Palmer v RTA - [2001] NSWSC 846

CITATION: Palmer v RTA & Ors [2001] NSWSC 846

FILE NUMBER(S): SC 20339/98

HEARING DATE(S): July 24, 25, 26, 27 ; 31; August 1; 2; 3; 6; 78; 9; 16; 27 2001

JUDGMENT DATE:
20 December 2001

PARTIES :

Lisa Denise Palmer
RTA of NSW and Ors

JUDGMENT OF: Wood CJatCL at 1

LOWER COURT
JURISDICTION : Supreme Court

LOWER COURT
FILE NUMBER(S) :

LOWER COURT
JUDICIAL OFFICER :

COUNSEL : B Toomey QC with A Black [P]
B Donovan QC with P A Regottieri [D1)
J E Maconachie QC with I R Pike [D2]
I G Harrison SC with P S Braham [D3]
P Hallen SC (6 xD]

SOLICITORS: Walsh & Blair (P)
I.V. Knight (Crown Sol) (1D)
Phillips Fox (2D)
Corrs Chambers Westgarth (3D)
Colin Biggers & Paisley (6xD)

CATCHWORDS: NEGLIGENCE - causation - cause of motor vehicle accident - whether accident reasonably foreseeable - test for duty of care - liability - who is responsible for maintenance and traffic regulation of public road - highway rule no longer applicable - general damages where plaintiff is tetraplegic requiring 24 hour care - horrific injuries - whether damages awarded for funds management - whether damages awarded for nanny in event of plaintiff becoming pregnant.

LEGISLATION CITED: Roads Act 1993 ss 7, 62, 64, 145, 146, 207

DECISION: Reasons published. Final Orders to be entered. See par 545 or Reasons.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

20339/98

WOOD CJ AT CL

THURSDAY 20 DECEMBER 2001

PALMER V ROADS & TRAFFIC AUTHORITY OF NEW SOUTH WALES & ORS
Judgment

INDEX TO JUDGMENT Paragraph
A. INTRODUCTION 1
B. THE ACCIDENT 7
C. THE ROADWORKS
1. The State of the Road 15
2. Spray Sealing Operations 19
3. Factual Issues in relation to the Road 27
a) Loose Stone signage 28
b) Tyre marks on shoulder? 34
D. THE CAUSE OF THE PLAINTIFF’S ACCIDENT 44
1. Lay Witnesses 46
2. The Expert Evidence 63
a) Joint Experts’ Report 64
b) The Possibilities 68
c) The expert witnesses 70
3. Findings on Causation 154
E. WAS ANY DEFENDANT RESPONSIBLE IN LAW
FOR THE CONSEQUENCES OF THE ACCIDENT 199
1. The arrangements between the RTA and the Council
for the provision of the roadworks 200
2. The Contract between the Council and Pioneer 266
3. Post Accident Modification 279
a) Armco Railing 280
b) Speed Advisory Sign 296
c) Relevance of Post Accident modifications 298
4. Findings on Duty and Breach 313
a) Submissions concerning The Council 314
b) Submissions concerning the RTA 332
c) Findings in relation to the Council and the RTA 351

d) Findings in relation to Pioneer 393

F. CONTRIBUTORY NEGLIGENCE 403
G. CROSS CLAIMS
1. The relevant Principle 410
2. The RTA 415
3. The Council and Pioneer 419
H. DAMAGES
1. Background 433
2. Agreed Damages 437
3. Consequences of the Accident 438
4. Life Expectancy 456
5. Child Care 485
6. Funds Management 513
7. General Damages 540
8. Summary of Damages 543
A. INTRODUCTION

1 HIS HONOUR: The plaintiff brings these proceedings in relation to the catastrophic injury which she suffered on 27 February 1997, when the manual 5-speed Hyundai Excel sedan which she was driving, left the Nobby’s Hill section of Main Road 54, also known as the Peel or Sofala Road, in the Bathurst district, and rolled over, as it made its way down an embankment.

2 No other motor vehicle was involved in the accident, and her case depends upon her establishing negligence on the part of one or more of the defendants, the Roads & Traffic Authority of New South Wales (“the RTA”), the Council of the Shire of Evans (“the Council”) and Pioneer Road Services Pty Ltd (“Pioneer”).

3 Each of the defendants has denied liability and has brought a cross claim for contribution or indemnity against the other defendants, to meet the contingency of it being held liable. Pioneer has brought a cross claim against the only other party joined to the action, QBE Insurance (“QBE”) based upon a policy of insurance issued by that company, which it asserts, extends to provide cover in respect of any liability which it may incur.

4 Apart from denying any negligence on their part, the defendants have raised a defence of contributory negligence, alleging that the plaintiff was driving at an excessive speed, that she failed to maintain a proper control of her vehicle, and that she failed to pay attention to various warning signs placed beside the roadway, over a distance of about 2.5 kms. preceding the bend where the accident occurred.

5 Determination of the issues concerning the plaintiff’s speed, and the cause of the accident, depends upon the evidence of those lay witnesses who had the opportunity of directing their attention to the state of the roadway immediately following the accident, and also upon the evidence of those expert witnesses who offered opinions, based upon their own subsequent examination of the accident scene, as to what had occurred on the morning of 27 February.

6 In this regard their evidence was supplemented by the following exhibits:

Exhibit A – a bundle of photographs of the accident scene taken on the day of the accident;

Exhibit B – photographs 1, 7 and 13, marked by David Suttor, attached to his statement;

Exhibit P3 – a television news video clip similarly made on the day of the accident, the value of which is limited by reason of its lesser definition of the road surface;

Exhibit C – photographs attached to the statements of Messrs Johnson and Hesper;

Exhibit 11 - an aerial photograph of the road and accident site;

Exhibit G - notes taken by a police officer (Snr. Const. Rose) at the scene, on the day of the accident, including his measurements of the skid marks;

Exhibit H - aerial photograph marked by Senior Constable Rose;

Exhibit R3 - the P4 accident form prepared by Senior Constable Rose;

Exhibit M1- M3 - aerial photograph with overlays of the signs in existence at the time of the accident, as well as those which various experts said should have been provided;

Exhibit P - photographs marked in the course of the evidence of Mr. Hesper;

Exhibit R7 - 65plan prepared by Detective Senior Constable Keogh.

B. THE ACCIDENT

7 It is first convenient to note the evidence of the plaintiff, and of the one motorist who had an opportunity to see her motor vehicle within a short time before it left the road.

