Krawczuk v RTA of NSW

[2007] NSWSC 884

CITATION:	Krawczuk v RTA of NSW [2007] NSWSC 884
HEARING DATE(S):	12-23 February, 28 February-1 March, 7-9 May 2007
JUDGMENT DATE :	14 August 2007
JURISDICTION:	Common Law Division
JUDGMENT OF:	Hislop J
DECISION:	Verdict and judgment for the defendant. The plaintiff is to pay the defendant's costs.
CATCHWORDS:	TORTS - personal injury - single vehicle collision in conditions of heavy rain - liability of road authority.
LEGISLATION CITED:	Civil Liability Act 2002 Roads Act 1993 Transport Administration Act 1998
CASES CITED:	Brodie v Singleton Shire Council (2001) 206 CLR 512
PARTIES:	Ignacy Krawczuk (Plaintiff) Roads and Traffic Authority of NSW (Defendant)
FILE NUMBER(S):	SC 20008/04
COUNSEL:	L. Lasry QC/J. Stewart (Plaintiff) J. Maconachie QC/P. Sternberg (Defendant)
SOLICITORS:	Teakle Ormsby Conn (Plaintiff) MacCabe Terrill Lawyers (Defendant)

- 25 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Hislop J

Tuesday 14 August 2007

20008/04 Ignacy Krawczuk by his tutor Teresa Krawczuk v Roads & Traffic Authority of New South Wales

JUDGMENT

Introduction

1 The plaintiff was born on the 26 December 1950. He sustained brain, orthopaedic and other injuries on 31 January 2001 when a sedan driven by him west in Wentworth Avenue, Pagewood collided with a van parked at the southern kerb of that road. The van was forced by the impact into a vehicle parked in front of it and then struck a wooden electrical pole causing it to break and fall on the van.

2 The plaintiff was proceeding to his home from his place of employment at Westfield Drive, Pagewood when the collision occurred. He had been employed at those premises for about one year prior to the collision.

3 The collision occurred at approximately 2:10am in “torrential” rain. It is alleged in the statement of claim that the plaintiff lost control of his vehicle when it “encountered a substantial amount of storm water across the surface of the highway”. It was not contended by the defendant that the plaintiff’s vehicle was not in good mechanical condition or its tyres were defective.

4 Wentworth Avenue is a State highway under the defendant’s control. The plaintiff alleged his injuries were caused by the negligence of the defendant. Ultimately, three particulars of negligence in the statement of claim were relied upon. They were:

“(a) Designing and constructing a section of the roadway, being Wentworth Avenue between Banks Avenue and Page Street which was not sufficient to cope with rainfall intensities which were likely to occur.
(d) Failing to warn the plaintiff that the road was unsafe for use by reason of the presence of deep stormwater on the surface of the roadway.
(j) Failure to erect warning signs alerting motorists during periods of heavy rain that the roadway between Wentworth Avenue and Banks Avenue and Page Street were subject to flooding during periods of heavy rain and that special precaution should be taken.”

5 The defendant denied negligence. Alternatively, it asserted the plaintiff, by his own negligence, caused or contributed to his injuries, in essence, by failing to drive at a speed appropriate to the prevailing conditions, to pull to the side of the road until the rain had eased and to keep a proper lookout.

6 The statement of claim was filed on the 22 January 2004. It is common ground the Civil Liability Act 2002 (“the Act”) has application. The defendant relies upon the provisions of the Act, in particular s 45 thereof, as providing a complete defence to the claim.

7 The issues for the court to determine are thus liability, and, if liability is established, contributory negligence and the amount of damages.

The locale

8 The section of Wentworth Avenue with which these proceedings are concerned lies between its intersection with Banks Street to the east and Page Street to the west. That section of Wentworth Avenue has the following features:

(a) it runs roughly east-west;

(b) it slopes uphill from Banks Street to a crest at least 200 metres west of Banks Street, from which it passes down a grade of about five percent before levelling shortly before the next intersection (Baker Street) and then continues with a slight down grade to the next intersection (Page Street);

(c) Baker Street enters Wentworth Avenue on the southern side, forming a T junction with it. The distance from Baker Street to Page Street is approximately 396 metres. The distance from Baker Street to the point of impact is approximately 122 metres;

(d) Wentworth Avenue is straight until it approaches Baker Street where it presents a right hand curve for vehicles travelling west. The radius of the curve is approximately 220 metres. The apex of the curve is at Baker Street;

