Montfroy v Roads Corporation

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 133 of 2002

GREGORY PAUL MONTFROY	Plaintiff
v
ROADS CORPORATION (Trading as VicRoads ABN 61760 960 480)	Defendant

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JUDGE:	GILLARD J.
WHERE HELD:	BENDIGO
DATE OF HEARING:	27, 28, 29 July and 1, 2 and 3 August 2005
DATE OF JUDGMENT:	24 August 2005
CASE MAY BE CITED AS:	Montfroy v Roads Corporation
MEDIUM NEUTRAL CITATION:	[2005] VSC 320

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TORT – Negligence – Obligations of road authority to repair and maintain roads and erect warning signs – Duty of care to road users – Not a specialised duty – Road authority liable for misfeasance, not non-feasance, in respect of road repair functions. Vehicle skidding on black ice on bridge – Hump on approach to bridge deflecting course of travel – Created by road authority – Sign inadequate to warn of dangerous situation – Driver failed to respond to sign – Sign inadequate – Driver’s negligence not a cause of mishap – Driver not guilty of contributory negligence. Damages – Pain and suffering – Impairment of earning capacity.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T. Tobin, S.C. with Mr D.J.N. Purcell	Cahills Lawyers
For the Defendant	Mr R.P. Gorton, Q.C. with Mr A.D. Clements	Phillips Fox

TABLE OF CONTENTS

Parties

Basic Facts

The Law – a change and re-introduction

Issues

Duty of Care

Facts

Duty of Care

Negligence

How did the incident occur?

What speed?

Was there a hump and if so, what size?

State of knowledge of Roads Corporation

A. The Bridge
B. Black Ice
C. Hump
D. The Signs

Was the Roads Corporation negligent?

Causation

Damages

A. Injuries, pain and suffering, and loss of enjoyment of life

A. Practitioners retained by plaintiff’s advisers:
B. Practitioners retained by Corporation’s adviser:

B. Loss of earning capacity

(i) Past loss of earning capacity
(ii) Future loss of earning capacity

Total Damages

Contributory Negligence

Conclusion

HIS HONOUR:

In this proceeding instituted by writ, the plaintiff seeks damages for injuries suffered, lost income and impairment of future earning capacity arising out of a collision between his motor vehicle and another motor vehicle. He brings his claim against the Roads Corporation.

Parties

The plaintiff, Gregory Paul Montfroy (“the plaintiff”) was born on 13 January 1959, and is aged 46 years. He has been unemployed since 16 August 2000, the date of the collision, and presently is a disability support pensioner.

The defendant, Roads Corporation which trades as VicRoads (“Roads Corporation”), is a body corporate pursuant to the provisions of the Transport Act 1983 and is the body responsible for the maintenance, upgrade and extension of the State’s declared road network. It is empowered to erect and maintain traffic control items and signs on highways and roads.

Basic Facts

The basic facts which have led to this litigation can be briefly summarised. At 4.00 am on 16 August 2000 the plaintiff was driving his recently acquired 1978 Ford motor vehicle on the Calder Highway some 40 kilometres south of Bendigo when his vehicle commenced to pass over the Elphinstone overpass. As his motor vehicle proceeded onto the deck of the bridge, its back wheels struck a raised section of the roadway causing the rear to deflect to the nearside. At the same time the front wheels of his vehicle hit black ice, with the result that he lost control of his motor vehicle. The vehicle slid across the road and collided head-on with an oncoming motor vehicle (“the incident”). As a result of the collision, the plaintiff suffered moderately severe injuries which have left him with significant disabilities to his legs. At the time of the incident he was employed as a traffic management controller. He has not worked since the incident. In addition to claiming damages for his injuries, pain and suffering, for common law negligence against the Roads Corporation, he also seeks damages for loss of earnings in the past and for the loss of his earning capacity. The incident is covered by the Transport Accident Act 1986 which provides for payments for medical expenses and lost wages for a period. He claims common law damages under that Act.[1] The Transport Accident Commission has assessed the plaintiff as suffering a serious injury within the meaning of that Act, entitling him to bring the proceeding to recover damages for pecuniary loss and pain and suffering.[2]. The plaintiff alleges the Roads Corporation was negligent principally because it permitted the hump on the road to remain and because it failed to adequately warn him of the hazard constituted by the hump and black ice.
[1]See Part 6.
[2]See s.93(7) and (17).

The Roads Corporation has denied negligence and alleged contributory negligence.

The Law – a change and re-introduction

Roads Corporation is a body created by statute. Its objects and functions are set out in the Act that created it. No person or body has any authority to build, maintain or repair a road or install and maintain any traffic signs unless he, she or it is authorised by statute. See Dixon J’s observations in Buckle v Bayswater Road Authority.[3] Whether a road authority is under any duty of care to road users will depend upon the provisions of the statute concerning its powers and authorities and this will depend upon whether the statute imposes a duty on the road authority. The statutory provisions which relate to the Roads Corporation authorise it to perform a variety of functions including repair and maintenance of highways and the erection and maintenance of traffic signs on the highways to regulate traffic. These two functions are distinct and separate. The Roads Corporation operates as a road authority and also as an authority empowered to erect and maintain traffic signs. The parties in the present case paid little attention to the statutory provisions governing the functions and objects of the Roads Corporation. At the request of the Court, Roads Corporation provided some information concerning its statutory functions and powers. Neither counsel addressed the Court as to the relevant provisions and their effects. I have perused the various statutory instruments and it appears to me that the following legislative provisions are relevant.
[3](1936) 57 CLR 259 at pp.281-283.

Section 16 of the Transport Act 1983 sets out the objects and functions of Roads Corporation and amongst the many functions it has, it has the function of maintaining, upgrading, varying and extending the State’s declared road network and to purchase, construct, erect, install, maintain, design and operate traffic signals and other traffic facilities for the purpose of traffic management and control.[4] Section 16(3) requires the Corporation in the exercise of its function to “have regard to the achievement of the following objects” amongst which is the obligation “(c) to achieve the efficient and safe movement of road traffic”. Section 38 deals with the powers of the Corporation. It provides:

“(1)Each corporation has power to do all things that are necessary or convenient to be done for or in connection with, or as incidental to, the performance of its functions in the achievement of its objects.”

[4]See s.16(1)(a) and (b).

Section 55 incorporates the provisions of Schedule 5 which “have effect with respect to roads”. Clause 1 of Schedule 5 empowers the Roads Corporation to declare any road or part of any road to be, inter alia, “a State highway”. Whilst there was no direct evidence from the parties as to whether the Corporation had declared any road as a particular type of road, a witness, Jackson Clark, in his report which he prepared in July 2003 for the Transport Accident Commission solicitors, described the Calder Highway as a State Highway. I will proceed on that assumption. Clause 2 empowers the Corporation to make a new road or a deviation from or widening of an existing road. Clause 5(2) provides that the Minister may direct that any permanent works specified by him shall be carried out by the Roads Corporation or that the Roads Corporation shall maintain any main road specified by him. There is no evidence whether that direction was given in respect to the Calder Highway at any time prior to the date of the incident. Clause 17 is relevant in the present proceeding. It provides:

“ … The Roads Corporation shall be charged with the carrying out of permanent works on and permanent improvements to and the maintenance of every State highway and no municipality shall be liable to pay any contribution in respect to the maintenance of a State highway.”

Section 95 of the Road Safety Act 1986 gives power to the Governor‑in‑Council to make regulations with respect to a variety of matters. Pursuant to that provision, in 1999 the Road Safety (Road Rules) Regulations were passed.[5] The Regulations deal with the power of bodies to erect traffic control items. Section 99 of the Act provides:

“(1)Any … body corporate having authority pursuant to the regulations to do so may, without unduly obstructing the thoroughfare, install and maintain in or on any highway any standard warning or operative sign or safety device or mark, parking area, traffic island or other device or thing that is prescribed or authorised by the regulations for the regulation and control of vehicular, animal or pedestrian traffic.”

[5]See SR No. 120/1999.

Part 3 of the 1999 Regulations deals with installation of traffic control items. Regulation 303 empowers the Corporation in sub-regulation 2, to “erect, establish, display, maintain or remove a traffic control item” on a State highway. Regulation 310 empowers a person “who erects, establishes, displays a traffic control item in accordance with these regulations may maintain or alter that item”. The same power is given to a person who established a traffic control item in accordance with the 1988 regulations. An overall power is given to the Corporation in sub-regulation 2 which provides:

“(2)A person must not alter a traffic signal without the written consent of the Corporation.”

It is clear from the foregoing consideration of the statutory framework, that Roads Corporation exercises functions and powers as both a road authority in respect to the repair and maintenance of, inter alia, State Highways, and as an authority responsible for road traffic signs, their design, installation and maintenance.

Prior to the High Court decision of Brodie v Singleton Shire Council[6] the law was clear, concerning road authorities, had been settled in England for centuries and was part of the law of Australia for at least 100 years. See Municipal Council of Sydney v Bourke[7] and Miller v McKeon.[8] An authority having the care and management of a road could be the subject of criminal proceedings for non‑repair, but no proceeding could be brought against it by a person injured as a result of defect in the road, if the defect was caused by a failure to repair the road. As a road authority, it was not liable for failing to do anything even where the defect constituted an obvious hidden danger. The road authority was not liable for doing nothing, ie. non-feasance. On the other hand, if a person suffered injury because of a defect in the road which resulted from some act by the authority it could be sued. The road authority was liable for misfeasance. The general rule was, it was not liable for non-activity, but was, if it negligently performed work which was a cause of injury or damage.
[6](2001) 206 CLR 512.
[7][1895] AC 433.
[8](1906) 3 CLR 50 at 60.

The principles were discussed by the High Court in Buckle v Bayswater Road Authority[9] and Gorringe v The Transport Commission (Tas).[10] In the former case, Dixon J[11] discussed the principles. He first observed that a road authority is armed with powers under statute which entitles it to construct, maintain and repair roads. His Honour observed:

“The existence of such powers gives rise to no civil liability for the consequences of the defective state of the road … It is well established that no civil liability is incurred by a road authority by reason of any neglect on its part to construct, repair or maintain a road or other highway.”

