Grant v Roads and Traffic Authority of NSW
[2014] NSWSC 379
•31 March 2014
Supreme Court
New South Wales
Medium Neutral Citation: Grant v Roads and Traffic Authority of NSW [2014] NSWSC 379 Hearing dates: 15 July 2013, 16 July 2013, 17 July 2013, 22 July 2013, 23 July 2013 Decision date: 31 March 2014 Before: Rothman J Decision: Judgment for the plaintiff;
The plaintiff shall calculate damage to reflect the assessment in these reasons and serve same on the defendant within 14 days hereof;
The defendant shall either agree or dispute the aforesaid calculations as one reflecting these reasons within a further 7 days;
If there be disagreement, the plaintiff and defendant shall file and serve written submissions (or a note and schedule) within a further fourteen (14) days, together with any application and supporting material, for any special orders for costs. Such submissions shall be no more than 5 pages and the issues will be dealt with on the papers;
The parties have liberty to apply on two (2) working days' notice;
Otherwise, the proceedings are adjourned and further judgment reserved.
Catchwords: NEGLIGENCE - Duty of care - roads authority - motorbike rider injured in collision with median strip fence - Standard of Care - Special Statutory Power - Additional more stringent standard - Civil Liability Act s 5B, s 5C, s 5D and s 43A. Legislation Cited: Bail Act 1978
Civil Liability Act 2002
Felons (Civil Proceedings) Act 1981
Law Reform (Miscellaneous Provisions) Act 1965Cases Cited: Adams v State of NSW [2008] NSWSC 1257
Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420
Allianz Australia Insurance Ltd v Roads and Traffic Authority of New South Wales; Kelly v Roads and Traffic Authority of New South Wales [2010] NSWCA 328
Andress v DPP [1937] AC 576
Associated Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512
Carr v Baker [1936] SR (NSW) 301
Cotton v Commissioner for Road Transport and Tramways [1942] 43 SR (NSW) 66
Curtis v Harden Shire Council [2012] NSWSC 757
Doubleday v Kelly [2005] NSWCA 151
Giorginis v Kastrati (1988) 48 SASR 371
Road Transport Authority v Dederer [2007] HCA 42; (2007) CLR 330
Jones v Dunkel [1951] HCA 8; (1959) 101 CLR 298
Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552
Nydam v R [1977] VR 430
Patsalis v State of New South Wales [2012] NSWCA 307; (2012) 81 NSWLR 742
Precision Productions (NSW) Pty Ltd v Hawkesbury City Council [2008] NSWCA 278
Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492
Presland V Hunter Area Health Service [2003] NSWSC 754
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Buttsworth [1981] 1 NSWLR 658
R v Lavender [2005] HCA 37; (2005) 222 CLR 67
R v Michael John Brown [2013] NSWCCA 178
Rickard & Ors v Allianz Australia Insurance Ltd & Ors [2009] NSWSC 1115
RTA v Refrigerated Roadways Pty Ltd [2009] NSWCA 263; (2009) 77 NSWLR 360
Shaw v Thomas [2010] NSWCA 169
Strong v Woolworths Ltd [2012] HCA 5;(2012) 246 CLR 182
Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517
Sydney Water Corporation v Turano [2009] HCA 42; (2009) 239 CLR 51
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422
Williams v Commonwealth [2012] HCA 23; (2012) 248 CLR 156
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40Texts Cited: RTA Road Design Guide (March 1988)
Professor Aronson, Government Liability in Negligence (2008) 32 Melbourne University Law Review 44Category: Principal judgment Parties: Mitchell Grant (Plaintiff)
Roads and Traffic Authority of NSW (Defendant)Representation: Counsel:
Bartley SC (Plaintiff)
Frank Tuscano (Plaintiff)
R Cavanagh SC (Defendant)
Jak Callaway (Defendant)
Solicitors:
Robert Leitch Leitch Hasson & Dent (Plaintiff)
Henry Davis York (Defendant)
File Number(s): 2011/00099430 Publication restriction: None
Judgment
HIS HONOUR: Mitchell Grant, the plaintiff, while riding a motor cycle between about 12:15 am and 12:30 am on New Year's Day 2009, collided with a median strip and/or pedestrian barrier on Longueville Road, near the intersection with Epping Road and Parklands Avenue. The barrier and median strip at its base were designed for and built by or for the defendant, the Roads and Traffic Authority of NSW (RTA), which is also the authority governing the stretch of road at which the collision occurred and therefore responsible for its maintenance and, relevantly, akin to its occupier.
The plaintiff lost his left leg in the accident and suffered other serious injuries. He alleges that the placement of the median strip of itself and/or without any, or an appropriate, warning sign was negligent, being a breach of the defendant's duty of care to him (and other road users), and the defendant's breach of duty was the cause (or a substantial and operative cause) of the injuries to the plaintiff. He claims damages. These reasons for judgment deal with that claim.
Facts
There are only two substantial aspects of controversy in the primary facts. Those controversies relate to the speed at which the plaintiff was travelling at or just prior to the accident and the manner that the accident occurred, being the precise mechanism by which the plaintiff was injured and how the motorbike first collided with the median strip or fence.
The plaintiff had no memory of the accident. The lack of memory is neither surprising nor controversial. The significant extent of the injuries has resulted in the events being blocked from the plaintiff's memory.
As is common knowledge, Sydney has a public display of fireworks to celebrate the New Year. The evidence discloses that the plaintiff, together with his friend, Mr Faulkner, travelled to the Epping Road overpass in order to watch the fireworks. At the conclusion of the fireworks, namely just after midnight, Mr Faulkner and the plaintiff walked back to their motorbikes, which were facing the city with the ignition off. They had a very brief conversation in which they decided to go to a bar in the city and travelled, each on a separate motorbike, towards the city.
It is appropriate to set out some uncontroversial facts. The plaintiff was at or immediately before impact riding a Yamaha R6 motorcycle, which has a four-cylinder engine with a capacity of 600 cc.
The weather was fine. The road was dry. The road also is a major thoroughfare. It was night, but no issue in the proceedings relates to the level of lighting, which is in evidence. Epping Road runs in an east-west direction approaching the point of impact. The thoroughfare continues in a general east-west direction through the intersection whereupon it becomes Longueville Road. The remainder of Longueville Road runs in a generally southerly direction at the relevant intersection. Parklands Avenue is the road at that intersection that runs in a northerly direction.
Epping Road, at the intersection, is four lanes wide on the northern side of the road (the side being utilised by the plaintiff), one of which is a right-hand turn lane. On the eastern side of the intersection (again on the northern side of the road), Longueville Road has one bus lane (with access to a bus lay-by) and two lanes for ordinary traffic. A plan of the intersection is marked as both Exhibit E and Exhibit 7, each marked in the proceedings by different witnesses. I include Exhibit 7 (or a copy thereof) hereunder.
Care must be taken in dealing with the above plan, other than for a general impression. Exhibits E and 7 were marked by different witnesses and were themselves a copy of an original plan that is not in evidence. The scales are, therefore, not accurate for measurement purposes, or at all.
The east-west dimensions of the relevant intersection are approximately 31.5 m across, measured from the northern lane marking of the right-hand turn lane adjacent to the end of the western median strip to the western tip of the median strip on Longueville Road.
Further comment needs to be made about the intersection. Traffic travelling west on Longueville Road have a right-hand turn lane in order to turn north into Parklands Avenue. There are bus lanes on both sides of the road on each side of the intersection (not only as described in [8] above). That part of Longueville Road that runs north-south at or near the intersection has one lane for travelling north across the intersection, two lanes for turning right (towards the east) and one for travelling left.
Another matter of significance is the incline in Epping Road approaching the Longueville Road intersection. The plaintiff travelled up a steep incline towards the intersection on his journey towards the city. Because of the grade of the incline, a person crouched on a motorcycle (as was the plaintiff) would not have seen the eastern median strip until at, or immediately before, the intersection. Given the time of night, the lighting and colour of the fence above the median strip, together with the aforementioned incline, such a rider would also not have seen the fence until at or just before the intersection.
Given the distance travelled across the intersection, the time taken to travel from the east end of Epping Road to the median strip would be approximately 1.92 seconds, if the rider were travelling at 60 km/h; 1.28 seconds, if the rider were travelling at 90 km/h; and 0.96 seconds, if the rider were travelling at 120 km/h.
On the journey to the city, Mr Faulkner rode some distance ahead of the plaintiff. Mr Faulkner testifies that he was travelling no more than 60 km/h (or perhaps speeding up a little to 70 km/h, where legally permissible) during the journey. Mr Faulkner was travelling at a speed that was equal to or greater than the plaintiff. If, as was stated in evidence, Mr Faulkner were travelling at no greater speed than 60 or 70 km/h, then, necessarily, the plaintiff would also have been travelling at no greater speed than 60 or 70 km/h.
Tendered in evidence is a video recording, taken from a camera mounted on a public bus. The video shows Mr Faulkner and the plaintiff overtaking the bus and travelling into the distance ahead of the bus. The speed of the bus is not disclosed on the video and there is no evidence accurately testifying to its speed. As a consequence, an accurate estimate of the speed of the motorbikes at the time they overtake the bus would be, at least, difficult, if the only basis were the observation in the video. The defendant proposes other bases.
One of the other bases is an opinion expressed, in evidence, by an expert called on behalf of the defendant, as to the speed of the motorbikes, calculated by reference to an observation of a change in traffic lights, said to have occurred some distance away and observed on the said video. The arithmetic calculation of the speed is within the expertise of the witness. The observation on the video is not obviously a matter within that expertise. The observation is a finding that must be independently derived by the Court from the video itself.
I will deal with the conclusions and analysis of the foregoing later in these reasons. As earlier stated, the accident occurred at or in the vicinity of the intersection of Epping Road and Longueville Road on or just after 12:17 am. The plaintiff (and his friend Mr Faulkner) watched the fireworks at the overpass at Lane Cove Road and Longueville Road. The fireworks concluded at 12:12 am on 1 January 2009.
It is approximately 5.3 km (or slightly more) between the lookout and the location at which the accident occurred. On one case, possibly the best case for the plaintiff arising from the foregoing, the distance of 5.3 km was travelled in 5 min, meaning that the plaintiff's speed averaged 63.6 km/h.
The difficulty with the foregoing simple arithmetic analysis is that it pays no regard to two significant events. First, after the fireworks, there was a short conversation between Mr Faulkner and the plaintiff, during which they agreed to travel to the city. Second, during the trip between the overpass and the scene of the accident, Mr Faulkner and the plaintiff stopped at one set of traffic lights for an undisclosed period.
The defendant submits a calculation based upon each of the conversation and the delay at the aforementioned traffic lights taking 30 seconds. In those circumstances, the distance of 5.3 km took 4 min, resulting in an average speed of 79.5 km/h.
As earlier stated, the defendant also submits a calculation based upon an observation of lights made by one of its experts from the video recording obtained from the bus. The difficulties with the observation by the witness of the change in the colour of the traffic lights (from green to red) in the distance, as recorded on the bus camera, is: first, the difficulty with the observation of such a small light at distance; secondly, the bus itself is moving toward the light; thirdly, as a consequence of the immediately preceding factor, one cannot be satisfied that the red light observed by the witness had not been shining all of the time and became noticeable as the bus travelled closer to the intersection; and, fourthly, as will be clear later in this judgment, the relevant intersection has a right-hand turn lane governed by an arrow light. If the light were green for traffic moving east through the intersection, there may still be a red arrow (for most of that period) for traffic turning right in order to travel in a southerly direction.
A further observation was made by the same witness which, it was said, was an observation of car lights moving in a northerly direction (or from the road at the left of the intersection either across the intersection or turning right to travel, after the turn, in an easterly direction). There are equally difficult problems with accepting this observation.
