Kerslake v Shire of Northam - [2009] WADC 129

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: KERSLAKE -v- SHIRE OF NORTHAM [2009] WADC 129

CORAM: STAVRIANOU DCJ

HEARD: 16-19 MARCH, 8 APRIL & 18 AUGUST 2009

DELIVERED : 25 AUGUST 2009

FILE NO/S: CIV 333 of 2007

BETWEEN: SHANE KERSLAKE
Plaintiff
AND
SHIRE OF NORTHAM
Defendant

Catchwords:

Negligence - Liability of statutory authority - Statutory immunity - Turns on its own facts

Torts - Negligence - Motor vehicle accident - Road curve with inadequate signage and guideposts - Authority with statutory powers in relation to construction and maintenance of road - Duty of care to road users - Failure to take reasonable care - Contributory negligence - Driving with insufficient attention and at excessive speed - Liability apportioned

Damages - Loss of earning capacity - Turns on own facts

Legislation:

Civil Liability Act 2002 (WA), s 5B, s 5C, s 5E, s 5F, s 5H, s 5K
Civil Liability Act 2003 (NSW), s 5L
Main Roads Act 1930 (WA), s 6

Result:

Judgment for the plaintiff

Representation:

Counsel:

Plaintiff: Mr J Myers
Defendant: Mr J Eller

Solicitors:

Plaintiff: Bradley Bayly
Defendant: John Eller

Case(s) referred to in judgment(s):

Brodie v Singleton Shire Council (2001) 206 CLR 512
Commissioner of Railways (Qld) v Ruprecht (1979) 142 CLR 563
Fallas v Mourlas (2006) 65 NSWLR 418
Lanza v Codemo [2001] NSWSC 845
Leichhardt Council v Serratore [2005] NSWCA 406
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
McIntyre v Ridley District Council (1991) 56 SASR 343
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Paul v Rendell (1981) 34 ALR 569
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492
Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330
Ruddock v Taylor [2003] NSWCA 262
Shire of Toodyay v Walton [2007] WASCA 76
Waverley Council v Ferreira [2005] NSWCA 418
Wyong Shire Council v Shirt (1979 ‑ 80) 146 CLR 40

STAVRIANOU DCJ:

Introduction

On 9 October 2004 the plaintiff, Shane Kerslake ("Mr Kerslake"), was severely injured when the motorcycle he was riding on Jennapullin Road, Northam ("the road") left the road and crashed ("the accident"). The accident occurred as he attempted to negotiate a right‑hand bend ("the bend").
Mr Kerslake alleges that the defendant, the Shire of Northam ("the Shire"), was negligent in its control and management of the road and claims damages. The Shire denies negligence, pleads that it has defences under the Civil Liability Act 2002 ("the CLA") and alleges that Mr Kerslake was guilty of contributory negligence.
The Shire puts in issue the quantum of Mr Kerslake's claim.

Mr Kerslake's background

Mr Kerslake was born on 25 March 1960 and was aged 43 years at the date of the accident. He left school at the end of the equivalent to Year 12. He then worked as a labourer for approximately five years. He then commenced working for a business know as "Mr Minit" in which he was trained as an engraver, key cutter and shoe repairer. In 1980, he started his own business of that kind.
As at the date of accident Mr Kerslake owned and operated stores in two locations. He was fully trained and had promotional material prepared to enable the sale of other stores on a franchise basis.
It was Mr Kerslake's evidence that the combined profit from the two stores would have been at least $100,000 ‑ $150,000 per year. No financial documents were produced in relation to the gross or net earnings of either store. It was Mr Kerslake's evidence that he had not lodged income tax returns between 1998 and 2004. The documents to enable his accountant to prepare tax returns had been stolen from his motor vehicle. It was his evidence, that, as the documents had never been located, he did not lodge income tax returns. It was his evidence, that, before the accident he drew what he described as a weekly wage and his accountant would calculate the balance of profit for the business after the drawing of a wage.
Mr Kerslake gave evidence that he has been involved with motorcycles all his life. He had owned at least 26 motorcycles, including road and trail bikes. The motorcycle involved in the accident was a 1999 Harley‑Davidson which he had owned for four years prior to the accident. Mr Kerslake's evidence was that he had considerable experience in riding on country roads on motorbikes. He had grown up learning to ride on country roads in Tasmania.
It was Mr Kerslake's evidence that before the accident he enjoyed motorcycle riding and gliding.

The Shire and the road

As at the date of accident the Shire was responsible for a total of approximately 600 kilometres of bitumen and gravel roads.
The power to erect signs on the road was the subject of an agreed statement as follows:
"The Road Traffic Code1975 reg 301 and Road Traffic Code 2000, reg 297 are the applicable regulations together with the Main Roads Act 1930. Those regulations are in almost identical terms.
Road Traffic Code 2000 reg 10 repealed Road Traffic Code 1975.
Both reg 301 and reg 297 gave the Commissioner for Main Roads the authority to erect signs over roads and made it an offence for anyone else to do so.
Both reg 301 and reg 297 provided that the Commissioner for Main Roads could delegate by an instrument in writing the authority to put up signs over roads to a local government authority.
An advisory sign provides information to a motorist concerning a hazard and provides information as to what might be safe or unsafe. A regulatory sign obliges or advises or instructs the motorist of what must be done.
The Commissioner of Main Roads by an instrument of authority dated 17 July 1975 granted to the Shire of Northam and other rural shires the power to erect non‑regulatory (advisory) warning signs.
At the time the Shire installed the winding road sign that was in place on 9 October 2004 it acted either:
(1)pursuant to the authority dated 17 July 1975; or
(2)if the sign was erected prior to 1975 pursuant to its powers as a local government authority.
The authority granted by the Commissioner for Main Roads survived the repeal of the Road Traffic Code 1975:
(1)Commissioner's delegation dated 24 September 2004;
(2)the presumption of regularity;
(3)the saving provisions of Interpretation Act 1984 Pt V, s 34 to s 37."
The Shire at the date of accident had the power to erect non‑regulatory warning signs on roads.
In broad terms, the features of the accident scene were not in issue. I had the benefit of photographs, plans and an electronic recording ("the DVD") depicting the accident.
The road had two lanes, was bitumen and ran approximately north ‑ south. It was about 3.7 metres wide on the straight and 5.5 metres wide on the bend. It had gravel shoulders of varying width. The road was approximately straight until the bend. Near the start of the bend a gravel road ("the gravel road") which led to a farm, intersected the road and continued the alignment of the road.
To the north of the bend the road intersects with Grass Valley North Road.
It was not in issue that before the accident the Shire had installed a winding road sign ("the sign") under a group of trees approximately 58 metres south of the tangent point of the bend. A tangent point is the point at which a curve reaches a straight section. At the date of accident there was no speed advisory sign south of the bend.
It is common ground that there was a white metal guidepost erected to the north of the gravel road. It had a red reflector which was designed to reflect light from headlights.