8 The plaintiff was born on 25 December 1974, and was aged 22 years at the time of the accident in which she suffered a C2 spinal injury. As a result, she is almost wholly disabled, being unable to move any portion of her body below mouth level. She is significantly impaired in speech and partially impaired in hearing (the latter due to an unrelated condition). She could not remember, when called as a witness, anything in relation to the accident. She had, however, made a statement to her Counsel, on 27 July 2000, in which she had said:

“On the day of the accident I recall approaching the bend which turned to the left just as I drove towards Bathurst when my accident occurred. I recall that I was driving relatively slowly, that is a speed less than the advisory sign which was 75km an hour. I recall the car wheels coming into contact with loose gravel and the gravel hitting the car. I slowed my car further. As I began to round the bend I recall the steering wheel pulling to the left. I have no further recollection of what occurred after that time.”

9 This statement was received without objection. It was, however, established, through the limited examination and cross examination which could be conducted, with the assistance of a nursing sister who had some familiarity in communicating with her, and independently through the evidence of other witnesses, that:

a) she had been licensed to drive a motor vehicle in November 1996, and hence had only three months driving experience before the accident.

b) she had regularly driven over the road from her home “Pindari” at Wattle Flat, to Bathurst and back, between the time of gaining her licence and the time of the accident, either for the purposes of her work, or for social purposes.

10 Although varying estimates were made, in hindsight, of the speed at which the plaintiff had been travelling before her accident, there was only one witness whose evidence, it seems to me, was capable of providing any reliable guide in this respect. That witness was Mr. David Goodfellow, who lived on a property “Bundawarra”, some 9.8 kms. north of the accident scene. He said that he saw the plaintiff’s vehicle drive past the entrance to his property, as he drove down to his gate. Her speed at that point, he estimated to be about 70-80 km/h.

11 After opening and shutting the gate, he then drove his vehicle a further 200m or so down a driveway to the road before turning onto it, and proceeding towards Bathurst. The time involved in this exercise he later fixed at 2.5 minutes.

12 He said that, thereafter, he drove along the road at about 90-95 kmh, in the straight sections, and at a lesser speed around the bends. About one kilometre north of the accident site, he came into sight of the plaintiff’s vehicle as it entered the first bend.

13 It is implicit in this evidence that he had been driving at a speed that was faster than her, since otherwise he would not have been able to make up the time which had been lost in exiting his property. It was his assessment that as the plaintiff entered this bend, she was going at a moderate pace “no faster than the 75kms and no slower than 60”.

14 He said that he lost sight of her vehicle as she rounded that bend. The next thing which attracted his attention was a “pile of dust” arising from below the western side of the road. He then observed the plaintiff’s Hyundai down in a gully on the side of the road facing in the direction from which it had come. It is evident from the crushed roof of this vehicle that it had rolled at least once, on its way down the 3 to 4 metre embankment to its final resting place, some 9 metres into a paddock of the property “Brucedale”, owned by Mr. Suttor.

C. THE ROADWORKS

1. The State of the Road

15 Save for some questions concerning the full extent of the warning signs in place at the time of the accident, and the quantity of gravel on the roadway, there was a measure of agreement between the lay observers and the experts concerning the layout of the road and its state. In substance, their evidence established the following:

a) Main Road 54 runs between Bathurst and Main Road 55, and travels through the townships of Sofala, Peel and Wattle. For most of its distance it is a single carriageway in each direction, carrying a light to medium traffic volume, estimated at the time of the accident, at about 600 vehicles per day, and serving mainly as a tourism and inter-regional link to Bathurst;

b) Being a classified Main Road it came under the overall responsibility of the RTA, although the operational responsibility for it was vested in the Council, in which the fee simple was vested (S 145 of the Roads Act 1993, subject however, to the limitations on the incidents of ownership noted in S 146 of the Act);

c) The RTA had provided funding to the Council to carry out the resurfacing work, in accordance with the arrangements later examined, in the section of roadway extending over a distance of approximately 2.5kms, with which this case is concerned, ie in the area including Nobby’s Hill;

d) The Council entered into a contract with Pioneer to carry out this work;

e) The relevant work commenced at a point approximately 250 to 300 metres south of the Winburndale Rivulet, and ended about 500m past the top of Nobby’s Hill, near the Evans Shire and Bathurst Council boundary – ie over an area extending from a point 12.7 to 10.1 kms. North of Bathurst;

f) For a motorist travelling in a southerly direction along the road, the relevant section of roadway commenced with a long sweeping right hand bend in the vicinity of Ardsley Lane, followed by an uphill and generally straight section which then turned to the left, followed by a short straight section, which led into another left hand bend at the top of the hill, and then opened out into a straight section, just after the commencement of which the plaintiff’s vehicle left the road (ie at a point which was opposite the dam on the eastern side of the road, and about 50 metres from the end of the bend).

g) At a point about 2.5 kms north of the accident site, at the bottom of the hill, on the eastern side of the road, and facing a southbound vehicle, such as that driven by the plaintiff, there was a yellow sign with the words “roadwork ahead” printed in black letters;

h) At a point a further 150 metres to the south, and on the same side as the sign last mentioned, just north of the Winburndale Rivulet bridge, there was a red sign with the words “reduce speed” printed in white letters;

i) At a point, a further 100 metres south of the last mentioned sign, just short of the bridge over the Winburndale Rivulet, and on the same side of the road as the last mentioned sign, was a further sign with a yellow background and, in black letters the advice “changed traffic conditions ahead”;

j) The three signs mentioned so far preceded the commencement of the roadworks and, it was common ground, that each had been erected by the Council.

k) A “65km/h” advisory sign was in place preceding the right hand bend at Ardsley Lane previously mentioned, which was followed by a “ROAD NARROWS” graphic sign;

l) The last sign facing a southbound motorist before the accident site was another advisory speed sign on yellow with black letters “75 km/h”, below a sign indicating an S shape bend commencing to the left. This sign, it was common ground, was intended to act as a “multiple curve warning”, flagging, on this occasion, two bends to the left separated by a straight section of roadway. The straight section was measured to be about 110 metres in length, and the second bend, it was common ground, was tighter than the first. As such this compound bend answered the description of a “broken back bend”. By whom the 75 km/hr sign was erected, and when that occurred, was not established;

m) These last mentioned signs were located about 0.9 kms from the “road narrows” sign and about 0.35 kms to the north of the point where the plaintiff’s vehicle left the road. The 75 km/h speed advisory sign had not been covered over with hessian, or otherwise obscured before the accident;

n) To the west of the section of roadway where the plaintiff’s vehicle left the road, which I have observed was just after the end of the left hand bend at the top of the hill, there was a ragged earth embankment, falling down for a distance of four to six metres to an earth bank which rose in the opposite direction, and eventually to a creek bed;

o) Located part way down this embankment, at a distance about one metre from the road verge, there was a farm fence which had been erected upon the property “Brucedale”, of the traditional type, comprising timber posts, fixed at intervals, with steel pickets between them, and strung with wire;