I reiterate that the observation on the recording is not a matter within the expertise of the witness (or any other witness called). It is a matter for the Court.
There is what seems to be a front car headlight (white) moving across the intersection as pointed out by the witness. Given the findings I make as to the mechanism of the accident, it is more probable that the white light observed was the motorbike the plaintiff was riding. Ultimately, it makes little difference to the estimate of speed.
Estimates were made of the minimum speed travelled between the Centennial Road and Longueville Road intersections. Those calculations are a minimum average of 72 km/h.
The experts have each calculated a speed for the motorbike. Each based the estimate on the slide of the motorbike along the road after the accident. Their calculations differ markedly.
The average speed of the bus from which the video recording was taken can be calculated with some precision between the Centennial Road intersection and the Longueville Road intersection. This calculation is based on the distance between the two intersections, measured independently, and the time taken to travel the distance, taken from the video recording itself. The result is an average, with all the difficulties associated with averages, for only part of the journey. It cannot be assumed from the foregoing calculation that the speed of the bus at any particular point was the average. The average speed of the bus was 57km/h.
Next, the RTA urged the Court to consider estimates of speed by some witnesses (and not others). While submitting that all estimates of speed by onlookers are unreliable, the plaintiff urged consideration of different witness estimates.
As earlier stated, Mr Faulkner had a clear recollection of travelling at or below the speed limit. As a consequence, if that recollection were accepted, the plaintiff was travelling at or below the speed limit. The "expert" calculations have been discussed.
The parties adduced eyewitness evidence that attempts to estimate the speed being travelled by the plaintiff across the intersection. Janelle and Craig Boyle were in a motor vehicle stopped at the southern traffic lights at the intersection. Each saw the motorbikes travel across the intersection. The motor vehicle in which they were placed was behind another car in the middle traffic lane that allows continuation north into Parklands Avenue.
When the first motorbike, being Mr Faulkner's motorbike, travelled through the intersection, Craig Boyle remarked to his wife: "Geez, he's going fast". He estimated the speed of the motorbike at 100 km/h. He estimated that the plaintiff was travelling "at a similar speed". The effect of the incline, to which reference has been made, is that the motorbikes could not have been observed from that position until the motorbikes were very close to or at the intersection. For some part of the intersection, the observations made by each of Craig and Janelle Boyle was through the car in front of them. As earlier stated, the observation would have been for less than two seconds. If their estimate of 100 km/h were correct, the first motorbike would have travelled across the intersection in less than 1.2 seconds. In other words, the estimate of speed is only as reliable as the witnesses' ability to differentiate between the lapse of 1 second, 1.3 seconds, or 1.9 seconds.
The other aspect of this that qualifies the estimate is that Mrs Boyle testified that she saw the second motorbike go through the intersection, while the light was red for the Boyles' car. The light turned green "after [the motorbike] passed through the intersection". The Boyles moved forward behind the car in front of them and very quickly thereafter there was "a loud metallic noise", being the motorbike hitting the fence.
The motorbike first hit the fence 29 m from the western nose of the eastern median strip (i.e. 29 m from the eastern end of the intersection). At 100 km/h, 29 m would be travelled in 1.044 seconds; insufficient time for the lights to change and the drivers of the only two cars to commence moving. Even the car in front of the Boyles' car could not have commenced moving in that timeframe. Yet it was after their car moved forward from the stationary position that Mrs Boyle says the impact with the fence occurred.
Evidence of the observations of other witnesses was adduced. Ms Price was at a bus stop in Longueville Road on its southern side, across the road from the point of impact on the fence (although not directly). She turned her head from right to left and first saw the plaintiff on the motorbike at the point marked by her on Exhibit D (Transcript, 102).
Ms Price's recollection was that the motorcycle was lifting into the air when she first saw it (Transcript, 104). She did not see or hear the motorbike hit anything. Her impression was that the plaintiff was not speeding, but conceded that she did not really know (Transcript, 105).
There is little other direct evidence. To state the obvious, these are civil proceedings, in which the burden of proving negligence of the defendant rests on the plaintiff. The burden of proving contributory negligence rests on the defendant. The onus is the balance of probability, not the criminal onus.
I give little weight to estimates of speed by lay witnesses who were stationary at the time the speed of the motorbikes was observed. First, lay witnesses would have no or little capacity to assess the speed of a moving vehicle, unless they were able to assess the time taken to traverse a known distance.
Secondly, lay witnesses usually assess speed by factors, often sub-consciously, with which they have no experience: the sound of the motorbike; the riding position of the rider; and similar extraneous factors. This was a sports bike. It sounded loud; it was intended to sound that way.
The shape of the motorbike (see Exhibit 12) also required the rider to sit high on the bike, with knees significantly bent. The heels of the feet were higher than the toes. The handlebars were almost at the same level as the seat. The shape of the motorbike required a rider, even a relatively tall one like the plaintiff, to sit leaning forward, as if crouched. Each of the foregoing factors (including noise) would give an impression to an inexpert observer that the rider was travelling faster than might otherwise be thought.
Apart from the foregoing, I found the lay witnesses unconvincing and unreliable on the issue of speed. The experts are in a slightly different category.
Mr Schnerring, the relevant expert qualified by the plaintiff, considered the speed to be between 55 km/h and 88 km/h. Mr McDonald, the relevant expert qualified by the defendant, estimated the speed at between 89 km/h and 115 km/h. Mr Beck, an expert in biomechanics, discounts the possibility of the higher speeds estimated by Mr McDonald, because of the limited damage to the plaintiff's right leg, which, in turn, depends upon the ultimately-decided mechanics of the accident and may not withstand scrutiny.
As earlier stated, Mr McDonald's estimate of speed is calculated from the distance of the first blood from the median strip fence and the distance the ultimate resting location of the motorbike was from that blood (see paragraphs 5.24 to 5.32 of the Report of 25 October 2012). The same exercise by Mr Schnerring result in an estimate of a range of 55 km/h to 88 km/h, as previously stated (see page 23 of the Report of 18 December 2009).
Mr Beck's discount to the likelihood of the range estimated by Mr McDonald rests upon the absence of sufficiently significant injuries to the plaintiff's right leg. It seems that Mr Beck assumes that the motorbike crashed into the fence first (a view consistent with that suggested by Mr McDonald) and, if so, injury would have been sustained to the right leg that was more severe than that suffered. On the other hand, if the motorbike were to have crashed into the fence at a height (and an angle) the motorbike would have swung out at the back (which movement is consistent with the opinion of each other expert) thereby avoiding significant contact between the right leg and the fence.
I turn then to the estimate of speed. I assess that the bus was travelling at approximately 60 km/h and assess that the motorbikes passed the bus travelling at or about 80 km/h. Further I conclude that such speed was the probable speed of the motorbikes at the intersection. Such a speed would have the plaintiff across the intersection in approximately 1.5 seconds, and travel the subsequent 29 m to the point of impact with the fence (assuming constant speed) in about 1.3 seconds. The latter period is probably sufficient (although only just) for the traffic lights to have changed and the Boyles' car to have moved off. Realistically, for the latter to have occurred, the period should be no less than 1.5 seconds (assuming, contrary to the evidence, that the plaintiff's motorbike travelled through the intersection when the traffic lights were amber, but not red). The foregoing calculation based upon the motorbike crossing the intersection in no less than 1.5 seconds would result in a speed of 70 km/h.
Mr and Mrs Boyles' evidence is reliable as to the impact occurring after they commenced moving (and the lights had changed). Their evidence or opinion as to the speed of the motorbike is, for reasons that have been given and are otherwise obvious, not reliable. The estimate of speed of 80 km/h is also generally consistent with the other evidence.
The alternative is that there is no reliable estimate of speed, except that of Mr Faulkner. I do not accept Mr Faulkner's evidence of speed. And I do not accept any other, even on the balance of probability. The result of that alternative would be that to the extent that speed was a matter to be proved by the plaintiff, it would not have been. On the other hand, to the extent that excessive speed is to be proved by the defendant, the defendant has failed to do so.
Rather, I stand by my estimate of approximately 80 km/h as the most likely scenario, and that estimate (plus or minus 5 km/h) is more probable than not. It is an estimate that, generally, reconciles the other evidence available.
I turned then to the mechanism of the accident, which in some respects (see, for example, the analysis of Mr Beck's evidence above), I have also taken into account in the calculation of speed.
There are some aspects of the accident that are agreed between the experts (and parties) and another that is controversial. The controversial matter is whether the motorbike hit the median strip, at or near the nose, before the impact with the fence.
The motorbike, it is agreed, impacted the fence 29 m from the nose of the median strip. The impact with the fence was not, at that point, at the level of the median strip, but 150 mm vertically above the concrete or 250 mm above the road level. There is a mark or "gouge", which, according to Mr McDonald, is "leading away from where the motorcycle has struck the fence" (Transcript, 223, line 18). Mr Schnerring describes that mark as having been made "after impact" (Transcript, 223, line 22). Mr Schnerring's comment is consistent with Mr McDonald's evidence that the mark is "leading away" from the point of impact with the fence.
Mr McDonald and Mr Schnerring agree that the front wheel of the plaintiff's motorbike wedged in the fence, forcing the motorcycle rear to rotate clockwise. Each of the aforementioned experts also agree that the damage to the motorbike evidences two distinct forces operating on the motorbike: one vertical and one lateral. Each force is at 90° to the other.
Mr Schnerring expresses the opinion that the fact that there are two forces in that angular relationship indicates two separate impacts to the front wheel. Further, if, as is the opinion of Mr McDonald, the front wheel were to have impacted the base of the stanchion supporting the fence, there would have been substantial damage to the front fork and disc rotor of the motorbike. There was no such damage. As a consequence, Mr Schnerring opines two separate impacts: one at the nose of the median strip; the other at the fence.
Mr McDonald gives no adequate or acceptable answer to this theory. The damage (other than that agreed to be caused by the fence) was caused by an impact upwards on the tyre and had a consequence of two gouge marks. This occurrence remains unexplained by Mr McDonald's theory, other than the highly improbable proposition that the motorbike hit the median strip almost at a right angle thereby punching out a section of the rim and simultaneously (or so quickly thereafter as to be imperceptible) wedging in the fence while the motorbike was leaning sufficiently to avoid damage to the right side of the motorbike (the disc rotor and the rider's right leg).
For this to have occurred, the motorbike would have to have been almost at right angles to the fence, travelling towards the fence at speed. The evidence of the movement of the motorbike is not consistent with such a theory.
On the other hand, the theory proposed by Mr Schnerring is consistent with the observations of the motorbike in motion, and explains the two distinct kinds of damage in a rational and logical way. Against the theory, the RTA submits that the theory is inconsistent with the evidence of Mr Boyle (and to a lesser degree Mrs Boyle) and the absence of physical damage to the median nose or skid marks on the road (and complementary damage to the tyres).
From their vantage point, neither Mr nor Mrs Boyle could have seen the northern edge of the nose of the median strip. It is unlikely that, without some effort, from the second car in which they were seated either could see the median strip at all. Neither Mr nor Mrs Boyle saw the motorbike hit the fence. Mr Boyle's knowledge of the accident occurred because he heard the impact of the motorbike with the fence (Transcript, 176).
Mr Boyle's "knowledge" that there was no impact with the median strip relies on the delay between the motorbike crossing the intersection and the noise of the impact with the fence (Transcript, 176, lines 5-21).
Notwithstanding that these two motorbikes were sports bikes, intended to sound noisy, and, in the case of the motorbike the plaintiff was riding, with a muffler modification to make it even noisier, neither Mr nor Mrs Boyle heard the motorbikes before they entered the intersection. The Boyles' car windows were closed. The impact with the fence would have been extremely noisy. An impact with the nose of the median strip would have been, by way of contrast, relatively quiet.