[9](1936) 57 CLR 259.

[10](1950) 80 CLR 357.

[11]At pp.281 et seq.

His Honour observed that even though the authority was exercising statutory powers, it would only be liable if one could discern a legislative intention to impose an absolute duty to repair and thereby confer a private right on the individual. However the authority was liable for misfeasance.

He summarised the misfeasance rule at p.283:

“It is, of course, a civil wrong to cause particular damage by obstructing a highway, or by making it unsafe or dangerous. Interferences with a highway which in themselves would be unlawful in a stranger are as a rule authorised acts when done by a road authority. But a road authority in doing them must take due care for the safety of those using the highway and is not protected if it creates dangers which reasonable care and skill could avoid. Because the road is under its control, it necessarily has the opportunity denied to others for causing obstructions and dangers in highways. But when it does so, the road authority is liable, not, I think, under any special measure of duty which belongs to it but upon ordinary principles. … it will be liable not on the ground that it failed to exercise its powers so to prevent them, but on the ground that it was the active agent in causing an unnecessary danger in the highway.”
(Emphases added).

In late 2000, the High Court heard two appeals which raised the issue whether the law should be changed. On 31 May 2001 the Court delivered its reasons. See Brodie and anor v Singleton Shire Council.[12] By a majority the High Court changed the law. The road authority’s immunity from suit for non-feasance was abolished; the common law immunity no longer applies.
[12](2001) 206 CLR 512.

In the present proceeding, the plaintiff’s cause of action arose before there was the change in the law. However, he issued his proceeding on 13 December 2002. By this time the Parliament in this state had stepped in and restored the Road Authority Immunity Rule. The Transport (Highway Rule) Act 2002 was passed to overcome the decision in Brodie v Singleton Shire Council. The Act came into operation on 4 November 2002. It is clear from s.3, which inserted a new Part IIA in the Transport Act 1983, that the restoration of the old law applied to any proceeding instituted after the Act came into operation whether the cause of action arose before or after the commencement of the Act.[13]
[13]See s.3(3).

A new section, s.37A(1) provides as follows:

“37A Restriction on liability of public authorities
with the function of highway authorities
(1)The public authority is not liable in any civil proceeding for any failure by that public authority, in relation to any function it has as a highway authority –
(a)to repair the highway or to keep the highway in repair; or
(b)to inspect the highway for the purpose of determining the need to repair the highway or to keep the highway in repair.”
(Emphases added).

It is noted that it is only in relation to its functions as a highway authority, namely, to repair or keep in repair or to inspect the highway for the purposes of the need to repair, which is immune from action if there is any failure to carry out that particular function. The re‑introduction of the immunity rule does not cover any other function of a road making authority. The Roads Corporation in this proceeding can rely upon the Road Authority Immunity Rule and has pleaded it in its defence. On the other hand, it does not enjoy any immunity in so far as it has any obligations concerning the design and placement of traffic signs on the road to warn motorists of hazards. Of course it is still liable under the misfeasance rule.

In Brodie, the Court determined two different appeals. One concerned injuries suffered by a pedestrian, and the other dealt with a claim by a plaintiff for personal injury and property damage arising as a result of his motor vehicle falling through a defective bridge. Observations were made by three of the majority judges, Gaudron, McHugh and Gummow JJ, suggesting that the duty of care owed to at least a pedestrian was a specialised duty. It was a duty owed only to a plaintiff taking reasonable care for his or her own safety. There have been a number of cases in the New South Wales Court of Appeal and this Court which have held that there is a special type of duty which is not the general duty to take reasonable care for the safety of those who use the roads. The duty of care, according to the recent cases, is only owed to a pedestrian taking reasonable care for his or her own safety. See Burwood Council v Byrnes,[14] Hastings Council v Shirley Dawn Geise,[15] Boroondara City Council v Ellen Cattanach[16] and Greater Shepparton City Council v Tammy Lee Davis.[17]
[14][2002] NSWCA 343.
[15][2003] NSWCA 178.
[16][2004] VSCA 139.
[17][2004] VSCA 140.

The Court of Appeal in Moyne Shire Council v Lorraine Florence Pearce[18] was concerned with a pedestrian who tripped over a defective roadside spoon drain outside her home. As a member of that Court I closely analysed the reasons of Gaudron, McHugh and Gummow JJ and came to the conclusion that they had not spelled out a specialised duty of care to pedestrians. However, when the High Court considered an application for special leave from the decision of Burwood Council v Byrnes, supra, it is clear that McHugh and Kirby JJ were of the opinion that there was a specialised duty owed to pedestrians, namely, only owed to those who took reasonable care for their own safety. I was compelled by the observations made on the special leave application to accept that there was a special duty in respect of pedestrians. I agreed with the other two members of the Court that that was the duty owed in that case. After that decision was published my attention was drawn to another decision of the New South Wales Court of Appeal, Sutherland Shire Council v Henshaw[19] in which Bryson JA read the majority decision as I had read it and was of the view that the Court had not laid down any specialist duty. His Honour took a more robust view to what was said on the application for special leave than I did.
[18][2004] VSCA 246.
[19][2004] NSWCA 386.

The question that arises in the present case involves not a pedestrian but a driver of a motor vehicle. It was contended on behalf of the Roads Corporation that Brodie had established that there was also a specialised duty owed not only to pedestrians but also to other road users. In other words, the duty of care is only owed to a road user taking reasonable care for his or her own safety. If this submission is correct, although the Roads Corporation enjoyed immunity from non-feasance, at least up until 1 January 2005,[20] nevertheless it also enjoys something that it did not have at common law, namely, a specialised duty which was only owed to a plaintiff driver taking reasonable care for his or her own safety. This was not the common law. The doctrine of misfeasance did not depend upon the duty owed being a specialised duty only. In the joint judgment[21] their Honours described the duty in the following terms:

“The duty which arises under the common law of Australia may now be considered. Authorities having statutory powers of the nature conferred by the [Local Government] Act upon the present respondents to design or construct roads, or to carry out works or repairs upon them, are obliged to take reasonable care that their exercise of or failure to exercise those powers does not create a foreseeable risk of harm to a class of persons (road users) which includes the plaintiff. Where the state of a roadway, whether from design, construction, works or non‑repair, poses a risk to that class of persons, then, to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk. If the risk be unknown to the authority or latent and only discoverable by inspection, then to discharge its duty of care an authority having power to inspect is obliged to take reasonable steps to ascertain the existence of latent dangers which might reasonably be expected to exist.”

[20]See s.2(2) of the Transport (Highway Rule) Act 2002.

[21]supra at paragraph 150.

Their Honours went on to observe that the question of response by an authority to its obligations is to be determined by considering the matters raised by Mason J in Wyong Shire Council v Shirt.[22] Their Honours then went on to observe[23] that in dealing with particular cases and in determining actual issues concerning breach of duty “it may be convenient to differentiate between the design and construction of a roadway, between subsequent works done on it between courses of inspection to ascertain its soundness.” Their Honours then referred to a number of matters under sub‑headings, namely:

“(i)Construction and Design
(ii)Repair, maintenance and works
(iii)Pedestrians
(iv)Inspections.”

[22](1980) 146 CLR 40 at 47-48 – referred to in Brodie at paragraph 151.

[23]At paragraph 152.

Their Honours discussed “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.”[24] It was their consideration under that heading which led the Courts of Appeal to come to the conclusion it was a specialised duty to pedestrians. However, in considering matters of construction, design and repair maintenance and the like, their Honours had this to say:[25]

“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’ the proper starting point may be the proposition that the persons using the road will themselves take ordinary care.”

[24]At paragraph 163.

[25]At paragraph 160 et seq.

A reference is then made to the old High Court case of Miller v McKeon.[26]
[26](1905) 3 CLR 50 at 60.

The reference was what Griffith CJ said. As I read what he said, he was talking about the standard of care that was required in the circumstances to respond to the risk of injury. His Honour said:

“So the government of a newly-settled country, which undertakes the first formation of a road, whether soil has or has not been formally dedicated as a highway, is bound to use such care to avoid danger to persons using it as is reasonable under all the circumstances. These circumstances include the nature of the locality, the extent of the settlement, the probabilities as to the persons by whom the road is likely to be used, and the moneys available to the government for the purpose; it being always assumed that the persons using the road will themselves take ordinary care. If the governments use such care they are not guilty of misfeasance.”

Mr Gorton QC on behalf of Roads Corporation, relying upon what was said in Brodie’s case at paragraph 163 in the High Court and what was said by the New South Wales and Victorian Courts of Appeal, submitted that in the present case any duty of care owed by the Corporation to road users was a specialised one, namely, one only owed to a road user exercising reasonable care for his or her own safety.

In my opinion, the majority judges in Brodie were not laying down a special duty in relation to road users other than pedestrians. I do not, for the reasons I stated in the Moyne Shire Council case, read their reasons in that way. There is no Court of Appeal decision which binds me in this regard. In my opinion, the duty of care which is owed by a road authority in respect to misfeasance is to take reasonable care in all the circumstances. I do not doubt for one moment that in determining whether it has been negligent, it is appropriate to take into account an expectation that the road user will take reasonable care for his or her own safety. However, because there is some doubt in this regard, I will consider and determine this case on the two alternative bases, namely, a duty to take reasonable care and a duty to take reasonable care only to those who take reasonable care for their own safety.

