Montgomery v Shire of Campaspe

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 7940 of 1998

No.7999 of 1998

CARMEL MONTGOMERY
	Appellant
v.
SHIRE OF CAMPASPE (incorporating the former Shire of Deakin)
	Respondent

JUDGES:	BROOKING, PHILLIPS and CHARLES, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	6 and 7 December 2000
DATE OF JUDGMENT:	15 December 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 240

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Negligence – Road accident – Head on collision in fog – Driver on incorrect side held negligent – Absence of centre markings on re-sealed road – Whether municipality negligent for failing to have centre markings – Judge not satisfied of any causal link with accident – Whether judgment for the municipality sustainable – Re-trial ordered.

Practice and procedure – Appeals - Cross-appeal by municipality against dismissal of its claim against road authority for contribution – Municipality seeking to re-litigate its claim for contribution if re-trial ordered on appeal – Claim for contribution unarguable unless judgment in favour of road authority set aside – Extension of time for municipality to appeal against that judgment refused – Transport Act 1983 ss.16, 38, Schedule 5 clause 5, Wrongs Act 1958 s.23B(5).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	T.J. Casey, Q.C. G.J. Sala	McCabes
For the Respondent and Cross Appellant Shire of Campaspe	M.R. Titshall, Q.C. M.J. Croyle	Anderson Rice
For the Cross Respondent Patten	R.P. Gorton, Q.C. J.A. Riordan	TAC Law
For the Cross Respondent VicRoads	J.H.L. Forrest, Q.C. G.A. Lewis	Phillips Fox

~~DRAFT 13 DEC.~~

BROOKING, J.A.:

The outcome of this appeal depends on a short point, one on which I differ from the other members of the Court. Before dealing with it I shall say something about two other arguments put on behalf of Mrs Montgomery, whom I shall call “the plaintiff”.

I do not think the judge erred in considering the issue of causation in that she took into account the negligence of the plaintiff herself. Her Honour was doing no more than making the commonsense observation that, since she had acquitted the other driver of negligence and was not satisfied that the absence of marks or markers on the roadway had any causal connection with the collision, and since she had found that the plaintiff was on her wrong side of the road when the cars collided, the result was that the plaintiff had only herself to blame for the collision. And I do not think that her Honour ought in the circumstances of this case to have considered the questions of the Shire’s duty to the plaintiff and the breach of that duty before turning to causation. It has not been suggested before us, and it does not seem to have been suggested below, that the case could not be satisfactorily dealt with as regards the Shire by the making of an assumption that the plaintiff had succeeded in establishing the breach of a duty of care owed by it to her. It has not been argued before us that the precautions, the omission of which was said to amount to negligence, were not sufficiently defined to enable the judge properly to consider the issue of causation. The failure to provide warning signs has not been relied on, and the two suggested precautions are the painting of a broken white line down the centre of the road (such as was done shortly after the accident) and, as an alternative, the provision of “flip-flops”. How far apart the flip-flops would have been spaced if installed is difficult if not impossible to say, but that is a result of the failure to explore the matter in evidence rather than the approach of assuming a negligent omission instead of finding the facts: The fact – the appropriate spacing – seems not to have been there to be found on the evidence led. In any event, the appeal has been argued by reference to the broken white line precaution, it being tacitly accepted by the plaintiff’s counsel that if the judge was not shown to have erred in relation to that precaution she was not shown to have erred in relation to the flip-flop alternative.

I turn to what I have described as the short point. In my opinion it was open to the judge to find that the plaintiff had not discharged the burden of proving that if one of the two suggested precautions had been taken by the Shire the collision would probably have been averted. Critical to my view in this regard is the plaintiff’s evidence that she could not remember looking for a centre line and not finding it, an answer to which much attention was directed during the hearing of the appeal. It is an answer on which the judge relied. It was given by the plaintiff in the course of her cross-examination by counsel for the other driver. I set out the passage which concludes with the answer:

“Mrs Montgomery, what I’m asking you is what you remember of that night?---Yes.
And whether you remember actually looking at the centre line in John Allan Road as you drove along?---Yes.
You do remember that, do you?---Yes.
At the time when your memory passes, were you still watching the centre line then?---I do not remember then.
Well, if you remember it, how far can you remember down John Allan Road watching the centre line?---How far? In fog you get very disoriented and I have no idea how far.
Can you remember looking for a centre line and not finding a centre line?---No.” (My emphasis.)

It is also worth quoting a passage in the plaintiff’s evidence in her cross-examination for the Shire which immediately follows that set out by Phillips and Charles, JJ.A.:

“What’s your last recollection of seeing that line; are you able to put any distance on it from the Murray Valley Highway?---No, no. It was just around the corner.
Just around the corner?---I can’t give you distance.
So that’s the last recollection you have of seeing the centre line; you’ve just turned the corner into John Allan Road and encountered the fog?---No, I wouldn’t say that at all.
What would you say; what do you say?---I don’t remember.”