Each of the experts took account of witness statements, not all of which were otherwise adduced in evidence before the Court. Ms Price was before the Court. Her evidence (Exhibit D) was that, prior to the impact with the fence, the motorbike was "leaving the roadway and lifting into the air". She confirmed that observation in cross-examination (Transcript, 104). In her statement to Police, Ms Price also referred to the motorbike wobbling prior to impact with the fence.
The observation that the front of the motorbike was in the air prior to its impact with the fence, if accepted, has consequences: it would explain the impact with the fence at 250 mm above the road; it explains the "wobbling"; and it is consistent with an impact with the northern edge of the nose of the median strip (see Exhibit 10 as marked in red).
The investigating and/or attending police officers did not notice damage to the nose of the median strip. They did not look for, or notice, markings by tyres (Transcript, 152, line 29 [answer of the witness wrongly attributed to counsel] and at 153, lines 42-44). There are tyre marks on the nose of the median strip and its northern edge, which marks, although fading out, run along the median strip. There is no evidence that any of those marks were caused by the plaintiff's motorbike tyres.
I conclude, from all of the evidence that I accept, that the mechanism of the accident was: the plaintiff's motorbike travelled west, up the hill towards the intersection at Longueville Road; the plaintiff was travelling on the correct side of the road in the lane closest to the middle of the road, but did not divert into the right-hand turn lane; as the plaintiff came towards the crest of the hill (that is, at or just before the traffic lights), he noticed the median strip and fence, and adjusted, or attempted to adjust, the direction of the motorbike to take account of the "sharper" curvature of the road, in a northerly direction, to the east of the intersection; the plaintiff's motorbike clipped the northern edge of the median nose (see Exhibit 10) sufficiently hard to cause the front of the motorbike to lift off the road; the motorbike wobbled down the road (but not greatly); the motorbike impacted the fence, wedging between uprights, at a level 250 mm off the road; the rear of the motorbike rotated clockwise in a circular motion; the motorbike, as its rear moved clockwise, dislodged from the fence, fell onto the plaintiff's left leg, and severed it. Part of the foregoing also arises from an analysis of the road itself, which is better described when dealing with the design of the intersection/median strip.
There are other possibilities. However, the foregoing is most probably what occurred and best fits all of the evidence, without being inconsistent with evidence that I accept. I also have regard to my view, from the expert evidence given and the attitude of the two witnesses, that Mr McDonald was less independent than Mr Schnerring and more obviously an advocate for a particular position. Further, Mr Schnerring is an extremely experienced motorcycle rider of a motorbike the same as, or similar to, the motorbike the plaintiff was riding.
As elsewhere stated, there were other potential lay witnesses not called. Each had given a statement to the police and each statement had been provided to the relevant experts.
Each party submits that I should draw a Jones v Dunkel inference against the other party in relation to such witnesses: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. The witnesses in this category were not associated with either side. There is no "property" in a witness.
I do not draw any adverse inference against either side on the basis of the failure to call additional lay witnesses. If I were to draw a Jones v Dunkel inference, it would be that these witnesses do not assist either case, bearing in mind that it is the plaintiff that must prove negligence and the defendant that must show contributory negligence.
Further, the opinions expressed by the experts are not significantly affected by the absence of some of the statements on which they relied. Generally, although not in every particular, the evidence that was adduced encompasses the range of observations upon which the experts relied.
The Design of the Intersection/Median Strip
On these issues, there is no controversy of primary fact and the experts have reached substantial agreement on the consequences of those primary facts.
It is appropriate to recite some extracts of the Joint Report compiled in accordance with the usual practice. Evidence of the experts was adduced in conclave.
"Q4: Were there features of the intersection and of the lighting of the intersection that created a relevantly foreseeable risk of injury to users of the road?
Mr Schnerring and Mr McDonald agreed that there are features of the intersection and associated lighting that created a reasonably foreseeable risk, although disagree on the level and significance of that risk....
Q5: If the answer to question 4 is yes, what were they and why would [were] the risks foreseeable to the defendant?
Mr Schnerring and Mr McDonald agreed that features with a level of foreseeable risk are:
- The median fence east of the intersection was not delineated with reflectors, high-intensity lighting, high contrast markings or signposting,
- There was a combination of horizontal and vertical curvature which is not desirable.
Mr McDonald considered that this is not in contravention of any applicable standards or guidelines.
Mr Schnerring disagrees. The plans show that the horizontal left curve through the intersection commences after the crest curve. This is known to be poor road design practice. The RTA Road Design Guide, Section 2, 4, [sic] page 2-40 (March 1988) notes:
'When combined, the start of the horizontal curve should precede the start of the vertical curve.'
- Lighting across the intersection was uneven. Illumination was brighter on the western side of the intersection and noticeably darker on the eastern side.
Mr Schnerring considered that the following features also posed a level of foreseeable risk:
- The median nose east of the intersection was not marked or signed to clearly indicate its presence and precise position in the roadway.
- The median nose combined with the horizontal and vertical curve at the intersection. The RTA Road Design Guide, Section 2.4, [sic] page 2-40 (March 1988) notes:
'Pavement narrowing, transitions between divided and undivided roads, traffic islands or median noses should not be combined with horizontal or vertical curves unless adequate visibility is available to ensure driver awareness.'
Mr Schnerring considers evidence of previous impacts with the median fence indicates a problem with visibility. Mr McDonald does not believe there is any evidence of more than one previous impact with the median fence, nor any indication of the causal factors leading to that collision based on the fence damage alone.
Q6: If the answer to the question 4 is yes, were those risks preventable or capable of being minimised?
Mr Schnerring and Mr McDonald agreed that:
- The median fence east of the intersection could have been delineated with reflectors, high-intensity lighting, high contrast markings or signposting.
Mr Schnerring considered that high-intensity lighting and signposting of the fence was not necessary.
- the subject median could be delineated with a keep left sign, painted with reflective paint and/or marked with reflectors.
Mr McDonald notes that a solid continuous line was provided along the edge of the median and supplemented by raised yellow reflective markers which provided delineation and guidance to road users and are therefore likely achieve the same as providing a keep left sign.
Mr Schnerring considers that the reflective raised pavement markers (rrpms) and the painted 'edge' line were ineffective on approach given that the median nose commenced after the slight crest in the intersection. On approach with vehicle headlights would not be aimed at the rrpms and the light reflected would be weak. The cues provided by the rrpms and 'edge' line are considered inadequate on their own to provide clear guidance as to the position of the median to road users on approach.
Mr Schnerring considered that:
- the combination of horizontal and vertical curves may have been avoided. Avoidability requires information of other project constraints, and is beyond the scope of this report.
- Consistent, even illumination of the intersection could have been provided. Its effect would depend on the level of illumination of the median nose and fence.
- The poor combination of horizontal and vertical geometry and the median nose could have been avoided. Avoidability requires information of other project constraints, and is beyond the scope of this report. If not avoidable, the median nose on the far side of the intersection needs to be clearly highlighted.
...
Q8: Did the relevant Australian Standards require the defendant to attend to any matters identified in paragraph 17.a-f of the Statement of Claim?
In relation to the specific allegations of negligence, Mr Schnerring and Mr McDonald were agreed as follows:
Failure to install a 'Keep Left' sign on the concrete median nose or in a relevant location with due regard to the hazard the median nose and pedestrian barrier presented -- in breach of Australian Standard AS1742.2 (1994) - Manual on U Traffic Control Devices, part 2.
...
Mr Schnerring and Mr McDonald agreed that the subject median nose should have been signed with a 'keep left' sign.
Mr Schnerring considers that it would be good traffic and road safety engineering practice to provide a 'Keep Left' sign, given that the median on the approach side was offset one lane to the right of the median on the opposite side of the intersection. Combined with the horizontal and vertical curvature through the intersection, the position of the start of the median on the far side of the intersection would be difficult to determine."
Each of the relevant experts also agreed that the intersection was inconsistently and unevenly lit. This last aspect is, in the present case and in my view, irrelevant to any aspect of liability.
It is for the Court, not the witnesses, to determine whether regulations or guidelines require the installation of a 'Keep Left' sign. The determination of whether there is a breach of the duty of care does not depend on the lawfulness of the conduct. Each of the experts, relevant to this exercise, agreed that the median nose should have been signed with a 'Keep Left' sign (see above). A motorbike rider, particularly one seated in a crouched position (as was the plaintiff and as the motorbike required) would not be able to see the eastern median strip as the rider came up the rise in Epping Road toward the Longueville Road intersection. Nor could a driver of a very low car.
While such a rider might expect a median strip dividing Longueville Road on the continuation of Epping Road, there are two peculiarities of this median strip that render it problematic. First, the median strip has been placed so as to allow for a right-hand turn lane into Parklands Avenue. If a person were to continue straight from Epping Road, at the southern extremity of the continuing lanes, the person would hit the median strip.
It is appropriate to recite an extract of the Report of Mr Schnerring of 18 December 2009:
"7.2 Road Alignment
The horizontal alignment consisted of a slight right curve on the approach to the intersection followed by a left curve through the intersection. The effect of the lane additions was that the general through lane shifted to the right at about the point where the road would otherwise have transitioned into the left curve. That is, through traffic, rather than transition into the left curve, would need to shift right and then left.
...
The effect of the combination of the horizontal and vertical alignment was that the intersection was located on a left curve with a crest ahead of the intersection for eastbound traffic. The location of the crest ahead of the intersection meant that eastbound had a delayed view of the pavement through the intersection. Similarly, eastbound traffic would have had a delayed view of the median nose on the eastern side of the intersection.
Because of the intersection, no longitudinal delineation was provided to guide and control eastbound traffic passing through the intersection. In contrast, had the intersection not been present, line marking and delineation would have been maintained and the road users guided and controlled along their travel path.
However, with the intersection present, road users would need to place their vehicles to the left of structures located in the centre of the road on the far side (eastern side) of the intersection.
...
10.1 The Design of the Road (Question 1)
The horizontal and vertical alignment of the road was discussed in sub-section 7.2. The combination of the horizontal alignment and vertical alignment was such that the intersection was located on a left curve for eastbound traffic and on a crest vertical curve. The crest was located west of the intersection.
Traffic in the right through lane was shifted to the right to provide space for an additional through lane. The crest on the roadway reduced the site distance to the pavement in the intersection and to the median located on the eastern side of the intersection.
Delineation was not continued through the intersection as is usual practice. This meant that positive on-road guidance was not provided for a distance of about 30 m at a location where the main through lane shifted to the right before leading into a left curve through the intersection, with a crest before the intersection.
The effect of this would be for eastbound traffic in the main through lane to run wide and not track the left curve through the intersection correctly or potentially set up or aim at the right turn lane for westbound traffic.
Standing on the overhead footbridge near the intersection, I observed eastbound traffic in the right through lane tend to run wide and then quickly veer slightly left passing close to the nose of the median.
...
The vertical alignment of the road reduced the site distance to the median. The low contrast at night between the median nose and the roadway reduced its conspicuity."
The comment as to the observation of eastbound traffic from the overhead footbridge was confirmed at the view, conducted by the Court, which also confirmed the lack of visibility of the median nose from Epping Road until one reached the intersection.
Earlier in these reasons, I recited the excerpt from the Experts' Joint Report to Question 5, which, in turn, recites the Guide, as to the placement of median noses in conjunction with vertical or horizontal curves, only if adequate visibility is available. In this intersection, the median nose is placed in combination with both a vertical and horizontal curve, with extremely limited visibility.
