LLOYD RUSSELL JONES -v- COMMISSIONER OF MAIN ROADS [2002] WASCA 307
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 307 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:157/1998 | 7 JUNE 2002 | |
| Coram: | MALCOLM CJ MURRAY J STEYTLER J | 20/11/02 | |
| 35 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Judgment of District Court set aside Judgment for appellant for 50 per cent of his damages Action remitted to District Court for assessment of damages | ||
| B | |||
| PDF Version |
| Parties: | LLOYD RUSSELL JONES COMMISSIONER OF MAIN ROADS |
Catchwords: | Negligence Motor vehicle accident Where appellant driver sustained severe injuries after colliding with a straying animal in the Kimberley region Whether respondent negligent in failing to warn motorists of danger of wild animals crossing highway and failing to limit permissible speed Whether risk greater on part of highway where accident occurred Duty of care Breach of duty Where trial Judge dismissed "local knowledge" evidence and instead relied on statistical information to determine whether warning signs and reduced speed limit necessary Issue of causation Turns on own facts Negligence Motor vehicle accident Contributory negligence Where appellant aware some danger existed in the area Where appellant nevertheless failed to take reasonable care for his own safety by significantly exceeding applicable speed limit Evidence that appellant otherwise experienced and responsible driver Liability apportioned between appellant and respondent Turns on own facts |
Legislation: | Nil |
Case References: | Bennett v Minister for Community Welfare (1992) 176 CLR 408 Betts v Whittingslowe (1945) 71 CLR 637 Birkholz v R J Gilbertson Pty Ltd (1985) 38 SASR 121 Brodie v Singleton Shire Council (2001) 206 CLR 512 Brodie v Singleton Shire Council (2001) 75 ALJR 992 Chappel v Hart (1998) 195 CLR 232 Galea v Galea (1990) 19 NSWLR 263 March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506 Nagle v Rottnest Island Authority (1993) 177 CLR 423 Naxakis v Western General Hospital (1999) 197 CLR 269 Romeo v Conservation Commission (NT) (1998) 192 CLR 431 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 Rosenberg v Percival (2001) 205 CLR 434 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 73 ALJR 306 Woods v Multi-Sport Holdings Pty Ltd (2002) 76 ALJR 483 Wyong Shire Council v Shirt (1980) 146 CLR 40 Abalos v Australian Postal Commission (1991) 171 CLR 167 Agbaba v Witter (1977) 51 ALJR 503 Australian Electrical Electronics Foundry & Engineering Union, Western Australia Branch v Hammersley Iron Pty Ltd (1998) 19 WAR 145 Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842 Buckle v Bayswater Road Board (1936) 57 CLR 259 Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 Devries v Australian National Railways Commission (1993) 177 CLR 472 Flukes v Paddington Municipal Council (1915) 15 SR (NSW) 408 Gorringe v Transport Commission (Tas) (1950) 80 CLR 357 Hodgson v Cardwell Shire Council [1994] 1 Qd R 357 Holloway v McFeeters (1956) 94 CLR 470 Levine v Morris [1970] 1 WLR 71 Luxton v Vines (1952) 85 CLR 352 Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 McGhee v National Coal Board [1973] 1 WLR 1 Miller v McKeon (1905) 3 CLR 50 Pyrenees Shire Council v Day (1998) 192 CLR 330 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : LLOYD RUSSELL JONES -v- COMMISSIONER OF MAIN ROADS [2002] WASCA 307 CORAM : MALCOLM CJ
- MURRAY J
STEYTLER J
- Appellant
AND
COMMISSIONER OF MAIN ROADS
Respondent
Catchwords:
Negligence - Motor vehicle accident - Where appellant driver sustained severe injuries after colliding with a straying animal in the Kimberley region - Whether respondent negligent in failing to warn motorists of danger of wild animals crossing highway and failing to limit permissible speed - Whether risk greater on part of highway where accident occurred - Duty of care - Breach of duty - Where trial Judge dismissed "local knowledge" evidence and instead relied on statistical information to determine whether warning signs and reduced speed limit necessary - Issue of causation - Turns on own facts
Negligence - Motor vehicle accident - Contributory negligence - Where appellant aware some danger existed in the area - Where appellant nevertheless
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failed to take reasonable care for his own safety by significantly exceeding applicable speed limit - Evidence that appellant otherwise experienced and responsible driver - Liability apportioned between appellant and respondent - Turns on own facts
Legislation:
Nil
Result:
Appeal allowed
Judgment of District Court set aside
Judgment for appellant for 50 per cent of his damages
Action remitted to District Court for assessment of damages
Category: B
Representation:
Counsel:
Appellant : Mr K J Bradford
Respondent : Mr G R Hancy
Solicitors:
Appellant : Bradford & Co
Respondent : Trevor Darge
Case(s) referred to in judgment(s):
Bennett v Minister for Community Welfare (1992) 176 CLR 408
Betts v Whittingslowe (1945) 71 CLR 637
Birkholz v R J Gilbertson Pty Ltd (1985) 38 SASR 121
Brodie v Singleton Shire Council (2001) 206 CLR 512
Chappel v Hart (1998) 195 CLR 232
Galea v Galea (1990) 19 NSWLR 263
March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506
Nagle v Rottnest Island Authority (1993) 177 CLR 423
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Naxakis v Western General Hospital (1999) 197 CLR 269
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431
Rosenberg v Percival (2001) 205 CLR 434
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 73 ALJR 306
Woods v Multi-Sport Holdings Pty Ltd (2002) 76 ALJR 483
Wyong Shire Council v Shirt (1980) 146 CLR 40
Case(s) also cited:
Abalos v Australian Postal Commission (1991) 171 CLR 167
Agbaba v Witter (1977) 51 ALJR 503
Australian Electrical Electronics Foundry & Engineering Union, Western Australia Branch v Hammersley Iron Pty Ltd (1998) 19 WAR 145
Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842
Buckle v Bayswater Road Board (1936) 57 CLR 259
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520
Commonwealth Bank of Australia v Quade (1991) 178 CLR 134
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1
Devries v Australian National Railways Commission (1993) 177 CLR 472
Flukes v Paddington Municipal Council (1915) 15 SR (NSW) 408
Gorringe v Transport Commission (Tas) (1950) 80 CLR 357
Hodgson v Cardwell Shire Council [1994] 1 Qd R 357
Holloway v McFeeters (1956) 94 CLR 470
Levine v Morris [1970] 1 WLR 71
Luxton v Vines (1952) 85 CLR 352
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
McGhee v National Coal Board [1973] 1 WLR 1
Miller v McKeon (1905) 3 CLR 50
Pyrenees Shire Council v Day (1998) 192 CLR 330
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1 MALCOLM CJ: In my opinion, this appeal should be allowed, the decision of the court below set aside and there should be substituted for it a decision holding the respondent liable to the appellant for 50 per cent of the damages sustained by him. I have reached that conclusion for the reasons to be published by Steytler J with which I agree.
2 I also agree with Steytler J that, in the absence of agreement as to the amount of those damages, the matter will have to be remitted to the District Court for the assessment of damages.
3 MURRAY J: I am grateful to have had access to the reasons to be published by Steytler J. I have the misfortune to disagree with them and with the orders proposed by his Honour with which Malcolm CJ has expressed his agreement. In my view, this appeal should be dismissed. It is necessary that I set out as briefly as possible my reasons for that conclusion.
The issues in the case
4 I respectfully agree with Steytler J that, having regard to the decision of the High Court in Brodie v Singleton Shire Council (2001) 206 CLR 512, this case could not be disposed of upon the basis of the previously generally accepted doctrine of the immunity of a highway authority for nonfeasance. There is no doubt that the respondent owed the appellant a duty of care, but this was not a case which turned upon the state of the road. The accident occurred because the vehicle being driven by the appellant came into collision with a wild horse which appears to have run onto the road, coincidentally at the time that the appellant's vehicle was passing, and collided with the vehicle, causing the appellant to lose control of it so that the vehicle left the road and struck a tree, as a consequence of which the appellant received the physical injuries for which he sued for damages.
5 The duty imposed by the law upon the respondent was to take reasonable care for the safety of the appellant as a user of the road for which it was responsible, in this case not as the authority with statutory power to construct and maintain the road, but as the sign erecting authority with power to erect appropriate signs where necessary for the guidance and protection of road users: Brodie.
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6 The appellant's pleaded case, so far as material to the circumstances in which the accident occurred, was that near the place where the accident occurred there were water holes in creeks in the vicinity of the highway. It was pleaded that the respondent was or should have been aware that "wild animals including horses were attracted to the said watering holes ... and would thereby cross the highway in the area where the accident occurred".
