Fisk v Mercantile Mutual Insurance (Australia) Limited

[2001] NSWSC 1134

CITATION:	Fisk v Mercantile Mutual Insurance (Australia) Limited & ORS. [2001] NSWSC 1134
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	SC 20781/95
HEARING DATE(S):	29 October-2 November, 5 November-8 November, 12 November, 14 November-16 November, 19 November- 20 November, 23 November, 26 November, 28 November 2001 and 12 December 2001.
JUDGMENT DATE:	14 December 2001
PARTIES :	Scott James Fisk by his Tutor Wayne Fisk- Plaintiff Mercantile Mutual Insurance (Australia) Limited- First Defendant Tony Albert- Second Defendant Roads and Traffic Authority of New South Wales- Third Defendant
JUDGMENT OF:	Acting Justice Solomon

COUNSEL :	Mr King SC with Mr Benson for the Plaintiff Mr Hislop QC with Mr Roche for the First and Second Defendants Mr Barry QC with Mr Robinson for the Third Defendant
SOLICITORS:	Turner Freeman for the Plaintiff Sparke Helmore for the Second Defendant I.V. Knight, Crown Solicitor the Third Defendant
CATCHWORDS:	Liability under Motor Accidents Act and Common Law - Quantum of Damages agreed upon by Parties
LEGISLATION CITED:	Supreme Court Rules 1970 Motor Accidents Act 1988 Law Reform (Miscellaneous Provisions) Act 1946
CASES CITED:	Jones v Dunkel (1959) 101 CLR 298 Pyrenees Shire Council v Day (1998) 92 CLR 394 Romeo v Conservation Commission (1998) 192 CLR 431 Brodie v Singleton Shire Council 75 ALJR at 992 Wyong Shire Council v Shirt (1979-1980) 146 CLR 40
DECISION:	See paragraph 100

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SOLOMON AJ
FRIDAY 14 DECEMBER 2001
020781/95 SCOTT JAMES FISK(BY HIS TUTOR WAYNE FISK) v MERCANTILE MUTUAL INSURANCE AND TWO OTHERS
Judgment

1 These proceedings arise out of a motor vehicle accident which occurred on the M4 Motorway (“the motorway”) Homebush at approximately 5:15pm on 6 July 1994. At the time of the accident Scott James Fisk drove a 1971 Holden Kingswood motor vehicle registered number RXW 902 (“the Holden”) in a westerly direction on the motorway and collided with a 1980 Datsun 200B motor vehicle registered number RJP 747 (“the Datsun”) driven by Robert Hakim (“Hakim”). The collision occurred after the Datsun which was proceeding in an easterly direction on the motorway crossed over the grass median and entered the westbound lane of the motorway in which the Holden was proceeding.

2 Scott James Fisk the driver of the Holden suffered brain damage as a result of the collision and this action has been brought on his behalf by his Tutor Wayne Fisk (“The plaintiff”) who was appointed pursuant to Part 63 Rule 2 of the Supreme Court Rules 1970. Hakim died as a result of the injuries sustained by him in the collision and the plaintiff brings this action against the first defendant Mercantile Mutual Insurance (Australia) Ltd pursuant to the provisions of Section 54 of the Motor Accidents Act 1988. The second defendant, Tony Albert at the time of accident was the registered owner of the Datsun. The motorway was designed, constructed and maintained by the third defendant, the Roads and Traffic Authority of New South Wales and its predecessor in title.

3 The plaintiff in the Statement of Claim has alleged negligence against the first, second and third defendants. The first and second defendants have brought a cross-claim against the third defendant claiming contribution and/or complete indemnity pursuant to the provisions of s.5 of the Law Reform (Miscellaneous Provisions) Act 1946. The third defendant has brought a cross-claim against the first and second defendants claiming contribution and/or complete indemnity against the first and second Defendants pursuant to the provisions of s.5 of the Law Reform (Miscellaneous Provisions) Act 1946.

4 Damages

The plaintiff and the first and second defendants have agreed on a calculation of damages in the sum of $7,600,000 in the event of a verdict being found in favour of the plaintiff against the first and/or second defendants. Such damages have been calculated in accordance with the provisions of the Motor Accidents Act 1988. The plaintiff and the third defendant have agreed on a calculation of damages in the sum of $8,500,000 in the event of a verdict being found in favour of the plaintiff against the third defendant at common law.

5 I have heard evidence from Robert John Harris, a legal officer in the employ of the Office of the Protective Commissioner regarding the calculation of damages. I have considered the documents tendered by the plaintiff and the second defendant regarding Scott Fisk’s medical condition, life expectancy and future requirements (Exhibits V-Z, AA-AN and MM29-MM33). I am satisfied the damages calculated by the parties are appropriate.

6 The Accident

Gary Fisk and Colin Forrest witnessed the accident. The relevant evidence of Gary Fisk is summarised as follows: At the time of the accident Gary Fisk was a front seat passenger in the Holden driven by his nephew Scott Fisk in a westerly direction in lane two of the motorway that is, the lane closest to the grass median. The weather was fine and the roadway was dry. The witness noticed a white car in the middle of the median strip. The white car was rolling towards the Holden. The witness gave evidence that he was not sure if the rolling of the white car commenced on the westbound lane of the motorway. (Transcript page 13, line 55). The two vehicles collided and the witness blacked out.

7 Colin Forrest (“Forrest”) made two statements (Exhibit F and Exhibit G) and gave evidence. His account of the accident is summarised as follows: At the time of the accident Forrest drove a motor vehicle on the motorway in the vicinity of the Homebush Bay Drive overpass. Forrest drove in an easterly direction in lane one of the motorway, that is the kerbside lane at a speed of about 70-75km per hour. The witness noticed a white coloured car which was in the process of overtaking him in lane two of the motorway, that is the lane closest to the median strip. The white coloured car travelled at a speed of approximately 80km per hour. The white coloured car made a slight veer to the left (Transcript page 18, line 25) towards the witness’s vehicle. The white coloured car when it veered to the left did not move out of the lane on which it was proceeding (Transcript page 21, line 45). The white coloured car then veered to the right as if it had blown a tyre (Transcript page 17, line 35). The white coloured car prior to veering to the left appeared to be proceeding in a normal fashion. The witness did not hear any mechanical noise from the vehicle nor did he hear any tyre blow-out. The witness could not give any reason as to why the white coloured car veered off to the right. (Exhibit G, paragraph 20). The witness did not observe any sign of the white coloured car braking after it veered to the right. The witness observed the white coloured car travel onto the median strip and roll over as soon as it left the eastbound carriageway. The witness observed the Holden attempt to swerve away from the white coloured car. The witness observed the white coloured car roll towards the Holden. The white coloured car hit the front right-hand guard of the Holden it then rolled onto and over the roof of the Holden.

8 The Police Evidence

Senior Constable Adam Whyte and Sergeant Adrian Jones investigated the accident scene. During the course of their investigations photographs were taken of the accident scene (Exhibit K1-40, Exhibit RTA 1-6 and Exhibit RTA 9) and plans of the accident scene were made (Exhibit H and Exhibit RTA 8).

9 Constable Christopher Mates examined the Datsun on 23 August 1994. Constable Mates is a qualified automotive engineer and motor mechanic. Constable Mates is a Member of the Institute of Automotive Mechanical Engineers and a Member of The Society of Automotive Engineers (Australasia).