p) For a north bound motorist approaching the top bend, there was a speed advisory sign “55 km/h”, ie one advising a speed 20 km/h less than that for a south bound motorist approaching the same bend;

q) At the time of the accident, there was neither a chain wire and post fence, or Armco guard railing, adjacent to the corner preceding the accident site, or adjacent to the embankment over which the plaintiff’s vehicle travelled. Further, there were no painted centre lines, although there were some temporary black markers (“sticks and stomps”) in place to indicate the centre of the roadway;

r) The top bend immediately preceding the place where the plaintiff’s vehicle left the road (“the top bend”) was measured as having a radius of approximately 110 metres. Different assessments were initially made of the degree of its superelevation or banking although ultimately the experts agreed that it was in the range of 13.5 to 14%;

s) By mid afternoon on Monday 24 February, following the resealing work, 7mm aggregate or gravel, as it was variously referred to by the witnesses, had been spread over the new seal in the Nobby’s Hill area, its purpose being to assist the surface compaction, and to protect the surface as it settled down. Removal of the loose gravel remaining on the road surface had been planned for Friday 28 February. In the meantime, as Mr. Vautin made clear in his evidence there had been no brooming of the road surface to remove any gravel from the road surface;

(t) On the morning of the accident, there was a layer of loose gravel remaining on the roadway in the area where the accident occurred, some of which had been moved by the passage of vehicles into shallow windrows or accumulations, to the nature and extent of which I will return in more detail, since some factual issues arise in this respect of relevance for the opinions of the expert witnesses as to the cause of the accident;

(u) Noise from the presence of the gravel was audible to a motorist driving over it;

v) Following the accident, distinct tracks were observable in the gravel remaining on the roadway, indicating that the plaintiff’s vehicle had traversed the section of roadway to the point where it went over the embankment, in a yawing motion;

w) These tracks, appeared to commence on the southbound side of the carriageway at a point after the starting or tangent point for the top bend on the left hand side of the temporary centre line marker, and extended across the northbound side of the carriageway for about 26 metres, to the point where the vehicle left the roadway, about 2.8 km south of the Winburndale rivulet Bridge;

x) To the extent to which there was some difference of opinion, between observers on the day, as to whether or not there were also tyre marks on the unsealed white gravel shoulder, on the inside of the top bend, I shall return since it also has some significance in relation to the cause of the accident;

y) In June or July 1997, some five or so months after the accident, Armco railing, extending over a distance of approximately 480 metres, was erected, in the vicinity of the accident site, on the western side of the road. In 2001, a 55 km/h advisory speed warning was erected before the top bend, in place of the previous 75 km/h sign;

16 Upon the evidence as led, it is clear that mechanical failure, or negligence on the part of any other road user, can be excluded as a cause of the accident.

17 In this regard, it was established that:

a) When the plaintiff’s vehicle was examined in the paddock where it finished up, it was found to be in third gear.

b) Subsequent examination of the vehicle failed to detect any damage to the wheel rim or nearside front tyre of the kind which might have suggested that it had been insufficiently inflated, or that it had suffered a sudden deflation before leaving the roadway.

c) There was consensus that the buckling found in the wheel rim, and the unseating of the outboard bead of the tyre had been the result of collision damage. No other mechanical fault or defect was found in the vehicle.

18 It was established that some months earlier, the relevant section of roadway had been widened by the addition of a strip of extra pavement on each shoulder. The joins between the original pavement and the shoulder widening, Mr. Hespe noticed, had left a slight ridge in places, as was evident from Photographs I, J and K, attached to his Report. To the possible significance of that ridge, I shall also return.

2. Spray Sealing Operations

19 As Mr. Johnston explained in his report, the roadworks involved the application of a sprayed bituminous binder over which a quantity of loose stones were to be spread and then rolled into the binder. Following completion of this portion of the work, the excess stone was to be swept off, leaving a small quantity to remain behind for the final bedding in process. Thereafter the road was to be opened to traffic for the final bedding in process, which would normally take place over the succeeding 24 to 48 hours. At the conclusion of this period, any remaining loose stone which had been left behind for the final bedding in, or which had been dislodged by passing traffic, was expected to be swept away. It was during this phase of the operation, after the initial application but before the final sweeping, that the plaintiff’s accident occurred.

20 Roadworks of the kind here involved, it was established, are the subject of specific publications dealing with matters such as the procedures and guidelines to be followed for spray sealing operations, including instructions as to the use of signposting and traffic control plans. Two relevant documents identified were:

21 It may be accepted, as a matter of common sense, although it was also confirmed by Mr. Johnston in his Report, that the purpose of roadworks signposting is to:

a) provide a timely warning to approaching motorists that roadworks are being undertaken; and to

22 This is reflected in AS 1742.3, clause 2.2 of which states:

‘2.2 GENERAL: No matter how brief the occupation of a work site may be, careful consideration has to be given to the signing of the site -

a) to provide adequate warnings of changes in the road surface or in driving conditions and of personnel and/or plant engaged in work on the road; and

b) to adequately instruct and guide road users safely through, around or past the work site.”

23 The notes to fig. 5.25 which depicts the signage appropriate for traffic passing though a work area on a two lane, two way road, specifies that “any inappropriate signs … should be removed”, during the currency of the works.

24 Table 4.2 of the Australian Standard provides a guide for the provision of warning signs and for the selection of speed limits at roadworks, as follows:

“

Advance Warning Signs

4.2.1

General

Requirements for the display of advance warning signs and devices will vary according to factors such as the speed of approaching traffic, the degree to which the hazard requires modification of speed or diversion of travel path, or extra vigilance for other reasons, and the sign distance available to the hazard, including sight obstruction caused by other traffic.

Typical advance sign layouts are illustrated in Figure 4.2.

“

4.4 Creating a Roadwork Speed Limit Zone

4.4.1 General

Speed limit zones are appropriate where the consequences of excessive speed are not apparent and motorists are unlikely to reduce speed voluntarily. A speed limit zone should not be introduced unless it is either self-enforcing or likely to be enforced. Roadwork speed limit signs should not be used alone but introduced in addition to other signs and devices already required by prevailing site conditions.

Where traffic controllers would be effective, particularly on short-term works, roadwork speed limits may not be necessary, but equally, where both are needed, both should be provided and reliance should not be placed on the use alone of either speed limits or traffic controllers. Speed limits shall not be used where alternative means of traffic control such as advisory speed signing would be adequate, nor should they be used to avoid the necessity for some other more appropriate action such as the use of a traffic controller to slow traffic at a critical location.