The accident

The accident occurred about 75 metres past the tangent and on the bend.
The weather conditions on the day of the accident were fine and the road was dry.
On the date of accident Mr Kerslake went on an organised motorcycle ride with 70 members of the Eastern Hills Motorcycle Club.
The ride commenced at about 10.30 am and the group proceeded along Great Eastern Highway towards York. At about 3 pm, the riders stopped for lunch at a tavern and after approximately an hour, they headed off again on the ride.
On leaving the tavern, Mr Kerslake was one of a smaller group who needed to purchase fuel and for that purpose, that group rode north on the road. Mr Kerslake had not ridden on the road before. He described the road as narrow but that it looked like a very long road which was highlighted by what he described as a cut out in the trees. He said that the cut‑out of the trees created an illusion that the road continued straight ahead.
It was Mr Kerslake's evidence that immediately before the accident he was riding with a Mr Keith Watson. Mr Watson was riding in front of him and there was another rider behind him whom Mr Kerslake knew only as Paul. Paul was travelling about five minutes behind Mr Kerslake and Mr Watson.
Mr Kerslake's evidence was that as he rode along the road his speed varied between 100 and 110 kilometres per hour. The road seemed to him well sign‑posted and he proceeded on that basis.
Along the road, Mr Kerslake had encountered a number of corners, all of which were not as sharp as the bend. These corners had been marked with signs showing a speed of 60 kph. It was his evidence that his immediate response to signs as he proceeded along the road had been to slow down immediately.
Mr Kerslake's evidence was that as he was travelling along the road behind Mr Watson he was riding at probably 100 kilometres per hour.
About 100 metres prior to the bend Mr Kerslake safely overtook Mr Watson.
Mr Kerslake described the approach to the bend in this way:
"And what speed were you doing as you were travelling along Jennapullin Road behind Mr Watson? ‑ Probably about 100 K's an hour while I was behind him.
And did you do anything in respect of Mr Watson? ‑ I overtook Mr Watson halfway down the straight.
Right, and how far back from the bend would you have been - as you know where the bend is now, how far back would? ‑ I would say about 100 metres prior to it I overtook him.
And did you see anything as you approached the bend ‑‑‑? ‑ No, not until the last second, not until I was on it or in it. As I went past the sign, the yellow diamond sign, which indicated that - like a dollar sign on it, that it was in the shadows, I didn't see it until I was right on top of it and I've seen it - by the time I've look back I was in the corner, it was too late. There was very, very little I could do because I had the decision straight away. I could see this - the road going straight ahead wasn't the road that I thought it was. It was actually gravel and a very sharp right-hand hook off to the right, which it seemed - it seemed to be new bitumen to me and there was some gravel on that corner, but I couldn't see that corner coming at all.
All right, so what did you do when you saw that the road curved to the right? ‑ I had a very short space of time to decide what I was supposed to do in that situation, whether, in fact, I was supposed to go straight ahead or to the right, but, obviously, with the new looking bitumen to the right I figured that was the way I was supposed to go, but whilst making that decision had very little time to do that and I had no time left to get around the bend, I was just too far into it.
So what were you doing with respect to your brakes? ‑ I was - I had my brakes on full capacity; front brake and rear.
All right, so what happened? ‑ I failed to wash the speed off enough to get down to the 60 K that I would have thought I'd need to get around it, and consequently I ended up in the gravel and lost control of the motorcycle."
As Mr Kerslake went past the sign he realised the road curved to the right. He applied the brakes of his motorcycle. The severity of the bend was not apparent to him until he had entered the bend when he then fully applied the brakes.
Mr Kerslake lost control of his motorcycle and remembered waking up in agony with pain over all of his body. He was taken to hospital by helicopter and remained in hospital for about three to four weeks.
Mr Kerslake accepted that in a statement made to police, he said as he was cornering he felt something hit the ground and throw the bike sideways. He explained that in cornering a motorcycle it is necessary to lean the motorcycle over. It was his evidence that he was trying very hard to get around the bend and that if some part of his motorcycle had hit the ground then, this was after he had braked and at about the time the motorcycle left the bitumen and went into the gravel. He accepted that the motorcycle he was riding was not designed for high speed cornering.
The DVD was obtained from a camera contained in Mr Watson's helmet. In the DVD, both motorcycles are visible. The recording commences shortly before Mr Kerslake overtakes Mr Watson's motorcycle. It shows the motorcycles of Mr Kerslake and Mr Watson leave the road. The description of the accident given by Mr Kerslake accords with what is depicted in the DVD.
Mr Kerslake's evidence in relation to the sign was that it was in the shade.
I accept that Mr Kerslake was a credible and generally reliable witness. The credibility and reliability of his evidence was not affected by cross‑examination. He frankly admitted that he had not lodged tax returns for a number of years. He did not seem to exaggerate the effects of the injuries upon him.

The pleadings and issues

The particulars of the Shire's negligence are directed to the way in which it discharged its responsibilities in relation to the road. The pleaded particulars relied upon at trial were primarily directed to the signage and warnings provided to road users travelling north as Mr Kerslake was on the date of accident. Mr Kerslake's case is essentially that the sign installed by the Shire was inadequate to convey the warning required in the approach to the bend. Further, that the Shire failed to install a sign regulating speed in the bend.
The particulars of negligence relied upon are that the Shire:
(i)failed to erect speed limit signs in the straight immediately to the south of the bend to fix a speed limit for vehicles about to enter the bend of more than 60 kilometres per hour;
(ii)failed to alert motorists to reduce their speed for a particular distance because of the presence of sharp curves in the road;
(iii)failed to use guideposts to serve as a visual cue for the shape of the road ahead adequately, sufficiently or at all;
(iv)failed to warn of the presence of the sharp right hand bend adequately, sufficiently or at all; and
(v)failed to provide a directive chevron to show the sudden change in road alignment at or near the commencement of the sharp right hand bend."
The Shire denies that it breached any duty of care which it owed to Mr Kerslake. Its case is that there was adequate warning and there were sufficient visual cues. It is pleaded that any injury, loss and damage were caused solely by Mr Kerslake's own negligence in failing to take proper care for his own safety. Reliance is placed upon Mr Kerslake riding at 110 KPH on a bend on a winding road which of itself is alleged to be inherently dangerous.
Statutory defences contained in s 5H and s 5Z of the CLA are relied upon by the Shire. Each section effectively precludes recovery of damages for harm in certain circumstances.
Section 5Z of the CLA provides immunity to a roads authority (as defined) in circumstances where harm arises from a failure of the authority to carry out roadwork. There are three issues in relation to s 5Z. First, whether to "carry out roadwork" includes the installation of signs. Secondly, whether the Shire's conduct constituted a "failure to carry out roadwork". Thirdly, whether the Shire had actual knowledge of the particular risk that caused the harm, in which case the section has no application.
Section 5H of the CLA precludes recovery of damages where the claimant is engaged in a dangerous recreational activity when the risk was obvious. The issues in relation to s 5H are whether the riding of a motorcycle was a dangerous recreational activity and whether the risk was obvious.
The Shire alleges that Mr Kerslake is guilty of contributory negligence in that he failed to take care of his own safety by:
(i)riding at 110 kph on a bend on a winding road;
(ii)riding in a speed and manner as alleged which was in all the circumstances inherently dangerous; and
(iii)ignoring earlier signage on the road indicating a curved "S" bend.

Expert evidence

Mr Kerslake and the Shire each adduced expert evidence. There was agreement that the assessment of the adequacy of signage and guideposts required a consideration of all of the features of the scene and the circumstances to determine the visual cues given to road users.

