Liverpool City Council v Millett & Anor; Liverpool City Council v WadeLiverpool City Council v Millett & Anor

[2004] NSWCA 340

CITATION:	Liverpool City Council v Millett & Anor; Liverpool City Council v WadeLiverpool City Council v Millett & Anor [2004] NSWCA 340
HEARING DATE(S):	15 September 2004
JUDGMENT DATE:	9 December 2004
JUDGMENT OF:	Mason P at 1; Sheller JA at 2; Tobias JA at 19
DECISION:	In CA 40130/03; a) Appeal allowed in part; b) Set aside the orders made by Norrish DCJ on 7 February 2003 and in lieu thereof order that; (i) there be judgment for the plaintiff as against the second defendant in the amount of $58,351.70; (ii) the cross-claims be dismissed; (iii) the second defendant pay the plaintiff's costs of the District Court proceedings; c) Order that the first respondent pay the appellant's costs of the appeal, and in respect of those costs to have a certificate under the Suitor's Fund Act, 1951 if otherwise entitled; d) Order that the appellant pay the second respondent's costs of the application for leave to appeal and the costs of his submitting appearance in the appeal; e) Liberty to apply within 7 days of the date of this judgment to amend these orders if they fail to accurately reflect the findings with respect to the first respondent's contributory negligence; In CA 40129/03; a) Appeal allowed in part; b) Set aside the orders made by Norrish DCJ on 7 February 2003 and in lieu thereof order that; (i) there be judgment for the plaintiff against the first defendant and the second defendant in the sum of $20,779; (ii) as between the first and second defendants; · the first defendant to pay the plaintiff the amount of $9,350.55; · the second defendant to pay the plaintiff the amount of $11,428.45; (iii) first cross-claim be dismissed; (iv) there be judgment for the second cross-claimant as against the second cross-defendant in the sum of $12,870; (v) the first defendant pay the plaintiff's costs of the Local Court proceedings and of the District Court proceedings prior to the joinder of the second defendant; (vi) the first defendant pay 45% of the plaintiff's costs of the District Court subsequent to the joinder of the second defendant; (vii) the second defendant pay 55% of the plaintiff's costs of the District Court proceedings subsequent to the joinder of the second defendant; c) Order that the second respondent pay the appellant the amount of $10,964.48 plus interest in accordance with Schedule J for the period from 24 December 2003 to the date of this judgment; d) Order that the second respondent pay the appellant's costs of the appeal and, in respect of those costs, to have a certificate under the Suitor's Fund Act 1951, if otherwise entitled; e) Order that the appellant pay the first respondent's costs of the application for leave to appeal and the costs of his submitting appearance in the appeal; f) Liberty to apply within 7 days of the date of this judgment to amend these orders if they fail to accurately reflect the findings with respect to the second respondent's contributory negligence
CATCHWORDS:	TORTS - Negligence - Duty of care - To road users - Breach of duty - Approaches in determining negligence - Whether different approaches entail different outcomes - Inadvertence - No marked centreline on road - Plaintiff's car partly on incorrect side of road - TORTS - Contributory negligence - Breach of duty - Whether mutually exclusive
LEGISLATION CITED:	Law Reform (Miscellaneous Provisions) Act 1965 (NSW) Motor Traffic Regulations 1935 Suitor's Fund Act 1951
CASES CITED:	Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35 Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317 Boroondara City Council v Cattench [2004] VSCA 139 Brito v Fairfield Council (2000) 110 LGERA 44 Brodie v Singleton Shire Council (2001) 206 CLR 512 Byrnes v Burwood Council [2003] HCA Trans 462 Clarke v Coleambally Ski Club Inc [2004] NSWCA 376 Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512 Greater Shepparton City Council v Davis [2004] VSCA 140 Home Office v Dorset Yacht Co Ltd [1970] AC 1004 House v The King (1936) 55 CLR 499 Joslyn v Berryman (2003) 214 CLR 552 Junkoric v Neindorf [2004] SASC 325 March v E & M H Stramore Pty Ltd (1991) 171 CLR 506 McLean v Todman (1984) 155 CLR 306 Nagle v Rottnest Island Authority (1993) 177 CLR 423 Nambucca Shire Council v Connor [2004] NSWCA 13 Podrebersek v AIS Pty Limited (1985) 59 ALJR 492 Polley v Maitland Benevolent Society [2004] NSWCA 323 Richmond Valley Council v Standing (2002) 127 LGERA 237 Romeo v Conservation Commission (NT) (1998) 192 CLR 431 Smith v The Broken Hill Pty Co Ltd [1957] 97 CLR 337 Sutherland Shire Council v Hayman (1985) 157 CLR 424 Temora Shire Council v Stein [2004] NSWCA 236 Wyong Shire Council v Shirt (1980) 146 CLR 40
PARTIES :	Liverpool City Council Richard Gregory Millett Nigel Bruce Wade
FILE NUMBER(S):	CA 403130/03; 40129/03
COUNSEL:	A: D Davies SC / D Villa 1R: S Norton SC / A Healey 2R: Submitting appearance
SOLICITORS:	A: McCabe Terrill Lawyers, Sydney 1R: G J Byles & Associates, Liverpool 2R: Brydens Law Office, Liverpool

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 776/01; DC6655/01
LOWER COURT JUDICIAL OFFICER :	Norrish DCJ

CA 403130/03
CA 40129/03
DC 776/01
DC 6655/02

MASON P
SHELLER JA
TOBIAS JA

Thursday 9 December 2004

LIVERPOOL CITY COUNCIL v RICHARD GREGORY MILLETT & ANOR

LIVERPOOL CITY COUNCIL v NIGEL BRUCE WADE & ANOR

M was injured when his vehicle strayed partly onto the wrong side of the road and collided with an oncoming car. The accident occurred at night as M approached a crest. M did not see the oncoming lights of the other car until a moment before the accident. Both M and the other driver were familiar with the stretch of road, which was in poor condition having no marked centreline and an uneven edge that fell away into loose gravel. M claimed to have been moving toward (and thence across) the centre to avoid the road’s frayed edge. M sued the Council for negligence in relation to the road’s condition. The primary judge found the Council negligent by failing to mark a centreline on the approaches to the crest. M was found to have contributed to the negligence such that the verdict was reduced by 10%. The Council appealed bringing three arguments. First, that it had not breached its duty by failing to mark a centreline on the approach to the intersection. Secondly, that the accident was solely due to M’s failure to keep a proper lookout and remain on the correct side of the road. Thirdly, that M’s contributory negligence exceeded 10%.