7 It was pleaded that the respondent breached its duty of care by failing to erect appropriate signs of two kinds:
(a) It was said that, given the sealed highway and the speed limit applicable to it (being that which was generally applicable where no more particular speed control was imposed) of 110 kph, the respondent failed to reduce the speed limit "to prescribe a speed which was safe in the area in the circumstances" and failed to erect signs notifying road users of that reduced speed; and
(b) It was said that the respondent, "in the knowledge that wild animals were attracted to and near the highway by the presence of nearby watering holes, failed to take any or any adequate steps to warn motorists of the hazard thereby created".
8 The particular danger to road users with which the case was concerned was, therefore, that at the place where the accident occurred they ran a risk of encountering large wild animals on the road which was greater than may have been generally anticipated at other places along the highway, because the animals would be attracted to this particular locality by the presence of water. The appellant did not suggest any practical measure to stop the animals straying onto the highway at any hour of the day or night. It was not suggested that it was a practical measure to fence the road off from the surrounding countryside. The contention was that the hazard was such as to justify a reduction in the speed limit and to require some form of warning sign or signs, the wording of which was not suggested, to warn motorists of the nature of the hazard.
9 The question in this case was whether the failure to reduce the speed and/or warn of the risk of animals on the road was a breach of the respondent's duty of care. It would be so if, having regard to the magnitude of the risk and any countervailing factors which might apply, it was held that, in either or both respects pleaded, the respondent failed to take a reasonable and practical measure to reduce the risk of collision and warn of the existence of the risk. The duty is to take such measures as may be reasonably open to avert or reduce reasonably foreseeable risk of
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- harm. It is not a duty to ensure the safety of road users in all circumstances.
10 If a breach of duty was established in that way a further question arose whether the accident and the appellant's injuries received therein were caused by the breach of duty. In the circumstances of this case, the relevant causal connection between the breach of duty and the harm suffered would be held, prima facie, to exist if it was seen that the accident was caused when the risk complained of eventuated and there had been no warning of its existence. The evidentiary onus would then shift to the respondent to divert the court from the conclusion that the appellant had established, on the balance of probabilities, the necessary causal connection. This onus would be discharged if it was found that the appellant would not have substantially reduced the speed of his vehicle so as to materially affect the risk to which he was exposed, that he would not have heeded signs in some manner warning of the possible presence of wild animals on the road or that, for some other reason, the suggested measures would not have averted the occurrence of the accident: Chappel v Hart (1998) 195 CLR 232, 239 [10], 244 - 245 [27] - [28], 268 - 273 [93]; applied in Rosenberg v Percival (2001) 205 CLR 434.
The issue of breach of duty
11 I turn then to the question of breach of duty. In my opinion, consideration of this aspect is to be approached upon the basis that the particular hazard or risk said to be causally relevant to the receipt of the appellant's injuries was not of the respondent's making. Nor was he able, by any practical measures suggested by the appellant, to reduce the magnitude of the risk. The respondent could only, by a combination of speed limit and direct warning signs, inform the road user of the risk that wild animals might stray onto the road in circumstances which were entirely unpredictable and fortuitous.
12 Against that background, the Judge at first instance was required to assess the reasonableness of the respondent's inaction and, in this case, as it seems to me, of particular importance in that regard was a proper understanding of the nature of the risk material to the case, its magnitude and the practicality of the measures suggested to guard against it by reducing the speed limit and warning of the possibility of the presence of wild animals on the road.
13 In Nagle v Rottnest Island Authority (1993) 177 CLR 423, the appellant was injured when he dived into the water at the Basin swimming
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- area at Rottnest Island. He hit a submerged rock and was seriously injured. It was accepted that the appellant was careless in diving where he did, but, of course, negligent lack of care for his own safety did not negate the existence of the respondent's duty of care or its breach if, as was the case, it was held that the failure to warn of the danger of diving due to the presence of submerged rocks was a failure to take reasonable care for the appellant's safety. It is noteworthy, I think, that in Nagle, as is almost invariably the case where the negligence relied upon is said to be a failure to warn of a risk which causes harm to the plaintiff, the foreseeable risk to be guarded against was a static condition which might cause harm to the appellant, albeit only if he himself behaved carelessly. The majority of the High Court considered that it was readily practicable to guard against the danger by posting a notice simply warning of the danger of diving.
14 Factually much more like this case is that of Woods v Multi-Sport Holdings Pty Ltd (2002) 76 ALJR 483. There, the appellant suffered serious injury to an eye while playing indoor cricket at a venue owned and operated by, and using equipment provided by, the respondent. Part of the case involved the question whether the failure to warn of the risk of eye injury as a result of being struck by a ball while playing the game was an omission by which the respondent negligently breached its duty of care. That was held not to be so, although the magnitude of the risk was considerable and there was a substantial risk that serious injury would be suffered.
15 At 488 [39], Gleeson CJ said:
"Because the concept of foreseeability in the law of negligence has been taken to embrace risks which are quite unlikely to occur, and to mean only that a risk is not one that is far-fetched or fanciful, many of the cases which discuss the approach to be taken by a tribunal of fact in deciding whether there has been a breach of a duty of care speak in terms of balancing the magnitude of the risk with the cost or inconvenience of preventing it. But, as Mason J pointed out in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47, ultimately, the question of fact is what a reasonable person, in the position of the defendant, would do by way of response to the risk."
16 As to the suggested warning, his Honour pointed out that the risk of injury of the kind suffered by the appellant in playing the sport of indoor cricket was obvious. As to the argument that the appellant was not aware of the precise nature and full extent of the risk, Gleeson CJ said that was
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- not to the point. As his Honour put it, "warnings of the kind here in question are not intended to address matters of precision" (489 [43]).
17 In that context, his Honour at 490 [45] described as "fair comment" "as a generalisation" the remark of Kirby J in Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 at 478 [123] that:
"Where a risk is obvious to a person exercising reasonable care for his or her own safety, the notion that the occupier must warn the entrant about that risk is neither reasonable nor just."
18 In expressing his agreement with Gleeson CJ, Hayne J considered, without finally deciding, the proper approach of an appellate Court to the consideration of a finding about breach of duty. His Honour said at 506 [141]:
"The decision that there was no breach of the duty of care was a conclusion that was open to the courts below. No error of principal was apparent in the manner in which they reasoned to that conclusion and no reason has been shown for this Court to disagree with it."
- This is a case in which, in my opinion, it is important for this Court to remember that it sits on appeal, albeit by way of rehearing, from the judgment of the District Court on the question of fact as to whether, in the respects pleaded or either of them, the respondent was in breach of its duty of care owed to the appellant.
19 I turn, therefore, to the findings of the trial Judge and the question whether they were open on the evidence or whether the evidence dictated the opposite conclusion. I do so taking the view that there is no suggestion, and it is not the case, that the trial Judge misapplied the law, misconceived the issues upon which the case turned, or made any error of principle.
The question of new evidence
20 I should comment also, before reviewing his Honour's findings of fact and, where necessary, the evidence led at trial, upon the appellant's contention that there should be admitted in evidence on the hearing of the appeal a bundle of documents which ought to have been, but which were not, discovered by the respondent until well after the trial had concluded and judgment had been given. There is no question that the documents
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- might be received by this Court on the hearing of the appeal for the purpose of considering the contention made that, in light of their nature, their unavailability at trial caused it to miscarry.
21 The documents adduced were of two kinds. One group concerned the development of a traffic control procedure manual within the respondent's department. It concerned the display of a standard sign in appropriate circumstances which would read "straying stock - unfenced road". The documents contain considerable discussion of the conclusion by officers that such signs should only be used over relatively confined distances where a significantly enhanced danger is established to exist. There is also a reference to a sign reading "stock crossing" to warn of such an occurrence in circumstances where the crossing of the road by domesticated animals is controlled. These documents seem to me not to add materially to the consideration of the question of breach of duty and such matters were, in any event, canvassed with witnesses at the trial.
22 Then there is a body of letters of complaint dealing with various areas of the Kimberley region and expressing different points of view about whether or not special warning signs should be erected. If these letters were directed to prove the frequency with which animals might be encountered upon the Great Northern Highway they were hearsay. Further, a number related to straying cattle and a number related generally to the section of the highway between Kununurra and Halls Creek. I could find none relating specifically to the area where the accident occurred.
23 So far as the correspondence reveals views of officers within the respondent's department, they were that the widespread indiscriminate use of signs to warn that animals, whether wild or domesticated, might be encountered on roads, was thought to be both unnecessary and harmful. Wild animals such as kangaroos might be encountered on country roads over a large area of the State. If signs were posted and animals not encountered, that would tend to cause the road user to pay less regard to signs of this kind. On the other hand, if a general practice of erecting such signs was adopted, then, in places where they were not to be found, road users might be lulled into a false sense of security.