Geoffrey Colin Cocks

Mr Cocks was engaged by the solicitors for Mr Kerslake. He is a chartered professional engineer and a Fellow of Engineers Australia.
Mr Cocks has a Bachelor of Engineering (Hons) obtained in 1971 from the University of Western Australia. In 1975, he completed a Master of Science in Civil Engineering. He was employed for a number of years by the Main Roads Department and carried out road design, road construction, the assessment of existing roads and a fatal smash investigation. He has, in his employment as an engineer, carried out crash site investigations in a number of locations on behalf of the Main Roads Department, vehicle insurers and plaintiffs. He has had considerable experience in the construction, design and assessment of roads. It was his evidence that the Main Roads Department has established a system of qualification as a road safety auditor. To become registered as a road safety auditor requires completion of audits under supervision. Mr Cocks attended the course, but did not pursue registration.
The request made to Mr Cocks by Mr Kerslake's solicitors included a request to investigate the signage at the location of the accident and the nature and adequacy of the guideposts. Mr Cocks received photographs of the scene dated 20 November 2004, the recording of the crash taken from Mr Watson's helmet and photographs dated 16 September 2005.
Mr Cocks attended at the scene on 30 April 2008, took measurements and drove along the road. He drove at 85 km/h until he reached the bend, when he reduced speed to 50 km/h. It was his evidence that in driving along the road, the bend was not readily apparent from a driver's eye height until 60 metres from the tangent point.
Mr Cocks concluded that the distance between the guideposts on the outside of the corner was about 38 metres. The radius of the curve was estimated to be about 150 metres. This was based upon measurements he made on site and by scaling off an aerial photograph. When he attended the scene he saw a sign located approximately 58 metres south of the tangent point of the curve. It outlined the features of a winding road with a side junction and had an advisory speed warning sign below it on the same post.
Mr Cocks considered it was reasonable for the Shire to have elected to use a special sign combining the winding road, curve and side junction rather than two separate winding road and curve signs.
Mr Cocks provided a report dated 8 May 2008 as to findings and opinions. The report fully set out the investigations he undertook, the calculations he made and the material considered. It was a thorough, detailed and logical report.
In his report Mr Cocks stated that:
"8.3 Most Appropriate Road Signage for the Location
In my opinion, the critical safety issue at this location is the illusion caused by the track/driveway that Jennapullin Road continues in a straight line rather than turns. This illusion is created by a combination of factors including the line of trees along the driveway, a large tree on the left of the road with a guidepost that appears to be on the right side of the road but is on the left and the incorrect spacing of guideposts on the curve.
In my opinion, the most appropriate combination of signs (starting to the south of the curve) would have been:
(1)Winding road sign (W1‑5);
(2)Curve with side road junction (W2‑10(R)) with an Advisory Speed sign (W8‑2) of 60 km/h;
(3)Three Chevron signs (D4‑6) at the start of the curve and immediately past the driveway to show the direction of the curve and break the illusion caused by the driveway;
(4)Guideposts at 10 m spacing on the outside of the curve past the driveway.
Chevrons would normally be required on a curve of this radius. However there are special factors:
(1)The driveway causes an illusion that the road continues in a straight line;
(2)The seal width on the curve is less than two full lanes and a vehicle may have to negotiate the curve with one or more wheels on the gravel shoulder.
The use of chevrons in special circumstances is described in note 2 of Figure 3.6 of AS 1742/2‑1994.
8.5Appropriate Speed for the Curve
For a curve radius of 160 m, a super elevation of 0.055 (5.5%) the safe speed is estimated to be about 80 km/hr for a sealed pavement and about 50 km/h to 60 km/h for a gravel pavement.
In my opinion, the appropriate speed for the curve where the crash occurred is about 55 km/h. AS 1742.2 recommends the use of a ball tilt meter to establish safe speed which may give different results to the method used in this report. In my opinion the 60 km/h advisory speed now posted at this location is reasonable.
8.6Location for any Speed Restriction Sign
The relevant Australian Standard for Speed Restriction signs is AS 1742.4. In common with many local rural roads in Western Australia, Jennapullin Road has not been speed zoned. There are Speed Derestriction signs (Type R4‑2) at the start of Jennapullin Road near Clydesdale Road. This sign does not mean that there are no limits to the speed that a motorist can travel. Rather it means that the road is not speed zoned and the state wide speed limit of 110 km/h applies. The motorist must make his or her own decision about safe speed based on the prevailing road conditions.
For the crash site, it is more relevant to address the question of where the combined winding road and intersection sign should be placed. In the context of this site, the combined sign was a substitute for a curve sign. As 1742.2‑1994 recommend that warning sign location be based on the 85^th percentile approach speed. It is estimated that the 85% percentile speed along the tangent approaching the curve would be about 90 km/h. Based on Figure 3.8 of AS 1742.2‑1994, the Curve sign with Advisory Speed should be between 120 m and 250 m before the tangent point of the curve. The same distance is applicable to the combined winding road/side junction on curve sign used on Jennapullin Road.
The actual distance ahead of the tangent point of the combined sign at the time of the crash is estimated to be about 58 m; that is about one half of the minimum value and one third of the desirable value. This is based on analysis of the video (by slowing the video down) which suggests the sign in 2004 was in a similar position to the current position.
8.7Absence of Speed Restriction Sign at the Time of the Accident
As the curve on which the crash occurred is within a derestricted zone, no speed restriction sign is applicable.
The combined "winding road/junction on inside of curve" sign, carried an Advisory Speed sign (Type W8‑2) of 60 km/h in April 2008. The Advisory Speed Sign is not evident in photographs taken in 2004.
In my opinion and (sic) Advisory Speed sign could have provided additional information to the motorcyclist but would have needed to have been significantly further ahead of the tangent point of the curve, than it was in 2004, to be fully effective.
8.8Nature and Adequacy of Guideposts and Correct Spacing of Guideposts
The guideposts at the time of fieldwork were made of metal and painted or coated white. They carried reflectors, white on the right side of the road and red on the left. The spacing of the guideposts on the outside of the curve was about 38 m.
The recommended spacing of guideposts is a function of curve radius and is set out in Table 3.1 of AS 1742.2‑1994. For a curve radius between 100 m and 199 m, the recommended spacing is 10 m on the outside of the curve and 20 m on the inside of the curve. The Main Roads Western Australia guidelines are the same except that the guideposts are no longer recommended for the inside of curves. The Main Roads WA document also gives guidance on the spacing of guideposts at the transition from the tangent to the circular curve. Photograph 1 in this report shows high visibility jackets and a blue plastic drum placed 10 m intervals to show the correct spacing of guideposts.
The presence of the driveway at the start of the curve (Photograph 10) would interfere with guidepost spacing and leads to a requirement to use Chevrons at the start of the curve.
In my opinion the use of guideposts on the curve where the crash occurred was inadequate.
8.9Placement of the Combined "Winding Road/Side Junction" Sign in the Shadow of Trees
It is good maintenance practice to ensure that signs are not obstructed by branches and leaves of vegetation. There is no requirement to place signs out of the shadow of trees. Such a requirement would be impractical in forest areas and where roadside vegetation is being preserved for environmental reasons."

It was the evidence of Mr Cocks that the sign should have been a minimum of 60 metres to the south of its location at the date of accident. It was in his opinion too close to the bend. It was his opinion, that, the use of guideposts on the curve was inadequate. The spacing of the guideposts on the date of accident was 38 metres and should have been, in his opinion, 10 metres. The presence of the driveway created an illusion that the road went straight ahead, when in fact there was a curve.
Because of the nature of the road being a single lane allowance needed to made for oncoming vehicles. It was Mr Cocks' opinion that there were vertical curves in the road. A speed of 110 km/h was excessive for the environment. A speed of 85 km/h to 90 km/h was in his view appropriate for the straight section of the road. It was Mr Cocks' opinion that whilst chevrons were not compulsory in terms of the Australian Standard in this particular situation, he considered that the use of chevrons was warranted. The chevrons would be at the start of the curve.
I accept that Mr Cocks is a well qualified expert in the area of road design and construction, assessment of existing roads and accident investigation. I have no hesitation in accepting his evidence. He was in my view objective in his approach. He was prepared to make concessions. For example, he gave evidence as to a safe speed for the road which did not assist Mr Kerslake's case. He fully set out in his report and evidence the basis for the opinions which he expressed. The views which he expressed were cogent and logical.

John Maxwell Moylan

Mr Moylan is a driving instructor who for many years was a police officer. He has experience in accident investigation. He was called on behalf of the Shire.
It was Mr Moylan's evidence that he had viewed the DVD. It was his evidence that if a rear wheel of a motorbike locks up, it would usually be the case that a puff of rubber would come up. Having viewed the DVD he considered that the visible cloud which is seen on the DVD to come from Mr Kerslake's motorcycle was produced by a rear wheel lockup. Rear wheel lockup will cause the rear end of the vehicle to slide out towards the outside of the corner.
It was his evidence that the bottom of a Harley‑Davidson motorcycle is close to the ground and can contact the ground quite easily. He did not see on any bottom part of Mr Kerslake's motorcycle touch the road in the DVD.
It was his opinion that a speed of 110 kilometres per hour was too fast for the bend.