HELD: (per Tobias JA with Mason P agreeing) (as part of a detailed discussion considering, firstly, whether a finding of breach of duty is likely to change depending upon the approach taken in determining negligence, and concluding that generally there should be no difference in outcome, and secondly, the differences between the duty of care that a local council (or other authority) owes to road users as opposed to pedestrians and the effect of this upon findings of contributory negligence):

(1) A council or other authority cannot always expect a road user to avoid obvious risks or dangers, such as the absence of a centreline on the approach to a blind crest, in the sense that the council need take no steps to remedy such defects. In the present case the risk of a road user such as M straying inadvertently, or as a consequence of misjudgement or carelessness, onto the incorrect side of the road, at night, while attempting to avoid the broken edge of the road without the guidance of a centreline, was an occurrence which was highly probable and likely to result in a head-on collision with potentially catastrophic consequences. Further, it was the very absence of the centreline, combined with the frayed edge and the narrowness of the road that made it difficult for a road user, even a road user exercising reasonable care for their own safety, to remain on the correct side of the road. Accordingly, the Council’s duty was breached as it knew (or ought to have known) that a road user approaching the crest, particularly one not keeping a proper lookout or who was travelling too fast, might misjudge the road’s centre.

Joslyn v Berryman (2003) 214 CLR 552; Clarke v Coleambally Ski Club Inc [2004] NSWCA 376; Brodie v Singleton Shire Council (2001) 206 CLR 512, considered.

Greater Shepparton City Council v Davis [2004] VSCA 140; Smith v The Broken Hill Pty Co Ltd [1957] 97 CLR 337; Temora Shire Council v Stein [2004] NSWCA 236; Boroondara City Council v Cattench [2004] VSCA 139; Junkoric v Neindorf [2004] SASC 325; Byrnes v Burwood Council [2003] HCA Trans 462; Home Office v Dorset Yacht Co Ltd [1970] AC 1004; Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; Wyong Shire Council v Shirt (1980) 146 CLR 40; Romeo v Conservation Commission (NT) (1998) 192 CLR 431; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512, referred to.

(2) The above conclusion has been reached by assuming that the Council owed M a general duty of care and then considering whether that duty had been breached in the circumstances. Had the court considered the matter by first determining if the council did in fact owe M a duty of care, the same conclusion would have been reached. This is because M’s inadvertence did not move him outside the scope of the Council’s duty of care such that the court would have then considered whether the duty had been breached, and the above conclusion would have resulted.

Joslyn v Berryman (2003) 214 CLR 552; Clarke v Coleambally Ski Club Inc [2004] NSWCA 376; Brodie v Singleton Shire Council (2001) 206 CLR 512, considered.

(3) The issue of the road user’s inadvertence is relevant to both contributory negligence and breach of the Council’s duty of care. However, the existence of inadvertence (or a finding of contributory negligence) will not be determinative of whether the Council breached its duty; a finding of breach of duty and contributory negligence are consistent as the two concepts are not mutually exclusive.

Joslyn v Berryman (2003) 214 CLR 552; Clarke v Coleambally Ski Club Inc [2004] NSWCA 376; Brodie v Singleton Shire Council (2001) 206 CLR 512, considered.

(4) It follows that the primary judge was correct to find that the Council was in breach of its duty of care notwithstanding that M failed to detect any illumination from the headlights of the oncoming car prior to the collision.

(5) The fact that the Council had not been made aware of any accidents relating to the section of the road, and thus was not obliged to ascertain whether the road presented a problem, is erroneous in that the Council can be in breach by failing to take reasonable steps to inspect for such dangers as might be expected. In this case the road was an accident waiting to happen in that there was a high probability of its occurrence.

Joslyn v Berryman (2003) 214 CLR 552; Clarke v Coleambally Ski Club Inc [2004] NSWCA 376; Brodie v Singleton Shire Council (2001) 206 CLR 512, considered.

(6) It was open to the primary judge, as established by the expert evidence, to find that in all probability the accident would have been avoided had there been a marked centreline.

(7) The primary judge erred in finding that M was only 10% responsible for his injuries. It was M’s failure to keep as far left as practicable that caused the collision, enhanced by his speed. In the circumstances it is just and equitable to reduce M’s verdict by 45%.

Podrebersek v AIS Pty Limited (1985) 59 ALJR 492, considered.

HELD: (per Sheller JA dissenting) By failing to keep as far left as reasonably practicable, misjudging the imaginary centreline and failing to slow as he approached the crest (which caused him to partially cross the imaginary centreline and hence the accident) M was not taking ordinary or reasonable care for his own safety. Further, there was no unrepaired hidden trap, nor any contribution from the road (besides its poor condition of which M was aware). In the circumstances M, through a failure to exercise reasonable or ordinary care for his own safety, has failed to establish any breach by the Council of any duty owed to him.

Brodie v Singleton Shire Council (2001) 206 CLR 512, applied.

Miller v McKeon (1905) 3 CLR 50, considered.

CA 403130/03
CA 40129/03
DC 776/01
DC 6655/02

MASON P
SHELLER JA
TOBIAS JA

Thursday 9 November 2004

LIVERPOOL CITY COUNCIL v RICHARD GREGORY MILLETT & ANOR

LIVERPOOL CITY COUNCIL v NIGEL BRUCE WADE & ANOR

Judgment

1 MASON P: I agree with Tobias JA.

2 SHELLER JA: The first respondent, Richard Gregory Millett, by an amended ordinary statement of claim joined the appellant, Liverpool City Council, in proceedings brought against Nigel Bruce Wade, the second respondent, which arose out of a collision between Mr Millett’s motor vehicle, which was being driven north, and Mr Wade’s motor vehicle, which was being driven south, on Second Avenue, West Hoxton at the intersection of Second Avenue and Sixteenth Avenue on 9 October 1999. Mr Millett sued the Council for negligence and gave the following particulars:

“a. Failing to take any or any adequate precautions for the plaintiff’s safety;
b. Putting the plaintiff in a position of peril in the circumstances;
c. Failing to maintain or adequately maintain the roadway;
d. Allowing the roadway to become broken up and dangerous;
e. Failing to ensure that cars travelling in the direction of the first defendant were notified by means of sign posts that the crest of a hill was imminent;
f. Failing to adequately mark or sign post the road;
g. Failing to devise, institute and maintain a proper and safe system of road repair;
h. Failing to warn or adequately warn road users such as the first defendant that the road was broken up and dangerous;
i. Failing to inspect or adequately inspect the said road surface.”

3 During the course of the trial before his Honour Judge Norrish QC, the personal injury proceedings between Mr Millett and Mr Wade were settled. Mr Millett’s proceedings against the Council continued, as did Mr Wade’s proceedings, originally begun in the Local Court and transferred to the District Court, against Mr Millett seeking compensation for damage to Mr Wade’s motor vehicle said to have been caused by Mr Millett’s negligence.

4 In the proceedings between Mr Millett and the Council, the trial Judge entered a verdict and judgment for Mr Millett against the Council in the sum of $95,485 after reducing the verdict by 10 per cent on account of Mr Millett’s contributory negligence. His Honour also found that Mr Wade was not in any way liable for the damage arising from the collision. In the property damage case, the trial Judge entered a verdict and judgment for Mr Wade against Mr Millett and the Council, Mr Millett to pay $2,078 and the Council $18,701. The Council sought and was granted leave to appeal against the decision against it for personal injury damage and for property damage.