A question which does arise is how does the Court approach and determine the question of duty of care where it is a specialised duty? I discussed the question in Moyne Shire Council v Lorraine Florence Pearce.[27] In stating the principles, I relied upon the observations made by McHugh and Kirby JJ in the special leave application in Byrnes v Burwood Council[28]. First, the general rule of whether or not an alleged tort feasor owes a duty of care to the victim is a question of law. However if there are any disputed questions of fact which are relevant to the decision, the factual matters are for the tribunal of fact. Secondly, the specialised duty stated by the High Court does involve a question of fact namely whether the victim was taking reasonable care for his or her own safety at the relevant time? This question is for the tribunal of fact to decide. Thirdly, the burden of proof is upon the plaintiff and the plaintiff must establish that at the relevant time he or she was taking reasonable care for his or her own safety. It is only when the plaintiff establishes that as a fact that the duty arises. This is made clear by what McHugh J said in the application in the Byrne’s case. His Honour said

“There is no duty of care in respect of certain types of hazards, it is only when you get past that, that any question of the defendant’s obligation to take reasonable care comes in.”

Further on, His Honour said –
“In other words duty does not begin until a point is reached where the plaintiff has taken reasonable care for his or her own safety in respect of certain defects and then the duty arises.”

[27]supra at paras 89-91.

[28][2003] HCA Trans.–462.

Fourthly, there may be a degree of tension between the factual question in the duty of care and any allegation of contributory negligence. I adverted to this issue in the Moyne case. McHugh J was of the view that there would be no difficulty in dealing with the two issues which are separate. McHugh J added to the quotation referred to above the following –

“Once that duty is engaged, then questions of contributory negligence come in.”

In considering the factual question in the specialised duty of care situation, it is necessary to guard against the benefit of hindsight and it is important to note that the obligation resting upon the plaintiff is to take reasonable care for his or her own safety. In addition mere inadvertence may not in the circumstances show lack of reasonable care on the part of the plaintiff. See Webb v The State of South Australia[29]. Further in considering the factual prerequisite to the operation of a duty of care, the Court must guard against the reintroduction of the old common law defence of contributory negligence. With the benefit of hindsight, it is not usually difficult after a stringent analysis of the plaintiff’s conduct to mount an argument that the plaintiff was partially to blame for the mishap. Indeed experience shows that often a number of factors contribute to the happening of an accident causing injury and damage. At common law contributory negligence on the part of a plaintiff which was a cause of the mishap causing injury was a complete defence to the plaintiff’s proceeding. In some cases the defence produced unjust results leading the Courts to adopt various strained formulae to avoid the harshness of the defence. By way of example reliance on the defendant’s conduct, agony of the collision theory, and last opportunity or last clear chance. The harshness of the rule led to reform in the law. The Wrongs Act was amended in late 1951. See Wrongs (Contributory Negligence) Act 1951. It is now Part V of the Wrongs Act 1958. As a result the legislation, contributory negligence was no longer a defence, and if established by the defendant, the tribunal of fact determined the apportionment of blame resulting in a reduction in damages.
[29](1982) 56 ALJR 912 at p.913.

The plaintiff carries the burden of establishing the factual matters and would have to show that he or she took reasonable care in the circumstances before the duty arises. The High Court in Brodie’s case referred to defects and hazards in roads, and I think it can be said with confidence that a very obvious defect or hazard which should have brought home to the plaintiff to take avoiding action may constitute a failure to take reasonable care. It would be both unwise and impossible to define the types of hazards or defects or circumstances which would show a lack of care on the part of a plaintiff. It is trite to observe, that each case must depend upon its own particular facts. Mere inadvertence may not in the circumstances constitute lack of reasonable care.

Finally in relation to the question of contributory negligence, which has been raised in the present case, there will be an overlap between the specialised duty of care factual question and the issue of contributory negligence. I observed in the Moyne case “It would only be that part of a factual issue which falls outside the determination of a first factual issue concerning a duty of care which could be the subject of any finding of contributory negligence. In many cases if the jury came to the view that there was a duty of care and the authority was negligent, there would be no finding of contributory negligence”. However I do emphasise that that is a general proposition and each case must be considered on its own particular facts.

Issues

The plaintiff’s cause of action is common law negligence. The pleadings and the parties’ submissions raise the following issues for consideration and determination –

(i)Did the Roads Corporation owe a duty of care to the plaintiff at the time of the collision and if so what was the nature of the duty of care?
(ii)If the Roads Corporation owed a duty of care, was it negligent?
(iii)If the Roads Corporation was negligent was its negligence a cause of the plaintiff’s injuries?
(iv)What amount of damages is the plaintiff entitled to if he establishes that the Roads Corporation is liable?
(v)Was the plaintiff guilty of contributory negligence?

Duty of Care

For reasons already stated, the Roads Corporation is immune from liability for non‑feasance as a highway authority by reason of s.37A of the Act. However, it is liable for misfeasance, that is, negligence resulting from some action. In those circumstances the duty of care that rests upon it as a highway authority and which it owes to road users is to exercise its functions and powers with reasonable care. In the alternative, its duty is owed only to those road users who take reasonable care for their own safety. The duty only arises if the plaintiff proves that in the circumstances he took reasonable care for his own safety. In my opinion, the Roads Corporation owed a general duty of care to the plaintiff in its role as the body responsible and empowered to erect and maintain traffic warning signs. Whilst the power to do so is expressed in discretionary terms, in accordance with the general principles laid down in Donoghue v Stephenson, it is reasonably foreseeable that if it fails to erect and/or maintain proper and appropriate road warning signs to road users, injury could occur and secondly, the relationship of the authority having exclusive powers concerning signs on State highways and road users is sufficiently proximate to establish the duty of care. The Roads Corporation is the body empowered to erect proper adequate and suitable signs and is entrusted by Parliament to do so. It knows the volume of traffic on a State Highway, such as the Calder Highway. It has in the past undertaken the task to erect suitable signs on the Calder Highway. It is in control of the task of erecting the signs. It had a duty to take reasonable care to erect in appropriate places proper warning signs of any known hazards. The Corporation had the power to, and exercised control over, the installation of suitable signs.[30] I am reinforced in that conclusion by the decision of the High Court in Commissioner of Main Roads v Jones.[31] In that case the driver of a motor vehicle was injured after his vehicle struck a stray feral horse and left the road. His case against the road authority was that it was liable because it failed to fence, light or give warning of the presence of feral animals. It was accepted by counsel for the road authority that it owed a duty of care to the road user.[32] The plaintiff failed.
[30]See Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 30-31, 47 and 53.
[31](2005) 79 ALJR 1104.
[32]See at paragraphs 14 and 39.

Gummow and Hayne JJ said:[33]

“This was not a case which turned upon the state of the highway. The accident occurred because the vehicle came into collision with a wild horse … The relevant duty imposed by the law upon the Commissioner was one to take reasonable care for the safety of the respondent as a user of the highway. The relevant powers of the Commissioner were those dealing not with the construction and maintenance of the highway but with the creation and maintenance of appropriate signs where necessary for the guidance and protection of road users, including the imposition of particular speed limits.
Consistently with the decision in Brodie v Singleton Shire Council, it is not an issue that a statutory body, such as the Commissioner, may come under a common law duty of care in relation to the exercise or failure to exercise its powers and functions. In submissions to this Court, the Commissioner did not dispute the existence of a duty of care. This obliged the Commissioner to take reasonable care that its exercise or failure to exercise its powers and functions did not create a foreseeable risk of harm to road users, including the respondent.” (emphasis added)

[33]At paragraphs 38 and 39.

I did not understand Mr Gorton to deny that the Corporation owed a duty of care in respect to its powers and functions relating to the erection and maintenance of road signs. However, he did submit that the duty of care was only owed to those road users who were taking reasonable care for their own safety. I reject that submission. There is no basis for it. Further, what Gummow and Hayne JJ said in Commissioner of Main Roads v Jones is against that submission.

It is convenient to briefly consider the question whether the Roads Corporation as a highway authority was immune from liability for failing to do anything in regard to the black ice. The common law did not impose any duty on a road authority in respect of the build up of ice on the road surface or any failure to remove it. See Burton v West Suffolk C.C.[34] and the recent decision of the House of Lords in Goods v East Sussex C.C.[35] However, that does not mean that an authority may not be liable for misfeasance for the presence of ice on the road surface if the ice was created by some positive act on behalf of the authority. On the other hand, the immunity rule does not apply to the Roads Corporation exercising its separate function as the authority responsible for road warning signs. This function has nothing to do with its function as a road making authority which function includes repair and maintenance. Despite the separation of the functions I refer to what Callinan J said in Commissioner of Main Roads v Jones where his Honour wrote:[36]

“He [the judge] would also have exculpated the appellant upon the other basis pleaded, that an omission, if any, to erect warning signs, was non-feasance for which the appellant could not, in the circumstances, be liable.”

[34][1960] QB 72.

[35][2000] 1 WLR 1356 especially at 1361-1365.

[36]At paragraph 63.

His Honour observed that the decision at first instance was decided prior to the decision in Brodie’s case. His Honour did not quote any authority for his proposition. I have some difficulty with his Honour’s proposition in light of the fact that the other members of the Court all accepted that there was a duty of care resting upon the Commissioner of Main Roads in respect to his role as the person authorised to erect appropriate warning signs.

In my opinion, the immunity rule does not apply in this case to the Corporation’s function as the body responsible for the erection and maintenance of proper and appropriate warning signs to road users.

Facts

The plaintiff was born on 13 January 1959, is now aged 46 years and at the time of the incident was aged 41 years. His father was a music teacher and his mother was employed at Myer. He is one of four siblings. The family resided in Bendigo. He was educated to Year 11 at a technical school at Kangaroo Flat and then commenced an apprenticeship as a bricklayer. He succeeded in completing his training but left the trade within a matter of months because he did not like the work. Thereafter he obtained work in the hospitality industry, working in bars and the like. He subsequently went to Queensland where he worked in the hospitality industry in a variety of places. In about 1987/88 he returned to Bendigo and continued in the hospitality industry. In 1991 he commenced a wood turning business, initially operating it at home, subsequently operating it in partnership in a factory premises. He formed a relationship with a woman in 1988 or thereabouts and as a result of their union he has two daughters now aged 14 and 11. Their relationship broke up about a year prior to him ceasing business in wood turning. He and his business partner fell out and eventually he closed the business and sold the plant, equipment and stock somewhere around 1996/97.