The difficulty described above is exacerbated by the placement of the median nose at a point that requires vehicles "to shift right and then left". Further, the curvature of Longueville Road to the left is sharper or more acute than the curvature of Epping Road prior to the intersection. Some of the foregoing may best be understood by examining Figures 5.2 and 6.3 of the Report of Mr McDonald of 25 October 2012.
Figure 5.2 above shows what would have happened to the plaintiff were he to have continued on the same curvature through the intersection as he was utilising before the intersection. On that figure, he would have hit the nose of the median strip, traversed it and continued on the wrong side of the road thereafter. It should be noted that the curvature is depicted by a broken line (without the width of a vehicle) from the middle of the outside continuing lane.
Figure 6.3 extrapolates (backwards) the line from the point of impact with the fence to the nose of the median strip, to show, if a straight line were to be followed, from where the motorbike would have been travelling or the line of the motorbike if it hit the median strip and continued in a straight line to the impact point with the fence. The combination of the two figures, as sought to be explained earlier, is that a vehicle (particularly a motorbike and its rider) travelling in the outside continuing lane (even more so if south of the middle of the lane) would not see the nose of the median strip until at the intersection.
To the extent that the lighting was adequate, a rider would then, for the first time, see the fence and notice that the curvature was greater and required adjustment.
Exhibit 7, published above, discloses that the outside lane is 3.0 m (10 foot) wide. A motorbike rider at the southern extremity of the outside continuing lane, if she or he followed the same curvature as in Epping Road, would, without adjustment, arrive at a point in the road approximately 0.5 m to the south of the median strip (that is, on the wrong side of the road in Longueville Road). Such a rider, travelling at 60 km/h, would have 1.9 seconds to react to the altered conditions. If the same rider were travelling at 80 km/h, then she or he would have less than 1.5 seconds. If the rider reacted in approximately 1.0 seconds (the generally accepted reaction time in the evidence) he would have travelled approximately two-thirds of the distance across the intersection if starting from the southern extremity of the lane, that would bring a rider to the extrapolation of the straight line between median nose and fence impact point.
The foregoing does not purport to examine risk ex post facto. Nor does it seek to determine the risk or foreseeability at all, or on the basis of one incident. It is included above mainly to indicate the probable mechanism by which impact occurred and, to a lesser extent, so that the consequences or potential consequences of the conduct of the RTA can be understood.
The Guide, extracted previously, recommends that median noses should not be combined with horizontal or vertical curves. The reason is the absence of sufficient visibility. The median nose in question here, as earlier stated, was combined with both a horizontal curve and a vertical curve.
Moreover, it was placed in a position that if a driver were travelling legally at the centre extreme of continuing traffic, the driver's side tyres, if a car or truck, or the front tyres of a motorbike, would strike the median nose. Further, even if the driver/rider continued to travel in the curved manner previously required, the tyres of the vehicle or motorbike would strike the median nose, because of the location of the median strip and the significant alterations in the curvature of the road.
If, as I assume, it was necessary to have the intersection there, and to "carve out" right-hand turn lanes, there was a significant and substantial risk to riders/drivers arising from the placement of the median strip.
The foregoing risk would be ameliorated, and possibly eliminated, by two simple, inexpensive steps. The first and major one would be the placement of a sign (with reflecting capacity) that was visible to a rider/driver travelling up the hill towards the intersection. This would increase the reaction time available.
The second is the provision of guidelines, painted on the road, to show the direction (and curvature) to be followed by a rider/driver crossing the intersection. The latter aspect would not, of itself, eliminate the risk and, again of itself, not substantially reduce it, because of the lack of reaction time otherwise available. Alternatively, the curvature of Epping Road, travelling east to the intersection, could have been altered and/or the southern extremity of continuing traffic moved to the left, so as to guide traffic in a direction that avoids the median strip.
Nevertheless, a sign (even without painted lane guides or, preferably, together with them), if installed at a sufficiently high level (and with a reflecting or otherwise lit surface) so as to be seen as a rider/driver was travelling eastward up the hill in Epping Road towards Longueville Road, would alert the rider/driver to the necessity to adjust direction at a time when the adjustment could be made other than urgently. Such a sign would eliminate the risk, at least in relation to riders/drivers who were adequately attentive to such matters.
One other matter should be noted. The construction of the median strip was planned and implemented by the RTA. It is not suggested, nor could it be, that the erection of a sign would have imposed any, or any significant, additional cost in construction. Nor is it suggested that the RTA considered such an issue and decided, on any rational or other basis, against the erection of the sign.
Further, it is not suggested that the failure to consider the erection of such a sign, at the time that the median strip and fence were erected, was conduct or an omission in which any reasonable road authority would have engaged.
Duty Of Care
The RTA appropriately concedes that a road authority owes a duty of care to road users. Its duty is to exercise reasonable care for users of the road exercising reasonable care for their own safety: Road Transport Authority v Dederer ("Dederer") [2007] HCA 42; (2007) 234 CLR 330.
In Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, the High Court discussed how a breach of duty must be assessed. At [13], at CLR 47, Mason J (with whom Stephen, Murphy and Aickin JJ agreed) said:
"[13] A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v. Stone [1951] UKHL 2; (1951) AC 850, may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being "foreseeable" we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.
[14] In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.
[15] The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors."
The foregoing passage was applied by Gummow J in Dederer at [18] as the basis or method that must be applied to the assessment of breach of duty. In Dederer, Gummow J went on to reiterate the principles expressed by a Gaudron, McHugh and Gummow JJ in Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512. In Dederer, Gummow J said:
"[46] A road authority such as the RTA is not obliged to exercise reasonable care in the abstract; still less is it obliged to ensure that a road be safe in all the circumstances. So much was recently reaffirmed in Leichhardt Municipal Council v Montgomery. Such an expression of the duty's scope has an obvious and direct consequence when assessing breach. As Gaudron, McHugh and Gummow JJ stated in Brodie:
"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', a proper starting point may be the proposition that the persons using the road will themselves take ordinary care." (citations omitted)
Their Honours went on to observe that persons exercising reasonable care will be able to avoid injury in some situations, whereas others will present "a foreseeable risk of harm even to persons taking reasonable care for their own safety".
[47] The RTA's duty of care was owed to all users of the bridge, whether or not they took ordinary care for their own safety; the RTA did not cease to owe Mr Dederer a duty of care merely because of his own voluntary and obviously dangerous conduct in diving from the bridge. However, the extent of the obligation owed by the RTA was that of a roads authority exercising reasonable care to see that the road is safe "for users exercising reasonable care for their own safety". The essential point is that the RTA did not owe a more stringent obligation towards careless road users as compared with careful ones. In each case, the same obligation of reasonable care was owed, and the extent of that obligation was to be measured against a duty whose scope took into account the exercise of reasonable care by road users themselves."
It is the foregoing statements, and other judgments to like effect, that inform the proper application of s 5B of the Civil Liability Act 2002 (the Act), which is in the following terms:
"s 5B General Principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a) the probability that the harm would occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm.
The risk to road users by the placement of the median strip is foreseeable (and was foreseen). It is the very risk addressed by the Guide, recited above. A road user, travelling at 60 km/h, would have less than two seconds to adjust to the placement of the median strip by taking evasive action at the same time as adjusting the steering to take account of the sharper curvature of the road.
Further, riders travelling faster than 60 km/h, a circumstance, which must have been foreseen, may still be exercising reasonable care for their own safety. The RTA concedes in these proceedings that a speed above 60 km/h may be safe, but questions safety where the speed utilised are beyond 25-30% above 60 km/h.
The point of the foregoing is that the placement of the median strip, commencing on the eastern side of the intersection, without a sign indicating its non-alignment with the lanes on the western side, posed a not insignificant risk to road users exercising reasonable care for their own safety.
Further, given the insignificant cost, the terms of the Road Design Guide, the risk created by each of the vertical and horizontal curves, and the likely consequences of the realisation of the risk, a reasonable person in the position of the RTA would have installed such a sign.
I take into account in the foregoing that the erection of such a sign would not interfere with the activity of road users. On the contrary, it would enhance such activity. Nor would it impede the activities of the RTA.
I accept that this intersection and the thoroughfare along Epping Road and continuing, through Longueville Road, is a busy road. Usually, there will be significant traffic. A vehicle stopped at the traffic lights at the west of the intersection would see the median strip. Further, during normal hours, vehicles, if not stopping at the traffic lights, would follow other vehicles through the intersection. Such circumstances would ameliorate the probability of the risk being realised and harm occurring.
Nevertheless, the thoroughfare must be expected, during the night and early hours of the morning, to experience periods of very light or no traffic. In such circumstances there is a significant probability that some harm would occur if the risk were realised.
Such harm, if realised, will not always be as serious as the circumstances here, but there is a likelihood of serious harm resulting.
I make it clear that I am not suggesting (nor acting on any notion) that it is the RTA's function or duty to eliminate all risk. It is its duty to exercise reasonable care, not prevent potentially harmful conduct: Dederer at [18], per Gummow J; Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517 at [5], per Gleeson CJ; Shaw v Thomas [2010] NSWCA 169 at [45]. I refer to the matrix in Shirt extracted above.
I do not conclude that RTA acted negligently in deciding to install a median strip and/or fence; only that, given its location, it was negligent to install the median strip and not to have placed, on or at the nose of the median strip, a sign warning of its location that could be seen by road users travelling up the hill on Epping Road towards the intersection.
Having dealt with the issues of relevance raised by the provisions of s 5B and s 5C of the Act, it is necessary to deal with causation: s 5D of the Act.
As a trial judge, it is neither necessary nor appropriate to analyse the effect, if any, of s 5D of the Act on the previous common law position. It is sufficient, for present purposes, to note, without reciting the provision, that s 5D requires factual causation [s 5D(1)(a) of the Act] and a determination that it is appropriate for the scope of the RTA's liability to extended to harm caused by the breach of duty.
Factual causation is established when the party alleging negligence proves, on the balance of probabilities (see s 5E of the Act), that but for the breach of duty the harm would not have occurred: Strong v Woolworths Ltd("Strong") [2012] HCA 5; (2012) 246 CLR 182; Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420.