24 I do not consider that the new evidence, so far as it was admissible for the purpose for which was tendered, supports an application for a new trial. In my opinion, this appeal falls to be disposed of on the basis of the evidence at trial and the findings of fact made by the trial Judge.
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The facts as found
25 The Great Northern Highway through the Kimberley region from Kununurra to Halls Creek has been a dual sealed carriageway since 1972. The applicable speed limit is 110 kph. Halls Creek is 358 kilometres south of Kununurra. As one travels south, after 194 kilometres one comes to Turkey Creek. There is a roadhouse there and the speed limit at that place is 90 kph. A further 21 kilometres along the road, one comes to the homestead of Mabel Downs Station. From Turkey Creek, you have 164 kilometres to travel before you arrive at Halls Creek. Apart from Turkey Creek, there appears to be no place of substantial habitation between Kununurra and Halls Creek. The appellant and his passenger, Mr Stewart, had travelled some six kilometres past Turkey Creek, which is now called Warmun, when the collision with the wild horse occurred.
26 The place of the accident is an equal distance between Rocky Creek and Mabel Spring Creek, which are apparently 13 kilometres apart and contain the water holes which, at the time of the accident, provided the attraction to animals to come into the vicinity of the highway. The bridges which carry the highway over these creeks are narrow one-lane bridges. They were constructed in 1970 and 1972. The places where there were signs warning of stock crossing or straying on to the road, Rosie's Yard and Tickalara Bore, were respectively well north and south of the place of the accident.
27 It was accepted at trial that the horse ran from the right side of the road and struck the car on the driver's side. The point of impact would appear to have been the driver's door. When that occurred, the appellant lost control of the vehicle. It left the road and hit a tree on the left hand side of the road for his direction of travel.
28 In my opinion, the evidence of the circumstances surrounding the appellant's departure from Kununurra is significant. He was with a colleague, a Mr Stewart. It appears to be clear that the two men anticipated that they would conclude their business in Kununurra on the day in question and they planned to drive to Halls Creek that evening. The appellant was to drive. Mr Stewart was entirely unfamiliar with the area. His evidence was that during the day they called, on a number of occasions, at a hire company to obtain a vehicle. The appellant wanted a four-wheel-drive vehicle. There was not one immediately available in Kununurra, but it was thought that one might become available during the day. One was expected from Broome. The vehicle did not arrive and,
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- ultimately, they hired a Ford sedan and set off late in the afternoon or early in the evening as it was becoming darker.
29 The trial Judge accepted that the time would then have been about 5.30 pm. At that time of the year, at the point of the accident and, therefore, at times only marginally different in Kununurra, sunset was just after 5.00 pm and twilight ended at about 5.30 pm. There was a waxing moon of about the first quarter. By about 6.00 pm the moon would have provided the only light. The report of the astronomer accepted into evidence said that conditions would then be quite dark.
30 There was little examination of Mr Stewart as to the decisions taken by him and the appellant. When, having hired the car, they left Kununurra at about 5.30 pm it was about half an hour short of complete darkness, and they had over 350 kilometres to travel. Mr Stewart was asked:
"Was there any discussion that you heard that indicated why it was that Mr Jones was keen to get a four-wheel-drive?---I think he certainly was aware of the inherent risks in driving and one of the reasons why we eventually left is that he didn't really want to be driving in the evening."
- There was no elaboration of what the witness meant when he said that the appellant was aware of the "inherent risks in driving", but it would seem to be clear that the desire to get a more substantial vehicle in which to do the trip was to give more protection if the vehicle came into collision with anything.
31 The evidence was that the appellant was a management consultant engaged by ATSIC. As such, he was found by the trial Judge to have "travelled fairly extensively" in the Kimberley area, working generally out of Broome, but visiting communities throughout the Kimberleys from 1987 or 1989 through to the date of the accident on 11 May 1992. There was evidence that he was familiar with the road between Kununurra and Halls Creek, having driven it "on a number of occasions" (at least three on the evidence). The trial Judge found that both the appellant and the respondent were aware of the danger to motorists on this road of animals, both wild and domesticated. As his Honour put it, "The evidence on the roadsides was there for all to see". The danger would, of course, be heightened at dusk and at night.
32 And yet, his Honour found that, accepting that the appellant had left Kununurra at about 5.30 pm and that the time of the accident was
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- 7.00 pm, the appellant had travelled a distance of 205 kilometres at an average speed of about 136 kph. His Honour thought that the speed was, on average, probably somewhere between 135 kph and 140 kph.
33 His Honour referred to the evidence of a Mr Jackson who, in May 1992, was based at the Aboriginal community of Warmun and was living at the Turkey Creek roadhouse. He was there on 11 May and saw the appellant's vehicle (because he later saw the same vehicle had been involved in the accident) pass by at an estimated speed of 160 kph. He agreed that he had said between 140 kph and 160 kph in the statement he gave to investigating police officers and he agreed, when it was put to him, that the vehicle was travelling at more than 130 kph. The trial Judge found that it was travelling at about 140 kph at it passed through Turkey Creek, a finding about which the respondent complains, but in my view without justification.
34 As to the question of the scope of the duty of care owed by the respondent or, putting it another way, as to the nature and magnitude of the risk against which the respondent was to guard, the trial Judge heard evidence which was of two main types. There were witnesses who spoke of their personal experiences, some of them in respect of the particular area where the accident occurred and others more generally of the area traversed by the highway between Kununurra and Halls Creek, and there were departmental witnesses who gave evidence described as statistical evidence concerning the danger of stock and wild animals straying onto the road. This was in the form of evidence of reports made to the respondent's department of accidents which had occurred.
35 It was not suggested that this evidence was inadmissible and I think it was clearly admissible as evidence of the facts of the occurrence of the accidents, if for no other reason than pursuant to the Evidence Act 1906 (WA), s 79C. It was this body of evidence which, in fact, the trial Judge preferred. In his judgment the trial Judge reviewed "some" of the evidence. Indeed, there was evidence to which his Honour did not refer.
36 From the point of view of the appellant, the high points of what I may describe as the local anecdotal evidence seem to be as follows: Senior Constable Tysoe spoke of his extensive experience in travelling on the Great Northern Highway out of Kununurra from 1989. As at 1992, he had seen horses near Turkey Creek, but not regularly. One would see animals all up and down the highway.
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37 A Mr Chulung, a resident of Kununurra, had lived most of his adult life in the East Kimberley area. He was familiar with the road. He often encountered animals - horses, donkeys, cattle, kangaroos, dingoes - over a stretch of road of about 25 kilometres in length from about five kilometres north of Turkey Creek south, effectively to the Mabel Downs Homestead. The whole stretch of highway from Kununurra to Halls Creek was "notorious" for horses and you would frequently encounter such animals, as well as kangaroos, emus and the like. He described the 25-kilometre stretch to which I have referred as "a very dangerous stretch of road", having regard to the presence of cattle and horses.
38 A Ms McKenzie was a joint manager of the roadhouse known as Harry's Place at Turkey Creek from 1990 to 1994 and so her evidence covered the period in which the appellant's accident occurred. Although she said that she had encountered horses in the Turkey Creek area, her evidence was that horses and cattle could be encountered all along the road between Kununurra and Halls Creek.
39 A Mr Carter had long been a resident of this area of the Kimberleys. His evidence was that animals such as cattle and horses were to be encountered where there was water. Near Turkey Creek was such an area, but there was water to be found over the whole distance between Halls Creek and Kununurra which meant that you would "find cattle or horses on the road from time to time".
40 A Mr Purdie had lived at Turkey Creek or on nearby stations since 1966. His evidence was effectively similar to that given by Mr Carter. He said, "There were always horses and cattle on the road, all the way" - and that included the area where the accident occurred.
41 A Mr Hobbs gave evidence. He lived at Lake Argyle. He had extensive experience as a truck driver all over the Kimberleys and from 1987 to 1993 he worked at and became a manager (for a period jointly with Ms McKenzie) of the roadhouse at Turkey Creek. He was there, therefore, on 11 May 1992 when the accident occurred. Indeed, he attended the scene after the accident had happened. Again his evidence was descriptive of the risk of encountering animals on the road between Kununurra and Halls Creek. He said, "that road is one of the most dangerous roads for animals that I encountered at certain times of the day …". He said, "that particular 3 or 4 hundred kilometres of road was sort of notorious. We all knew that it was, sort of, pretty bad or could be bad, you know." He described the approximately 160 kilometres of the road between Turkey Creek and Halls Creek as "a bad spot". Again he
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- identified the presence of water as the danger and he said that places where there were watering points were worse for animals. He was asked:
"Can you, in your experience, explain where those points were?---There was a few along it. It's a while since I have travelled it myself now, but there is Tikalara and there is a couple of other bores right on the side of the road as you go down to Halls Creek and they were sort of pretty bad and sometimes around the Ord, if there was water in the holes there.