He ceased work for about a year, spending his time living in a caravan behind his sister’s residence, playing music, writing poetry and generally relaxing. On 17 July 1998 he commenced employment with A&H Plant in Bendigo. This company was involved in hiring out plant for road construction and conducting a road safety management division. The plaintiff was employed as a traffic management controller which involved him driving down to Melbourne each working day and working at the Citilink project. As I understand his employment, he and others were responsible for making sure that a road construction site was safe for both the workers and road users. He shared travel with other employees and they drove down to Melbourne to various construction sites. His employment was normally nightshift, which meant that he left Bendigo at about 5.00 pm, commenced work at about 8.00 pm and returned to Bendigo the following morning from any time between 6.00 am and 8.00 am. Eventually A&H Plant moved to Strathmore. This required the employees to drive down to Strathmore in their own vehicles, take over an employer’s vehicle and attend the site. He was promoted in his employment and was responsible for supervising up to six employees.

Up to August 2000 his routine was to drive down to Melbourne usually in daylight hours and return to Bendigo in the early to late morning. Some three days prior to Wednesday 16 August 2000 he purchased a 1978 Ford Falcon sedan for $1,500. He stated it was in excellent condition. His routine evidently was changed and as a result on the morning of Wednesday 16 August 2000 he drove his recently acquired car from Bendigo towards Melbourne. Unlike his previous work, he was obliged to leave home early in the morning. On the previous Monday night he had worked night shift and had spent the Tuesday sleeping and relaxing. At that stage he was engaged to work at a construction site in Torquay. He was required to drive to Strathmore, take an employer’s vehicle and drive to Torquay. He stated that the time taken to get to Strathmore was about one and a half hours and using the employer’s vehicle, it took about another one and a half hours to get to Torquay. He said he was not running late on the Wednesday morning.

On this particular morning, he picked up a fellow employee Corey Hyland and commenced to proceed down the highway in a southerly direction towards Melbourne. It was a very cold morning. According to a statement made by the plaintiff on 20 November 2000, the temperature was -5⁰C. Bendigo is renowned for cold mornings and is colder than Melbourne. About 20 minutes south of Bendigo he reached what is known as the Elphinstone Overpass Bridge. This bridge passes over a roadway and a railway line. It is a two‑lane highway at that point. The approach is a gentle incline in a generally southerly direction with a moderate sweeping right‑hand bend to the bridge deck. The road reaches the bridge deck which is approximately 80 metres long from north to south. On each side of the highway on the approach for at least 350 metres was a continuous guard rail and for a driver unfamiliar with the area, the bridge was not obviously a bridge. Painted on each side of the bitumen surface leading to and on the bridge was a conspicuous thick white fog line and double white lines in the middle of the road surface. A vehicle approaching the bridge deck ascends a slight incline of 2.2% (0.022m/m). The road surface on the bridge deck comprises two lanes as did the approach, each approximately 4 m from fog line to the centre double lines. There was an expansion joint between the highway approach and the surface of the bridge. The surface of the highway had subsided slightly, repairs had been performed on and around the area, and there was a lip or hump between the surface of the approaching highway and the beginning of the bridge deck The plaintiff’s vehicle was travelling south at about 100 kilometres per hour which was the speed limit. Three hundred and twenty metres north of the bridge was a sign warning motorists of the possibility of the road being slippery “when frosty”. He passed that sign and he states that he saw it but did not notice anything particularly different about the road surface and he continued at about 100 kilometres per hour. As his vehicle approached the bridge there was a slight incline and he may have momentarily slowed going up that incline, although as he said, he did not deliberately lessen his speed. He states that he got to the expansion joint area, that his front wheels went across that joint but as his back wheels hit it, he felt the back of his car slew to his left which resulted in his vehicle pointing across the road to the west, it was skidding, and he ended up proceeding across the other side of the road out of control and struck another motor vehicle coming from the south. The point of impact was approximately 10 metres south of the end of the bridge and was in the centre of the north bound lane. There was a layer of black ice over the deck of the bridge. It was extremely slippery. As a result of the collision both vehicles were extensively damaged and written off. The plaintiff said that just prior to the collision he threw himself to the left in the vehicle, and the next thing he remembers is being spoken to by his passenger. It appears that he was unconscious for about a minute or less. He was jammed in the vehicle. At one point the engine compartment caught on fire but it was put out by a truck driver who had stopped at the scene. It took about half an hour for the emergency crew to extract him from the vehicle and he was taken to the Bendigo Base Hospital.

The only two areas of factual dispute concern his stated speed and whether in fact his vehicle struck a hump with its rear wheels causing him to slew across the road over the black ice out of control. There is no doubt that it was a very cold morning. It was below freezing point, it was a clear night and there was frost on the vegetation and trees on the side of the road. There is no doubt that there was black ice on the road. One of the policemen who attended, Senior Constable Whitty, said he slipped over when he started to walk across the bridge. Another witness said his vehicle skidded after he brought it to a stationary position on the bridge. It was put to the plaintiff that he did not hit a hump. It was noted that he had not told that to any doctor when explaining what happened. It is noted in the further amended statement of claim, which was in much the same form as the original statement of claim, that there is no statement that the rear wheels of his vehicle hit a hump, and also in an answer to an interrogatory explaining how the incident occurred, no mention was made of him hitting a hump. However, in my opinion the criticism is unfounded. The plaintiff was in the Bendigo Base Hospital for about four or five weeks and was then admitted to the Ann Caudle Rehabilitation Centre at Bendigo where he remained for many months. The first period at the centre was in a fully supervised situation and some months later he was placed in one of their self‑contained units where he was encouraged to do as much as he could for himself, assisted from time to time by staff. On 20 November 2000, whilst at that Centre, he was interviewed by a Transport Accident Commission (“TAC”) employee. He made a statement, which he signed, and he described the accident as follows:

“I travelled about 10 metres over the bridge or overpass when the rear wheels struck the joint of the Calder and the overpass, a join we term a ‘lip’ on the road. This caused the rear of the Ford to hump, the tyres lost traction, the Ford slide (sic) sideways to the left, that is the rear of the Ford. This gave the Ford a direction to the right and the momentum took me onto the north bound lane. At the same time, I saw the headlights of a car in the north bound lane travelling towards Bendigo. I then collided head‑on with the vehicle … “.

He made mention in that statement of the presence of black ice.

I am satisfied on the evidence that the way the plaintiff described the lead up to the collision was correct. His version is supported by his passenger, Corey Hyland. The Roads Corporation called Mr Shane Richardson, a mechanical engineer, who practises as a consultant specialising in, inter alia, accident investigation and reconstruction. He opined that the plaintiff could not have collided with a hump at the beginning of the bridge deck. In reaching that conclusion he has taken at face value the statement made by the plaintiff to the TAC employee that he hit a hump some eight metres after he passed onto the bridge deck. Mr Richardson stated that the description was not consistent with him impacting a significant hump and losing control and he stated that if he had, the combined effect of the forces on the vehicle would have caused it to strike the bridge guard rail on the near side, which did not occur. As this did not happen, Mr Richardson was of the view that the plaintiff’s description was consistent with loss of control on the overpass due to the low friction caused by the black ice, that the plaintiff lost control about a third of the way along the bridge deck and by reacting quickly to the hazard by applying the brakes, the vehicle slid across to the other side. I do not accept his evidence. The version given by the plaintiff in the witness box is different. It is clear that the hump was at the beginning of the bridge deck. The plaintiff’s version, supported as it is by his passenger, is consistent with the forces that were applied at the relevant time. As the plaintiff was proceeding to the beginning of the bridge deck, his vehicle was in a sweeping right-hand turn bend. The centrifugal forces would be operating on his vehicle directing it to its nearside. The vehicle did not proceed to its nearside because of the traction of the wheels on the road surface. As his vehicle reached the raised section of the road constituting the hump at the expansion joint, the offside front wheel first of all passed over the hump, immediately followed by the nearside front wheel. Then the offside rear wheel hit it, and it was the nearside rear wheel which following immediately hit the hump. This caused a deflection in the direction of travel of the vehicle which at that stage was still under the influence of centrifugal forces. Further at that point the vehicle was on the slippery black ice surface. It would have had considerable momentum, especially because of its speed. The vehicle slid across to the offside and down the highway some 80 metres before collision with the vehicle coming the other way. I accept the evidence of another expert, Jackson Clark, who stated that a vehicle could lose control on striking a hump, causing it to travel onto the incorrect side of the road and the risk of loss of control is “increased at times when the road surface following the location of the hump is icy”. I also accept the evidence of Mr David Axup who is a very experienced expert witness in the area of motor vehicle accidents and reconstruction. He noted that if there was a hump present, “a vehicle crossing this hump would experience a compression of its front suspension followed by an unloading of that suspension with the rear suspension doing the same as it also crossed the hump. The drive train of a vehicle requires a friction loading at the tyre‑road interface and ice on a road surface can reduce the available friction value to below that of the demand from the drive tyres. When this happens the tyres spin on the surface and slip causing a loss of directional stability. As the vehicle was in a right‑hand curve then the loss of traction at the drive would induce a clockwise rotation of the vehicle and a resumption of the tractive effort would result in the vehicle heading in the direction it was facing at that time.”

It was also put that he was travelling in excess of 100kph. However, there is no evidence to support that submission and I have no reason not to believe the plaintiff as to his speed. His version was supported by his passenger, Corey Hyland.