It may be appropriate to repeat the classic discussion of proof from inference of Chief Justice Sir Frederick Jordan in Carr v Baker [1936] SR (NSW) 301 at 306-7, in which the Chief Justice (Davidson and Stephen JJ agreeing) said:
"In a Court of justice, the question whether a particular fact has been proved must be determined by considering evidence and seeing whether the existence of the fact is probable in the light of that evidence. In a civil matter, it is necessary, in order that a fact may be regarded as established, that the evidence should be such that it is more probable that it exists than that it does not. The position is the same whether the evidence is direct or circumstantial: Simpson v. L. M. & S. Rly. Co ([1931)] A.C 351 at p. 359). In a criminal matter, it is necessary if the fact is to be proved by the prosecution, that the evidence should be such that not only is it more probable than not that the fact exists, but that there is no reasonable probability that it does not: it must be proved that it is so probable that no reasonable doubt exists that it is the fact: Peacock v. The King (13 C.L.R. 619 at pp/ 630, 651-2). In an ordinary action at law, it is the civil onus only which a plaintiff has to discharge, notwithstanding that the act sought to be proved is one which would support a criminal prosecution: Doe d. Devine v. Wilson (10 Moore P.C. 502); Brown v McGrath ([1920]) S.A.L.R. 97; 8 A.L.J. 207). It has been clearly and emphatically laid down by the House of Lords that in no case can a fact be regarded as established unless its existence is at least a reasonable inference from some matter provided in evidence. It is not sufficient that there should be some ground for conjecturing that the fact exists. There must be evidence affording ground for treating it as existing as a matter of inference and jot of conjecture: Jones v. Great Western Railway Co. (47 T.L.R. 39 at pp.41,45). The existence of a fact may be inferred from other facts when those facts make it reasonably probable that it exists; if they go no further than to show that it is possible that it may exist, then its existence does not go beyond mere conjecture. Conjecture may range from the barely possible to the quite possible. Inferences of probability may range from a faint probability - a mere scintilla of probability such as would not warrant a finding in a civil action: Hiddle v. National Fire & Marine Insurance Co. Of N.Z. (17 N.S.W.L.R. 46 at p49) - to such practical certainty as would justify a conviction in a criminal prosecution. "In discussing whether there is any case evidence to go to the jury, what the Court has to consider is this, whether, assuming the evidence to be true, and adding to the direct proof all such inferences of fact as in the exercise of a reasonable intelligence the jury would be warranted in drawing from it, there is sufficient to support the issue": Jones Case (47 T.L.R. 39 at p.45). It is well established that if there is no piece of evidence which, taken at highest, is more than equally consistent with the existence and with the non-existence of a fact, it cannot be treated as established: Cofield v. Waterloo Case Co. Ltd. (34 C.L.R. 363 at pp. 374-377). This situation may arise in two different ways. First, there may be no piece of evidence which suggests that the existence of the fact is probable or not, it is just as likely that it does not exist as that it does. There is no probability either way; and nothing equals nothing. Wakelin v. L. & S.W. Rl Co. was a case of this type (12 App. Cas. 41 at p.49). There may, however, be a case in which the evidence is such that in some aspects it raises a probability that the fact exists, and in other aspects it raises a probability that it does not. If, in such cases, the two countervailing probabilities are in perfect equipoise, the fact cannot be treated as established."
The plaintiff must prove to the civil standard described that, but for the installation of the median strip without adequate signage, the harm would not have occurred. The fact, if it were a fact, that the collision may not have occurred if the plaintiff were travelling more slowly needs to be considered.
In my view, if the plaintiff were travelling at 60 km/h, then the plaintiff would have had more time (just under half a second more) to adjust to the circumstances. It is possible that he may have avoided hitting the median nose, but the plaintiff has satisfied the Court that it is more probable the impact would have occurred in any event. Moreover, the fact that safer conduct on the part of the plaintiff may have avoided harm from the risk created by the RTA does not negate that but for that latter risk the harm would not have occurred.
Another approach is to apply the analysis in Strong, as expressed at [20] of that judgment, namely, the harm would not have occurred but for the placement of the median strip without adequate signage, even though it also may not have occurred without the circumstances of the plaintiff speeding. On that approach, there is "more than one set of conditions necessary for the occurrence of [this] particular harm", but, if that were so, each set of conditions is "jointly sufficient to account for the occurrence of the harm" and each would "meet that test of factual causation within s 5D(1)(a)" of the Act.
With sufficient notice of the location of the median strip and/or the altered curvature of the road, the plaintiff would not have clipped the median strip and hit the fence.
I conclude that the negligence of the RTA satisfies the factual causation test.
Further, given the nature of the conduct of the RTA, the direct effect of that conduct, the knowledge (evidenced by the Guide provisions) of the risks and the nature of the relationship between the RTA and road users, it is appropriate for the scope of the RTA's liability to extend to this harm. The RTA did not submit otherwise.
Limitation on Liability: s 43A of the Act
General
The RTA relies on the provisions of s 43A of the Act to avoid liability for the conduct and negligence described above.
There are two major issues between the parties on the operation of s 43A of the Act. First, the plaintiff submits the conduct of the RTA is not the exercise of a special statutory power. Secondly, the plaintiff submits that, even if that conduct were the exercise of such a power, the conduct was "in the circumstances so unreasonable that no authority having the... power... could properly consider [it] to be a reasonable exercise of... power".
It is appropriate to recite the relevant provisions of s 43A of the Act:
"s 43A Proceedings against public or other authorities for the exercise of special statutory powers
This section applies to proceedings for civil liability to which this Part applies to the extent that the liability is based on a public or other authority's exercise of, or failure to exercise, a special statutory power conferred on the authority.
(2) A "special statutory power" is a power:
(a) that is conferred by or under a statute, and
(b) that is of a kind that persons generally are not authorised to exercise without specific statutory authority.
(3) For the purposes of any such proceedings, any act or omission involving an exercise of, or failure to exercise, a special statutory power does not give rise to civil liability unless the act or omission was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power."
This provision has been the subject of much litigation. I shall recite some short history in order to identify the mischief at which it was directed.
The provision was promulgated following the judgment of Adams J in Presland v Hunter Area Health Service ("Presland") [2003] NSWSC 754. This was a most unusual set of circumstances, in which the Court held the Health Service liable to a mental patient for damages arising from the Health Service's negligent release of him, thereby allowing him to kill, be found not guilty by reason of insanity, and consequentially to serve detention in a psychiatric hospital. The judgment was overturned on appeal, by which time s 43A of the Act had been promulgated. The provision had retrospective effect.
Not dissimilar circumstances have since been decided otherwise, without regard to s 43A of the Act: Adams v State of NSW [2008] NSWSC 1257. It is not immediately apparent that the result at first instance in Presland would have withstood an appeal even without the legislation and, as a consequence, the situation may not have required the promulgation of s 43A of the Act.
Nevertheless, s 43A of the Act must be interpreted. Unaided by authority and considering only the wording of that section (without regard to other provisions of the Act), a literalist approach may have taken the view that there would be few occasions where the provision had any effect on the determination of liability.
This is one of the potential difficulties with transposing a concept from one area of law to another. Fairly obviously, the wording of the provision draws heavily on notions of Wednesbury unreasonableness: Associated Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. Indeed, the Second Reading Speech expresses that process as the one adopted. When applied in circumstances where the Court has already determined that the impugned conduct (including omission) was unreasonable, the Act requires the Court to determine whether a like authority, performing a similar act, could properly consider the unreasonable act to be reasonable.
Again, unaided by authority, one could envisage such a test applying relatively easily to a decision, act or omission that requires or is the result of a choice of priorities. For example, one can readily imagine a choice between two or more expenditures in which an omission results in a failure to take reasonable steps. There are 10 jobs to perform, the statutory authority repairs nine of them, and a person is injured, foreseeably, by the failure to undertake the 10th job. There is a duty of care; there may even be breach of the duty; the injury is foreseeable; and, but for the failure, the injury would not have occurred.
On the other hand, it is difficult to envisage that an authority, acting reasonably, could properly consider conduct, in which an act is performed unreasonably, to be a reasonable exercise of its power.
Special Statutory Power
I turned then to discuss some of the authorities on the issues. First, it is necessary to examine whether that performed by the RTA was, within the foregoing definition, a "special statutory power".
The use of the term "special" qualifies the term "statutory power". Not every exercise of statutory power is an exercise of "special statutory power". The foregoing extract of s 43A of the Act includes the definition of "special statutory power". When is the power "special"?
It is informative to look at the ordinary meaning of the term "special".
"The word 'special' conditioning 'reasons' or 'circumstances' guards the entrance to the exercise of many different statutory discretions. It is generally futile to search for its meaning in terms of other words. It is in essence instrumental, a direction to the decision-maker at the discretion it constrains is not likely to be enlivened. A Full Court has spoken of it as having content which is '... sufficiently understood not to require judicial gloss': Beadle v Director-General of Social Security (1985) 60 ALR 225 at 228. If helpful to speak of its meaning almost all of it comes from context. The last man may be 'special' in relation to animals generally but '... when you are speaking of poets, he may need to be a Milton': Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576 at 578; 103 ALR 684 at 686 per Burchett J. It is an elastic instruction suitable for application across a range of situations: Jess v Scott (1986) 12 FCR 187; 70 ALR 185. This is just another way of pointing to its instrumental character. That application is not to be confined by precise limits or rules. Circumstances all reasons will not necessarily fall outside the designation of 'special' because they fall within a class which is widely defined or because they are circumstances all reasons which can be foreseen before they arise. The core of the requirement for 'special circumstances' or 'special reasons' is that there be something unusual or different to take the matter the subject of the discretion out of the ordinary course. But that does not require that the case be extremely unusual, uncommon or exceptional. In Beadle the Full Court, having concluded that the term 'special' was sufficiently well understood not to require a judicial gloss said the matter was one for the decision-maker, in that case the Director-General of Social Security." (Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531 at [18], per French J)
In the context of the Bail Act 1978, the Court of Criminal Appeal in R v Michael John Brown [2013] NSWCCA 178 examined the term "special circumstances" that might justify the grant of bail. The Court (Rothman, Fullerton and Beech-Jones JJ) said:
"[22] The use of the term 'special and exceptional circumstances' would require that the circumstances be both special and exceptional. The use of the term 'exceptional circumstances' means that the circumstances need to be exceptional but not necessarily special. 'Special' is defined by the Macquarie Dictionary as 'relating or peculiar to a particular person, thing, instance; having a particular function, purpose, of a distinct or particular character; being a particular one; extraordinary or exceptional'. Thus the distinction between 'special and extraordinary' and 'extraordinary' may be more illusory than substantial."
It is impermissible to utilise definitions or constructions from one context in a totally different context, without independent analysis. Yet, it is also impermissible to construe the term "special statutory power" as if the word "special" had no effect or meaning.
The statutory power governed by s 43A of the Act must be special. In RTA v Refrigerated Roadways Pty Ltd ("Refrigerated Roadways") [2009] NSWCA 263; (2009) 77 NSWLR 360, Campbell JA (with whom McColl JA agreed and with whom Sackville AJA generally agreed) dealt with the application of s 43A of the Act. At [368]-[370], Campbell JA said:
"[368] Further, in my view, the ownership of the bridge is quite sufficient to empower the RTA to erect screens on it. Its ownership of the bridge is not a "power ... conferred by or under a statute". Rather, it is a property right.
[369] A citizen concerned about the lack of fencing on the bridge would not be legally free to take unilateral action to fix the problem himself, by erecting screens without permission from the RTA. However, one reason for this is that erecting the fencing would be a trespass on the RTA's land. Another is that erecting it would require development consent, which could not be applied for without the consent of the land owner (at the time of the alleged negligence, this was provided for by section 77(1) Environmental Planning and Assessment Act 1979; see now Environmental Planning and Assessment Act section 78A(1) and Environmental Planning and Assessment Regulation 2000 clause 49(1)). It is not because the exercise of a statutory power, which the RTA has but ordinary citizens lack, is needed to achieve the fencing of the bridge.
[370] Exercise of a statutory power of some sort would have been required to empower the RTA to deny members of the public their statutory right under section 5 Roads Act to pass along the Glenlee Bridge. (In making that remark I leave aside whatever distinction there might be between a statutory power simpliciter, and a special statutory power). However, it has not been shown that the process of erecting screens on the bridge would have required the bridge to be closed in a way that denied members of the public that statutory right."
It was unnecessary for Campbell JA to discuss at any further length whether the statutory power exercise was "special" within s 43A of the Act.
In Rickard & Ors v Allianz Australia Insurance Ltd & Ors ("Rickard") [2009] NSWSC 1115, Hoeben J (as his Honour then was) examined the basis for the erection of warning signs for the purpose of traffic control. His Honour held that s 43A of the Act applied and, in so doing, adopted the analysis of the RTA (in that case) in a passage, at [112], in the following terms:
"[112] On that issue I accept the analysis of the RTA that a special statutory power was involved. That analysis proceeded as follows:
"The power to erect warning signs is a power that is conferred on the RTA by Road legislation, and that legislation makes clear that persons are not generally authorised to erect such signs unless specifically authorised to do so by that legislation or by the RTA.
...