What about as you get towards Turkey Creek?---Yes, from the Mabel Downs turn-off back to Turkey Creek or Warmun itself, it's always been pretty bad there.
So that's from the Mabel Downs Station?---Yes, at the bottom of what we call the jump-up.
So where does that section commence from?---More or less about where the Mabel Downs gate is or the homestead is.
How far is the homestead of Mabel Downs from Turkey Creek itself, the Turkey Creek township?---20-odd K I think it is."
43 Finally, as to this type of evidence, there was the evidence of Mr Riggs, the station manager of Mabel Downs Station at the relevant time in 1992. His evidence was given in the form of the admission, apparently by consent, of his proof of evidence and a transcript of a discussion conducted with him by defence counsel in September 1998, well before the trial. In the area where the accident occurred there were brumbies and donkeys and other animals which would come to the pools of water in Rocky Creek and Mabel Spring Creek searching for water and good feed. During the hours of night the danger was greater. In the Halls Creek to Turkey Creek section of the highway there were two places where one would expect to find a greater concentration of animals. One was Tikalara Bore and the other was Rocky Creek, but you would frequently see animal bodies by the side of the road for the whole distance between Kununurra and Halls Creek. Mr Riggs said that during the six years from 1988 to 1994 he would have lost about 50 cattle a year as a result of collisions with motor vehicles on the highway which ran through the station from about six kilometres north of Turkey Creek to about
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- 70 kilometres south of that place. He did not report those losses to the Main Roads Department.
44 Evidence of reported accidents, as well as of local observation, was given by two departmental witnesses called by the respondent. The first was a Mr Mahoney who had been based in the Kimberleys as an engineer from 1986 to 1988 and from 1993 to 1995. His experience was that the highway between Kununurra and Halls Creek presented no greater hazard of encountering animals than other areas such as between Fitzroy Crossing and Derby. Certainly the reports to the department did not suggest that. Signs were erected to warn of particular concentrations of animals at Rosie's Yard and Tikalara Bore where it was known that stock would be near or would cross the road regularly in numbers.
45 The other witness of this kind was a Mr Holdsworth, a consultant engineer, who reported upon the highway and gave evidence at the trial. The effect of that evidence was that for the period of over seven years prior to the date of the accident the overall accident frequency reported to the respondent's department for the road between Kununurra and Halls Creek was 6.82 accidents per year. The location of the accidents was noted. There was a concentration of accidents in the vicinity of Halls Creek, as well as in the area of the accident site where the frequency of accidents was 0.27 per year for the 20-kilometre stretch of road for the period of over seven years before the accident. In other words, there were two accidents during this whole period. Mr Holdsworth's evidence was that there was no significant difference in the environment of safety between the area of the accident site and other portions of the highway. He said that, "The location was not unique with respect to the probability of an animal straying on the road". He did say that there was a high probability that a motorist would encounter an animal anywhere on the highway between Kununurra and Halls Creek and, in his opinion, the danger associated with such an encounter would be obvious.
46 The trial Judge noted that in 1992 some 252 vehicles were recorded as having passed along the highway between Kununurra and Halls Creek per day. His Honour noted that 14 people required medical attention as a result of collisions with animals during the years 1985 to 10 May 1992. That equates with a figure of one person in 46,000 trips along the highway. Another mathematical calculation can be done, on the evidence, which would reveal that one person in 130,000 trips along the highway required hospitalisation as the result of such a collision.
47 In giving judgment, the trial Judge said:
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- "The local evidence that the area around Mabel Spring Creek and Rocky Creek presents a particular or unusual danger certainly represents the perception of those giving that evidence. Nevertheless, notwithstanding the shortcomings of statistical information, the latter is evidence of a more reliable character embracing the whole of the area between Kununurra and Halls Creek. That evidence does not suggest an increase in the incidence of risk in the Mabel Spring Creek and Rocky Creek area.
In May 1992 the rains were better than they now are. The creeks, of which there are hundreds, contained water - as to that I accept Miss McKenzie's evidence. The country is rugged. There is no logical reason why the area of this accident should have attracted more animals than elsewhere.
Where there were particular and designed cattle concentrations such as Tikalara Bore and Rosie's Yard, appropriate signs were placed."
48 In my view, his Honour was right to note that the anecdotal evidence represented the perception of those witnesses who gave it, but as evidence that the place where the accident occurred was a place of any unusual danger, the evidence presented the difficulty that it was subjective, imprecise, expressed in terms of descriptive conclusions about the degree of danger and the notoriety of the road, and it was lacking in its capacity to provide hard evidence of primary fact. It was not supported by the statistical evidence. As to that, however, the trial Judge noted the shortcomings of statistical information which must be rendered incomplete once it is appreciated that accidents may have happened which were not reported to the department.
49 In my respectful opinion, it was well open to the trial Judge to take the view, as his Honour did, that there was insufficient evidence to support a conclusion that the place where the accident occurred was a place which presented any substantially greater danger of collision with animals on the road than other places on the highway between Kununurra and Halls Creek. In my opinion, there was insufficient evidence to support the pleaded case that this was an area of "extraordinary animal hazards" and consideration of the question of breach of the respondent's duty of care had to be approached upon the basis that the danger at the place where the accident happened was not materially different in kind or degree from many other places along the highway.
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50 In Romeo at 455 [53] Toohey and Gummow JJ referred to the magnitude of the risk in that case by saying that there was a risk that someone would fall over the edge of the cliff, in the sense used by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 48 where his Honour said, "A risk which is not far-fetched or fanciful is real and therefore foreseeable". In Romeo their Honours said that "in the present case the risk existed only in the case of someone ignoring the obvious". In my opinion, that remark is apposite to describe the magnitude of the risk in this case.
51 More importantly, the appellant's case failed because he was unable to establish any unusual concentration of wild animals in the area where the accident occurred. The risk was not materially different from that which applied at any number of places over the whole area traversed by the highway between Kununurra and Halls Creek. There was no particular requirement, therefore, for a reduction in the speed limit or a sign or signs in some way warning of the possibility that wild animals would be encountered on the road. The findings to that effect by the trial Judge were well warranted by a body of evidence which his Honour was entitled to accept and rely upon.
52 In my respectful opinion, it is not for this Court in those circumstances to conclude that the trial Judge erred in holding that there was no breach of duty in this case. There was no warrant for the view that wherever animals might be encountered on the road, over very considerable distances, signs should be placed to give warnings repeated at regular intervals. There was every warrant for the conclusion that to take such action would reduce the effectiveness of the signs and would in fact be to provide warnings of a danger within the general knowledge of road users.
53 There is even less warrant, in my view, to hold that the trial Judge erred in failing to find that in the area where the accident occurred, or generally along the highway between Kununurra and Halls Creek, the speed limit should have been reduced. The figure mentioned in argument was 80 kph, but it seems to me that no such reduction in speed limit was supportable, even by the evidence of those witnesses who said that they disliked driving at night and if they were required to do so, they would substantially reduce their speed because of the perceived hazard.
54 To my mind, the prescription of a speed limit has to do with the capacity of the driver of average skill and competence to drive a vehicle of a common kind with reasonable safety, having regard to the state of the
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- road and driving conditions and hazards likely to be encountered, rather than being concerned to provide an increased reaction time in respect of hazards which the driver might encounter unexpectedly. So far as I can tell, the evidence did not address the question of what speed limit ought to be prescribed, having regard to such relevant considerations.
The issue of causation
55 If I am wrong about the question of breach of duty, I should deal with the question whether the failure to erect warning signs caused the accident and the appellant's injuries in the sense relevant to establishing the respondent's negligence.
56 The trial Judge expressed his conclusion about this issue as follows:
"The plaintiff failed to take reasonable care for his own safety by driving at a most dangerous speed at night and by that failure caused his injury. As a matter of ordinary commonsense his negligence was the sole real cause of the accident. Having regard to the plaintiff's knowledge of the risks of travel at night, he would not have heeded warning signs had they been erected; nor would he have decreased his speed to a safe speed had the speed limit been reduced - this is illustrated by his travelling at a dangerously fast speed through Turkey Creek where the speed limit was 90 KM/H and at a dangerously fast speed in the vicinity of two narrow bridges upon a two-lane highway with cattle grids."