10 Constable Mates made the following findings regarding the tyres of the Datsun:

“The off side front tyre was inflated however the inner shoulder of the tread face was devoid of tread exposing the steel belts. The near side front tyre was deflated due to damage sustained to the inner and outer rim flange unseating the outer tyre bead from the ringe flange seal. The damage sustained to the rim was consistent with the collision and there was no evidence to suggest the tyre had run whilst deflated. This tyre had a roadworthy tread depth of pattern. The off side rear tyre was inflated and had a roadworthy tread depth of pattern. The near side rear tyre was of the retreaded type. This tyre had sustained a complete tread separation. I removed the tyre from the rim and found a number of steel belts had penetrated through the casing and had punctured the tube. There was no evidence to suggest the tyre had run whilst deflated however there was damage and rubber debris surrounding the near side rear quarter panel and wheel arch to suggest that the tyre tread face had separated whilst the vehicle was in motion. I made an inspection of the production number and found that the tyre was manufactured in 1985.

As a result of my examination I found the near side rear tyre tread face had separated from the casing under driving conditions. I am of the opinion that a tread separation to the near side rear tyre would have caused the vehicle to lose control. I failed to find any other defect, which in my opinion, may have contributed to the cause of the collision.” (Exhibit N paragraphs 7-8)

11 Constable Whyte gave evidence. The relevant evidence of Constable Whyte is summarised as follows: The witness examined the rear near-side tyre of the Datsun at the scene of the accident. The tyre was deflated, damaged and appeared to be shredded. The witness found a piece of tyre in the median strip on the path travelled by the Datsun over the median strip. The path of the Datsun across the grass median strip was indicated by a single furrow which was marked by Police with white chalk. Constable Whyte observed other furrows made by the Datsun on the grass median (Transcript page 28, line 1 and 15. Transcript page 49, line 20). The Holden after the collision travelled from the westbound lane onto the median strip. The path of the Holden on the median strip was marked by Police with two parallel lines of white chalk.

12 A Police photograph (Exhibit K3) indicates the paths of the Datsun and the Holden on the median strip. The same Police photograph depicts three red cones. The red cone shown on the right side of centre of the photograph indicates the point where the Datsun entered the westbound carriageway of the motorway. The red cone shown in the left hand side of the photograph indicates the point where the Datsun came to a stop after the accident.

13 The witness observed a drainage grate in the middle of the median. A furrow from the Datsun passed over the drainage grate. The police photographed the drainage grate (Exhibit K2). The witness observed that a furrow caused by the Datsun terminated at the edge of the bitumen which formed the roadway of the westbound motorway.

14 A police photograph, (Exhibit K7) indicates a white chalk mark placed by police into a deep gouge on the bitumen of the surface of the westbound carriageway. The witness was of the opinion that the gouge was caused by the rim of the front near side tyre of the Datsun contacting with the bitumen. The witness indicated that he did not observe any further gouges or furrows on the bitumen from the Datsun apart from the gouge mark shown in Exhibit K7. The witness indicated that in his opinion the Datsun became airborne at the position of the gouge mark on the bitumen as is shown in photograph Exhibit K7. (Transcript page 34, line 17). The photograph, Exhibit K7 indicates that the bitumen edge of the motorway was raised almost 4 inches above the surface of the median.

15 The witness was of the opinion that the single furrow mark observed by him on the median was consistent with the Datsun being in contact with the ground almost the whole of the way from the eastbound lane of the motorway to the westbound lane of the motorway (Transcript page 48, line 5). The witness was of the opinion that the Datsun did not roll until it reached the bitumen edge of the westbound carriageway (Transcript page 52, line 35). The witness did not observe any physical features of the accident which suggested to him that the Datsun had rolled prior to reaching the bitumen on the westbound lane of the motorway (Transcript page 50, line 55). The witness estimated that at the time of impact the Datsun was rotating and was in the air (Transcript, page 60, line 13).

16 The witness was of the opinion that there was no indication from the physical evidence that the driver of the Datsun attempted to steer away from the oncoming traffic in the westbound lane of the motorway as the Datsun travelled over the grass median. The witness examined the area over which the Datsun travelled and did not find evidence of any brake markings on either the bitumen or on the median. The witness was of the opinion that the damage to the vehicles was consistent with the Datsun striking the front bumper bar of the Holden, rolling onto the bonnet of the Holden and then rolling onto the roof of the Holden.

17 The witness examined the tyres of the Datsun and formed the view that the Datsun’s handling would have been affected by the state of its tyres. The witness was of the opinion that once the Datsun left the motorway and moved onto the grass median that the condition of the tyres played no part in the causation of the accident.

18 The witness was of the opinion that it was likely that the vehicle had been pushed into a left hand veer by the rapid deflation of the rear near side tyre. The witness was unable to say what the best course of action for the driver of the Datsun would have been in the circumstances. (Transcript page 67, line 55). The witness was of the opinion that tyre blow-outs are very rare (Transcript page 68, line 19). The witness was of the opinion that a driver in such a circumstance would be faced with a critical incident and had many options open. (Transcript page 68, line 25). The witness indicated that he would not criticise a driver who reacted to a tyre blow-out when a vehicle was on his left by swinging the wheel and turning off to the right. (Transcript page 68, line 34)

19 Sergeant Jones gave evidence. The relevant evidence of Sergeant Jones is summarised as follows: The witness examined the accident scene and found a single furrow made by the Datsun on the median strip. The single furrow passed over the drain situated in the median strip. The witness gave evidence that the presence of the single furrow from the Datsun was inconsistent with the Datsun being in the air as it crossed over the median strip and was only consistent with the Datsun rolling into the path of the Holden after the Datsun struck the bitumen edge of the west bound carriageway (Transcript page 80, line 27). The witness was of the opinion that the Datsun was airborne at the time it collided with the Holden. (Transcript page 81, line 20).

20 Expert Witnesses

Each party to the proceedings called expert witnesses. The plaintiff called Bruce Hazel (“Hazel”), his curriculum vitae (Exhibit O) indicated that he holds the degrees of Bachelor of Civil Engineering (University of Queensland, 1960) and Master of Civil Engineering (Purdue University Indiana USA, 1969). From 1960 to 1979 Hazel worked as a highway engineer in Queensland, Canada, and the United States of America. From 1979 to 1991 Hazel worked in various capacities as a highway engineer for various New South Wales Traffic Authorities. From 1991 to the present he has been engaged in private practice as a Road Safety Consultant and Highway Design Engineer. Hazel prepared two reports, the report of 1 April 1999 (Exhibit Q) and the report of 26 August 2001 (Exhibit R).

21 The first and second defendants called three expert witness. The first expert witness was Michael Griffiths (“Griffiths”), his curriculum vitae (Exhibit MM19) indicates that that he holds the degrees of Bachelor of Mechanical Engineering (University of New South Wales, 1972) and Master of Biomedical Engineering (University of New South Wales, 1982). From 1983 to 1997 Griffiths was employed in the Traffic Accident Research Unit of the third defendant. From 1991 to 1995 Griffiths lectured in vehicle and protective equipment safety at the University of New South Wales. He is presently employed as a private consultant in the areas of road safety and accident prevention. Griffiths prepared two reports, the report of 11 September 2000 (Exhibit MM20) and the report of 23 October 2001 (Exhibit MM21).