Traffic Control Facilities
(c) Section 87(1) of the Roads Act 1993 force at the time of the accident in February 2005) ("Roads Act") authorises the RTA to "carry out traffic control work on all public roads ... and on all roads or road related areas within the meaning of the Road Transport (General) Act 1999".
(i) "carry out traffic control work" is defined in the Dictionary to the Roads Act in the definition of "traffic control facility":
"traffic control facility has the same meaning as it has in Part 6 of the Transport Administration Act 1988, and carry out traffic control work includes carry out any activity in connection with the construction, erection, installation, maintenance, repair, removal or replacement of a traffic control facility."
(ii) Section 45E of Pt 6 the Transport Administration Act 1988 (as in force at the time of the accident in February 2005) provided a definition of "traffic control facility", para (c) of which was as follows:
"(c) any other sign, marking, structure or device that is intended to promote safe or orderly traffic movement on roads or road related areas or to warn, advise or inform the drivers of vehicles, or pedestrians, of any matter or thing in relation to vehicular or pedestrian traffic or road conditions or hazards ..."
This definition is clearly broad enough to include a 'Water Over Road' sign, or for that matter a 'Reduce Speed' sign.
(d) Under s 87(2) of the Roads Act, in the case of a "classified road", a roads authority may only carry out "traffic control work" (including erecting a traffic control facility) with the consent of the RTA. It is clear the Riverina Highway is a "classified road", that expression being defined to include a State Highway. The fact that even another roads authority (such as a Local Council) needs the consent of the RTA before it puts up a traffic control facility indicate that the s 87(1) power is one which is of a kind which persons generally are not authorised to exercise without specific statutory authority.
(e) It is important to appreciate that the RTA is not necessarily the owner of the land on which the road stands, and in particular it is not the owner of the Riverina Highway. The effect of s 145(3) when read with s 7(4) of the Roads Act is that all public roads within a local government area (other than freeways and Crown roads) are vested in fee simple in the council of that local government area. The RTA's power to carry out "traffic control work" is not an incident of ownership, but stems solely from s 87 of the Roads Act. Similarly, in the case of classified roads, the power of the local Council (which is the appropriate road authority) to carry out such traffic control work is subject to the consent of the RTA.
(f) The object of the Roads Act includes to "set out the rights of members of the public to pass along public roads" (s 3(1)), and the public have only such rights in respect of a road as are set out in the Roads Act. Section 5(1) of the Roads Act provided:
"(1) A member of the public is entitled, as of right, to pass along a public road (whether on foot, in a vehicle or otherwise) and to drive stock or other animals along the public road"
The only public right in respect of a road is to pass and repass; a member of the public has no right to do anything else. In particular a member of the public has no right to install traffic control facilities on a classified road such as the Riverina Highway. It would be absurd in the extreme if the 'owner' of the road (being the relevant Local Council) required the consent of the RTA, but a member of the public did not.
(g) For the above reasons, it is clear that the power to carry out traffic control work (including erecting a "traffic control facility" such as a 'Water Over Road' sign) is one which is a special statutory power within the meaning of s 43A of the Civil Liability Act."
See also Fullerton J in Curtis v Harden Shire Council [2012] NSWSC 757 at [50]-[52], but in Curtis the issue was not crucial to the outcome.
With great respect to his Honour Hoeben J, and to her Honour Fullerton J, such an analysis plays insufficient regard to the requirement that the "statutory power" being exercised is "special". Leaving aside for present purposes the exercise of Executive Power, all powers exercised by government require statutory authority; express or implied. Even Executive Power may be confined to the execution and maintenance of the laws of the Parliament to which the Executive is responsible. It is unnecessary to discuss Executive Power further, but see the discussion, as to the Commonwealth, in Williams v Commonwealth [2012] HCA 23; (2012) 248 CLR 156.
The construction of the term "special statutory powers" was a matter discussed by the High Court in Sydney Water Corporation v Turano ("Turano") [2009] HCA 42; (2009) 239 CLR 51 at 62-63, [15]-[17], 64 [20] and 65 [24]-[26], without finally resolving the issue. Nevertheless, their Honours cited, without criticism, the now well-known passage from Professor Aronson's article, "Government Liability in Negligence" (2008) 32 Melbourne University Law Review 44, where the learned author, at pp78-79 said:
"The idea appears to have been to distinguish statutory authority per se ... from statutes permitting coercive acts or non-consensual rights-depriving acts. If that is correct, then one of the limits to the section's scope is that the defendant must have received statutory authority to act in a way that changes, creates or alters people's legal status or rights or obligations without their consent."
The issue had been discussed by the Court of Appeal prior to the judgment in Turano and has been discussed since that High Court judgment. In 2008, Allsop P (as his Honour then was), (Beazley JA as her Honour then was and McColl JA agreeing), discussed the operation of s 43A of the Act in Precision Productions (NSW) Pty Ltd v Hawkesbury City Council("Precision Products") [2008] NSWCA 278. After referring to the context of s 43A of the Act, and reciting ss 42, 43, 43A, 44 and 45 of the Act, his Honour the then President, at [170], said:
"[170] Remoteness of this provision from the disposition of the appeal, given the extent of argument that took place as to the section and given the importance of the section, I do not think it appropriate to express concluded views about the meaning and effect of s 43A.
[171]A number of important issues about its operation should, however, be noted. First, it is not clear whether, as the Legislative Review Committee thought, the section affects the existence or scope of the duty of care or whether it is a statutory immunity which is engaged at the point of consideration of whether there is a liability for what would otherwise be a breach of a duty of care, the scope of which being ascertained without consideration of the terms of s 43A. There was no argument in this appeal that s 43A affected the scope of any posited duty. In this respect, it is to be noted that s 43A(3) refers to giving rise to civil liability, whereas s 43(2) refers to constituting a breach of statutory duty.
[172] Secondly, it was argued that the provision should be limited to the valid exercise of power or a decision not to exercise the relevant power and should not extend to protecting an authority where a power has been sought to be exercised (as here), but because of the jurisdictional error involved in the purported exercise of the power, no true exercise of the power has taken place: Minister for Immigration and Multicultural Affairs v Bhardwaj[2002] HCA 11; 209 CLR 597 and Plaintiff S157/2002 v Commonwealth[2003] HCA 2; 211 CLR 476. An interpretation which limited the effect of s 43A in this way might be seen to be in accordance with principles requiring statutory immunities cutting down common law rights to be read strictly or even jealously: Australian National Airlines Commission v Newman [1987] HCA 9; 162 CLR 466 at 471; Board of Fire Commissioners (NSW) v Ardouin[1961] HCA 71; 109 CLR 105 at 116; Puntoriero v Water Corporation[1999] HCA 45; 199 CLR 575 at 588 [34]; and Coco v R[1994] HCA 15; 179 CLR 427 at 436. Important questions of statutory interpretation would arise at this point including the second reading speech of the relevant minister, the surrounding material, and the overall intent and purpose of the Civil Liability Act (cf NSW v Bujdoso[2007] NSWCA 44; 69 NSWLR 302 at 315 [56]; and see also Malika Holdings Pty Limited v Stretton[2001] HCA 14; 204 CLR 290 at [28]- [29]). The question as to whether s 43A affected the existence or scope of a duty of care would be relevant to this question.
[173] Involved in the above question of statutory interpretation would be a close examination of the text of the provision. Important in the above debate would be an assessment as to whether the phrase "involving an exercise of" used in sub-s 43A(3) widened the notion in sub-s 43(1) of "based on ... [an] exercise of" a special statutory power."
No member of the public is able to erect warning signs on public roads (or bridges). Each member of the public is empowered to erect warning signs on roads (or bridges) on her/his private land. To empower, by promulgation of a statute, an authority of the government (or Crown) to perform an act with respect to land owned and/or controlled by the government, which act could be performed by any member of the public in relation to his or her own land, is not to grant a "special" statutory power. It is a grant of "statutory power" that is not special.
On the other hand, a grant of power to a public authority, which power could not be exercised (even on their own land or in other circumstances with other necessary changes being made) by a member of the public is the grant of a special power: see s 43A(2)(b) of the Act. It is unhelpful to seek to list such powers, but they include, at least, a power to detain persons and a power to seize property, such as occurs in the operation of Mental Health Institutions (see Presland) or Corrective Services Centres, or the operation and powers of police.
The Court enquired as to the ownership of the relevant road (Transcript, 133). There is no evidence of its ownership. I accept that the road is a public road for the purposes of s 87 of the Roads Act 1993. To state that a member of the public could not, without statutory authority, place a sign on a public road is not to enliven s 43A(2)(b) of the Act. Members of the public cannot place a sign on their neighbours' properties. The foregoing, in my view, is the only manner to treat the provision, consistent with the judgment in Refrigerated Roadways.
The definition in s 43 A(2) of the Act would, if applied in the manner suggested by the RTA in these proceedings, render every statutory power a "special statutory power". The power must be "of a kind" described. The words "of a kind" should be given a meaning; as must the word "generally".
With great respect, the above approach of Campbell JA is correct. If the power is one that is of a kind that persons can generally exercise, it is not a special statutory power. Unless one were to render all statutory power special, which would make much of the definition otiose, the power cannot be of a kind that, in circumstances not requiring statutory power, persons can exercise. In other words, if the power is one that, in other circumstances, being in relation to private property or private conduct, would not require statutory authority, the power, when granted to a statutory body (or private individual in relation to property or conduct of or on behalf of government) is not a special statutory power within s 43A(2) of the Act.
Just as the work on the bridge in Refrigerated Roadways was an incident of the ownership of the bridge, so too is the work on the road in this case an incident of the government ownership, control or responsibility of the road.
There is much to be said for the test propounded in the passage from Professor Aronson's article, recited above, but it is unnecessary for me to discuss that matter further.
It seems to me that the power granted to the RTA in respect of the placing of signs on public roads is no different to the authority in members of the public to place signs on their own property. The statute identifies a public authority with the power to act in relation to public roads. In that respect, a "special statutory power" is not being exercised.
Wednesbury Unreasonableness
Nevertheless, and given my regard for the author of the judgment (and the reasons therein) of the Court in Rickard, I will deal with a liability as if the placing of the signs were performed by virtue of or under a special statutory power.
The starting point for a construction of s 43A of the Act, in this regard and more generally, apart from the words of the statute, is that the provision excuses (or renders un-actionable) civil liability that would otherwise arise in tort (however pleaded).
A construction of the provision that failed to exempt any unreasonable conduct, because no authority, acting reasonably, could properly consider the conduct to be reasonable, would render the provision otiose. The statute must be given a construction that is consistent with the language and purpose of all of its provisions, which, prima facie, must be accepted as intended to give effect to harmonious goals: Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69], [70].
I also agree that it is inappropriate to put a gloss over the words of the statute. Plainly, for liability to arise in a statutory authority exercising special statutory power, the statute requires a higher degree of negligence than the ordinary standard. Whether that is "gross negligence", as that term has come to be understood, is not clear. Nor do I suggest that the degree of negligence needs to be at a standard that would otherwise warrant criminal punishment: R v Lavender [2005] HCA 37; (2005) 222 CLR 67; Andrews v DPP [1937] AC 576; R v Buttsworth [1983] 1 NSWLR 658; Nydam v R [1977] VR 430.
In Allianz Australia Insurance Ltd v Roads and Traffic Authority of New South Wales; Kelly v Roads and Traffic Authority of New South Wales [2010] NSWCA 328, Giles JA (with whom McColl JA and Sackville AJA agreed) discussed the above issues. His Honour said:
"[78] The problem of transposition is evident. Wednesbury unreasonableness is concerned with the scope of the powers of an administrative body and with the validity of a decision made by that body. By contrast, a reasonable response to a foreseeable risk of injury is concerned with the discharge of a duty of care on which turns compensation for injury. Wednesbury unreasonableness marks a boundary for intervention of a court in the decision-making of the administrative body, but a court deciding a claim in negligence must determine whether there was reasonable response to foreseeable risk of injury. There can be Wednesbury unreasonableness without negligence (in the sense of a breach of a duty of care), just as there can be negligence without Wednesbury unreasonableness.
