North Sydney Council v Binks - [2007] NSWCA 245

No judgment structure available for this case.

Reported Decision: (2007) Aust Torts Reports 81-911

Appeal Outcome: Special leave refused with costs by the High Court - 18 April 2008

New South Wales

Court of Appeal

CITATION: NORTH SYDNEY COUNCIL v BINKS [2007] NSWCA 245

HEARING DATE(S): 24 April 2007

JUDGMENT DATE:
18 September 2007

JUDGMENT OF: Beazley JA at 1; Santow JA at 2; Basten JA at 41

DECISION:
(1) Allow the appeal in part and set aside the judgment in favour of the plaintiff in the Court below.
(2) In lieu thereof, give judgment for the plaintiff in an amount of $304,750.(3) Order the Appellant to pay the Respondent’s costs of the appeal.

CATCHWORDS:
TORTS – negligence – duty of care of road authority to motorist – motorist affected by alcohol – confusing nature of road works and signs
TORTS – negligence – causation – contributory negligence – motorist affected by alcohol

LEGISLATION CITED: Evidence Act 1995 (NSW), s 54

CASES CITED: Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307
Bennett v Minister of Community Welfare (1992) 176 CLR 408
Betts v Whittingslowe (1945) 71 CLR 637
Brodie v Singleton Shire Council (2001) 206 CLR 512
Chappel v Hart (1998) 195 CLR 232
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Elbourne v Gibbs [2006] NSWCA 127
Fox v Percy (2003) 214 CLR 118
John Pfeiffer Pty Ltd v Canny (1981) 148 CLR 218
Leichhardt Municipal Council v Montgomery [2005] NSWCA 432
Leichhardt Municipal Council v Montgomery [2007] HCA 6; (2007) 81 ALJR 686
Luxton v Vines (1952) 85 CLR 352
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
McGhee v National Coal Board [1973] 1 WLR 1
Miller v McKeon (1905) 3 CLR 50
Naxakis v Western General Hospital (1999) 197 CLR 269
Pledge v Roads and Traffic Authority [2004] HCA 13; (2004) 78 ALJR 572
Roads and Traffic Authority v Dederer [2007] HCA 42
Smith v Broken Hill Pty Co Ltd (1957) 97 CLR 337
Sutherland Shire Council v Henshaw [2004] NSWCA 386
Thompson v Woolworths (Q’land) Pty Ltd (2005) 221 CLR 234
Van Den Heuvel v Tucker (2003) 85 SASR 512
Zorom Enterprises Pty Ltd v Zabow [2007] NSWCA 106

PARTIES: North Sydney Council – Appellant
Simon John Binks - Respondent

FILE NUMBER(S): CA 40373/06

COUNSEL: M. Joseph SC/N. Polin – Appellant
B. Gross QC/R. Royle - Respondent

SOLICITORS: Phillips Fox – Appellant
Levitt Robinson - Respondent

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 21088/1996

LOWER COURT JUDICIAL OFFICER: Hoeben J

LOWER COURT DATE OF DECISION: 25 May 2006

LOWER COURT MEDIUM NEUTRAL CITATION: Binks v North Sydney Council [2006] NSWSC 463

CA 40373/06
SC 21088/1996

BEAZLEY JA
SANTOW JA
BASTEN JA
18 September 2007

NORTH SYDNEY COUNCIL v Simon John BINKS

On 20 July 1995 the Respondent, Mr Binks, drove his motor vehicle into a telegraph pole at the intersection of Alfred Street and Fitzroy Street, North Sydney. At the time of the accident Mr Binks had a blood alcohol level of at least 0.125. The accident occurred near a roundabout on which road works were being carried out by a contractor for the Appellant, North Sydney Council. Mr Binks commenced proceedings against the Council and the contractor for negligence, primarily in relation to the warning signs at and near the road works. By the time of trial, the contractor had gone into liquidation and played no further part in the litigation.

The trial judge, Hoeben J, found the Council liable, but also assessed the contributory negligence of Mr Binks at 65%. The Council appealed against the trial judge’s decision.

The issues for determination by the Court of Appeal were:

(i) the scope of the duty of care owed by the defendants to the plaintiff;

(ii) what steps the defendants should reasonably have taken in exercise of that duty, which were not taken;

(iii) whether the failure to take those steps contributed in a material sense to the occurrence of the accident;

(iv) as between the defendants, whether the Council had a duty to take those steps;

(v) whether the trial judge’s assessment of damages was excessive.

The Court, in dismissing the appeal (Beazley and Santow JJA, Basten JA dissenting), held:

In relation to (i)

(per Santow JA, Beazley JA agreeing)

1. The duty of care of the road authority was not confined to careful road users, but extended to all foreseeable users of the road, including bad and inattentive drivers and drivers affected by alcohol. A driver suffering the effect of alcohol is not precluded by that fact alone from recovering by reason of the road maintenance authority’s negligence. It will be a question of degree as to whether the effect of alcohol has so grossly affected the driver’s capacity to control his vehicle that the road maintenance authority’s negligence makes no material contribution to the injury: [1], [18]-[20].

March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 applied.

(per Basten JA)

2. The duty of care owed by a road authority to road users is determined by reference to a person exercising reasonable care for his or her own safety, allowing for inadvertence and thoughtlessness as variable factors: [50]-[51]. The standard of care is not that which would be sufficient for a driver whose reaction times were significantly affected by alcohol or who was travelling at excessive speed: [55]-[56].

Miller v McKeon (1905) 3 CLR 50 at 60; Smith v Broken Hill Pty Co Ltd (1957) 97 CLR 337; March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; Brodie v Singleton Shire Council (2001) 206 CLR 512; Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; Thompson v Woolworths (Q’land) Pty Ltd (2005) 221 CLR 234, applied.
Leichhardt Municipal Council v Montgomery [2007] HCA 6; (2007) 81 ALJR 686 ; Leichhardt Municipal Council v Montgomery [2005] NSWCA 432; considered.

In relation to (ii)

(per Santow JA, Beazley JA agreeing)

3. The signage was inadequate and placed too close to the road works, giving the misleading suggestion that the lane was closed: [1], [37], [39].

(per Basten JA)

4. There is no error in the trial judge’s finding that the road works were confusing: [72]. The defendants should have provided further signage to give clear guidance as to the route to be taken by southbound traffic on Alfred Street, including those measures which were identified by the trial judge: [79]

In relation to (iii)

(per Santow JA)

5. In order to establish a causal connection between the breach of duty and the injury, the injury must lie within the foreseeable area of risk that adherence to the duty would have avoided or alleviated: [29]-[35].

Betts v Whittingslow (1945) 71 CLR 637; Bennett v Minister of Community Welfare (1992) 176 CLR 408; Chappel v Hart (1998) 195 CLR 232; Naxakis v Western General Hospital (1999) 197 CLR 269 applied.

6. It was open to the trial judge to conclude that the causation between the Council’s negligence and Mr Binks’ accident was sufficiently made out: [7] The accident was within the foreseeable area of risk from inadequate and delayed signage failing to obviate the road works’ misleading appearance suggesting the lane was closed: [37]. The Council did not establish any alternative cause of the accident such as to wholly supersede its negligence. To the extent that there was excess speed or absence of braking on the part of Mr Binks, these were reflected in the attribution of 65% liability to Mr Binks in contributory negligence: [38]. The appeal in relation to the finding of liability should be dismissed: [1], [40].

(per Basten JA)

7. If the breach of duty were only one of a number of plausible explanations for the accident, it is necessary to ask whether the law requires that it be more probable than not that it contributed to the accident, or whether it is sufficient that it is an available explanation: [90]. There is authority for the proposition that where there is a duty to warn in relation to a risk of injury and it is that risk which materialises, causation may be accepted. However, there are limits on how far an assumption of causal connection can be pressed: [93].

Betts v Whittingslowe

Bennett v Minister of Community Welfare

Luxton v Vines

John Pfeiffer Pty Ltd v Canny

Chappel v Hart

Bendix Mintex Pty Ltd v Barnes

Elbourne v Gibbs

8. The trial judge’s reasoning with respect to causation is unsatisfactory and demonstrates potential error: [93]. The evidence does not permit a conclusion that the accident was ‘of the kind’ that might result from the breach of duty alleged. Therefore, the ‘risk’ which materialised cannot reasonably be connected with the failure to provide the identified signage and causation was not established: [97]

In relation to (iv)

(per Basten JA)

9. As the matter was litigated before the trial judge on the basis that the Council and contractor had at least joint responsibility for conducting the road works, the Council could not escape liability by arguing that sole responsibility for the warning signs lay with the contractor: [101].

In relation to (v)

(per Basten JA, Beazley and Santow JJA agreeing)

10. The trial judge’s assessment of damages should not be disturbed except in relation to his calculation of future economic loss, which should be reduced: [1], [7], [156], [157].

CA 40373/06
SC 21088/1996

BEAZLEY JA
SANTOW JA
BASTEN JA
18 September 2007

NORTH SYDNEY COUNCIL v Simon John BINKS

Judgment

1 BEAZLEY JA: I agree with Santow JA’s judgment on liability. Otherwise, I agree with Basten JA’s reasons in relation to damages and costs and the orders his Honour proposes.

2 SANTOW JA:

INTRODUCTION

This is an appeal on both liability and damage, brought by a road maintenance authority, North Sydney Council, from a finding against it of negligence. The partially successful plaintiff, now respondent, Mr Binks, was the driver of a motor vehicle who was injured when his vehicle struck a telegraph pole. This followed a manoeuvre on Mr Binks’ part which the trial judge, Hoeben J, accepted was in consequence of his being misled into thinking that council’s road works had closed off the lane on which he was driving, preparatory to turning, though attributing to him 65% for contributory negligence.

3 I have had the advantage of reading in draft the judgment of Basten JA. Basten JA would uphold the appeal on liability. His Honour would do so on the basis that the respondent, Mr Binks, failed as plaintiff to establish the necessary causal link between the appellant Council’s negligence in relation to road maintenance works and its signage on the one hand, and the respondent’s injuries suffered when he drove his vehicle off the road, colliding with a telegraph pole on the other.