(e) the cross fall of Wentworth Avenue before the crest is from north to south. Approaching Baker Street, the slope reverses, gradually becoming a south-north camber of two percent at the apex of the curve;

(f) Wentworth Avenue is kerbed and guttered. Its surface is constructed of asphaltic concrete (hot mix);

(g) there is a median strip dividing the east and westbound traffic lanes. There is a gap in the median strip opposite Baker Street. The gap is slightly wider than Baker Street;

(h) the westbound carriage way is approximately ten metres wide. It is divided into three traffic lanes by broken separation lines. Similarly for eastbound traffic;

(i) on the southern kerb of Wentworth Avenue east of Baker Street there are three gutter gully pits, each three feet long and fifteen inches wide. These pits are evenly spaced;

(j) the median strip is kerbed. The kerb slopes at a 45 angle to the road surface. On the southern side of the median strip east of Baker Street there are three median drainage inlets;

(k) the speed limit is, and was at the time of the collision, 70 kilometres per hour. There were no signs indicating the presence of the curve or a safe speed to negotiate it. There were no signs indicating the presence of water on the road. Street lighting was provided at regular intervals;

(l) that section of Wentworth Avenue had been reconstructed in 1971.

The weather conditions

9 Evidence as to the weather conditions and their effect on driving conditions at or about the time of the collision came from both lay witnesses and the records of the Department of Meteorology.

10 The lay evidence was that of fellow employees of the plaintiff (Messrs Jones and Barrett and Mrs Walker), who had finished their shift at the same time as the plaintiff and who then travelled west along Wentworth Avenue at about the same time as the plaintiff, or shortly thereafter.

11 Mr Jones said that when he left his place of employment the rain was quite heavy but it became torrential when he was in Banks Street. The “torrential” rain continued to fall at the same intensity up to and after the collision. It eased off 15 to 20 minutes later, though it did not completely stop. The driving conditions in the rain were “pretty horrific”. He had never seen more water on the road than he saw on 31 January 2001. There was very much more water than he had ever seen there before. Before reaching the crest he had moved from the left hand lane to the centre lane. Fifty metres east of the crest he felt water interfere with traction of his car (a 1994 Barina which weighed 960 kg and was a front engined and front wheel drive vehicle). The car was aquaplaning on the amount of water that was on the road but it did not deviate. He decelerated straight away but did not use the brakes. His vehicle slowed down significantly. He maintained that reduced speed until he saw the plaintiff lose control. He had noticeably more traction at the reduced speed. He did not know what speed he was doing when he slowed or after he had reduced speed. He slowed more when the plaintiff lost control of his vehicle. He had the impression the water on the left hand side of his vehicle was a little deeper than on the right hand side when he passed through the Baker Street intersection.

12 Mr Barrett gave evidence it was raining extremely heavily at the time he completed his shift. He turned right into Wentworth Avenue and proceeded toward the crest. The rain was possibly harder than when he left his employer’s premises. He had never before experienced rain of that intensity on that road. He drove up to the crest. He was driving at a speed probably between 30 and 40 kilometres per hour. He was in the lane nearest the median strip. His windscreen wipers were operating at full speed. His vision was not very good at all. He could see maybe 20 metres or so; he could not really see the road, it was covered in water a few inches deep. He could not see any lane markings. His vehicle, a Rodeo ute, felt unsafe, “it was very bad”. He remembered in one section there was a flood of water coming down the road and then across the road in front of him, moving to his left. It is probable this was east of the crest.

13 Mrs Walker gave evidence that it was raining heavily on 31 January 2001. Accordingly she had driven at 40-50 kilometres per hour. She had never experienced the intensity of rain like that at the time. She had not experienced loss of stability on the road.

14 There was also the evidence of Snr Const Boss, who came upon the collision scene and stopped. She confirmed that as she approached the accident scene “torrential” rain was falling. She cannot now recall whether there was a lot of water on the roadway or not.