22 The second expert witness called by the first and second defendants was Dr Michael Henderson (“Henderson”), his curriculum vitae (Exhibit MM23) indicates that Henderson holds the degrees of Master of Arts, Bachelor of Medicine and Bachelor of Surgery (University of Cambridge UK, 1960). Henderson commenced to practise in traffic safety research and injury in 1970. Henderson has held various positions in road safety including the positions of Director of the Traffic Accident Research Unit and Executive Director of Traffic Safety of the New South Wales Department of Motor Transport. From 1989 to the present he has worked as a private consultant in road safety and injury prevention. Henderson prepared one report dated 18 October 2000 (Exhibit MM22).

23 The third expert witness called by the first and second defendants was Roger Stuart-Smith (“Stuart-Smith”), his curriculum vitae (Exhibit MM24) indicates that Stuart-Smith holds the degrees of Bachelor of Science (University of New South Wales, 1971) and Master of Engineering Science (University of New South Wales, 1977). From 1976 to 1978 Stuart-Smith was a crash investigation engineer attached to a research unit of the New South Wales Department of Motor Transport. From 1980 to 1993 Stuart-Smith worked in road design and traffic engineering. From 1993 to the present he has worked as independent consultant in crash reconstruction and analysis and road safety engineering. Stuart-Smith prepared one report, the report of 8 June 2000 (Exhibit MM25).

24 The third defendant called three expert witnesses. The first expert witness was Bruce Fishburn (“Fishburn”), his curriculum vitae (Exhibit RTA 13.1, Appendix A) indicates that he holds the degrees of Bachelor of Engineering (University of New South Wales, 1963) and Master of Engineering Science (University of New South Wales, 1972). From 1984 to 1994 Fishburn worked as a road design engineer for the Department of Main Roads and the third defendant. From 1994 to 1998 Fishburn worked as the General Manager of the Road Technology branch of the third defendant. From 1998 he has worked in private practice as a Highway Engineer. Fishburn prepared three reports, Exhibit RTA 13.1, Exhibit RTA 13.2 and Exhibit RTA 13.3.

25 The second expert called by the third defendant was Patrick Kenny (“Kenny”), his curriculum vitae (Exhibit RTA 14.4) indicates that Kenny holds the degrees of Bachelor of Engineering (University of New South Wales, 1974) and Master of Engineering Science (University of New South Wales, 1984). From 1974 to 1985 Kenny worked in various capacities as an engineer for the Department of Main Roads New South Wales. From 1985 to 1991 Kenny worked in various capacities for the third defendant including that of supervising engineer of the Road Design Section of the third defendant. From 1991 to 1999, Kenny was a senior lecturer in Road and Transport Engineering at the University of Technology, Sydney. From 1999 to the present he has worked for the third defendant and holds the position of Sydney Development Program Manager. Kenny prepared three reports Exhibit RTA 14.1, Exhibit RTA 14.2 and Exhibit RTA 14.3.

26 The third expert witness called by the third defendant was Colin G Simpson (“Simpson”), his curriculum vitae (Exhibit RTA 48) indicates that Simpson holds the degrees of Bachelor of Engineering (University of New South Wales, 1976) and Master of Safety Science (University of New South Wales, 1988). Simpson is a Member of the Institute of Engineers of Australia, a Member of the Ergonomic Society of Australia, a Member of the Automotive Mechanical Engineers and a Member of the Society of Automotive Engineers Australia. From 1967 to 1976 Simpson worked as a motor mechanic. From 1977 to 1979 Simpson worked as a Company Engineer. From 1979 to 1982 Simpson worked for the Ford Motor Company of Australia. From 1982 to the present he has worked as a Consulting Engineer specialising in the fields of industrial safety and automotive accident analysis. Simpson prepared one report, Exhibit RTA 12.2.

27 The first and second defendants submit that Fishburn and Kenny who gave evidence on behalf of the third defendant could not give objective and independent evidence having regard to their long and distinguished employment with the third defendant. The first and second defendants further submit that Kenny was selective in his evidence in relation to his references to guidelines and practice books. It is submitted that Kenny highlighted material in the guidelines and practice books which favoured the third defendant and omitted material which was unfavourable to the third defendant. In so far as this submission is concerned I find that both Fishburn and Kenny were reliable witnesses, who gave their evidence in an objective, professional and dispassionate manner. Both witnesses made concessions in cross-examination which were detrimental to the third defendant. Further, Kenny gave explanations to why he omitted material from guidelines and practice books and I accept the explanations given by him.

28 The case against the first defendant

The plaintiff alleges that Hakim was negligent in two respects. First, in his driving and controlling of the Datsun. Second, in failing to detect the condition of the off side front tyre of the Datsun.

29 The causation of the accident

A number of witnesses have given opinions as to the causation of the accident. Constable Mates was of the opinion that the delamination of the near side rear tyre would have caused the vehicle to lose control (Exhibit N, paragraph 8). Constable Mates’s opinion was based solely on his physical examination of the near side rear tyre. Constable Mates did not factor into his opinion the speed in which the vehicle travelled at the time of the delamination, the road conditions and the circumstances of Hakim’s driving prior to and at the time of the delamination.

30 Hazel an expert called on behalf of the plaintiff and Simpson an expert called on behalf of the third defendant held a contrary view to that of Constable Mates in that they were of the opinion that it was unlikely that the delamination of the near side rear tyre of the Datsun would have made the Datsun uncontrollable when it travelled on the motorway at a speed of 80 km per hour (Hazel Exhibit Q page 4 and Simpson Exhibit RTA 12.1 page 28). I prefer the opinions of Hazel and Simpson to that of Constable Mates first because I prefer their expertise and experience to that of Constable Mates and second because Hazel and Simpson considered all the factors surrounding the accident as opposed to Constable Mates who only considered the physical evidence of the near side rear tyre.

31 Constable Whyte gave an opinion as to the difficulties faced by a driver of a vehicle which suffered a near side rear tyre delamination and blow-out. I do not accept Constable Whyte’s opinion in this regard as his opinion was predicated on the basis that the near side right tyre at the time of the delamination suffered a blow-out. Whilst the near side rear tyre was found to be delaminated after the accident there is not sufficient evidence for me to conclude that the near side rear tyre at the time of the delamination suffered a blow-out.

32 Simpson was of the opinion that the delamination of the near side rear tyre was caused by tyre carcass failure (Exhibit RTA 12.1 page 12 and Transcript page 485, line 20). Simpson was further of the opinion that the damage to the carcass would not have been observable on inspection by the average motorist (Day 14 transcript page 492, line 32). Simpson was further of the opinion that the carcass damage which eventually led to the delamination probably would have manifested itself by way of a significant vibration and a rhythmic thumping sound for many kilometres before the delamination occurred. Simpson was of the opinion that a reasonable driver on becoming aware of the vibration and thumping sound should have pulled over to investigate the problem. Simpson was further of the opinion that a reasonable driver should not have proceeded to pass a vehicle at 80 km per hour on the motorway in circumstances where the significant vibration and rhythmic thumping were occurring (Day 14 Transcript page 486, line 33).

33 Simpson when cross examined accepted that a delamination of a tyre is an event which many motorists would never encounter and that when a delamination occurs it is normally accompanied by a sudden and unexpected noise with which the average motorist would be completely unfamiliar (Day 14 transcript page 490, line 6).