5 The trial Judge’s conclusion as to liability was expressed as follows:

“Having regard to the facts found above and other observations made in the course of the judgment I am satisfied that the [Council] failed to take reasonable care to prevent a source of risk to [Mr Millett] (and other road users) which gave rise to a foreseeable risk of harm which caused damage to [Mr Millett] and [Mr Wade]. The failure primarily caused the collision but there was a lesser contribution by [Mr Millett] to which I refer below. The intersection was potentially dangerous for traffic on Second and Sixteenth Avenue because of the positioning of the intersection on a crest, particularly for traffic heading in a northerly direction. Part of the risk to users had been removed by the placing of Stop signs on the Sixteenth Avenue entries.
The failure I have found arose specifically and primarily by reason of the failure of the [Council] to mark separation lines on the southern and northern sides of the intersection on Second Avenue to identify for motorists the centre of the road entering the intersection. The risk of foreseeable harm was increased by the failure of the [Council] to maintain the road surface in such a way as to ensure that Second Avenue remained aligned on both sides of the intersection and such as to maintain the edges of the southern side of the intersection so as not to force or require north bound traffic to move towards the centre of the road to avoid damage or loss of control of the vehicle on an uneven surface. This area of the road was, in my opinion, at the very least in ‘very poor’ condition (to use Mr Philpott’s phrase). Although not decisive in this case the risk of harm (or damage) could have been reduced by signage such as advising motorists to ‘slow’ or warning of dangers in passing because of the deteriorated edges either side of the intersection. I have taken into account the reasonableness of the [Council’s] conduct having regard to its resources and its priorities as at the time of the collision in concluding that it failed in its duty to [Mr Millett]. The cost of marking the road with separation lines, as opposed to resurfacing it, or better still reconstructing it, was minuscule and well within the [Council’s] economic capacity. The danger and inadequacies of the intersection and the roadway, given its function as a connector road in an expanding community, ought to have been patently obvious to any person employed by the Council with the responsibility of reporting upon or maintaining the road surfaces in the municipality.
A more fundamental failure of the [Council] in the exercise of its duty of care was suggested in the failure of the [Council] to maintain Second Avenue at a width greater than evidenced before me. On the evidence before me I am unable to conclude that issue one way or the other, primarily taking into account the reasonableness of the allocation of resources in the context of competing priority considerations for the Council.”

6 Of contributory negligence the trial Judge said:

“The [Council] alleges contributory negligence as against [Mr Millett]. The [Council] argues that [Mr Millett] failed to take reasonable care for his own safety by the manner of his driving of the vehicle. Further, it is argued that the damage caused to [Mr Wade] was reasonably foreseeable and contributed to by [Mr Millett’s] conduct. If contributory negligence has been made out by the [Council] I am required to reduce compensation which otherwise this Court considers to be fair, by an appropriate percentage having regard to the degree of [Mr Millett’s] responsibility for the damage. It requires proof of more than mere inattention or inadvertence. Thoughtlessness will not necessarily amount to contributory negligence (see Commissioner of Railwaysv Ruprecht (1979) 142 CLR 563).
If contributory negligence is made out this Court has a wide discretion to reduce [Mr Millett’s] damages to the extent that the Court considers just and reasonable having regard to [Mr Millett’s] share of responsibility for the harm suffered. I am required to consider comparison of the degree of culpability of the [Council] with that of [Mr Millett] and the relative causative importance of the conduct of each party. ( Podrebersek v AIS Pty Ltd (1985) 59 ALR 529).
Prima facie the movement of [Mr Millett’s] car towards and across an imaginary centre line on the road indicates at least some degree of responsibility by [Mr Millett] for the harm to himself and suffered by [Mr Wade] in the character of property damage. Whilst [Mr Millett] held a responsibility to exercise care for the safety of himself and others on the road, in my view such failure by [Mr Millett] was primarily caused by the breach of duty of the [Council] as previously found. In my view, whilst the [Council] has established that [Mr Millett] was contributorily negligent, the conduct of [Mr Millett] was almost entirely due caused by the prevailing road condition for which the [Council] was responsible.

I gave consideration to whether the [Council] had failed in its plea of contributory negligence because of the result of a ‘sudden emergency’ or as a consequence of the ‘agony of the moment’. Whilst there is a strong element of the prisoner ‘escaping from inconvenience by taking a risk’, in determining whether his conduct was unreasonable to any extent I believe I am required to answer that by weighing the degree of convenience to which he may have been subjected against the risk that he took in order to escape it. In this matter the situation is complicated by my finding that the absence of a centre line provided no indication to [Mr Millett] as to where the centre of the road was in a poorly lit intersection. Whilst I believe it was reasonable for [Mr Millett] to move his motor vehicle towards the centre of the road and to cross the centre of the road in circumstances where no oncoming vehicle was anticipated, it seems to me that the extent to which [Mr Millett] crossed the centre line, whilst not precluding a collision, increased the likelihood of it. The breach of duty by the [Council] influenced considerably [Mr Millett’s] conduct of his vehicle. Given the other circumstances to which I have referred, the contributory negligence of [Mr Millett] was relatively slight and thus I conclude that there should be a reduction of the verdict payable to [Mr Millett] of 10% of the total amount. In respect of [Mr Wade’s] claim for property damage the damages payable ought be likewise apportioned between the two defendants with the Council required to pay the preponderance of damages at 90%.”

7 In Brodie v Singleton Shire Council (2001) 206 CLR 512 Gaudron, McHugh and Gummow JJ, who with Kirby J formed the majority, said at 579-580 under the heading “(ii) Repair, maintenance and works”:

“158 A rejection of the ‘immunity’ for ‘highway authorities’ and the recognition of a duty of care in terms expressed above with reference to Wyong Shire Council v Shirt does not necessarily involve the imposition of an obligation in all cases to exercise powers to repair roads or to ensure they are kept in repair. An authority may have various statutory powers invested in it and would be under a duty not to use, misuse or fail to use those powers to create a situation of danger which creates a reasonably foreseeable risk of injury to a user of the road.
159 The discharge of the duty involves the taking by the authority of reasonable steps to prevent there remaining a source of risk which gives rise to a foreseeable risk of harm. Such a risk of harm may arise from a failure to repair a road or its surface, from the creation of conditions during or as a result of repairs or works, from a failure to remove unsafe items in or near a road, or from the placing of items upon a road which create a danger, or the removal of items which protect against danger.
160 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 person using the road will themselves take ordinary care; Miller v McKeon (1905) 3 CLR 50 at 60.” [Other citations omitted]

8 At 581 under the heading “(iii) Pedestrians”, their Honours said:

“163 The formulation of the duty in terms which require that a road be safe not in all circumstances but for users exercising reasonable care for their own safety is even more important where, as in Ghantous, the plaintiff was a pedestrian. …”

9 After referring to Callinan J’s observation that persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes, their Honours said:

“Of course, some allowance must be made for inadvertence. Certain dangers may not readily be perceived because of inadequate lighting or the nature of the danger (as in Webb v South Australia (1982) 56 ALJR 912) or the surrounding area (as in Buckle (1936) 57 CLR 259 at 266, where the hole was concealed by grass). In such circumstances, there may be a foreseeable risk of harm even to persons taking reasonable care for their own safety. … In Romeo (1998) 192 CLR 431 at 455, Toohey and Gummow JJ noted in a different context that the care to be expected of members of the public is related to the obviousness of the danger. Kirby J pointed out in the same case that even an occupier of premises ‘is generally entitled to assume that most entrants will take reasonable care for their own safety’ (at 478). Each case will, of course, turn on its own facts.”

