O'Connell v Witham; TAC v Inroads Pty Ltd
[2021] VSC 8
•22 January 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S CI 2018 01986
| DEAN O’CONNELL | Plaintiff |
| v | |
| SIMON WITHAM | Defendant |
| and | |
| INROADS PTY LTD | Third Party |
| and | |
| S ECI 2019 03436 | |
| TRANSPORT ACCIDENT COMMISSION | Plaintiff |
| v | |
| INROADS PTY LTD | Defendant |
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JUDGE: | MACAULAY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24-28 August 2020 |
DATE OF JUDGMENT: | 22 January 2021 |
CASE MAY BE CITED AS: | O’Connell v Witham; TAC v Inroads Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2021] VSC 8 |
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NEGLIGENCE – Motor vehicle collision with pedestrian at an intersection controlled by roadworks contractor – Whether negligent driver entitled to recover contribution from roadworks contractor towards damages agreed to be paid to the injured pedestrian – Wrongs Act 1958 (Vic) s 24.
WORKERS COMPENSATION – Motor vehicle collision with pedestrian at an intersection controlled by roadworks contractor – Pedestrian injured in road traffic accident in the course of his employment – Compensation paid to injured employee under Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) − Transport Accident Commission liable to make payments to the Victorian WorkCover Authority for compensation paid to the injured employee – Transport Accident Commission seeks indemnity from roadworks contractor for its liability to make payments to the Victorian WorkCover Authority pursuant to Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) s 369 − Roadworks contractor alleged contributory negligence on the part of the injured employee – Just and equitable apportionment of liabilities having regard to the extent of each person’s responsibility for the damage.
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APPEARANCES: | Counsel | Solicitors |
| For Mr Witham (the Defendant in S CI 2018 01986) | Mr S Smith QC and Mr P Bourke | Solicitor to the Transport Accident Commission |
| For the Transport Accident Commission (the Plaintiff in | Mr J Batten | Wisewould Mahoney |
| For Inroads Pty Ltd (the Third Party in S CI 2018 01986 and the Defendant in S ECI 2019 03436) | Mr D McWilliams | Sparke Helmore Lawyers |
TABLE OF CONTENTS
Introduction........................................................................................................................................ 1
Two proceedings........................................................................................................................... 1
Competing versions of events..................................................................................................... 3
Issues............................................................................................................................................... 4
Legal principles.................................................................................................................................. 4
Mr Witham’s third-party claim against Inroads...................................................................... 4
TAC’s recovery proceeding against Inroads............................................................................. 5
What happened?................................................................................................................................. 6
Mr O’Connell’s version of events............................................................................................... 7
Mr Witham’s version of events................................................................................................... 8
Inroads’ version of events.......................................................................................................... 11
Police attendance......................................................................................................................... 14
Findings of fact................................................................................................................................. 15
Did any negligence on the part of Inroads contribute to the collision?................................ 21
What was the extent of responsibility (if any) of the three parties?...................................... 23
Conclusion......................................................................................................................................... 25
HIS HONOUR:
Introduction
On the morning of 11 December 2014, Dean O’Connell, a pedestrian, was struck by a truck driven by Simon Witham at an intersection in Apollo Bay, Victoria. Mr O’Connell suffered spinal injuries and other consequential dysfunction. He sued Mr Witham in negligence for his injuries. Mr Witham alleged contributory negligence on Mr O’Connell’s part and also joined Inroads Pty Ltd, a road sealing contractor, as a third party, alleging that its negligence or breach of duty caused or contributed to the collision and Mr O’Connell’s injuries. Mr O’Connell settled his claim against Mr Witham but Mr Witham was not able to resolve his third-party claim against Inroads.
Two proceedings
In part, these reasons for judgment concern the third-party claim between Mr Witham and Inroads (‘the third-party claim’). Between them, the only question that needs to be determined is their respective liabilities for the damages agreed to be paid to Mr O’Connell. To be clear, by the settlement of Mr O’Connell’s claim the quantum of damages to which Mr O’Connell was entitled and Mr O’Connell’s contributory share of responsibility, if any, for occasioning his injuries, was resolved as between Mr Witham and Inroads.
But these reasons for judgment also concern a second proceeding.
At the time he was injured, Mr O’Connell was engaged in the course of his employment with a company, Chook Civil Pty Ltd (‘the employer’). He made a claim for statutory compensation as an employee, under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (‘WIRC Act’). The employer and the Victorian WorkCover Authority (‘the Authority’) made payments of compensation to Mr O’Connell for his injuries under the WIRC Act. The Transport Accident Commission (‘TAC’), being liable to pay the Authority the amounts it paid to Mr O’Connell,[1] is subrogated to the rights of the Authority to pursue a statutory indemnity from any third party who was liable for the injury.[2] The second proceeding with which these reasons are concerned is the proceeding brought by TAC against Inroads to recover that statutory indemnity (‘the recovery proceeding’).
[1]Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (‘WIRC Act’) s 367(1).
[2]WIRC Act s 369(6).
The quantification of that indemnity is calculated in accordance with a formula set out in the WIRC Act.[3] At the commencement of the hearing, only two ingredients needed to be determined: the amount of damages which Inroads would have been liable to pay Mr O’Connell (for both pecuniary and non-pecuniary loss) for having caused or contributed to the injuries (‘factor A’), and the extent, expressed as a percentage, to which Inroad’s negligence caused or contributed to Mr O’Connell’s injuries (‘factor X’). Unlike the parties to the third-party claim, the parties to the recovery proceeding, TAC and Inroads, are not bound by the quantification of damages for Mr O’Connell’s injuries or the assessment of his share of contributory responsibility (if any) for his own injuries that is inherent in the amount paid to Mr O’Connell in settlement of his claim against Mr Witham.