Michael Oswald Klyne

Mr Klyne is a qualified crash investigator with many years experience. He had conducted a number of training courses, some of which Mr Cocks had attended. He is an Accredited Senior Road Safety Auditor.
He was retained by the Shire to investigate the accident.
Mr Klyne provided a written statement dated 23 July 2008 in which he responded to Mr Cocks' report as follows:
"8.1 Use of a Winding Road/Side Junction on Curve Sign in lieu of a Curve Sign
I do not disagree with the opinion (expressed in Section 8.2 of the Coffey Report) that it was reasonable for the Shire to have elected to use a special sign combining the winding road, curve and side road junction sign for the complex situation that they faced rather than separate winding road and curve signs.
8.2Most appropriate Road Signage for the Location
While I do not disagree with the opinion (expressed in Section 8.3 of the Coffey Report) relating to the signs that should be erected at the site determined using AS 1742.2‑1994. It is significant to note that the recommendations contained in Australian Standard AS 1742.2‑1986 do not recommend the installation of Chevron Alignment Markers (D4‑6) on the curve. AS 1742.2‑1986, Figure 3.10 only recommends the use of advisory speed signs where the 85^th percentile approach speed is 85 km/h. This edition of AS 1742.2 was most likely the relevant Standard at the time when the road was re‑constructed.
I disagree that the illusion created by the track/driveway that Jennapullin Road continues in a straight line rather than turns. The fact that the guidepost located to the north of the driveway displays a red reflector which would indicate to the driver/rider of a motor vehicle that the travel path is to the right side of the guidepost. The gradients of the road and the driveway at the interface between the gravel driveway and the sealed road surface do not readily create a false forward delineation of the road (See Photograph No 3 in Attachment MK 2).
8.3Curve Radius, Appropriate Speed for the Curve, and Location for any Speed Restriction Sign, and Absence of Advisory Speed sign at the time of the Accident
I do not disagree with the findings and opinions expressed in Sections 8.4 to 8.7 inclusive of the Coffey Report.
8.4Nature and Adequacy of Guideposts and correct Spacing of Guideposts
I do not disagree with the determination of the guidepost spacing determined in accordance with the recommendations of AS 1742.2‑1994. It should be noted that Australian Standard AS 1742.2 – 'Manual of uniform traffic control devices – Part 2: Traffic control devices for general use' is only a guide. It should be noted that the Main Roads WA guidelines do not recommend the installation of guideposts on the inside of curves, which is inconsistent with the recommendations of AS 1742.2‑1994.
The strict adherence to the guidepost spacing may not be practical due to site conditions involving driveways, intersections or other road features. What is important is that there are sufficient guideposts installed on the edge of the road to provide adequate forward delineation of the road. While the guideposts installed on the curve are in the order of 27 metres (and above) spacing, they provide an indication of the forward delineation of the road.
8.5Placement of the Combined 'Winding Road/Side Road Junction' sign in the Shadow of Trees, whether the road had super elevation, nature and Appropriateness of the Gravel Shoulder on the Outside of the curve when the accident occurred
I do not disagree with the findings and opinions expressed in Sections 8.9 to 8.11 of the Coffey Report.
9.Conclusion
In assessing the factors contributing to the road crash, it should be acknowledged that the road environment factors account for 28% of the crashes of which 24% interact with human factors and 2% with vehicle factors. The deficiencies identified relate to the spacing of guideposts around the curve and the relative location of the 'Winding Road and Side Road Junction' sign to the tangent of the curve in the road.
In the guide to the treatment of sub-standard horizontal curves in AS 1742.2‑1986, there were no recommendations for the installation of Chevron Alignment Marker (D4‑6) around the curve. There was, however, the recommendation to install advisory speed signs in association with the curve warning sign.
It should be noted that Australian Standard AS 1742.2 – 'Manual of uniform traffic control devices – Part 2: Traffic control devices for general use' is only a guide and that Main Roads WA guidelines is inconsistent with the recommendations of AS 1742.2‑1994 in that it does not recommend the installation of guideposts on the inside of curves. The strict adherence to the guidepost spacing may not be practical due to site conditions involving driveways, intersections or other road features. What is important is that there are sufficient guideposts installed on the edge of the road to provide adequate forward delineation of the road.
Human factors attributed to crash causation account for 95% of which 25% interact with road environment factors and 1% with vehicle factors. Human factors generally investigated relate to the Blood Alcohol Content (BAC), vehicle speed in excess of the speed limit, driver familiarity with the road environment at the crash site and possible failure of one or both drivers (in the case of a multiple vehicle crash) to comply with the Road Traffic Code.
I agree with the conclusion reached by Coffey (Section 9) that the speed at which the motorcycle was travelling was a contributory factor leading to the crash."
I have set out the relevant content verbatim of the reports of Mr Cocks and Mr Klyne. This is because of the issues which arose in the course of Mr Klyne's oral evidence.
It was Mr Klyne's evidence that he had read the report of Mr Cocks. He had looked at the plan prepared by Mr Cocks and commented that the plan was generally in accordance with what was on the ground. He could not see anything wrong with the calculations made by Mr Cocks.
Mr Cocks' opinion was the sign should have been 120 to 250 metres from the tangent of the curve. The reference to a distance of between 120 to 250 metres is contained in par 8.6 of the report of Mr Cocks. Mr Klyne in his statement had said he did not disagree with the findings and opinions expressed by Mr Cocks (see par 8.3 of Mr Klyne's statement above).
It was Mr Klyne's evidence that the 1994 version of AS 1742.2 provided that for speeds greater than 75 kilometres per hour the sign should be located between 80 and 120 metres from the tangent of the curve. This was a guideline and not a mandatory figure. In cross‑examination Mr Klyne said that he was not saying that Mr Cocks was incorrect. He said that as he did agree with the distance of 120 metres he had said in his statement that he did not agree with par 8.6 of Mr Cocks' report.
Mr Klyne gave evidence in re‑examination that in referring to a distance of between 120 to 250 metres before the tangent point Mr Cocks might have misquoted the Standard. It was not put to Mr Cocks in cross‑examination that he misquoted the Standard. This part of Mr Klyne's evidence was in my view unsatisfactory and caused me to doubt the reliability of his evidence.
When he attended on site Mr Klyne measured the location of the sign by reference to the guidepost located next to the gravel road. He measured the distance between the guidepost and the sign as 96.7 metres. In his opinion it was appropriate to measure from the guidepost. He said that was because drivers look for visual cues. As the guidepost had a red reflector it would indicate that it was on the left side of the road. The guidepost was on his evidence easier to find than the tangent of the bend.
In the course of his evidence Mr Klyne said that the placement of the sign should be measured from the single guidepost the first to the north of the gravel driveway rather than from the tangent to the curve. This did not accord with the Australian Standards and his explanation in relation to the course he adopted was unsatisfactory.
Mr Klyne was asked in his evidence whether it was feasible to move the sign in place on the date of accident. His unhelpful reply was to the effect "Did that mean you had to cut all the trees down?".
It was Mr Klyne's evidence that the red reflector on the guidepost situated to the east of the gravel road had the effect of providing a visual cue to motorists approaching from a southerly direction. It was his evidence that guideposts with red reflectors are located on the left side of the road. There is no issue in relation to that view.
It was Mr Klyne's evidence in relation to the location of a sign that there was a relevant time period of 2½ seconds. By use of the time period and applying it to a certain speed, a distance for location of the sign could be calculated. The time period enabled recognition and reaction time. It was Mr Klyne's evidence that it took the average motorist about two seconds to take the necessary action after observing a sign in urban areas. In rural areas, a time of 2½ seconds was in his view appropriate. In two seconds, a vehicle travelling at 110 KPH would travel about 61 metres. In 2½ seconds, the distance would be approximately 76 metres. As I have said, the sign was 58 metres from the curve.
It was Mr Klyne's evidence that a sign should not be placed more than seven seconds of travel time before the relevant risk feature because motorists would forget it.
I preferred the evidence of Mr Cocks to that of Mr Klyne.
Mr Klyne had had an opportunity to consider Mr Cocks' report before trial. He went to the scene, assessed the location and considered the photographs and other material. After doing so, he prepared his statement. His statement in parts expresses very clearly situations where he disagrees with the view of Mr Cocks. In his statement, he placed emphasis, as I have highlighted above, upon certain parts of Mr Cocks' report with which he disagreed. In his evidence, Mr Klyne sought to qualify some parts of his statement in which he stated that he did not disagree with Mr Cocks' report. His statement was entirely unqualified. This caused me to doubt the reliability of the views expressed by Mr Klyne. Mr Cocks was in my view far more impressive in the way in which he gave his evidence. I consider his evidence and the views he expressed to be more reliable in the circumstances.

Other evidence as to liability

Ronald Van Welie

Mr Van Welie has been employed by the Shire since October 1992 and is the manager of Works and Services and gave evidence on its behalf. Mr Van Welie first became aware of the accident approximately one or two months after it occurred. He was a truthful and reliable witness.
In 1992, in the course of his employment he saw the sign which was in place at the date of the accident. The sign was there to warn road users of the risk of approaching the bend.
It was his evidence that he caused a search to be done for documentation relating to any audit of the road which had occurred prior to the accident. There was no audit for the signage on the bend where the accident had occurred.
The search did not locate any documentation in relation to how and why the sign had been erected. He gave evidence that in the 2003/2004 year the Shire had done work on the road.
Mr Van Welie had not carried out any investigations in relation to prior accidents at the scene. He had not caused a search to be made with Main Roads concerning any prior accidents.
Mr Van Welie in his evidence referred to the Black Spot Programme which was a programme which received data provided by the Police Department to the Crash Division of the Main Roads Department as to the occurrence of accidents in particular locations. He was asked in cross‑examination about the Black Spot Programme and said:
"So you can't even say whether that accurately records how many accidents there were on Jennapullin Road at that intersection – at that curve? ‑ Reported ones, no, you can't actually say."
There is no evidence to show that any accidents had occurred at the accident scene which were reported in the Black Spot Programme.
It was Mr Van Welie's evidence that in 2004 there were monthly Shire Finance and Works Committee Meetings to which he would submit a report. On a monthly basis signage relevant would be brought to the attention of the council of the Shire.
It was his evidence that he and the Shire were aware at the date of accident of the existence of the requirements of the Australian Standard concerning the spacing between guideposts and was so aware as at the date of accident. He and the Shire were aware of the need to place signs at an appropriate distance from the bend. He gave evidence that the Shire and its responsible officers knew that a sign was needed for the bend.
It was Mr Van Welie's evidence that the total cost of installing a road sign was approximately $250. The cost of installing a guidepost was approximately $40. The cost of a chevron, including installation, would be approximately $450.