[80] It is not surprising that much of the exposition or illustration from the cases of Wednesbury unreasonableness has been on facts and grounds for unreasonableness quite unlike those arising in the typical negligence claim.
[81]Lord Greene observed that proof that a decision was so unreasonable that no reasonable authority could have come to it "would require something overwhelming". In the area of judicial review of administrative decision-making, a quite demanding level of unreasonableness has beenrequired before a decision will be invalidated on the ground of Wednesbury unreasonableness. This reflects, among other things, the need to mark a separation between the exercise of executive and judicial power which, at federal level, has constitutional dimensions. In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 42 Mason J found a close analogy with appellate review of a judicial discretion, and cautioned lest a court "exceed its supervisory role by reviewing the decision on its merits". In Attorney-General of New South Wales v Quin (1990) 170 CLR 1 at 36 Brennan J said that Wednesbury unreasonableness "leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power", and said that this basis for judicial review "is extremely confined".
[87] Aronson sums it up in "Government Liability in Negligence" [2008] 32 MULR 44 at 80 that "[o]nly the grossest unreasonableness will invalidate the exercise of a statutory discretion". The learned author suggests that instead of transplanting Wednesbury unreasonableness "[i]t might have been more straightforward to draft the new standard simply as 'gross negligence'". I say nothing of that; in seeking to give content to the language of s 43A, however, a constant is that Wednesbury unreasonableness must be at a high level. The force of s 43A, in its use of language modelled on that of Wednesbury unreasonableness, lies in "could properly consider", with the restraint of "could" moderated by "properly". Necessarily, questions of degree and judgment arise in both reasonableness and properness.
[88 It would be preferable to avoid substituting for the language of s 43A the shorthand of whether the authority's conduct was "irrational", as the trial judge did (referring to Mr McGregor's decision rather than the RTA's conduct) at [121]. That his Honour made the substitution is understandable, since the Minister did so in the second reading speech in relation to s 43 of the CL Act (Second Reading Speech, Legislative Assembly, 23 October 2002, 5767 (Mr Carr)). Lord Diplock had much earlier equated irrationality with Wednesbury unreasonableness (Council of Civil Service Unions v Minister for the Civil Service at 410), and Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 is a recent consideration of the place of irrationality or illogicality in judicial review. In Stovin v Wise (1996) AC 923 at 952-3 Lord Hoffman spoke of irrationality in connection with a road authority's negligence.
[89] However, that is not the language of s 43A. Irrationality is not necessarily an equivalent test in the private law of reasonable response to foreseeable risk of injury. For example, the response may objectively be one at which an authority acting reasonably could properly arrive, although arrived at irrationally. Conversely, as is pointed out by Airo-Farulla in the article previously mentioned at 573, a person might act rationally in the sense of having adopted the best means to his or her end, but still unreasonably because sufficiently inconsistently with common sense, moral values or the interests of others. Reference to irrationality may also lead to an incorrect focus on the decision-maker's own thought processes.
[90] Applying the terms of s 43A, I respectfully differ from the trial judge. Accepting the guiding principle that a warning sign should be close enough so that the driver would recognise the hazard when he or she came to it, and attributing to the RTA Mr McGregor's observations of water in the dip, in my view the RTA could, and could properly consider placing the "Water Over Road" sign where it was placed a reasonable exercise of its special statutory power. Placing the "Water Over Road" sign east of the dip, to act as a warning for the dip and for the water over the road at "Lyntods", was in the circumstances not an act so unreasonable that no authority having the RTA's special statutory power to erect warning signs could properly consider it to be a reasonable exercise of that power."
In Precision Products, Allsop P also discussed the issue of the level of negligence necessary and, at [175]-[176], said:
"[175] A further important consideration is the content of sub-s 43A(3) and the meaning of the phrase "so unreasonable that no authority having the functions of the authority in question could properly consider the act or omission to be a reasonable exercise of its function." Such wording can be seen to have its source in what is often referred to as "Wednesbury unreasonableness" from Associated Provincial Picture Houses Limited v Wednesbury Corporation[1947] EWCA Civ 1; [1948] 1 KB 223 at 229-230. Regard could equally be had to the formulation of cognate concepts in Avon Downs Pty Limited v Federal Commission of Taxation [1949] HCA 26; 78 CLR 353 at 360; R v Connell; ex parte Hetton Bellbird Collieries Limited [1944] HCA 42; 69 CLR 407 at 430; and Buck v Bavone[1976] HCA 24; 135 CLR 110 at 118-119. Cognate ideas are also found in the law attending the responsibility of company directors. The Court there focuses on whether decisions made by boards are made honestly in the interest of the company or are of a kind which no reasonable person could have reached: see Shuttleworth v Cox Brothers and Co (Maidenhead)Limited [1927] 2 KB 9 at 23-24; Peters' American Delicacy Co Ltd v Heath[1939] HCA 2; 61 CLR 457 at 481; and Wayde v New South Wales Rugby League Limited [1985] HCA 68; 180 CLR 459 at 469-470.
[176] While these are different areas of human endeavour, formulations of the kind used in these cases, whether it be in public law, the law of business or the law of torts are attempts to formulate more attenuated tests for legitimate activity than by reference to a fixed standard of reasonable care."
The words of s 43A of the Act are not expressed as "gross negligence". The legislature could easily have chosen that course. In my view, the key to the operation of s 43A(3) of the Act is the reference to "no authority" and the use of the term "properly". Thus, as the Court of Appeal has commented, the level of negligence does not require "irrationality" or "illogicality".
Moreover, as earlier explained, it does not render all liability "unactionable"; nor all exercises of "special statutory powers". Certainly, as Allsop P points out in Precision Products, the context of s 43A of the Act in Part 5 must be borne in mind.
Yet there are other aspects of the Act that are comparable. In limiting the liability of professionals, the legislature utilised the test of conduct that "was widely accepted... by peer professional opinion as competent": see s 5O of the Act. The test in s 43A of the Act is more difficult for a plaintiff to satisfy.
Both s 5O and s 43A of the Act require an objective standard. But s 43A of the Act does not require "wide acceptance" of the conduct; only one other statutory authority is necessary, if it could properly consider the act a reasonable exercise of the power. I am not suggesting that there actually needs to be another statutory authority that exercises the power. Nor am I suggesting that the test is subjective. On the other hand, the fact, if it were the fact, that every other authority has acted, otherwise (or most of them) does not determine the issue under s 43A of the Act.
In my view, the words of the Act must be applied (bearing in mind the foregoing). The question must therefore be asked: Could an authority properly consider the act or omission a reasonable exercise of the power? The use of the word "could" does not here raise a mere possibility, but is intended to refer to capacity. Nevertheless, if it is possible that an authority acting reasonably could perform the act, then liability is excluded.
The Court of Appeal (Basten JA, Allsop P and Sackville AJA agreeing) in Patsalis v State of New South Wales [2012] NSWCA 307; (2012) 81 NSWLR 742 discussed s 43A of the Act in the context of proceedings under the Felons (Civil Proceedings) Act 1981 and/or orders in the nature of prerogative relief. The discussion on s 43A of the Act centred on its applicability to judicial review. In the course of the discussion, the Court said:
"[87] The second point of distinction was said to be the subsequent enactment (and, by implication, applicability in the present case) of ss 43(2) and 43A(2) of the Civil Liability Act. However, s 43 applies to liability based on "a breach of a statutory duty by a public or other authority in connection with the exercise of or a failure to exercise a function of the authority". Although the point was not fully debated, it is at least doubtful whether s 43 would apply to a claim in negligence for breach of the duty to take reasonable steps to protect the safety of a prisoner. That would appear to be a duty arising under the general law, rather than a "statutory duty" imposed, presumably, by the Administration Act.
[88] Section 43A applies to proceedings where "liability is based on" the exercise or failure to exercise a "special statutory power", being a power conferred by or under a statute of a kind that persons generally are not authorised to exercise without specific statutory authority: s 43A(2). Again, the scope of this provision was not explored. While the claim might be for breach of a general law duty of care, the liability might be "based on" an exercise of a "special statutory power", namely the power to hold in custody and manage the accommodation of prisoners. If s 43A were engaged in the present case, there would be no civil liability "unless the act or omission was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of ... its power": s 43A(3). Clearly that provides a high hurdle for an applicant seeking quia timet relief. Because there would be no liability unless the Commissioner were manifestly unreasonable in the sense identified above, to contend that in no case could the relevant change in circumstances be permitted would constitute an almost insuperable hurdle for the applicant.
[89] Finally, the primary judge noted that a different approach applied to quia timet relief where the court is required to determine the facts, as compared with judicial review of a discretionary decision where, generally speaking, the court will not review the factual findings accepted by the administrative decision-maker. The distinction is entirely sound: what is less clear is the point which the primary judge sought to make of the distinction. Injunctive relief, if available in respect of threatened negligent conduct, is available not because the decision-maker held a belief as to the reasonableness of the proposed course of conduct, but because the court was not satisfied as to the reasonableness of the proposed course of conduct. Civil liability (actual or threatened) does not necessarily depend on the validity or invalidity (in administrative law terms) of a particular course of conduct. At least until the enactment of the Civil Liability Act, a statutory authority could act validly but negligently, thereby incurring civil liability for damages caused. Where they apply, ss 43 and 43A of the Civil Liability Act may result in the same test being applied in respect of the validity of conduct and in respect of civil liability for damages which it may cause, but the nature of the inquiry may differ."
In the foregoing, the Court of Appeal refers to the test (albeit as a shorthand expression) as "manifestly unreasonable".
As earlier explained, each relevant expert, qualified by each side, agreed "that the subject median nose should have been signed with a 'Keep Left' sign". No other expert was called. I infer that no other expert would assist the RTA's case. Thus, any expert advice to any authority exercising this power in these circumstances would be inconsistent with the failure to erect the sign.
Further, any statutory authority exercising this power in these circumstances would be faced with the provisions of Clause 2.8.7 of AS1742.2 (1994) and the Guide, Section 2.4, page 2-40 (March 1988), recited above. The circumstances, as earlier stated, are that the median nose was combined with both a horizontal and vertical curve, without visibility.
Thus, an authority exercising this power in these circumstances would be undertaking a task:
(1) Which involved a significant risk to persons to whom is owed a duty of care is owed;
(2) The probability that harm would occur, together with the likely seriousness of such harm, required that the risk be avoided or ameliorated;
(3) Where the risks to such persons were known and documented;
(4) Where the steps to avoid or ameliorate the risk were known and documented;
(5) Where the cost of any such step (and the cost of such steps to avoid similar risks) was insignificant;
(6) Where experts agree the step should have been taken; and
(7) The authority had no reason for not taking the step.
No evidence was adduced that the RTA turned its mind to a known and documented risk or any basis for not taking the steps recommended in the Guide. The unreasonableness of the conduct is manifest. No authority, exercising this power, could properly consider the failure to erect an appropriate sign (or the construction of the median strip without such a sign) to be a reasonable exercise of the power, in these circumstances.