4 Basten JA accepts that the appellant, North Sydney Council, failed to exercise reasonable care for the safety of road-users. This was in the manner in which certain road works were constructed on the road where the accident occurred, particularly with regard to the adequacy of signage and its misleading character. Thus it is accepted, as Hoeben J the trial judge found, that the road works were so configured that they were capable of giving the misleading impression to drivers travelling south in Alfred Street North Sydney that the southbound lane on which the respondent was driving was blocked at the intersection. Basten JA determined that there was still a missing evidential link required to establish causation, which Mr Binks was required to establish at trial and had failed to do so. Basten JA concludes that this had the result that Mr Binks failed to discharge the onus upon him to establish liability on the Council’s part.

5 For convenience I set out his Honour’s conclusion and reasons below:

“97 The missing evidential link lies in the connection between the creation of a possible mistaken belief that the left-hand lane ended and the manoeuvre undertaken by the plaintiff’s vehicle. That manoeuvre was not properly described as of a kind, which might be expected to be caused by the breach of duty. The only clear inference is that the plaintiff lost control of the vehicle, without known explanation. The ‘risk’ which materialised cannot reasonably be connected with the failure to provide the identified signage. Accordingly, the necessary causal link has not been established and the plaintiff’s claim should have failed.”

6 Basten JA earlier sets out the basis for that conclusion in these terms:

“94 On the basis that causation may be inferred where there is a breach of duty and an accident ‘of the kind’ that might result from such a breach, it is necessary to consider whether the known facts of the accident in the present case demonstrate that it was an accident of the kind which might be expected in the case of the proven breach. The Appellant contended that confusion due to a lack of signage was an inference based on speculation, not evidence. It might equally be inferred that the plaintiff had lost concentration or even had a ‘microsleep’ and swerved at the last moment to avoid what appeared to be an obstacle in his course. Again, he might have lost concentration and realised that he was approaching the intersection too late to be able to slow down in order to take the corner.

95 On the expert evidence, based on the damage to the car, if the skid marks were due to the plaintiff braking, he must have been travelling at approximately 77km/h, at a distance of some 25 metres from the intersection. In the alternative, if he did not brake, he may have been going at only 60km/h, or slightly above that speed, but there would still be a question as to why he was going at that speed immediately prior to making a left-hand turn and, significantly, why he may have failed to brake at all.

7 For the reasons below, I would respectfully differ from Basten JA in his Honour’s conclusion on liability. I conclude that it was open to the trial judge to conclude that causation between the Council’s negligence and Mr Bink’s accident was sufficiently made out. Accordingly I would conclude that the trial judge’s determination in favour of Mr Binks on liability should not be disturbed. However, I would respectfully agree with Basten JA’s conclusion on damages, and with the orders his Honour proposes on the basis of the majority conclusion.

SALIENT FACTS and FINDINGS OF PRIMARY JUDGMENT

8 The facts of the accident briefly stated are these. Shortly before 1am on 21 July 1995, the respondent Mr Simon Binks was driving his 1970 Mercedes motor vehicle in a southerly direction in Alfred Street in Milsons Point, a route he did not normally use. As he approached the road works which were being undertaken at the intersection of Alfred Street and Fitzroy Street, and of which the trial judge found he was unaware, his vehicle veered to the right, mounted the western kerb and collided with a telegraph pole, the major point of impact being with the telegraph pole upon the left rear door. There was a 25 metre tyre mark that went from the centre line of Alfred Street towards the south-west leading up to the respondent’s stationary vehicle.

9 The experts for respondent and appellant, and the trial judge, were unable to conclude whether the skid mark represented braking, in which case the vehicle speed was estimated taking account of its damage, at around 77 kph or whether it was an indication that the vehicle had yawed while the driver was trying to change direction, in which case the vehicle speed was estimated at between 60 kph to 70 kph (Judgment [79]-[80]). The speed limit was 60 kph.

10 A blood alcohol sample taken approximately 1 hour after the accident showed that the respondent had a blood alcohol concentration of .133. Evidence as to the respondent’s alcohol consumption on the night in question and his drinking patterns generally are set out by the trial judge, in his judgment at [143] to [145]. The trial judge accepted that at the time of the accident, the respondent’s blood alcohol level would have been at least 0.125. The actual reading was not known because there was no evidence as to when he ceased drinking. I agree with the inference drawn by Basten JA which for convenience I quote below:

“62 The result of this limited material is that no finding could be made (nor was made) as to what the plaintiff was doing between approximately 10.30pm and the time of the accident, nor as to when he last consumed alcohol. Pharmacological evidence indicated that a blood alcohol concentration will drop in what was described as “the elimination phase”, which is normally attained about 20-30 minutes after drinking finishes. The blood alcohol concentration tends to decline at a constant rate of approximately 0.015g/ 100ml/hour. Given that the accident occurred at 12.55am, and the blood alcohol reading was taken at 1.45am, it is difficult to see that the actual blood alcohol reading would have been higher than the blood alcohol concentration at the time of the accident.”

11 The trial judge:

(ii) considered carefully the expert evidence and a number of photographs of the site;

(iii) took account of the impression created by the road works as so unusual as to call for an extended reaction time of 2.5 seconds to take the necessary avoidance action by a significant lateral movement to the east;

(iv) identified a number of features of the location, road works and signage as relevant factors going to risk of an accident occurring at the intersection;

(v) identified a reduced level of observation available to a driver because of the slope in Alfred Street going south, exacerbated at night.

12 Based on a careful review of these matters (Judgment [81] to [104]) and the evidence of a number of independent witnesses (Judgment [104] to [110]), the trial judge concluded:

“[105] Based on that, and on the opinion of the plaintiff’s experts and on photographs 1–4 in Mr Stuart-Smith’s report of 11 February 2005, ie the four photographs taken at night, I am of the opinion that to a driver travelling South in Alfred St at approximately 12.55 am on 20 July 1995 the road works would have given an impression that the southbound lane was entirely blocked and that this impression would not have been corrected until the driver was very close, ie within 25 metres from the commencement of the intersection. On that issue I accept the opinion of the plaintiff’s experts in preference to that of Mr Stuart-Smith.”

13 The trial judge found the North Sydney Council liable, but also assessed the responsibility of the respondent at 65%; see Judgment at [131], [134] and [152]. There was no specific challenge to that assessment of contributory negligence. The Council on appeal rather challenged the finding that any conduct on its part relevantly contributed to the accident so denying liability altogether.

14 The trial judge assessed damages at a figure in excess of $900,000. This, when reduced by 65% for contributory negligence, resulted in a judgment in favour of the respondent in the sum of $330,253 (Judgment [221]).

RELEVANT PRINCIPLES AND THEIR APPLICATION

15 At [113] the trial judge poses this question as a necessary starting point. Is the duty in Brodie v Singleton Shire Council (2001) 206 CLR 512 at [150] (and explained in [160] to [163]) owed only to careful road-users? If no, there is a further question. What degree of lack of care precludes recovery altogether? Does the answer to that question depend on hard and fast rules such as that recovery is precluded if the inattention or its consequences are the result, in part at least, of alcohol or excessive speed? Or is this simply a matter of degree, as evinced by the possibility of a finding of substantial contributory negligence, as here?

16 The appellant relied in particular on the following sentence in Brodie (supra) at [160]:

Smith v Broken Hill Pty Co Ltd

Miller v McKeon

17 I understand Basten JA in his judgment to accept that submission, to the extent at least that he would deny recovery to a driver whose impairment of faculties so derived went beyond slow reaction times to an inability to control the motor vehicle itself, though accepting that “there are matters of degree to be taken into account in these circumstances”.

18 The trial judge did not consider that the Council, as a road maintenance authority owed a duty only to careful road-users being here motorists. His Honour distinguished vehicle drivers from pedestrians. In Brodie at [163], which passage appears under the heading “Pedestrians”, Gaudron, McHugh and Gummow JJ required expressly of pedestrians that they be “users exercising reasonable care for their own safety”. At [115] the trial judge seeks to explain the distinction between motorists and pedestrians:

“the point of distinction is obvious. A pedestrian because of his or her mode of locomotion has more time and more opportunity to examine the surface over which he or she is walking (Brodie [163]). Those advantages are usually not enjoyed by a motorist who is necessarily travelling at a greater speed and who may have other impediments to his or her vision …”.

19 The trial judge cites in support, correctly in my view, March v E & M H Stramare Pty Ltd (1991) 171 CLR 506. There Deane J at 520 explains that a road-user who had parked his truck, though with lights on, so as to obstruct part of a roadway, had a duty of care; one that was “not confined to persons who were careful and sober, but extended to all foreseeable users of the road, including bad and inattentive drivers and those whose faculties were impaired either naturally or by reason of the effect of alcohol.”

20 In my view, elaborated below, a driver suffering the effect of alcohol is not precluded by that fact alone from recovering by reason of the road-maintenance authority’s negligence. Deane J’s statement makes that quite clear. It will be a question of degree as to whether the effect of alcohol has so grossly affected the driver’s capacity to control his vehicle that the road-maintenance authority’s negligence makes no “material contribution” to the injury. It is not enough that alcohol, or alcohol plus a level of speed beyond the safe level, has affected the driver’s capacity to some degree in controlling his vehicle. The question remains to what degree, taking into account such effect if any of the negligence of the road-maintenance authority on the accident’s occurrence.

21 Basten JA concludes that Deane J’s statement is not addressed to the present problem. His Honour notes that Mason CJ (with whom Toohey and Gaudron JJ agreed) at 519 stated, “the second respondent’s wrongful act in parking the truck in the middle of the road created the situation of danger, the risk being that a careless driver would act in the way the appellant acted.”

22 Basten JA explains why he considers that breach was not dependent on whether the driver was (in Deane J’s words) one “whose faculties were impaired either naturally or by reason of the effect of alcohol”:

“In other words, the conduct of the defendant demonstrated a lack of reasonable care for other road users, including the merely inattentive or careless. The risk was not limited to those driving at excessive speed or very much affected by liquor; breach was not dependent on those factors.”

23 I respectfully differ from Basten JA insofar as there is said to be a relevant distinction between March v E & M H Stramare Pty Ltd and the present case, or insofar as it is said that March v E & M H Stramare Pty Ltd is to be understood as necessarily denying recovery to a driver affected by alcohol. Questions of degree as I have said do enter here in terms of causation. In the present case, I consider that the trial judge was not in error in concluding that the danger posed by the Council’s negligence would be particularly acute for a plaintiff who might “be inattentive, might be driving too fast in the circumstances” or is one whose “faculties might be impaired, at least to the extent that his reactions were slowed” (see Judgment at [119]). I do not draw a distinction between reactions slowed for example by old age, or reactions slowed by alcohol save as to the voluntary character of the latter with its normative consequences. Nor do I draw a distinction between slow reaction times and a reduced (as distinct from no) ability to control a motor vehicle. The first factor (slow reaction times) clearly reduces the ability to control a motor vehicle, whatever its origin.

