Lakefox Pty Ltd v State of Queensland

[2006] QDC 303

DISTRICT COURT OF QUEENSLAND

CITATION:

Lakefox Pty Ltd v State of Queensland [2006] QDC 303

PARTIES:

LAKEFOX PTY LTD (ACN 010 563 593)

Plaintiff

V

STATE OF QUEENSLAND

Defendant

FILE NO/S:

Rockhampton 42/2000

DIVISION:

Civil

PROCEEDING:

Claim

ORIGINATING COURT:

District Court of Queensland, at Rockhampton

DELIVERED ON:

31 August 2006

DELIVERED AT:

Brisbane

HEARING DATE:

27, 28 and 29 March 2006; written submissions received 7, 10 and 12 April 2006

JUDGE:

Alan Wilson SC, DCJ

ORDER:

Claim dismissed

CATCHWORDS:

NEGLIGENCE – NEGLIGENCE ON THE HIGHWAY – HIGHWAY AUTHORITY – CAUSATION – EVIDENCE -

Evidence Act 1977

Anikin v Sierra [2004] HCA 64

­Betts v Whittingslowe (1945) 71 CLR 637

Bradshaw v McEwans, unreported, 1951 (HC)

Brodie v Singleton Shire Council (2001) 206 CLR 512

Fairchild v Glenhaven Funeral Services Ltd (2003) 1 AC 32

Fox v Percy (2003) 214 CLR 118
GIO (NSW) vFredrichberg (1968) 118 CLR 403
Hering v Martin [2004] QCA 70
Holloway v McFeeters (1956) 94 CLR 470
Hunt v Knight Frank (NSW) Pty Ltd [2005] NSWCA 139
Jones v Dunkel (1959) 101 CLR 298
Luxton v Vines (1952) 85 CLR 352
McCafferty’s Management Pty Ltd v State of Queensland Unreported, District Court Mackay, no 58 of 1995, 30 April 1999
Nesterczuk v Mortimer (1965) 115 CLR 14
Orica Ltd v CGU Insurance Ltd [2003] NSWCA 331
Palmer v RTA [2001] NSWSC 846
Roads and Traffic Authority of NSW v Palmer [2003] NSWCA 58
Rufo v Hosking [2004] NSWCA 391
TNT Management v Brooks (1979) 53 ALJR 267
Vairy v Wyong Shire Council [2005] HCA 62
Van Eeden v Henry [2005] NSWCA 14
West v GIO of NSW (1981) 35 ALR 437

COUNSEL:

P W Hackett for the plaintiff

J B Rolls for the defendant

SOLICITORS:

H Drakos & Co for the plaintiff

Crown Law for the defendant

1. Lakefox owns a prime mover and two trailers which ran off the Bruce Highway about 6 kilometres south of Torbanlea at around 10.00 pm on 16 April 1998.  It alleges the accident occurred as the consequence of negligence on the Defendant’s part surrounding some road works being undertaken on the Bruce Highway in the area at the time.  The defendant did not dispute that, if some fault was found in its road works which was causative and could be categorised as negligence, it is susceptible to judgment notwithstanding it is a ‘highway authority’[1].

   [1]Brodie v Singleton Shire Council (2001) 206 CLR 512

1. Quantum has been agreed at $84,805.78 for the damage to the truck and trailers, and $25,000.00 for loss of profits: i.e. in the total sum of $109,805.78 (plus interest, which is claimed but not agreed).

1. It was dark, of course, at the time of the accident and there are no street lights on this part of the highway.  It was also, I accept, raining.  As pleaded, the plaintiff’s case is that its vehicle was forced off the road by an oncoming car in circumstances where the signs, markings and road layout around the roadwork were defective[2], and causative of the accident which ensued.

   [2] Further Amended Statement of Claim filed by leave 27 March, 2006

1. The plaintiff’s vehicle was driven by its employee Mr Wayne Rideout, who had died before the trial began. There were, however, three documents made by him and admitted into evidence under s 92 of the Evidence Act 1977: an accident report dated 21 April 1998[3] (i.e. 5 days after the accident); an undated diagram/plan of the accident scene[4]; and, a signed statement dated 4 April 2003[5].