4.4.3 Selection of appropriate speed

The following principles should be applied in the selection of an appropriate speed limit:

(a) The speed limit applied to a zone should not exceed the maximum safe speed of travel which depends on the degree of vehicular and pedestrian activity, and the type and extent of the work in progress, as well as the characteristics of the road. The more frequent the incidence of conflicts or hazards on the road, the lower the maximum safe speed of travel.

(b) The speed limit should not be so low that a significant number of motorists will disregard it. Prevailing conditions vary over a length of road so any speed limit imposed is a compromise.

(c) Speed limits should encourage uniform speed of travel but be low enough to allow drivers time to react to unusual events or to directions by personnel or traffic controllers.

…

A guide to the selection of speed limits at roadworks is given in Table 4.2 NOTE: State legislation may specify the speed limits to be used in various circumstances.

4.4.6 Repeater signs

Repeater speed limit signs should be provided as follows:

(a) To confirm and remind road users of the speed limit where it is imposed over a considerable length and there are locations where it may appear that the limit no longer applies, eg between work areas in an extended work site.

(b) Where traffic enters from a side road and it is necessary to advise drivers of the speed limit in the road they have entered.”

Table 4.2 Guide to the Selection of Speed Limit at Roadworks

Speed limit km/h

Selection criteria

A fresh bituminous seal has just been laid

In rural areas, the appropriate speed limit for roads in progress is generally 60 km/h. For example, such a speed limit would be suitable for the protection of a newly-sprayed seal, thereby reducing the possibility of damage to vehicle windscreens. It would also provide a degree of protection for personnel where increased pedestrian, vehicular and plant movements occur at a work area in a similar manner to that encountered in a town area

25 It may be noted that the RTA Sprayed Sealing Guide also deals with the question of speed so far as it states, in Section 6.6 under the heading Traffic Control Procedures:

“Control of traffic is necessary in sealing work to provide for the safe movement of traffic and the protection of persons and property through and/or around the work site. Control of traffic is also necessary during the early exposure of a fresh sealing treatment to traffic. All traffic control must be carried out in accordance with RTA Specification 1002.

“During spraying operations it is essential that traffic be detoured or stopped for short periods. The work should be organised so that any delay to traffic is limited to less than 15 minutes. In order to control vehicle speeds, a temporary 60 km/h speed zone should be established. This zone should extend at least 100 m beyond the limits of the work and should be left in force until after all excess aggregate has been removed from the seal. Local Police should be notified for surveillance to ensure that the speed limit is complied with.”

26 Having regard to the 75 km/h sign which was still in use, and which was the last traffic advice presented to a motorist entering the top bend, (located at a point approximately 350m back from the point at which the plaintiff’s vehicle left the road), it must be regarded as having been reasonably foreseeable that a motorist observing it would consider it appropriate to approach this bend at a speed of that order. It must also be regarded as having been reasonably foreseeable that users of this road would include drivers of varying degrees of experience and competence, as well as motorists using small vehicles with front wheel drive. Similarly, it must be regarded as having been foreseeable that a motor vehicle exiting the roadway on the western side of the roadway over the embankment would drop a considerable distance and would be most likely to roll over.

3. Factual Issues in Relation to the Road

27 Before turning to the critical issue as to cause of the plaintiff’s accident, it is convenient to deal with two factual issues concerning, first, the signs in use, and secondly, the marks left on the roadway by the vehicle.

a) Loose Stone Signs

28 The first of these questions concerns the presence or otherwise of one or more loose gravel or loose stone picturegrams, along the relevant section of roadway where the resealing was taking place. None of Mr. and Mrs Goodfellow, or Constable Stone recalled observing any such signs. Senior Constable Keogh, who attended the area for the purpose of conducting a scientific examination of the scene, travelled back over the roadway for the purpose of noting the signs in position. Apart from noting the signs already mentioned, he observed one “stone throwing” sign at a point 1.4 kms south of the Winburndale Bridge. He did not note any other such signs.

29 Mr. Vautin, the Works Manager of the Council, initially said that in addition to the signs previously mentioned, there were at least six gravel picturegrams in the Nobby’s Hill area of roadworks, three facing to the south and three facing to the north. According to him, these comprised signs depicting two cars with a stone flying from the wheel of one vehicle and a star in the windscreen of the second vehicle. Mr. Vautin initially said that for a southbound motorist, the first of these was fixed to a guidepost at the northern commencement of this section of sealing work, the second was located near the right hand bend at Ardsley Lane, some 500 metres up the road from the bridge, and the third was at the beginning of Nobby’s Hill, a further 300 metres south of Ardsley Lane. These signs he said were erected by Pioneer. Although he could not recall the location of any other signs, he thought that there may have been several more such signs, it being his impression that they were spaced along the works every few hundred metres or so. However, it became evident, when Mr. Vautin was recalled on 7 August, that he was in fact “unaware of the Pioneer signs that (had been left) on site” in the “after care”, ie post sealing stage. He said in this respect:

“I presume Pioneer would have erected some signs on the road works, but I can’t recall what they were”.

30 On any view, this was a significant departure from his very firm earlier insistence that there were stone warning signs in place at the specific locations which he had then identified. It seems more likely that his recollection was somewhat general and directed to the situation as it existed during the spray sealing stage, over the three separate sections upon which work was undertaken, rather than the “after care stage” in the Nobby’s Hill area.

31 His evidence in relation to this question may also be considered in the light of the fact that, in his original statement Mr. Vautin had said that he had observed “very little loose gravel on the roadway”, none of which answered the description of being “stacked layers” or “windrows” of aggregate. In cross examination, he conceded that in “certain parts” of the roadway, there was “substantial aggregate” on the bitumen, and that it was more than he had suggested in his statement. This did not reflect well on his overall credibility.

32 Conversely, so far as he was cross examined to suggest by implication that he had fabricated the evidence concerning the picturegrams, it is the case that, in an earlier draft of a statement which he had made, he had referred to “Pioneer Road Services warning signs’ having been erected by “their sealing crew” although without identifying where they had been, or what precisely they had comprised.

33 I find, in these circumstances, taking into account, additionally, the absence of any witness from Pioneer, that the signs present were confined to those which were specifically recorded. They included, I find, only the one “stone damage” pictogram which Detective Senior Constable Keogh noted. I am not persuaded that there were any other such signs still in position along the climb up Nobby’s Hill to the top bend.

b) Tyre Marks on shoulder

34 There was also an issue as to whether there were or were not any tyre marks in the gravel on the eastern shoulder of the road, which may have been consistent with the plaintiff’s problem having begun when her near side wheels drifted off the roadway

35 This has a relevance for the fourth of the possible scenarios which were investigated as having been the cause of the accident. It rested substantially upon the evidence of Messrs Savage and Bardell, employees of the Council who had arrived at the scene after the accident, and who had assisted with traffic control, and who had stopped off there again, at about midday, while returning to the Council depot.