34 Simpson further, when cross examined accepted that there was a possibility of sudden tread separation of the near side rear tyre without any warning prior to the tyre making a flapping sound (Day 14 Transcript page 493, line 36). However Simpson’s opinion regarding the probability of the driver being aware of a significant vibration and a rhythmic thumping for many kilometres before the accident was not tested in cross examination.

35 Simpson was further of the opinion that as a result of the near side rear tyre delamination the Datsun veered slightly to the left and that Hakim counteracted this movement with an over-reaction and loss of control following right hand steering input (Exhibit RTA 12.1, page 11).

36 Hazel was of the opinion that the Datsun crossed onto the median at a “fairly” acute angle and this suggests a fairly violent wrenching of the wheel by the driver of the Datsun (Transcript page 108, line 11) Hazel was further of the opinion that the driver of the Datsun over-reacted when he turned the wheel with the degree of force required to drive the vehicle onto the median at the angle shown in police photograph Exhibit K3. (Transcript page 112, line 43)

37 Hazel was of the opinion that a reasonable and prudent driver faced with the delamination of the near side rear tyre in circumstances in which Hakim found himself ought to have braked, slowed down and driven the vehicle off the carriageway (Transcript page 95, line 10).

38 Griffiths an expert witness called by the first and second defendants was of the opinion that the condition of the front off side tyre did not contribute to the accident (Transcript page 180, line 39). Griffiths was further of the opinion that an option open to Hakim after the vehicle pulled to the left was to steer the car normally to the right rather than pull the vehicle to the right (Transcript page 191, line 43). Griffiths was further of the opinion that Hakim could have slowed the travel of the Datsun by taking his foot off the accelerator and braking gently (Transcript page 191, line 49). Griffiths was further of the opinion that at the point where the Datsun entered the median Hakim had sufficient room to safely bring his vehicle to a halt (Transcript page 210, line 30). Griffiths was further of the opinion that Hakim drove onto the median at an angle of 25 degrees (Transcript page 213, line 15). Griffiths was further of the opinion that the accident was consistent with a panic or over-reaction or misjudgment on the part of Robert Hakim (Transcript page 192, line 32). Griffiths was further of the opinion that the accident involved lack of skill and driver error on the part of Robert Hakim (Transcript page 192, line 40). Stuart-Smith an expert witness called by the first and second defendant was of the opinion that Hakim drove onto the median at an angle of about 25 degrees (Transcript page 260, line 7).

39 Kenny an expert witness called by the third defendant was of the opinion that lack of concentration/over-reaction to the tyre failure could well have led to the occurrence of the accident. Kenny was further of the opinion that Hakim could have used the median to turn into and slow down with safety (Exhibit RTA 14.1, page 6).

40 Fishburn an expert witness called by the third defendant was of the opinion that if the near side rear tyre merely delaminated then some drivers would lose control of the vehicle and others would not. (Day 15 transcript page 514, line 57). Fishburn was further of the opinion that if the tyre deflated as well as delaminated and the vehicle veered to the left putting it in a collision course with a vehicle in the next lane then he would not be critical of a driver pulling his vehicle hard to the right (Transcript page 515, line 9).

41 Counsel for the first and second defendants submits that Hakim when driving on the motorway was faced with a sudden emergency and referred me to the observations set out in Fleming, “The Law of Torts” 9th edition at page 319:

“A person’s conduct in the face of sudden emergency can not be judged from the stand point of what would have been reasonable in the light of hind-knowledge and in calmer atmosphere conducive to a nicer evaluation of all alternatives.”

42 I have considered the submission. Whilst I find that Hakim was faced with a sudden emergency, I am satisfied on the balance of probabilities that the delamination of the near side rear tyre did not cause the Datsun to become uncontrollable. I find that Hakim, in the circumstances, acted unreasonably after he encountered the delamination of the near side rear tyre and the veering of the Datsun to the left in failing to apply his brakes and steer the Datsun onto the median at an angle which would have allowed him to bring the Datsun to a stop. I am satisfied on the balance of probabilities that Hakim over-reacted to the delamination of the near side rear tyre when he drove the Datsun on to and over the median at an angle of approximately 25 degrees at a speed of approximately 80 km per hour.

43 The plaintiff has satisfied me that Hakim was negligent in his driving and controlling of the Datsun. I am not satisfied that the condition of the off side front tyre of the Datsun contributed to the accident and it is therefore not necessary for me to determine whether Hakim was negligent in failing to detect the condition of the tyre.

44 Case against the second defendant

The plaintiff alleges that the second defendant is vicariously liable for the negligence of the first defendant. The plaintiff further alleges that the second defendant was negligent in failing to maintain the tyres of the Datsun in a proper state of repair. The plaintiff further alleges that the condition of the tyres of the Datsun were such that the second defendant should not have permitted Hakim to drive the Datsun.

45 The second defendant made an admission through his counsel that he was the registered owner of the Datsun as at 6 July 1994. In light of the second defendant’s admission I find that Hakim at the time of the accident was the agent of the second defendant (s.53 of the Motor Accidents Act 1998). On the basis I have found Hakim to be negligent in his driving and controlling of the Datsun I find the second defendant vicariously liable for the negligence of Hakim.

46 I will now deal with the allegation that the second defendant was negligent in failing to maintain the tyres of the Datsun in a proper state of repair. I find the off side front tyre did not contribute to the accident. I find that the near side rear tyre was, on the balance of probabilities caused by a carcass failure and that there is insufficient evidence for me to find that the carcass failure was caused by a failure of the second defendant to maintain the tyre.

47 I will now deal with the allegation that the condition of the tyres were such that the second defendant should not have permitted Hakim to drive the Datsun. I repeat the finding that the near side front tyre did not contribute to the accident. I find that the defect in the carcass of the near side rear tyre of the Datsun would not have been observable on an inspection of the tyre prior to the delamination. The plaintiff has not satisfied me that the condition of the tyres of the Datsun were such that the second defendant should not have permitted Hakim to drive the Datsun.

48 The second defendant did not give evidence in the case although he was available to do so. The plaintiff submitted that I should a draw an inference that the second defendant’s evidence, if given, would not have assisted his case: Jones v Dunkel (1959) 101 CLR 298. However in light of my findings regarding the tyres of the Datsun, I am of the view that the second defendant’s evidence would not have taken the matter any further.

49 The case against the third defendant

The plaintiff alleges that the third defendant was negligent in three respects. The first respect being that the median as at the date of the subject accident was unsafe because it was too narrow and should have had a safety barrier erected within it. The second respect being that the median was unsafe because it was negligently designed and constructed in that it contained a number of features which caused the accident. The third respect being that a safety barrier should have been erected on the median due to the fact that the median contained hazards.

50 The third defendant does not contest that it owed a duty of care to Scott Fisk. The third defendant does not contest that it was foreseeable that a vehicle could cross the median strip at the place of the subject accident. The third defendant does not contest that the existence of a safety barrier on the median would have prevented the subject accident occurring. However the third defendant contests that the median was too narrow and required a safety barrier. The third defendant further contests that the median was negligently designed and constructed and contained features which contributed to the accident. The third defendant further contests that the median required a safety barrier due to the fact that the median contained hazards.