As a result of the collision, the plaintiff suffered momentary loss of consciousness which would appear to have been more in the order of about 20 seconds according to the evidence of Mr Hyland. The plaintiff suffered a laceration to his forehead, multiple fractured ribs and a penetrating wound to the right side of his chest. He was taking in air through the wound. He suffered pulmonary contusions and a right pneumothorax. It is alleged that he suffered crush fractures of the sixth and seventh thoracic vertebra though the x-ray evidence was somewhat inconclusive. He stated that he suffered a back injury. His more serious injuries concerned his legs. He suffered a compound comminuted fracture of the right tibia and fibula which involved the right ankle joint. He suffered a double fracture of the left tibia and the left fibula. As a result of the fractures to his right ankle, he suffered from post-traumatic osteoarthritis of the right ankle which ultimately led to an arthrodesis. He underwent an ankle fusion in June 2003 but he still has ongoing pain in the right ankle and foot.

On the morning of the accident, he was admitted to the Bendigo Hospital where his injuries were observed. He was taken to the operating theatre for repair to his chest wall. He spent four days in intensive care and he experienced some chest pain which was thought to be a pulmonary embolus. This diagnosis was excluded on a scan. On the right side his leg injuries were treated with open reduction and fixation with external fixture, and the left fractures were treated with an intramedullary of the tibia and immobilisation in plaster. He remained in the Bendigo Hospital until 11 September 2000. His treatment was bed rest. He was unable to walk due to the injuries suffered to his legs.

On 11 September 2000, he was admitted to the Anne Caudle Rehabilitation Centre of Bendigo Health Care. At the time of his transfer he was not weight bearing and was confined to a wheelchair. His initial rehabilitation concentrated on improving his upper limb strength and an attempt to obtain movement in the lower limbs. He progressed reasonably well and eventually was able to perform his activities of daily living using a wheelchair. Because his home was not wheelchair suitable he was discharged on 9 October 2000 from the rehabilitation centre and occupied an independent living unit at the Centre. He continued his out-patient rehabilitation programme from there. Unfortunately, the healing of his fractures was delayed and it was observed that he was able to commence partial weight bearing on his left leg in October 2000 but continued non‑weight bearing on the right for some time thereafter. He developed problems with pain in his legs. He suffered a deep vein thrombosis in his legs. He was reviewed by his surgeon, Mr Keith McCullough, in November 2000. His external fixatures were removed from his right ankle and a plaster was placed on his right leg. He continued with his out‑patient rehabilitation programme from the independent living unit and by 18 January 2001 he was weight bearing on the left leg but only touch weight bearing on the right leg. He was learning to mobilise on the walking rails in physiotherapy and was still living in the unit. He had a trial leave to home in February 2001 and this went quite well, and he returned home soon thereafter. It was noted on 15 March 2001 that the left tibia was healing well. He was allowed to increase his weight bearing on that leg which he was able to do. He was also wearing an ankle‑foot support. He continued with physiotherapy during 2001. By mid 2001 he was still experiencing some pain in his right ankle but was able to put 70 to 80% of his weight on that leg. He was considering recommencing driving at that point. By 13 September 2001 he was walking with two crutches one to two kilometres per day with a little pain in both feet. There was limited flexion and extension in his right ankle and there was some rotation in his left ankle.

By February 2002, the plaintiff was making reasonable progress and walking with a walking stick. He had some restriction of movement of his right ankle, but his left ankle movements were near full.

In October 2002, the plaintiff was troubled with pain over his left shin and some low back pain, and x-rays were taken of his lumbosacral spine. There was a lump on his shin due to a prominent bulging of a muscle. The tibial fractured left leg had united but the fractured fibula had not. By December he was still having problems with weight bearing on the right ankle and consideration was given to an ankle fusion. By March he was riding a pushbike 10 kilometres a day and was able to walk a couple of kilometres, but there was pain. There is no doubt that in the years that followed the accident, the plaintiff did suffer from considerable pain, restriction of movement and interference with his every day activities. On 2 June 2003 his right ankle was fused surgically and this took some months to heal. By 9 February 2004, he was able to walk reasonable distances although he had some pain above the ankle. He now has a stiff right ankle.

In evidence he stated that today he gets some throbbing pain in the rib cage where the fractures occurred and it can develop during the day and give him problems. He feels fatigue in his legs and low back after standing, any physical activity or sitting down for long periods. He has to lie down. He can sit for a number of hours but then needs a break. He is on no treatment. He does not take pain killers or anti‑inflammatory drugs.

After the arthrodesis the ankle took a long time to fuse and on one occasion, whilst on his crutches, he turned around quickly at home, fell over and hurt his right shoulder. He suffers from pain and restriction in the shoulder. He finds that the right ankle has some slight sideways movement and if he walks for a period of time he gets a pain. He cannot stand for any length of time because he gets a deep throbbing pain. There is some suggestion that he may have to have another arthrodesis to other parts of the right ankle. He thinks he can walk at best about 400 to 500 metres and that is about the limit.

He was interested in archery and volleyball but can no longer participate in any form of physical-type sport. In years gone by he was a competitive table tennis player but no longer so. He finds that he cannot do the archery because of the problems with his left shoulder. He spends his time now with his computer and playing and writing music. He is able to drive. He looks after his two daughters and drives them wherever they want to go. He can play a keyboard. He has not worked since the incident.

It will be necessary to further consider the injuries and their effects later.

Duty of Care

It was contended by counsel for the Roads Corporation that at the relevant time the Roads Corporation did owe a duty of care to the plaintiff but it was a specialised duty of care, namely, a duty of care only in the circumstances where the plaintiff was taking reasonable care for his safety. I have dealt with this submission.

In my opinion:

(i)The Roads Corporation is not liable for non-feasance as defined by s.37A of the Transport Act 1983.
(ii)It is liable, as a road authority in relation to its function as the authority repairing and keeping in repair the highway, for misfeasance, and it owes a duty to take reasonable care in relation to its positive acts.
(iii)It owes a duty to road users to take reasonable care as the authority responsible for designing, erecting and maintaining road traffic signs and its obligation is to take reasonable care in all the circumstances.

As I stated earlier, I propose to also consider the duty of care owed by the Roads Corporation to the plaintiff in its capacity as the authority performing repairs on the basis that it was a specialised duty of care, that is, a duty only owed to the plaintiff taking reasonable care for his own safety. For reasons which I amplify hereafter, in my opinion the plaintiff did take reasonable care for his own safety leading up to the collision. It was contended that he did not because he ignored the sign that he passed 320 metres before his motor vehicle hit the hump. The time taken to drive that distance was between 11 to 12 seconds according to the evidence of Mr Axup. As he pointed out 11 to 12 seconds is a fairly long period of time to be driving between a warning sign and a hazard. But in my opinion the warning sign was inadequate in the circumstances. It did not alert the driver to the real hazard, which was the presence of the hump in combination with the black ice on the bridge deck. The plaintiff had already driven for some 20 minutes at about 100 kilometres per hour from Bendigo and had not experienced any problems at all. The sign required him to make a decision. Was it frosty? The evidence revealed that there was no frost on the road or the shoulders to the road. The Roads Corporation had placed the sign on the road with knowledge of the potential for black ice to form on the bridge deck, and also acknowledged that a hump existed. The sign did not alert the plaintiff to the hazardous combination of the hump and the presence of ice. The plaintiff was entitled to proceed, based upon his knowledge and the wording of the sign, without slowing down because he had no reason to believe that there was a hazard ahead on the bridge deck. Accordingly in its capacity as a road making authority responsible for repairs and maintenance, the Roads Corporation did owe a duty of care to the plaintiff, if the true nature of the duty of care is a specialist one.

Negligence

Whether or not there is a duty of care is a question of law. The duty is always the same. It is to take reasonable care in all the circumstances to avoid the risk of injury to the plaintiff. See Benson v Lee.[37] That is a statement of law. It is not a statement of fact. The degree of care required to respond to the reasonably foreseeable risk of injury must depend upon all the circumstances and is a question of fact. The tribunal of fact, whether it be a judge or a jury, sets the standard. Negligence is established when it is proven that the alleged tort feasor has failed to attain the standard of care which would be expected for the reasonable person knowing all the circumstances and reasonably responding to the risk of injury.
[37][1972] VR 879 at 881, The Law of Torts, Dr Fleming, 9^th ed at p.150.

The response to the duty of care was stated in the joint judgment in Brodie,[38] in the following terms:

“The perception of the response by the authority calls for, to adapt the statement by Mason J in Wyong Shire Council v Shirt, 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. In the application of principle, much thus will turn on the facts and circumstances disclosed by the evidence in each particular case.”

[38]supra at 577-8.

In a case involving liability of a highway authority where the Court held that it was guilty of misfeasance, the majority expressed the same question as follows:

“The question then is: what is the response which the reasonable man, foreseeing the risk, would make to it? Is the risk so small that the reasonable man would think it right to neglect it? In Wyong, Mason J said:
‘The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have’.”[39]

[39]See Webb v the State of South Australia (1982) 56 ALJR 912 at 913.

More recently in Commissioner of Main Roads v Jones,[40] Gummow and Hayne JJ posed the question:[41]

“Where the state of a highway or main road created such a risk, the Commissioner was obliged to take reasonable steps to alleviate the danger. But what was reasonable in this case?”

[40](2005) 79 ALRJ 1104.

[41]At paragraph 40.

Their Honours then went on to quote the statement in Brodie.

In determining the question of negligence, it is convenient to commence with the circumstances of the incident which caused the injuries and determine the cause or causes of it and having reached that point, consider what the reasonable person should have done or omitted to do in the circumstances to avoid the happening of the incident. The test is an objective one, taking the reasonable person as knowing all that the defendant knew and what in the circumstances he ought to have known. Whilst that is an approach, it must be applied carefully to avoid the effect of being wiser after the event, the so‑called litigious hindsight. In Commissioner of Main Roads v Jones,[42] Gleeson CJ[43] observed:

“In this respect, the case provides another example of the danger involved in considering warnings without making due allowance for the distorting effect of litigious hindsight. The matter was discussed in Rosenberg v Percival. When a foreseeable risk has eventuated, and harm has resulted, the particular risk naturally becomes a focus of special attention. Yet, if it was the only one risk among many, there may have been no reason, at the time of the allegedly tortious act, to single it out.”