24 But all this is to say no more than that these are matters of degree. That degree, at a point, will preclude liability altogether, as distinct from calling for contribution on the ground of contributory negligence. When that point is reached will depend on the circumstances and does not lend itself to any a priori answer.

25 Importantly, it was not established either way whether Mr Binks’ speed was greater than 60 kph or equal to (around) 60 kph. The evidence goes no further than to say that if he did not brake his speed would be between 60 kph and 70 kph as I explain. Nor was it established that a speed of 60 kph (the lowest estimate) would have meant that Mr Binks could not safely have turned to the left immediately after the road works if warned of them sufficiently early, as distinct from 25 metres before. There was expert opinion that if Mr Binks had braked, he must have been going at 77 kph some 25 metres from the intersection, taking into account the damage to the car and the skid marks. The expert evidence was however equally consistent with his failing to brake and thus travelling at the lesser speed of between 60 kph and 70 kph, with the skid marks the result of the vehicle yawing. I do not accept that failure to brake when warned too late, precluded any liability on the Council’s part, as distinct from being capable of connoting contributory negligence on Mr Binks’ part.

26 Thus I conclude that it was open to the trial judge to treat such a failure to brake in the circumstances as contributory negligence, indeed of a high order (65%). But it was not such as to require the trial judge to disqualify him from any recovery at all. In particular it was open to the trial judge to treat, as his Honour did, the misleading appearance of the less than adequate signage as playing a part (“materially contributing”) to the accident, calibrating that contribution at 35%. This is not, to my mind, impermissibly to lower the causal requirement from “materially contributing” to the accident, to materially contributing to the risk of accident.

27 I consider that, once driver inattention is removed as a bar to recovery, as in cases like March v E & M H Stramare, it is difficult to differentiate between causes of driver inattention such as tiredness, medication or alcohol. All one can say is that degrees of inattention have a bearing whatever their cause. If the cause is alcohol, its voluntary character can have a bearing in terms of culpability. It must not be overlooked that normative aspects enter into causation as they do for determining the appropriate scope of liability in terms of consequence.

28 Thus I conclude that an excess of speed or the combination of alcohol and an excess of speed does not a priori preclude recovery. But they will preclude recovery where they result in such gross inattention on the part of the driver as to overwhelm any causal effect from the road-maintenance authority’s negligence on the happening of the accident. This emerges from the closer look at causation below, as it affects the evidentiary onus of proof, where there is negligence on the part of both plaintiff and defendant.

Causation

29 Kirby J observed that “Once a plaintiff demonstrates that a breach of duty has occurred which is closely followed by damage, a prima facie causal connection will have been established”; Chappel v Hart (1998) 195 CLR 232, 273. But the generality of this succinct statement, with its suggestion of a provisional post hoc propter hoc causal result in favour of the plaintiff, belies a further requirement. It is clearly enough derived from the authorities Kirby J cited and relied upon. The nature of the damage following upon breach of duty must be sufficiently related to the nature of the duty itself, in order for such a causal connection to exist as would result in the evidentiary onus shifting. So much was explained by Dixon J in Betts v Whittingslow (1945) 71 CLR 637 at 649:

of the kind that might thereby be caused

30 Importantly, it is an accident of the kind that might thereby be caused. The word “might” does not call for the accident being more than a reasonable possibility. It invokes notions of foreseeability and a degree of correlation, not merely temporal, which is typically referred to as within an “area of foreseeable risk” connecting the defendant’s negligence to the accident which follows.

31 Kirby J refers to this passage from Betts v Whittingslow as authoritative when making his more general statement of the law set out above. His Honour also cites with approval (at 273-274) a similar statement by Lord Wilberforce in McGhee v National Coal Board [1973] 1 WLR 1 at 6:

within the area of that risk

32 Kirby J thus states the law in terms which implicitly require that there must be a degree of connection between the nature of the duty and the nature of the damage occasioned by its breach, for the evidentiary onus to shift, in that foreseeable area of risk. But Kirby J does not depart from the relatively undemanding “might” formulation of Dixon J’s statement of principle. Gaudron J too implicitly acknowledges this requirement in Chappel v Hart (supra) at 238-239. Like Kirby J, Gaudron J refers to Dixon J’s statement in Betts v Whittingslow as authority for the principle, quoting with approval the relevant passage extracted above.

33 Gaudron J provides a specific example of the application of the principle. Her Honour refers to the duty of a surgeon to inform a patient as to the existence of a risk of physical injury from an operation (though not that there were more experienced surgeons available). Her Honour points to the fact that, if that specific risk of injury is not disclosed and physical injury subsequently does occur, “breach of duty is treated as materially causing or contributing to that injury unless there is ‘sufficient reason to the contrary’”. That was a case where there was a demonstrable obvious link between the nature of the duty breached (failure to warn before an operation) and the nature of the injury suffered (injury from the operation miscarrying). This sufficed to establish a prima facie causal connection, so that there arose an evidentiary (not legal) onus on the defendant to rebut it “by sufficient reason to the contrary”. It is not enough for there to be merely breach of a duty and thereafter damage to establish that causal connection sufficient for the evidentiary onus to shift. The injury must lie within the foreseeable area of risk that adherence to the duty would have avoided or alleviated.

34 The observations of Gaudron J in the later case of Naxakis v Western General Hospital (1999) 197 CLR 269 at 279 are consistent with this approach:

“… the trier of fact … is entitled to conclude that the act or omission caused the injury in question unless the defendant establishes that the conduct had no effect at all or that the risk would have eventuated and resulted in the damage in question in any event.”

Chappel v Hart

35 Gaudron J cites the various statements of the High Court in Chappel v Hart as well as the earlier case of Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 420-421. In that case, Gaudron J herself makes reference with approval to the same words of Lord Wilberforce cited by Kirby J concerning injury occurring “within an area of foreseeable risk”.

Application of Causation principles to this case

36 When the evidentiary onus thus shifts, then notwithstanding the burden of proof imposed by law upon the plaintiff, states of fact may be proved by the evidence as the case advances, or be justified as inferences which the evidence supports. That evidence may authorise findings in favour of a party unless or until some further or other state of fact is made to appear by evidence. That evidence may demand such findings or simply justify them; the latter is this case. It must be remembered these are presumptions of fact, not presumptions of law. The trial judge drew such an inference in favour of Mr Binks as plaintiff, though attributing a 65% responsibility in terms of his contributory negligence. His reasoning evinced such a process of inferential reasoning based on the evidence.

37 While the primary legal onus of proof remained on Mr Binks as plaintiff, the evidentiary onus had indeed shifted to the Council. This was once its negligence was established (Judgment [105] and [110]), closely followed by an accident of the kind that might thereby be caused. In other words, the accident was within the foreseeable area of risk from inadequate and delayed signage failing to obviate the road works’ misleading appearance suggesting the lane was closed.

38 I consider that the various theories or hypotheses said to exonerate the Council altogether as to how the accident might have been caused were never established by the Council. They remain simply theories or hypotheses. One such hypothesis was the possibility of a “microsleep”. It was never established. Another was the speed (60 kph or 77 kph depending on whether he braked) with absence of braking being said to connote negligence. The higher speed was never established. A third was the presence or absence of braking. The latter might bespeak inattention, even alcohol induced, but not such as to preclude recovery altogether. None were shown by the Council to wholly supersede the Council’s negligence. To the extent there was excess speed or absence of braking they were factors justifying the finding of contributory negligence leading to the substantial 65% contribution required from Mr Binks.

Conclusion

39 It was open to the trial judge to conclude as he did that Mr Binks was misled into thinking that the lane was closed, and that the inadequate signage placed too close to the road works (25 metres) left him insufficient time to take evasive action successfully (Judgment [99] to [103]). I note here particularly the concession of Mr Stuart-Smith (Council’s expert) that the Standard specified that the Advance Warning sign was required to be between 40-80 metres from commencement of the works for speeds less than 60 kph). The Council’s negligence rendered this the very type of accident to which its negligence might be expected to give rise. The Council, once the evidentiary onus had shifted against it, failed to establish that the accident was the result of any of the alternative hypotheses or theories so as to preclude any fault at all on the part of the Council. Such inattention as Mr Binks may have manifested, whatever its origins, was fully taken into account in the trial judge’s attribution to Mr Binks of a 65% liability in contributory negligence.

40 Accordingly I would dismiss the appeal on liability. However, I would, for the reasons stated by Basten JA, uphold the appeal on damages, noting that the resultant variation in the judgment for the plaintiff is a reduction of less than 10%. I would accordingly adopt the orders proposed by Basten JA (on the basis of the majority conclusion with respect to liability).

41 BASTEN JA: In the very early hours of 20 July 1995 (at about 12.55 am) Simon John Binks drove his motor vehicle into a telegraph pole at the intersection of Alfred Street and Fitzroy Street, North Sydney. It is likely that he was driving home to his residence, which was then in Darley Street, Neutral Bay, having been out to dinner with friends that evening. Some 50 minutes after the accident, he had a blood alcohol reading of 0.133g/100ml. The trial judge accepted that, at the time of the accident, his blood alcohol level would have been at least 0.125: the actual reading was not known because there was no evidence as to when he ceased drinking.

42 The cause of the accident was a central issue at trial, and on this appeal. Mr Binks’ vehicle hit a telegraph pole after crossing to the wrong side of Alfred Street. How that occurred is not known with any certainty. However, it is known that at the time of the accident road works were being carried out, which involved the construction of a roundabout and “splitter islands” at the intersection. The road works were being carried out by a contractor for the North Sydney Council. In 1996, Mr Binks commenced proceedings against the Council and the contractor, alleging negligence, primarily in relation to the warning signs at and near the road works.

43 When the proceedings commenced, the Council and the contractor were jointly represented and filed a single defence. By the time the case came to trial, the contractor had gone into liquidation and played no further part in the litigation. Although an issue was sought to be raised on appeal as to the respective roles and responsibilities of the Council and the contractor, no such distinction was litigated at trial.

44 The trial judge, Hoeben J, found the Council liable, but also assessed the responsibility of Mr Binks (the plaintiff) at 65%: see Binks v North Sydney Council [2006] NSWSC 463 at [131], [134] and [152]. Although there was no specific challenge to the assessment of contributory negligence, the Council continued, on appeal, to challenge the finding that any conduct on its part relevantly contributed to the accident.