51 In order to deal with the allegations made against the third defendant it is necessary to examine the history of the motorway. The history of the motorway is as follows: In 1950 preliminary work was commenced on a road system of which the motorway forms part under the County of Cumberland Scheme (Transcript page 475, line 17). Between 1972 and 1976 the Department of Main Roads, the predecessor in title to the third defendant designed the motorway. The Department of Main Roads was unable to incorporate into the design of the motorway its own standards as it had not previously built an urban freeway. (Transcript page 476, line 41).

52 Two Guideline publications regarding freeways were available to the Department of Main Roads between 1972 and 1976. The first publication “The Guide Policy for Geometrical Design of Freeways and Expressways” (Exhibit RTA 26) which was published in 1972 by the National Association of Australian State Road Authorities (“NAASRA”). The second publication available to the Department of Main Roads was “A Policy on Design of Urban Highways and Arterial Streets” (Exhibit RTA 27) which was published in 1973 by the American Association of State Highway Officials (“AASHO”). The NAASRA guidelines for a freeway median required a minimum median width of 8 metres with a desirable minimum width of 15 metres for a suburban freeway. The AASHO Guide Policy for the minimum width of a freeway median was “about 24 feet” (RTA 27, page 367).

53 The construction of the actual motorway began in 1976. The route of the motorway between Concord Road and the Homebush Bay Drive overpass required the motorway to cross the Strathfield North railway line and a number of roads including Concord Road. A four lane bridge was constructed over the Strathfield North railway line and the major roads. On the western side of the bridge, the motorway was designed to widen to incorporate divided carriageways (Transcript, page 475, line 41). A plan of a section of the motorway dated 10 March 1976 (Exhibit RTA 41) reveals the position of the commencement of the divided carriageways which were separated by a median of variable width. The accident, the subject of proceedings, occurred in the area of the median of variable width.

54 The original design of the motorway incorporated a mountable median as a means of separating the westbound and eastbound lanes of the motorway from Concord to a point 150.7 metres east of the Homebush Bay Drive overpass. The mountable median was a fixed lane separator constructed of concrete which was also described as a central mountable kerb (Exhibit RTA 16). The mountable median as its name implies, permitted vehicles to pass over it and did not operate as a crash barrier between the westbound and eastbound traffic on the motorway. The motorway was opened in 1982 and the mountable median remained on the motorway until it was removed in 1993.

55 On 25 June 1992 C. Ford, the Development and Road Safety Manager of the third defendant wrote a letter to Rod Carter, the Traffic Manager at the Yennora office of the third defendant (Exhibit RTA 16). The letter contained the following paragraph,

“Approval has been given to the installation of a central median barrier on the M4 between Concord West and homebush (sic), from the end of the existing NJ kerb approx. 2.3km to the end of the central mountable kerb.”

56 On 24 December 1992 plans (Exhibit RTA 42 and RTA 43) were approved for the construction of a central median crash barrier to replace the mountable median. The existing mountable median was removed from the motorway and replaced with a “Type F” barrier. An energy absorption device known as the G.R.E.A.T. system was installed at the end of the concrete barrier so as to prevent vehicles impacting with the end of the “Type F” barrier (Transcript page 376, line 40). The construction of the concrete barrier was completed in December 1993. The cost of construction of the concrete barrier and associated works was $686,650.00. The Federal Government provided $500,000 for the works and the balance of the cost of the works was provided from the New South Wales Government Road Safety Budget (Transcript page 377, line 25).

57 The accident involving the Datsun and the Holden occurred on the 6 July 1994 approximately 7 months after the completion of the erection of the “F-type” barrier. The accident was the subject of a Memorandum dated 7 December 1995 prepared by Ken Lysaught an employee of the third defendant.

58 The memorandum was in the following terms:

“Subject: Proposal to install physical separation in the median of the western motorway at Homebush Bay. Project/Job No: 62323/148; T No:6726

Background:
Recently a project involving separation of the M4 carriageways from Concord to Homebush Bay was undertaken to reduce the severity of cross centre type accidents along this heavily trafficked and high speed Motorway. The separation comprised “Type F” concrete barrier, which terminated just east of Homebush Bay Road Overpass. A GREAT crash attenuator has been installed.

On July 6 1994 approximately 97 metres east of Homebush Bay Drive Overpass, a fatal motor vehicle accident occurred which involved an eastbound vehicle crossing the median grassed strip, rolling and colliding with a west bound vehicle.

With the exception of the above accident, an examination of the Authority’s accident database for the most recent 3 year period (April 1992 to March 1995) does not indicate any significant “cross carriageway” or “head on” type accident history however this is not to say that safety along this section of the Motorway would not be improved with existing separation extended.

Project brief
The Road Safety Engineering Unit requires CSB to develop suitable concepts for physical separation along this section of the M4. It would be necessary that the barrier system proposed must “marry up” to the existing barrier which presently terminates east of the Homebush Bay Drive Overpass. It is envisaged that the extension proposed would extend west for a distance approx 400-450 metres. The precise location at which to terminate the extension would be best determined during an on site visit with the design team and after a detailed survey of this section has been completed.

In this regard CSB is requested to arrange for survey data and plan suitable to enable concept/detail design to be undertaken in progressing in this project. When such a plan (survey) becomes available a meeting and site inspection will be arranged to discuss the options, associated costs and determine the end of the proposed barrier.

Subject to the outcome of these discussion and determination CSB will be requested to progress the project accordingly.

All costs associated with the project to be charged to the Project/ Job an “T” numbers listed above. Please contact me should you wish to discuss the project further.”

59 David Joseph Payne an engineer employed by the third defendant was appointed the Project Manager to undertake the construction of the barrier referred to in the memorandum of Ken Lysaught of 7 December 1995. Payne made a decision to extend the existing median with a “brifen” wire rope fence. The G.R.E.A.T. barrier cushion was removed from the end of the existing concrete barrier. In 1996 the “brifen” fence was erected to a point west of the Homebush Bay overpass. The grass median in the area of the “brifen” fence was subsequently landscaped.

60 The plaintiff and the defendants have agreed to the following distances on the motorway: First that the drainage pit which the Datsun passed over on the median was situated 96.4 metres to the west of the end of the “Type F” barrier. Second that the width of the median at the drainage pit, was 9.1 metres. Third that the drainage pit was situated 54.3 metres from the Homebush Bay Drive overpass. Fourth that the “Type-F” concrete barrier was situated 150.7 metres from the Homebush Bay Drive overpass. Fifth that the gouge marks on the western carriageway were situated 11.5 metres from the drainage pit. Sixth that the point of impact between the Datsun and the Holden was 18.5 metres from the drainage pit (Exhibit T).

61 I will now deal with the submission that the median was unsafe because it was too narrow. The median was 9.1 metres wide at the point it was crossed by the Datsun. The motorway was situated in a suburban area (Transcript Day 15, page 497, line 56). The 1972 NAASRA Guideline sets out a minimum median width of 8 metres and a desirable minimum median width of 15 metres in a suburban area (Exhibit RTA 26 page 10). In answer to this submission the third defendant submits that it was not bound by the guideline. However the third defendant submits that it complied with the minimum median width guidelines contained in the two guideline publications available to it when the motorway was designed. The third defendant submits that the median was not too narrow in the circumstances and points out that Griffiths an expert witness called by the first and second defendants was of opinion that at the point where the Datsun left the roadway there was more than enough room for a driver to apply his brakes and drive onto the median instead of driving off onto the other side of the road (Transcript page 210, line 40).