15 Certified extracts from the meteorological records of the Commonwealth were tendered. These included radar images and observations made at Sydney Airport AMO, the closest meteorological station to the collision. Those documents were accompanied by notes by Mr Wiles, the meteorologist in charge of the NSW Climate Services Centre. Mr Wiles stated in his notes:

“The peak rainfall intensity at Sydney Airport AMO in the period around the accident time was between 2.04 am and 2.12 am EDST… During this time 8.2 mm were recorded at the airport site, giving an average intensity of 0.91 mm/min or 54.7 mm/hr over the nine minute period. …this rainfall intensity has a recurrence level of less than one year… That is, rainfall of this intensity could be expected to occur, on average, one or two times per year.
The most intense shower activity at the accident site, from the radar imagery…occurred between 2.05 am and 2.20 am EDST, with peak intensity between 2.15 am and 2.20 am. …it is possible that the peak shower intensity at the accident site at this time was more intense than the peak that was experienced at the airport between 2.04 am and 2.12 am, however they would have been of similar order of magnitude and any difference would not have been sufficient to produce a significant change in the estimated recurrence interval of the event. That is, the shower intensity experienced at the accident site would almost certainly have had a recurrence interval of no more than one year… From the radar imagery it appears that the peak shower activity in the area of the accident was probably higher than the peaks observed at Sydney Airport, though of similar order or magnitude and with slightly different timing… This was a heavy shower event, but by no means exceptional or particularly unusual, with similar intensity events expected at this location on an average about once or twice a year… Dr Webb estimates the maximum intensity to be about 60 mm/h over a six minute period - this is consistent with the calculation of about 55 mm/h over a nine minute period I made using the Sydney Airport one minute rainfall data. The intensity at the accident site, as previously mentioned, may well have been slightly higher but is unlikely to have been more than 80 mm/h - the intensity required for a nine minute period for the ARI to exceed one year.”

16 The Sydney Airport AMO was approximately 4.1 kilometres from the scene of the collision.

The events leading to the plaintiff’s injury

17 The plaintiff’s disabilities are such that he was unable to give evidence.

18 The only other vehicle travelling on the relevant section of the road at the time of the collision or leading up to it was that of Mr Jones. Mr Jones gave evidence that he left his employer’s premises at about 2.00 am. He walked past the plaintiff in the parking lot. The plaintiff was about to get into his vehicle. Mr Jones drove down Westfield Drive into Banks Street. He travelled 100-200 metres down Banks Street, then turned right into Wentworth Avenue at the traffic lights. He observed the plaintiff’s vehicle stopped at the traffic lights at that intersection. The lights changed to green as he approached and he passed the plaintiff’s vehicle. The plaintiff overtook him 50 metres west of the crest. Mr Jones was unable to estimate the speed at which the plaintiff passed him. At Baker Street the plaintiff’s vehicle hit a wall of water and the spray went 20 or 30 feet up into the air. The spray came right up from the whole of the vehicle, the front of the vehicle. It appeared to be as high on one side as the other. When Mr Jones observed the plaintiff’s vehicle hit the water, he was 100 metres east of the Baker Street intersection. At that time the plaintiff’s vehicle was 5-10 metres into the intersection. He saw the rear of the vehicle slide left toward the footpath and the vehicle going sideways down the road. The vehicle went from the median to the centre lane, then there was a movement to the right and the vehicle turned completely around to the driver’s side so that the front of the vehicle was facing the footpath. It looked like the steering had been overcorrected. The vehicle then slid to the left and into the van parked on the southern side of Wentworth Avenue. Mr Jones saw the rear lights of the plaintiff’s vehicle when the plaintiff first lost control but did not recall seeing any brake lights at any time. He had no sense of the plaintiff’s vehicle decreasing speed.

19 Mr Jones’ evidence on this and other aspects of the matter was extremely important. Neither party sought to attack his credibility. Unless otherwise expressly stated, I accept the evidence of Mr Jones. I also make no adverse finding as to the credibility of any other liability witness.

The speed of the plaintiff’s vehicle

20 Mr Jones was unable to estimate the speed of the plaintiff’s vehicle when the plaintiff lost control of it. The only objective evidence bearing on this question involved an analysis which was carried out by Mr Johnston, a consulting engineer whose speciality was traffic engineering, retained by the plaintiff, and Mr Stewart-Smith, a consultant traffic engineer retained on behalf of the defendant.

21 Mr Johnston calculated the speed of the plaintiff’s vehicle at the time the plaintiff lost control in two ways. The first calculation was as follows:

(a) He measured the distance from the crest to the point of loss of control being 5–10 metres into the intersection at Baker Street at 320 metres;

(b) He accepted Mr Jones’ evidence the plaintiff overtook him 50 metres west of the crest and he also accepted Mr Jones’ evidence that he (Jones) was 100 metres east of the intersection when the plaintiff lost control of his vehicle and 110 metres from the point in the intersection where the plaintiff lost control;