45 The trial judge assessed damages at a figure in excess of $900,000, which, when reduced for contributory negligence, resulted in a judgment in favour of the plaintiff in the sum of $330,253 at [221]. The Council challenged the assessment as manifestly excessive in a number of respects. The primary bases for this challenge were that, prior to the accident, the plaintiff suffered from chronic neck pain and migraines, which were treated with pethidine, to which he may well have been addicted. Further, it was contended that he had demonstrated a lack of interest in any work outside the music industry and had failed to show that, in a practical sense, he had an earning capacity anywhere near the range assessed by the trial judge.

46 Before turning to the issues raised by the appeal, reference should be made to the unfortunate fact that it is now almost 12 years since the accident occurred. On inquiry, counsel for the Appellant (the Council) suggested that the delay resulted from dilatoriness on the part of the plaintiff in bringing the matter on for hearing. The Respondent did not deny that suggestion, nor provide any explanation; nor is any explanation required. However, it may be noted that the hearing took place over 10 days in March 2006 and, in a matter of some complexity, the trial judge was expeditious in delivering judgment two months later. Whether evidence has been lost through the delay is unclear. The only thing that need be said is that the paucity of evidence on some key issues did not arise from any fault on the part of the defendant, or of the Court system.

47 The issues raised with respect to liability may be identified as follows:

(1) What was the scope of the duty of care owed by the defendants to the plaintiff?

(2) What steps should the defendants reasonably have taken in exercise of that duty, which were not taken?

(3) Did the failure to take those steps contribute in a material sense to the occurrence of the accident?

(4) As between the defendants, did the Council have a duty to take those steps?

(5) Did the trial judge err in his assessment of these issues?

Duty of care: legal principles

48 Before considering the approach adopted by the trial judge in relation to the circumstances of this case, it is convenient to consider the legal principles which his Honour applied in assessing the content of the duty and whether the actual conduct of the Council involved a breach of the relevant standard of care. Stated briefly, the context in which this question arose was the clear evidence that the plaintiff was affected by alcohol and the possibility that his speed was excessive in the circumstances. Thus, some 25 metres before the intersection, the plaintiff appeared to have been travelling either between 60 and 70km/hour or at about 77km/hour: at [80]. Signage and warnings which might be sufficient with respect to a driver taking reasonable care for his or her own safety, might be manifestly inadequate in the case of a driver whose reaction times were significantly affected by alcohol or who was travelling at excessive speed. The Appellant contended that the standard of care to be expected of it should be determined by reference to the former, rather than the latter, category of road users.

49 The commencement point of the Appellant’s contention was a sentence of the joint judgment of Gaudron, McHugh and Gummow JJ in Brodie v Singleton Shire Council (2001) 206 CLR 512 at [160]. In that passage, their Honours, having rejected the special “highway rule” and the distinction between misfeasance and non-feasance by a road authority, addressed in positive terms the content of the relevant duty and steps which might be taken to avoid breach, by reference to specific activities which they categorised as (i) construction and design, (ii) repair, maintenance and works, (iii) pedestrians and (iv) inspections. The statement at [160] came under the second heading and, together with reference to the authorities relied upon, read as follows:

Smith v Broken Hill Pty Co Ltd

Miller v McKeon

Ghantous

Roads and Traffic Authority v Dederer

50 In Miller v McKeon, as the joint judgment in Brodie indicated, Griffiths CJ (with whom Barton J agreed) and O’Connor J clearly stated that the standard of care imposed on the government in constructing a road was that the road would be reasonably safe for a person taking reasonable care for his or her own safety: at 60, 62 and 64. In the last passage, O’Connor J stated:

“The duties, however, of the Government and of the person using the road are correlative. The Government are entitled to expect that persons using the road will take reasonable care in so doing. And, on the other hand, the passengers using the road are entitled to expect that the road will be in a reasonably safe condition to those using reasonable care when going upon it.”

51 Miller v McKeon was, of course, decided at a time – 1905 – when a distinction was drawn between misfeasance and non-feasance and at a time prior to apportionment of responsibility for contributory negligence. Given those facts, it is significant that the joint judgment in Brodie picked up and applied the statements referred to above. On the other hand, they did so subject, in effect, to the qualification identified in Smith v BHP, in the judgment of Taylor J (at p 343), that the relevant test with respect to the duty of an employer “involves a simple inquiry concerning just what precautions or safeguards the exercise of reasonable care requires and that, in making such an inquiry, the consequence of inadvertence or thoughtlessness is a variable factor which should be taken into account”. That such considerations are to be applied also in relation to use of public roads is unsurprising.

52 There are comments to similar effect in the judgment of the Court in Thompson v Woolworths (Q’land) Pty Ltd (2005) 221 CLR 234 especially at [35] and [36], where the Court stated:

53 As appears from the separate judgments of Sheller, Hodgson and Bryson JJA in Sutherland Shire Council v Henshaw [2004] NSWCA 386, counsel appear to be exceptionally imaginative in seeking to derive from various passages, particularly in the joint judgment in Brodie, indications of departure from well-established and common-sense principles of broad application in relation to the law of negligence. Obvious factual distinctions between different modes of transport and passage are sought to be elevated into separate legal categories. Such distractions should be ignored.

54 The issue relevant for present purposes was said to be whether the statements identified above require departure from the principles applied in March v E & MH Stramare Pty Ltd (1991) 171 CLR 506. As explained by Deane J at 520, the duty of a road user who parked his truck, albeit with lights on, so as to obstruct part of a roadway, was “not confined to persons who were careful and sober but extended to all foreseeable users of the road, including bad and inattentive drivers and those whose faculties were impaired either naturally or by reason of the effect of alcohol”. However, that statement is not addressed to the present problem. As noted by Mason CJ (with whom Toohey and Gaudron JJ agreed) (at p 519):

“The second respondent’s wrongful act in parking the truck in the middle of the road created a situation of danger, the risk being that a careless driver would act in the way that the appellant acted.”

55 If, in the present case, the trial judge settled the standard of care to be exercised by the Council as that necessary to give effective warning to a driver whose reaction time was substantially impaired by alcohol and who was driving at excessive speed, such an approach might well give rise to appellable error. However, there are matters of degree to be taken into account in those circumstances. After referring to Sutherland Shire Council v Henshaw at [62]-[63] (Bryson JA), his Honour stated at [119]:

“In fulfilling that duty [the Council] also had to take into account the possibility that as a motorist the plaintiff might be inattentive, might be driving too fast in the circumstances and that his faculties might be impaired, at least to the extent that his reactions were slowed.”

“Here it was foreseeable that the configuration of the road works, together with the absence of adequate signs and markings, would create a foreseeable risk of harm to road users exercising reasonable care. The risk was greater, and therefore more likely to occur, in the case of an inattentive driver, a driver travelling at more than 60km/h or a driver whose faculties were impaired for whatever reason.”

56 So long as the reference to impairment of faculties is treated as qualified in a similar manner to the statement set out above, the approach identified in the first sentence does not demonstrate error. The reference to “greater risk” in the second sentence is ambiguous.

57 One further matter must be taken into account: his Honour approached the question concerning the Council’s duty on the basis adopted by this Court in Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 at [25]-[26] (Hodgson JA, Mason P and McColl JA agreeing). To the extent that his Honour was there adopting the principle that a road authority was under a non-delegable duty to road users, in relation to the exercise of reasonable care in undertaking road works, he was adopting an approach which was rejected by the High Court on appeal in Leichhardt Municipal Council v Montgomery [2007] HCA 6; (2007) 81 ALJR 686. However that reliance did not affect his Honour’s formulation of the standard of care to be applied to the conduct of the Council in the present case. Nor, indeed, was the outcome in this case affected by Montgomery in this Court, or in the High Court. In fact, having found that there was a failure to take reasonable care with respect to the necessary signs, his Honour expressly found that the risk ought to have been known to the Council’s representative, Mr Marsh. Accordingly no question of liability for the acts or omissions of the independent contractor, nor any question of non-delegable duty, arose: see further at [98]-[101] below.

Duty, breach and causation: evidence and findings at trial

58 In order to answers the questions identified at [47] above, it is appropriate to give some further explanation of the circumstances surrounding the accident.

59 The plaintiff’s wife gave evidence that she and the plaintiff had had an argument on the evening of the previous day, as a result of which she had not gone with the plaintiff to the dinner which was to take place in Surry Hills, but he had gone alone.

60 One of those who did attend the dinner, David Charles Peach, gave evidence of his recollections of the evening in question. Mr Peach gave evidence that he and his wife and Mr Stuart Spence (and, it would seem, Mr Spence’s wife, Ms Belinda Quinn) met the plaintiff at a pub in Paddington at about 7.30 or 8pm: Tcpt, p 476. He did not recall anyone else being in their group: Tcpt, p 477. All members of the group were drinking alcohol, and he thought the plaintiff was drinking bourbon and coke: Tcpt, p 478. Mr Spence (and presumably Ms Quinn) left the pub first, followed by Mr Peach and his wife. Mr Peach thought the time of their departure was between 10 and 10.30pm. He had no knowledge of what the plaintiff did thereafter.

61 The only other evidence as to the whereabouts of the plaintiff prior to the accident was to be found in a file note prepared by a social worker at Royal North Shore Hospital, Ms Anthea Harker. Ms Harker appears to have spoken with the plaintiff’s wife at approximately 5.10am on the day of the accident. Her note recorded in part:

“Mrs Binks talked at length about events leading up to accident – pt [patient] had gone out with 2 friends to Luna Park and was on his way home on his own when mva [motor vehicle accident] occurred.”

62 The result of this limited material is that no finding could be made (nor was made) as to what the plaintiff was doing between approximately 10.30pm and the time of the accident, nor as to when he last consumed alcohol. Pharmacological evidence indicated that a blood alcohol concentration will drop in what was described as “the elimination phase”, which is normally attained about 20-30 minutes after drinking finishes. The blood alcohol concentration tends to decline at a constant rate of approximately 0.015g/ 100ml/hour. Given that the accident occurred at 12.55am, and the blood alcohol reading was taken at 1.45am, it is difficult to see that the actual blood alcohol reading would have been higher than the blood alcohol concentration at the time of the accident.