10 In Miller v McKeon, to which their Honours referred, the High Court overturned a decision of the Full Court of the Supreme Court of New South Wales setting aside the non-suit of the plaintiff by Pring J. This was a case where the plaintiff had been injured by travelling upon a highway and sued the Nominal Defendant appointed on behalf of the government of New South Wales for negligence in executing certain works upon a highway and in not maintaining the highway in a condition of safety for persons lawfully using it. The plaintiff, who was being driven along the road by a friend in a buggy on a dark night, got out of the buggy at his friend’s request to see whether they had reached the mouth of a cutting and inadvertently fell down a steep bank at the side of the cutting and was injured. The passage referred to in Brodie was in the judgment of Griffith CJ at 60 where his Honour said, in speaking of the reasonable care the government was bound to use:

“The analogy is rather to the case of a private owner who invites the public to pass through his land by a track which he has there constructed, and which is reasonably safe for persons using ordinary care. If such an owner, after granting the permission, puts, or allows to be put upon the track which he so offers, a new obstacle or danger by which persons using reasonable care would be liable to be injured, he is liable for the consequences. …”

11 Earlier at 58 Griffith CJ said:

“Now, it is important to consider what is the real nature of the action. It is not brought for an interference with an existing highway without lawful excuse, but for negligence in constructing a cutting while forming a practicable road upon the highway – that is, for negligently performing an act which was otherwise perfectly lawful. Now, negligence for which an action will lie has been well defined by Brett MR in the case of Heaven v Pender 11 QBD 503 at 507. He says:- ‘Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff, without contributory negligence on his part, has suffered injury to his personal property.’ Now, ordinary care or skill is very much the same as reasonable care or skill under the circumstances.”

12 At common law contributory negligence was a complete defence in New South Wales until 1965 and the coming into force of the Law Reform (Miscellaneous Provisions) Act of that year. Contributory negligence means a failure on the part of the person injured to take reasonable care of him or herself in his or her own interest. As Professor Fleming pointed out in the Law of Torts, 9th ed, at 302-3:

“… the term ‘contributory’ might misleadingly suggest that the plaintiff’s negligence, concurring with the defendant’s, must have contributed to the accident in the sense of being instrumental in bringing it about. Actually, it means nothing more than his failure to avoid getting hurt by the defendant, for example by riding in a car without fastening the seatbelt or the driver known to be incompetent or intoxicated; even failing to switch on a back-up power unit in the case of an electricity outage.”

13 Even so, the fact that s 9(1) of the 1965 Act provides that, if a person suffers damage as a result partly of that person’s failure to take reasonable care and partly of the wrong of any other person, -

“(a) a claim in respect of the damage is not defeated by reason of the contributory negligence of the claimant, and
(b) the damages recoverable in respect of the wrong are to be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage”

introduces a problem in understanding the formulation of the duty in terms which require that a road be safe, not in all circumstances, but for users exercising reasonable care for their own safety.

14 The critical facts in this case were that Mr Millett was approaching the intersection accelerating up the hill at a speed of between 50 and 60 kilometres per hour with his view of oncoming traffic obscured by the crest of the road at the intersection and at that point moved his vehicle onto the incorrect side of the road. In his defence, he expected that he would see the lights of any oncoming traffic and believed that he was still on the correct side of the road though he had moved towards the centre to avoid a rough stretch of road on the near side of his vehicle at the kerb. The most difficult part of Mr Millett’s evidence is that he said that he never saw the lights of Mr Wade’s car at any point in the period up to the impact of the two vehicles. The first question to be answered in determining the liability of the Council is whether the Council had taken reasonable steps to prevent there remaining a source of risk for users exercising reasonable care for their own safety.

15 In his reasons for judgment, which I have had the benefit of reading, when dealing with contributory negligence, Tobias JA refers to the trial Judge’s conclusion that it was reasonable for Mr Millett to move his vehicle towards the centre of the roadway and to cross the centre of the road in circumstances where no oncoming vehicle was anticipated. In the opinion of Tobias JA, the trial Judge failed to take into account and give proper weight to the fact that Mr Millett recognised that there was a possibility of an oncoming motor vehicle which was obscured by the crest and that, if necessary, he should have slowed down so as to ensure that he was as far to the left of the imaginary centre line as possible without running on to the verge. A reference is made to cl 65 of the Motor Traffic Regulations 1935, which obliges the driver of a motor vehicle to keep the vehicle as close as practicable to the left boundary of the carriageway.

16 In reassessing the proportion to be deducted for contributory negligence Tobias JA observed that it is apparent that the collision would not have occurred had Mr Millett proceeded towards the intersection keeping as far to the left as was practicable. There was no doubt that this would have been an easier task for him to accomplish had he been aware of the precise location of the centre line of the roadway. However, it was his failure to keep as far to the left as practicable and his misjudgement of the location of the imaginary centre line and, in the circumstances, his failure to slow down as he approached the crest of the intersection that caused him partially to cross that line and thereby sustain his injuries in the collision. I agree with what Tobias JA says but this means that the Council has been held liable for breach of a duty of care to a person using the road who suffered injury because he had not taken ordinary or reasonable care for his own safety. The common example of a Council’s breach of duty on a footpath arises from a hidden trap which the Council has created or failed, with reasonable notice, to repair. There was no hidden trap in this case nor any contributing feature of the road, beyond its being in very poor condition. It was practicable for Mr Millett safely to traverse the rough part of Second Avenue approaching the intersection by keeping to the left if his speed was appropriately reduced. He was aware of the state of this section of the road. Instead he chose to move to the centre of the road and went too far in the sense that inadvertently he crossed the imaginary centre line. As Tobias JA has said, it was Mr Millett’s failure to keep as far to the left as practicable, his misjudgement of the location of the imaginary centre line and his failure to slow down as he approached the crest of the intersection that resulted in his sustaining injuries in the collision.

17 In my opinion, Mr Millett failed to establish any breach by the Council of any duty owed to him. Accordingly, the Council’s appeals should be upheld and the orders made by Norrish DCJ set aside, verdicts for the Council substituted and Mr Millett ordered to pay the costs of the Council and Mr Wade of the hearing and of the Council on the appeal. One consequence of this will be that Mr Millett pay the whole of the District Court verdict in favour of Mr Wade.