(c) He accepted that the speeds of Mr Jones and the plaintiff were constant from the point where the plaintiff overtook Mr Jones to the point where he lost control of his vehicle. Assuming the distance between the vehicles was 100 metres when the plaintiff lost control, he was able to calculate that if Mr Jones was travelling at 40 kph, the plaintiff was travelling at 64 kph, if Mr Jones was travelling at 50 kph, the plaintiff was travelling at 79 kph, and if Mr Jones was travelling at 60 kph, then the plaintiff was travelling at 95 kph;

(d) If the distance between the vehicles was 110 metres, then the speed of the plaintiff’s vehicle would have been higher;

(e) The value of this estimate of speed was dependant upon the reliability of Mr Jones’ evidence as to relative distances and permitted of no firm conclusion in the absence of evidence of Mr Jones’ speed and confirmation that the speed of each vehicle was constant from the point of overtaking.

22 Mr Johnston’s second calculation was as follows:

(a) The energy absorbed in the impact was calculated from a number of sources, being the damage to each of the vehicles, the sliding of the plaintiff’s vehicle pre-impact, the movement of the vehicles post-impact and the breaking of the pole. Mr Johnston then worked backward, using the appropriate mathematical formula, to obtain the speed of the plaintiff’s vehicle at the time of loss of control;

(b) Mr Johnston initially concluded the speed of the plaintiff’s vehicle at the time of loss of control was 70–84 kph;

(c) However, he conceded in cross examination that in doing his calculations he had omitted to include the energy associated with the side crush to the van caused by its impact with the pole. He redid the calculations, arriving at a figure of 75-90 kph by including the whole of the additional energy. If only part of that energy was included, the figure was 74-88 kph;

(d) As the vehicles involved had not been available for inspection, it was necessary for Mr Johnston, in determining the degree of crush to the vehicles, to work from photographs which had been taken at night using a flash and were not of great quality. He also had resort to stiffness values in respect of a subsequent model Honda rather than a model identical to that driven by the plaintiff, though he did have specifications for such a vehicle. As a consequence of these and other matters, there was, as he conceded, a need to range his results based on the uncertainty of inputs, by adopting the lowest reasonable value and the highest reasonable value and ranging it on that.

23 Mr Stewart-Smith calculated the likely speed of the plaintiff’s vehicle when he lost control at well in excess of 80 kilometres per hour and more likely in excess of 90 kilometres per hour. He said he derived this conclusion from his crush analysis and from how the vehicle moved based on Mr Jones’ evidence. He agreed that his opinions were inevitably imprecise as he did not have the vehicle to examine and was reliant on Mr Jones’ evidence as to the vehicle’s movement.

24 Mr Hespe concluded the plaintiff’s speed at the time of loss of control was in the order of 70 kph - assuming that Mr Jones’ speed was 45 kph and the distance between the vehicles at the time control was lost was 100 metres. Senior counsel for the plaintiff conceded that he could not, on any view, say the plaintiff was travelling any slower than 65 kph.

25 The analyses by Messrs Johnston and Stewart-Smith suffer from a degree of imprecision for the reasons referred to above. They have sought to overcome this by ranging the results. The fact that their conclusions were relatively similar, although each was retained by a different interest, causes me to attach considerable weight to those conclusions. I generally accept the evidence of Messrs Johnston and Stewart-Smith as to the speed of the plaintiff’s vehicle and find that that speed, at the time that control was lost, was in the order of 80-90 kph.

26 The conclusion that the plaintiff was driving at a speed of that order is not inconsistent with the evidence of the plaintiff overtaking Mr Jones’ vehicle whilst travelling downhill, that he was not observed to brake or slow down, and that his vehicle threw up a 20-30 feet high spray whilst in the intersection.

Water on Wentworth Avenue on prior occasions

27 Mr Jones had travelled along Wentworth Avenue twice each working day for the previous four years. During that period he had seen water flowing across the Baker Street intersection when travelling west on half a dozen occasions. On two of those occasions his vehicle had been affected by the water. On the first occasion he was travelling in the centre lane when his vehicle aquaplaned and he slipped halfway out of the lane. This occurred when his vehicle was directly opposite the gap in the median strip [at Baker Street] “right in the middle of the intersection”. He does not recall the speed he was travelling at that time. On the second occasion he was travelling in the median lane. He did not lose control but could feel his vehicle had been affected by the water on the road surface and had lost traction. This occurred when his vehicle was right in the mouth of Baker Street. He could not recall the speed he was travelling at that time. He gave evidence that

“in heavy rain, it is a very dicey piece - bend in the road, travelling in either direction, because of the amount of water that flows from Baker Street, and I have run into that water on several occasions”

28 Mr Barrett had usually traversed Wentworth Avenue when travelling to work each day over the previous six years. He had experienced water on the road at the Wentworth Avenue and Baker Street intersection before, maybe a dozen times a year, but never to the same extent as it was on 31 January 2001.