[3]WIRC Act s 369(3).
During the running, however, Inroads and TAC agreed, as between themselves, that Mr O’Connell’s damages, factor A, amounted to $1,000,000. So, the only ingredient remaining to be decided is the degree of liability, factor X, attributable to Inroads for the collision. In its defence to TAC’s claim, Inroads alleges that Mr O’Connell contributed to the occurrence of his own injuries. Because of that allegation, as between TAC and Inroads, it is necessary to determine the relative liabilities (if any) of Mr O’Connell, Mr Witham and Inroads for the occurrence of Mr O’Connell’s injuries.
In summary, in the recovery proceeding, the relative liabilities of all three actors needs to be determined whereas in the third-party claim only the relative liabilities of two of those three needs to be determined. Logically, the determination of the relative liabilities for the recovery proceeding will produce the outcome for the third-party claim. It was agreed between the parties to both proceedings that the question of the relative liabilities of the parties in each proceeding should be determined on the same evidence. In effect, the two proceedings were run concurrently with evidence in one being the evidence in the other. Because the factor A issue in the recovery proceeding was resolved, there was no need for any discrete evidence for that proceeding alone.
Competing versions of events
The collision occurred at the intersection of Nelson Street and Pascoe Street in Apollo Bay. That intersection is governed by a roundabout. Mr Witham’s truck struck Mr O’Connell as he stood in the roundabout. Mr Witham’s truck, which had approached the roundabout from Nelson Street, struck Mr O’Connell somewhere near the right-hand kerb of Nelson Street at about the point where Nelson Street abutted the roundabout. That is, the collision occurred on the ’wrong side’ of Nelson Street for vehicles travelling in the direction that Mr Witham’s truck took.
On the day of the collision, Inroads was engaged as Colac Otway Shire Council’s contractor to perform bituminous resealing works in Nelson Street. It was also responsible for road traffic management around the worksite, including the management and direction of vehicular and pedestrian traffic into and out of the roundabout. Mr Witham, supported by Mr O’Connell (who was a witness only, and no longer a party), claims that at the time of the collision the roadworks were actively in progress. Inroads denies this. Mr Witham claims that the collision occurred at least in part due to the negligence of Inroads because of the directions and instructions it gave, or failed to give, to Mr Witham and Mr O’Connell in the vicinity of the roundabout.
There is a fundamental difference between Mr Witham and Inroads as to what occurred at the roundabout on that morning. For his part, Mr Witham alleges that Inroads had already commenced its work, blocking off the left-hand side of Nelson Street for westbound traffic approaching the roundabout, thereby requiring that traffic to use the ‘wrong side’ of Nelson Street to enter it. Inroads denies that any roadworks had commenced at that time or that there was any impediment to traffic entering the roundabout in the normal fashion on the correct side of Nelson Street. Whereas Mr Witham alleges that the course he took to enter the roundabout was at the direction of Inroads’ traffic management personnel, Inroads denies that any traffic management personnel were actively managing traffic. It says that Mr Witham simply chose the route that he took of his own volition. Inroads contends that the collision occurred because Mr O’Connell and Mr Witham, known to one another, were playing a dangerous game of ‘chicken’ between themselves.
It is fair to say that the versions of events given by Mr Witham, Mr O’Connell and the several employees of Inroads who gave evidence differ in numerous important respects.
Issues
Accordingly, the following questions must be resolved:
(a) Was there any negligence or breach of duty on the part of Inroads that caused or contributed to the happening of the collision?
(b) If yes to (a), for the purpose of the recovery claim, what was the extent of Inroads’ responsibility (if any) for Mr O’Connell’s damages judged as between itself, Mr Witham and Mr O’Connell?
(c) If yes to (a), for the purpose of the third-party claim, what was the extent of Inroads’ responsibility (if any) for Mr O’Connell’s damages judged only as between itself and Mr Witham?
Legal principles
Mr Witham’s third-party claim against Inroads
Mr Witham has claimed contribution from Inroads towards the amount he has agreed to pay to Mr O’Connell, in accordance with the provisions of s 23B of the Wrongs Act 1958 (Vic) (‘Wrongs Act’). There is no dispute that Mr Witham, having compromised the action against him by Mr O’Connell, is entitled to seek contribution from Inroads towards that sum.[4]
[4]Wrongs Act 1958 (Vic) (‘Wrongs Act’) s 23B(4).
Section 24(2) of the Wrongs Act provides that, subject to two sub-sections which are not presently relevant, the amount of contribution recoverable from any person (such as Inroads in the present case) shall be such as may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage.
To repeat, the relative liabilities to be analysed and apportioned in the third-party claim are only those of Mr Witham and Inroads. Although in his defence to the claim brought against him by Mr O’Connell, Mr Witham alleged that Mr O’Connell was himself contributorily negligent in the occurrence of the collision, any responsibility borne by Mr O’Connell for his own injuries is assumed to have been taken into account already in the compromise reached between Mr Witham and Mr O’Connell.
TAC’s recovery proceeding against Inroads
As stated above, the measure of any indemnity which TAC can recover from a third party such as Inroads is, relevantly, the extent, expressed as a percentage, to which that third party’s negligence caused or contributed to the injury.
It was agreed by the parties to the recovery proceeding that, in practical terms, the evaluation of the extent of Inroads’ liability for the purpose of the statutory indemnity under s 369 of the WIRC Act should employ the same tort law principles as apply to the evaluation of the extent of Inroads’ liability for the purpose of Mr Witham’s claim.
With these principles in mind I turn to determining what occurred in this case.
What happened?
It is helpful to first explain the intersection in a little more detail. Appearing below is an aerial photograph of the intersection and surrounding streets, taken two days after the collision.[5]
[5]Exhibit 11.