   [3] Exhibit 5

   [4] Exhibit 3

   [5] Exhibit 2

1. In the first of these documents Mr Rideout, under the heading “Cause of Accident”, wrote the following (excluding some words which were struck out in the course of argument at trial):

(1)Excavation directly on edge of asphalt on passenger side of road has vertical drop-of approximately 18 inches.

(2)No barriers, no signs, no illumination protecting vehicle from going over edge.

(3)Raining.

(4)Centre lines had been removed on asphalt.

(5)Motor car travelling south was partially on north bound side of road.

(6)Rocky’s Own truck forced to drop over edge of road excavation losing control of vehicle.

1. In the diagram, which was signed by Mr Rideout, he shows his own vehicle travelling north on a straight section of the highway.  White centre line markings have, according to the diagram, ceased slightly before the accident site; and, to the south and to his left, he shows a shaded area intended to indicate an excavation.  A short distance ahead, and travelling in the opposite direction (i.e. south) he illustrates a vehicle which has crossed over on to his side of the road and is straddling an unmarked centre line which is, however, signified by small crosses and the words “three white crosses” immediately to the right of his truck.

1. In his statement, made almost five years later in 2003 he says, relevantly:

I remember an event which occurred on or about 16 April 1998.  At the time, I was driving a road transport registered in the name of Rocky’s Own Transport, being a Kenilworth Prime Mover, registration number 855-EDQ. 

I was returning from Brisbane, having collected general freight from the Brisbane depot.  I was driving the said vehicle along the Bruce Highway in an area approximately 6 kilometres south of Torbanlea.

The weather conditions at the time were that there was heavy rain and visibility was poor.

I note that my road record is exemplary.  I have never been involved in a road accident prior to the event that occurred on 16 April 1998.

At all material times, I was travelling approximately 74 kph along the strip in question and the area had a designated speed limit of 80 kph.

At a point approximately 6 kilometres south of Torbanlea I noticed that there were some road works being conducted on both sides of the road.  There were signs leading up until the top of a hill with barricades, expressing that the roads had been excavated.  Once I reached the top of the hill there were no signs and for the next 2 to 3 kilometres there were no signs whatsoever, notwithstanding the fact that the road had been cut away, that is, the edges were taken away from road sides.  My thoughts were at the time that they did this so they could re-bitumen, resurface and repair the roadway.  The roadway still had centre lines and no pegs existed on the side of the road.

At the time there was a truck behind me and no vehicle in front of me.  Halfway down a stretch of road a car came across to the white line separating the road onto my side of the road.  I immediately (as there were no signs) turned the prime mover to the left to avoid the impact and travelled down on an embankment.  On travelling down the embankment, I blew a rear tyre and I lost control of the vehicle travelling into the bush.

If I had not reacted this way, I would have collided with the vehicle which was on the wrong side of the road.

In relation to the area in which I went off the roadway, there was no warning signage.  There was a centre line but there was no temporary island to divide both traffic lanes.  There was no taper for the 80 kph approach speed.  There were no yellow lamps and the barriers that I had sighted some distance beforehand were not lamped …

(a)           Part of the land surrounding the northbound road had been excavated.

(b)           There was failure to put star pickets with delineators of flashing lights.

(c)The State Government did not provide a temporary island to divide both traffic lanes nor did they provide a 100 metre taper.

At all material times I was not travelling beyond the speed limit.  The data from the vehicle I was driving presents the speed I was travelling at all material times.

I note that I was driving hard up against the white line because of the works.  The road works that were an issue had not been carried out 2 days beforehand when I had come through that way and so I never expected there to be such a sharp drop until, of course, I manoeuvred my vehicle in that direction and went down the slope into the bush.  On the previous occasion I went through the excavations had been carried out up and until the top of the hill and not beyond.

1. One of Lakefox’s directors, Mr Wally Eaglesham, also gave evidence in the Plaintiff’s case and said that he had previously driven through the same road works earlier that night.  To his recollection the lengthy excavation immediately beside the north bound lane was not signed, or only poorly signed and there was no “proper delineation”.  Another truck driver, Mr Russell Burns, passed the accident scene very shortly after it occurred and said there were no signs erected on the road works.