29 Mrs Walker had driven on Wentworth Avenue daily over the previous 30 years. She had never experienced the intensity of rain like that on 31 January 2001 nor had she experienced flooding at Baker Street and Wentworth Avenue to the extent to cause problems with traction.

30 Senior Constable Boss had worked in the general area from 1997 to January 2001 and had lived there for two years. She did not recall becoming aware of any history of the junction of Wentworth Avenue and Baker Street as being known to become covered in water nor could she recall if it had any history of being a dangerous hazard during unusually heavy rainfall.

31 Mr Swan lived in the vicinity of the accident site for 35 years. He said he had never seen flooding in the junction nor had he seen water at the intersection an inch deep. He said that normally there was not water on the road. He could not remember whether it had been raining or not on the day of the collision.

32 Mr Alcevski was a supervisor for the defendant who had held the job for 25 years. His job involved supervising seven call-out gangs who were responsible for alleviating flooding problems on roads under the defendant’s control, including Wentworth Avenue. Mr Alcevski did not remember ever being called to the intersection of Wentworth Avenue and Baker Street, and a check of the computerised records for the last six years do not reveal any record of flooding of that section of the road. The records prior to 2001 were not available for inspection.

Liability - the plaintiff’s case

33 Mr Hespe, a consultant engineer of many years experience, was qualified for the plaintiff. The plaintiff’s case (save as to the absence of a sign) depended upon the acceptance of a theory advanced by Mr Hespe as to the cause of the collision.

34 Mr Hespe’s theory was:

(a) Wentworth Avenue had a superelevation in the order of two percent at and approaching the intersection with Baker Street.

(b) That superelevation caused rainwater on the westbound pavement of Wentworth Avenue to flow toward the median strip. There it formed a “channel” bounded by the median strip kerb and the road pavement.

(c) The channel was about five feet wide with the water being deeper against the median kerb, where it was one inch to two inches deep. The depth of the water decreased to the depth of the sheet water flow approximately five feet from the median kerb. The sheet water flow was, at most, a quarter of an inch deep. Sheet water flow is a uniform flow of water across the road pavement before it reaches the gutter or the channel.

(d) The channel was about 2–3 metres long and was located against the median kerb and then at the eastern end of the median kerb at Baker Street it flowed into the median opening and onto the northern side of Wentworth Avenue.

(e) The channelling occurred because the median inlets in the vicinity of the intersection were inadequate to dissipate the water which had so collected.

(f) The plaintiff was driving his motor vehicle perhaps two-tyre widths from the median kerb as he approached the Baker Street intersection.

(g) The tyres on the right hand side of the plaintiff’s vehicle encountered the deeper water in the channel. This caused a greater force to be applied against the right hand wheels than to the left hand wheels, resulting in a torque or twisting movement on the vehicle about its vertical axis, which caused the vehicle to swing clockwise, resulting in the loss of control and ultimate collision.

(h) Mr Hespe was unable to say from his learning or experience what depth of water was critical to creating a drag factor. He said it depended on the mass of the vehicle, the area of contact with the tyres etc.

35 Mr Hespe gave evidence the risk created by the channelling could have been obviated by:

(a) creating an adverse superelevation of the curve so that the flow of water at the intersection was to the southern kerb rather than to the median. Additional gully pits could be constructed on the southern kerb to take the increased flow of water.

(b) the provision of a flashing light sign “Warning Road Flooded Ahead” using sensors to activate the sign when the road was sufficiently wet. The sign would be placed 300 metres east of the Baker Street intersection to enable sufficient distance for motorists to stop.

(c) The design, construction and provision of adequate median drainage inlets during the 1971 reconstruction.

36 Senior counsel for the plaintiff expressly confirmed he did not rely upon (a) but submitted the defendant was negligent in failing to provide a flashing light warning sign or to design, construct and install adequate median drainage inlets in 1971.

37 Mr Hespe also gave evidence that he examined the drainage in the area generally. He considered the possibility that the drainage system was unable to cope with the water flowing into it and surcharged, thereby preventing further water gaining access. However, he did not take this into account in his calculations because he had no data on which to calculate it and there may have been other pipes of which he had no information. Senior counsel for the plaintiff confirmed that it was no part of the plaintiff’s case that the overall drainage design between Banks and Page Streets was deficient.