Duty of Care

In Brodie v Singleton Shire Council (2001) 206 CLR 512, Gaudron, McHugh and Gummow JJ considered the duty of care of an authority having statutory power and said at p 577:
"Authorities having statutory powers of the nature of those conferred by the [Local Government] Act upon the present respondents to design or construct roads, or carry out works or repairs upon them, are obliged to take reasonable care that their exercise of or failure to exercise those powers does not create a foreseeable risk of harm to a class of persons (road users) which includes the plaintiff. Where the state of a roadway, whether from design, construction, works or non‑repair, poses a risk to that class of persons, then, to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk. If the risk be unknown to the authority or latent and only discoverable by inspection, then to discharge its duty of care an authority having power to inspect is obliged to take reasonable steps to ascertain the existence of latent dangers which might reasonably be suspected to exist."
Their Honours in referring to the response of a highway authority said (at pp 577 – 578):
"The perception of the response by the authority calls for, to adapt the statement by Mason J in Wyong Shire Council v Shirt ((1980) 146 CLR 40 at 47 ‑ 48), a consideration of various matters; in particular, the magnitude of the risk and the degree of probability that it will occur, the expense, difficulty and inconvenience to the authority in taking the steps described above to alleviate the danger, and any other competing or conflicting responsibility or commitments of the authority. The duty does not extend to ensuring the safety of road users in all circumstances [footnote omitted]. In the application of principle, much thus will turn upon the facts and circumstances disclosed by the evidence in each particular case."
In Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330 Gummow J (with whom Heydon J agreed) considered the scope of the duty as enunciated by the majority in Brodie (supra) and said:
"The result of that case is that a road authority is obliged to exercise reasonable care so that the road is safe 'for users exercising reasonable care for their own safety'. The expression of the scope of the RTA's duty of care in those terms has long antecedents in the law relating to occupiers' liability. In Indermaur v Dames, giving the judgment of the Court of Common Pleas, Willes J held that:
'We consider it settled law, that [a visitor], using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger'.
The modern form of that principle has been frequently affirmed in recent times, both with regard to occupiers and roads authorities. Of course, the weight to be given to an expectation that potential plaintiffs will exercise reasonable care for their own safety is a general matter in the assessment of breach in every case, but in the present case it was also a specific element contained, as a matter of law, in the scope of the RTA's duty of care.
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 Councilv 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'."
I accept that the Shire had a duty to exercise reasonable care so that the road was safe for users exercising reasonable care for their own safety. The duty is not unqualified and does not require the road be safe in all circumstances: Shire of Toodyay v Walton [2007] WASCA 76 at [67] per Pullin JA.

Breach of duty

The primary issue is whether the Shire breached its duty of care to Mr Kerslake.

The Shire had responsibility for the installation, repair and maintenance of signs on the road.
At Works and Finance Committee meetings of the Shire prior to the accident, signs were a permanent agenda item. The Shire knew that a failure to erect signs would present a risk to motorists approaching the bend and that there was a requirement for compliance with the Australian Standards.
As at the date of accident, the Shire had installed the sign under trees about 58 metres from the tangent point to the bend. It had been in that location since at least 1995.
The sign was a "special use" sign combining the winding road, curve and side junction sign. It did not give any indication of a safe speed at which road users could negotiate the bend.
The area where the accident occurred was a derestricted zone. There was a derestriction sign about 1.5 kilometres south of the accident scene. The effect of the sign was that it was permissible to a ride at a speed up to 110 km/h thereafter the speed depended upon the circumstances.
The evidence establishes that the bend could not be safely negotiated at a speed in excess of 60 KPH. In June 2005, a speed advisory sign was attached below the sign which referred to a speed of "60".
When driving along the road, the trees on either side of the gravel road and a tree on the side of the road and the first guidepost to the north of the gravel created an illusion for Mr Kerslake that the road continued in a straight line rather than a bend. This was the evidence of Mr Kerslake and Mr Cocks.
Mr Kerslake was a very experienced motorcyclist. On the day of the accident he was riding with Mr Watson on the road. The view he had was of a straight road. He safely overtook Mr Watson and approached the bend at about 110 km/h. If there had been an advisory speed sign which was located an appropriate distance from the bend Mr Kerslake would have slowed down and been able to negotiate the bend. Mr Kerslake did not appreciate the nature of the bend until after he had passed the sign. When Mr Kerslake appreciated the existence of the bend he applied the brakes of his motorcycle. This is shown on the DVD.
Mr Kerslake lost control of the motorcycle. He was unable to negotiate the bend. It left the bitumen and went into the gravel. The DVD shows Mr Watson, the rider following Mr Kerslake, losing control on the bend.
The sign was too close to the bend. The notice to users it provided of the risk posed by the bend was inadequate. It gave inadequate notice to road users.
In considering the issue of liability for harm s 5B of the CLA identifies a number of general principles and provides:
"General principles
(1)A person is not liable for harm caused by that person's fault 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);
(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."
In Waverley Council v Ferreira [2005] NSWCA 418 Ipp JA determined that s 5B of the Civil Liability Act 2002 (NSW), which is in identical terms to s 5B of the CLA, required an identification of what a reasonable person in the position of the defendant would have done by way of response to a reasonably foreseeable risk. Ipp JA considered that what was required was an examination and determination based upon the judgment of Mason J in Wyong Shire Council v Shirt (1979 ‑ 80) 146 CLR 40. I consider that that is the approach which should be adopted in relation to s 5B of the CLA.
In Wyong (supra), Mason J at p 47 enunciated the test for determining whether there had been a breach of a duty of care in the following way:
"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."
In Dederer, Gummow J (at p 338) enunciated the following principles in relation to the approach to be adapted to the resolution of an action in negligence:
1.The proper resolution of the action is dependent upon the existence and scope of the relevant duty of care.
2.A duty of care imposes an obligation to exercise reasonable care. There is no duty to prevent potentially harmful conduct.
3.The assessment of breach depends on the correct identification of the risk of injury.
4.Breach must be assessed prospectively not retrospectively.
5.The analysis of breach is to be conducted in the manner described by Mason J in Wyong Shire Council v Shirt.
An advisory speed sign located between 120 metres and 250 metres from the tangent point of the curve would have provided additional information to road users. The bend did present a complex situation which the Shire clearly considered before deciding to install the sign. It was a combination sign.
Mr Cocks gave evidence that the most appropriate combination of signs would have been a winding road sign, a curve with side road junction and advisory speed sign of 60 km/h and three chevron signs at the start of the curve. I accept as I have said Mr Cocks' evidence and opinions. The use of chevrons was appropriate in the circumstances. It was the evidence of Mr Cocks that the appropriate speed for the bend was about 55 km/h. Mr Klyne did not disagree. I accept that the Shire should reasonably have installed a sign between 120 metres and 250 metres before the tangent point. The sign should have had attached to it a speed sign of "60 km/h" as well as the winding road sign and a curve sign with road junction. This sign would have given an indication to road users of the risk and danger posed by the bend. The location of the sign at the date of accident about 58 metres south of the tangent point was about one‑half of the minimum distance as determined by Mr Cocks. In installing the sign as it did the Shire breached its duty of care to road users, including Mr Kerslake.
I accept the evidence of Mr Cocks that guideposts were required at a spacing of 10 metres on the outside of the bend and should have been installed in that way by the Shire. The guidepost spacing on the bend was inadequate and did not comply with Australian Standards. Whilst compliance with the Standard or even common practice does not solely or primarily determine whether negligence exists or not, the evidence is relevant and may help in determining what the exercise of proper care and skill requires to be done: Lanza v Codemo [2001] NSWSC 845 at [169]. A guidepost could not practicably have been installed in the driveway, and in that circumstance chevrons as indicated by Mr Cocks should have been installed. The chevrons should have been at the beginning of the curve. Chevrons and guideposts would have provided additional information to users. The Shire breached its duty of care in not installing chevrons. In placing the guideposts in the way it did the Shire breached its duty of care.
The risk presented by the right-hand bend was not obvious. It was concealed when approaching from a distance, as road users necessarily would. The inadequate guideposts and the characteristics of the sign, including its placement and the fact there was no "60" speed sign at all, created a risk to road users. The risk was foreseeable.
Section 5B(1) of the CLA requires an examination as to whether the risk was foreseeable. In terms of the section, that is, was it a risk of which the Shire knew or ought to have known.
I am satisfied that the Shire knew of the risk to users of the road posed by an unmarked bend. For that reason, the Shire had installed the sign which it did.
Serious injury could be occasioned to a road user who failed to take the bend. The risk was not insignificant. The road was used by motorists. Foreseeability was not in issue. Mason J in Wyong (supra) determined that a foreseeable risk was a risk which was not "far‑fetched or fanciful". I consider that even if the phrase a "not insignificant risk" requires an additional factor to be proven beyond the requirement that the risk be not far‑fetched or fanciful, I am satisfied that the risk was not insignificant.
The sign which had been installed by the Shire at the date of accident provided no indication whatever of the speed at which the bend could safely be negotiated. The Shire knew that the bend was a risk and therefore installed the sign. The road had an unrestricted speed limit and could not be safely negotiated at a speed in excess of 60 km/h.
A speed warning sign advising as to the speed at which the bend could be safely negotiated was required. The sign installed did not warn road users of the need to reduce speed to negotiate the bend.
Section 5B(1)(c) and s 5B(2) of the CLA requires Mr Kerslake to establish that a reasonable person in the Shire's position would have taken those precautions. I am satisfied that a reasonable person in the position of the Shire would have taken precautions. A reasonable person would have taken the steps identified in the particulars of negligence.
There was a significant probability that harm would occur. The consequences were significant harm.
The burden of taking precautions to avoid the risk of harm was light. The Shire did not adduce evidence as to any conflicting responsibility or financial commitment. It had a budget for roads and signage. The expense and inconvenience of eliminating the risk was minimal.
The social utility of the activity that creates the risk of harm is irrelevant in this case.
In my view the Shire has breached the duty of care it owed to Mr Kerslake. I am satisfied that each of the pleaded particulars of negligence has been made out.