1. Two expert traffic engineers provided written reports, and were called: Mr Carseldine for the Plaintiff[6], and Mr Beard for the Defendant[7].  Mr Carseldine concluded the accident was caused by a lack of adequate delineation on the road surface for oncoming, south bound traffic entering the road works site just to the north of the place where Mr Rideout’s truck left the road.  In his view the excavation immediately to the left of the north bound lane meant that prudent management of the lengthy area of road works required moving the centre line to the east (the road had already been considerably widened on its south bound side) and a combination of new lines, and reflective and directional markers and edge lines which would, he said, have allowed north bound traffic to proceed in lanes which were a safe distance from the excavation on the west, and appropriately diverted oncoming south bound traffic.

   [6] Exhibit 6

   [7] Exhibit 11

1. Mr Beard reached a different conclusion: he thought it improbable that the southbound vehicle actually crossed into Mr Rideout’s lane and more likely that, in the absence of marked centre line around the accident scene, Mr Rideout may have formed the belief that the traffic lanes shifted to the east, away from the excavation and was himself, therefore, partially over the centre line.  Concomitant with this he formed a mistaken belief that an oncoming vehicle had crossed on to the wrong side of the road[8].  This preceded, of course, Mr Rideout’s subsequent evasive action.  In Mr Beard’s oral evidence he said that the absence of a marked centre line around the scene of the accident and its loss was “significant” particularly if, at the same time, there were no clear markings on the outside of the lane[9].

   [8] Exhibit 11, p 6

   [9] T182.45-60; T204.10-30; and, T204.33-206.12 

1. A good part of the evidence of each expert was taken up with the Department of Main Roads Traffic Management Plan for these excavation works[10] and various provisions in the Manual of Uniform Traffic Control Devices (MUTCD) and figures in the latter relating to appropriate traffic management schemes around road works of this kind.  Mr Carseldine also advanced, as I understood it, a theory based on the notion that by reason of the widening on the eastern (southbound) side of the highway and the absence of a centreline just as southbound traffic reached that widened area there was, around the accident site a notional lateral shift of the centre line of 1.2 metres to the east.  In his report he said[11]:

   [10] Exhibit 8

   [11] Exhibit 6, page 12

It is considered that this incident was undoubtedly caused by the lack of delineation for south bound traffic entering the road works site on this heavily trafficked road.

The situation would have been exacerbated by night conditions, the glare of oncoming headlights, rain falling at the time, and the lack of a centreline when entering the road works, where a lateral shift of centreline of 1.2 metres occurred.

The southbound vehicle could easily have been one metre across the centreline, into the northbound lane.  The attached Change of Centreline Through Road Works diagram clearly shows the shift before, during and after negotiating the road works from south to north, or vice versa.

The truck driver being Rockhampton based, would have been familiar with the road conditions through this site, having driven through in both directions, probably on a number of occasions.  The confusion caused by the existing centreline remaining, and the lack of delineation of the excavated edge, would have added to the hazard for the truck driver.  The lack of a painted centre line in the correct position on the long approach to the incident site means that north bound traffic had a marked lane width of no more than 3.3 metres, while south bound traffic had an apparent width of up to 5.7 metres – although this included a danger zone of 1.2 metres, because of the lack of centreline through the immediate work area, and the old centreline remaining on the rest of the job.

1. Mr Beard is a very experienced and senior traffic engineer and expert.  He did not accept this theory, for reasons which I found persuasive.  As he points out, there was no deviation of the traffic lane for south bound traffic and the centre line and pavement edge line were intermittently in place on this straight section of road, giving guidance to a south bound driver until just before the truck left the road.  Mr Beard said:

With a large truck approaching from the opposite direction, and visible for a long time, it is not credible that a south bound motorist would veer towards the truck over the centre line on a straight section of road ... even accepting that a south bound vehicle was present on the road near the accident site, it is extremely unlikely that it would have intruded into the north bound traffic lane.
...
It is very unlikely that a south bound vehicle would veer right over the discontinuous centre line in the circumstances prevailing, into the path of an oncoming truck, and when there was a substantial width of sealed pavement available in the south bound traffic lane and on the adjacent sealed shoulder.
...
It is more likely that the truck was being driven to the right of the discontinuous centre line, in a position consistent with the centre line being shifted to the centre of the sealed pavement as advocated by Mr Carseldine (and on the truck driver’s sketch).  This is reinforced by Mr Carseldine’s suggestion that the discontinuous centre line which was in place should have been removed, because it was perceived as being in the wrong place.  In this scenario, with the truck partially over the centre line, and then encountering a south bound vehicle in its correct traffic lane, the truck would have been forced back to the north bound traffic line where an over correction could drop the left wheels ... off the pavement edge into the excavation.  In my opinion, this is the more likely accident scenario.
...
It is more likely that the north bound truck moved right to partially occupy the south bound north bound traffic lane ... this scenario is consistent with Mr Carseldine’s report, in that he inaccurately concludes that the centre line has been shifted eastwards, and that this shift was not appropriately treated.  There was a properly marked centre line to guide the truck driver until between 80 and 130 metres before the truck entered the excavation.  That is only 3.6 to 5.5 seconds of travel at 80 km/hour, and it is unlikely that the truck would move far to the right in that short time.

Consequently it is concluded in respect of this line marking that:

(a)the break in the centre line and edge line of 160 metres was excessive, and temporary or permanent pavement marking should have been in place;

(b)because of the straight alignment, and the location of the accident relative to the remaining line marking, the missing 160 metres of centre line should not have been critical to the circumstances of this accident;

(c)however, the missing sections of line marking may have contributed to the truck driver’s mistaken belief that the traffic lanes were supposed to be shifted towards the east away from the excavation.[12] (emphasis added)

[12] Report of Mr Beard, Exhibit 11, pp 6 and 7.

1. It may be that there is not, in truth, a great difference between the experts’ views in that each appears to hypothesise a driver’s error attributable in part to the disappearance of the centre line, and the nature of the surrounding roadworks, with Mr Carseldine placing greater emphasis on their effect on oncoming drivers and Mr Beard on drivers travelling north.  Mr Beard’s analysis sits, however, more comfortably with what is shown in a film of the accident scene recorded on a DVD[13], from which some photographs have been extracted[14].  They show that as Mr Rideout approached the end of the excavation works, travelling north, line markings, pickets and the like on the left-hand side abutting the continuous excavated area were, even in daylight, difficult to see and, shortly before the end of the road works, the centre line also disappeared. 

   [13] Exhibit 12

   [14] Exhibit 1

1. This seems to coincide with the disappearance of any markings on the left-hand side, abutting the excavation.  Photographs of the accident scene[15] show it was in this area, where all markings were missing, that Mr Rideout left the road.  Exhibit 1 also shows that, at the very end of the excavated area, the centre line reappeared briefly but then, again, disappeared for a shorter interval.  (The length of the continuous excavated area beside the northbound lane was not precisely determined but it was long – probably, several kilometres.)

   [15] Exhibit 4

1. By the time of the accident, then, Mr Rideout had been driving through the road works for some considerable distance and, his 2003 statement indicates, was aware of the presence of the continuous excavated section on his left[16].  But, as Exhibit 1 shows and I am also satisfied, the pickets and the like intended to delineate the edge of the north bound lane around the area of the accident were not easily visible at night, or in the rain and, significantly, the white line marking showing the edge of the north bound lane disappears at about the same place the centre line is extinguished.  Mr Carseldine said, and I accept, that around this area where the edge line had disappeared the excavation actually protruded into the carriageway of the northbound lane by up to 150mm[17].