Deficient median drainage inlets

38 The plaintiff submitted that the median drainage inlets were inadequate due to their design and size to enable water to be dissipated from the road surface resulting in the channelling of water which caused the plaintiff’s injury. The inadequacy of the median inlets had been present since 1971 and was a result of the defendant’s breach of duty in the design and construction of the road at that time. The risk materialised at the time of the construction and it should have been realised that there was a risk at that time.

39 The defendant submitted it was not liable to the plaintiff for negligence in the design, construction or provision of median drainage inlets in 1971 primarily because:

(a) section 45 of the Act provided a complete defence;

(b) there was no channelling of water, or no sufficient channelling, to cause loss of control;

(c) there was no breach of duty in the design, construction or provision of the median drainage inlets in 1971;

(d) the loss of control was not caused by contact with water channelled against the median strip.

These matters are considered separately hereunder.

Section 45 of the Act

40 Section 45 of the Act provides:

“(1) A roads authority is not liable in proceedings for civil liability to which this Part applies for harm arising from a failure of the authority to carry out roadwork, or to consider carrying out roadwork, unless at the time of the alleged failure the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm.

(2) This section does not operate:
(a) to create a duty of care in respect of a risk merely because a roads authority has actual knowledge of the risk, or
(b) to affect any standard of care that would otherwise be applicable in respect of a risk.

(3) 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 work within the meaning of the Roads Act 1993 .
roads authority has the same meaning as in the Roads Act 1993 .”

41 The plaintiff submitted, in essence that the common law had long drawn a distinction between misfeasance and nonfeasance on the part of highway authorities, affording such authorities an immunity in respect of the latter but not the former. The line of authority supporting the existence of the immunity was overruled by the High Court in Brodie v Singleton Shire Council (2001) 206 CLR 512. However, the legislature reinstated the immunity in respect of nonfeasance by enacting s 45 of the Act. That section did not extend the immunity to acts of misfeasance.

42 In the present proceedings, the plaintiff relied upon misfeasance on the part of the defendant in the design, construction and provision of median drainage inlets in 1971. There was no reliance upon any subsequent failure by the defendant to carry out any roadwork. Accordingly, s 45 had no application.

43 I accept the plaintiff’s submissions. In my opinion, s 45 does not provide a defence to this part of the plaintiff’s claim.

There was no channelling of water or no sufficient channelling to cause loss of control

44 Both Dr Webb, a civil engineer whose speciality is hydrology, qualified by the defendant, and Mr Hespe had regard to three main factors in assessing the channelling theory. Those factors were the size of the catchment area, the coefficient of runoff and the rainfall intensity.

45 Dr Webb did not regard the thesis advanced by Mr Hespe as possible. He considered Mr Hespe used an incorrect catchment area, the flow path chosen was erroneous, the rainfall intensity based on the peak one minute intensity at Sydney Airport rather than 60 mm per hour taken by Dr Webb was excessive, and the coefficient of run off of 95 percent was inappropriate, 90 percent taken by Dr Webb being appropriate.

46 Dr Webb’s identification of the catchment area of the median drainage inlets followed a detailed mapping of the contours of the area carried out at his request. No such mapping was done by or on behalf of Mr Hespe. I prefer Dr Webb’s evidence in this regard to that of Mr Hespe, though Mr Hespe later took into account the detailed contour mapping obtained by Dr Webb.

47 The position taken by each expert in respect to the coefficient of run off appears to me to defensible.

48 Dr Webb based his conclusion as to rainfall intensity upon an analysis of the data at Sydney Airport. His estimate was consistent with that made by Mr Wiles using the Sydney Airport data, though Mr Wiles acknowledged that the intensity at the accident site may have been slightly higher. Mr Hespe, in reaching his conclusion as to rainfall intensity, had regard to the descriptions of the conditions given by the lay witnesses as well as the meteorological data.

49 The lay witnesses gave evidence that the rainfall appeared to be of extraordinary intensity to them. This raised the question as to whether Dr Webb’s analysis was flawed by reason of a failure to make adequate allowance for the rainfall intensity. However, the rainfall was approaching a once-a-year intensity. Such conditions would only be encountered by an average person when driving about once in ten years. Accordingly, the witnesses’ categorisation of the rainfall intensity is compatible with the analysis used by Dr Webb. A slightly higher intensity was a possibility according to Mr Wiles, but this would make no substantial difference to Dr Webb’s conclusions.