The photograph is oriented with north to the top. Nelson Street runs through the roundabout (in the mid-lower part of the photograph) in an east-west direction, terminating at the east at the Great Ocean Road. Pascoe Street runs out of the roundabout a little to the west of a generally northerly direction. Cartwright Street runs out of the roundabout in a generally southerly direction. McLaren Parade intersects with Nelson Street on an oblique angle just east of the roundabout. The white-roofed, U-shaped building on the north-east corner of the roundabout is a motel. The building with a brown roof and white stripes to the east of the motel, on the north side of McLaren Parade, is a bottle shop. The grey-roofed building on the south-east corner of the roundabout is a police station.
For convenience, during evidence, the areas within the roundabout were described as if the roundabout was the face of a clock, with 12 to the north, 3 to the east, 6 to the south and 9 to the west.
Mr O’Connell’s version of events
Mr O’Connell, the injured pedestrian, gave evidence of his version of events.
At the time he was the director of the employer. His company had contracted with the Colac Otway Shire Council to construct an asphalt car park situated in Pascoe Street about 50 m to the north of the roundabout. On the day of the collision he had arrived at the car park site at approximately 6:30am. It was to be the last day of the job after approximately three month’s work. The final task was line-marking, but there was also a patch of asphalt that needed to be laid at the junction of the vehicle-crossover and the street.
Mr O’Connell was aware that a road contractor (namely, Inroads) was laying bitumen that day in Nelson Street, east of the roundabout. He decided to ask the contractor if it would do him a favour by patching the asphalt at the crossover.
At approximately 8:00am he walked south down Pascoe Street towards the roundabout. He said he saw a man, a traffic control employee of the road contractor, standing at the intersection between Nelson Street and Pascoe Street. Mr O’Connell said the traffic controller was holding a ‘stop/slow’ sign. He also said there were other traffic controllers stationed around the roundabout at the points where the other carriageways intersected it.
Mr O’Connell said he talked to the traffic controller whilst he, Mr O’Connell, stood on the bitumen within the roundabout itself, about where Pascoe Street entered the roundabout. As Mr O’Connell faced roughly east, the traffic controller was to his right, between him and the middle of the roundabout. He asked the traffic controller where the supervisor was and was told that he had not yet arrived. Mr O’Connell said he just stood there talking to the traffic controller waiting for the supervisor to arrive for, perhaps, about half an hour. The traffic controller then said ‘he’s turned up’, at which point Mr O’Connell saw a utility vehicle pull over in McLaren Parade (visible from the roundabout) on its southern kerb a short distance from where McLaren Parade intersected with Nelson Street.
At about the same time Mr O’Connell also saw a yellow Isuzu truck in McLaren Parade approaching Nelson Street from the east. He knew the truck to belong to Mr Witham. After noticing Mr Witham’s truck he also noticed the bitumen spray truck of the road contractor approaching along Nelson Street from the east. It was spraying bitumen. When he first saw the bitumen spray truck it was about halfway along the section of Nelson Street between the Great Ocean Road and the roundabout.
Mr O’Connell said that he and the traffic controller tried to direct Mr Witham so as not to drive onto the surface of Nelson Street that was being bitumenised. He said they were ‘trying to get him to go across the nature strip’, being a grassy section on the north side of Nelson Street between the mouth of McLaren Parade, where it intersects with Nelson Street, and the roundabout itself.
Mr O’Connell said he did not keep Mr Witham’s truck continuously in view, saying that he was also looking at the supervisor’s vehicle parked in McLaren Parade. Still facing to the east, Mr O’Connell saw the traffic controller suddenly jump away from him, further to his right. At that point Mr O’Connell looked back ahead and saw the yellow truck approaching a few metres from him and only had enough time to think ‘shit, truck’ before he was struck by it. The traffic controller, he said, had given him no warning or direction before the collision.
Mr O’Connell said he was thrown to the ground. He recalls being taken to hospital where he remained for three or four hours. He then returned to the worksite. Later he went to his local doctor, nearby, to have some stitches removed from his foot. Concerned for him, his doctor immediately arranged for him to be transferred to the Geelong hospital.
Mr Witham’s version of events
Mr Witham, the driver of the truck, also gave evidence in the proceeding. What follows is his account of events.
On the morning of the collision he was working as a landscape gardener. He was driving his truck from Marengo, just south of Apollo Bay, to a hardware store in Pascoe Street. He was carrying a two-tonne excavator on the tray of the truck.
Mr Witham’s usual route to the hardware store would take him north along the Great Ocean Road from Marengo, left into Nelson Street and then right at the roundabout into Pascoe Street. The hardware store is the second building on the right after exiting from the roundabout, with a car park in front of it, immediately north of the motel with the U-shaped roof referred to above. However, Mr Witham said that on the morning of the collision he was not able to take his usual route as the entry from the Great Ocean Road into Nelson Street was blocked off for roadworks in Nelson Street. Instead, he drove on a little further and turned left into McLaren Parade.
After Mr Witham turned into McLaren Parade he saw a traffic controller (identified in evidence as Mr Malcom Kerr) on the right-hand side of the road near the bottle shop. Mr Kerr had a ‘stop/slow’ sign in his hand. He told Mr Witham to ‘just proceed’. Mr Witham then approached Nelson Street in his truck and saw Mr O’Connell and a second traffic controller (identified in evidence as Mr Brian Mulholland). According to Mr Witham, both were standing on the triangular-shaped traffic island that divided the two carriageways of Nelson Street at its point of entry into the roundabout from the east (‘the Nelson Street traffic island’). Mr Witham said that Mr Mulholland was holding a traffic control sign with the word ‘slow’ turned towards him.