63 The other relevant consideration arising from the history of events prior to the accident concerns the route being taken by the plaintiff when the accident occurred. On the assumption that he was at the time driving home from Paddington, he would have crossed the Harbour Bridge going north and swung off the Bradfield Highway to the west at Milsons Point, so as to circle under the Bridge and head north again on its east side, in order to reach Neutral Bay. That route would have taken him south down Alfred Street and required him to make a left turn into Fitzroy Street, just short of Luna Park. As it was not in dispute that he was travelling south down Alfred Street, the probable inference is that he intended to turn left into Fitzroy Street.

64 There were two other routes available to him, coming off the Bradfield Highway, which would have allowed him to reach his home in Neutral Bay. He said that Alfred Street was not the route which he normally used, but when asked why he might have used it on that occasion that he thought “it was the quickest”: Tcpt, p 182.

65 His Honour accepted evidence (Tcpt, pp 196 and 304-305) that he was “unaware of any road works at the intersection of Alfred Street and Fitzroy Street” prior to the night of the accident: at [74]. There is no challenge to that finding.

66 After turning off the Bradfield Highway, the plaintiff must have travelled some 400 metres south along Alfred Street, before coming near to the point at which Fitzroy Street enters from the east, forming a T-intersection. It was at that intersection that the Council was constructing a roundabout, with ‘Give Way’ signs governing traffic entering the roundabout and thin “splitter” islands on each of the three roads converging at the roundabout which narrowed the carriageway, so as to permit one vehicle at a time to enter the roundabout from each street. The areas subject of the works were, on the night in question, surrounded by “mesh” coloured red with a broad white stripe in the middle of the mesh. The mesh was attached to star pickets driven into the carriageway. Facing traffic coming south down Alfred Street, the mesh came to a point approximately 20 metres north of the roundabout. There were three flashing lights above the mesh.

67 There was no complaint that the mesh was not visible. In substance, the complaint was that warnings were given too late and that the signage (or lack of appropriate signage) was confusing and in particular that a driver approaching the construction work, travelling south down Alfred Street, might think that the southbound lane was blocked at the intersection with Fitzroy Street. That confusion was not alleviated by the fact that, some 25 metres before the northern alignment of Fitzroy Street, there was a sign across the parking lane which read “Changed Traffic Conditions Ahead” and that 8 metres north of that sign (at 33 metres from Fitzroy Street) was a roundabout sign.

68 Although the mesh achieved a narrowing of the southbound lane, how it gave rise to the mistaken impression that the southbound lane was closed is not entirely clear. Unfortunately, the photographs which were taken after the accident do not clearly show the view of a driver approaching the roundabout, with respect to the left-hand side of the works. However, it may be that there was further mesh at the roundabout, or on the splitter island in Fitzroy Street which, at a quick glance, may have indicated that a left turn from the southbound lane was not possible.

69 Apart from the photographs, his Honour had evidence from consulting engineers with experience in road safety issues and the analysis of motor vehicle accidents. He also had evidence from three witnesses who lived or worked in the area in 1995 who had themselves driven through the intersection at the time the construction of the roundabout was being undertaken.

70 The view of the consulting engineers called for the plaintiff was that the warning devices and signs failed to give clear guidance as to the route to be taken by southbound traffic. The only clear indication was provided by a thin board at the northern-most point of the mesh around the splitter island which read “Keep Left” in letters arranged vertically. At a distance, and at night, that sign was no doubt difficult to read. The evidence of the experts was expressed in somewhat tendentious terms, without any clear indication of what expertise was required to come to the conclusions presented, most of which could be accepted as a matter of common sense.

71 Of the three witnesses who had navigated the road works in 1995, each said that they had obtained the impression that the southbound lane of Alfred Street was blocked. One actually stated that he drove through the intersection on the incorrect side of the road. Although aspects of this evidence might properly have been approached with some scepticism, his Honour concluded at [110]:

“It seems that for the first few days after work was commenced on the central island of the roundabout, the road works were so configured that they were capable of giving the impression to drivers travelling South in Alfred Street that the southbound lane was blocked at the intersection. The signage in place at the time does not seem to have altered that impression for those drivers who gave evidence.”

72 This finding, restated at [130], was expressly challenged by the Appellant. The Appellant identified particular deficiencies in the evidence of the three lay witnesses and, it was contended, that the trial judge gave undue weight to a photograph taken the following day facing south down Alfred Street from a position approximately 50 metres before the intersection. The evidence of the experts might also properly have been treated with some scepticism. However, his Honour also stated that he placed weight upon his inspection of the site, when taken on a “view”. Precisely what impression was obtained from a view of the site which had changed in significant respects from the time of the accident, was not explained. However, no doubt deference should be accorded to the statement that the trial judge obtained assistance from it: see Evidence Act 1995 (NSW), s 54 and Pledge v Roads and Traffic Authority [2004] HCA 13; (2004) 78 ALJR 572 at [35] (Callinan and Heydon JJ). Taking the whole of the evidence into account, as his Honour clearly did, there is no error demonstrated in the conclusion reached by his Honour at [110], set out above.

73 Once it was accepted that the configuration of the intersection during the construction work was confusing, at least for a driver heading south down Alfred Street, it was but a short step to accept that some further signage was reasonably required and that those undertaking the construction work should reasonably have provided such signage in exercise of their duty of care to road users.

74 His Honour drew each of those inferences; at [128] his Honour concluded:

“Given the nature of the works and the fact that they would substantially encroach onto the southbound lane in Alfred Street, the signage and other indicia were inadequate to sufficiently place motorists on notice that there would be a significant lateral movement to the East. The vertical ‘keep left’ sign was patently inadequate. The only other sign which indicated that anything unusual was occurring (leaving aside the conventional roundabout signs which would not have had that effect) was the ‘changed traffic conditions ahead’ sign which was not only too close, but failed to provide sufficient information. Both signs failed to comply with the Standard.”

75 At [131] his Honour stated:

“There was no indication such as LSMs [lateral shift markers] that the southbound lane remained open and that a southbound driver should expect to move laterally to the East. This was not a situation where the evidence established only that more could have been done. The combination of the configuration of the road works with the inadequate signage created a confusing and ambiguous situation. In a dynamic circumstance involving drivers travelling at night at speeds of 60km/h or more, such ambiguity and confusion became a source of danger. More signs, better positioned and containing more information such [as] LSMs were required to reduce this danger.”

76 These conclusions, which were central to the finding of negligence on the part of the Council, were somewhat imprecise as to what was required. The reference to the “Standard” was a reference to the Australian Standard 1742.3 – 1985, published by the Standards Association of Australia, relating to traffic control devices for works on roads. By reference to the relevant aspect of the Standard, a “lateral shift marker” might have been understood to include a black board 600mm square with a reflecting yellow chevron pointing in the direction to which traffic was required to shift. Accepting that the splitter island involved a confined area, one or more single chevrons of that size might have been treated as relevant to the circumstances. Three such arrows were proposed by Mr Morrison, a consulting engineer called by the plaintiff. In addition, Mr Morrison proposed two signs, the first to be located approximately 165 metres before the intersection, reading “Roadwork Ahead” and a second, possibly 85 metres before the intersection, reading “New Roundabout Ahead”. The sign “Roadwork Ahead” may be thought not to provide any greater information than the sign in fact used, which read “Changed Traffic Conditions Ahead”. However, instead of being 25 metres short of the intersection, the proposal was to place it 165 or even 200 metres before the intersection. Secondly, the identification of the actual road works, namely a new roundabout, some 85 metres before the intersection, could be seen to have a greater impact than a standard roundabout sign on a single post beside the road, some 35 metres before the intersection. Finally, the chevrons could be seen as saying no more than the “Keep Left” sign that was used, but they would have been more clearly visible at a distance and certainly more visible at night. As his Honour noted, the “Keep Left” sign at the north end of the mesh around the new splitter island was off-set to the east of the centre line approximately 500mm: at [83]. Accordingly, there would have been no difficulty in fixing a 600mm wide chevron at the northern point of the splitter island and perhaps a second, closer to the roundabout.

77 Against this approach it might be argued that the Standard envisaged the use of lateral shift markers on carriageways where drivers are required to move out of a lane and particularly on wide open roads or highways. Alfred Street was a reasonably narrow suburban street, allowed, with parking, only one lane of traffic in each direction and, prior to Fitzroy Street, extended for little more than 500 metres to the north. The road works themselves were readily visible and the signage warned of changed conditions. There was no suggestion that a lane was closed or that it was necessary to detour, let alone cross to the wrong side of the road. Absent a clear indication that such was the case, a reasonable driver would not assume a lane was blocked or take the step of crossing to the wrong side of the road. Further, unnecessary signage is apt to create, rather than lessen, confusion: saying that the driver could proceed in the lane in which he or she was travelling would generally be unnecessary and inappropriate.

78 These arguments, however, lose some weight in circumstances where the configuration of an intersection creates potential confusion. In such circumstances, different or additional signage may be necessary to warn the driver of precisely what is being approached and which direction should be taken.

79 In the circumstances, the steps which his Honour treated as appropriate and necessary in the exercise of reasonable care for the safety of road users should be understood to include those identified above. They should also be understood as reasonably necessary to resolve confusion in the mind of a driver taking reasonable care. So understood, there is no error demonstrated in his Honour’s conclusion that it was negligent on the part of those constructing the roundabout and splitter island not to use such signs and chevrons, placed as indicated.

Causation

80 The question of the causative link between the negligence of the Council and the injury suffered by the plaintiff gives rise to far greater difficulties. They are, in effect, twofold. First, whilst there was evidence which the trial judge was entitled to accept that the placement of the coloured mesh and the warning lights was capable of causing confusion as to whether the southbound lane remained open and allowed a left turn into Fitzroy Street, there was no direct evidence that the plaintiff suffered any such confusion. His Honour accepted that the roundabout had been operating for some three days before the accident: at [73]. The Council’s traffic committee estimated in October 1994 that, with the imminent reopening of Luna Park, peak-hour evening traffic flow south down Alfred Street would include some 820 vehicles per hour, of which 710 vehicles were expected to turn into Fitzroy Street. What the actual figures were in July 1995 is not known, but it can be inferred that, on a daily basis, many hundreds of vehicles negotiated the intersection without misadventure. No doubt that fact may not truly reflect the possibilities for confusion, which may be greater at times of minimal traffic flow, when one driver does not have the example of a driver in front to indicate that the southbound lane was open. On the other hand, there was no indication as to the existence or absence of traffic when the plaintiff lost control of his vehicle.