50 Dr Webb is an expert whose speciality is hydrology. Mr Hespe is not. Dr Webb’s analysis appears logical and to have greater scientific precision than Mr Hespe’s analysis. I do not regard it as flawed by reason of the rainfall intensity adopted. I prefer Dr Webb’s analysis to that of Mr Hespe. I note that Mr Stewart-Smith supports Dr Webb’s conclusion and that there was no evidence of an increased depth of water against the median strip being encountered on the night of the collision, or on any other occasion.

51 The onus is upon the plaintiff to prove his case. I am not satisfied that he has established that there was channelling of water in the median lane such as to cause loss of control of the vehicle as hypothesised by Mr Hespe.

There was no breach of duty in the design, construction or provision of the median drainage inlets in 1971

52 There was no satisfactory evidence to establish what standards for median drainage inlets were applicable in 1971 and whether the relevant inlets complied with that standard.

53 Mr Hespe gave evidence that inlets of the type installed approximately one kilometre west of Baker Street would have been appropriate and could have been installed at minimum cost at the time of construction in 1971.

54 Mr Fishburn, an engineer who had been employed by the defendant or its predecessors from 1964 to 1998 and who in the later years of his employment had been a road design engineer and the general manager of the road technology branch, gave evidence that the inlet to which Mr Hespe referred had not been available in 1971. He also gave evidence it would have been inappropriate to install non standard gratings on the median strip and that it would be inappropriate to install gutter gulley pits such as were on the southern side of Wentworth Avenue in the median strip. Dr Webb considered the capacity of the inlets were sufficient for the circumstances.

55 I prefer the evidence of Mr Fishburn and Dr Webb on this aspect as, by reason of their training and experience, they had greater expertise in this area of expert knowledge than Mr Hespe.

56 The onus is upon the plaintiff to establish the standards applicable in 1971 and non compliance with those standards. In my opinion, that onus has not been met.

The loss of control was not caused by contact with water channelled against the median strip

57 The defendant submitted the loss of control was not attributable to contact with water channelled against the median strip. I agree with that submission for the following reasons:

(a) There was no evidence that anyone had observed the channelling of water as hypothesised by Mr Hespe either on the night of the collision or before or after it;

(b) If water was channelled in the manner hypothesised by Mr Hespe, it would flow around the eastern end of the median strip at the Baker Street gap and onto the eastbound lanes. If channelling was to cause the vehicle to lose control, that loss of control would occur when the vehicle encountered the deeper water in the channel before the intersection.

(c) However, Mr Jones gave evidence the loss of control occurred when the plaintiff’s vehicle was 5-10 metres into the intersection when it hit what he described as “a wall of water”. This evidence is not consistent with Mr Hespe’s hypothesis.

(d) It is, however, consistent with the evidence of Mr Jones that in periods of heavy rain he had encountered a flow of water up to one inch to two inches deep from Baker Street which crossed the intersection and flowed through the gap in the median strip onto the eastbound lanes.

(e) Mr Jones’ recollection was that that flow of water passed through the gap in the median strip at the intersection without touching either end of the median strip and this was so at the time of the collision. The flow, and its path, as described by Mr Jones was compatible with the calculations made by Dr Webb. The median drainage inlets were irrelevant to this flow.

(f) Mr Jones gave evidence that on a previous occasion his vehicle had encountered the flow of water in the intersection and had aquaplaned and slipped half way out of the centre lane right in the middle of the Baker Street intersection. On a second occasion, he was travelling in the median lane and could feel his vehicle losing traction by reason of the water on the road surface. At that time of loss of traction his vehicle was right in the mouth of Baker Street.

(g) Mr Jones observed that when the plaintiff’s vehicle hit the “wall of water” a 20-30 feet high spray of water was thrown up. The spray appeared to as high on one side as the other. This observation appears to me completely inconsistent with Mr Hespe’s theory of encountering an uneven depth of water on one side of the vehicle.

58 In my opinion, the evidence establishes that, more probably than not, the loss of control occurred when the plaintiff’s vehicle struck a flow of water from Baker Street across the intersection and not as a result of striking a channel of water in the median lane.

59 In my opinion, the likely cause of the loss of control was that the plaintiff’s vehicle encountered a depth of water whilst travelling at a speed which was inappropriate for the conditions.