62 I will now deal with the allegation that the third defendant should have erected a barrier on the median. Griffiths an expert witness called on behalf of the first and second defendants was of the opinion that except in the case of a “very wide” median strip that a guard should be incorporated into a median to prevent head-on-impacts (Exhibit MM20, page 25). Stuart-Smith an expert witness called on behalf of the first and second defendants was of the opinion that the 1993 design policies which were applicable at that time and good practice required the third defendant to extend the crash barrier to a point beyond the drainage pit over which the Datsun travelled (Exhibit MM25, page 6).

63 The plaintiff submits that the third defendant in 1991 considered erecting a barrier consisting of a “brifen” wire safety fence from the end of the concrete mountable median to the Homebush Bay Drive overpass and that this provides evidence that the third defendant prior to Scott Fisk’s accident was aware of the need for a safety barrier to be erected on the subject median. The plaintiff in this regard relies on a letter from the third defendant to Paul Hansen of the 19 March 1991 (Exhibit C). The letter had ten sheets of plans annexed to it. I do not accept the submission that plan number one annexed to the letter indicates the point where the proposed “brifen” wire rope safety fence was to end. The document and its annexures do not permit me to conclude that the third defendant in 1991 intended that a “brifen” wire rope safety fence was to extend beyond the then existing concrete mountable median.

64 The plaintiff submits that a report prepared in July 1992 (Exhibit MM4) by R.G. Morgan, the Major Route Performance Leader of the third defendant recommended that a central median crash barrier be erected between Concord Road and Homebush Bay Drive Homebush and that this provides evidence that the third defendant prior to Scott Fisk’s accident was aware of the need for a safety barrier to be erected on the subject median.

65 In order to consider the submission it is necessary to analyse various sections of the report. Page 4 of the report contained the following paragraphs:

“Purpose
The purpose of this investigation is to establish the most appropriate central median crash barrier system to overcome the high incidence of cross median accidents on the M4 Motorway. There are two discrete sections which require treatment, namely the section between Concord Road and Homebush Bay Drive, Homebush and the section from James Ruse Drive to Church Street, Parramatta. Both sections have a paved central median consisting of mountable kerb generally 1.4m wide. The proposal is to provide a crash barrier to supplement the central median.

Background
As a result of the geometry and high operating speeds along the two sections under consideration, several serious cross median accidents have occurred that may have been prevented had central crash barriers been present. The potential for further accidents remains if the existing central median with mountable kerb is retained without providing crash barrier treatment.”

66 Page 8 of the report contained the following paragraphs:

Conclusions
Given the above investigation the following conclusions can be drawn:

· To overcome a serious cross median accident problem, central median crash barrier is required on two discrete sections of the M4 that currently have narrow mountable median; Concord to Homebush (2.36Km) and Rosehill to Parramatta (2.40Km).

· Cost and interruption to traffic considerations dictate that the existing mountable median be retained with the crash barrier placed on top of it.

· The crash barrier system should be rigid in nature given the narrowness of the median and the possibility of intrusion in to the opposing flow if a non-rigid system was used.

· The M4 is not the appropriate location to trial ‘experimental’ barrier systems in NSW.

· To minimise construction time and disruption to traffic a precast concrete method of construction is preferred.

· Of the two precast concrete block systems investigated, the Swedish Tric Bloc system is favoured by comparison to the traditional NJ shape blocks which require some anchorage to guarantee performance.

· A rigid system eliminates the need for full Motorway closure in times of accident/emergency. Access is obtained downstream of the closed carriageway.

67 Page 9 of the report contains the following recommendation:-

Recommendation
It is recommended that the Swedish Tric bloc system be placed on the M4 Motorway between:
1. Concord Road and Homebush Bay Drive (2.36Km)”.

68 I find that R.G.Morgan was of the mistaken belief that the paved central mountable median extended from Concord Road to Homebush Bay Drive whereas in fact the paved central mountable median stopped at a point a 150.7 metres east of Homebush Bay Drive. I come to this finding in light of the following portions of the Morgan report. First, page 4 under the heading “Purpose” contains the following sentence: “The proposal is to provide a crash barrier to supplement the central median.” Second, page 4 under the heading “Background” contains the following sentence: “The potential for further accidents remains if the existing central median with mountable kerb is retained without providing crash barrier treatment”. Third, page 8 under the headings “Conclusions” contains the following sentence: “To overcome a serious cross median accident problem, central median crash barrier is required on two discrete sections of the M4 that currently have narrow mountable median; Concord to Homebush (2.36km) and Rosehill to Parramatta (2.40km)”.

69 The Plaintiff submits that the third defendant should have called R.G.Morgan, the author of the report to give evidence as to where he intended the crash barrier to end. I find that there was no obligation on the third defendant to call R.G.Morgan as it is clear from the report that the crash barrier referred to in the report was to extend only to the end of the existing mountable kerb.

70 The plaintiff submits that the 1988 Austroads guide provided that a median barrier was usually justified where there was a median width of 6 to 9 metres (Exhibit 32, page 2). The plaintiff submits that as at the date of the subject accident, the grass median at the end of the “Type-F” barrier was substantially less than 9 metres wide and that the third defendant in order to comply with the Austroads guideline should have erected a safety barrier at least up to the point where the median was 9 metres wide. The plaintiff further submits that in 1993 the practice of the third defendant was to extend barriers beyond the minimum width requirement for barriers (Day 15 Transcript page 511, line 1) and had such a barrier been erected in accordance with this practice it would have extended past the point where the Datsun crossed the median and would have prevented the accident. The plaintiff submits that in 1993 the cost of extending the barrier would have been less than the cost expended by the third defendant in building the G.R.E.A.T. barrier at the end of the “Type-F” concrete barrier. The plaintiff further submits that the third defendant in 1993 should have used a “brifen” wire safety rope fencing to extend the barrier beyond the “Type-F” fence to a point at the Homebush Bay Drive overpass.

71 The third defendant makes the following submissions in reply to the plaintiff’s submissions. The first submission of the third defendant is that prior to the accident approximately 70,000 vehicles per day drove on the motorway between the Homebush Bay Drive overpass to a point 200 metres east of the overpass, that is the area in which the subject accident occurred (Transcript page 429, line 39). The third defendant has calculated that over 300 million vehicles drove past the subject accident site from 1983 to the date of the accident and that the subject accident was the only cross median accident which occurred in that area during that period of time (Transcript page 421, line 53 to Transcript page 424, line 32). The third defendant submits that this empirical evidence supports the third defendant’s decision not to erect a safety barrier on the median prior to the subject accident.

72 The second submission of the third defendant is that the 1988 Austroad guide provided that where there is a median width of 9 metres that a median barrier was not usually required but may be justified at problem locations due to poor crash experience. In this regard the third defendant submits it complied with the guideline because the median was 9.1 metres wide at the accident site and that there was no crash history at the site.

73 The third submission is that Fishburn an expert called by the third defendant was of the opinion that a safety barrier should only be erected in a median when the net benefit outweighs the disadvantages. In this regard Fishburn was of the opinion that the introduction of a barrier into the median would have created an additional hazard to users of the motorway (Transcript page 451, line 2). Fishburn was further of the opinion that a grass median was the best method of avoiding cross median accidents (Transcript page 451, line 40). Fishburn was further of the opinion that prior to 1993 there was good reason for leaving the median as a clear zone without a safety barrier (Day 15 transcript page 519, line 14).