Orders

18 I propose the following orders:

CA 40130/03
1. Appeal allowed;
2. Set aside the orders made by Norrish DCJ on 7 February 2003 and in lieu thereof order:
(a) judgment for the second defendant;
(b) cross-claims dismissed;
(c) plaintiff to pay the second defendant’s costs of the District Court proceedings.
3. First respondent to pay the appellant’s costs of the appeal, and in respect of those costs to have a certificate under the Suitors’ Fund Act 1951 if otherwise entitled.
4. Appellant to pay the second respondent’s costs of the application for leave to appeal and the costs of the submitting appearance in the appeal.
CA 40129/03
1. Appeal allowed;
2. Set aside the orders made by Norrish DCJ on 7 February 2003 and in lieu thereof order:
(a) judgment for the plaintiff against the first defendant in the sum of $20,779;
(b) judgment for the second defendant;
(c) cross-claims dismissed;
(d) first defendant to pay the plaintiff’s costs of the District Court proceedings and the Local Court proceedings;
(e) first defendant to pay the second defendant’s costs of the District Court proceedings.
3. Order the second respondent to pay the appellant the amount of $22,392.93 (plus interest in accordance with Schedule J for the period from 24 December 2003 to the date of judgment.
4. Second respondent to pay the appellant’s costs of the appeal, and in respect of those costs to have a certificate under the Suitors’ Fund Act 1951 if otherwise entitled.
5. Appellant to pay the first respondent’s costs of the application for leave to appeal and the costs of the submitting appearance in the appeal.

19 TOBIAS JA: At about 7.00pm on 9 October 1999 the first respondent, Richard Gregory Millett (Mr Millett), was driving north on Second Avenue, West Hoxton in the area of Liverpool City Council (the Council). At the same time the second respondent, Nigel Bruce Wade (Mr Wade), was driving in a southerly direction on Second Avenue. An offset head-on collision occurred between the vehicles driven by Mr Millett and Mr Wade at the intersection of Second Avenue and Sixteenth Avenue (the intersection). Both Mr Millett and Mr Wade sustained personal injuries in the accident as well as damage to their respective vehicles.

20 Mr Millett instituted proceedings against Mr Wade and the Council alleging negligence against both. Each of the Council and Mr Wade cross-claimed against the other.

21 Mr Wade instituted proceedings against Mr Millett and the Council also claiming that each was negligent. His claim in respect of his personal injuries was settled but his property damage claim remained alive. Mr Millett cross-claimed against Mr Wade and the Council.

22 On 7 February 2003 Norrish DCJ heard the proceedings and found in favour of Mr Millett against the Council but dismissed his claim against Mr Wade. His Honour assessed Mr Millett's damages at $106,094 but found Mr Millett to be guilty of contributory negligence. He reduced the amount of Mr Millett's damages by 10% and entered judgment in his favour against the Council in the amount of $95,485.

23 As far as Mr Wade's claim for property damage against Mr Millett and the Council was concerned, his Honour entered judgment against both in the sum of $20,779 of which 90% was to be payable by the Council and 10% by Mr Millett. Both were ordered to pay Mr Wade's costs in equal proportions.

Leave to appeal

24 The Council sought this Court's leave to appeal against the primary judge's decision in both proceedings. Mason P and Hodgson JA granted leave on 25 November 2004. A condition of the leave was that in the event that the Council displaced the judgment obtained by Mr Wade, it would not seek to recover the amount of that judgment and costs from him. The intent of this condition was that in the event the Council was successful on the appeal, it would recover any amounts paid by it to Mr Wade from Mr Millett. Accordingly, Mr Wade filed a submitting appearance in the appeals and took no further part in the hearing.

The issues on the appeal

25 The Council firstly contested the finding of the primary judge that it had breached its duty of care to Mr Millett (and Mr Wade) in failing to provide, as is common, a "single or double unbroken white centre line" in Second Avenue for a distance of approximately 40 metres north and south of the intersection. It was said that Second Avenue, a semi-rural road, was not less than 6 metres wide for a 40 metre distance to the south of the intersection and not less than 5 metres wide for the same distance to the north of the intersection. Accordingly oncoming vehicles were able to pass each other on their respective correct sides of the road. Thus it was submitted, it was not reasonable to require the Council, in order to fulfil its duty of care, to provide centrelines as his Honour had found.

26 Allied with this first issue, the Council secondly contended that the head-on collision between the vehicles was due solely to Mr Millett's failure to keep a proper lookout and remain on his correct side of Second Avenue as he approached the intersection.

27 The third issue (which only arose if the first issue was decided against the Council) concerned a challenge to the primary judge's finding that Mr Millett was only responsible for 10% of his injuries. It was submitted that not only was he guilty of contributory negligence (as the primary judge had found) but that, in accordance with principle, his responsibility for his injuries should be assessed at not less than 50%.

The primary judge's findings of fact

28 Generally speaking, but with two exceptions referred to below, the Council did not challenge the primary judge's findings (at Red 41-46) as to the layout of the intersection, the features of Second Avenue and the intersection, and the evidence as to the collision. Accordingly, I recite the crucial factual findings in summary form.

29 Second Avenue runs in a north-south direction and is a relatively straight road on either side of the intersection. The relevant part of Second Avenue runs from its intersection with Fifteenth Avenue, across Sixteenth Avenue to its intersection with Seventeenth Avenue – an overall distance of approximately 350 metres.

30 Heading north from Fifteenth Avenue (the direction in which Mr Millett was travelling), Second Avenue dips down to a culvert and then rises for a distance of approximately 80 metres to a crest where it intersects Sixteenth Avenue where the collision occurred (the intersection). On the northbound approach to the intersection the road slopes steeply with a gradient estimated by the experts called on behalf of Messrs. Millett and Wade, of between 11.5% and 12%. According to Mr Schnerring's evidence (the expert retained by Mr Millett), the site distance over the crest was restricted to approximately 20 metres. His Honour accepted the evidence of both drivers that neither had any time to take evasive action.

31 Although the road reserve of Second Avenue was quite wide, the actual bitumen pavement was not. It was common ground that on the approaches to the intersection the roadway (by which I mean the bitumen pavement) was in very poor condition. The primary judge found that for a distance of least 40 metres north and south of the intersection, the Second Avenue roadway varied in width between 4.5 and 6.4 metres. He found that it was predominantly 5 metres or wider to the north of the intersection and no less than 6 metres wide to the south: in each case for a distance of at least 40 metres.

32 There were two critical factors concerning the condition of the roadway. Firstly, there was no marked centreline. Secondly, the western pavement edge immediately before the intersection for a vehicle travelling north and the eastern pavement edge immediately before the intersection for a vehicle travelling south, were extremely ragged and worn requiring a vehicle in both cases to move towards the centre of the roadway in order to avoid those edges and to ensure that the nearside wheels of the vehicle remained on solid pavement.