   [16] Exhibit 2, par 8; Exhibit 5, par 1

   [17] T104

1. The sixth and seventh photographs in the sequential bundle comprising Exhibit 1 are particularly telling.  As a north bound driver reached the end of the markings, he was confronted, at night and in rain, with an unmarked road surface, a poorly delineated excavation close by on his left, and no clear guidance for the lane stretching away to the north.  When that is combined with the effect of oncoming headlights, confusion about the proper whereabouts of his lane is not at all improbable.  As Mr Beard acknowledged:

... Drivers in wet weather at night look for guidance any way they can.  The centre line is probably one of the most important things that they rely on for guidance.  The edge line because it’s continuous can be an even better visual guide and particularly if there were opposing vehicles, a lot of drivers find it more comfortable to look at the edge line in those circumstances because it just directs their eye slightly away from centre line where they’re looking into the path of lights.  The road edge guide post delineators, drivers would use whatever they can.[18].

[18] T182.45-60

1. These circumstances affected the northbound driver at, importantly, a juncture at which a southbound driver was also required to navigate parts of the road where the centreline has been obliterated, both slightly to the north of the scene and at the accident site itself[19]. 

   [19] And, see Mr Beard’s evidence at T204.33 – 206.8

1. In the important passage mentioned earlier, Mr Beard conceded that the photographic evidence indicated the edge line was missing; the centre line, edge line and bollards and pickets etc comprise the only three delineators of the lane and, in the place where the accident occurred, two of the three were missing and the loss of the centre line was particularly significant[20].

   [20] T204.10-30

1. This theorem does not, of course, accord with the limited evidence from the driver and, in circumstances where there is also no evidence from the driver of the oncoming vehicle (or any other evidence establishing the presence of that vehicle) must be classified as hypothetical.  At the same time, it is not implausible; rather, it is the product of a thoughtful analysis, from a careful expert witness, of Mr Rideout’s version, balanced against the actual conditions and circumstances. 

1. It is persuasive because it takes into account the natural improbability of the southbound vehicle straying onto the wrong side of the road and, at the same time, Mr Rideout’s perception of its actions; shows why, in the ordinary course, his perception of that vehicle’s otherwise inexplicable behaviour was likely to be wrong; and advances a convincing explanation balancing this information to postulate that, unbeknownst to him, he had himself strayed out of his lane (or misperceived the location of the centre line) and his statements wrongly attribute that misalignment (whether actual, or the product of a misperception) to the error of the oncoming vehicle.

1. The plaintiff’s written submissions, delivered after the hearing finished, touched upon this alternative explanation for the accident but stopped short of embracing it.  In them, Counsel said:

   … the State of Queensland was responsible for the accident because it failed to provide any or any reasonable system of control of the traffic at the worksite (to prevent an incident occurring by either a southbound vehicle veering into the carriageway of the oncoming northbound traffic or by a semi-trailer dropping off the paved surface into the excavation whether to avoid such an oncoming vehicle or otherwise).

2. An added complexity is that it is not entirely consistent with the plaintiff’s pleading or the case it opened.  As pleaded, the case was one involving a positive assertion that an oncoming vehicle moved across the notional centre of the road as a result of some disorientation, forcing the plaintiff’s vehicle into the excavation to avoid a collision.

1. The defendant argues that the plaintiff’s pleaded case does not now permit it to contend that the court should find Mr Rideout was confused by the circumstances described above, and that his disorientation was the product of some negligence on the defendant’s part.  The pleadings and the plaintiff’s case as it was presented also preclude, it is said, an alternative finding that the truck driver himself moved across the notional centre line in the way suggested by Mr Beard. These arguments are not, however, convincing: it is difficult to apprehend what evidence the defendant might have sought or adduced had the case been pleaded differently; and Mr Beard was questioned at length about his theory.

1. Mention has to be made, too, of some other evidence (albeit theoretical or, at least, less than immediate) tending to support the opposite conclusion, i.e. that Mr Rideout stayed in his correct lane.  Mr Carseldine thought this was likely or, at least, that nothing suggested to the contrary[21].  Mr Burns, a truck driver travelling north who came upon the accident a short time after it occurred, was able to navigate the area without incident, albeit principally by following the ‘tracks’ of a preceding vehicle; although he did speak of the difficulties presented when the edge or ‘fog’ lines had been obliterated, or removed[22].