Contributory Negligence
The provisions of Part 1A, Division 8 of the Act govern contributory negligence. The same principles are applied to contributory negligence as apply to determining negligence and, in particular, the standard of care is that of a reasonable person, determined on the basis of what the person knew or ought to have known: s 5R of the Act: see Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 at [220], in which the High Court (Callinan and Heydon JJ) said:
"[220] In a similar vein to what we have just said, and of relevance to any question of contributory negligence also, we would seek to make the point that it is not right to say, without qualification, that the difference between the duties of an injured plaintiff, and those of a tortfeasor, is that the former owes absolutely no duties to others including the defendant, while the latter owes duties to all of his "neighbours". The "duty" to take reasonable care for his own safety that a plaintiff has is not simply a nakedly self-interested one, but one of enlightened self-interest which should not disregard the burden, by way of social security and other obligations that a civilized and democratic society will assume towards him if he is injured. In short, the duty that he owes is not just to look out for himself, but not to act in a way which may put him at risk, in the knowledge that society may come under obligations of various kinds to him if the risk is realized."
Reference should also be made to the comments of McHugh J in Josyln v Berryman [2003] HCA 34; (2003) 214 CLR 552 at [32]-[34], where his Honour discussed the position of young and aged plaintiffs. While in both negligence and contributory negligence the test is objective, in each case a reasonable person "in the position" of the tortfeasor or plaintiff is considered: see s 5R(2)(a) and Doubleday v Kelly [2005] NSWCA 151 at [26] per Bryson AJA. That approach resolves, it seems, the tension between the approach in Vairy and of McHugh J in Joslyn. It also reconciles the comments, to which McHugh J refers, of Jordan CJ in Cotton v Commissioner for Road Transport and Tramways [1942] 43 SR (NSW) 66 at 69.
Notwithstanding the concession by the RTA that 75 km/h would be safe, I consider that 80 km/h, the speed of the plaintiff, was negligent, but not so as to absolve the RTA from its duty towards him. In my view, as earlier expressed, each breach (namely that of the RTA and that of the plaintiff) was a necessary condition for the occurrence of the harm.
The relevant speed limit was 60 km/h. As earlier stated, if the plaintiff were to have been travelling at that speed, he may still have had the accident. There certainly was still a significant risk of the accident. It would have been necessary for the plaintiff to react, correctly, within just over 1.9 seconds, without losing control of the motorbike. At the speed the plaintiff was travelling he had approximately 1.3 to 1.4 seconds to react.
Were it not for the negligence of the RTA, the accident would not have occurred. In assessing the degree to which there should be apportionment, I take account of the evidence (and concession) that a safe speed was well over 60 km/h. At 75 km/h, the plaintiff would have had just over 1.5 seconds to react.
The test for apportionment of damages, where there is contributory negligence, is that the damages are reduced by that which is just and equitable, having regard to the plaintiff's share in the responsibility; see s 9(1) of the Law Reform (Miscellaneous Provisions) Act 1965. The determination of that proportion is not performed with arithmetic precision. It is a matter of assessment.
The law continues to be that expressed by the High Court in Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492, where, at 494 [10], the Court (Gibbs CJ, Mason, Wilson, Brennan and Deane JJ) said:
"[10] The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man (Pennington v. Norris [1956] HCA 26; (1956) 96 CLR 10, at p 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v. Gypsum Mines Ltd. [1953] UKHL 4; (1953) AC 663, at p 682; Smith v. McIntyre (1958) Tas.SR 36, at pp 42-49 and Broadhurst v. Millman [1976] VicRp 15; (1976) VR 208, at p 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance."
The facts have already been set out. Having passed the threshold for liability in s 43A of the Act, the conduct of the RTA was manifestly unreasonable. Further, it must have anticipated that some people would travel in excess of the speed limit. It concedes, up to a certain speed, such conduct would be safe. At the same time, the plaintiff could expect that the RTA would not place an obstacle in his path.
In all of the circumstances, I assess that it is just and equitable to reduce the plaintiff's damages having regard to his share in the responsibility of the damage. The plaintiff is clearly not responsible for 100% of the damage: see s 55 of the Act. Nor is he responsible equally with the RTA. At the same time he is more than 25% responsible. I reduce the award by 30%.
Damages
The circumstances of the plaintiff relevant to damages are, in large measure, the subject of agreement or consensus. Where differences exist, they are, in the scheme of issues, relatively minor. The following is taken, largely from the RTA submissions, which generally reflect the evidence.
The plaintiff was born on 20 September 1987 and was just over 21 years of age at the time of his accident. He is right handed.
The plaintiff attended Kings' School, finished Year 12 and commenced and completed a one-year Advanced Diploma of Business majoring in Events Management. He was a keen and active sportsperson. He has now returned, albeit in a more limited way, to sport.
He has travelled overseas and, prior to the accident, lived with his mother. In the years prior to the accident, the plaintiff worked in a bottle shop and in carpentry work with Mr Faulkner and Mr Faulkner's father, who owned and ran a shopfitting and joinery business. The previous earnings are in issue.
As explained, the plaintiff was severely injured and has significant ongoing disabilities. He is incapable of performing his prior, and desired long-term, work. He now drives a car and works at his father's gym, while also doing regular gym work to maintain strength and fitness.
He received his first prosthetic leg in October 2009. He has since undergone osseointegration (September 2011), which has dramatically improved his life and ameliorated some of the worst features of his disability arising from his earlier prostheses.
The plaintiff continues to suffer pain and takes prescribed medication when it becomes too severe, which is rare.
In the Joint Vocational Report of the two qualified Occupational Therapists, the plaintiff is described as a "highly motivated, resourceful and adaptable person...[who has a].. desire to have the full life of a 'normal' young person".
The plaintiff is an extremely impressive young man who is well-built, good looking and, but for his injuries, extremely fit. His demeanour was impressive. He is charming and pleasant. I have little doubt that, in the absence of injury, he would have commenced his own business and done very well. By all accounts he has talent as a carpenter.
Shopfitting is a demanding job, often requiring work out of hours. It is extremely well paid - much more so than normal carpentry. I accept that, in the absence of injury, the plaintiff would have completed his qualifications and worked (either as an employee or subcontractor) for Mr Faulkner's father, eventually commencing his own business.
The issues between the parties relate to non-economic loss, past economic loss (i.e. past earnings), lack of future earnings and consequential calculations of superannuation (past and future) and interest on past economic loss. Otherwise the only other issues relate to how often the prosthesis would require renewal and additional future care.
The parties have agreed, and the agreement reflects the evidence, on past prosthetic expenses; past treatment expenses; Medicare repayments; future treatment expenses (other than prosthetic expenses); past domestic assistance; past domestic aid expenses; future care and domestic assistance; past home modifications; purchase, placement and repair costs of future domestic aid; future travel costs; and future home modifications.
The agreed figures total $869,634.65. I congratulate the parties on the degree of common sense displayed and their concentration on the major issues.
The plaintiff claims 100% of the cap for non-economic loss. The defendant submits it should be 75%. I have described, only in part, the injuries. As the concession by the RTA indicates, those injuries are significant. The forgoing is an understatement. Yet I do not consider that they are in the worst category or warrant 100% of the cap. In my view, the non-economic loss should be assessed at 90% of the cap.
It is difficult to assess past economic loss. The plaintiff was overseas for about 10 months and returned in late 2007. In 2007-2008 he worked casually for a hotel (as a manager) and in a bottle shop (as an attendant).
He only commenced carpentry work in 2008 and the accident occurred on 1 January 2009. Therefore, his prior tax returns reflect casual work until about 30 June 2008 and his asserted earnings do not commence until 2008 and would include only a few months' earnings in Tax Year ending 2008 and a few months in Tax Year ending June 2009. His past earnings also reflect his youth, the absence of a "need" to work and the settling period after his return from overseas.
I scrutinise the claimed earnings with special care, to the extent they rely on undeclared income: Giorginis v Kastrati (1988) 48 SASR 371. I do not consider, despite the last mentioned feature, that the plaintiff is untrustworthy or malicious. The building industry is a notoriously cash payments industry. But I am not prepared to accept that the plaintiff earned $1,800 per week net for six months of 2008, which itself would result in $46,800, when his tax return for the year was $10,556. Nevertheless, I do accept, in light of comments in the immediately preceding paragraph, that the plaintiff earned (and was paid) $1,800 per week net during that six months for each week he worked full-time.
There are two aspects that require particular attention. The evidence of Mr Faulkner was that the plaintiff was working predominately as a subcontractor, not an employee. So too was Mr Faulkner. As such, the amounts on the group certificates may not reflect all of the earnings from the carpentry work. The responsibility for accurately stating his income fell on the plaintiff, at all times, and to the extent he was engaged as a subcontractor, not on Mr Faulkner or his father.
The tax return for year 2009 would have been completed at the height of the plaintiff's suffering. As a consequence, the special care which with I scrutinise these claims does not require incredulity. I take account of the growing maturity, the need for work and money, and the emerging stability in his life patterns. I consider he would have worked full-time more often. Nevertheless, I assess his earnings lost from 1 January 2009 to 31 December 2011 at $1,000 per week net and from 1 January 2012 until 31 December 2013 at $1,500 per week net. On the evidence, by 31 December 2011, the plaintiff would, but for the injury, have completed his qualifications. After 31 December 2013 he would earn $1,800 per week net and that is the basis for calculating his future earnings. The $1,800 per week figure net takes account, with significant discounting, for higher earnings from the commencement of his own business.
The future earnings take account of the probability that he would have commenced his own business and earned profits. That "buffer" is small. He was given favoured treatment by Mr Faulkner and his father, because of his friendship, his general trustworthiness and his capacity for hard work (and his talent). That is how I understand, at least to some extent, Mr Faulkner's evidence as to higher payments that were paid and were anticipated into the future (Transcript, 118).
The plaintiff has a residual earning capacity but the likelihood that he will reach that full capacity, notwithstanding his attitude, is remote. In my view, if the plaintiff were to cover expenses in his "gym business", he would be doing well. It is likely that he would need to employ a manager, or at least more staff than would, but for his injury, be required. I do not consider that he will earn significant income and, any such income, is absorbed by me in the "buffer" referred to above. I accept the above is not a "buffer" in the traditional sense. His future loss of earnings should be assessed at $1,800 per week net, less 5% and less 15% for vicissitudes.
Past and future superannuation needs to be calculated on the foregoing basis at 11% and 14.27% respectively, as does interest at the appropriate figure.
Future prosthetic expenses should be calculated on the basis of a replacement Genium Bionic Knee every six years at $140,000 per replacement.
I do not understand the claim for amounts for times when the plaintiff will require higher dependency than otherwise assessed and agreed. As I understand the expert reports, such care has been factored into the other figures.
Conclusion
The plaintiff has suffered horrendous injuries as a result of the motorbike accident. The accident would not have occurred but for the negligence of the RTA. The plaintiff's speed was also, although only partly (30%), responsible for the damage.
The RTA was not, in constructing the median strip and/or in failing to place an appropriate sign, exercising a "special statutory power" within s 43A of the Act.
Even if it were, the construction of the median strip without such signage and/or the failure to erect such signage was so unreasonable that no authority could properly consider it to be a reasonable exercise of such power.
The Court makes the following orders and directions:
(1) Judgment for the plaintiff;
(2) The plaintiff shall calculate damage to reflect the assessment in these reasons and serve same on the defendant within 14 days hereof;
(3) The defendant shall either agree or dispute the aforesaid calculations as one reflecting these reasons within a further 7 days;
(4) If there be disagreement, the plaintiff and defendant shall file and serve written submissions (or a note and schedule) within a further fourteen (14) days, together with any application and supporting material, for any special orders for costs. Such submissions shall be no more than 5 pages and the issues will be dealt with on the papers;
(5) The parties have liberty to apply on two (2) working days' notice;
(6) Otherwise, the proceedings are adjourned and further judgment reserved.
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Decision last updated: 08 April 2014
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