[42](2005) 79 ALJR 1104.

[43]At 1106.

These observations were made in the context of causation but are important on the question of negligence.

The evidence leads me to the conclusion that there was a confluence of factors which brought about the incident on the night of 16 August 2000. The four factors which in my view contributed to the incident were the speed of the plaintiff in the circumstances prevailing at the relevant time, the existence of a hump over the expansion joint at the commencement of the bridge deck, the presence of black ice on the surface of the bridge deck and the placement of an inadequate sign. It was contended on behalf of the plaintiff that the sign was totally inadequate to warn him of the real hazard which was on the deck of the bridge, was not large enough, was not precise enough and was situated at a point too far back from a known area of black ice to give adequate warning.

The next question is to consider what the reasonable authority should have done to reasonably respond to the risk with knowledge of all relevant matters which the authority knew or ought to have known in the circumstances?

In considering and determining the issue of negligence it is necessary to state the facts relevant to the question.

How did the incident occur?

I have already considered this question. I have stated my conclusions. The incident occurred as described by the plaintiff and supported by his passenger, Corey Hyland.

What speed?

I have already found that the plaintiff approached the commencement of the bridge deck at a speed somewhere between 90-100kph. This was the speed limit. There was no sign requiring him to reduce his speed and neither the sign or the conditions alerted him to slow down. In the circumstances known at the time, his speed was reasonable.

Was there a hump and if so, what size?

The plaintiff gave evidence that there was a hump over the expansion joint area at the northern end of the bridge. It was a noticeable hump. It caused the back wheels of his vehicle to leave the roadway. The hump had been there for many months prior to the incident as deposed to by the plaintiff’s co‑workers. There is no direct evidence from any source as to the size of the hump on the night of the incident. A photograph taken by his brother, a member of the police force, Senior Constable Andrew Montfroy, on 21 September 2000, five weeks after the happening of the incident shows the area over the expansion joint and it appears to be raised. However, it is not possible, looking at that photograph, to determine the size of the hump. On the western side of the roadway, that is, on the other side to the plaintiff’s course of travel, the white fog line over the area indicates a reasonably sizeable hump but it is not possible to determine the size of the hump on the actual driving lanes from the photograph.

A number of experts have at various times since the date of the accident visited the scene and made observations concerning the size of the hump at the time of their inspection. Because of the danger involved in stepping onto the roadway and making a proper examination to determine the height of the hump, the evidence of each of the experts has to be treated with caution. Further, it appears that the Roads Corporation resurfaced the area in January 2004.

The evidence revealed that Roads Corporation carried out inspections on the overpass in the year 2000 and previously, on a weekly basis and in a range of weather conditions. It is also clear that the Roads Corporation kept records, some of which have been tendered in evidence. Evidence also revealed that two days prior to this incident the Roads Corporation inspected the area. Nobody was called from the Roads Corporation to provide information as to inspections and whether there was any hump. On the other hand there is evidence that prior to 16 August 2000 it was observed that the road surface leading up to the expansion joint on the northern end of the bridge had subsided to some extent because of settlement, thereby creating a lip at the point where the road surface met at the expansion joint, the bridge deck.

Mr Terry W. Alford is a consulting engineer who has had considerable experience in the area of road construction and maintenance. He gave evidence which I accept that sealed roads deteriorate as a result of repeated traffic loading and environmental influences such as climate and soils. Maintenance is to be carried out to ensure not only the safety of traffic but to sustain the serviceability and appearance of the road. He referred to the Austroads publication, A Guide to the Visual Assessment of Pavement Condition 1987, which classified defects in road surfaces under six headings, two of which were deformation and surface texture deficiencies. He visited the Elphinstone Overpass on 6 June 2005 and observed that there was a hump of approximately 25-30mm existing at the northern end of the bridge deck. He observed that it caused a small deflection of light vehicles, and caused trucks and semitrailers to visibly jolt their load. He stated that such a hump would be classified as a deformation with possible surface texture defects. He stated that the hump results from shoving resulting from the movement of the road surface immediately adjacent to the bridge deck. He opined that the cause of such movement can be poor pavement material, inadequate compaction at the time of construction and/or the intrusion of water. Evidence was given by Mr Alford and also another expert, Jackson Clark, that good road management procedures require the monitoring of the approaches to bridge abutments for settlement and to correct any settlement as required. As Mr Clark emphasised, the identification and correction of any hump is not only a matter of driver comfort for road users but is a matter of safety. Mr Clark opined, and I accept his evidence, that loss of control is more likely to occur on bends in the road and/or uneven or rough road surfaces with poor friction, resistance or traction. He also stated, and I accept his evidence, that humps in road surfaces can cause the wheels of vehicles to become airborne and a vehicle can start to slide when this occurs. If wheels slide, control can be lost with respect to the vehicle’s path. Mr Alford stated that good road works practice recognised that if a hump was of 25mm or more in height, a response was necessary to avoid, amongst other things, a safety issue arising. He referred to VicRoads specifications, s.750, Appendix 2. At the time of the incident, the response time for intervention to do something about a hump of 25mm or more was not specified but it was noted that intervention should take place.

The first expert to visit the scene was Jackson Clark who provided a report to TAC Law. He examined the area on 13 June 2003. He observed that the road surface approaching the bridge had settled; this had occurred over a number of years and had apparently been rectified by building up the road surface. He observed that “the settlement resulted in a step or hump along the abutment for the full width of the roadway”. Photographs taken by him at the time clearly establish this as did the photograph taken by the plaintiff’s brother shortly after the incident. He said that he measured the height of the hump at “the abutment in the south bound traffic lane” at 125mm. However, as he stated in his evidence, that measurement was made reasonably close to the fog line on the east side of the carriageway. He measured the height of the hump by placing a piece of wood at the peak of the hump and running in a generally northerly direction, bringing the wood to a level plain using a spirit level, and he then measured the distance between the bottom of the piece of wood and surface of the road. In my opinion that process gave a wrong reading. To get a reading which had a degree of accuracy about it, it would have been necessary for the piece of wood to have been held parallel to the surface of the road. I do not accept that the hump at that date was 125mm as Mr Clark stated.

The next expert to look at the scene was David Axup who is very experienced in the area of motor car accidents and at one point was a Chief Superintendent in the Victoria Police Force. His experience is by reason of both study and work in the field. He visited the scene on 6 January 2004 and took a number of photographs. He determined the vertical height of the hump at 37mm. He opined that the hump could form a dam for moisture and facilitate the forming of ice. Photographs taken by him in early January 2004 when compared with the photograph taken by the plaintiff’s brother shows that some sealing work had been done in the intervening period. Roads Corporation provided evidence that the bridge and approaches were resealed in January 2004. Looking at Mr Axup’s photographs there is a real suspicion that work had been done prior to January 2004 on the northern approach to the bridge deck, especially when compared with the photograph taken by the plaintiff’s brother.

As stated Mr Terry Alford visited the site on 6 June 2005 and he came to the conclusion that the hump was approximately 25-30mm at the northern abutment.

Another expert, Robert Morgan, an expert in the area of traffic signs, visited the site on 22 June 2005 but apparently did not measure the size of the hump.

Finally, Mr Richardson, who was called by Roads Corporation, visited the site on 30 April 2005 and 17 May 2005 and, by placing a tape over the size of the hump and getting down on his knees, measured the size of the hump in the traffic lanes at 10mm whereas the size of the hump outside the fog line was 37mm and 28mm.

I am not assisted by the views of the various experts who looked at the scene many years after the event as to the size of the hump on the night of the incident. It is apparent that some work had been done in the area between the date of the incident and the time when the experts looked at the scene and it is not possible to say so long after the event what the size of the hump was at the relevant time. On the other hand, I do have the evidence of the plaintiff and his passenger Mr Hyland which showed that the hump was of sufficient height to cause the rear wheels of the plaintiff’s car to rise above the ground and slip to the left. The plaintiff, in the month prior to trial, took a video of vehicles crossing over the expansion joint and was able to demonstrate that from time to time the wheels of vehicles driving over the hump rose above the surface. That is the position today. It does demonstrate that if a hump is of a certain size it can have the effect of causing the rear wheels to rise above the surface. This was also observed by the expert, Mr Alford.

Not only do I have the evidence of the plaintiff and his passenger of what occurred on that night, I also have evidence from other persons who travelled over that area of road prior to 16 August 2000. The plaintiff’s brother stated that when he took the photographs in September 2000 there was a hump over the area where the expansion joint was. The passenger, Mr Hyland, stated that in the two years prior to August 2000 he was aware that there was a substantial lip on the bridge. He was involved in traffic management involving road construction and he said that he was aware that there should not be a lip. He opined that it was dangerous. He could not think of a larger lip on any part of the surface of the road between Bendigo and Melbourne.

Shelly Weaver also worked with the plaintiff prior to the date of the incident and often travelled with him from Bendigo down to Melbourne and back. She had been travelling the highway for about 12 months. At times she drove her own vehicle or others drove her vehicle. She also gave evidence that there was a big hump which could be felt as the vehicle travelled onto the bridge. She stated that she particularly noticed the hump because the chassis of her vehicle had been lowered and there was a tendency to scrub when the wheels struck an area which caused them to rise within the base of the vehicle.

Two co-workers, Ricky Drescher and Christopher Philby, also gave like evidence that there was a noticeable hump and that it had been there, to their knowledge, for at least two years prior to the incident.

Christopher Philby stated that the size of the hump was commented on from time to time amongst those travelling down to Melbourne.

In my opinion, at the time of the incident there was a hump over the expansion joint for cars travelling south proceeding onto the Elphinstone Overpass Bridge deck and it was of sufficient size to cause the wheels of a motor vehicle to slightly bounce and to cause them to rise slightly above the surface. Given the evidence of the witnesses, including those who had inspected the hump in the last few years, it is my opinion that the hump was at least 25mm and probably greater. I say that based upon the observations made by various people as to the effect of the hump when a vehicle passed over it prior to and on the night of the incident, and the observations made in the last few years when others have measured the hump in excess of 25mm. Any hump in the road of at least 25mm requires repair. As at the date of the incident good road repair practice required repair of a hump on highways where the speed was at least 100kph. Proper inspections carried out by Roads Corporation prior to the date of the incident would have revealed the excessive size of the hump at the date of the incident. Experience tells us that hitting a hump at speed has a tendency to cause deflection from the line of travel.

