Joan Fitzgerald v Inverell Shire Council

[1999] NSWCA 31

CITATION:	JOAN FITZGERALD v INVERELL SHIRE COUNCIL [1999] NSWCA 31
FILE NUMBER(S):	CA 40769/97
HEARING DATE(S):	18 February 1999
JUDGMENT DATE:	18 February 1999
PARTIES :	JOAN FITZGERALD v INVERELL SHIRE COUNCIL
JUDGMENT OF:	Handley JA; Powell JA; Giles JA

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	DC 25/95
LOWER COURT JUDICIAL OFFICER:	Patten DCJ

COUNSEL:	W C Terracini SC/K W Andrews (Appellant) D L Davies SC (Respondent)
SOLICITORS:	Sweeny Waterford, Narrabri (Appellant) Phillips Fox (Respondent)
CATCHWORDS:	NEGLIGENCE - highway authority - road works - adequacy of warning - whether trial Judge erred in findings of fact - whether failed to give adequate reasons
DECISION:	Appeal dismissed with costs

7

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40769/97
DC 25/95

HANDLEY JA
POWELL JA
GILES JA

Thursday 18 February 1999

JOAN FITZGERALD v INVERELL SHIRE COUNCIL

NEGLIGENCE - highway authority - road works - adequacy of warning - whether trial Judge erred in findings of fact - whether failed to give adequate reasons
The appellant had been injured in a road accident, and claimed that her injuries were the result of the negligence of the Council in conducting road works. The appellant claimed that the trial Judge had erred in not finding that there was a “flagman ahead” sign in the direction from which the plaintiff had approached or had failed to give adequate reasons for such a finding. The appellant claimed that it was negligent for the Council having placed such a sign not to provide such a flagman to regulate traffic.
HELD,: dismissing the appeal: (1) The trial Judge was entitled to conclude that there had been no “flagman ahead” sign. (2) The appellant’s claim that the trial Judge had failed to give adequate reasons failed. (3) The finding of the trial Judge that the accident was caused by the plaintiff ignoring the warning signs and driving at excessive speed was correct.

ORDER

Appeal dismissed with costs.