36 Mr. Savage said in a statement which he made in October 2000, that he observed at the time of this second visit, that there was “a line from the heavy skid marks in the middle of the road to a position where the vehicle had gone off the tarred shoulder of the road on the left hand (ie eastern) side of the road”. He added that:

“At that point the tyre marks were about one foot off the left hand side of the roadway. The tyre marks went from the gravel shoulder then veered in a distinct line to a skid. I then observed four sideways skid marks from the middle of the road to the edge of the embankment where the vehicle appeared to have gone over.”

37 He agreed that the additional marks “off the left hand side of the roadway” were not evident in any of the photographs taken that day.

38 When questioned further about those marks, it became by no means clear what it was that he was referring to, since he said “there wasn’t any actual mark”; rather there were “scuff marks off the edge of the bitumen”. Although he had earlier said the marks were continuous, and had then said that they comprised a single tyre mark, he appeared later to be saying that what he observed amounted to a scuff or dust mark just on the edge of the road, adjacent to the guidepost at the point of the curve, followed by a gap, which he said was in the order of five metres or so, to the marks on the road surface. The point which he indicated for the scuff mark, however, would necessarily have to have been closer to twenty metres away from the marks on the bitumen. By this stage of the evidence, it had become clear that he was not describing a continuous mark between the shoulder and the tracks left on the road, and that at best he was reconstructing or assuming a connection between whatever it was that he saw.

39 Mr. Bardell provided a statement in October 2000, in which, similarly to Mr. Savage, he reported seeing tyre marks in the gravel on the left hand shoulder of the road. In his words:

I observed a number of skid marks on the road. I estimate that I saw the first skid marks on the gravel shoulder approximately 30 metres back from where I observed heavy skid in approximately the middle of the road. I could clearly see a set of tyre tracks off the bitumen on the left hand side of the road where it appeared that the offside wheels had travelled in the gravel for a short distance of about 4 - 5 metres before pulling on to the tar.”

40 He said that he made a contemporaneous diary note, which was produced, recording this observation. The relevant observation, concerning wheel marks in the gravel “15 inches in from sealed edge” comprised marginal notes, which he said had been written later that day. To some extent, they provide a prior statement consistent with his evidence, which needs also to be considered in the light of the circumstance that, in cross examination, he added that he observed a “sheen of rubber” on the bitumen surface “in both directions … towards the bank where the car went over and prior to that back to and from the corner”. These marks he said “followed … right back to the gravel shoulder”, as a “continuous mark”.

41 This piece of his evidence does not accord with that of Mr Savage who seemed, at the end, to suggest that there was not a continuum of the marks from shoulder to shoulder. Moreover, to a degree Mr. Bardell’s impartiality was questioned by his refusal, in cross examination, to acknowledge that there was any loose gravel on the road.

42 Mr. Savage’s evidence was so uncertain and so contradictory that it should, in my view, be entirely disregarded. While Mr. Bardell was more consistent in his account, his observations simply do not sit with those made by Constable Rose and Detective Keogh, whose function and training it was, to look for such marks and who did not observe them. Nor do they sit with the photographs taken immediately after the accident occurred.

43 The explanation for any marks which Messrs Savage or Bardell may have seen at midday, ie assuming that they saw any, in my view lies more credibly in the circumstance that, during the period before they made their observations, there were many other vehicles stopped in the area, including a fire truck, a tow truck, an ambulance, several police vehicles, and council vehicles, as well as those of motorists who stopped either to render assistance or to have a look. Any one of them could have left marks in the shoulder. For these reasons I am not persuaded that there were tyre or scuff marks left by the plaintiff’s vehicle in the gravel on the left hand shoulder of the roadway, or that there is any factual basis for concluding that the accident was caused by her driving off the carriageway in this area onto the gravel shoulder, and then losing control as she tried to correct the situation.

D. THE CAUSE OF THE PLAINTIFF’S ACCIDENT

44 The critical issue which arises is whether the accident was due solely to driving error on the part of the plaintiff, or whether it was due to negligence, on the part of one or other of the defendants, in relation to the state in which the roadway was left, and/or in relation to the absence of sufficient or appropriate warning or advisory signs concerning the roadworks. It is only after this question is resolved, assuming it to be capable of resolution, that consideration can be given to the potential liability of the various defendants.

45 Its resolution requires a consideration first of the evidence of the other road users who had encountered the relevant conditions in the immediate period before the accident, as well as over the longer term, and next the evidence of the expert witnesses.

1. Lay Witnesses.

46 David Suttor of “Brucedale”, Peel, gave evidence of his experience with the road, and of its condition during the roadworks. It was his property which adjoined the road at the accident site, and onto which the plaintiff’s vehicle was propelled after leaving the carriageway.

47 He said that, following a number of accidents in the area, he had spoken to an employee of the Council, who he felt might have been Les Lovell, in the early 1990s, concerning the possibility of erecting Armco fencing adjacent to the bend at the top of Nobby’s Hill. He recalled informing the officer that there had been a number of accidents there, that he was concerned that someone might be injured because of the depth of the gully, and that his fence was being repeatedly damaged, leaving him at risk of his cattle getting out onto the road. He was informed that there was not enough money to do anything like that because it was expensive. It was his impression that at least 6 to 8 vehicles had gone through the boundary fence onto his property over a period of 30 years or so, and that these accidents had involved vehicles travelling both up and down the hill.

48 Shortly after speaking with the Council, he observed some reflective directional arrows being erected to depict the corner for northbound traffic. They were in place at the time of the plaintiff’s accident, and they were replaced with orange arrows on top of the Armco railing when it was installed.

49 He had similarly noticed, after the resealing work in the Nobby’s Hill area, that there were definite wheel tracks between loose gravel on the roadway. Otherwise, it was his impression that the road surface was well rolled in. The relevant corner, he said was a long corner which went a lot further than one might expect.

50 John Suttor, the father of David Suttor, also gave evidence in relation to the roadway, which was corroborative of that of his son, including the fact that there was a bit more to the bend than one might expect, ie it could be a “little sharper” than a motorist proceeding up hill would anticipate. He recalled having found himself on the wrong side of the road and agreed that there had been other accidents on the bend before the plaintiff’s accident, involving vehicles travelling in either direction which had ended up down the embankment on their property, or which had hit their fence.

51 Mr. Goodfellow, who had over 35 years experience driving on country roads of all kinds, said that he had noticed the build up of the gravel which had been left on the road during the resheeting, and the tyre marks between the accumulations. Driving in the tyre marks he said was “quite good”, although he thought that “if you got into the gravel… it would have been unsafe”.

52 His wife, who had used the road on a number of times between 24 February and 27 February, as well as previously, said that she had concerns with its condition because of the mounds of gravel which had built up in the middle, and on the inside, of the top bend, near the dam.