Causation

Mr Kerslake must establish that the Shire's breach was a cause of the harm he suffered.
In Shire of Toodyay v Walton [2008] WASCA 76 Buss JA, explained (at [98]) the relevant causation principles as follows:
"A highway authority will be liable in negligence only if the damage which the plaintiff has suffered was caused by the authority's negligent act or omission. It is not necessary that the authority's negligent act or omission be the sole cause of the plaintiff's damage. Causation will be established if the relevant act or omission materially contributed to the damage. See March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 per Mason CJ at 514. A court may infer causation by reference to the objective facts and probabilities. Direct evidence is not essential: see Rosenberg v Percival (2001) 205 CLR 434 per McHugh J at 449 [44]."
The CLA provides in s 5C that:
"(1)A determination that the fault of a person (the "tortfeasor") caused particular harm comprises the following elements —
(a)that the fault was a necessary condition of the occurrence of the harm (factual causation); and
(b)that it is appropriate for the scope of the tortfeasor's liability to extend to the harm so caused (scope of liability).
(2)In determining in an appropriate case, in accordance with established principles, whether a fault that cannot be established as a necessary condition of the occurrence of harm should be taken to establish factual causation, the court is to consider (amongst other relevant things) —
(a)whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor; and
(b)whether and why the harm should be left to lie where it fell.
(3)If it is relevant to the determination of factual causation to determine what the person who suffered harm (the injured person) would have done if the tortfeasor had not been at fault —
(a)subject to paragraph (b), the matter is to be determined by considering what the injured person would have done if the tortfeasor had not been at fault; and
(b)evidence of the injured person as to what he or she would have done if the tortfeasor had not been at fault is inadmissible.
(4)For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor."
In Ruddock v Taylor [2003] NSWCA 262 at [89] Ipp JA held that the principles embodied in s 5D of the Civil Liability Act 2002 (NSW) in regard to causation are in accord with the common law. That section is in the same terms as s 5C(1) of the CLA save that it refers to "negligence", whereas the CLA refers to "the fault of a person".
Whilst the action proceeded primarily in relation to breach, the Shire did not concede causation. The accident occurred because of the failure of the Shire to warn Mr Kerslake of the nature of the sharp right‑hand curve.
The Shire failed to provide an adequate speed advisory and warning sign at a sufficient distance from the bend. A speed advisory sign which indicated that a road user's speed should be reduced from 110 km/h to 60 km/h could reasonably have been expected to have a significant effect upon a road user. A sign of that kind would have indicated to motorists that a significant reduction of speed was required. I am satisfied that Mr Kerslake would have responded to the sign and slowed down.
The Shire did not install guideposts at an appropriate spacing and it did not install chevrons at the beginning of the driveway. The sign installed was inadequate. I am satisfied that Mr Kerslake would have responded to the chevrons and to the guideposts.
I am satisfied that the breaches by the Shire caused or materially contributed to the accident and the damage suffered by Mr Kerslake.

Contributory negligence

In Commissioner of Railways (Qld) v Ruprecht (1979) 142 CLR 563 Mason J explained (at 570 – 571) contributory negligence in the following way:
"Contributory negligence differs from negligence. There is no duty of care owed to another person …; and contributory negligence involves conduct which exposes the actor to the risk of injury without necessarily exposing others to risk. Nonetheless, it has been repeatedly asserted that the standard of care in contributory negligence, like the standard of care in negligence, depends on foreseeability and is that of the reasonable and prudent man, so that a defendant is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury (Sungravure Pty Ltd v Meani (1964) 110 CLR 37)."
Section 5K of the CLA provides:
"(1)The principles that are applicable in determining whether a person is liable for harm caused by the fault of the person also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
(2)For that purpose —
(a)the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and
(b)the matter is to be determined on the basis of what that person knew or ought to have known at the time."
In my view, common law principles in relation to contributory negligence are applicable to a claim to which the CLA applies.
It was submitted that Mr Kerslake was guilty of contributory negligence in:
(1)riding at a speed (110 KPH) and manner which was in all the circumstances inherently dangerous; and
(2)ignoring earlier signage on the road indicating a curved "S" bend.
Mr Kerslake approached the bend at a speed of between 100 and 110 kilometres per hour. The area where the accident occurred was a derestricted speed zone. As Mr Cocks observed, this did not mean there was no limit to a motorist's speed. The motorist needs to make a decision as to a safe speed in the circumstances. Mr Kerslake had never driven on the road before and was an experienced motorcyclist. The location of the sign gave no adequate warning to Mr Kerslake that it was necessary to reduce speed to be able to successfully negotiate the bend. Mr Kerslake did not appreciate the nature of the bend until after he had passed the sign. The DVD shows Mr Watson, the rider following Mr Kerslake, also losing control on the bend.
I am satisfied that the speed at which Mr Kerslake was riding his motorcycle was in all the circumstances excessive and that speed was a contributing factor in causing the accident. Mr Cocks when investigating the accident drove on the road in a car. He felt uncomfortable travelling at more than 80 km/h to 90 km/h approaching the bend. Mr Moylan's evidence was that it would require a highly skilled motorcyclist (not on a Harley‑Davidson) to successfully navigate the bend at speed. Mr Kerslake drove too fast in the circumstances.
I am satisfied that the Shire has established contributory negligence on the part of Mr Kerslake.
In Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492, the Court (Gibbs CJ, Mason, Wilson, Brennan and Deane JJ) stated (at 494) that in apportioning responsibility between plaintiff and defendant the following approach to such a task ought be adopted:
"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 of both culpability, i.e. of the degree of departure from the standard of care of the reasonable man (Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stanley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42 – 49 and Broadhurst v Millman [1976] VR 208 at 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 involve din 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."
After due consideration of my findings and all the circumstances, including the culpability of each, the respective breaches of duty and the importance and significance of such breaches, I consider a just apportionment of responsibility between the parties is one where Mr Kerslake's damages are reduced by 25 per cent from what he would otherwise have been entitled.

Section 5Z of the CLA

Brodie (supra) determined that the liability in negligence of a highway authority was governed by common law principles. The distinction between misfeasance and nonfeasance disappeared. The CLA came into force after the decision.

Section 5Z of the CLA provides immunity from action to a road authority in certain circumstances and is in the following terms:
"(1)In this section —
carry out road work means carry out any activity in connection with the construction, erection, installation, maintenance, inspection, repair, removal or replacement of a road;
road has the meaning given to that term in the Main Roads Act 1930, s 6;
roads authority, in relation to a road, means a public body or officer whose functions include carrying out road work on that road.
(2)A roads authority is not liable in proceedings to which this Part applies for harm arising from a failure of the authority to carry out road work, or to consider carrying out road work, unless at the time of the failure the authority had actual knowledge of the particular risk that caused the harm.
(3)…"
The first question is whether road work would include work done in relation to signage, guideposts and chevrons. A road is defined in the CLA by reference to definition of road contained in the Main Roads Act 1930 (WA) ("the MRA").
The long title to the MRA is that it is an Act to consolidate and amend the law relating to and making provision for the construction, maintenance, and supervision of highways, main and secondary roads, and other roads, the control of access to roads and for other relative purposes.
Section 6 of the MRA defines a road to mean:
"Any thoroughfare, highway or road that the public is entitled to use and any part thereof, and all bridges (including any bridge over or under which a road passes), viaducts, tunnels, culverts, grids, approaches and other things appurtenant thereto or used in connection with the road."
Section 6 of the MRA provides that "road construction" includes:
"(a)the improvement and reconstruction of roads and, for that purpose, the acquisition of land, the demolition of buildings and the taking or defending of legal proceedings;
(b)the purchase and maintenance of plant, and the supply of labour and materials, for road construction;
(c)the administration of road construction, including planning, research, investigation, survey and design; and
(d)the maintenance of roads and the provision and maintenance of street lights and traffic lights and any equipment necessary for or incidental to the proper management of a road."
The definition of road construction includes the provision and maintenance of streetlights and traffic lights. The authorisation to erect signs by the Commissioner of Main Roads is derived from the Road Traffic Code 2000 and its predecessor the Road Traffic Code 1995.
The definition of road contained in s 6 of the MRA should be interpreted on the basis that the general words used of "and other things appurtenant thereto or used in connection with the road" are limited by the preceding specific words. The specific words relate to things which road users travel over, under, across or through. A sign, chevron or guidepost is a visual aid and of quite a different character and not within the definition of road.
In the circumstances, I am not satisfied that s 5Z of the CLA has any application in this case.
Section 5Z of the CLA applies in circumstances where there has been a failure of the authority to carry out roadwork. The conduct of the Shire in installing the sign where it did without a speed warning and the spacing of the guideposts were acts of misfeasance: McIntyre v Ridley District Council (1991) 56 SASR 343. Section 5Z has no application.
The immunity conferred upon a road authority by s 5Z is inoperative in circumstances where, at the time of the failure, the authority had actual knowledge of the particular risk that caused the harm. The Shire had a system in relation to roadwork as described by Mr Van Welie. It included reports and monthly meetings where signage and roads were discussed. A finding of actual knowledge can be based on inference, rather than direct evidence: Leichhardt Council v Serratore [2005] NSWCA 406 at [12] ‑ [15]. The Shire, when it installed the sign, directed its mind through its servants and agents to the risk. I am satisfied that when the Shire installed the sign it did so because of its knowledge of the particular risk constituted by the inadequately marked bend.
Mr Van Welie made it clear in his evidence that signs were a matter regularly considered by the Shire. Mr Kerslake suffered injury by reason of a risk actually known at the date of the accident. This was the evidence of Mr Van Welie.
For all of the above reasons s 5Z of the CLA has no application.