As regards the general tenor of the plaintiff’s evidence, it is also worth recording that she said that she had no idea of the speed at which she was travelling at any time before the collision, that she “would presume” she slowed down when she first encountered fog but did not recall slowing down and that she usually drove down that road at the speed limit, which was 100 k.p.h. She said she could not say whether there were white marker posts on the side of the road and whether there was any other traffic. Other answers might be mentioned which could be regarded as reinforcing the impression that the plaintiff was not a careful observer or a reliable historian with regard to events that night. She was not asked, and so gave no evidence about, whether she had the headlights dipped or on high beam. (The police sergeant’s evidence was that he, driving at no more than 40 kilometres an hour, had his headlights dipped in order to see better.)

The first of the two extracts from the plaintiff’s evidence set out above includes this question and answer:

“At the time when your memory passes, were you still watching the centre line then?---I do not remember then.”

The other members of the Court describe the reference to the “passing” of the plaintiff’s memory as a reference to her memory’s having been affected by the serious head injury she sustained. The plaintiff had sworn – and was to swear many times – that her last recollection was of seeing lights. The reference to the time of the “passing” of her memory was plainly a reference to the point of time at which her recollection cut out. No doubt it is a reasonable inference, even without expert evidence, that the plaintiff’s amnesia was attributable to her undoubted head injury. But that amnesia, on the plaintiff’s own evidence, was only as regards events in what must have been an extremely short period of time. A number of times in the course of her evidence the plaintiff expressly or by implication asserted her inability to remember or her inability to answer a question. But in none of these passages did she assert that her head injury had or might have anything to do with her inability to remember or to answer, and her evidence as a whole makes it clear (or at the very least enabled the judge to act on the basis) that she was saying that her amnesia was limited to the last fleeting moments between when she saw lights and the collision itself. Similarly, her signed statement to the police contains nothing whatever to support the view that she was suffering from amnesia except as regards those last moments.

Having disposed of the issue of negligence on the part of the other driver, the judge turned to “the second issue” (that of a causal connection between the assumed negligence of the Shire and the collision). She summarised the plaintiff’s submission on the issue of causation as one “that it was more probable than not that as the plaintiff drove in dense fog, suddenly she was without the assistance of white lines, which caused her to become disoriented and drive over onto the incorrect side of the road as she drove into the ‘S’ curve”. Her Honour went on to summarise the plaintiff’s arguments in support of that submission. It is entirely clear that what her Honour was considering was the plaintiff’s submission that in foggy conditions the plaintiff, having suddenly been deprived of the assistance of broken white lines, became as a result disoriented and drove over onto the incorrect side of the road as she entered the ‘S’ bend. In stating her conclusions the judge said, “I am not persuaded that it was more probable than not that the collision was caused or contributed to by the absence of white lines, flip-flops or warning signs”. Her Honour went on to say that according to the plaintiff’s evidence she recalled following the white lines in the centre of the road before the collision but did not recall looking for a white line and not being able to find it. This last remark is a clear reference to the question and answer which I have italicised.

No one suggested that the plaintiff was a liar. Nevertheless, her credibility in the wide sense was in issue, and the judge did not accept her evidence as reliable in relation to what occurred a short time before the collision. To my mind, what the judge said about the plaintiff’s credit does not necessarily mean that she accepted the plaintiff’s evidence that she was using the white lines up to the time when line marking was no longer present. Certainly the judge made no finding to that effect. The trial judge was in a much better position than we to determine on the whole of the evidence, but particularly having regard to a number of contradictory or indecisive answers which the plaintiff gave, what facts had been established on the issue of causation by the party bearing the onus of proof. I do not propose to set out all the relevant passages in the plaintiff’s evidence; it was open to the judge to take the view that she had contradicted herself in certain answers and to consider what should be made of that contradiction. I have no doubt whatever that it was open to the judge to find that the plaintiff did not recall looking for a white line and not being able to find it. That was her evidence. True it is that she had suffered head injuries. But, as I have said, she did not herself advance that as an explanation for a possibly defective recollection, and the judge’s finding at this point of her reasons that “it was clearly discernible to road users that the lines ceased” suggests to my mind that she did not regard the case as one of defective recollection owing to head injury. In any event, the plaintiff bore the onus on the issue of causation. The broken white lines had ceased at about 1.5 kilometres before she reached the scene of the collision. At whatever speed she was travelling, that gave her a considerable time to notice that the white lines had disappeared. The general effect of her evidence was that she was aware of the importance of using white lines to keep on the correct side of the road in foggy conditions and that this was what she had been doing on the night in question shortly before the collision. If she had, as she claimed, been steering by the white lines for several kilometres shortly before the collision, then the question arose why she did not notice, and notice with alarm, and did not subsequently recall having noticed, and noticed with alarm, the disappearance of the white lines which she was using as her guide in the dangerous conditions. It was open to the judge to take the view that the plaintiff failed to notice the disappearance of the white lines because she was not paying attention to the centre of the road, or to say at the very least that this explanation of her failure to recall looking for the white

line and not being able to find it was as likely as any other. Again I refer to the onus of proof. I think it was open to the judge to determine that it had not been shown that it was more likely than not that if white lines (or for that matter flip-flops) had been present over the last 1.5 kilometres travelled by the plaintiff the collision would probably have been averted.