53 On the evening following the blue metal being put down, she said “You could feel it moving” as she drove over it. In cross examination, she explained that after the gravel had been moved by passing vehicles, particularly truck traffic, “you couldn’t go on the line around the road because there was too much asphalt (an expression which she used for gravel) built up (and) you had to follow the truck line”.

54 She also said that she always drove cautiously around this bend, and explained that there was a tendency for a vehicle taking the corner to go out and across the road.

55 Bronwyn Marsh, who came upon the scene soon after the accident and rendered emergency assistance to the plaintiff, reported that she had found the road surface to be slippery due to the loose gravel. Her vehicle she said “felt different”, and, by reason of the “poor traction”, she found it necessary to “slow down a lot”. She regarded the top bend as “quite a sharp corner”, the tightest in the area.

56 Senior Constable Rose, who arrived at the accident scene at 8.30am. gave evidence of his observations on the roadway, as well as of the impression, which he had previously gained, in relation to a possible difficulty with the top bend. As to the latter, he said that “if you drive too quickly around the bend … the (camber) seems to throw you to the right hand side of the roadway across the centre line.”

57 He observed the presence of gravel on the roadway, as well as tyre tracks on both sides of the centre of the road, which had been delineated by vehicles travelling over it. He said that the gravel had “started to build up into the centre of the roadway and to both sides of” it. The loose gravel in the centre of the road, he said, appeared to be similar to a windrow.

58 At the point of commencement of the yaw marks left by the plaintiff’s vehicle (as shown in photograph 5 of Exhibit A) he said that there was a slight change in the texture of the road surface, where the road was clear of gravel. There was a build up of gravel, he confirmed, on the left hand (ie eastern) side of the road.

59 It was his opinion that a safe speed for the top bend upon the day of the accident, was 60 kp/h or less, because of the fact that the road was newly sealed and had loose gravel on its surface, and because the camber on the curve had the effect of tending to direct a southbound vehicle towards the centre of the roadway. He confirmed that he had examined the advisory speed curves, and found that the 75km/h sign was in place, and had not been covered with hessian or otherwise obscured, as is commonly done when roadworks were taking place.

60 Det Senior Constable Keogh, a member of the Crime Scene Unit, provided a statement in relation to his observations of the accident scene. Inter alia, he reported that the drop in the embankment where the plaintiff’s accident occurred was in the order of 5 – 6 metres, and that extending along the bottom of it was a dry creek bed. He recalled observing “minor areas of loose gravel” on the road surface, with “very minor build up of gravel” in places covered by tyres tracking through it. He said that he did “not observe any major areas of build up of gravel prior to the skid marks” or “any other tyre marks on the roadway”, prior to those skid marks. He added:

“From the tyre marks I observed at the scene it would indicate that the vehicle was travelling in a sideways direction when these marks commenced. I could find no evidence to the north of the vehicle marks of any skid marks on or off the road to indicate at what point the vehicle lost control.

61 He also said:

“The gravel on the road was formed into tracks so that gravel was located along the centre and outside portions of the road. However, there were no build ups of gravel to such a depth on the road which might cause a vehicle to lose control. However obviously once the vehicle is out of control then any loose gravel would not have assisted the driver in regaining control.”

62 Detective Senior Constable Keogh explained that the distance from the starting point marked on his rough sketch (indicated by a fence post on the eastern side of the top bend), to the first tyre mark in the gravel was 43.5 metres.

2. The Expert Evidence

63 A number of experts were qualified by the parties. They were as follows:

· Mr. Johnston

· Mr. Hespe

· Mr. Keramidas

· Mr.Richmond, and

· Professor Yandell.

a) Joint Experts Report

64 By reason of the differences in their reports, and in the interests of narrowing the factual contest in relation to causation, a joint conference (between all experts other than Mr. Johnston) was convened, which led to the production of a joint statement in the following terms:

“1. Signage

1.1 Provision of Standard Signage Required for the Site in Normal Conditions

There are two curves, one just prior to the accident site and one at the accident site. The curve just prior to the accident site is provided with a multiple curve warning sign with a 75 km/hr advisory speed plate.

We agree that under normal operating conditions the curves should have been provided with individual curve warning signs together with appropriate advisory speed plates

We agree that a 75km/hr advisory plate was appropriate for the curve just prior to the accident site.

We agree that

for the curve at the accident site an advisory speed plate of 55km/hr or perhaps 60km/hr would be appropriate.

We agree that no other signage would have been necessary.

1.2 Provision of signage at the time of the Accident

The accident occurred after the application of the bitumen aggregate seal and before sweeping.

Signage should have complied with AS 1742.3 – 1985 Figure 5.25. Of the optional signs listed in Fig 5.25, the following are considered to be warranted:

‘NO LINES DO NOT OVERTAKE UNLESS SAFE’

‘SLIPPERY’ and

‘LOOSE STONES’.

There is not sufficient evidence available to us to fully determine the nature and location of signs that were installed on the site at the time of the accident. This includes the ‘LOOSE STONES’ sign(s) that have now been reported as installed at some point along the work.

We agree that on the information available, a

number of required signs were not there

,specifically:

“NO LINES DO NOT OVERTAKE UNLESS SAFE’ and

‘

SLIPPERY

”

We agree that due to the length of the work, the

signs should have been repeated along the works at intervals

that reflected the alignment and length of the site.

We agree that the above signs

should have remained in place until the road surface was finally swept

(2 and 3) and marked with centrelines (1).

We agree that it would have been

appropriate

practice to

cover the curve advisory speed plates

during the period of the works and until the works were fully completed.

We agree that the installed ‘

REDUCE SPEED’ sign was not sufficient

for the site.

We agree that while AS1742 does not require “Roadworks” speed limits for this site, the requirements of the RTA Sprayed Bituminous Surfacing Guide should be applied.

We agree that a

“Roadworks” 60 km/hr speed

limit as required by the Guide

should have been established

for this site, and signs erected and

left in place until the road surface was finally swept.

1.3 What was the extent of Centreline Markers

There is limited information available. The police photographs indicate the presence of “stick and stomp” centreline markers on the road pavement at the time of the accident. A number of these were also observed near the accident site. The total number and spacing of the markers is not known. Without further evidence it is assumed that the markers extended for the length of the work.

Stick and stomp markers are normally applied to the surface of the road prior to applying the seal. The markers protrude through the new seal. There are protective strips on the new markers that need to be removed after the seal is complete to allow the reflective surfaces to work at night or conditions of poor visibility.

We agree that based on the limited information available, it appeared that the protective strips may not have been removed from the reflectors. We agreed that this would not be material to the series of event resulting in the accident, but may be material to the control applied to the site after sealing activity and before the accident.