81 The second difficulty is that there was no direct evidence as to what manoeuvre the plaintiff was undertaking when he lost control of the vehicle. Although there was evidence that three drivers had been confused by the configuration, and that one of them had actually gone around the roundabout on the right-hand side of the road, none suggested that they had been in imminent danger of crashing their vehicles. The only evidence which could support the view that the plaintiff intended to go around the roundabout on the right-hand side, were the tyre marks crossing diagonally from the left to the right-hand side of the road and the collision with the wall of a building and the telegraph pole where his vehicle left the road and mounted the pavement. The trial judge was not able to determine whether the tyre marks were caused by heavy breaking or by “yawing” resulting, in effect, from the wheels sliding at an angle across the carriageway.

Reasoning of trial judge: causation

82 The question of causation was addressed by the trial judge by reference to several inferences, at [134]-[135]. Having agreed that the evidence as to causation was “sparse” his Honour continued:

“The existence of the skid mark heading towards the West, together with the final resting place of the vehicle does, it seems to me, enable an inference to be drawn that there was some confusion in the plaintiff’s mind as to the correct route through the intersection and that at some point in the decision-making process he had intended to travel to the west on the incorrect side of the road.”

83 His Honour then explained at [135]:

“The Council further submitted that because of the range of speeds calculated by the experts at which the plaintiff was travelling at the point when the skid commenced, he would not have been able to safely negotiate the corner in any event and probably would have crashed. There is an element of circularity in that submission. The inadequacy of the signage and absence of LSMs and other indicia as to the nature of the road works may well have accounted for the plaintiff’s speed at that point in time.”

84 Having sought assistance from counsel in the course of the hearing, expressly in relation to the “element of circularity” and how the breach of duty may have “accounted for” the plaintiff’s speed, those matters remain obscure. His assumed intention to turn left should have led him to slow down more than 25 metres before the intersection. The likely response to the visible road works should reasonably have involved additional caution. That passage does not, in my view, provide any additional support to the conclusion reached in the previous passage.

85 At [137] the trial judge turned to the possible effect of appropriate signage. He stated:

“Even though the plaintiff’s faculties were adversely affected by alcohol at the time of this accident, there is no evidence to suggest that he was not endeavouring to keep a proper lookout as best his intoxicated state would allow.”

86 His Honour continued:

“He had apparently safely driven from Paddington on the night of the accident.”

87 His Honour continued:

“The evidence as to the plaintiff’s driving before the accident did not suggest that he was a reckless driver or that he ignored road traffic signs.”

88 His Honour continued:

“The range of speeds estimated by the experts at which the plaintiff was likely to have been travelling before his vehicle began to slow, although in excess of the speed limit, was not so high as to indicate a driver who would not pay attention to clear and obvious road signs.”

89 Finally, his Honour identified, as an important consideration, the fact that the risk which was created by the road works, that is, of a driver becoming confused, was “the very risk which appears to have eventuated judging from the direction of the skid mark and the final position of the car”: at [138]. In support of that approach as legitimate, on the issue of causation, his Honour referred to a passage in the judgment of Dixon J in Betts v Whittingslowe (1945) 71 CLR 637 at 649, referred to with approval by Gaudron J in Chappel v Hart (1998) 195 CLR 232 at [8].

Legal principles regarding causation

90 The application of the principle derived from Betts requires further consideration. However, it may readily be seen that there is a risk of circularity in determining that the breach materially contributed to the accident because the accident which occurred was “of the kind” to which the breach of duty might give rise. If the “kind” of accident is defined at a sufficient level of generality, the requirement of a causal connection will, in a practical sense, become irrelevant. There is no doubt that the plaintiff’s vehicle veered diagonally across the right-hand lane. The question is why it did so. However, if the breach of duty were only one of a number of plausible explanations, it is necessary to ask whether the law requires that it be more probable than not that it contributed to the accident, or whether it is sufficient that it is an available explanation. As noted by Mason P in Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 at 316G:

“The law does not equate the situation where the defendant had materially increased the risk of injury with one where he had materially contributed to the injury.”

91 This case bears some similarity to the situation identified by Brennan J in John Pfeiffer Pty Ltd v Canny (1981) 148 CLR 218 at 242. There a 16-year-old worker (Mr Alhovirta) had been allowed to use a Ramset gun to shoot bolts through timber and metal trusses on a construction site. He was below the minimum statutory age to use the gun and was untrained. In the course of one firing, the bolt apparently travelled through the timber and the steel truss and hit a fellow worker in the head. The injured person was ultimately successful against his employer, for breach of statutory duty. However, Brennan J considered liability under the general law where the evidence as to precisely what had happened was sparse, in the following terms at pp 241-242:

“His duty of care is a thing written on the wind unless damage is caused by the breach of that duty; there is no actionable negligence unless duty, breach and consequential damage coincide …. For the purposes of determining liability in a given case, each element can be defined only in terms of the others. Thus, in the present case, the [injured worker] could establish a relevant breach of the [employer’s] duty under the general law only by showing that [his] injury is to be attributed to Alhovirta’s incompetence or untrustworthiness in using a Ramset gun, for it was not unlikely that his incompetence or untrustworthiness would cause injury if he used the gun, and that was the risk against which it was the [employer’s] duty to guard. But the learned trial judge’s inability to determine how Alhovirta’s conduct occasioned the [injured worker’s] injuries precluded his finding that those injuries were caused by any incompetence or untrustworthiness on Alhovirta’s part and thus precluded his finding that the [employer] was in breach of its duty under the general law in its allowing Alhovirta to use the Ramset gun.”

92 Brennan J also noted that where the law imposed a specific statutory duty, not to allow an unqualified operator to use a Ramset gun, that duty required, not the taking of reasonable care to guard against the risk of careless or improper use, but the obligation not to run the risk at all. In such circumstances, the breach of duty together with materialisation of the risk might be sufficient to establish liability. That approach accorded with the approach adopted by Dixon J in Betts v Whittingslowe (1945) 71 CLR 637 at 648-649, where Dixon J adopted a similar approach to the absolute duty imposed by a statute. In such a case, it was sufficient that “the breach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach of statutory duty”. However, as is clear from the preceding passages in his Honour’s judgment a clear distinction was being drawn between negligence, where mere speculation as to the cause of the injury might prevent recovery, and a claim for breach of statutory duty.

120 The second matter concerned the medication which the plaintiff was taking at the time of the trial. His Honour noted that this involved “a substantial cocktail of medication on a daily basis”: at [158]. He gave evidence that he took Doloxene and Codeine for pain, presumed to be his headaches and neck pain, five times a day. He also took Acimax for a stomach problem which his Honour noted was not identified and Effexor for depression: at [185]. His Honour was of the view that the medication caused “some slurring of his words and appeared to slightly affect his mental acuity” in giving evidence. There was a real question as to whether the need for anti-depressants was attributable to the accident, there being a medical history of acute anxiety or panic attacks from January 1990 at least until October 1991. His Honour referred to Dr Wright’s ascription of the need for anti-depressants to the accident, but noted that that opinion needed to be “qualified” as a result of an incorrect history of the plaintiff’s pre-accident health: at [161]. Further, he noted Dr Wright’s concern that the plaintiff continued to take nine 25mg capsules of Zanax on a daily basis as treatment for anxiety, noting that “taking that quantity of Zanax would produce memory problems and could produce an hypnotic effect on the plaintiff”: at [162]. His Honour did not return to the question of anxiety as a psychological state attributable to the accident and it must be assumed that he rejected Dr Wright’s opinion in that respect. He also stated at [163]:

“I am of the opinion that to a large extent the plaintiff is self-medicating in relation to his headaches and that he is seeking treatment only from doctors who are prepared to prescribe the medication which he asks for.”

121 The effect of the medication was of some importance in assessing the effects of the accident in so far as his Honour sought to judge these matters from his appearance in the witness box. At [156] he noted:

“Although he is able to walk and even run, he does have a high level balance loss which can lead to him losing his balance unless he is careful. There is a small degree of facial asymmetry on the left side. I am not persuaded that his occasional slurring of speech is due to brain damage. I believe it is due to the substantial quantities of medication which he has been taking.”

122 His Honour also expressed the opinion that “the plaintiff was quite prepared to tailor his evidence to suit his case on occasions”: at [169]. He rejected the submission that he deliberately exaggerated his disability under psychological testing although he accepted that fluctuations in the scores required explanation. He stated at [170]:

“In this case the explanation is readily available in the plaintiff’s emotional problems and his ingestion of powerful medication.”

123 Against this background, his Honour sought to assess possible changes as a result of the accident in three respects, namely:

(a) loss of intellectual capacity including memory;

(b) loss of creative capacity, and

124 The evidence largely fell within three categories. The first was the objective evidence of his work capacity with “New Generation Entertainment” and a book which he had been writing since the accident, two drafts of which were tendered in evidence. Secondly, there were the psychological assessments and, thirdly, his own evidence, as assessed by the trial judge. So far as his work for 16 months with “Next Generation Entertainment” was concerned, the material set out above does not suggest any loss of intellectual capacity attributable to the accident.

125 The book was approximately 35,000 words in length and was described by his Honour as “very discursive” and as focusing on the accident and its sequelae: at [56]. His Honour continued at [57]:

“A striking feature of the document is the plaintiff’s ability to analyse accurately quite complex philosophical concepts and apply them appropriately. While one may not agree with the conclusions or the particular thesis being put forward by the plaintiff, there is no doubt that intellectually he is of above average intelligence despite the accident.”

126 His Honour continued at [58]:

“The other impression I gained from the book was that many of the plaintiff’s thought processes are unusual and he sees much of the world around him in black and white terms, without much room for compromise. This rigidity of thought and some obsessional features I believe to be a product of the accident.”

127 The trial judge undoubtedly had a large volume of material which might have provided a basis for assessing the effect of the accident on the plaintiff, including his observations of the plaintiff in the witness box. Accepting his Honour’s description of the book, there is no explanation of why the particular qualities identified were thought to flow from the accident, nor does a perusal of the written material assist. If variations in psychological testing could be attributed in part to the ingestion of powerful medication, one might wish to have some professional basis for excluding the effects of the medication from an assessment of the writing.

128 His Honour concluded that the plaintiff “does have genuine memory problems, but I have had difficulty in assessing their extent” at [171]. He noted the plaintiff’s evidence that he could “read a book and recollect its contents” and could “remember some things and not others”. He further noted:

“It is usual when dealing with memory loss as a result of brain damage for the deficit to be consistent and more clear-cut. Both Professor Jones, a rehabilitation specialist, and Dr Somerville, a neurologist, conducted short form memory tests of the plaintiff in 1998 and neither reported any memory deficit. Quite obviously those tests are not as extensive as the psychological test as to memory, but they are designed to reveal gross memory dysfunction if it existed.”