Her Honour tried these cases for (I note with concern) 20 sitting days, and had the benefit of having heard all the evidence. There was a suggestion made at the trial that the plaintiff was hurrying. I refer to her cross-examination at pp.74-75 and 82-83 of the transcript (exploring whether she was running late) and at pp.69-70 and 84-86 (dealing with her speed). There was perhaps no evidence that she was running late, and no satisfactory evidence of her speed. But in viewing the evidence as a whole, and especially the question and answer which I italicised earlier in these reasons, and asking herself whether the burden of proving a causal connection had been discharged, the singular inability of the plaintiff to give any estimate of her speed was not to be ignored.

I myself would not view the italicised question and answer as tantamount to saying that the plaintiff did not recollect noticing when the white lines disappeared. This view of her evidence might be thought to accept that she was saying that she noticed the disappearance of the white lines but could not recollect at what point she noticed this. This seems to me, with respect, to invert the piece of evidence. In any event, the question what to make of it was for the judge.

I would dismiss the appeal.

PHILLIPS and CHARLES JJ.A.:

The two appeals now before this Court arise out of a head-on collision which occurred on a country road, John Allan Road, Kyabram, on 26 June 1994. The appellant, Carmel Montgomery ("Mrs Montgomery") was driving her Mazda utility

south on John Allan Road at approximately 9.45 p.m. when it collided with a Nissan van being driven by one, David Frank Patten. Mrs Montgomery was seriously injured and Patten died as a result of injuries sustained in the collision.

Mrs Montgomery then commenced a proceeding for damages for personal injury, suing Valerie Ruth Patten, as executrix of Mr Patten's estate ("Mrs Patten"), the Shire of Campaspe as second defendant ("the Shire"), and VicRoads as third defendant ("VicRoads"). Mrs Montgomery alleged negligence or other breach of duty against the deceased, Mr. Patten, the Shire and VicRoads. The three defendants served notices of contribution upon each other. This was the first action.

The second action, which was also for damages for personal injury, was commenced by Mrs Patten personally as plaintiff against Mrs Montgomery. Mrs Patten was travelling as a passenger in her husband's vehicle at the time of the accident and she too was injured. Her case was that the accident had been caused by the negligence of Mrs Montgomery. Mrs Montgomery as defendant joined the Shire as first-named third party and VicRoads as second-named third party, claiming contribution or indemnity. The third parties in turn claimed contribution or indemnity from each other and the defendant.

Trial of the two actions (which were heard together) commenced in the County Court on 18 March 1998 and proceeded over 20 sitting days, though Mrs Patten's claim against Mrs Montgomery was settled before the trial began. On 20 April, the trial judge reserved her decision, delivering judgment on 11 September 1998. Her Honour concluded that she was not satisfied on the balance of probabilities that the accident had been the result of anything but the negligence of Mrs Montgomery herself. The judge deferred the making of final orders until costs issues were determined. On 26 February 1999 her Honour formally gave judgment for all three defendants in the first action with costs and the contribution proceedings between the defendants were struck out; and in the second action, her Honour gave judgment for the third parties against Mrs Montgomery, again with costs.

Mrs Montgomery now appeals against the judgments given in favour of the Shire only. She does not appeal against the judgments in favour of VicRoads; nor does she challenge the finding of the trial judge that she herself was culpable in her driving. Mrs Montgomery contends only that the Shire by its action or inaction contributed to the accident and ought not to have recovered judgment against her and she now seeks a retrial on all issues between her and the Shire. The Shire cross-appeals contending that if the appellant succeeds in obtaining that opportunity to re-litigate her claims against it, it should in turn have the right to re-litigate its claims for contribution or indemnity.

The background

Shortly stated, the facts giving rise to the collision were as follows. Mrs Montgomery was travelling to work in her car at 9.45 p.m. She worked as a carer nearby in Kyabram, her shift commencing at 10 p.m. When she left Wyuna, some 20 minutes away from her place of work, there was no sign of fog and the conditions were crystal clear. As she travelled in a southerly direction along John Allan Road, she reached an area of the road that had become much affected by fog. She said that as she travelled along the road she looked for and saw the centre line of the road and used it as a guide.

The unchallenged evidence regarding the road and roadway conditions was that John Allan Road was a declared main road which had recently been resealed in part and in part repaired by the Shire. The road, which was well known to be prone to foggy conditions in the winter months, ran through farmland properties and there was no street lighting. The road had a bitumen surface which was 6.85 metres wide at the point of collision, permitting one car to travel in each direction, and on each side there were gravel shoulders of about one metre. Just before the point of collision a vehicle travelling south on John Allan Road encountered a gentle S-bend, bearing to the left , and if a driver travelling south (as Mrs Montgomery was) failed to steer around the bend but drove straight on the vehicle would move on to its incorrect side of the roadway at just about the place where the accident occurred.