57 To my mind, those findings of fact were well open and it is clear that the trial Judge made no error of principle. The evidence of Mr Stewart about the appellant's motivation in attempting to obtain a four-wheel drive vehicle, the appellant's dislike of night driving because of his appreciation of the increased hazard, his general familiarity with the road and the danger of encountering animals, his grossly excessive speed, both through Turkey Creek and generally on the road, all amply supported the conclusion reached. The only question then is whether that conclusion was, as a matter of law and fact, appropriately expressed as a conclusion about causation of harm, approaching that question of fact in the manner to which I have already referred, drawn from such cases as March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506, as well as more recent cases such as Chappel v Hart and Rosenberg v Percival, to which I have already referred.
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58 One aspect of this question in a case where the absence of warnings or instructional signs is relied upon is that the absence of the sign will be found to be causally relevant to the occurrence of the harm if the presence of a sign would probably have deterred the appellant from driving at the speed or in the manner that he did, with the result that, subject to an observation to be made later in these reasons, the harm suffered would probably have been averted: Nagle and Chappel v Hart previously cited.
59 As to that, it seems to me, with respect, that the trial Judge was well justified in the conclusion to which he came that, in the sense understood by the law, the appellant in fact caused the accident and the injuries for which he sued because he probably would not have heeded signs of the types suggested. The speed at which he was travelling was obviously excessive and highly dangerous, particularly at night and given such hazards as cattle grids and narrow bridges. He was not obeying the generally applicable speed limit and he does not appear to have reduced his speed when a reduction was imposed for vehicles travelling through Turkey Creek. He clearly knew of the general danger that at any time along the road he might encounter both large domesticated animals, such as cattle and horses, and large wild animals. Such animals might be encountered in unpredictable places. They might be difficult to see. They might move in unpredictable ways. There was clear warrant for the view that a sign warning of the possible presence of such a hazard would not have had the least effect on the appellant's driving behaviour.
60 There is a further difficulty of a commonsense kind in relation to causation, in my opinion, which difficulty arises out of the fact that a wild animal such as a brumby might be encountered anywhere along the highway. It matters not that such an occurrence might be more frequent in the area where the accident occurred once it is appreciated that this accident was caused by the unpredictable behaviour of the horse which ran into the motor vehicle. The coincidence of the horse colliding with the vehicle in that way was just that - a coincidence - and a hazard of a kind which in a real causal sense would not have been diminished or changed if the speed of the vehicle had been different, either faster or slower. The true cause, on that analysis of the facts, was the coincidence of the horse running onto the road in such a way and at the very moment in time when the vehicle was passing, so that the horse ran into the driver's side door.
61 Cases of this kind appear mostly to be decisions of American courts. Some were referred to in Chappel v Hart by McHugh J at 246 - 247 [33] and Hayne J at 282 [114]. I note particularly the case where the plaintiff's
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injuries were held not to have been caused by the failure to warn of the approach of a train when the vehicle in question ran into the side of a carriage in the middle of the train. These are cases where the incapacity to establish a causal connection between the defendant's act or omission and the harm suffered by the plaintiff arises because the true cause of the plaintiff's harm is mere coincidence. The issue is discussed by Hart & Honoré, Causation in the Law, 2nd Ed at 164 - 168 and 181 - 182.
62 But it was unnecessary for the trial Judge to rest his judgment on such a consideration and his Honour did not do so. The causal connection between the omission of the signs by the defendant and the harm suffered by the plaintiff was negated by his Honour's finding that had the signs been there, the appellant would probably not have heeded them.
63 In my opinion, the appeal should be dismissed.
64 STEYTLER J: This is an appeal against the decision of a Judge of the District Court of Western Australia whereby his Honour dismissed the appellant's claim for damages arising out of a motor vehicle accident which occurred on 11 May 1992.
65 The appellant, then a 57-year-old management consultant, was travelling south along the Great Northern Highway, about 5.8 kilometres south of Turkey Creek in the Kimberley region of Western Australia, when his car collided with a wild horse which had strayed onto the highway. The appellant was then in the process of driving from Kununurra to Halls Creek. He suffered severe head injuries and never recovered total consciousness. His claim for damages was brought by his wife as his next friend.
66 The appellant had been engaged by the Aboriginal and Torres Strait Islander Commission as a management consultant and, on the finding of the trial Judge, had travelled "fairly extensively" in the Kimberley area. Evidence in this respect was given by the appellant's wife, Mrs Janet Jones, by Mr Allan Hobbs, who had operated a roadhouse in Turkey Creek, and by Mr Anthony Jackson, a community development co-ordinator who had worked in the region. Mrs Jones said that most of the work done by the appellant was done "out of" Broome. She said that while the appellant travelled to the Kimberleys "probably once every six weeks", she thought that he had driven from Kununurra to Turkey Creek about four or five times, having gone on to Halls Creek "maybe on a couple of occasions". Mr Hobbs said that he had seen the appellant in
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Turkey Creek several times and Mr Jackson said that the appellant travelled around the Kimberley region "a fair bit".
67 On this occasion the appellant had with him a passenger, Mr Shane Stewart. Mr Stewart testified that the appellant had planned to drive a four-wheel drive vehicle. However, a vehicle of that kind was not available for hire and, after waiting for some time in the hope that such a vehicle would become available, the appellant and Mr Stewart left Kununurra at about 5.30 pm in a hired Ford Falcon sedan. Mr Stewart inferred that the appellant had been keen to obtain a four-wheel drive vehicle because he "certainly was aware of the inherent risks in driving". He went on to say that "one of the reasons why we eventually left is that … [the appellant] didn't really want to be driving in the evening". While Mr Stewart did not say so, the risks to which he referred undoubtedly included that of collision with a straying animal.
68 The accident occurred at about 7 pm, in an area about halfway between two bridges, one of them spanning a creek known as Rocky Creek and the other spanning a creek known as Mabel Spring Creek. The road was sealed, with one lane for vehicles travelling in a southerly direction and one for vehicles travelling in a northerly direction. The trial Judge found, on all of the available evidence, that, in the course of his journey, the appellant had been driving at an average speed of between 135 and 140 kilometres per hour. He also found that the appellant had driven at a high speed through the town of Turkey Creek, notwithstanding a speed limit, in that town, of 90 kilometres per hour. The speed limit at the point of collision was 110 kilometres per hour and, on the finding of the trial Judge, this limit, too, was not being observed by the appellant. It seems that the wild horse with which the appellant collided ran from the right-hand side of the road (facing southwards) and into the driver's side of the car. The appellant lost control of the car, which left the road and collided with a tree some 20 to 30 metres further south on the left-hand side of the road.
69 The appellant contended at the trial that the respondent, who had the control, management and authority over main roads, including the material part of the Great Northern Highway, had been negligent in a number of respects. His statement of claim alleged that, at all material times on and prior to 11 May 1992, the respondent was aware or should have been aware that wild animals, including horses, were attracted to nearby watering holes at Rocky Creek and at the junction of Rocky Creek and Turkey Creek (those watering holes having been within 500 metres of the place of collision) and to a bore known as Six Mile Bore which is one
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- and a half to two kilometres away. He went on to allege (pars 4D, 4E and 6 of the statement of claim) that, in these circumstances, the respondent knew or should have known of the danger that such animals would cross the highway in the area where the accident occurred and should consequently have taken, but did not take, steps to warn motorists of this hazard and to limit the permissible speed to one which was safe in the circumstances. He also alleged (par 6.6) that the respondent failed at any time to make inquiries in the locality as to areas of extraordinary animal hazards.
70 There is no doubt that there was a danger that animals might stray onto the highway and the trial Judge so found. He said that there was a significant danger of encountering animals such as wild horses, donkeys and kangaroos on the road at night throughout the Kimberley region, including that part of the highway between Kununurra and Halls Creek. However, he said, there was no evidence to lead him to believe that the risk was any greater on the part of the highway at which the accident occurred than in other parts of the Kimberley region.
71 The trial Judge went on to make a number of other findings which were material to the outcome of the trial.
72 He referred to reported accident statistics in respect of that part of the highway between Kununurra and the site of the accident which, he said, did not show that there were more accidents in the area of Mabel Spring Creek and Rocky Creek than in any other area. He said that there were only two reported collisions with horses in the years 1985 to 1992 and that no information had been received (presumably by the respondent) that warranted signs where the accident occurred, although pictorial signs for straying stock were introduced two years after the accident.
73 His Honour accepted evidence given by Mr Glen Holdsworth, an engineer with expertise in transport planning, development design, road planning and traffic control, in the form of a report prepared by him and tendered at the trial. In that report, Mr Holdsworth said that, over the 7.33-year period prior to 11 May 1992, 50 accidents involving animals were reported between Kununurra and Halls Creek. Thirty-six of these resulted only in property damage to an extent greater than $1000, eight involved the occupant of the vehicle requiring medical treatment and six resulted in the hospitalisation of an occupant of a vehicle. The overall accident frequency was 6.82 accidents per year. In the vicinity of the accident site the accident frequency had been 0.27 per year per 20 kilometres or two accidents per 20 kilometres over the 7.33-year
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- period before the accident. There had been no reported accidents in 1992 before this accident.