74 The fourth submission is that Stuart-Smith an expert witness called by the first and second defendants agreed when cross-examined by counsel for the third defendant that the test to be applied when introducing a barrier into a median is whether, reasonably bearing in mind the history the type of accidents in the particular location and the other features of the road it is better to leave things as they are or create further obstacles or obstructions in the form of barriers (Transcript page 289, line 35).

75 The fifth submission of the third defendant is that in light of the evidence of Fishburn and Stuart-Smith that the erection of a safety barrier on the subject median would have to be based upon a recommendation which itself would demonstrate that the cost in safety terms would produce a net benefit to users of the motorway. The third defendant submits that the history of the subject motorway which was available to it did not recommend the introduction of a safety barrier on the median.

76 The sixth submission of the third defendant is that when considering an allegation of negligence against a public authority the allocation of resources is a relevant consideration. See: Pyrenees Shire Council v Day (1998) 192 CLR 394, Romeo v Conservation Commission (1998) 192 CLR 431 at 480 and Brodie v Singleton Shire Council 75 ALJR 992 at 1013 to 1014. With regard to the allocation of resources the third defendant relies on the evidence of Kenneth Lysaught (“Lysaught”), the State Network Leader of the Western Division of the third defendant. Lysaught explained to the court the method used by the third defendant to determine where to allocate its funds for safety purposes. The first step taken by the third defendant was to identify categories of accidents (Transcript page 405, line 20) and then to rank the accidents using the Benefit Cost Ratio system known as “B.C.R”. Lysaught gave evidence that a priority ranking for the allocation of funds was determined by the accident reduction benefit to the community based on the amount of capital cost involved to implement the safety measures (Transcript page 407, line 5). Lysaught gave evidence that prior to Scott Fisk’s accident that the site would not have attracted funding for the erection a safety barrier as the site did not have an accident history which would have justified the expenditure of money for accident reduction purposes (Transcript page 409, line 6). Lysaught gave evidence that after Scott Fisk’s accident that the “B.C.R” was such that funding was made available for the extension of the safety barrier on the motorway.

77 The seventh submission of the third defendant is that it was not unreasonable for the third defendant not to erect a “brifen” wire safety fence as it has demonstrated that a crash barrier was not required on the grass median to extend past the “Type-F” concrete barrier.

78 The High Court in Brodie v Singleton Shire Council dealt with the obligations of Authorities with statutory powers similar to those of the third defendant. The relevant principles were stated by Gaudron, McHugh and Gummow JJ who held at page 1025, paragraph 150:

“Authorities having statutory powers of the nature of those conferred by the LG Act upon the present respondents to design or construct roads, or carry out works or repairs upon them, are obliged to take reasonable care that their exercise of or failure to exercise those powers does create a foreseeable risk of harm to a class of persons (road users) which includes the plaintiff. Where the state of a roadway, whether from design, construction, works or non-repair, poses a risk to that class of person, then, to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within reasonable time to address the risk.”

79 Having considered the evidence regarding the safety barrier I accept the third defendant’s submissions as to the reasons a safety barrier was not erected by it on the median prior to the accident of 6 July 1994. In light of my acceptance of the third defendant’s submissions I find that it was reasonable for the third defendant not to have erected a safety barrier prior to the 6 July 1994 on the median up to the point of the drainage pit over which the Datsun passed prior to colliding with the Holden. In coming to this finding I have considered the balancing test which is required of me when determining the response of a reasonable Authority placed in the third defendant’s position as set out in Wyong Shire Council v Shirt (1979-1980) 146 CLR 40 at 47.

80 The plaintiff alleges that the slope of the median, the drainage pit situated in the median and the four inch drop-off situated between the median and the bitumen of the westbound carriageway of the motorway constituted hazards which caused the accident. I will firstly consider whether the slope of the median, the drainage pit and the drop-off were hazards, I will then consider whether the slope of the median, the drainage pit and the drop off caused the accident.

81 With regard to the slope of the median, the plaintiff submits that the slope of the median was too steep. Kenny an expert witness called by the third defendant calculated the slope of the median to be 1:7.2 on the north side of the median and 1:7.5 on the south side of the median. Kenny was of the opinion that the slope was within the Guide Policy published by NAASRA in 1972 which specified a slope not greater than 1:6 (Exhibit RTA 14.1, page 5). The plaintiff submits that the AASHO guideline in 1973 stipulated that median slopes should be no steeper than 1:6 and possibly 1:10 (Exhibit RTA 27, pages 266 to 267).

82 I find that the median slope complied with the 1972 NAASRA guideline and was within the range set out in the 1973 AASHO Guideline. I do not find that the slope of the median constituted a hazard.

83 With regard to the drainage pit, the plaintiff submits that the 1986 NAASRA guide to the Design of Road Surface Drainage (Exhibit RTA 33) required that drainage inlets be set flush to the ground in depressed medians. The plaintiff submits that in the context of the guideline that the words “flush to the ground” means “even with the ground” and that part of the subject drainage inlet in the median was constructed below ground level and that that constituted a hazard.

84 The third defendant submits that the wording of the 1986 NAASRA guide does not support the submission. The 1986 NAASRA guide (Exhibit RTA 33) at page 28 reads as follows:

“Depressed Medians (No Kerbs). Inlets are placed in the median to remove water when the flow exceeds designed limits. The inlets used to intercept flow in the median drain are normally set flush to the ground to reduce hazard to mowing equipment or out of control vehicles.”

85 The 1986 NAASRA guide contains a photograph with the caption “ Figure 12 median inlet” (Exhibit RTA 33, page 32). The photograph is very similar to the drainage inlet over which the Datsun travelled and which was photographed by police (Exhibit K2). The 1986 NAASRA guide photograph depicts the drainage inlet grate below the ground level of the median. The third defendant submits that the words “flush to the ground” in the context of the guideline mean that drainage inlets are not to be constructed above the ground. I agree with the third defendants submission and find that the drainage pit over which the Datsun travelled complied with the 1986 NAASRA guideline.

86 Kenny an expert witness called by the third defendant was of the opinion that the subject drainage grate was constructed in accordance with the 1972 NAASRA Guide Policy for Geometric Design of Freeways and Expressways (Transcript page 479, line 48). Fishburn an expert witness called by the third defendant was of the opinion that the subject drainage pit complied with all the third defendants guidelines, all the Australian guidelines and all International guidelines regarding drainage pits (Transcript page 443, line 40).

87 I have considered the evidence pertaining to the drainage inlet and counsels’ submissions and do not find that the subject drainage pit constituted a hazard.

88 With regard to the allegation regarding the four inch drop off, Hazel an expert witness called by the plaintiff was of the opinion that the drop-off was a fault in the construction of the motorway (Transcript page 124, line 15). Stuart-Smith an expert witness called by the first and second defendants was of the opinion that the drop-off was a hazard (Exhibit MM25, page 14). Kenny an expert witness called by the third defendant was of the opinion that the drop-off was a minor hazard (Transcript page 521, line 43). In light of the opinions of the expert witnesses called by each of the parties I am satisfied that the drop-off was a hazard.