On the night of the accident the fog affecting sections of John Allen Road was very heavy; it was described by a local police witness, Sergeant McManus, as close to the worst he had ever seen. About one-and-a-half kilometres north of the place of the accident the white lines in the centre of the road ceased, in consequence of resealing and repairs to the road surface which had been carried out by the Shire. No centre lines had yet been marked on the new surface, and the only marking on the road was a series of white dots placed there by the Shire, approximately 40 to 50 metres apart. For a reason not explained in evidence, no signs were erected warning of the absence of centre lines, although it had been the practice of the Shire to erect such signs. Furthermore, it had also been the Shire's practice, pending line-marking on resealed roads, to mark the centre line temporarily with raised reflective pavement markers known as "flip-flops", but no such markers were in use on this occasion, and again no reason was given in evidence for their absence.

After carefully reviewing the evidence, the judge stated that she was satisfied that it was more likely than not that at the time of the collision Mrs Montgomery's vehicle was on its incorrect side of the road, but at an angle, travelling towards its correct line, probably because the driver was correcting the path of her vehicle. In so finding her Honour rejected Mrs Montgomery's statement that she believed she was on the correct side of the roadway when the accident happened. The judge said that Mrs Montgomery (whose memory of events, it must be said, had been affected by the serious head injury she sustained in the accident) was a witness of truth, although her Honour did not “accept her evidence as reliable in relation to what occurred a short time before the collision.” Correspondingly the judge found that Mr Patten had been travelling on his correct side of the road when the accident happened, her Honour saying that there was no evidence on which it was open to her to find that at any time Mr Patten's vehicle was travelling on its incorrect side of the road. To put it shortly, the judge concluded that while there was negligence on the part of Mrs Montgomery there had been none on the part of Mr Patten.

The decision in favour of the Shire

That led the judge to consider the case being made by Mrs Montgomery against the Shire and VicRoads for negligence or other breach of duty. That turned on the lack of any white lines or flip flops marking the centre of the roadway or warning signs denoting their absence. On this aspect of the case Her Honour said: –

"I am not persuaded that it was more probable than not that the collision was caused or contributed to by the absence of white lines, flip flops or warning signs. On the evidence, I am satisfied that had the plaintiff exercised due care, she would not have ended up on the wrong side of the road.
The plaintiff said that she recalled following the white lines in the centre of the road before the collision, but said that she did not recall looking for a white line and not being able to find it.
Clearly, foggy conditions meant that she had to exercise a deal of care in negotiating the road that evening. She was familiar with the fact that the road had a 'S' bend. The fact that there were no white lines in the centre of the road was not a hidden hazard, as it was clearly discernible to road users that the lines ceased. The evidence disclosed that there were other navigational aids on John Allan Road that evening. McManus' evidence that when he realised that there were no longer white lines in the centre of the road, he used the gravel shoulder as a guide. I accept that it would have been darker than usual as it was damp, nevertheless he was able to utilize it for about one kilometre, travelling at a low speed, namely 40 kilometres an hour."

The first sentence of this makes it plain, we think, that Mrs Montgomery failed in her claims against the two authorities (co-defendants in the first action and third parties in the second) because the judge was not satisfied on the balance of probabilities that there was the necessary causal link between the conduct complained of - the absence of white lines, flip flops or warning signs - and the accident in which the relevant injuries were sustained. It is true that, when the first sentence is read in conjunction with the second, particularly in the light of what follows, it is not altogether clear, if we may say so, that the judge was considering the case being made by Mrs Montgomery against the two authorities independently of the conclusion, earlier expressed in the reasons for judgment, that she had been careless of her own safety. Strictly speaking, of course, the two issues are quite discrete and this led Mr Casey for the appellant to contend that the judge had fallen into appealable error in not canvassing on this second aspect of the matter, first, the question of duty; secondly, the question of breach and only then the question of causation. We reject that argument; there is no sound reason why a judge, if clear on the question of causation, should not move directly to that if determinative, thereby making unnecessary any separate or further consideration of duty or breach. (At trial the Shire admitted owing a duty, denying only any breach: VicRoads denied both.) The more difficult question is whether the judge gave due consideration to the issue of causation in respect of the alleged conduct of the authorities, independently of the issue of the plaintiff's own negligence.

On balance we think that there was no error in this regard. On the reading which we prefer of the quotation in paragraph [22], we consider that the first sentence was intended to express the conclusion at which the judge arrived on the issue of causation as affecting the two authorities; and the second was no more than the inevitable consequence of the first, in the light of what had earlier been concluded. In other words, the judge expressed herself as not satisfied of any relevant causal link affecting the two authorities and hence her conclusion that the accident was the result solely of the negligence of Mrs Montgomery herself. Questions of duty and breach by the Shire or VicRoads were not further considered.