Mr Witham said he saw a barricade stretching from the south-eastern corner of McLaren Parade where it intersected Nelson Street, across to the Nelson Street traffic island. The barricade was blocking his entry onto the left-hand side (southern carriageway) of Nelson Street. Because of the barricade, Mr Witham proceeded to drive onto the northern carriageway of Nelson Street − that is to say, on the ‘wrong side’ of the road − keeping against the right-hand kerb of Nelson Street as it curved into the roundabout. He estimated his speed to be 10 to 15 km/h and said he was in second gear.
As Mr Witham was proceeding in that fashion he said he saw Mr O’Connell step off the Nelson Street traffic island and onto the roadway in the roundabout in front of the truck. Mr O’Connell was then standing on the roadway, arms folded, ahead of the truck as it travelled into the roundabout. Mr Witham and Mr O’Connell gave each other ‘the bird’, that is, each raised the middle finger of one hand to the other. Mr Witham thought Mr O’Connell was ‘just acting the goat’ and that he would move. Mr Witham’s attention became focused to his right up Pascoe Street, conscious of the fact he was on the ‘wrong side’ of the road, that is, on the carriageway for any vehicle that might enter the roundabout from Pascoe Street travelling south.
He then heard a bump. He stopped his truck immediately - on his estimate within about a metre of where the truck was positioned when he heard the sound. He said he did not move the truck again before photographs were taken of it later by the police.
Those photographs[6] show the truck positioned on the bitumen at the entrance of the roundabout from Nelson Street: the driver-side wheels are in or very close to the gutter against the north-eastern kerb; the front of the truck is about level with the end of the Nelson Street traffic island that borders the carriageway in the roundabout itself; and the rear wheels of the truck are near or a little to the east of where the pedestrian path stops at the north-eastern kerb of the roundabout. In other words, the truck was hard up against the north-eastern kerb of the roundabout right at the point of entering into the roundabout.
[6]Exhibit 12.
Upon getting out of the truck Mr Witham saw Mr O’Connell lying on the roadway in the roundabout a metre or so ahead of the passenger-side front corner of the truck. He saw that Mr O’Connell’s head was bleeding. The photographs show a red patch (agreed to be blood) on the road in a position that is consistent with the location where Mr Witham said he saw Mr O’Connell lying.
Mr Witham said that he spoke to the traffic controller nearest to the incident, Mr Mulholland, and said ‘I think you were showing slow‘. He said the traffic controller denied it and said he was showing ‘stop’. At that point, Mr Witham said, another man took the sign away from Mr Mulholland and told him to go down to the Great Ocean Road end of Nelson Street.
Inroads’ version of events
Inroads’ version of events was given by three witnesses: Mr Kerr and Mr Mulholland, who were both employed by Inroads as traffic controllers, and Mr Jason Mackley, who was Inroads’ spray truck driver responsible for spraying the bitumen in Nelson Street that day. No supervisor was called to give evidence.
Mr Kerr identified himself as the first traffic controller who had spoken with Mr Witham in McLaren Parade. Mr Kerr said that he had been instructed to go to that location by the Inroads’ supervisor at breakfast time that morning. He said that at the time Mr Witham’s truck came along McLaren Parade, Inroads’ personnel were already engaged in diverting traffic. He was holding a ‘stop/slow’ sign. He recalled talking to a truck driver travelling west in McLaren Parade (namely, Mr Witham) who said that he wanted to go into Pascoe Street. He told Mr Witham to ‘go ahead’.
He said that, at that time, Mr Mulholland was directing any traffic coming into the roundabout from Pascoe Street. He said he saw ‘the big fella’, a reference to Mr O’Connell, waving to summons the truck towards him. He said he saw the truck drive over the grass on the north-east corner of the roundabout straight towards Mr O’Connell. He then heard a thud. When he went over to where the truck was stopped he heard Mr Mulholland calling the truck driver ‘a fucking idiot’.
Mr Kerr said that at the time of the accident no bitumen spraying was taking place but accepted that, prior to spraying, one of the necessary tasks was to clean the roadway in preparation for spraying. He said that spraying had only started after the ambulance had taken Mr O’Connell away. He also said that there was no barricade in Nelson Street as Mr Witham had described, saying ‘we never use it’. He did not give any statement to the police about what had occurred.
Turning to Mr Mulholland’s account, he said that, prior to the accident, he had been standing on the grass on the north-east corner of the roundabout holding a ‘stop/slow’ sign. However, he said, he was holding the sign down because Inroads had not yet begun diverting traffic. He said no spraying had begun and there had been no radio signal given to him to ‘hold traffic’, being the signal given to commence traffic management. He said there were other traffic controllers standing ready to man their positions at 9 o’clock and 6 o’clock in the intersection (that is, at Nelson Street west and Cartwright Street); he was waiting to stand at the 12 o’clock position (the Pascoe Street entrance).
Mr Mulholland said that Mr O’Connell had walked down to the roundabout saying that he was waiting for a ‘bobcat operator’ to arrive. Both of them stood on the grass talking for about 10 to 15 minutes. He denied that there were any barricades stretched across Nelson Street as described by Mr Witham, adding that if there were such barricades they would have prevented the spraying operation from continuing to the roundabout as it was required to do.
Mr Mulholland said that Mr Kerr was in McLaren Parade ready to divert traffic when the signal was given. He said that he first saw the truck driven by Mr Witham about 5 m away from him as it was coming over the grass section on the north-east corner of the intersection. He said that he saw the driver in the truck hunched over and leaning forward, exaggerating a steering motion. He said Mr O’Connell had waved to the truck driver as if to signal ‘over here', and then had leaned in towards the truck with his shoulder. To him it appeared as if Mr O’Connell and the driver were playing a ‘game of chicken’.