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40769/97
DC 25/95

HANDLEY JA
POWELL JA
GILES JA

Thursday 18 February 1999

JOAN FITZGERALD v INVERELL SHIRE COUNCIL

JUDGMENT

1 HANDLEY JA: This is an appeal by a plaintiff who was injured on 9 August 1994 in a road accident on Yetman Road, just north of Cherry Tree Hill Creek within Inverell Shire. She was injured when she lost control of her car on a bend in the road on her way to work at Inverell at about 8.30 on the morning. Her car left the road surface and rolled down an embankment causing the injuries for which she sued.
2 The plaintiff claimed that her injuries were the result of the negligence of the Council in conducting road works on Yetman Road.
3 Since the Council was conducting active road works at the time it is not entitled to the benefit of the non feasance rule and the only question for the trial Judge, Patten DCJ, was whether the Council had been guilty of negligence which had caused the accident.
4 The plaintiff’s case at the trial included a number of particulars of negligence but by the end of the evidence her case had become a narrow one and that has been the basis upon which Mr Terracini SC has conducted her case in this Court. The Judge noted that the plaintiff's case had been virtually reduced in final submissions to reliance as a head of negligence upon the fact that the Council had not provided a flagman to regulate south bound traffic in the direction of Inverell where she was heading.
5 The substance of Mr Terracini's argument in this Court was that the Judge should have found that there was a "flagman" sign on the side of the road in the direction from which the plaintiff was approaching the site of the work and the bend on which she came to grief. It was said to be negligent for the Council having placed such a sign not to actually provide a flagman to control traffic coming from that direction.
6 Mr Morris, the senior Council officer with responsibility for the road work in question, prepared and signed a report on or shortly after the accident which stated:
"Signs in place at the time of the accident at both ends on approach to work site were: - road work 2km ahead, road work 1km ahead, road work ahead, reduce speed, prepare to stop, road plant ahead, workmen ahead, flagman ahead, soft edges".
7 The trial Judge found that there was no "flagman ahead" sign north of the work site in the direction from which the plaintiff was coming. Mr Terracini submitted that the Judge ought to have found in accordance with Mr Morris's report that there was such a sign, and that he either erred in finding to the contrary, or failed to give adequate reasons for his adverse decision on this question.
8 Mr Morris was called to give oral evidence and said in cross-examination that there was no flagman on the northern end of the work but only on the southern end. When asked for his explanation as to the statement to the contrary in his report he said:
"I may have missed the flagman on the northern side, omitting it, because I expected the ones on the southern side and pencilled those in and I relied on the photographs on the northern side".
9 Mr Morris gave evidence that he took photographs on the northern approach to the accident site within a very short time afterwards and these became exhibits 2 and 3. Exhibit 2 shows a "prepare to stop" sign and exhibit 3 a "roadwork ahead" sign both on the side of the road facing the plaintiff as she approached. There was no photograph showing a "flagman ahead" sign, or indeed of the other signs referred to in his report.
10 Mr Morris's evidence was not the only evidence on this question. Mr Watson, who was also on duty for the Council at the time, had personally attended to the placement of the temporary signs that morning before work commenced. After the accident he accompanied Constable Fleming to inspect the signs north of the work which the constable recorded in his notebook, which became ex 11. The notebook records the following signs: "roadwork ahead", "reduce speed", "prepare to stop", "road plant ahead" and "soft edges". Constable Fleming was not required to give evidence, his notebook being admitted without objection.
11 Mr Watson said that there was no "flagman ahead" sign north of the site of the accident but only the signs recorded in Constable Fleming's notebook.
12 When the Judge came to deal with this question, he said:
"In my opinion, all the witnesses who gave evidence in this case did their best to tell the truth and assist the court. Some recollections not surprisingly were astray. I do not think in any case that deliberately false evidence was given. On the evidence I find that to the north of the scene of the accident there were displayed signs as claimed by Mr Watson and as recorded in Senior Constable Fleming's notebook. On the balance of probabilities, I do not think that a sign "flagman ahead" was displayed but in my view of the matter nothing in any event would turn on that".
13 This is the passage to which Mr Terracini directed his submissions, asserting that either the Judge fell into error in his primary finding that there was no "flagman ahead" sign, or failed to give sufficient reasons for coming to that conclusion.
14 In my opinion the Judge was entitled to conclude, as he did, that the evidence of Mr Watson and the contemporary documentary record in Senior Constable Fleming's notebook should be accepted rather than the evidence in the written report of Mr Morris. As I have indicated, Mr Morris did not stand by his written report when cross-examined about it and he claimed that his report was in error. While the Judge would have been entitled to prefer his report to his oral evidence, if that had been the only evidence, having seen Mr Morris and Mr Watson give evidence he was clearly entitled to prefer the contemporary record in Constable Fleming's notebook. The finding that there was no "flagman ahead" sign on the northerly approach to the site of the accident cannot be disturbed.
15 I would also reject Mr Terracini's submission that the Judge failed to give adequate reasons for his finding of fact. He referred to Mr Watson's evidence and to the record in Constable Fleming's notebook, and although he did not refer specifically to Mr Morris's report or to his oral evidence he indicated that on the balance of probabilities he thought that Mr Watson's evidence and the notebook should be accepted, indicating clearly enough that there was evidence in support of another view on that question.
16 A trial judge is bound to explain his process of reasoning and to indicate what his findings of primary fact are, but the cases do not require an elaborate explanation for findings of primary fact based on credit and the probabilities. In my judgment, the Judge's reasons for finding that there was no "flagman ahead" sign were more than adequate and I would reject the second submission by Mr Terracini.
17 The case is one where the relevance and causative effect of the sign "flagman ahead" on which the appellant relied is questionable to say the least. The plaintiff conceded that there were signs on the side of the road indicating that roadworks were in progress. This was her usual route to work in Inverell and she was aware that roadworks were in progress on Yetman Road as a result of earlier journeys. The Judge's acceptance of the evidence of Mr Watson demonstrated that there were in position north of the scene of the accident the signs referred to in the notebook. In addition, there was evidence that at the scene of the accident two items of roadworking equipment, the water truck and the scraper, were standing by ready to commence work and their amber revolving warning lights were operating at the relevant time.
18 Despite her knowledge, both from the road signs that were in place and from her experience on previous journeys, that roadworks were in progress along this road, the plaintiff entered the corner at, on her own account, a speed in the order of 100 kms an hour which, as the Judge said, was much higher than the circumstances of the situation required. It is evident that she had failed to moderate her speed despite signs such as "prepare to stop" and "reduce speed".
19 The Judge concluded that the real cause of the accident was the plaintiff's excessive speed as she approached the bend. He found that the signs which had been erected constituted a discharge by the defendant of its duty, accepting as he did and as he was bound to do, that the roadworks in question created a dangerous situation for motorists unless they were sufficiently warned. He concluded by saying that the accident was solely attributable to the fact that the plaintiff ignored the warning signs and drove into the corner at an excessive speed.
20 In my judgment, Mr Terracini, who said everything that could possibly have been said on behalf of the appellant, has failed to demonstrate that the trial Judge erred and I would propose that the appeal be dismissed with costs.
21 POWELL JA: I agree.
22 GILES JA: I also agree.
23 HANDLEY JA: The order of the Court will be appeal dismissed with costs.