The causal link

The principal argument on these appeals was that it was not open to the judge on all the evidence to conclude, as she did, that she was "not persuaded that it was more probable than not that the collision was caused or contributed to by the absence of white lines … ". We refer only to white lines without dealing with flip flops or warning signs because it is enough for present purposes if there was error below in regard to the significance of white lines. As we have already indicated, questions of duty and breach on the part of the Shire and VicRoads were not separately considered below and if there was error in the judge's conclusion about any one of the three things of whose absence the appellant complained - white lines, flip flops or warning signs - there must be a retrial and so perhaps the less said now about evidence the better. As it happens, there was little evidence during the trial as to the visibility of flip-flops, or the likelihood of them having been seen by a driver in foggy conditions. Be that as it may, it was accepted in argument before us that it would be sufficient to allow the appeals to succeed if the Court were to decide that the absence of white lines contributed to the happening of the accident, and so we focus on that.

As will be apparent already, Mrs Montgomery does not contest the trial judge's finding that she was driving on the incorrect side of the road at the time of the collision. She alleges however that that arose through the failure of the proper authority to have white lines in place by the time of the accident. Mrs Montgomery no longer alleges that this was the responsibility of VicRoads; in that regard she accepts the reasons for judgment below. Her claim is that it was the responsibility of the Shire to restore the white lines to the roadway, that the causal link between their absence and the accident was indeed established, and that the judge could not properly have been satisfied otherwise, despite the fact that she bore the onus of proof. It is indeed difficult on appeal to overturn a finding of fact against the party bearing the onus, particularly where the finding turns at least in part upon the judge's assessment of the witnesses, but in this case we have concluded that given the other findings made by the judge as to the witnesses and the evidence, the judge did fall into error in expressing her conclusion about the causal link in question and that on that ground there must be a new trial.

Given the limited compass of these appeals it seems to us undesirable to go into any great detail about the alleged responsibility of the Shire with respect to this unlined roadway. After all that will be an issue upon the re-trial. Suffice it to say that John Allen Road was a declared main road within the municipality of the Shire and that according to clause 5 of Schedule 5 to the Transport Act 1983, the responsibility for the conduct of permanent works and maintenance works was accordingly the Shire's. Apparently acting on that responsibility, the Shire had conducted permanent works and maintenance works in the area of the collision in the months preceding the accident, first by a maintenance reseal, which was completed on 26 April 1994, and secondly in digging up and replacing the road due to flood damage, the prima seal (that is the seal over the newly-constructed road) having been completed on 27 May 1994. It was these road works that caused the loss of the white lines along the centre of John Allan Road for a distance of approximately one-and-a-half kilometres north of the point of the accident. Apparently line marking is done nowadays by a number of contractors, including VicRoads, and it was for the Shire to determine whether it would engage VicRoads or another contractor to perform this task along John Allan Road. But on the evidence led in this case the Shire made no definite approach to engage VicRoads until shortly before the accident. On 22 June 1994, a Wednesday, a requisition was sent by the Shire by fax to VicRoads for line marking on a number of roads within the municipality, including John Allan Road, but indicating no special urgency and suggesting no particular order of priority. As we have said, although flip flops were sometimes used by the Shire as a temporary measure pending line marking, there were none in use on this stretch of roadway, nor were there any warning signs. On the other hand there was evidence that, if asked, VicRoads could have arranged to have the lines marked quickly.

It might be thought to have been self-evident that the presence of white lines would be of assistance to any driver seeking to keep on the correct side of the road in foggy conditions. Indeed evidence was given by Aloysius Torney, a farmer who had lived beside John Allan Road for 20 years, of a telephone call he made to the Shire council only two weeks before the accident to complain that the absence of white lines on John Allan Road was making it difficult for a motorist to distinguish the centre of the road in foggy conditions; and four witnesses who had lived in the area for many years and who were familiar with John Allan Road gave evidence that the presence of white lines on the centre of the road was an important aid in steering upon the roadway, particularly in foggy conditions. But on these appeals it was common ground that the conclusion of the trial judge that the absence of the white lines was not causally linked to the accident flowed largely - if not wholly - from Mrs Montgomery's own evidence that she did not recall looking for a white line and not being able to find it. Because of this, it would seem, the judge was not persuaded that, had the white lines been present, they would have altered in any way Mrs Montgomery's course along the roadway.

In our opinion to attach that significance to the statement made by Mrs Montgomery in evidence is to treat what she said as tantamount to her saying that she was not watching for the white lines and on that ground to conclude that, had they been there, she may well have not have seen them. Yet that is not what she said, nor, we think, what she implied. At various points in her evidence Mrs Montgomery swore that she used the centre line to guide herself and keep her car on the correct side of the road. She said that she was experienced in driving along foggy country roads at night-time, and when driving in fog used the lines in the centre of the road to steer her course. She also said in her evidence in chief that on this particular occasion when driving down John Allan Road she was using the lines in the centre of the road as a guide. Cross-examined by counsel for Mrs Patten, Mrs Montgomery said that when she drove on to John Allan Road and reached the fog, she was using the centre line before the accident. The evidence then continued –

"What I'm asking you is what you remembered of that night?---Yes.
And whether you remember actually looking at the centre line in John Allan Road as you drove along?---Yes.
You do remember that, do you?---Yes.
At the time when your memory passes, were you still watching the centre line then?---I do not remember then."
Well, if you remember it, how far can you remember down John Allan Road watching the centre line?--- How far? In fog you get very disoriented and I have no idea how far.
Can you remember looking for a centre line and not finding a centre line? --- No."