Mr Mulholland said he jumped to the right to be clear of the truck and heard a bang. He then saw Mr O’Connell land on the road with his head towards Pascoe Street, near the kerb. When the driver got out of the truck Mr Mulholland yelled at him and said, ‘what did you do that for you fucking idiot'. He claims the driver said, ‘I didn’t mean it’ to which Mr Mulholland replied, ‘yes you did’. He agreed that he was told by another Inroads’ person to go down to the Great Ocean Road. He then said that about 5 to 10 minutes later he received the message to ‘hold traffic' so that spraying could begin. He said there was no roadblock at the intersection of Nelson Street and the Great Ocean Road. He did not speak to police when they arrived nor did he offer a statement as to what had occurred.
Finally, Mr Mackley gave his account of the morning. He was the spray truck driver, and had worked for Inroads for approximately 11 years before the accident. He described the usual process which took place of a morning beginning with the loading of the bitumen into the truck in readiness for the day’s spraying. On the morning in question, he had driven to the first job site, being the Nelson Street job, at about 7:30am - 7:45am. He said he travelled from Marengo along the Great Ocean Road, made a left turn into Nelson Street, drove along Nelson Street and then turned right at the roundabout to travel up Pascoe Street (although in evidence he first described that street as Cartwright Street, being the street that ran south from the roundabout). He said he parked on the east side of Pascoe Street, facing north, just beyond the hardware store north of the roundabout.
Mr Mackley said that he sat in his truck for about an hour to an hour and a quarter before he heard the radio signal ‘hold traffic' which marked the commencement of the spraying operation. Upon hearing that signal, around 9:00am - 9:15am, he turned the truck around in Pascoe Street, and drove south to the roundabout turning left into Nelson Street to commence spraying. He said that he did not encounter any difficulty turning left into Nelson Street at the roundabout nor did he see any stationary truck, man on the road or ambulance. He said there were no bollards or barricades across Nelson Street from the McLaren Parade corner. He said the spraying job took about 45 minutes with three runs along Nelson Street. The job was completed by about 9:45am – 10:00am, including the laying of stone aggregate.
In 2014, Mr Mackley’s practice was to complete a hand-written document with the dip measurement (for the bitumen level in the truck) at the start of the job and another measurement at the end of the job. But he did not record the start and stop times. Those times were recorded, he believed, by the traffic control workers. He was shown the seal completion report for the Nelson Street work which he expected to have been completed by the traffic control workers and agreed that it showed no start or stop times for that job.
Mr Mackley was shown the photographs which had been taken by police of Mr Witham’s truck, still in the position in which it had come to rest after hitting Mr O’Connell. Mr Mackley agreed that, in the distance, to the east, he could see the area of Nelson Street on which he had sprayed bitumen. He agreed that the photograph showed that the spraying job was complete and that the photograph must have been taken after the accident occurred. He also agreed that if Mr Witham’s truck had been positioned in the roundabout as shown in the photograph at the time that he drove his spray truck down Pascoe Street turning into Nelson Street, Mr Witham’s truck would have prevented him from making that turn. However, he claimed to have seen the yellow truck driven by Mr Witham on the north side of Nelson Street about halfway towards the Great Ocean Road.
Police attendance
After an ambulance had taken Mr O’Connell away from the accident scene, Mr Witham attended the police station situated at the roundabout. Finding no-one in attendance, he telephoned 000. A recording of that call established that he rang at 8:38am. Knowing that the accident had occurred prior to that time is relevant to assessing other evidence concerning when the bitumen spraying work took place.
Soon after the call, probably around 9:00am, a policeman attended the scene. He took photographs of the intersection and the truck still in the position where it came to rest after the accident. Mr Witham gave a statement to police and, later on, police also took a statement from Mr Mulholland. Although some aspects of Mr Witham’s statement were put to him in cross-examination, the policeman was not ultimately called to give evidence nor was his report tendered (save for the photographs of the intersection and the truck).[7]
[7]The relevant police officer was served with a subpoena to attend and give evidence. Some information was provided informally by Victoria Police to the effect that the police officer was unwell and unable to attend, although no evidence was ever adduced to establish that was the case. Whatever may have been the true position, the evidence concluded without the police officer being called.
Findings of fact
It is most unlikely, in my view, that the truck driven by Mr Witham passed over the patch of grass on the north-east boundary of the roundabout as claimed by both Mr Mulholland and Mr Kerr of Inroads. It is improbable for a number of reasons.
The first and most glaring fact in the way of that account is the position of the truck as photographed by the police after the accident. As already stated, the position of the truck, depicted in the photographs, is on the bitumen directly adjacent to the north-eastern kerb line of the roundabout, consistent with it having been driven into the roundabout on the northern carriageway of Nelson Street, as Mr Witham described. The truck could not have struck Mr O’Connell in the roundabout having travelled across the grass and yet come to rest in the position in which it was photographed unless it had been reversed from the point of impact back along the bitumen and parked against the kerb. No witness claimed to have seen the truck being so moved from the point of impact with Mr O’Connell before the photographs were taken, or at all.
Mr Witham said that the truck was left at the point of impact and it was not put to him in cross-examination that he had moved it before the police arrived. Had it been moved, it would have occurred in the presence of a number of Inroads’ personnel but no one gave any evidence to that effect. Mr Kerr properly conceded that if the truck had struck Mr O’Connell at about the place shown in the photograph then his memory of seeing the truck going over the grass must have been in error. Mr O’Connell said that he tried to signal to Mr Witham to drive across the grass but he did not say that he actually saw him do so. Indeed, in answers to interrogatories sworn by Mr O’Connell in May 2019 he said that he saw the truck turn right into Nelson Street out of McLaren Parade.