Liability - the provision of a sign

60 The defendant submitted it was not liable to the plaintiff for failure to provide a sign warning that the road was flooded primarily because:

(a) section 45 of the Act provided a complete defence;

(b) there was no duty to warn the plaintiff of an obvious risk;

(c) there was no breach of duty in not providing such a sign;

(d) the absence of a sign was not causative of injury.

These matters are considered separately hereunder.

Section 45 of the Act

61 The defendant submitted s 45 of the Act provided a complete defence to the allegation of negligence in failing to erect a sign as envisaged by Mr Hespe.

62 I would agree with that submission but for the definition of “roadwork” in s 45. That definition incorporates the definition contained in the Roads Act. The definition of “roadworks” in the Roads Act 1993 excludes “a traffic control facility”. A “traffic control facility” is defined under the Transport Administration Act 1998 in s 45E. The warning device contended for by Mr Hespe falls within para (c) of that definition.

63 The plaintiff submits that the immunity conferred by s 45 does not include an immunity in respect of a traffic control facility. I accept that submission. In my opinion, s 45 does not apply in respect of the provision of a sign of the type envisaged by Mr Hespe.

There was no duty to warn the plaintiff of an obvious risk

64 Section 5H(1) of the Act provides:

“A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff.”

65 An “obvious risk” is defined in s 5F(1) as:

“For the purposes of this Division, 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.”

Section 5F(3) provides:

“A risk of something occurring can be an obvious risk even though it has a low probability of occurring.”

66 The plaintiff submitted that the relevant risk to the plaintiff was the risk of getting to the intersection and suddenly finding his vehicle encountering a depth of water on the right hand side substantially different from the depth of water on the left hand side. Such a risk would not be obvious to a reasonable person in the position of the plaintiff and s 5H would have no application.

67 I do not accept the plaintiff’s submission. In my opinion, the relevant risk was the risk of losing control of the vehicle and/or having an accident due to the conditions which included heavy rain, poor visibility, water on the road and the possibility of varying depths of water on the road and hazards hidden by the water. These matters, in my opinion, would have been obvious to a reasonable person in the position of the plaintiff.

68 That conclusion is strengthened by the actions of each of the fellow employees who drove at a reduced speed to accord with the conditions. The reduction of speed by each occurred before they were aware that the plaintiff’s vehicle was in difficulty or had crashed.

69 I find that the risk of injury was obvious and that in consequence, by the operation of s 5H, the defendant did not owe a duty of care to the plaintiff to warn of that risk.

There was no breach of duty in not providing a sign such as contemplated by Mr Hespe

70 The sign contemplated by Mr Hespe was a flashing light sign “Warning Road Flooded Ahead” which would use sensors to activate it when the road was sufficiently wet. The sign would be placed 300 metres east of the Baker Street intersection to enable sufficient distance for motorists to stop.

71 It would be necessary that the sign be lit at night as, in conditions of heavy rain and poor visibility, an unlit sign would not be noticed. It would be necessary to have a system of sensors to ensure the sign was only activated at appropriate times.

72 There was no satisfactory evidence that such a sign was in use anywhere or was feasible from a practical perspective. There was no evidence as to the costs of installing and maintaining such a sign, particularly as, presumably, it would have to be replicated on other roads under the defendant’s control.

73 There would be no purpose in having such a sign if it simply said the road was wet, as that would be obvious. However, to have a sign stating that the road was flooded, as Mr Hespe suggests, may create confusion and added risk if drivers inferred the road ahead would be impassable due to flooding and sought to turn back when access to the traffic lanes in the opposite direction was rendered difficult by the presence of the median strip. There would also be a tendency of drivers familiar with the sign to ignore it, and there is always a risk of vandalism interfering with the effectiveness of such signs.

74 In my opinion, it has not been established that reasonable care required that such a sign be provided by the defendant.

The absence of a sign was not causative of injury

75 The conditions of rain and the wet road were obvious, as is apparent from the evidence of the other drivers. The presence of a sign would have told the plaintiff nothing that was not obvious to him. He chose to drive at a speed which was excessive in the circumstances. I am not satisfied, the onus being upon the plaintiff, that had a sign been present it would have caused any difference in his driving behaviour.

Conclusion

76 The defendant, in its submissions, also relied upon ss 5B, 5D, 42 and 43A of the Act. It is unnecessary to consider those submissions, having regard to my determination of the primary defences.

77 In my opinion, the plaintiff has failed to establish negligence on the part of the defendant. There will be a verdict and judgment for the defendant. The plaintiff is to pay the defendant’s costs. It is, in the circumstances, unnecessary for me to consider the questions of contributory negligence and damages.

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