33 Mr Schnerring, in evidence accepted by the primary judge, described the edges to which I have referred as being broken, in very poor condition and poorly defined and variable. In particular, the pavement edge on the northerly approach to the intersection had a differential in height between it and the gravel verge or shoulder of up to 4 inches. (Black 2/278 B-C; 455 J-L)

34 Both Mr Millett and Mr Wade were familiar with this section of Second Avenue. Mr Millett was driving a vehicle that was 1.857 metres wide, and Mr Wade was driving a vehicle that was 1.675 metres wide. It was dark, being approximately 7.00 pm, and each had their headlights on. The evidence established that Mr Millett had his lights on low beam: there was no evidence whether Mr Wade had his lights on high or low beam, but it is common ground that for present purposes it should be assumed that they were on low beam.

35 After turning from Fifteenth Avenue into Second Avenue, Mr Millett passed a stationary motor vehicle facing in a northerly direction, half on and half off the pavement to the south of the culvert and which had its lights on high beam. He was therefore required to veer around this vehicle after which he crossed the dip at the culvert and commenced the climb to the crest at the intersection. Although there was no centreline to provide guidance to drivers travelling north along Second Avenue towards the intersection, the primary judge was satisfied that Mr Millett was on the correct side of the road as he commenced his climb towards the crest.

36 As Mr Millett approached the crest he moved his vehicle to the right, away from the left hand edge of the road to avoid a section of that edge

"which was broken and which dipped away to the gravel verge or shoulder as Second Avenue entered the tarred section of the intersection which also comprised part of Sixteenth Avenue." (Red 44R-T)

As he climbed the hill towards the crest Mr Millett increased his speed to 50-60 km per hour. He estimated, and the primary judge accepted, that he was travelling at close to 60 km per hour at the time of the collision, as was Mr Wade.

37 Critically, the primary judge found (at Red 44Y-45D) that

"[b]y moving his motor vehicle to avoid the damaged section of the road the off-side of [Mr Millett's] motor vehicle came on to the incorrect side of the road, either immediately before or as it entered the intersection and was on the incorrect side of the road at the time of impact with Mr Wade's vehicle."

38 Although there was some dispute as to the precise point of impact, the primary judge found (and it is not challenged on the appeal) that the point of impact between the vehicles was close to the southern alignment of Sixteenth Avenue. More critically, his Honour found that, firstly, at the point of impact of Mr Wade's vehicle was wholly on his correct side of the road and, secondly, that Mr Millett's vehicle was partially on the incorrect side of the road to the extent that the front of his vehicle collided with the front of Mr Wade's vehicle, the collision being referred to as an "off-set head on collision". As to the extent to which Mr Millett's vehicle was across an imaginary centre line of the roadway, his Honour said (at Red 51Q-R):

"the distance could be from 0.5 metres upwards, but more likely closer to the lowest figure, perhaps a little less."

39 I therefore take this finding to be one which determined that Mr Millett's vehicle had crossed the imaginary centreline of the roadway by up to 500mm or a little less.

40 As I have noted, Mr Wade, like Mr Millett, was also familiar with this section of Second Avenue. Relevantly, the primary judge found (at Red 45 L-O) that

"[i]n the absence of any line markings his [Mr Wade's] evidence supports the contention that the course of action taken by [Mr Millett] in the management of his motor vehicle by moving away from the edge of the road towards to the centre of the road was a reasonable response to the road conditions that confronted [Mr Millett] as he drove in a northerly direction."

41 Mr Wade's evidence, as accepted by the primary judge, was that he did not see the headlights of Mr Millett's vehicle until a second or so before the collision. His Honour found that because of the stationary vehicle's high beam, as observed by Mr Wade any illumination from the headlights of Mr Millett's vehicle was absorbed by the effect of the stationary vehicle's high beam.

42 The primary judge also found (at Red 44K-L) that by reason of the character of the crest which Mr Millett was approaching

"[Mr Millett] could not see [Mr Wade's] vehicle oncoming even with its headlights on."

43 This was the first finding to be challenged by the Council. It accepted that Mr Millett did not see the headlights of Mr Wade's vehicle but the critical question was "why". According to the primary judge, it was due to the "character of the crest which [Mr Millett] was approaching". According to the Council, it was because Mr Millett was not keeping a proper lookout. After all, so it was submitted, he was not under the same difficulty as Mr Wade who was travelling towards the stationary vehicle: Mr Millett was travelling away from it. Nonetheless it may be, and it was so submitted on behalf of Mr Millett, that his vision was affected by the reflection of the headlights of the stationary vehicle in his rear vision mirror. The problem with this submission was that Mr Millett did not give evidence to support it. In other words, he did not say that his forward vision was affected by the reflection of the stationary vehicle's headlights in his rear vision mirror.

44 The primary judge also found (at Red 46N-P) that neither driver saw the other despite the fact that they both had their headlights on

"because of the topography in the relevant area".

The intersection was poorly lit and

"at the time both drivers saw one another it was too late to avoid impact."

This finding (at Red 46 Q-R) is not strictly accurate because Mr Millett's evidence was that he never saw Mr Wade's vehicle prior to the impact. However, I do not find this error to be of significance.

45 The primary judge then continued (at Red 47B-I):

"[Mr Millett's] vehicle was in a position at the point of collision that by reason of the width of the road, if [he] was to avoid driving over the damaged section of the road on the left kerb side as he entered the intersection without the assistance of guidelines it was reasonable for him to move his vehicle towards the centre assuming he was unaware of another vehicle oncoming. Reasonably he might have expected that an oncoming vehicle would see his vehicle approaching the intersection before he saw it. Reasonably he would have expected to see the illumination of an oncoming vehicle. Unknown to him he could not because of the topography and the effect of the high beam of the parked car facing north. There is no evidence whatsoever that [Mr Millett] was distracted or not paying attention other than the inference available from the collision."

46 The finding in the second sentence of the above citation was the second finding challenged by the Council upon the basis that it was not open to his Honour on the evidence. However, even if this is so, I do not think that it is of significance. Of greater relevance is his Honour's finding that, reasonably, "he [presumably Mr Millett] would have expected to see the illumination of [Mr Wade's] oncoming vehicle".

47 The primary judge then referred to the cross-examination of Mr Millett where he said that immediately prior to the collision, he had sought to avoid what was a dangerous section on the left hand side of the roadway in circumstances where he did not know that another motor vehicle was oncoming and that he did so

"without being able to fix a position that did not take the car on to the incorrect side of the road without the assistance of the guidance of centre lines." (Red 48D-E)

48 During cross-examination it had been suggested to Mr Millett that he did not need a centreline to tell him to keep to the left, to which he answered "No". However, later in his cross-examination he responded to questions from his Honour that his simple negative answer, which seemed to express agreement with the proposition in the question, was in fact intended to be a non-adoption of the proposition being put to him. The primary judge considered that even accepting Mr Millett's answer at face value, the proposition begged the question of what he believed at the relevant time and what was reasonable in all the circumstances. His Honour continued (at Red 48 M-Q):

"A prudent driver acting reasonably would endeavour to keep to the left but without the aid of a centre line, particularly approaching the crest of a hill, objectively means that such a driver does not have the benefit of the assistance that such a marking provides in assuring that the vehicle remained on the left."

