for the plaintiffs in the first five matters.

Messrs Michael Jokovic and Associates for the plaintiff in the sixth matter.

Messrs Sparke Helmore for the first and second defendants in the first five matters.

Messrs McCabe Terrill for Liverpool City Council.

Messrs TL Lawyers for the estate of the late Jocelyn Estephan.

**********

Actions

Download as PDF Download as Word Document

Citations

Estephan v Lynsey Finch [2007] NSWDC 285

Most Recent Citation

Liverpool City Council v Estephen [2008] NSWCA 245

Cases Citing This Decision

1

Liverpool City Council v Estephen [2008] NSWCA 245

Cases Cited

7

Statutory Material Cited

6

Nelson v John Lysaght (Australia) Ltd [1975] HCA 9

Vairy v Wyong Shire Council [2005] HCA 62

CITATION:	Estephan v Lynsey Finch and Ors [2007] NSWDC 285
HEARING DATE(S):	6 March 2006 - 24 March 2006
JUDGMENT DATE:	10 July 2007
JURISDICTION:	Civil
JUDGMENT OF:	Neilson DCJ at 1
DECISION:	Matter No: 1042/04 - Plaintiff: Estephan Estephan; Verdict for the Plaintiff against the Defendants for damages to be assessed; Verdict for the First Cross Claimant (LCC) against the First and Second Cross Defendants for 20 per cent of the damages so assessed; Judgment for the Third Cross Defendant to the First Cross Claim against the First Cross Claimant; Order the First Cross Claimant to pay the costs of the Third Cross Defendant to the First Cross Claim; Verdict for the Second Cross Claimants against the Second Cross Defendant for 80 per cent of the damages so assessed; Matter No: 2124/04 - Plaintiff: Charlene Estephan; Verdict for the Plaintiff against the Defendants for damages to be assessed; Verdict for the First Cross Claimant (LCC) against the First and Second Cross Defendants for 20 per cent of the damages so assessed; Judgment for the Third Cross Defendant to the First Cross Claim against the First Cross Claimant; Order the First Cross Claimant to pay the costs of the Third Cross Defendant to the First Cross Claim; Verdict for the Second Cross Claimants against the Second Cross Defendant for 80 per cent of the damages so assessed; Matter No: 2125/04 - Plaintiff: Joanne Estephan; Verdict for the Plaintiff against the Defendants for damages to be assessed; Verdict for the First Cross Claimant (LCC) against the First and Second Cross Defendants for 20 per cent of the damages so assessed; Judgment for the Third Cross Defendant to the First Cross Claim against the First Cross Claimant; Order the First Cross Claimant to pay the costs of the Third Cross Defendant to the First Cross Claim; Verdict for the Second Cross Claimants against the Second Cross Defendant for 80 per cent of the damages so assessed; Matter No: 2126/04 - Plaintiff: Joseph Azzi; Verdict for the Plaintiff against the Defendants for damages to be assessed; Verdict for the First Cross Claimant (LCC) against the First and Second Cross Defendants for 20 per cent of the damages so assessed; Judgment for the Third Cross Defendant to the First Cross Claim against the First Cross Claimant; Order the First Cross Claimant to pay the costs of the Third Cross Defendant to the First Cross Claim; Verdict for the Second Cross Claimants against the Second Cross Defendant for 80 per cent of the damages so assessed; Matter No: 2127/04 - Plaintiff: Mary Azzi; Verdict for the Plaintiff against the Defendants for damages to be assessed; Verdict for the First Cross Claimant (LCC) against the First and Second Cross Defendants for 20 per cent of the damages so assessed; Judgment for the Third Cross Defendant to the First Cross Claim against the First Cross Claimant; Order the First Cross Claimant to pay the costs of the Third Cross Defendant to the First Cross Claim; Verdict for the Second Cross Claimants against the Second Cross Defendant for 80 per cent of the damages so assessed; Matter No: 3797/04 - Plaintiff: Lynsey Finch; Verdict for the Plaintiff against the Defendant for 80 per cent of damages to be assessed; Judgment for the Cross Defendant against the Cross Claimant; Order the Cross Claimant to pay the Cross Defendant’s costs; In each matter, I grant liberty to the parties to apply on 7 day’s notice for any special costs orders including, if sought, an order for the interim assessment of costs.
CATCHWORDS:	Fatal collision between a stationwagon and a tip truck towing a trailer at an intersection (modified T intersection) at Rossmore in Liverpool local government area - Six actions arising from this collision were heard together on question of liability - Ultimate issues were whether the driver of the tip truck and trailer (F) was negligent, whether the driver of the stationwagon (JE) was negligent and whether the local government body (LCC), the applicable road authority were negligent and, if more than one were negligent, apportionment of liability - Lengthy consideration of the history of the intersection - Lengthy reconstruction of and consideration of the collision - Consideration of the applicable speed limit at [14] to [29] - Australian Road Rules 21 and 25 and definition of "built-up area" - Immediate causes of the collision were held to be: (a) JE knew she had right of way at the intersection which she exercised by making a right hand turn. (b) F erroneously believed that he had right of way. (c) only when F perceived