State of knowledge of Roads Corporation

Roads Corporation did not call any evidence from any employee concerning the bridge, the hump and its state of knowledge as to these matters, its signs or any repair work that was done to the bridge leading up to 16 August 2000. I am satisfied on the evidence available that there would be employees of Roads Corporation who would have some knowledge of the condition of the bridge and the accidents which had occurred on the bridge due to the presence of black ice prior to 16 August 2000. The records which have been produced and tendered in evidence lead to that conclusion, as do some of the Corporation’s answers to interrogatories administered by the plaintiff. Mr Shane Richardson, who was called on behalf of the Corporation, investigated the collision history at the Elphinstone overpass for the period from 1 January 1987 to 31 December 2000. He obtained information from what was called Crashstats, which is a Victorian Government record available through the Internet. His investigation revealed two incidents at the Elphinstone overpass due to mud, snow or ice prior to 16 August 2000. He also stated that it was a known fact that there was a problem with black ice forming on the overpass/bridge decks due to the increased cooling effect of circulating airflows, but did not state whether VicRoads had that information prior to the date of the incident. However the evidence leads to the conclusion that the Corporation knew of accidents on the overpass due to black ice in the past. In the circumstances, it is open to the Court to more readily accept the evidence called by and on behalf of the plaintiff and, further, to infer that if any Roads Corporation employee had been called, he or she would not have assisted the defendant’s case. See Jones v Dunkel;[44] O’Donnell v Reichard.[45]
[44](1959) 101 CLR 298.
[45][1975] VR 916.

In RPS v The Queen,[46] four judges of the High Court said:

“In a civil trial there will very often be a reasonable expectation that a party would give or call relevant evidence. It will, therefore, be open in such a case to conclude that the failure of a party (or someone in that party’s camp) to give evidence leads rationally to an inference that the evidence of that party or witness would not help the party’s case and that:
‘Where an inference is open from facts proven by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proven the contrary had he chosen to given evidence is properly to be taken into account as a circumstance in favour of drawing the inference’.”

[46](2000) 199 CLR 620 at 632.

In my opinion, a Court is entitled to be bold when a party fails to give evidence on matters in issue of which it clearly has knowledge. In Insurance Commissioner v Joyce,[47] Rich J said:[48]

“When circumstances are proved indicating a conclusion and the only party who can give direct evidence of the matter prefers the well of the court to the witness box, the court is entitled to be bold.”

1.7.2002 – 12.3.2003: annual gross salary $85,542 = 32 weeks at $1,097 net per week
= $31,428.57

13.3.2002 – 30.6.2004: annual gross salary $66,912 = 15.71 weeks at $911 net per week
= $14,315.71

1.7.03 – 30.6.2005: annual gross salary $66,912 = 52 weeks at $911 net per week
= $47,372

1.7.2004 – 30.6.2005: annual gross salary $66,912 = 52 weeks at $911 net per week
= $47,372
1.7.2005 – 19.8.2005: annual gross salary $66,912 = 7.14 weeks at $911 net per week
= $6,504.54
TOTAL:$172,034.68

What the above calculations fail to take into account is the perquisites of office that the plaintiff would have enjoyed after becoming works manager. Roads Corporation submitted there was a travelling expense to take off at $50 per week and for the period from 16 February 2002 to 12 March 2003 the amount is in the order of $2,670. In addition, the other matter that has to be addressed is the fact that the plaintiff has failed to show that he has been unemployable since 9 February 2004. On the other hand, the Court has to do its best on the evidence before it to determine the true measure of his loss. On what can only be described as a rough and ready approach, I think his loss can be determined on the basis of him working in a casual‑type job for 30 hours per week at a net figure of $12 per hour which equals $360 clear per week from 9 February 2004 to 12 August 2005. This comes to $28,182.85. This prima facie should come off the amount of past losses. On the other hand, the calculation has failed to take into account the perquisites of office which in my view would exceed the sum just mentioned and also the deduction for the travelling expenses referred to above. Whilst there are features of the calculations which could be described as rough and ready, I think that if I allow the plaintiff the sum of $172,034.68, I am allowing him what I would describe as a minimum sum and if the calculation was done on a proper basis of taking into account the package of $100,000 I think the sum would be greater. Accordingly, whilst I accept that there should be a reduction for the failure to prove he has been totally unemployable since last year and a small sum for the travelling expenses, I am satisfied that any deductions would be well and truly offset by the value of the perquisites deposed to by Mr Spencer, the director of Pro‑Tech Traffic.

Accordingly, I allow the sum of $172,034.68 for past loss of earnings.

(ii) Future loss of earning capacity

The plaintiff is presently aged 46 years and some seven months. The applicable discount rate is 6% and for a man aged 46.5 years the multiplier is the sum of $477 to age 60, and $570 to the age of 65. Counsel for the parties placed before the Court calculations as to the future loss of earning capacity. I have carefully considered their calculations. On the basis of the evidence before the Court, I am prepared to find that as at the date of this judgment but for the incident, the plaintiff would have been employed as a works manager on a total package of $100,000. Included in the package were the benefits of a company vehicle, company telephone, redundancy fund and superannuation. On the other hand, the Roads Corporation’s counsel make a fair point that net loss arising from superannuation is complex because of the taxes on contributions, earnings, uncertainty of fund performance, management fees and the like. It is observed that there is no evidence to assist the Court in regard to these matters. In addition, there is little evidence of the types of employment that may be available to the plaintiff taking into account his present disabilities. These uncertainties have led plaintiff’s counsel to put forward a number of scenarios accepting that allowances should be made for the contingencies and vicissitudes of life and the prospects of future employment. The plaintiff’s counsel submits that the Court should approach the calculation on the basis of the plaintiff working to the age of 65, receiving a net sum of $1,281 based upon the package of $100,000, less 25% made up of contingencies, vicissitudes and the prospect of future employment, giving a figure in the vicinity of $547,200. Roads Corporation in its calculations referred to a number of scenarios.

In my opinion, the starting point is the package of $100,000 which gives a net figure of $1,281 per week. Multiplying by the sum of $570 to age 65 gives a total loss of $730,170. That figure sets the range from today until age 65. The Court must do its best based upon the evidence and an assessment of what the future may hold for the plaintiff. The use of discount tables provides a guide as to the range of possible loss. The Court in seeking to determine the future loss for the plaintiff faces a difficult task which involves a degree of intuition and guesswork. Lord Diplock, speaking for the Privy Council in Paul v Rendell[56] said:

“The assessment of damages in actions for personal injuries is not a science. Judgment as to what constitutes proper compensation in money terms for pain suffering or deprivation of amenities of life can only be intuitive and the assessment of future economic loss involves a double exercise in the art of prophesying not only what the future holds for the injured plaintiff but also what the future would have held for him if he had not been injured.”

[56](1981) 55 ALJR 371.

On the other hand as Gibbs J warned in Gamber v Nominal Defendant:[57]

“But the assessment by a judge must be a process of methodical consideration, not one of ungoverned intuition”.

See also observations of Stephen J at pp.149-150.

[57](1977) 136 CLR 145 at 148.

The next question is what would have been the situation if the plaintiff had not been injured in the incident? I am satisfied that to date he would have remained with Pro‑Tech Traffic in the position of works manager. However, I am not prepared to accept that he would have remained in that employment until aged 65 years. His past employment history demonstrates that he is the type of person who is not tied down for long and moves from job to job. He had never occupied a position of real responsibility prior to the happening of the incident. He conducted his own business and subsequently in partnership, but in the end that failed. He then did not work for a year. The job of works manager would have involved him in considerable travel during the week, especially living in Bendigo, and would no doubt have placed a heavy responsibility upon him to be available at all times during the day and night. Pro‑Tech Traffic performs works around the clock.

The next question is what is the present capacity of the plaintiff? In my opinion, he is not totally unemployable. The range of jobs available to him are indeed limited. His background has been in the service industry mainly working in hotels, working as a leading hand in traffic management, and conducting a wood turning business. His physical disabilities mean that he cannot undertake any work which is of a heavy manual nature, or involves standing or sitting for any prolonged period of time. On the other hand, the plaintiff is an intelligent person and would be able to hold down some sedentary job involving some degree of responsibility. He gave evidence that at one point he was asked to do office work with A&H Plant but he did not like doing the work and preferred to be outside. I would expect that he would be able to obtain employment which would enable him to sit and stand and move around if it became necessary. Whilst he says that he does not have the energy to be able to work 40 hours and that he requires periods when he has to lie down, I am satisfied that, given a degree of determination, over time he could build up his hours of work.

The difficulties are, first, on the basis that he would have ceased to work as a works manager what employment would he have obtained and at what level of salary? Secondly, what level of net income would the plaintiff expect to receive working from now on?

Plaintiff’s counsel put to the Court what I would describe as a rough and ready approach to these questions which makes the Court’s task difficult. The Court must do its best on the evidence before it but on the other hand, the plaintiff bears the burden of proving his loss. One method of seeking to calculate a loss for the future is to make some assessment of the likely periods of employment in the next 19 years. The calculation is further complicated by the fact that I do not think the plaintiff hereafter will ever obtain employment which will bring in a level of income anywhere near the level that he would have earned. Further, in my opinion, there would be no reason why he could not return to wood turning and as his own boss would be able to establish his own working regime which would fit in with the effects of his disabilities.