Dangerous recreational activity

Section 5H of the CLA provides that a person is not liable for harm caused by the person's fault suffered by another person while the person is engaged in a dangerous recreational activity if the harm is the result of the occurrence of something that is an obvious risk of that activity.
The activity in which Mr Kerslake was engaged was for enjoyment, relaxation or leisure and was a recreational activity (s 5E of the CLA).
To be a dangerous recreational activity, it must involve a significant risk of harm (s 5E of the CLA). The first issue is whether the activity of motorcycle riding did involve such a risk.
In Fallas v Mourlas (2006) 65 NSWLR 418, the Court of Appeal considered a claim by a person who was accidentally shot on a hunting trip. The defendant sought, at trial, to rely upon the New South Wales equivalent of s 5H of the CLA.
The court was required to determine whether the activity was "dangerous". The following principles were outlined by Ipp JA:
1.The test as to whether a recreational activity is "dangerous" is objective.
2.The word "significant", in the expression "significant risk of physical harm", lays down a standard lying somewhere between a trivial risk and a risk likely to materialise.
3.A significant risk that converts a recreational activity into a dangerous recreational activity may be an entirely different risk from the risk (which may be obvious or not) that materialises. Thus, s 5L may be held to apply where the significant risk (converting a recreational activity into a dangerous one) differs from the obvious risk that materialises.
4.The question of whether a particular activity may be dangerous should be determined by reference to the particular activities engaged in by the plaintiff at the relevant time and to the actual circumstances giving rise to the harm. This could require segmenting the particular activities the plaintiff was engaged in.
In the circumstances of this case, Mr Kerslake was riding a motorcycle on a country road at about 3 pm. The road was clear and the weather was fine on a clear spring day. The road was derestricted and Mr Kerslake was riding at a speed less than the maximum allowable. He was complying with all road signs. There was nothing in his conduct or those with whom he was riding to suggest that the activity was dangerous. The circumstance giving rise to the harm suffered by Mr Kerslake was that he came off his motorcycle after attempting to ride a bend which was inadequately marked.
In all the circumstances I am not satisfied that the riding of the motorcycle was "dangerous". It did not involve a significant risk of harm.
The immunity provided by s 5H of the CLA is inapplicable in circumstances where the harm is suffered as a result of the occurrence if something that is an obvious risk of the activity.
Section 5F of the CLA provides that an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. Obvious risks include risks that are patent or a matter of common knowledge. A risk of something occurring can be an obvious risk even though it has a low probability of occurring. A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.
In Fallas (supra) the court was required to consider whether the risk that materialised was obvious. The court considered the definition of "obvious risk" contained in s 5L of the New South Wales Civil Liability Act 2002. That section is in similar terms to s 5F of the CLA.
Ipp and Basten JJA considered that the risk that materialised was not an obvious risk. Ipp JA considered that in cases where the obvious risk is of being harmed by the conduct of a person, for s 5L to become relevant the obvious risk must at least be of negligent conduct. Section 5L, therefore, may involve a plaintiff in certain circumstances having to accept the risk of another person being negligent. The risk of a person being negligent in certain circumstances might be obvious, but in the same circumstances the risk of a person being grossly negligent might not be obvious.
I am satisfied the risk in all the circumstances in this case is not one that would have been obvious for a reasonable person in the position of Mr Kerslake. I have outlined the features of the scene and the circumstances of the accident.
For the above reasons, I do not consider that s 5H of the CLA has any application.

The medical evidence

The medical evidence adduced comprised reports of medical practitioners tendered by consent.
Mr Benjamin Kimberley is an orthopaedic surgeon and was primarily responsible for the care and management of Mr Kerslake's accident related injuries.
Mr Kimberley provided a report dated 6 February 2007 in which he noted that Mr Kerslake had been admitted to Royal Perth Hospital and thereafter transferred to him for care and management of his injuries. Mr Kerslake attended upon him for review and treatment between 12 November 2004 to 10 August 2006.
He noted the main injuries were the injury to the left lower limb and the left shoulder region. The permanent disabilities resulting from the injuries included a 1‑centimetre shortening of the left tibia as compared to the right side. The leg shortening has lead to soreness in the back. The left lower limb fracture was severe and required surgical intervention. This included internal fixation and the application of an external fixator on the tibia which was in place for several months.
There was also an undisplaced fracture to the left clavicle which required surgery involving the fixing of a plate and screws in December 2005 and a further procedure in April 2006 to remove the plate.
Mr Kimberley opined in his report that Mr Kerslake was unlikely to be able to return to his pre‑accident employment. His prognosis was that further surgical treatment may be required in relation to the left ankle in the form of an ankle replacement and/or fusion. He opined there would be further difficulties with the left knee and shoulder. It was his view that the severity of the injuries had lead to a long rehabilitation period and multiple procedures.
Mr Kimberley reviewed Mr Kerslake on 12 May 2008 and provided a report dated 22 August 2008. In that report, he noted findings of left shoulder stiffness, and pain and scarring over the left shoulder. In relation to the left lower limb, he noted scarring from the surgery and stiffness and pain within the ankle. There was also left knee pain, stiffness and a persisting limp.
On 12 May 2008, there was no major change in Mr Kerslake's condition from when Mr Kimberley had last reviewed him on 6 February 2007. Mr Kimberley noted that Mr Kerslake was unfit for work. It was his view that he may be fit for a more sedentary occupation than the business he had carried on which required moderate physical activity.
Insofar as future treatment was concerned Mr Kimberley opined that there was a possibility of a fusion of the left ankle joint and surgery on the left shoulder. The cost of each procedure would be in the order of $7,000 to $10,000.
It was the view of Mr Kimberley that Mr Kerslake has ongoing permanent disability. The general prognosis so far as the left ankle is concerned was not in his view great and surgery at some stage, perhaps within five years, would be required. The prognosis in relation to the left shoulder was that there was a chance of surgery being required within 10 – 20 years. Mr Kimberley considered it would be surprising if the left shoulder injury caused significant difficulty.
Mr Kerslake was reviewed by Mr John Rosenthal, a physician practising rehabilitation medicine. He noted a history of marijuana and amphetamine usage which had required hospitalisation. Mr Rosenthal, in his report dated 5 May 2008, opined that Mr Kerslake will probably regain a capacity for sedentary work, though his endurance in terms of number of hours work would be subject to work trials and other considerations. He noted that it would also be necessary to address the ongoing use of alcohol and marijuana. His prognosis was of further problems involving the left ankle joint and possibly the knee joint.
Mr Kerslake was reviewed on 7 and 15 May 2008 by Mr Desmond Williams, specialist orthopaedic surgeon. In his report dated 30 June 2008 Mr Williams outlined what he described as severe injuries and noted problems of pain in the left leg, shin and left ankle. There was swelling in the left ankle. There would be in his view a development of arthritis in the left ankle which will progress to being significant within two to five years. As to work capacity, he concluded that Mr Kerslake was limited to light sedentary desk or bench work and had only a part‑time capacity.
Mr Kerslake was reviewed on 25 October 2007 by Mr Alan Home, consultant in occupational medicine, who provided a report dated 7 November 2007. In his report, he noted that Mr Kerslake had significant traumatic injuries to his left shoulder and that he had sustained a comminuted closed fracture of the left tibia and fibula.
Mr Home noted the shortening of the left tibia and considered there was marked post-traumatic stiffness at the left ankle. There was a significant risk of the development of post-traumatic degenerative change. Further, surgery may in his view be required of the left ankle.
Mr Home was of the view that Mr Kerslake will be largely restricted to sedentary or semi‑sedentary forms of employment. He considered he would be able to perform full‑time sedentary processing work and could work in real estate sales or as a property manager. It was the view of Mr Home that the use by Mr Kerslake of "recreational drugs of addiction" was a concern and this may cause him difficulty with attendance and perseverance at work tasks. The left shoulder injury, whilst reasonably restricting Mr Kerslake in heavy manual handling, would not preclude him from sedentary, or predominantly sedentary, clerical, or light manual processing work.