   [21] T126.55 – 127.5

   [22] T78.50 – 79.2

1. Care must be taken to ensure the expert’s opinions do not overwhelm the actual evidence, and that they are not permitted to stray outside their area of expertise[23].  The views expressed by Mr Beard and, in particular, his analysis of the likely conduct of the southbound driver properly remain within those confines and have the added advantage that they accord with ordinary experience.

   [23]Fox v Percy (2003) 214 CLR 118 per Callinan J at 166-7; Anikin v Sierra [2004] HCA 64

1. The weight of the limited evidence which is available points, then, to the conclusion that the accident occurred for one of the two identified reasons: in the way reflected in Mr Rideout’s statements; or because, disoriented by the absence of centre or edge markings, he perceived that an oncoming vehicle had intruded into the space available to him to safely proceed north and, acting on that perception, took evasive action.

1. While Mr Rideout’s evidence is unchallenged and within its limited confines consistent, and there is no attack upon his credit (or his driving history, or ability) it has certain obvious deficits.  First, it is untested and its admission under the Evidence Act does not lead to its automatic acceptance[24].   Second, it is entirely uncorroborated.  Third, it has some elements of improbability, identified by Mr Beard.  Lastly, even if correct, it faces the difficulty that the possible causes of the oncoming driver’s actions are entirely unknown (and this deficit affects it both as a basis for causation, and as an entrée to a finding of negligence against the named defendant).

   [24]s 102, Evidence Act 1977

1. These difficulties are not surmounted by Mr Carseldine’s evidence.  He suggested the centre line should have been re-aligned so that better use could have been made of the widened bitumen surface of the southbound lanes, or a temporary traffic island constructed, so traffic in that direction would be readily separated from oncoming vehicles.  Mr Beard’s evidence was, however, persuasive that these things were not mandated by MUTDU; there is no evidence just when or why the oncoming vehicle might have deviated in the way Mr Rideout alleged; and, importantly, there is no evidence more or different signs would have constituted either an effective warning to the oncoming driver, or made any difference to the driving of that vehicle (or Mr Rideout’s).

1. The paucity of the evidence about causation makes attempts to rely on possible alternate road designs and layouts speculative; and the case based on an alleged absence of warning signs comes up hard against a hurdle of a similar kind – there is simply no evidence they would have made any difference, and that can be a critical element (as Gleeson CJ pointed out in Vairy v Wyong Shire Council [2005] HCA 62[25], and McGill DCJ, QC helpfully discussed, at some length, in McCafferty’s Management Pty Ltd v State of Queensland[26]).  This conclusion applies to both Mr Carseldine’s suggested signs and road markings for southbound drivers, and the signs near the edge of the excavation beside which northbound drivers were travelling.  Nothing in Mr Rideout’s evidence suggests he lost sight of, or did not know of the presence of, that excavation at the accident scene.  Nor do his statements suggest it would have made any difference in that, as he describes what happened, he could only avoid a collision with the southbound vehicle by leaving the road on his left.

   [25]at paras [7], and [8]

   [26]Unreported, District Court Mackay, no 58 of 1995, 30 April 1999

1. This is not, on any view, an easy case.  The significant residual uncertainties which linger from the evidence do not necessarily preclude a finding of causation, or negligence; but the plaintiff must adduce sufficient evidence to support a ‘…positive inference implying negligence and it must be an inference which arises as an affirmative conclusion from the circumstances proved in evidence’[27]. 

   [27]Jones v Dunkel (1959) 101 CLR 298, per Dixon CJ at 304-5

1. In Luxton v Vines[28] the High Court cited a useful passage from an earlier case[29], of particular relevance in the thin evidentiary air found here:

   Of course as far as logical consistency goes many hypotheses may be put which the evidence does not exclude positively.  But this is a civil and not a criminal case.  We are concerned with probabilities, not with possibilities.  The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while in the latter you need only circumstances raising a more probable inference in favour of what is alleged.  In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture… But if the circumstances are proved in which it is reasonable to find on the balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise…[30] (emphasis added)

   [28] (1952) 85 CLR 352 at 358 per Dixon CJ, and Fullagar and Kitto JJ

   [29]Bradshaw v McEwans, unreported, 1951 (HC)

   [30] and, see Jones v Dunkel (1958-9) 101 CLR 298; Nesterczuk v Mortimer (1965) 115 CLR 14, at 149; Holloway v McFeeters (1956) 94 CLR 470; GIO (NSW) v Fredrichberg (1968) 118 CLR 403; and, TNT Management v Brooks (1979) 53 ALJR 267

2. On the plaintiff’s case what caused the oncoming vehicle, seen only by Mr Rideout, to behave as he alleges it did remains something which cannot rise above mere conjecture.  That, combined with the limited weight to be accorded to Mr Rideout’s own evidence, seems to me a major impediment to a finding based on the version arising from the statements he has left. 