To try to bolster his account of the truck having come across the grass, Mr Mulholland claimed that the photographs showed the tyre marks of the truck across the grass. What Mr Mulholland pointed to was a light coloured track on the grass about 30 cm away from the concrete kerb, evenly following the kerb line as it arced around from Nelson Street to become the Pascoe Street kerb. If that light coloured track was a mark left by the passenger-side wheels of the truck, one would expect to see a parallel set of tyre marks left by the driver-side wheels — but no such mark is discernible on the grass.
And, the fact that the line follows the arc of the kerb is inconsistent with the direct path across the grass as described by Mr Mulholland and Mr Kerr. Had the truck followed the course of the light coloured track it is hard to understand how it could have knocked Mr O’Connell down in the position where the blood stain was visible on the bitumen. In my view, the light coloured track is more consistent with a mark left by a motor-mower scuffing the ground where it is slightly higher than the surrounding surface.
Finally, I think it is implausible that a driver of a truck loaded with a two-tonne excavator would choose to drive the truck up and over a concrete kerb and onto grass when there was an easy path along the bitumen available to him. Even if there had been an element of hijinks between Mr Witham and Mr O’Connell, such driving would amount to deliberate recklessness. Having observed Mr Witham, and having regard to the evidence of his other actions and interactions at the accident scene, I did not form the impression that Mr Witham was a person likely to engage in such conduct.
That Mr Mulholland and Mr Kerr claimed to have the same recollection of seeing the truck travel across the grass is best explained by a degree of reconstruction, reinforced by the sharing of recollections that undoubtedly occurred between the two Inroads employees between 2014 and the trial in 2020.
Having closely observed Mr Kerr, Mr Mulholland and Mr Witham give their evidence, I am inclined to generally prefer the account given by Mr Witham to that of the Inroads’ employees – although not in every particular.
I prefer Mr Witham’s account that his truck remained on the bitumen surface of Nelson Street after exiting McLaren Parade and followed the arc of the north-eastern kerb line of Nelson Street as it entered the roundabout, and that he stopped the truck a short distance after impact with Mr O’Connell in the position depicted in the photographs. The red mark identified as Mr O’Connell’s blood just forward of the stationary truck is corroborative of that being the place where the truck stopped. Its stationary position is entirely consistent with Mr Witham’s account of the route that the truck took out of McLaren Parade and into the roundabout from Nelson Street east.
I do not accept Mr Mulholland’s evidence that, before the accident, he and Mr O’Connell were standing on the grass outside of the roundabout beyond the north-eastern kerb line. I am unable to determine whether they were initially standing on or near the Nelson Street traffic island, as stated by Mr Witham, or nearer the Pascoe Street entrance, as stated by Mr O’Connell, but I do find that they were standing within the roundabout itself so as to put themselves within the path of any vehicle travelling into the roundabout as Mr Witham’s truck did.
I also prefer Mr Witham’s evidence that he was unable to enter Nelson Street from the Great Ocean Road at the eastern end because of some traffic control measure put in place by Inroads. Mr Mulholland denied that any such impediment was in place, however there seems to be no other explanation for Mr Witham to have taken the course that he took from Marengo, going past Nelson Street and turning into McLaren Parade instead. Whether or not the bitumen sealing works had actually commenced, or was only soon to commence, I think it is probable that Inroads’ personnel were preventing any traffic entering Nelson Street from its eastern end. According to Mr O’Connell, himself experienced in roadwork, and as accepted by Mr Kerr, a certain amount of work including cleaning the roadway is undertaken prior to any sealing works. It would make sense to stop traffic travelling over roadway that was being prepared for sealing. Further, Mr Kerr himself said that he was actively directing traffic by the time Mr Witham came along, although he denied that the sealing works had begun.
Whether or not the sealing works had actually begun before Mr Witham arrived on the scene is difficult to determine.
Mr O’Connell’s evidence was that spraying had commenced, saying that he saw the truck spraying bitumen about the time he saw Mr Witham’s truck approaching. As observed, Mr O’Connell’s claim to have seen the spray truck operating is one of the reasons he gives for the fact that he and Mr Mulholland signalled to Mr Witham to drive across the grass and to avoid driving on the roadway that was being bitumenised.
Mr Witham himself did not say he saw spraying taking place before the accident but he believed it was taking place. Before the accident he said he heard the sounds of machinery (for example, the beeping sounds of trucks in operation) and he recalls seeing the spraying activity immediately after the accident.
Both Mr Mulholland and Mr Kerr denied that spraying had commenced and Mr Mackley’s evidence would also suggest spraying did not take place before the accident occurred. It would not assist Inroads’ case if spraying was occurring at the time of the accident. If spraying was actually occurring then clearly Inroads’ employees must have been actively engaged in traffic management. Inroads’ case was that they were not doing so and thus had no responsibility to either drivers or pedestrians to direct their movements. In that regard, Mr Kerr’s evidence that he was directing traffic was contrary to Inroads’ position.
Mr Mackley’s account of what took place is, in my view, somewhat unreliable. He had no particular reason to remember this job from five years earlier as, on his account, he saw nothing that was out of the ordinary. His account of driving down Pascoe Street and turning left into Nelson Street at about 9:00am – 9:15am, unimpeded, after the accident must have occurred and before the police took the photos of the stationary truck in the roundabout, is peculiar to say the least. He accepted that the photograph of Mr Witham’s stationary truck in the roundabout showed the sealing works had been completed. Clearly then, the sealing works took place either before Mr Witham’s truck arrived in that position or whilst it was in that position. If the latter, it is difficult to understand how Mr Mackley could have driven his spray truck through the roundabout and not noticed Mr Witham’s truck, indeed, without having to take some unorthodox route in order to get past it.