Damages

Loss of amenities

I am satisfied that in the accident Mr Kerslake suffered a comminuted closed fracture of the left tibia and fibula, a fractured metatarsal, an undisplaced fracture of the left clavicle and fractures of the third and fourth ribs. The injuries are particularised in the report from Royal Perth Hospital dated 17 May 2007 and confirmed by the treating specialists Mr Kimberley, Mr Rosenthal and Mr Home. The medical evidence supports the conclusion that Mr Kerslake's injuries were serious.
I am satisfied that Mr Kerslake suffered significant and severe injuries in the accident. He has had to undergo extensive treatment including five surgical procedures and physiotherapy. He was hospitalised from the date of accident to 9 November 2004 and was re‑admitted because of an infection between 11 November 2004 and 16 November 2004. During this period he was prescribed antibiotics. His left leg was in a plaster for five months.
It was the evidence of Mr Kerslake that he suffered excruciating pain in the left leg and ankle and that it continues. He has limited movement in the left ankle and it is subject to swelling. Mr Kerslake has residual disability in relation to the left knee, the left ankle lacks dorsiflexion and plantar flexion, and there is decreased sensation in the foot.
Mr Kerslake has been unable to ride motorcycles and engage in handyman activities which he enjoyed before the accident.
He has been unable to return to work since the accident.
Mr Kerslake has surgical scarring and is left with an ongoing permanent disability in the left lower limb. There is a prospect that he will require further operative procedures to be performed on his left ankle and shoulder. The shortening of the left leg requires a heel build up and this has contributed to lower back problems.
Mr Kerslake and the Shire were represented at trial by competent and experienced counsel. Each made closing submissions as to the appropriate assessment for each identified head of damage. The range of assessments submitted by counsel for general damages was $75,000 ‑ $150,000.
The general damages in this case are required to be assessed in accordance with the provisions of CLA.
Non-pecuniary loss is defined in the CLA as pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life and bodily or mental harm. These are the heads of what is generally known as general damages.
Mr Kerslake has suffered injuries which have significantly disabled him. In view of the initial injuries and symptoms, their progression and treatment, loss of amenities, pain suffered, the residual disabilities and the effect on his now limited enjoyment of life I assess his general damages in the sum of $120,000.

Past and future loss of earning capacity

Mr Kerslake's formal education was completed at the end of the equivalent of Year 12. He is now 49 years of age and was 43 years old at the date of accident. Up until the date of accident Mr Kerslake had primarily been involved in employment as a shoe repairer and engraver. In that capacity he had purchased a number of businesses which he had on his evidence operated very successfully.
It was Mr Kerslake's evidence that after the accident, he closed the businesses which he had been operating. He was in and out of hospital and did not have the funds or attitude to continue in business. In about February 2005 he had been declared bankrupt.
The documentation produced by Mr Kerslake to support the quantum of his claim for loss of earning capacity comprised a bundle of original pay packets for the period between 1 January 2004 and 7 October 2004. He gave evidence that the pay packets had been prepared by an employee. Each pay packet was essentially in similar terms. It referred to the name of Mr Kerslake, his classification as manager, 60 hours per week having been worked, tax deducted of $266 and a nett amount of $734.
Mr Kerslake has not worked since the accident. He attempted to do work as a key cutter and shoe repairer but found the pain caused by work on top of his injuries too intense. He could not stand whilst working. The work he did was for limited periods, and for half days only.
I am not prepared to rely upon Mr Kerslake's evidence as being reliable in relation to the pre‑accident earnings of the business. In his evidence he gave a very wide range as to profit earned. It was unsupported by documentation in any way. In my view it was not reliable. As part of Mr Kerslake's case photographs and certificates relating to the businesses he had conducted were produced. There was also a lease and an article regarding the operation of the business. I accept that before the accident, Mr Kerslake had carried on business. However, the documentation to support his pre and post‑accident earning capacity is sparse.
It was Mr Kerslake's evidence that he intended to continue working until he was 60 or 65 years of age.
Mr Kerslake was asked about his employment plans. He gave evidence that he had considered studying real estate and hoped to be able to complete the necessary course of study. He gave evidence that he may be able to obtain a position in management. The impression that I formed was that he did intend to complete some form of retraining and to then resume employment.

The legal principles concerning assessment of loss of earning capacity were not in issue. Pursuant to Medlin v State Government Insurance Commission (1995) 182 CLR 1, the Court in assessing loss of earning capacity must be satisfied as to two matters:
"The first of those requirements is the predictable one that the plaintiff's earning capacity has in fact been diminished by reason of the negligence caused injuries. The second requirement is also predictable once it is appreciated that damages for loss of earning capacity constitute a head of damages for economic loss awarded in addition to general damages for pain, suffering and loss of enjoyment of life. It is that the 'diminution of … earning capacity is or may be productive of financial loss' (Graham v Baker (1961) 106 CLR 340 at 347)."
Lord Diplock in Paul v Rendell (1981) 34 ALR 569 at 471 expressed the matter of assessment as follows:
"… the assessment of economic loss involves the double exercise in the art of prophesying not only what the future holds for the injured plaintiff but also what the future would have held for him if he had not been injured."
In Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 the approach to the assessment of the likelihood of future or potential events occurring was dealt with by the High Court. Deane, Gaudron and McHugh JJ in their joint judgment said at 642 ‑ 643:
"… When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred. A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9 per cent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as - say over 99 per cent - the court will take that chance into account in assessing the damages. Where proof is necessarily unobtainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded. See Mallett v McMonagle [1970] AC 166 at 174; Davies v Taylor [1974] AC 207 at 212, 219; McIntosh v Williams [1979] 2 NSWLR 543 at 550-551. The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place."
Brennan and Dawson JJ stated at 639 that the ascertainment of future earning capacity involves an evaluation of possibilities as distinct from establishing a fact as a matter of history. Their Honours said at 639 ‑ 640:
"Hypothetical situations of the past are analogous to future possibilities: in one case the court must form an estimate of the likelihood that the hypothetical situation would have occurred, in the other the court must form an estimate of the likelihood that the possibility will occur. Both are to be distinguished from events which are alleged to have actually occurred in the past."
The range of assessments submitted by counsel for past loss of earning capacity was $50,000 ‑ $75,000.
I am satisfied that Mr Kerslake does have a retained capacity, but that it would as all the medical practitioners have indicated, be limited to sedentary or semi‑sedentary duties.
It is submitted on behalf of Mr Kerslake that I should assess loss of earning capacity on the basis of a gross pre‑accident weekly income of $1,000. I do not accept that to be appropriate. The amount was drawn from the business as a wage. I am not satisfied that it is a proper measure of the extent of Mr Kerslake's pre‑accident capacity to earn. As Mr Kerslake said, the accountant would calculate the profit at the end of each financial year. However there is no evidence as to that calculation for any year. In the alternative, it is submitted that the loss should be calculated on the basis that Mr Kerslake earned no less than the minimum wage. The sum of $492 nett per week is relied upon in submissions filed on behalf of Mr Kerslake.
In all the circumstances, I consider it would be appropriate to make a global award in relation to all components of past and future loss of earning capacity including interest on past loss. The evidence is insufficient to enable a precise mathematical calculation of Mr Kerslake's claim for loss of earning capacity to be made. There has been a loss of capacity.
The accident occurred nearly five years ago. In that period Mr Kerslake has been hospitalised for surgical procedures. His only attempt at employment was unsuccessful. This was on a part‑time basis and did not involve any heavy work. Past loss calculated on the basis of the nett minimum wage pursuant to the Minimum Conditions of Employment Act 1993 (WA) would in Mr Kerslake's submission produce a past loss of $97,466 without interest.
I would in all the circumstances allow $60,000 for past loss of earning capacity.
The traditional form of calculation of future loss of earning capacity would involve application of an appropriate multiplier to a nett weekly loss. Mr Kerslake's submission is that a calculation based on the current adult minimum nett weekly earnings of $492 should be used. Applying a multiplier to age 65 years of 543 to that sum, a sum of $267,156 is produced. That sum requires to be reduced to take account of contingencies and retained capacity. As I have said, a precise mathematical calculation is impossible on the evidence produced.
Doing the best I can, on the information available, I consider an appropriate award for future loss of earning capacity would be $100,000.
I would assess therefore past and future loss of earning capacity in the global sum of $160,000.

Future Treatment

Mr Kimberley considers that further surgical procedures may be required. He estimates the cost of each procedure to be between $7,000 and $10,000. Counsel for the Shire submitted a range of $15,000 to $20,000.
I would assess and allow future costs of all treatment (operative and otherwise) in the sum of $20,000.

Summary of award

For the above reasons, I consider Mr Kerslake's damages should be assessed as follows:
General damages $120,000
Past and future loss of earning capacity $160,000
Future medical treatment $20,000
TOTAL$300,000
The award will need to be reduced by 25 per cent to reflect the finding of contributory negligence.

Conclusion

Mr Kerslake is accordingly entitled to judgment in the sum of $225,000.