We suppose that the reference to her memory "passing" is a reference to her memory having been affected by the serious head injury she sustained. Cross-examined by counsel for the Shire Mrs Montgomery gave the following answers in her evidence –
"Can you recall seeing the centre of the road at all that night when you went down John Allan Road?---Yes.
You can?---Yes.
Where were you at that time?---Just on the road that I recall.
I'm asking you where you were, as you were travelling in the 'ute on John Allan Road at the time that you remember seeing the centre of the road?---Well, I would have come around off the highway onto John Allan Road, encounter fog, and you search and you look for the centre line.
You just told us "would". I am asking you what you can remember, not "would", but what you actually remember you did on that night as you turned into John Allan Road?---I don't remember.
So is it fair to say you do not remember seeing the centre line of the road on that night, today – you cannot today remember seeing that centre line?---No, no. No.
What's the answer?---I did see that line when I was travelling in fog, but I do not recall when I saw that line after encountering the fog."

In our opinion this evidence, and in particular the last answers in the two passages set out, did not entitle her Honour to conclude that the claimant had failed to establish that any failure on the part of the Shire to have white lines in place by the time of the accident caused or contributed to the accident. Despite the submission to the contrary by counsel for the Shire, we do not see this evidence as tantamount to Mrs Montgomery's saying that she was not noticing the presence or absence of white lines; in effect she was saying only that she did not recollect noticing when they ceased. That is not to say that she would not have noticed them had they returned before she collided with the other vehicle and, of course, had they not been absent at all they would have been present at the point of collision and for a significant time before. Any driver experienced in driving along country roads (as Mrs Montgomery was said to be) is undoubtedly familiar with both the presence and the absence of white lines; they are helpful when present and when absent other indicators must be relied upon, the driver probably moving from one situation to the other without much conscious thought. The presence of the fog obviously made driving much more difficult on this occasion and we think that the argument of counsel for the Shire attached far too much significance to the answers given by the witness in cross-examination about her recollection, at the expense of the reality: that is, that the more difficult the driving in foggy conditions the greater the assistance of white lines in keeping a driver on the correct side. Without them, the driver is at risk depending upon how visible are the edges of the roadway or other indicators; with them, any driver would be conscious, particularly on a road of this width, of the demarcation between the correct and the incorrect side - and that was not gainsaid by Mrs Montgomery's frankly conceding that she could now recollect noticing the point at which the white lines ceased.

Although cross-examined about it, Mrs. Montgomery insisted that although she had no specific recollection of the speed at which she was travelling, she "would have" slowed down because of the fog. She was cross-examined, too, about whether she had left enough time for the trip, and she was clear that she had. There was no suggestion at trial that she was affected at all by alcohol. The only aids she had, in deep fog, to stay on her correct side of the road, were the gravel shoulder (which, according to the evidence of the police witness, being damp was darker than usual and therefore more difficult to see) and whatever line markings were present denoting the centre of the road. Indeed, counsel for the Shire conceded that any navigational aid, including white lines in the centre of the road, would have been of assistance to a driver driving along John Allan Road in fog. His argument was that in the absence of evidence (demonstrated by the passages from Mrs Montgomery's evidence already quoted), one could not say that the absence of white lines was a contributing factor; one could say only that it might have been. Yet the presence of the S-bend at the area of the collision carried with it, as a logical consequence, the possibility that Mrs Montgomery, if travelling in a straight line, would move inevitably on to the incorrect side of the road. Had line markings been there, they must have been visible to the driver, as demonstrated by Sergeant McManus's evidence that he saw the white spot markings on that night. The judge found expressly that the absence of white lines was "clearly discernible to road users", and so their presence would have been equally so. The judge also found Mrs Montgomery to be a witness of truth (even if "not reliable in relation to events a short time before the collision") and that must carry with it the implication that the judge accepted her evidence that it was her usual practice to use the white lines in the centre of the road as an aid to keeping on her correct side and also that on that night she was doing so before she came to the area where fog was affecting visibility, and the area where line marking was no longer present.