Doing the best I can, I propose to commence with the figure of $730,170 and reduce that by 50% which gives a total of $365,085. In arriving at that amount, I take into account the matters already mentioned, namely, what the future would have held for the plaintiff had the incident not occurred and, secondly, his ability to earn income from now until he turns 65. That is not the end of the exercise. The Court must take into account the contingencies and vicissitudes of life. In making my assessment to date, I have proceeded on the basis that the multiplier has taken into account the possibility of death. A deduction for contingencies and vicissitudes of life is to be made in respect of damages for future losses. The deduction impinges not only on the future loss of earning capacity but also in respect to the damages for pain and suffering where the damages concern a future amount. The contingency of premature death has already been taken into account in determining the multiplier. Further, I do not overlook the fact that sometimes there are favourable contingencies as a form of counterbalance, but the generally accepted view today is that the contingencies and vicissitudes are matters which result in some reduction. The generally accepted figure in this State appears to be 15%. The Roads Corporation in their submissions refer to 30% and 50% but in putting forward those figures they have included in them the prospect of the plaintiff not performing the managerial work up to age 65 years. I propose to reduce the amount for future earning capacity by 15% which reduces the amount of $365,085 by $54,762.75 giving a total loss of earning capacity for the future of $310,322.25.

Total Damages

General damages for injury, pain and suffering, loss of enjoyment of life -

$155,000.00

Past loss of income -

$172,034.68

Loss of future earning capacity -

$310,322.25

TOTAL:

$637,356.93

Finally, the Court should stand back and look at the total amount of damages and consider whether the sum represents reasonable compensation for the injuries suffered and their effects. The Court should also bear in mind that there may be a degree of overlap due to the fact that certain heads of damage may be compensated under two headings. For example, loss of enjoyment of life embraces an inability to some extent to carry out one’s employment. In my opinion, the total amount of damages which is reasonable in all the circumstances is $620,000.

As the Transport Accident Act requires the tribunal of fact to assess the damages in two categories the amounts are:

(i)pain and suffering damages $150,000
(ii)pecuniary loss damages $470,000

Contributory Negligence

The Roads Corporation alleges that if it is liable in negligence, the plaintiff was guilty of contributory negligence, that is, that the plaintiff in all the circumstances failed to take reasonable care for his own safety leading up to the happening of the incident and his negligence was a cause of the collision and the injuries he suffered. Its counsel submitted that the plaintiff was mainly to blame for the incident and its effects and accordingly his damages should be reduced by 90%. Plaintiff’s counsel submitted that he was not guilty of contributory negligence, and if he was, it was of such a minor nature that the Roads Corporation should be found 90% to blame.

A long list of particulars was sub‑joined to the allegations of contributory negligence. In my opinion the relevant ones were failure to keep a proper look out, and failing to respond to the warning sign by slowing down his motor vehicle’s speed and proceeding with caution until satisfied there was no danger from frosty conditions. The sign on the left of the highway for the plaintiff, indicated a car in a skidding motion with the words “when frosty” underneath them.

The onus rests upon Roads Corporation to prove the defence. The defence involves the consideration and determination of three issues. Was the plaintiff negligent in the circumstances i.e. did he fail to take reasonable care for his own safety by failing to take reasonable steps to avoid a foreseeable risk of injury to himself? If so, was his negligence a cause of his damage? Thirdly, if yes, what reduction in the plaintiff’s damages should result as being just and equitable having regard to the plaintiff’s share in the responsibility for the damage. See s.26(1)(b) of the Wrongs Act 1958. Contributory negligence may consist of conduct contributing to the incident causing injury, or conduct which contributes to the injury or extent thereof or a combination of both.

In Joslyn v Berryman,[58] McHugh J[59] discussed the common law rules of contributory negligence. As his Honour noted:[60]

“The test of contributory negligence is an objective one. Contributory negligence, like negligence, ‘eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question’.”

[58](2003) 214 CLR 552.

[59]At pp.558 et seq.

[60]At p.564.

He noted there may be exceptions to that general rule, namely, a young child and maybe but doubtfully a very elderly person. Although the test is an objective one, the Court must take into account not only what was known to the plaintiff but in addition other facts and circumstances which ought to have been known. As McHugh J said in Joslyn v Berryman:[61]

“The relevant facts and circumstances include those which a reasonable person could have known by observation, enquiry or otherwise. In cases of contributory negligence outside the field of intoxicated passengers and drivers, the courts take into account as a matter of course those facts and circumstances that the plaintiff could have discovered by the exercise of reasonable care.”

[61]Supra at p.566.

His Honour went on to observe the following:[62]

“In other areas of contributory negligence, the plaintiff cannot escape a finding of contributory negligence by pleading ignorance of facts that a reasonable person would have known or ascertained. A pedestrian or driver who enters a railway crossing in the face of an oncoming train cannot escape a finding of contributory negligence because he or she was not, but should have been, aware of the train. Nor does it make any difference that the pedestrian or driver had defective hearing or sight.”

[62]At p.567.

What did the plaintiff know or should he have known on the morning of the incident leading up to the vehicle crossing the northern end of the bridge deck? The evidence revealed that in winter Bendigo can be a very cold place, colder than the usual temperatures in Melbourne. The mornings in particular can be very cold. The plaintiff would have known those facts. The plaintiff gave evidence, which I accept, that he was aware that black ice did form on the Calder Highway during winter but his knowledge of this was confined to the Black Forest which is situated between Gisborne and Woodend. He also stated, and I accept, that the Roads Corporation had prior to August 2000 placed flashing signs requiring motorists to slow down when moving through the Black Forest. He said he was unaware, and I accept his evidence, of the presence of black ice on any other part of the Calder Highway. On the morning of 16 August when he set out to drive to Melbourne, it could not have been lost upon him that it was a very cold morning. Indeed the presence of black ice at the point where the incident occurred leads to the conclusion that in that area the temperature was at freezing point or below. The plaintiff had been driving for some 20 minutes. As he approached the sign which was situated at 320 metres north of the beginning of the bridge deck, he had not experienced any problems with the surface of the road or his speed which was at or about the speed limit of 100kph. He saw the sign but did not take any precautions as a result of reading it. He stated that he did not observe that there was anything frosty about the morning and in particular there was no frost on the roadway. Senior Constable Whitty gave evidence that after arriving at the scene of the incident, he observed that there was no other area of ice around the bridge and he said, “The grass was frosty in the paddocks but not on the roadway”. He also gave evidence there was ice on the surface of the bridge, it was not readily observable, that it covered most of the bridge, and there was no ice on the approaches. The ice was very slippery. Other witnesses who arrived at the scene on that night also observed that there was a heavy ice build up on the surface of the bridge deck and it was very slippery.

The sign that confronted the plaintiff when he was approximately 320 metres from the commencement of the bridge alerted him to the fact that a motor vehicle may skid on the road surface when the road was frosty.

There was no sign which alerted the plaintiff to the existence of the bridge or any danger on the bridge. To the ordinary driver, the presence of guard rails on either side of the road could easily lead a driver into thinking that he was not approaching a bridge. Further, none of the signs alerted a driver travelling in the southerly direction, as the plaintiff was, that a bridge was ahead. On the other hand the plaintiff was aware of the bridge at the Elphinstone overpass.

The sign was situated some 320 metres from the bridge. Whilst the sign itself was within the limits prescribed by the Australian Standard and also the Victorian Roads Manual, for dangers within 250 metres, it was, so far as a sign for a danger on the bridge, beyond what was the recommended limit from the point of a hazard.

The plaintiff failed to respond to the sign. He saw it. He did not decrease his speed. He continued. In my opinion the reasonable person would have noted the sign and made an assessment of whether there was frost on the road. The sign identified a hazard, namely, slipping on the road surface when frosty. That would convey to the reasonable driver he had to make a decision by looking and determining whether there was any frost on the road. The evidence is that there was no frost on the road surface. In making the decision the reasonable driver would have taken into account all relevant matters which would have included the plaintiff’s knowledge of the road conditions from Bendigo to the sign. Whilst making that decision the reasonable driver would have reduced his speed in case there was. The plaintiff did not respond to the sign and did not reduce his speed. To that extent he was negligent. But was this negligence a cause of the collision and his injuries?

Having travelled some 320 metres the reasonable person could assume that there was no danger on the road. That is apparently what the plaintiff did assume. He had driven for some 20 minutes after leaving Bendigo and had travelled approximately 30 kilometres. He had not experienced any difficulty with the road surface. He had no reason to believe that there was any problem with the road. He did not observe any frost build up on the road. The sign required him to make a decision. Given that there was no frost on the road or shoulders, that the plaintiff had travelled some 20 minutes without any problems arising or anything to suggest a slippery road, the reasonable driver after some seconds of driving would be entitled to assume that there were no slippery conditions ahead. The plaintiff was driving up a gradual incline experiencing no difficulty with the road surface.

In my opinion, the plaintiff failed to take reasonable care for his own safety by ignoring the sign. The reasonable driver would have observed the sign, noted that it was extremely cold on this morning, and slackened his speed to some extent. However, I would have expected that the reasonable driver, having driven some 250 metres without observing any problems, would have assumed that there were no problems with the road surface and would have increased his speed. The fact was that the sign did not warn the driver of the real hazard, which was the bridge deck 320 metres away.

In my opinion any negligence on the part of the plaintiff in not responding to the sign was not a cause of the incident. The reasonable person, having responded to the sign and reduced his speed, having satisfied himself that there was no danger on the highway due to frosty conditions in the time he travelled about 250 metres, would have been entitled to increase his speed. The sign did not alert him to any danger on the bridge. The plaintiff’s failure to respond was not a cause of the collision or the plaintiff’s injuries.

The defence of contributory negligence fails.

Conclusion

Subject to submissions by counsel I propose to enter judgment for the plaintiff in the sum of $620,000. I will hear the parties on the questions of interest and costs.

---

General damages for injury, pain and suffering, loss of enjoyment of life -	$155,000.00
Past loss of income -	$172,034.68
Loss of future earning capacity -	$310,322.25
TOTAL:	$637,356.93

[2005] VSC 320

24 August 2005