Furthermore, the lack of any record from Inroads about the start and stop times of the road sealing works invites suspicion. Mr Mackley denied that it was his job to record such times, saying that the times were generally recorded by the traffic controllers. Wherever the truth lies, Inroads did not produce any record of such times for that particular job.
In the end I do not need to reach any final conclusion on whether the spraying had commenced before the accident occurred. Whether it had commenced or not, I find it probable that Inroads’ personnel were actively controlling traffic as Mr Witham approached the roundabout or, at the very least, gave the impression of doing so. Mr Kerr clearly gave a direction to Mr Witham to proceed and, as stated, thought he was controlling traffic.
Mr Witham’s belief that the left-hand carriageway of Nelson Street was blocked off is probably incorrect but I find that something gave him the impression that he had to stay on the right-hand carriageway of Nelson Street. Whether Mr Mulholland, with Mr O’Connell at his side, was standing on the Nelson Street traffic island (as Mr Witham claimed to observe) or on the bitumen surface within the roundabout itself, to Mr Witham it would have appeared that he was directing traffic within the roundabout. Mr Mulholland (like Mr Kerr) was holding a traffic control sign. One of or both he and Mr O’Connell signalled to Mr Witham to stay as far to his right as possible when exiting McLaren Parade and entering the roundabout so as not to drive over the roadway which was either being sealed or prepared for sealing. The combination of circumstances created by Inroads – the blocking off of Nelson Street at the east, the direction given by Mr Kerr and the presence of Mr Mulholland in the roundabout wearing a fluoro jacket and holding a traffic control sign either giving signals to Mr Witham or standing beside someone who was doing so – most likely gave Mr Witham the impression that the roundabout intersection was under active traffic control management (whether it was or not) and that he should follow the signals.
In summary, I find it more likely than not that the accident occurred in the following circumstances:
·Mr Witham was unable to enter Nelson Street from the Great Ocean Road because Inroads’ personnel had put some impediment in place preventing him from doing so;
·Near the bottle shop in McLaren Parade Mr Kerr, holding a stop/slow sign, gave Mr Witham a direction to proceed though the roundabout to get to Pascoe Street;
·Travelling at about 10 to 15 km/h, Mr Witham neared the end of McLaren Parade and, looking ahead, saw Mr Mulholland within the roundabout, also with a stop/slow sign, together with Mr O’Connell, seemingly directing him to stay on the right-hand side of Nelson Street and not travel into the roundabout in the conventional fashion;
·Mr O’Connell and Mr Witham, recognising each other, made some gesture intending to be mock-aggressive towards one another;
·Mr Witham took his eyes off the pedestrians in the intersection to look to his right to ensure no vehicles were coming down Pascoe Street from the north, expecting Mr O’Connell and Mr Mulholland to move out of the path of his truck;
·Mr O’Connell either took his attention off the truck, looking to see where Inroads’ supervisor was, or remained in position as some sort of dare expecting Mr Witham to bring the truck to a stop;
·Mr Mulholland did not signal Mr Witham to stop his truck at any stage;
·After taking his eyes off the pedestrians to look out for any vehicles approaching the roundabout, Mr Witham did not look back towards Mr O’Connell before his truck struck him;
·With neither Mr O’Connell or Mr Witham taking evasive action, the truck collided with Mr O’Connell on the bitumen in the intersection at about the mouth of Nelson Street at its point of entry to the roundabout, approximately level with the end of the Nelson Street traffic island abutting the carriageway of the roundabout itself.
Did any negligence on the part of Inroads contribute to the collision?
Inroads admitted that it was the principal contractor for the bitumen sealing works in Nelson Street, was the occupier of the works site for the purposes of Part IIA of the Wrongs Act, and was responsible for the road traffic management at the site. Whilst it admitted it owed a duty to persons within the site it did not specifically concede the nature or content of that duty. The site included Nelson Street east and its adjoining carriageways, namely the Great Ocean Road, McLaren Parade and the roundabout.
In my view, on its admissions, both pursuant to s 14B of the Wrongs Act and at common law, Inroads owed a duty to take such care as in all the circumstances was reasonable to see that any person on the site would not be injured or damaged by reason of the state of the site or of things done or omitted to be done in relation to the state of the site.
Two possible scenarios arise. One is that Inroads was actively controlling the roundabout, in which case it had a duty to give clear instructions to drivers and pedestrians in the intersection as to where they should drive and stand so as to avoid, so far as was reasonably achievable, the prospect of a collision between vehicles and pedestrians. The other is that Inroads was not actively controlling the roundabout, in which case it had a duty not to mislead drivers or pedestrians to think that it was doing so, and thus avoid causing any confusion as to who was responsible for making decisions as to the path that drivers and pedestrians should take in navigating the intersection.
Mr Harris, an engineer who is an expert in road safety and traffic management, opined that the situation facing Mr Witham as he approached the roundabout, having been prevented from entering Nelson Street by some form of traffic control, given a direction by Mr Kerr and then seeing Mr Mulholland (with Mr O’Connell) within the roundabout with a stop/slow sign, was
… ambiguous to Mr Witham [and] hazardous to the people on the ground.
I accept and adopt Mr Harris’ description of the situation. In my opinion, that ambiguity and level of hazard was brought about, at least in part, by the inconsistent conduct of Inroads’ employees and the lack of clear and unequivocal signals given to Mr Witham as to whether or not they were controlling the roundabout and, if they were controlling the roundabout, what course he should take. Similarly, the hazard to Mr O’Connell was at least in part brought about by the same inconsistency and lack of clear signals given to him, and by the hazard of creating uncertainty in the mind of an approaching truck driver.