that JE was not going to yield way to him and was going to turn right across the path of F's truck did he apply his footbrake, braking hard enough to seek to avoid the collision. (d) when JE's stationwagon emerged on F's left, F tried to turn or veer right to avoid it, had he continued on a straight path or attempted to veer to the left, the collision would have been avoided - Lengthy consideration of lay and expert evidence concerning speed of F's truck. A number of experts assessed his initial speed as in excess of 90kph in an area where 60kph limit applied. Held F was driving at about 70kph when he first perceived the lights of JE's vehicle - Held: (1) F was negligent: (a) he failed to keep a proper lookout. He ought to have observed and heeded a modified T intersection warning sign. (b) he failed to keep left by steering his truck into the right side of the carriageway. (2) F was not negligent in driving at 70kph in 60kph zone because of confusion about the speed limit and the difficulty of determining whether this was a "built-up area" and matters considered between [14] and [29]. Breach of a road rule is not itself negligence: Tucker v McCann [1948] VLR 222 at 227, Brulhart v Jarman [1964] NSWR 1210. The effective cause of the collision was not speed but F's lack of awareness of the altered priority of the T intersection. (3) JE was not negligent. This was a classic case of an "agony of the moment" decision. Fleming, The Law of Torts, 9th ed. (1998) p 319. (4) LCC was negligent as a Give Way sign ought to have been erected at the intersection facing traffic approaching it in the direction F did, as (a) the modified T intersection sign was possibly ambiguous. (b) that sign could be misinterpreted. (c) this had been requested on a number of occassions since 1992 by neighbouring residents and by a local councillor in 1998. (d) had been proper road engineering practice since 1994, and alterations had been made to the intersection in 1996 and 1998. Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201 at 214. (5) Liability apportioned 20 per cent to F and 80 per cent to LCC. Brodie v Singleton Shire Council (2001) 206 CLR 512 at 580, Liverpool City Council v Millet [2004] NSWCA 340 - 34 MVR 193. Argument that in an apportionment the Court should consider questions arising from different measures of damages rejected. Law Reform (Miscellaneous Provisions) Act 1946 s 5, Law Reform (Miscellaneous Provisions) Act 1965 s 9, Wynbergen v Hoyts Corporation Pty Ltd (1997) 72 ALJR 65 at 68, Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492, Josyln v Berryman [2003] HCA 34 at [124] - [128]
LEGISLATION CITED:	Motor Accidents Compensation Act 1999 Law Reform (Miscellaneous Provisions) Act 1946 Law Reform (Miscellaneous Provisions) Act 1965 Roads Act 1993 Civil Liability Act 2002 Australian Road Rules
CASES CITED:	Tucker v McCann [1948] VLR 222 Brulhart v Jarman [1964] NSWR 1210 Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201 Brodie v Singleton Shire Council (2001) 206 CLR 512 Liverpool City Council v Millet [2004] NSWCA 340; 34 MVR 193 Wynbergen v Hoyts Corporation Pty Ltd (1997) 72 ALJR 65 Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 Josyln v Berryman [2003] HCA 34
PARTIES:	Matter: 1042/04 Plaintiff: Estephan Estephan First Defendant: Lynsey Finch Second Defendant: Rocks Excavations and Plant Hire Pty Ltd Third Defendant: Liverpool City Council Matter: 2124/04 Plaintiff: Charlene Estephan by her tutor Estephan Estephan First Defendant: Lynsey Finch Second Defendant: Rocks Excavations and Plant Hire Pty Ltd Third Defendant: Liverpool City Council Matter: 2125/04 Plaintiff: Joanne Estephan by her tutor Estephan Estephan First Defendant: Lynsey Finch Second Defendant: Rocks Excavations and Plant Hire Pty Ltd Third Defendant: Liverpool City Council Matter: 2126/04 Plaintiff: Joseph Azzi First Defendant: Lynsey Finch Second Defendant: Rocks Excavations and Plant Hire Pty Ltd Third Defendant: Liverpool City Council Matter: 2127/04 Plaintiff: Mary Azzi First Defendant: Lynsey Finch Second Defendant: Rocks Excavations and Plant Hire Pty Ltd Third Defendant: Liverpool City Council Matter: 3797/04 Plaintiff: Lynsey Finch Defendant: Liverpool City Council
FILE NUMBER(S):	1042/04; 2124/04; 2125/04; 2126/04; 2127/04; 3797/04
COUNSEL:	Mr P. Semmler QC and Mr C. Thompson appeared for the plaintiffs in the first 5 matters. Mr J. Heazlewood appeared for Mr Finch as plaintiff. Mr R.R. Stitt QC and Mr H.W. Stitt appeared for Mr Finch as defendant and also for Rocks Excavations and Plant Hire Pty Ltd, by right of subrogation. Mr M. Windsor appeared for Liverpool City Council. Mr D.J. Russell SC appeared for Mr Estephan as executor of the estate of Mrs Estephan, by right of subrogation.
SOLICITORS:	Carrol and O’Dea for the plaintiffs in the first five matters. Michael Jokovic and Associates for the plaintiff in the sixth matter. Sparke Helmore for the first and second defendants in the first five matters. McCabe Terrill for Liverpool City Council. TL Lawyers for the estate of the late Jocelyn Estephan.

Pole	Distance
ID 135	0
ID 144	42.3m (but light not working on day of accident)
ID 148	116.7m (or 159m because of above failure)
ID 154	234.7m
At Corner of Wynyard Ave	Not stated, but clearly greater than 100m