89 In order for me to decide if the slope of the median, the drainage pit and the drop-off caused the accident it is necessary for me to consider the manner in which the Datsun passed over the drainage pit and the drop-off. Forrest, an eye witness to the accident gave evidence that the Datsun travelled at a speed of about 80km per hour on the motorway (Transcript page 60, line 30) and that it veered to the right onto the median without any sign of braking (Transcript page 19, line 35). Hakim drove onto the median at an angle of about 25 degrees. Police photographs indicate that Hakim drove the Datsun over the drainage pit and the drop-off (Exhibit K2, Exhibit K3 and Exhibit K7). Police photographs indicate that Hakim drove across the median without deviating his course (Exhibit K3 and K6). The police did not find any evidence that Hakim applied his brakes either on the bitumen of the motorway or on the median (Transcript page 56, line 46). There is no physical evidence before me that the drainage pit and the drop-off caused the Datsun to deviate from its course or change its speed.

90 I will now consider the opinion of the expert witnesses as to whether the slope of the median, the drainage pit and the drop-off caused the accident. Stuart-Smith an expert witness called by the first and second defendants was of the opinion that contact with the drainage pit destabilised the Datsun significantly (Exhibit MM25, page 11). Fishburn an expert witness called by the third defendant was of the opinion that the drainage pit could be traversed and was unlikely to have any significant influence on the path of the vehicle. (RTA 13.3, page 3). Simpson an expert witness called by the third defendant was of the opinion that the Datsun probably continued to travel in the same straight line after it passed over the drainage inlet. (Day 14 Transcript page 479, line 30). I prefer the evidence of Fishburn and Simpson to that of Stuart-Smith as Fishburn’s and Simpson’s evidence is confirmed by the objective evidence of the path taken by the Datsun over the median. Fishburn was further of the opinion that when the Datsun was in the vicinity of the drop off that the crash was well under way and that the Datsun was already totally out of control. (Exhibit RTA 13.3, page 9). Kenny an expert witness called by the third defendant was of the opinion that the presence of the drain and the drop off were not critical issues and that the accident resulted from Hakim’s swerving to the right across the median (Exhibit RTA 14.2, page 4).

91 On considering the evidence regarding the mode of Hakim’s driving over the median, the drainage pit and the drop off together with the opinions of Fishburn, Simpson and Kenny I do not find that the slope of the median, the design of the drainage pit, the presence of the drop off or a combination of them caused the collision between the Datsun and the Holden.

92 The plaintiff alleges that there were features in the median which caused the Datsun to become airborne and invert and that this resulted in roof to roof contact between the vehicles which in turn caused Scott Fisk’s serious head injuries. The Plaintiff submits that had the Datsun not become airborne and inverted, that in all probability the injuries sustained by Scott Fisk would have been less serious than those sustained by him in the subject accident.

93 The evidence is by no means clear as to what caused the Datsun to roll and become airborne. In this regard I refer to the following conflicting evidence: Forrest, the eyewitness to the accident gave evidence to the effect that as the Datsun went into the median it started to roll (Transcript page 19, line 40). Constable Whyte who examined the accident scene was of the opinion that the Datsun did not roll until it reached the bitumen edge of the westbound carriageway (Transcript page 52, line 35). Hazel an expert witness called by the plaintiff was of the opinion that at no time before the first impact with the Holden did the Datsun become airborne (Exhibit Q, page 5). Griffiths an expert witness called by the first and second defendants was of the opinion that the Datsun rolled with an upward projection due to cumulative features of the median that is the v-shape gully, the grate and concrete lips of the drain and the drop-off (Exhibit MM20, page 22). Stuart-Smith an expert witness called by the first and second defendants was of the opinion that contact with the drainage pit most likely tripped the Datsun causing it to rotate and that subsequent contact with the drop-off most likely exacerbated the rotations and may have made the vehicle become airborne (Exhibit MM25, page 24).

94 Simpson an expert witness called by the third defendant was of the opinion that it was probable that the Datsun was in the process of rolling over before it left the eastbound carriageway (Exhibit RTA 12.1, page 19). Fishburn an expert witness called by the third defendant was of the opinion that the drainage pit and its surrounds did not cause the vehicle to become airborne (Exhibit RTA 13.1, page 16). Fishburn was further of the opinion that the rolling of the Datsun could have been initiated by its striking the drop-off however the roll equally could have been due to the angle over which the vehicle crossed the terrain and/or the angle of the front wheels with respect to the direction of travel (Exhibit RTA 13.1, page 12). Richard Wiltshire (“Wiltshire”) an engineer specialising in accident reconstruction provided a report to the third defendant. Wiltshire was of the opinion that the Datsun started to roll as it entered the median and that the trip roll was completed at the drain (Exhibit RTA 15, page 11). Wiltshire indicated in his report that he did not agree that the Datsun had been “thrown into the air by its contact with the gradient of the drainage grates surrounds” (Exhibit 15, page 12).

95 The conflicting evidence is such that I am unable to make any finding as to the cause of the Datsun rolling and becoming airborne. That being the case it is not necessary for me to determine whether the injuries sustained by Scott Fisk would have been less serious had the Datsun not rolled and become airborne.

96 I will now deal with the allegation that a safety barrier should have been erected on the median by the third defendant due to the fact that the median contained hazards.

97 I have found that the slope of the median and the drainage pit did not constitute a hazard. I have found that the four inch drop-off between the grass median and the bitumen on the westbound carriageway of the motorway did constitute a hazard. However, I accept the evidence of Kenny an expert witness called by the third defendant that the drop off was a minor hazard. In light of the fact that the only hazard in the median was of a minor nature, I find that it was not necessary for the third defendant to have erected a safety barrier on the median.

98 Having considered each of the allegations made by the plaintiff against the third defendant I am not satisfied that the third defendant was negligent.

99 Pursuant to Part 63 Rule 11(1) of the Supreme Court Rules (1970) I approve the agreement made between the plaintiff and the first and second defendants as to the quantum of damages in the sum of $7,600,000.

100 I give the following judgments and make the following orders:

1. I find a verdict for the plaintiff against the first and second defendants in the sum of $7,600,000 and I order judgment accordingly.

2. I find a verdict for the third defendant against the plaintiff and I order judgment accordingly.

3. On the first cross-claim I find a verdict for the cross-defendant and I order judgment accordingly.

4. On the second cross-claim I find a verdict for the first and second cross-defendants and I order judgment accordingly.

5. I order that first and second defendants pay the plaintiff’s costs.

6. I order that the first and second defendants pay the third defendant’s costs of the action brought by the plaintiff against the third defendant.

7. On the first cross-claim I order that the first and second cross-claimants pay the costs of the cross-defendant.

8. On the second cross-claim I order that the cross-claimant pay the costs of the first and second cross-defendants.

9. I order the first and second defendants pay to the Office of the Protective Commissioner the balance of the sum of $7,600,000 after deduction therefrom of:

(a) the amount required to be reimbursed in respect of payments of workers compensation made to or on behalf of the plaintiff by the workers compensation insurer of the plaintiff’s employer;
(b) any amount required to be paid to the Health Insurance Commission pursuant to the Health and Other Services (Compensation) Act 1995 (Commonwealth);
(c) any amount the subject of a Notice of Charge raised by Centrelink in respect of payments of social security made to the Plaintiff.

Last Modified: 12/17/2001