129 His Honour noted that the degree of memory loss identified by Mr Blows and Dr Golus, in their psychological testing, (discussed below) coincided with a time when he was ingesting high quantities of Zanax. As noted above, Dr Wright had stated that Zanax, in such quantities, “would produce memory problems and could produce an hypnotic effect”: at [162] and [172]. Nevertheless, his Honour was satisfied that the plaintiff “does suffer genuine memory problems as a result of his brain injury”. The loss was taken into account in assessing general damages, but apparently not in assessing economic loss. Its effect on the outcome is unclear.

130 It is, however, the next passage in the judgment to which the Appellant took particular exception as being unfounded in the medical or psychological evidence and as disregarding entirely the possible consequences of medication.

“173 As a result of my observation of the plaintiff over a considerable period of time in the witness box, and as a result of my perusal of parts of his book, I am also of the opinion that his rigid mode of thinking, perseveration and obsessional traits are part of the personality change brought about by his brain damage. His long and discursive answers to many questions in which the plaintiff appeared to lose the thread of his response, I also attribute to his brain damage. This is indicative of the reduction in organisational skills, which the psychological tests revealed.”

131 The psychological evidence called for the plaintiff fell into two categories. First, there was material obtained shortly before his discharge from Ryde Rehabilitation Centre in August 1995 and a review undertaken in August 1996 and April 1997. There was also a report prepared in April 1997 for the Commonwealth Rehabilitation Service which his Honour set out in some detail: see generally at [38]-[44]. His Honour appears to have accepted this material as objective and accurate.

132 The second group of materials were reports obtained for the plaintiff for the purposes of the litigation. These included a report from Mr Mark Blows, psychologist, dated 11 July 1997, a report from Dr Stephen Buckley, a rehabilitation physician, dated 3 May 1999 and a report from Dr Peter Golus, a forensic psychologist, dated 14 May 1999. These reports came to a similar conclusion. Thus, Mr Blows opined (p 7):

“Rehabilitation is not feasible. There is no cure for the cognitive disabilities. … Whatever is done for him and whatever he may do for himself, the quality of his life and his capacity to earn an income have been severely and irreversibly curtailed.”

“Given his disabilities it is difficult to think of any feasible alternative employment. Alternative employment that uses his verbal intelligence would require retraining which is not feasible with the memory loss. It would be difficult to envisage him taking, for example, the role of a shop assistant … or of clerk with a partially immobilised dominant hand and memory loss.”

133 Doctor Golus, who spent 12 hours assessing the plaintiff concluded that he had no deficit in his ability spontaneously to compose music: report, p 31. However, he thought the plaintiff “would find it difficult to remember pieces of music”. He concluded:

“Any difficulties with regard to being a part of the music industry would arise with the necessary daily and ongoing managerial, decision-making, clerical and organisational skills that are required and that depend on the resource of an operative memory facility. Simply put Mr Binks would find this very difficult.”

134 Doctor Buckley was equally emphatic, if not more so. He recognised the possibility that the plaintiff might be “fortunate enough to fall in with people within the music industry who have his interests at heart and wish to help him” (report, p 7). Otherwise he concluded:

“He may be capable as obtaining work as a shop assistant or in a similar menial light work capacity, but I believe it unlikely that he would hold it down for a long period without an employer who was particularly sympathetic.

Essentially, I believe that Mr Binks is unemployable on the open employment market.”

135 These opinions as to earning capacity must have been of rather limited value to the plaintiff, who applied for and obtained, and held for 16 months, the job with “Next Generation Entertainment” from early June 2000. A further report obtained from Dr Buckley, dated 30 September 2002 noted that he had “obtained a position in the advertising industry”, which he described as “successful employment”, but for “only 18 months”. He reiterated his earlier opinion that the plaintiff “remains essentially unemployable on the open employment market, and is unlikely to work more than 10% of the available years of the rest of his working life”.

136 Mr Blows and Dr Buckley were cross-examined; Dr Golus was not. All that the trial judge said of their evidence was that the genuine memory problems, which he accepted, were “not as extensive as asserted by Mr Blows or by Dr Golus” and did not “have the debilitating effect suggested by Dr Buckley”: at [172].

137 The next aspect of intellectual capacity, relevant to earning capacity, was the plaintiff’s creative ability. His Honour’s finding in that respect, in assessing damages, appeared at [178] in the following terms:

“The plaintiff appears to have lost, at least in part, some creative ability. I draw that inference from the fact that he has not produced any new songs or any music of any significance between the date of the accident and the present time. That was … the opinion of Dr Milton. One does not need to lose much of one’s intellectual ability for that creative spark to be seriously compromised. Nevertheless, he has obviously retained some creative ability or he would not have been able to hold down the job with ‘Next Generation Entertainment’ for sixteen months.”

138 Dr Golus “could not elicit a deficit in Mr Binks’ creative aspects of music, that is the ability to spontaneously compose a piece of music”. Mr Blows was cross-examined in this respect by reference to the plaintiff’s employment with “Next Generation Entertainment”. He agreed that composing music involved “multi-tracking”, which he thought the plaintiff incapable of but ultimately said, “He is not writing a Bach fugue, is he?” (Tcpt, 21/03/06, p 537). Doctor Milton expressed the view that “Mr Binks’ future ability to earn a living is seriously compromised by his injuries”, in a report dated 5 December 1997, but no further elaboration of the kind of work he had in mind, or the likelihood of obtaining employment was identified. (Doctor Milton was not cross-examined.)

139 This invites a question as to what his capacity was before the accident, and whether he was successfully composing publishable songs. His only successful work in 9 years before the accident appears to have been that undertaken in Singapore, which involved music for the advertising industry. At [63] the trial judge noted a different difficulty faced by the plaintiff, in the following terms:

“As of the date of trial, the plaintiff was assisting some new bands in Melbourne in producing their songs. His difficulty in going into business as a producer of songs, the plaintiff explained, was a lack of confidence. Because it was so long since he had done this sort of work, he was concerned that he no longer had the necessary skills.”

140 Finally, the trial judge took account of reduced earning capacity due to changes in his character which were ascribed to the accident. He said:

“165 It is asserted on behalf of the plaintiff that as a result of his brain injury his personality has changed. It was the plaintiff’s evidence that he was a more outgoing, jovial person before the accident. It was his wife’s evidence that he was not as quick witted as before, and that he had entirely lost his sense of humour. She described him as being quieter, very withdrawn and not speaking unless spoken to. She had observed that it was difficult for him to initiate conversation.

166 I certainly found the plaintiff to be somewhat dour in presentation and there was never any suggestion of levity or humour in anything that he said. That appears to contrast with his presentation in the promotional video of 1985 (Exhibit F), which is the only reasonably objective evidence which I have for his pre-accident personality.”

141 The comparison between a promotional video of 2-3 minutes, created whilst he was still with “Australian Crawl”, and his performance in the witness box in court proceedings 20 years later is unsatisfactory. However, the trial judge also accepted the plaintiff’s wife’s evidence of a change in personality. The real question was the extent to which the change in personality affected his earning capacity. In that respect, his Honour held that he would be unlikely to find another job, similar to the work with “Next Generation Entertainment”, if he “had to compete with persons of similar skill and talent with more ebullient personalities”: at [180].

Past economic loss

142 The substance of the Appellant’s complaint in relation to loss of earning capacity, was that the trial judge had taken an overly optimistic assessment of the periods for which the plaintiff might have been expected to work, and the nature of the remunerative work he might have undertaken, absent the injury suffered in the accident. The fact that the plaintiff had been engaged in remunerative work for only two of the nine years preceding the accident, it was said, should have led the Court to discount drastically the likely remaining years of remunerative employment. On the other hand, the diminution in earning capacity was exaggerated, as was demonstrated by the fact that for 16 months post-accident he worked satisfactorily with “Next Generation Entertainment”. His Honour should have accepted, it was contended, that he was still capable of that kind of work, that his failure to obtain regular employment reflected his choices of activity and occupation, and that his high levels of self-medication and his migraines were not causally related to the accident.

143 His Honour noted that, in the five months that he was living in Sydney before the accident, the plaintiff was trying to recreate another successful band: at [186]. However, he rejected “entirely the suggestion that the plaintiff would have been successful in starting up a new band and replicating anything like the success of ‘Australian Crawl’ had he not been injured”: at [191]. Further, he held that the employment with “Next Generation Entertainment” suggested that his migraines had lessened to some extent in the period of four years after the accident. He therefore considered that there would have been “a reasonable prospect of the plaintiff’s headaches resolving sufficiently between July 1995 and the present time to enable him to have worked fulltime in the advertising industry”: at [189]. It would appear from that reasoning that his Honour discounted the pre-accident employment record as an accurate indicator of his earning capacity after the accident: it may, absent the accident, have improved.

144 The next step in the exercise is somewhat unclear. Acknowledging the need for a rough calculation, not capable of precise definition, he assessed that “a difference of $500 net per week over the period [between accident and trial] would be appropriate to represent the plaintiff’s reduction in earning capacity brought about by the accident”: at [192]. That appears to be a calculation based on the rough difference between loss of earnings in the advertising industry and earnings available in a clerical position which his Honour believed the plaintiff “would have had the capacity to fill”: at [192]. He reduced that figure by 50% “to have regard to the plaintiff’s poor employment record and the effect of the plaintiff’s pre-accident headaches and neck pain”: at [193]. He then deducted half of the plaintiff’s actual earnings from “Next Generation Entertainment”, to obtain a figure for past economic loss of $110,375.

145 A critical factor in the assessment of past economic loss must be the willingness and ability of the plaintiff to obtain employment with “Next Generation Entertainment” and his ability to continue that employment successfully until it was terminated in circumstances beyond his control. A realistic approach to his economic loss would be to treat his earning capacity as reflected by that employment, with net earnings of approximately $51,000 per year in 2000-2001. In the absence of other comparable pre-accident earnings, it is difficult to assess a quantifiable diminution in that earning capacity. On the other hand, the plaintiff suffered a degree of permanent brain damage, as noted by the trial judge at [154], which restricted the range of his employment opportunities, with a likely increase in periods of unemployment or of employment at significantly diminished remuneration.