The situation of a truck (carrying a heavy machine) approaching a roundabout with a pedestrian standing on the carriageway within the roundabout presented a grave risk of probable injury to the pedestrian should any collision occur between truck and pedestrian. Whilst the pedestrian, being an adult, might be expected to appreciate that risk of danger to himself and take reasonable precautions for his own safety, the burden on the traffic controllers to protect persons within the intersection from danger (whether that danger be from lack of clear traffic control or the existence of confusion about traffic control) was high because of the gravity of the risk to the pedestrian.
The inconsistency of signals, and/or lack of signals, brought about a situation in which Mr Witham took an unorthodox route into the roundabout in which he was not required to stop yet also required to watch out for pedestrians in his path and any vehicle that might approach him head-on within the roundabout. That situation was hazardous to those within the roundabout, including Mr O’Connell. That hazard eventuated when Mr Witham failed to pay sufficient attention to Mr O’Connell and collided with him.
Having regard to these considerations, and on the facts that I have found, I conclude that Inroads’ conduct fell below the standard required of a prudent traffic controller to take reasonable care to avoid injury to pedestrians within the area of roadworks it was undertaking. Accordingly I find that Inroads was negligent and that it breached the statutory duty it owed to Mr O’Connell to take reasonable care to see that he would not be injured at the site of Inroads’ roadworks by reason of its management of vehicular and pedestrian traffic at that site.
I also find that Inroads’ negligence and breach of duty was a cause of Mr O’Connell’s injuries.
What was the extent of responsibility (if any) of the three parties?
Having concluded that Inroads’ negligence and breach of duty was a cause of Mr O’Connell’s injuries, I also find that Mr Witham failed to take reasonable care for the safety of Mr O’Connell and Mr O’Connell failed to take reasonable care for his own safety. Each of their respective failures to take care was a cause of Mr O’Connell’s injuries. The final question, then, is to determine the share of responsibility which each participant must bear for Mr O’Connell’s injuries. The apportionment is determined by what is just and equitable having regard to the extent of each person’s responsibility for the damage.[8]
[8]Section 24(2) of the Wrongs Act provides for assessing contribution between tortfeasors and s 26(1)(b) provides for assessing the contributory negligence of the victim of a tort.
In my opinion, a driver of a vehicle in the vicinity of a pedestrian must always exercise particular care in the management of the vehicle having regard to the grave consequences to the pedestrian should the vehicle come into contact with him or her, even at a slow speed. That potential risk to Mr O’Connell had no material, countervailing risk to Mr Witham that would justify anything other than the most cautious progress into the roundabout. If Mr Witham was uncertain or worried about being confronted by the need to guard against two competing risks — harm to Mr O’Connell and the risk of collision with an oncoming vehicle — he could simply have stopped and waited for some assurance that all was clear. Plainly he did not do that. Having regard to his direct control over the most dangerous component of the risk equation — namely, the movement of the truck – and because he had a choice to stop and wait but exercised that choice poorly, he bears the greatest share of responsibility for Mr O’Connell’s injuries.
As between Inroads and Mr O’Connell, the apportionment of responsibility is a little harder to determine.
Either by being in control of the intersection or at least appearing to be in control and having the means to do so, Inroads, through either Mr Mulholland or Mr Kerr, could have given Mr Witham a clear signal to stop and not enter the roundabout until sure that there was no danger posed to any pedestrian in the roundabout. Accident prevention was the very object of their task and the essence of their responsibility. It is not sufficient to say that events all happened quickly or that Mr Mulholland did not expect Mr O’Connell to put himself into the path of the oncoming truck. Mr Mulholland himself had to leap to safety; it was not simply the case that the risk to Mr O’Connell was created solely by his own actions. Aware that Mr O’Connell was in the intersection, Inroads’ personnel should not have permitted a vehicle to get anywhere near striking distance of Mr O’Connell until they were sure that he was out of harm’s way. And yet they did.
That said, Mr O’Connell is an adult. Just as Mr Mulholland ought to have sensed danger, so should he have sensed the danger. In fact, it seems probable that Mr O’Connell courted danger and played with risk out of a misguided sense of fun or bravado. Compared with Inroads’ employees who may have been able to influence the actions of Mr Witham and Mr O’Connell so as to reduce the chance of collision, Mr O’Connell might have taken independent evasive action to remove himself from harm. As with Mr Witham’s ability to control his vehicle, Mr O’Connell’s capacity to direct his own movements was a more immediate form of risk prevention than any direction given by Inroads’ employees to the two parties involved in the collision. In my opinion, Mr O’Connell should be responsible for his own injuries to a greater extent than the typical pedestrian who inadvertently fails to look when stepping off a sidewalk into the path of a vehicle.
Having regard to their respective roles, degree of culpability and power to influence the outcome of the situation,[9] I assess the relative responsibility of Inroads and Mr O’Connell as being equal.
[9]Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492.
In all the circumstances, I would fix the shares of responsibility between Mr Witham, Inroads and Mr O’Connell as follows:
·Mr Witham — 50%
·Inroads — 25%
·Mr O’Connell – 25%
It follows that, as between Mr Witham and Inroads for the purpose of the third-party claim, the relative responsibilities are:
·Mr Witham – 66.6%
·Inroads — 33.3%
Conclusion
For the purpose of the third-party claim, Inroads should contribute 33.3% of the damages that Mr Witham agreed to pay to Mr O’Connell.
For the purpose of the recovery claim, the factor X percentage attributable to the extent of Inroads’ responsibility for the injury to Mr O’Connell, to be applied in the statutory formula for indemnifying TAC, is 25%.
The parties should prepare draft orders in each proceeding to give effect to these conclusions.
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