74 The trial Judge also accepted evidence given by Mr Holdsworth to the effect that "too frequent" warning signs were discouraged because they tended to detract from the effectiveness of warning signs in instances of particular importance. Mr Holdsworth suggested that the use of warning signs should be limited to instances where the road environment was likely to present a hazard which was outside the probable driver expectation. He also said that there was a high probability that a motorist could encounter an animal anywhere on the highway between Kununurra and Halls Creek. He said that the dangers associated with large animals on the road would be obvious.
75 Next, the trial Judge found that the appellant had travelled in "this country" on a number of occasions and was aware of the dangers, in particular the risks of travelling at night.
76 There had been a good deal of local evidence to the effect that the area around Mabel Spring Creek and Rocky Creek presented a particular or unusual danger. The trial Judge, in the course of his reasons, accepted that this "certainly represents that perception of those giving that evidence". However, he said, notwithstanding the shortcomings of statistical information, he considered the latter to be evidence of a more reliable character, embracing the whole of the area between Kununurra and Halls Creek. That evidence, he said, did not suggest an increase in the incidence of risk in the Mabel Spring Creek and Rocky Creek area.
77 His Honour found that, in the circumstances, albeit there had been no warning signs or particular speed restrictions in the area of the accident (the only warning signs having been "cattle crossing" signs at two cattle yards near Halls Creek and the speed limit having been the standard 110 km per hour limit), this was justified because there was no particular or unusual hazard requiring signs of that kind. He said that there was no particular propensity for animals to approach that section of the highway and that the risk was one which was not extraordinary to the area. Rather, he said, it was one which was "equally foreseeable … [on] the whole highway between Kununurra and Halls Creek". He went on to say that signs warning of animals in the area were not warranted having regard to the overall character of the highway and likely presence of animals over a very large area.
78 Next, his Honour went on to find that:
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- "8. The … [appellant] failed to take reasonable care for his own safety by driving at a most dangerous speed at night and by that failure caused his injury. As a matter of ordinary commonsense his negligence was the sole real cause of the accident.
9. Having regard to the … [appellant's] knowledge of the risks of travel at night, he would not have heeded warning signs had they been erected; nor would he have decreased his speed to a safe speed had the speed limit been reduced - this is illustrated by his travelling at a dangerously fast speed through Turkey Creek where the speed limit was 90 km/h and at a dangerously fast speed in the vicinity of two narrow bridges upon a two-lane highway with cattle grids.
10. The … [appellant] claims the speed limit should have been reduced to about 80 km/h. Bearing in mind the distances to be travelled in that region, the variability of the risk depending on the hour of travel and perhaps on the season and the overall character of this station country, a reduction of the speed limit over the whole stretch from Kununurra to Halls Creek would not have been observed and for that reason would have been neither practicable nor desirable. Local speed limits in areas of perceived particular concentrations of animals with a propensity to stray on the highway would also have been neither practicable nor desirable."
79 The trial Judge also found, a little later in his reasons, that, had there been negligence on the part of the respondent with respect to warnings, that negligence would have constituted "a mere non-feasance" and the respondent would not have been liable in damages for such non-feasance.
80 The appellant's grounds of appeal are extensive. They attack virtually all of the important findings of fact made by the trial Judge and culminate in the proposition that his Honour erred in concluding that the respondent was not negligent in failing to erect signs in the area warning of potential danger by wandering animals and reducing the applicable speed limit to a safer limit. The appellant also contends that the trial Judge erred in finding that, even if the respondent had been negligent in failing to erect appropriate signs, this would have amounted only to
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- non-feasance with the consequence that it was immune from civil liability for damages.
81 Finally, so far as is relevant for present purposes, the appellant sought leave to adduce further evidence on the appeal in the form of various documents discovered and produced for inspection by the respondent only after the trial had been heard and decided. Counsel for the respondent having acknowledged that the Court is entitled to take them into account in considering whether or not the trial miscarried as a consequence of their then unavailability, the Court received them for that purpose.
82 As to the ground which challenges the trial Judge's finding that the failure to erect appropriate warning signs amounted to a non-feasance, with the consequence that the respondent was protected by an immunity, the respondent rightly concedes that the trial Judge was in error: see Brodie v Singleton Shire Council (2001) 206 CLR 512 at pars 55, 137, 149, per Gaudron, McHugh and Gummow JJ, and at pars 226 and 239, per Kirby J.
83 The only remaining questions, leaving to one side the issue of the fresh evidence, are consequently those of whether the respondent breached a duty of care owed by it to the appellant in failing to erect signs of the kind to which I have referred, whether any such breach contributed to the accident and, if so, whether, and to what extent, there was contributory negligence on the part of the appellant.
84 There is, firstly, no doubt that the respondent owed to the appellant, as a member of a class of road users, a duty of care. In Brodie, above, pars 150 - 151, Gaudron, McHugh and Gummow JJ said:
"Authorities having statutory powers of the nature of those conferred … upon the present respondents to design or construct roads, or carry out works or repairs upon them, are obliged to take reasonable care that their exercise of or failure to exercise those powers does not create a foreseeable risk of harm to a class of persons (road users) which includes the plaintiff. Where the state of a roadway, whether from design, construction, works or non-repair, poses a risk to that class of persons, then, to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk.
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- If the risk be unknown to the authority or latent and only discoverable by inspection, then to discharge its duty of care an authority having power to inspect is obliged to take reasonable steps to ascertain the existence of latent dangers which might reasonably be suspected to exist.
The perception of the response by the authority calls for, to adapt the statement by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 - 48, a consideration of various matters; in particular, the magnitude of the risk and the degree of probability that it will occur, the expense, difficulty and inconvenience to the authority in taking the steps described above to alleviate the danger, and any other competing or conflicting responsibility or commitments of the authority. The duty does not extend to ensuring the safety of road users in all circumstances."
85 Their Honours had earlier said, in [102], that:
"Whatever may be the general significance today in tort law of the distinction between misfeasance and non-feasance, it has become more clearly understood that, on occasions, the powers vested by statute in a public authority may give it such a significant and special measure of control over the safety of the person or property of citizens as to impose upon the authority a duty of care. This may oblige the particular authority to exercise those powers to avert a danger to safety or to bring the danger to the knowledge of citizens otherwise at hazard from the danger. In this regard, the factor of control is of fundamental importance (Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 551 - 552).
86 Their Honours also said, at par 140, that:
"… [T]he powers vested in road authorities give them a significant and special measure of control over the safety of the person and property of road users. This may make it incumbent upon the authority to exercise its powers, whether by averting the danger to safety or by bringing it to the notice of persons in the situation of the plaintiff."
87 The more fundamental questions, in this case, are those of whether or not the respondent breached that duty and, if so, whether, and to what
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- extent, that breach of duty was causative of the appellant's loss and damage.
88 In finding that there had been no breach of duty on the part of the respondent, the trial Judge relied, of course, on the evidence before him. In doing so he made assessments of credibility of the relevant witnesses. However, that does not relieve an appellate court of the obligation to examine the conclusions of the trial Judge. If a contrary conclusion necessarily flows from incontrovertible facts, the appellate Court is obliged to shoulder the responsibility of arriving at a different conclusion: see Galea v Galea (1990) 19 NSWLR 263 at 267 and see, generally, State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 73 ALJR 306 at pars 90, 92.
89 The trial Judge accepted, as I have said, that there was a significant danger of encountering animals at night on the road, including wild horses. However, he found, as I have also said, that there was no evidence which should lead him to believe that the risk was greater upon the relevant part of the highway, notwithstanding the "local evidence" to which he referred.
90 That "local" evidence was extensive. It included evidence from no less than nine witnesses, being Senior Constable Tysoe, Frank Chulung, Sandra McKenzie, Lawrence Carter, Eric and Dallas Purdie, Allan Hobbs, James Mahoney and Harold Riggs.
91 Constable Tysoe is a police officer who was based at Kununurra between 1989 and late 1992. He said that he travelled frequently on the Great Northern Highway and that he "quite often" saw animals on the highway and near the highway. He said that this was so "all up and down the highway". He said that he had previously seen horses near Turkey Creek, but he would not say that this was "a regular thing".