146 A preferable course might have been to accept a significant loss of earning capacity from the accident until June 2000. Following the accident he encountered physical disabilities, including an unsteady gait and a generalised weakness on the right side, particularly affecting the functioning of his right hand: at [37]. However, some of these deficits diminished and did not apparently affect his employment in June 2000. Given his unwillingness to explore options of regular employment which would “not allow him to be free for other projects” it was correct to infer that he would not have been in fulltime employment during that period in any event: at [45]. Nevertheless, an assessed loss of earning capacity reflected in unemployment of between one and two years, during that five year period, would not be unreasonable. That assessment, together with some allowance for reduced earning capacity continuing after October 2001 would not give a figure materially different from that for past economic loss adopted by his Honour.

Future economic loss

147 The plaintiff was 39 years of age at the date of the trial. The trial judge dealt with future loss of earning capacity by taking the diminution of $500 net per week, derived from his earlier assessment in relation to past economic loss, and applying a discount of 30% having regard to pre-existing health problems.

148 The Appellant complained both as to the initial assessment of $500 net per week and as to the approach to pre-existing problems, which resulted only in an additional 15% allowance over the normal 15% reduction for vicissitudes.

149 So far as the pre-existing health problems are concerned, I see no difficulty with the calculation: the employment with “Next Generation Entertainment” provided a firm basis for concluding that, although the headaches had not resolved, and there was a least a risk of continuing self-medication which might result in a degree of incapacity, the plaintiff was nevertheless by June 2000 capable of entering the workplace on the basis of regular employment. However, the matter for which that figure does not make allowance was the element described, in relation to past economic loss, as the plaintiff’s “poor employment record” which was partly a matter of choice: at [193]. As the years passed, the plaintiff might be more inclined to abandon plans to re-establish himself in the music industry and indicate a greater propensity for regular employment. However, his Honour made no specific finding in that respect and based on the evidence which he did accept, the likelihood of further periods of voluntary unemployment did not appear to have reduced to zero by the time of the trial. No precise calculation can be undertaken as to an appropriate discounting factor, but given the usual figure for vicissitudes, it is difficult to identify a basis upon which the discount post-trial should be significantly less than the discount applied to the pre-trial calculation. Furthermore, as already noted, the calculation of loss of earning capacity was in effect a figure of 50% of the post-accident earning capacity demonstrated by the period of employment with “Next Generation Entertainment”. However, that employment was five years after the accident. It provides reliable evidence of post-accident earning capacity, but says nothing about any loss of pre-accident earning capacity.

150 For the reasons already given, it is appropriate to treat the loss of earning capacity as the result of a reduced range of employment opportunities in an uncertain industry. If the allowance made for that factor is a diminution of 20% of earning capacity, that would result in an allowance of about half the figure adopted by the trial judge. On that approach, the reduction of 30% for vicissitudes would seem inappropriately high because it would involve an element of double discounting. In effect there is a cushion being allowed for the likelihood of periods of unemployment which would not have arisen but for the accident. It is convenient (if somewhat artificial) to allow a figure of $250 net per week, subject to a discount of 25% for vicissitudes. The evidence before the trial judge applied a 3% discount factor to the estimated net weekly loss of income, being a multiplier of 678.4. On the assumption that the income loss was $250 per week, the damages should be $169,600.

151 That calculation will require adjustment to the figure for loss of superannuation. Whether a precise calculation is necessary may be doubted: see Zorom Enterprises Pty Ltd v Zabow [2007] NSWCA 106 at [57] and [98]-[101]. It may have been of assistance in this case, where past economic loss was to be calculated in relation to a period at which the employer’s superannuation contribution was less than the current 9% of gross wages. Once one departs from the actual figures relied on by the accountants, variations become necessary which may require further calculation. Because the amount at stake is small, in the absence of assistance from the parties, a rough and ready calculation would reduce the superannuation loss by $9,720, being the same proportion as the reduction in the overall loss of income.

(b) General damages

152 There is no doubt that the plaintiff suffered serious injury in the accident with consequential problems identified in the medical and rehabilitation reports extending over the following two years. It is also apparent that the plaintiff has continuing problems, including a change of personality and some degree of memory loss and disorganisation following from the brain damage suffered in the accident. The complaint made by the Appellant in relation to the figure allowed for general damages was that the trial judge had failed to take into account his own reservations as to the extent of the injuries and change of personality which resulted from the accident, as opposed to pre-existing health problems and continued self-medication, unrelated to the accident.

153 A review of the judgment, read as a whole, indicates that his Honour was conscious of the need to identify aspects of the plaintiff’s condition which were attributable to the accident and those which reflected pre-accident health problems and character. Although there are difficulties (noted above) in relation to aspects of his Honour’s reasons, the challenge did not demonstrate that the figure allowed was outside an appropriate range. I am not persuaded that his Honour disregarded his own express reservations as to the difficulties in reaching conclusions as to the specific consequences of the accident in reaching the figure allowed of $175,000. This complaint falls into a different category from that accepted in relation to economic loss which was, in substance, a failure to take into account post-accident employment as indicating a continuing level of earning capacity.

(c) Domestic assistance

154 The other major item allowed by way of damages was for domestic assistance. According to the notice of appeal, the Appellant sought to challenge the finding in that regard as “excessive”: ground 14. However nothing was put by way of written or oral submissions directed to this head of damages and it need not be further addressed.

(d) Financial management

155 The trial judge allowed an amount of $9,000 for the cost of financial management of the award. The notice of appeal challenged the finding that a need for such management assistance, flowing from the injuries incurred in the accident, had been established: ground 15. His Honour had accepted that there was “no direct evidence that the plaintiff’s ability to manage money had been reduced by the accident”: at [220]. He held, however, that the plaintiff’s “organisational abilities” had been adversely affected and allowed a figure of $9,000. However, no submissions were directed to this ground of appeal either and it need not be considered further.

Conclusions

156 As a majority of the Court is of the view that the Appellant’s appeal with respect to liability should be dismissed, I have addressed the questions arising from the appeal with respect to damages. Each of the grounds of appeal relating to damages should be rejected, except the calculation of future economic loss.

157 The calculation of future economic loss should be reduced to $169,600. This in turn requires an adjustment to the calculation of superannuation. Calculating that reduction at $9,720, will provide a total amount of damages, prior to allowances for contributory negligence, of $845,000. Contributory negligence was determined at 65%, so that the final figure must be 35% of that amount together with $9,000 financial management costs. The calculation produces $304,750. There should be a judgment for the plaintiff in that amount.

158 On this approach in relation to liability, the Appellant has been successful only in respect of one item of loss. The resultant variation in the judgment for the plaintiff is a reduction of less than 10%. Given the slight time taken at the hearing of the appeal in relation to this matter, the Respondent may be seen to have succeeded in maintaining his judgment in the Court below and there should be no variation of the costs order which would follow in that event.

159 I would propose the following orders on the basis of the majority conclusion with respect to liability:

(1) Allow the appeal in part and set aside the judgment in favour of the plaintiff in the Court below.

(2) In lieu thereof, give judgment for the plaintiff in an amount of $304,750.

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Citations

North Sydney Council v Binks [2007] NSWCA 245

Most Recent Citation

Pearson v Sutherland Shire Council [2010] NSWDC 1

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6

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Evans v Queanbeyan City Council [2011] NSWCA 230

Pollard v Wilson [2010] NSWCA 68

Cases Cited

28

Statutory Material Cited

1

Roads and Traffic Authority of NSW v Dederer [2007] HCA 42

Smith v Broken Hill Pty Ltd [1957] HCA 34

Cited Sections

Reported Decision:	(2007) Aust Torts Reports 81-911
Appeal Outcome:	Special leave refused with costs by the High Court - 18 April 2008

CITATION:	NORTH SYDNEY COUNCIL v BINKS [2007] NSWCA 245
HEARING DATE(S):	24 April 2007
JUDGMENT DATE:	18 September 2007
JUDGMENT OF:	Beazley JA at 1; Santow JA at 2; Basten JA at 41
DECISION:	(1) Allow the appeal in part and set aside the judgment in favour of the plaintiff in the Court below. (2) In lieu thereof, give judgment for the plaintiff in an amount of $304,750.(3) Order the Appellant to pay the Respondent’s costs of the appeal.

CATCHWORDS:	TORTS – negligence – duty of care of road authority to motorist – motorist affected by alcohol – confusing nature of road works and signs TORTS – negligence – causation – contributory negligence – motorist affected by alcohol
LEGISLATION CITED:	Evidence Act 1995 (NSW), s 54
CASES CITED:	Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 Bennett v Minister of Community Welfare (1992) 176 CLR 408 Betts v Whittingslowe (1945) 71 CLR 637 Brodie v Singleton Shire Council (2001) 206 CLR 512 Chappel v Hart (1998) 195 CLR 232 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 Elbourne v Gibbs [2006] NSWCA 127 Fox v Percy (2003) 214 CLR 118 John Pfeiffer Pty Ltd v Canny (1981) 148 CLR 218 Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 Leichhardt Municipal Council v Montgomery [2007] HCA 6; (2007) 81 ALJR 686 Luxton v Vines (1952) 85 CLR 352 March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 McGhee v National Coal Board [1973] 1 WLR 1 Miller v McKeon (1905) 3 CLR 50 Naxakis v Western General Hospital (1999) 197 CLR 269 Pledge v Roads and Traffic Authority [2004] HCA 13; (2004) 78 ALJR 572 Roads and Traffic Authority v Dederer [2007] HCA 42 Smith v Broken Hill Pty Co Ltd (1957) 97 CLR 337 Sutherland Shire Council v Henshaw [2004] NSWCA 386 Thompson v Woolworths (Q’land) Pty Ltd (2005) 221 CLR 234 Van Den Heuvel v Tucker (2003) 85 SASR 512 Zorom Enterprises Pty Ltd v Zabow [2007] NSWCA 106
PARTIES:	North Sydney Council – Appellant Simon John Binks - Respondent
FILE NUMBER(S):	CA 40373/06
COUNSEL:	M. Joseph SC/N. Polin – Appellant B. Gross QC/R. Royle - Respondent
SOLICITORS:	Phillips Fox – Appellant Levitt Robinson - Respondent

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC 21088/1996
LOWER COURT JUDICIAL OFFICER:	Hoeben J
LOWER COURT DATE OF DECISION:	25 May 2006
LOWER COURT MEDIUM NEUTRAL CITATION:	Binks v North Sydney Council [2006] NSWSC 463