49 There was a deal of evidence with respect to a publication by the Roads & Traffic Authority of New South Wales (the RTA) in 1991 and to Australian Standard 174 2.2 published in 1994 relating to the provision of lines on roadways to separate traffic flow on undivided two-way roads. Essentially, the Australian Standard provided for separation line markings to be used on sealed pavements 5.5 metres or wider if, in the case of rural roads, the traffic volume was in excess of 300 vehicles. The Council submitted before the primary judge, and repeated before this Court, that firstly, Mr Schnerring's evidence was that if such separation lines were to be provided, it was necessary to provide them both north and south of the intersection; and secondly, this was not possible as the section of Second Avenue immediately to the north of the intersection was less than 5.5 metres wide having been measured by Mr Schnerring on 17 February 2002 as varying between 4.5 and 5 metres wide for a distance of approximately 40 metres. However, his Honour accepted the evidence of Mr Schnerring that the Australian Standard was a guideline only and that it was appropriate to depart from it in the present circumstances; in fact Mr Schnerring considered that to be essential.

50 In his site inspection report of 29 February 2000, Mr Schnerring had observed the poor condition of the pavement edge, the slightly staggered roadway through the intersection and the poor sight distances. Consequently he had observed southbound traffic travelling through the intersection over the centre of the road. He said:

"Had a double barrier centreline been provided on Second Avenue north and south of Sixteenth Avenue, then both drivers would have had clear on-road guidance about where to place their vehicles so that a head-on conflict would be avoided.
Had a double barrier centreline been provided on Second Avenue to the north and south of Sixteenth Avenue, then the crash would probably not have occurred."

51 In his second report dated 12 March 2002, based upon both the photographs taken by Mr Millett not long after the accident and his own photographs taken on 17 February 2000, Mr Schnerring opined that as observed during his inspection, the intersection was badly broken and eroded and that that led southbound drivers to travel away from the edge of the pavement and closer to the centre of the road as they negotiated the intersection. He continued:

"With a short sight distance over the crest, southbound traffic could inadvertently travel into conflict with northbound vehicles."

52 Mr Schnerring then referred to the RTA's guidelines and continued:

"Although an intersection is not unusual, a road alignment which provides little forward sight distance is, and requires additional 'features' to minimise driver error. At the subject location, driver error is also more likely as the poor edge definition, especially at night, leads drivers to travel away from the edge of the pavement, and close to, or over, the centre of the roadway. …
…
The effect of barrier lines is to keep, i.e. guide traffic to the left of the barrier line. Movements across and to the right of the barrier line for overtaking is prohibited.
…
Had a well maintained double barrier line been provided on the approaches, then it is very likely that both drivers would have travelled towards each other to the left of the barrier lines and that collision would have been avoided."

53 Consistent with this evidence and not unsurprisingly, the primary judge considered (at Red 56 L-O) that

"[o]ne does not need to be told by Australian Standards that ordinarily barrier lines are generally necessary on roads approaching a crest for safety reasons or are a guide to the centre of the road and may keep traffic apart."

54 The primary judge then referred to the expert evidence of Mr Keramidas (retained by Mr Wade) who concurred with the opinions of Mr Schnerring as to the deficiencies in the roadway "both in terms of its very short available sight distances, the deficiencies in the pavement edge and the lack of any double white longitudinal barrier lines". Mr Keramidas, as his Honour found, was of the opinion that the road geometry at this intersection constituted a "significant hazard" with the application of barrier lines considered a "must". In common with Mr Schnerring, Mr Keramidas was of the view, using his words as quoted by the primary judge (at Red 57 W-Y):

"…that a significant contributing factor in this instance is the lack of delineation or guidance provided to both drivers on approach of the area of impact, and in particular the lack of guidance offered to [Mr Millett] as he drove uphill towards the crest at the Sixteenth Avenue intersection."

55 Mr Keramidas, who was not required for cross-examination, also opined (at Blue 1/180-181) that

"[t]he combination of the grade, crest, lack of any road markings, and the pavement edge defect noted earlier all combine to create a particularly dangerous road condition…. Based on the circumstances of this incident and the road geometry observed, it is the author's considered opinion that, at a very minimum, double white longitudinal lines should have been placed on both approaches to the intersection. In the absence of those markings, it is also the author's considered opinion that the road geometry and road condition have been significant contributing factors to the cause of this collision."

It is to be noted that the Council called no expert evidence in response to that of Mr Schnerring and Mr Keramidas. Nor was there any dispute as to the capacity of the two experts to provide the opinions set out above. However, objection was unsuccessfully taken to the admissibility of, inter alia, those parts of the reports of those experts, which I have extracted above, but there is no appeal by the Council with respect to their admission.

The primary judge's conclusions

56 The primary judge noted reliance by both Mr Millett and the Council upon the joint judgment of Gaudron, McHugh and Gummow JJ in Brodie v Singleton Shire Council (2001) 206 CLR 512 at 577-581 [150]-[162] which his Honour set out in extenso. After referring to the only evidence called by the Council, being that of its Pavement Engineer (Mr Philpott) and its Manager of Transport and Traffic Planning (Mr Tolhurst), his Honour found that specific line marking for specific areas would be relatively cheap with a fixed cost of $500 for an RTA crew to attend that particular location and additional cost of "a couple of dollars a metre" for the actual line marking.

57 An attempt was made by the Council in its submissions to the primary judge and on appeal to suggest that it would be unreasonable to require it to spend this sort of money on line marking, given that it had over 700km of roads for which it was responsible and limited access to funds provided by the RTA for the provision of line marking and signs. Accepting, as Hayne J pointed out in Brodie at 629 [313], that the Council was entitled to choose between repairing one section of road rather than another, there was simply no evidence that the line marking required in Second Avenue for a distance of 40m either side of the intersection would have unduly affected the Council's chosen priorities in the years prior to the accident and in respect of which it had, in effect, access to RTA funds. Nor was there evidence that such line marking was required for all or any significant part of the 700 km of the Council's roads.