In the third paragraph quoted above from the reasons for judgment, the judge said that the plaintiff was familiar with the fact that the road had an S-bend. The plaintiff had travelled the road before, and was no doubt aware that a bend of this nature existed somewhere along the road. But, with respect, it is a very different matter to assert that when most visibility had been removed by the foggy conditions, Mrs Montgomery would have been aware that she was about to reach the S-bend. The judge also said that the absence of white lines was not a hidden hazard. This statement, again with respect, somewhat mistakes the case being made, which was rather that it was the S-bend which in all the circumstances was the hidden hazard. Her Honour's statement that it was clearly discernible to road users that the lines had ceased, as we have said, merely supports the argument that had they been present Mrs Montgomery would have seen and continued to be guided by them. It would not have been in the least surprising had she failed to see the end of the line marking if, for example, at that precise point her attention had been focused on the gravel shoulder in attempting to maintain contact with it. Counsel for Mrs Montgomery also submitted to us that her Honour may have placed too much reliance upon the evidence of Sergeant McManus that he was able to use the gravel shoulder as a guide. There may be some force in that submission. Sergeant McManus was an experienced police officer who had been stationed in the district for some years and was thoroughly familiar with the road, having travelled on it many times at night and in foggy conditions. More significantly he was in any event aware that an accident had occurred and where the accident had taken place. Even so, he relied heavily upon the white lines to guide him until they ceased and then found it difficult to steer thereafter by using the gravel shoulder as a guide.

All in all, we think that it was not open for the judge to conclude, even on the answers given by Mrs Montgomery, that the presence of white lines would not have made a difference - or, to put it in terms of the onus of proof, to conclude that Mrs Montgomery had not established on the balance of probabilities that their presence would have made a difference. After all, it was not the witness's credit which is in point here; it is the conclusion which was open to the judge on the evidence that was given and, with great respect, we have concluded that her Honour's conclusion on causation is not sustainable - notwithstanding that conclusion was expressed as depending upon the onus of proof. In the particular circumstances of this case as disclosed at trial we think it inconceivable that the absence of line marking did not contribute to the happening of this unfortunate collision. The appeals should therefore succeed and, as was common ground, that means that in both actions there must be a retrial on all issues between Mrs Montgomery and the Shire.

Cross appeals

As mentioned at the outset, the Shire gave notice that if the appeals succeeded and there was to be a re-trial in both actions of the issue of its liability to Mrs Montgomery, then it sought the opportunity to re-litigate also the question of contribution or indemnity between it and “the other defendants” (in the case of the first appeal) and “the other third parties” (in the case of the second appeal). These other parties, co-defendants in the one case and third parties in the other, were described as the estate of the deceased Patten and VicRoads. Unfortunately, in so identifying them the draftsman overlooked the difference between the two proceedings. In the first, the appellant (as plaintiff) sued the estate of the deceased Patten, the Shire of Campaspe and VicRoads: the three were co-defendants. In the second, the estate of Patten was not a party at all. In the second proceeding Mrs Patten, a passenger in the motor vehicle driven by her deceased husband, was the plaintiff and Mrs Montgomery was the defendant. The claim of Mrs Patten was resolved by agreement, leaving for determination only the claim by the appellant (as defendant) against the two third parties, the Shire of Campaspe and VicRoads

When this was pointed out in the course of argument, counsel for the Shire accepted that the notices of cross-appeal required some amendment. In the second action, any reference to the estate of the deceased Patten was altogether inappropriate; what the Shire was seeking was the right to re-litigate its claim for contribution or indemnity from “the other third party”, namely VicRoads. In the first action, while it could not be said to be wrong to describe “the other defendants” as including the estate of the deceased Patten, counsel quickly accepted that the Shire had no grounds for making any case against the other driver, Mr Patten, and that its claim for contribution or indemnity was to be pursued only against one of the co-defendants, VicRoads.

The question then became whether, if the appeals succeeded and led to a re-trial of all issues between Mrs Montgomery and the Shire, the respondent should be allowed the opportunity to re-litigate the question of contribution or indemnity from VicRoads. It was submitted by Mr. Titshall that if the appeals succeeded on the ground that the judge erred in finding no causal link between Mrs Montgomery's injuries and the absence of any white lines, flip-flops or warning signs, then while that opened the way for possible liability in the Shire, it must open the way also for possible liability in VicRoads, thus providing a basis for the Shire, if found liable to Mrs Montgomery, to claim contribution or indemnity from VicRoads. At this point, however, the respondent struck a hurdle; for if VicRoads was to be liable for contribution or indemnity in these two cases, it must be possible to posit liability in VicRoads to the appellant. The Shire's claim was put under Part IV of the Wrongs Act 1958 and under s.23B contribution depends upon the liability of both the claimant and the target for the damage in question. In this instance, it could not be said that VicRoads was liable to Mrs Montgomery, or could be found liable to her, so long as the judgment given in its favour remained on foot[1]. In both actions, judgment had been given in favour of VicRoads. In the first there was judgment for the defendants (including VicRoads) and in the second, judgment for the third parties (again including VicRoads). Mrs Montgomery was appealing against the judgment given in favour of the Shire (one of the defendants in the first action and one of the third parties in the second) but there was no appeal as yet against the judgment given in favour of VicRoads. While that judgment stood, the Shire could not succeed in obtaining any contribution under the Wrongs Act from VicRoads.
[1]Wrongs Act 1958 s.23B(5), James Hardie & Co. Pty. Ltd. v. Seltsam Pty. Ltd. (1998) 196 C.L.R. 53.