1. There remains, however, the alternative hypothesis (which, for reasons already explored, I find more convincing): that the oncoming vehicle was present; that it remained on its correct side of the road; but that Mr Rideout, disoriented by the absence of centre and edge markings, and driving in difficult circumstances at night, in rain, and with oncoming headlights, perceived a risk of a collision and, to avoid it, drove into the road works.  For the reasons already discussed this seems a more probable explanation, and one which better fits the prevailing circumstances.

1. As the cases show the primary question is whether this, too, falls on the wrong side of the line between an acceptable hypothesis (albeit one falling short of certainty) and mere conjecture; or, using the formulation approved by the High Court in Luxton v Vines: whether ‘…circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought…’.  The limits of the exercise are reached at the point where, as the High Court has cautioned in another case, the facts proved do not form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied[31]. 

   [31] West v GIO of NSW (1981) 35 ALR 437 per Stephen, Mason, Aickin and Wilson JJ at 456, citing Dixon J in Jones v Dunkel (supra)

1. There are many instances of the application of these principles[32] but each case will turn on its own facts and, in particular, on the circumstances which may or may not give rise to inferential findings, and their reliability.  The overarching considerations were succinctly stated by McColl JA (with whom Mason P and Giles agreed) in Hunt v Knight Frank (NSW) Pty Ltd [2005] NSWCA 139, at pp 5-6:

   [42] Determination of the issue of liability turned on what was an appropriate inference to be drawn from the circumstances in which the appellant was injured: cf Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 at 358; Holloway v McFeeters (at 480-481); Jones v Dunkel (at 304-305); Girlock (Sales) Pty Ltd v Hurrell [1982] HCA 15; (1982) 149 CLR 155 at 161-162

   [43] The primary judge was required to determine whether there existed ‘evidence supporting some positive inference… an inference which arises as an affirmative conclusion from the circumstances proved in evidence’…It was necessary that she was able to conclude that the circumstances gave rise to a ‘reasonable and definite inference’ rather than ‘to conflicting inferences of equal degree of probability so that the choice between them is a mere matter of conjecture’:  Girlock (Sales) Pty Ltd v Hurrell (at 161-162). However it should be borne in mind that the court is entitled to draw inferences from ‘slim circumstantial facts that exist so long as that goes beyond speculation’: Progressive Recycling Pty Ltd v Eversham [2003] NSWCA 268; (2003) 40 MVR 141 at [7] per Young CJ in Eq (with whom Ipp JA and Davies AJA agreed).

   [32] a number are helpfully collected and summarised in the CCH Torts Commentary, at para 12-740.

2. Unsurprisingly, instances can be found of not dissimilar circumstances in which courts have refused to infer the necessary causative elements, or negligence: in Van Eeden v Henry [2005] NSWCA 14 two vehicles collided on a rural road, and neither driver had any recollection of the circumstances. At trial, the judge said (and, on appeal, Spigelman CJ cited the passage with apparent approval):

   It is no part of the Court’s function to engage in unfounded speculation.  For example, various suggestions have been put forward as to what may have caused the Holden driver to apply his brakes.  It is not open to the Court to make a determination on that issue unless, amongst those competing scenarios, there is one which can stand alone as a rational and more probable explanation for that action… (emphasis added).

As the Chief Justice went on to remark, at [23], there is nothing remarkable in such an outcome (and, see, the decision of the Qld Court of Appeal in Hering v Martin [2004] QCA 70; (2004) 40 MVR 366).