58 In response to the Council's submissions, the primary judge held that the risk of a head-on collision at the intersection was not only reasonably foreseeable but was preventable by inexpensive measures that did not necessarily require the reconstruction of Second Avenue or any part thereof. Further, his Honour held that not only was the presence of a double or single barrier line to the north of the intersection not precluded by the width of the road for a distance of over 20 metres and for a greater distance on the southern side of the intersection, but also (at Red 70 T-X)

"[t]he obvious inherent danger in the intersection, the absence of side lines both heading north and south was at its most critical 20 metres either side of the intersection. Even for a limited distance to the north [sic] of the intersection it would have assisted northbound drivers in ensuring their vehicles were placed on the correct side of the road…"

59 His Honour's conclusions with respect to the issue of liability were expressed in the following terms (at Red 74R-75P):

"Having regard to the facts found above and other observations made in the course of the judgment I am satisfied that [the Council] failed to take reasonable care to prevent a source of risk to [Mr Millett] (and other road users) which gave rise to a foreseeable risk of harm which caused damage to [Mr Millett] and [Mr Wade]. The failure primarily caused the collision but there was a lesser contribution by [Mr Millett] to which I refer below. The intersection was potentially dangerous for traffic on Second and Sixteenth Avenue because of the positioning of the intersection on a crest, particularly for traffic heading in a northerly direction. Part of the risk to users had been removed by the placing of Stop signs on the Sixteenth Avenue entries.
The failure I have found arose specifically and primarily by reason of the failure of [the Council] to mark separation lines on the southern and northern sides of the intersection on Second Avenue to identify for motorists the centre of the road entering the intersection. The risk of foreseeable harm was increased by the failure of [the Council] to maintain the road surface in such a way as to ensure that Second Avenue remained aligned on both sides of the intersection and such as to maintain the edges of the southern side of the intersection so as not to force or require north bound traffic to move towards the centre of the road to avoid damage or loss of control of the vehicle on an uneven surface. … The cost of marking the road with separation lines, as opposed to resurfacing it, or better still reconstructing it, was miniscule and well within [the Council's] economic capacity. The danger and inadequacies of the intersection and the roadway, given its function as a connector road in an expanding community, ought to have been patently obvious to any person employed by the Council with the responsibility of reporting upon or maintaining the road surfaces in the municipality."

145 The relevant principles with respect to the interference by this Court in a primary judge's apportionment of responsibility were recently restated by this Court in Berryman v Joslyn; Wentworth Shire Council v Joslyn [2004] NSWCA 121 at [20]-[25]. Those passages emphasised that the findings of the trial judge with respect to apportionment of responsibility were not lightly to be disturbed on appeal. However, if error be shown, whether of law or fact, an appellate court is authorised to intervene. Furthermore, it can be inferred that, upon the facts, if the result reached by the trial judge is unreasonable or plainly unjust in the sense in which those expressions are used in House v The King (1936) 55 CLR 499, then intervention is justified.

146 In the present case the primary judge considered that it was reasonable for Mr Millett to move his vehicle towards the centre of the roadway and to cross the centre of the road in circumstances where no oncoming vehicle was anticipated. Further, his Honour considered that his negligence was "relatively slight" upon the basis that the reason why he moved to the right was due to the poor condition of the edge of the roadway and that he crossed the imaginary centre line due to the failure of the Council to mark that line.

147 However, in my opinion, his Honour failed to take into account and give proper weight to the fact that Mr Millett recognised (at Black 1/167 R-F) that there was a possibility of an oncoming motor vehicle which was obscured by the crest and that, if necessary, he should have slowed down so as to ensure that he was as far to the left of the imaginary centre line as possible without running onto the verge: cf clause 65 of the Motor Traffic Regulations 1935, which obliges the driver of a motor vehicle to keep the vehicle as close as practicable to the left boundary of the carriageway.

148 In the foregoing circumstances, to find that Mr Millett was only 10% responsible for his injuries was, with respect, unreasonable. Accordingly, error has been shown.

149 It thus becomes necessary to reassess the extent of Mr Millett's responsibility for his inquiries. That exercise requires consideration of what is "just and equitable" between the parties. As I have said, the principles stated by the High Court in Podrebersek require a comparison both of culpability and the relative importance of the acts of the parties in causing the relevant injuries.

150 At the end of the day, it is apparent that the collision would not have occurred had Mr Millett proceeded towards the intersection keeping as far to the left as was practicable. There is no doubt that this would have been an easier task for him to accomplish had he been aware of the precise location of the centre line of the roadway. However, it was his failure to keep as far to the left as practicable, his misjudgement of the location of the imaginary centreline and, in the circumstances, his failure to slow down as approached the crest of the intersection that caused him to partially cross that line and thereby sustain his injuries in the collision. In all the circumstances, I consider that it would be just and equitable to reduce Mr Millett's verdict against the Council by 45% as a consequence of his contributory negligence.

A question of costs

151 The Council submitted that if it succeeded on the issue of contributory negligence but failed on the issue of liability, it should receive the costs of the appeal. Although Mr Millett somewhat faintly contested this submission, in my opinion it is clearly correct. Mr Millett will, if otherwise qualified, be entitled to a certificate under the Suitor's Fund Act 1951.

152 Somewhat more controversially, the Council further submitted that if it was found that Mr Millett was guilty of contributory negligence up to 50%, he should be deprived of at least part of his costs of the trial. I see no merit in this submission and I reject it.

Conclusion

153 The parties agreed on the form of orders which should be made in the event of the appeal being upheld on the issue of contributory negligence. In accordance with that agreement I would propose the following orders:

In CA 40130/03 :

a) Appeal allowed in part.

b) Set aside the orders made by Norrish DCJ on 7 February 2003 and in lieu thereof order that:

(i) there be judgment for the plaintiff as against the second defendant in the amount of $58,351.70;

(ii) the cross-claims be dismissed;

(iii) the second defendant pay the plaintiff's costs of the District Court proceedings.

c) Order that the first respondent pay the appellant's costs of the appeal, and in respect of those costs to have a certificate under the Suitor's Fund Act, 1951 if otherwise entitled.

d) Order that the appellant pay the second respondent's costs of the application for leave to appeal and the costs of his submitting appearance in the appeal.

e) Liberty to apply within 7 days of the date of this judgment to amend these orders if they fail to accurately reflect the findings with respect to the first respondent's contributory negligence.

In CA 40129/03 :

a) Appeal allowed in part.

b) Set aside the orders made by Norrish DCJ on 7 February 2003 and in lieu thereof order that:

(i) there be judgment for the plaintiff against the first defendant and the second defendant in the sum of $20,779;

(ii) as between the first and second defendants:

· the first defendant to pay the plaintiff the amount of $9,350.55;

· the second defendant to pay the plaintiff the amount of $11,428.45;

(iii) first cross-claim be dismissed;

(iv) there be judgment for the second cross-claimant as against the second cross-defendant in the sum of $12,870;

(v) the first defendant pay the plaintiff's costs of the Local Court proceedings and of the District Court proceedings prior to the joinder of the second defendant;

(vi) the first defendant pay 45% of the plaintiff's costs of the District Court subsequent to the joinder of the second defendant;

(vii) the second defendant pay 55% of the plaintiff's costs of the District Court proceedings subsequent to the joinder of the second defendant.

c) Order that the second respondent pay the appellant the amount of $10,964.48 plus interest in accordance with Schedule J for the period from 24 December 2003 to the date of this judgment.

d) Order that the second respondent pay the appellant's costs of the appeal and, in respect of those costs, to have a certificate under the Suitor's Fund Act 1951, if otherwise entitled.

e) Order that the appellant pay the first respondent's costs of the application for leave to appeal and the costs of his submitting appearance in the appeal.

f) Liberty to apply within 7 days of the date of this judgment to amend these orders if they fail to accurately reflect the findings with respect to the second respondent's contributory negligence.

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Last Modified: 12/15/2004