2. Guard Rail

2.1 Whether or not, Where, and When, there should have been Guard rail

We agree that considering the nature of the widening works in total, the

provision of guard rail should have been considered at the time the shoulder widening

work was planned.

We agree that the curve

demonstrates a warrant

for the installation of guard rail when assessed using MR Form 246.

We agree that chain wire mesh fencing was not an appropriate installation for consideration.

We agree that there is no requirement to account for water at the bottom of the embankment in assessing the warrant for installation of guard rail. The creek bed is dry and, most likely, flows only during storm water runoff for short periods.

We agree that the warrant for installation finishes on the straight roadway just to the north of the point of departure of the vehicle from the roadway (at the point of the northbound curve warning sign south of the curve).

For installation construction purposes, the exact location of the southern end of the guard rail is selected by judgement and site influences. At the

minimum

the total guard rail system (rail, and terminal end treatment) would

end somewhere near to the point of vehicle departure

from the roadway.

We agree that this is a marginal situation and

to err by installation of a longer length

by extension to the south might have

been prudent

on balance. [Mr. Hespe believes that the word ‘might’ should be replaced with the word ‘would’]

This matter of end location is often related to construction practicalities. On this site the difficulty is related to the existence of sufficient widened space on the embankment to allow for installation of the terminal end that includes a flared lead-in transition length. In this case lengthening the barrier to a point well to the south of the point of need may well cost less than creating a section of widened embankment.

2.2 The likely effectiveness of the Guard rail

We agree that the exit speed of the vehicle would have been from 25 to 35 km/hr.

We agree that there was a

high likelihood

that guard rail (Steel W Beam)

would have arrested the vehicle motion and contained it within the carriageway

. This would have prevented the vehicle from going over the edge and down the embankment.

3. Superelevation

3.1 What was the superelevation of the curve

We agree that the superelevation of the curve was in the range 13.5 to 14%.

4. Loose Aggregate

4.1 Should there have been loose aggregate on the road

We agree that control of the aggregate application for the works was within tolerance ordered and expected for this class of work.

We agree that this left some loose aggregate on the road surface. We agree that the

issue of loose aggregate should not be considered separately from the signage and management of the site

We agree that there

should have been monitoring, management and control of the site after application of the seal and before final sweeping of the road surface

We agree that on the information available,

the signage provided was less than that required

(see 1.2 above)

for the conditions presented with loose aggregate present

We agree that when

considered with the absence

of signage and

control or monitoring

, then

there should not have been loose aggregate on the roadway

Therefore the road should have been swept earlier or appropriate signage and controls put into place.

5. Vehicle Behaviour

5.1 What happened to the vehicle before the commencement of the 26m of marks on the roadway (what initiated the loss of control)?

We generally agree on the behaviour of the vehicle from the beginning of the skid marks left on the road.

We agree that we have seen no probative evidence that would provide a scientific basis for determining the location or the cause of the loss of control of the vehicle.

Each of the experts individually, is unable to provide a definite view of the initiation of the loss of control.

We agree that there are various possibilities that exist, none of which can be presented as the joint, or only, view.”

[the emphasis is mine]

65 By reason of the matters agreed in this document, in relation to “signage”, control and monitoring of the works, the continued presence of gravel, and the provision of a guard rail, (which accord generally with my own conclusions, subject to the more specific findings later made), it is not necessary to review the evidence which the experts gave concerning these matters, save in relation to the position at which a guard rail adjacent to the top bend, if installed, should properly have terminated. Since there is an associated issue concerning the question whether its presence might or might not have saved the plaintiff from the disastrous injury which she sustained, or conversely, might itself have led to a similar outcome, I shall return to that aspect of the case later.

66 As is apparent from the report, the experts were unable to agree jointly, or to provide individually a definitive view as to the cause of the loss of control of the plaintiff’s vehicle, ie to a scientific standard of proof. It is necessary therefore to further explore the possibilities which they identified, as well as the factors in support of, or contradictory of, those possibilities.

67 In this regard, I proceed upon the basis that the burden of proof which rests upon the plaintiff is to prove, upon a balance of probabilities, that the loss of control of her vehicle and the occurrence of the accident was due to some condition, or set of circumstances, for which one or other of the defendants was responsible, either through act or omission. That burden of proof, however, falls short of proof to a scientific standard of certitude and validation.

b) The possibilities

68 The possibilities which were variously explored with the experts can ultimately be reduced to the following:

a) loss of traction on the left horizontal curve, caused by the presence of loose gravel, in a turn with the radius and camber which it possessed;

b) error on the plaintiff’s part through inattention, distraction, or insufficiently precise steering, which allowed her vehicle to drift too far out to the right over the centre line as she took the curve, to which she responded by steering to the left in order to get back onto the correct side of the road, followed by overcorrection, which reaction initiated instability and loss of traction and control;

c) contact with some discontinuity in the road surface which caught a wheel and initiated a yaw, to which there was then an over correction;

d) an intermediate possibility in which the broken back nature of the turn was the catalyst for the turn being slightly tighter than the plaintiff had reasonably expected, for which there was no capacity for accommodation, because of the reduced friction due to the gravel on the roadway.

69 For the reasons previously mentioned, I am not persuaded that there is any relevant factual basis for the fifth proposition. Had the plaintiff’s vehicle drifted off onto the gravel shoulder on the left hand side of the road, then I am satisfied that marks of that occurrence would have been observable to Senior Constable Rose or Detective Senior Constable Keogh. This scenario can in my view be excluded, and I will not trouble further with it.

c) The Expert Witnesses

70 The first of the experts called by the plaintiff was Mr. Johnston, a consulting engineer, who has had significant experience in road crash investigations and roadway improvement, particularly during his employment by the NRMA. He also had experience while working as an engineer with Walker Engineering, whose business predominantly involved that of road construction.

71 It was his assessment of the roadway surface, as depicted in the photographs, that in places there was more than one thickness of aggregate on the roadway – a condition which he said led to “aggregate rolling on aggregate with a consequent reduction in the available friction”.

72 In his opinion, the wheels of the plaintiff’s vehicle had skidded on the road surface, probably as a result of a critical speed failure, leading to a loss of traction between the tyres and road surface followed by an over correction. This led to it undertaking a yawing or rotating movement, from which the plaintiff was unable to recover.

73 He, like the other witnesses, was unable to pinpoint the precise position where the plaintiff’s initial loss of traction, and hence of control, occurred. He was, however, firm that what occurred was due to loss of traction on the loose material. It was his feeling that the loss of traction “probably occurred because the wheels moved slightly out of or onto the edge of the wheel tracks” where there was a layering of stone.