92 Frank Chulung is a resident of Kununurra, born on 24 July 1939, who had spent most of his adult life in the East Kimberley region. He had frequently travelled along the Great Northern Highway from Kununurra to Turkey Creek and south of Turkey Creek. He was asked how often he saw animals in the area of Rocky Creek and Mabel Spring Creek and responded by saying that, on a conservative assessment, he would have seen animals on six out of every 10 occasions. He said that he saw them, in particular, "around Little Mabel Creek … [and] around the Six Mile Bore between Mabel Downs and five kilometres north of Turkey Creek", although he added that he had seen cattle and horses and, to some extent,
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- donkeys on most of the highway between Kununurra and Halls Creek. He said that the main stretch of road that he was "very careful about … in terms of cattle and horses, was the stretch between Turkey Creek and Mabel Downs." He said that that was a distance of about 25 to 27 kilometres. He then said that the need to be careful existed "especially about Mabel including Rocky Creek, the Six Mile Bore and Little Mabel Creek." He added that he had nearly collided with a horse in that area in 1975. He said that the stretch of road between Halls Creek and Turkey Creek was "a very dangerous stretch between the 25-kilometre component from north of Turkey Creek to south of Turkey Creek".
93 In the course of cross-examination, Mr Chulung said that the stretch of the Great Northern Highway from five kilometres north of Turkey Creek down to about "Mabel Downs jump-up", including the Rocky Creek and "Little Mabel Creek" area, was "very notorious for horses". He said that he had struck one and "could have struck a few more" had he not been careful. He said that the horses were attracted by water in the area.
94 Sandra McKenzie had, at the time of the accident, been a joint manager of an establishment, known as "Harry's Place", at Turkey Creek. She said that she had periodically seen horses in the area, although she added that "they were all along the road from Halls Creek to Kununurra". She said that it was a standing joke at the roadhouse that tourists used to come in and say, "Why do the animals die at the side of the road?"
95 Mr Carter is a resident of Kununurra and grew up in Halls Creek and on the surrounding stations. He said that Mabel Spring Creek had always had water and that cattle and horses migrated to water. He said that cattle or horses might be found anywhere along the journey between Halls Creek and Turkey Creek. However, he also agreed with the proposition, put to him in the course of cross-examination, that cattle or horses could be found on the road from time to time at watering points from Turkey Creek north to Kununurra.
96 Eric Purdie, who was born in 1925, had lived at Turkey Creek or nearby stations since 1966. He said that there were always horses and cattle on the road, all the way between Turkey Creek and Halls Creek. He, too, said that there was always water in Mabel Creek. He said that he always encountered cattle and "stud horses" in the area around Rocky Creek. He said that his son had collided with a beast just south of the Rocky Creek bridge. He said that he had himself once had a "near miss" when a horse crossed the road in front of him, but said that he had never had any other accidents because he did not drive fast enough to do so.
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97 Dallas Purdie is a mechanic employed at Turkey Creek. He has lived in Turkey Creek all his life. He said that he had seen brumbies on the Great Northern Highway a few times. When asked whether there were any spots at which animals would frequently be encountered, he identified watering places such as Six Mile Bore, around Rocky Creek and two other bores. He said that all of these were bad spots for animals. He said that, "being a local you slow down in these spots … because of the hills and the winding road. You slow down because you know there's animals around them areas."
98 Allan Hobbs had worked at the Turkey Creek Roadhouse from 1987 to 1993. Prior to that he had worked as a truck driver for 20 years all over the Kimberley region. He said that the highway between Kununurra and Halls Creek was one of the most dangerous roads for animals that he encountered, when compared to other places in the Northern Territory or the Kimberleys. He said that "that particular 300 or 400 kilometres of road" was "sort of notorious". He said that the area between Turkey Creek and Halls Creek (a distance of about 160 kilometres) was a particularly bad spot and that there were certain areas where animals would come down to water or cross the road to their watering points. He said that from the Mabel Downs turn-off back to Turkey Creek had "always been pretty bad". He did not drive at night if he could help it and not many of the locals would travel after dark in that area. When he did have to drive between Turkey Creek and Halls Creek at night-time, he would not travel at a speed greater than 70 or 80 kilometres an hour.
99 Mr Mahoney, a resident of Perth, is an engineer employed by the Main Roads Department ("the Department"). He has been with the Department since 1982. He did not consider that there should be any reduced speed limit in the region of the accident because he believed that, in general, it would not be observed because drivers would not see it as appropriate. He could see nothing in the accident statistics relating to the area which suggested that that part of the road between the two bridges was more accident prone than average. He said that (as will already be apparent) the statistics revealed that between 1985 and 1992 there had been only two accidents involving horses in that area. He said that stock crossing signs were ordinarily set up at designated watering points and that, in putting up signs, the Department relied upon information from drivers who encountered cattle on the road and from its own workforce that worked or travelled in the area. I should add, in this respect, that Mr Holdsworth, in the course of his evidence, had said that the Department undertook a process known as a road safety audit, which comprised driving along the route and making an assessment of any
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- hazards that are observed along the route. He said that highway authorities had conducted audits of that kind over many years.
100 When asked whether the road between Kununurra and Halls Creek (a distance of about 360 kilometres) was notorious for animal hazards, Mr Mahoney said that it was no worse than other areas and that there were other similar areas between Fitzroy Crossing and Derby. He also said that the Department had not been getting "a lot of feedback that the animals … [in the area between Kununurra and Halls Creek] were anything out of the ordinary". He said that warning signs, indicating cattle crossing, were put up in areas where there was permanent water.
101 Harold Riggs had been the station manager of the Mabel Downs Station between 1978 and 1994. The Great Northern Highway passed through the station property, entering at approximately six kilometres north of Turkey Creek and continuing for approximately 70 kilometres south to Bottle Creek Bore. He said that brumbies were to be found in that area during 1992 and that there had been horses "running up there" for years. The range in which they were to be found was only about a mile away from the Great Northern Highway. He said that horses and mules and donkeys were attracted to a nearby spring. He said that, in May, pools of water could be found in Rocky Creek and Mabel Spring Creek and that good food for the horses was to be found in that region. This attracted wild animals. He said that the locals avoided night travel in that area if they could do so. When he travelled in that area, he did so at a speed of less than 100 kilometres per hour. He had himself collided with a bullock in the area. He did not report the accident. He said that it was well known by the locals that animals could be found around the Rocky Creek junction area, although he also said that he frequently saw animal bodies by the side of the road elsewhere between Kununurra and Halls Creek.
102 Mr Riggs said that, on the stretch of the Great Northern Highway running through Mabel Downs Station, he would lose about 50 cattle per annum through collisions. He said that the Department never spoke to him about how many animals he was losing through collisions and that he was never approached by the Department at all. He added that the problems with cattle could be encountered all the way up to Kununurra.
103 When regard is had to all of this evidence, even putting to one side the fresh evidence proposed to be relied upon by the appellant, it seems to me that it provides overwhelming support for the proposition that the road from Kununurra to Halls Creek was, in 1992, a dangerous stretch of road
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- as a consequence of the threat of straying animals. The evidence also established, conclusively in my opinion, that the danger was at its greatest in areas such as those around Mabel Spring Creek and Rocky Creek, where animals wandered nearby and where water and good food were to be found. In my respectful opinion, it was not open to the trial Judge to dismiss all of this evidence (and it may be noteworthy that his Honour made no mention, at all, of that of Mr Hobbs) as merely representing the "perception" of those who gave it and to prefer the "statistical information … embracing the whole of the area between Kununurra and Halls Creek". What that statistical information established, in my opinion, was that the whole of the road between Kununurra and Halls Creek presented a particular danger. What the evidence of the local inhabitants established was that that danger was at its most acute, as I have said, in areas such as Mabel Spring Creek and Rocky Creek in which water and good food were to be found.
104 The statistics to which his Honour referred demonstrated that, over the seven or so years preceding the accident, no less than 50 accidents involving animals on the stretch of road between Halls Creek and Kununurra were reported. I have already mentioned that six of these resulted in one or more of the occupants of the vehicles requiring hospitalisation and that another eight resulted in the occupant or occupants requiring medical assistance. I have also mentioned that at least 36 of the accidents resulted in property damage to an extent greater than $1000. No statistics are kept in respect of accidents which do not result in bodily injury and in which there is property damage to a value of less than $1000. If the recorded statistics are taken at face value, they provide evidence of a very large volume of accidents. However, it seems plain that the reported accidents are only a fraction of those which actually occurred. So much appears from the evidence of Mr Riggs alone. Moreover, the statistics take no account of "near misses" which resulted in no harm and were consequently never reported.