This was the point made to us by Mr Forrest on behalf of VicRoads. In reply, Mr Titshall suggested further amending the notices of cross-appeal. The difficulty here lay in the fact that they were specific. In both cases, it was asserted that if Mrs Montgomery’s appeal succeeded, that would “affect the order made” below “that the contribution proceedings between” the defendants in the first case and the third parties in the second “be dismissed with no order as to costs” and it was claimed that “in such circumstances such order should be set aside” to allow for re-litigation of the issues. But if, as we have said, there was a significant obstacle in both cases in the judgment given in favour of VicRoads, much more was needed than a simple amendment to the notices of cross-appeal. The Shire needed to appeal the judgment in favour of VicRoads and, of course, by now it was hopelessly out of time. The Shire therefore needed an extension of time within which to institute the appeal, but should such an extension be granted at this late stage?

On the one hand it can be argued that if the appeals by Mrs Montgomery succeed because of error in the trial judge’s finding that there was no causal link between Mrs Montgomery’s injuries and the absence of white lines, flip-flops or warning signs, the re-litigation of all issues concerning the Shire’s liability to her might just as well extend to the re-litigation of the liability of VicRoads, because if anyone was responsible to her for the relevant omissions, it was surely one or other of them, the Shire or VicRoads. On the other hand, counsel for Mrs Montgomery said that her decision not to appeal the judgment given in favour of VicRoads was quite deliberate: the possibility that VicRoads was liable had stemmed, he said, from two letters written early in the piece and, in the light of the evidence given at trial, it was decided that there was no basis at all for Mrs Montgomery’s now contending for liability in VicRoads. Accordingly, we became concerned to identify the basis upon which the Shire sought now to posit liability in VicRoads to Mrs Montgomery as a base for seeking contribution or indemnity on the retrial.

Because the question of appealing out of time arose only in the course of argument, the matter was adjourned overnight to give both the Shire and VicRoads, the opportunity to prepare further argument. That argument was duly presented and, in short, we find ourselves altogether unpersuaded that there is any reasonable basis upon which the Shire might establish liability in VicRoads to Mrs Montgomery for her injuries. If the absence of white lines, flip flops or warning signs was a cause of those injuries, then, on the evidence given below, it does not seem, even arguably, to have been the responsibility of VicRoads to see to their presence.

We have canvassed already, albeit briefly in paragraph [27], the roadworks that were carried out by the Shire and Mr Forrest emphasised that under the Transport Act responsibility in that regard lay with the council of the Shire, as the local municipality. In so far as VicRoads might have been engaged by the Shire as a contractor to carry out the line marking, the requisition from the Shire was forthcoming only on 22 June 1994, four days before the accident. The fax then sent to VicRoads was in evidence; it listed a number of roads for which the Shire requested white lines from VicRoads, but, as already mentioned, without signifying urgency or ordering priority in any way, and VicRoads could scarcely be blamed for having no white lines in place by 26 June. (At trial some reference was made to communications before 22 June but none of them seemed to us at all relevant for present purposes.)

For the Shire Mr. Titshall submitted that under the Transport Act VicRoads had a function, and hence was given the power, to supervise generally the carrying out of road works by a municipal council inasmuch as such works were required to be done “to the satisfaction of” VicRoads: see ss. 16(1)(b), 38 and Schedule 5, clause 5(5). It may be doubted that the allegation of duty in paragraph 7 of the Shire's pleading against VicRoads (which in this respect was in like form in both actions) went beyond the latter's obligations in relation to "the maintenance and construction of roads" by VicRoads itself, but we pass that by. Counsel relied upon the particulars of breach in paragraph 8, alleging that VicRoads did not have in place "any or any adequate system" relating to the supervision or co-ordination of road repair and maintenance, or indeed of line marking. Perhaps in context that might have meant that VicRoads lacked any proper system for seeing that new work needing lines did not remain unlined for any undue length of time, but if that case was foreshadowed we were told, very fairly by counsel, that it was not explored at trial. Instead the case against VicRoads was more direct: simply that it had failed to see to it that the lines were painted where road-work had removed them and in the circumstances we are not at all persuaded that there was any case in the evidence that such failure amounted to negligence or other breach of duty on the part of VicRoads.

The merits of the case to be made by the would-be appellant are not irrelevant on an application to extend the time within which to appeal[2]. As we have not been persuaded that there is any arguable merit in the case to be made by the Shire against VicRoads if the Shire were allowed to appeal out of time, we would refuse the application for an extension of time. It follows that in our opinion the cross appeals should be dismissed as wanting any foundation for the Shire's re-litigating the question of contribution or indemnity from VicRoads, should the Shire be found liable to Mrs Montgomery on the retrial.
[2]For example, Gallo v. Dawson (1990) 64 A.L.J.R. 459 at 460 per McHugh, J.

Conclusion

In our opinion in both actions the appeal by Mrs Montgomery should be allowed and a retrial ordered on all issues between her and the Shire. We would dismiss the cross-appeals by the Shire.

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Montgomery v Shire of Campaspe [2000] VSCA 240

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[2000] VSCA 240

15 December 2000