1. A slightly different approach to problems of this kind has been developed out of a phrase used by Dixon J in ­Betts v Whittingslowe (1945) 71 CLR 637 (at 649) namely, that an inference of causation may be available ‘…in the absence of any sufficient reasoning to the contrary’.  As Spigelman CJ remarked in Roads and Traffic Authority of NSW v Palmer [2003] NSWCA 58 at para [89], this method of closing evidentiary gaps or, as it is sometimes described, shifting the onus may apply where a hazard has been created and a mishap occurs; in other words, an inference of causation may arise unless there is reason to the contrary. The approach found favour with the House of Lords in Fairchild v Glenhaven Funeral Services Ltd (2003) 1 AC 32 and has been applied here albeit, primarily, in cases involving illness connected with exposure to asbestos, or as an adjunct to medical treatment: Orica Ltd v CGU Insurance Ltd [2003] NSWCA 331; Rufo v Hosking [2004] NSWCA 391.

1. It can apply where the prevailing circumstances are such that the claimant can be fairly relieved of the obligation to prove, on the balance of probabilities, that the defendant’s tortious conduct caused or materially contributed to the claimant’s injury, and enables the court to ‘…jump the evidentiary gap concerning cause-in-fact merely by proof on the balance of probabilities that the defendant materially contributed to the risk of injury that the claimant suffered’[33].

   [33] Jane Stapleton, Lords a’leaping evidentiary gaps (2002) 10 TLJ 276

1. In RTA (NSW) v Palmer at first instance (Palmer v RTA [2001] NSWSC 846) Wood CJ (at CL) found that a catastrophic single vehicle accident was caused by ‘dangerously inadequate’ signs around road works[34] (among other defects associated with the works).  He was able to identify a ‘… risk of an unwarned motorist who approached the corner at top speed which was in excess of that which was safe in the prevailing conditions, of losing control in the gravel…’[35] and to find that the case was one in which it was reasonable to infer that the accident did occur in a manner associated with the defendant’s proven breaches of duty.

   [34]Palmer v RTA (supra) at para [154]

   [35] at [155]

1. The case was, then, one which fell on the claimant’s side, as it were, of a line Woods CJ described at [158]:

   It remains correct that a balance of probability test, while not calling for mathematical evaluation, still requires a court to reach a level of ‘actual persuasion’: Seltsam v McGuinness (2000) 49 NSWLR 262 at 284. That does not , however, call for a degree of scientific certitude or precision for which experts, in the present case, appeared to be searching in their conclave, an approach considered to be inappropriate in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 eg at 643-643… what it does mean is that a mere possibility that the plaintiff’s injury was caused by, or materially contributed to by an act or omission, constituting a breach of duty by a relevant defendant is not enough… (emphasis added).

2. This is a case in which, it seems to me, there is an identifiable risk of the kind described by Woods CJ (supra, at para [33]) – the absence of edge and line markings around the roadworks, identified as hazardous by Mr Beard.  Complexity arises for the claimant, however, when an attempt is made to causally connect that hazard with the occurrence of the accident.  The version of its driver is unable to be tested in any important respect and despite the impressive nature of Mr Beard’s evidence there remains, at the highest, a mere possibility that Mr Rideout was, in truth, flummoxed by the disappearance of the line markings.

1. The explanation which I have found is more likely might, with the support of more precise evidence, warrant a finding in the claimant’s favour; Mr Beard is rightly critical of the disappearance of the line markings and an accident arising from that circumstance is not far-fetched or fanciful.  It is, however, the leap across the evidentiary gap at which, ultimately, the claimant falls.  It is simply impossible to be confident that the more plausible scenario posited by Mr Beard did, in fact, occur; and it suffers from the significant deficit that the only evidence from the deceased driver is quite different. 

1. A number of possibilities arise but, as the evidence stands they remain no more than possibilities and never ascend to become probabilities, embellished with that degree of reasonableness necessary to attract a conclusion, for the plaintiff, on the right side of the ledger described in Luxton v Vines and the other authorities discussed above.  They remain, as Woods CJ categorised them, ‘mere possibilities’.

1. For these reasons, the claim is dismissed.