105 The evidence, taken in its entirety, seems to me quite plainly to have established that there was a need, throughout the length of the road between Kununurra and Halls Creek, to place signs, warning of the danger of straying animals, on those parts of the road (including that in which the accident occurred) in which animals were more frequently to be found. It would, in my opinion, have been a relatively simple matter for the Department, which was well aware of the risk of straying animals, to have made inquiries in the area in order to determine which locations were the areas of highest risk and to have placed signs accordingly. In my opinion it should have done so. Indeed, Mr Holdsworth himself acknowledged
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- that local knowledge "most definitely" had a role to play in considering what safeguards should be implemented by the Department.
106 It seems to me, also, that the respondent should have imposed lower speed limits in those areas where the danger was most acute. On the evidence of the local residents, a speed limit of 110 kilometres per hour was far too high in the area between Rocky Creek and Mabel Spring Creek and one of 80 kilometres per hour should, in my opinion, have been imposed in that area. The fact that some motorists might have ignored that speed limit does not, in my opinion, absolve the respondent of the need to impose it.
107 As to the issue of causation, I find myself, with due respect, entirely unable to accept the proposition, accepted by the trial Judge, that merely because the appellant had previously travelled in the Kimberley region, including the area between Kununurra and Halls Creek, he would have been aware of the extent of the risk posed by straying animals. He was, no doubt, aware of the risk of straying animals. He had previously driven in the area, and in the Kimberleys generally, and his attempts to hire a four-wheel drive vehicle demonstrated his concerns in this respect. However, there was nothing to suggest that he knew which areas along his chosen route were particularly dangerous. He had, on the available evidence, only limited experience of this particular stretch of road and it seems to me to be improbable that he would, in the absence of any warning signs or even a reduced speed limit, have known of the particular danger presented by straying animals in the Rocky Creek and Mabel Spring Creek area. From the respondent's point of view, on the other hand, the danger was one which ought readily to have become apparent to the Department in the course of one or more of its "audits" (which should, in my opinion, have encompassed the making of reasonable enquiries) and, as I have said, one which should have been addressed by appropriate warning signs and a reduced speed limit: see, generally in this respect, Brodie, above, at 150 - 151 and Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 - 48.
108 This conclusion renders it unnecessary to consider the fresh evidence introduced on behalf of the appellant on the appeal, that evidence having essentially gone to the issue just determined in the appellant's favour, being that of whether or not the respondent should have known of, and warned against, the particular danger presented by straying animals in the area in which the accident occurred.
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109 There remains the question whether the appellant would have heeded a warning sign and a reduced speed limit, if either or both had been there. This raises issues similar to those addressed by Kirby J in his judgment in Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 at 482 as follows:
"Where a breach of a relevant duty of care is shown, it is still necessary for a plaintiff to prove, on the balance of probabilities, that such breach caused or materially contributed to the damage. This means that the plaintiff must show that, if the defendant had fulfilled its duty, as defined, doing so would have resulted in the avoidance of the plaintiff's damage and loss. Necessarily, the question is hypothetical. It calls for a consideration of what might have been if certain things had been done because, by definition, they were not done and that is the plaintiff's complaint. Sometimes the plaintiff has been asked directly what he or she would have done if the acts constituting fulfilment of the suggested duty had occurred. Normally, however, there is no direct evidence on the point and in any case the question is one for objective assessment, not subjective protestations after the event. In this case, the appellant was not asked. It was left as a question of fact for the tribunal of fact to decide whether the protective measures suggested would have been effective in preventing her loss and damage."
110 Also relevant are the following comments of Gaudron J in Bennett v Minister for Community Welfare (1992) 176 CLR 408 at 420 (some citations omitted):
"Leaving aside cases involving some positive act and those in which an omission can be treated as a positive act, a case based on omission or a failure to act will, in certain respects, fall for analysis in a way that differs from that appropriate for a case based on a positive act. Thus, in the case of a positive act, questions of causation are answered by reference to what, in fact, happened. In the case of an omission, they are answered by reference to what would or would not have happened had the act occurred … In that exercise, the larger philosophical questions are brushed aside and the issue is approached on the basis that 'when there is a duty to take a precaution against damage occurring to others through the default of third parties or through accident, breach of the duty may be regarded as
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- materially causing or materially contributing to that damage, should it occur, subject of course to the question whether performance of the duty would have averted the harm': Sutherland Shire Council v Heyman (1985) 157 CLR 424.
In practice, it is not always necessary to inquire what would have happened in the circumstances under consideration had a positive duty been performed. Thus, in the case of a statutory duty, a 'breach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach of statutory duty': Betts v Whittingslowe (1945) 71 CLR 637 at 649, per Dixon J.
And although it is sometimes necessary for a plaintiff to lead evidence as to what would or would not have happened if a particular common law duty had been performed … generally speaking, if an injury occurs within an area of foreseeable risk, then, in the absence of evidence that the breach had no effect … or that the injury would have occurred even if the duty had been performed: see Barnett v. Chelsea and Kensington Hospital Management Committee (1969) 1 QB 428 and British Road Services Ltd v A V Crutchley and Co Ltd (1967) 2 All ER 785, it will be taken that the breach of the common law duty caused or materially contributed to the injury."
111 In this case the appellant was not (and could not have been) asked what he would have done had there been an appropriate warning sign and a lower speed limit. What is clear, however, is that the appellant, knowing of some danger in the area, paid little heed to those speed limits which were in existence. Even if the trial Judge erred in finding that the appellant had travelled at a very high speed through the town of Turkey Creek (as counsel for the appellant invited us to find), there is no doubt that his average speed, over the whole of his journey, significantly exceeded the applicable speed limit. However, there was also evidence that the appellant was an experienced and ordinarily responsible driver. His wife, in the course of her evidence, said that, while he was not a "slow" driver (which appears to have been something of an understatement), he did pay great attention to the particular conditions. She said that it was his practice to heed warning signs. Mr Stewart, too, said that the appellant was a very competent driver who adapted his driving to warning signs. He said that if there was a road sign which
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- required a certain element of caution or reducing the speed, the appellant "would adjust his driving habit at that time".
112 In all of these circumstances, it seems to me to be probable that, had there been a warning sign as to the particular danger presented by straying animals in the area around Mabel Spring Creek and Rocky Creek, the appellant would have slowed down, to some extent at least. It also seems to me to be probable (although some speculation is required) that his failure to do so contributed to the accident which occurred or added to its severity (as to which see Betts v Whittingslowe (1945) 71 CLR 637 at 649; Birkholz v R J Gilbertson Pty Ltd (1985) 38 SASR 121 at 130; Chappel v Hart (1998) 195 CLR 232 at 244 and Naxakis v Western General Hospital (1999) 197 CLR 269 at 279, 312). Had the appellant driven more slowly, he would have had more time to attempt to avoid the collision. Also, it is reasonable to infer that an impact at a slower speed would have resulted in the appellant suffering less severe injuries.
113 However, I do not consider that the respondent's negligence was the sole cause of the accident. While it is true that there were no warning signs of the kind which I have described, and that the speed limit set for the particular stretch of road where the accident occurred was too high, the fact remains that the appellant was, on the available evidence, driving much too fast (and well above the then applicable speed limit), even allowing for the fact that he probably did not know of the particular danger in the area. In all of these circumstances, it seems to me that a reasonable apportionment of liability as between the appellant and the respondent would be one of 50 per cent each.
114 I would consequently allow the appeal, set aside the decision of the Court below and substitute for it a decision holding the respondent liable to the appellant for 50 per cent of the damages sustained by him.
115 In the absence of agreement as to the amount of those damages, the matter will have to be returned to the District Court for assessment.
- AGLC
- Lloyd Russell Jones v Commissioner of Main Roads [2002] WASCA 307
- Case
- [2002] WASCA 307
- Decision Date
CaseChat Overview and Summary
The court had to determine whether the Commissioner owed a duty of care to the appellant, whether there was a breach of that duty, and whether the breach caused the accident. The trial judge dismissed the "local knowledge" evidence and instead relied on statistical information to determine whether warning signs and a reduced speed limit were necessary. The issue of causation and the apportionment of liability were crucial to the case. The court had to consider whether the appellant's contributory negligence, in significantly exceeding the speed limit, should reduce his entitlement to damages.
The court found that the Commissioner owed a duty of care to the appellant and that there was a breach of this duty. The court held that the Commissioner should have implemented warning signs and reduced the speed limit to protect motorists from the risk of wild animals. The court also found that the appellant was contributory negligent, but this did not absolve the Commissioner of liability. The court apportioned liability between the appellant and the Commissioner, with the appellant receiving 50% of his damages. The appeal was allowed, and the judgment of the District Court was set aside. The case was remitted to the District Court for assessment of the appellant's damages.
Orders
Orders of the court
Appeal allowed
Judgment of District Court set aside
Judgment for appellant for 50 per cent of his damages
Action remitted to District Court for assessment of damages
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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