74 He accepted that he could not say with certainty that his preferred view was the case, although as a matter of probability, he said, that he believed that to be so. When further tested in this respect, he gave the following evidence:

“Q. What physical and objective matters do you say you relied upon in forming your view?

A. The behaviour of the vehicle, the geometry of the roadway, the presence of the loose gravel, the apparent speed of the involved vehicle. I think they are the primary factors.

“Q. Well what physical signs were available for you to rely upon in forming a view about what caused this accident?

A. That the vehicle had lost traction on a curve containing loose gravel. When the signs are first visible the car at that point is out of control, it has already lost traction, it is rotating. It may have been a corrective manoeuvre of some sort --

-- following a previous loss of control, because when the marks start or visibly start the car is not travelling longitudinally, it is rotating, it is substantially sideways travelling around a left curve of a certain radius, at an unknown but estimated speed by a following vehicle, which contained loose gravel.”

“A . You can tell the way the marks are separating the degree of rotation. The car is not physically spinning, there is some rotation from the start to the end. It didn’t start spinning from the first part of the angle just before the marks start and slowly went. That rotation, unless acted upon by some external force, must have been continuous, the speed of that rotation. Therefore it has happened in the curve , it must have happened in the curve, nowhere else.

Q. Would you have not expected there to be signs of loss of control in the curve? A. if it was looked very closely, yes, I would have.”

75 The marks in the photographs, and as recorded by the police, he described, accordingly, as “secondary marks”, occurring after the vehicle had lost control at or before the exit from the curve. He surmised that there had not been sufficient investigation at the time to look, for example, for scratch marks of the kind that would have been left by stones that had moved across the surface. While this was a matter of supposition, and while much was sought to be made of his concession that he was unable to identify precisely where the loss of traction and of control began, he remained firm that it was somewhere in the curve.

76 His opinion, which was clearly based upon the fact that the vehicle was already sliding at an angle, before the marks in the gravel were first laid down, is encapsulated in the following passage of his evidence:

“… on the balance of probabilities, what we know was there was loose gravel, the critical speed in that loose gravel was equated very closely to her speed, therefore in my opinion as an expert, that was the probable cause of the loss of control.”

77 As he later explained, it was the plaintiff’s “attempt to correct a critical speed failure” that caused the clockwise rotation or yaw that eventually took her vehicle off the road”. He also confirmed that, in his opinion, the amount of loose material that had been “left unswept with the road open, unsignposted, was excessive”.

78 The contributing effect of the gravel he described as follows:

“A. She entered a section which contained enough loose gravel that, at her speed, she lost traction. If she was doing 50 kilometres an hour maybe, then she would probably have to get into the thicker part of the material to lose traction. At 60 or 70 then the higher values of friction which was the more dispersed loose gravel, but still a quantity of loose gravel more than should remain, would have been sufficient.

“Q. Perhaps I could ask you to do this, if you would: Could you describe as best you can, if you can, the path of the vehicle, its behavioural path from the point where you assume it lost traction leading to a loss of control?

A. I can probably describe the start reasonably and the end reasonably. The middle bit’s probably less certain. The vehicle’s probably travelling around the curve, probably initially in the wheel tracks, the vehicle has shifted position laterally slightly, it has hit, or it has travelled over a slightly thicker section of gravel or a more dense section of gravel. On the edge of those wheel tracks that would have initiated a critical speed loss of control, probably resulting in anti-clockwise rotation looking down on the vehicle, that’s the rear of the vehicle going right. From that point there has been definitely another input either by the driver or by – probably by the driver, but maybe by some other means at least, which has been at least an attempted corrective manoeuvre and the vehicle has then commenced to rotate clockwise and has left the road. Whether there was a couple of corrective manoeuvres between or what happened in between I can’t be certain. That part of it is not as, not really supported by anything I can draw any conclusions from.”

79 The alternative theory of the plaintiff having carelessly crossed to the incorrect side of the roadway, and then losing control by over correction while endeavouring to return to the correct side of the road, he accepted was a possibility. However, had she done so, he said that he would have expected to see signs of it in the form of the vehicle having crossed through the windrow rather than travelling largely longitudinally on the edge of it. In that regard, he also pointed out that the marks which were apparent commenced on the correct side of the road for a southbound motorist.

80 In relation to the intermediate theory of the plaintiff’s vehicle unexpectedly drifting out because of the nature of the bend, he agreed that this was a “broken back curve” ie a curve with two different radii in close proximity, which required a driver effectively to turn twice. That, he said, was in itself “a serious geometric hazard” and part of the reason why extra attention to signposting and so on in this vicinity, was necessary. It was also something, he acknowledged, which meant that a driver could end up travelling in an arc which would take a vehicle onto the wrong side of the road. It would then be necessary to make a turn back to the left in order to return to the correct side of the road.

81 While this scenario, he accepted, was possible, he did not agree that it was as probable as the theory which he advanced.

82 The fourth possible scenario (ie of the plaintiff hitting the gravel shoulder on the inside of the curve and then over-correcting to get out of the gravel) Mr. Johnston accepted, could also have provided the initiating cause for loss of control, assuming that there had been the evidence (which I find was absent) to support that occurrence. He did, however, incline to the view that the problem was more likely to have involved the offside wheels rather than the nearside wheels, because of the weight transfer which he believed to have been involved.

83 Mr. Johnston said that the probability of the loss of control occurring in the way which he postulated, was exacerbated by the removal of line marking, and also by a circumstance which he incorrectly assumed to have existed, namely the removal of previously installed wire mesh fencing. The relevance of these two considerations, which were not, to my mind, diminished by the elimination of the second, he considered was related to their likely effect in “reducing lane discipline”. As he explained it:

“This means that although the loose gravel would be expected to form wheel tracks with windrows of gravel between those tracks, it would generally be expected that the lateral placement of vehicles across the pavement would vary considerably more than if line marking was present and reasonably tight lane discipline maintained. The effect of this is to increase the probability of a vehicle’s wheels entering the windrows with a resultant probability of a vehicle losing control.”

84 The second expert called in the plaintiff’s case was Mr. Hespe, who was a civil engineer with experience, gained over 20 to 30 years, in road design.

85 He did not consider it to have been safe to have left the road, in an uncontrolled situation, with the amount of gravel which had been left, ie without a controller or appropriate “signage”. Like Mr. Johnston, he concluded from the photographs that there was loose gravel heaped between the tyre tracks, and a small amount of gravel even on the marked or “nominally cleared tracks”.

86 He confirmed that the presence of loose gravel on a sealed pavement is inherently dangerous, since it operates so as to materially reduce the effective friction force between the tyres and the pavement. As he observed:

“On straight stretches of road a sufficient depth of loose gravel can give rise to a significant reduction in directional stability, but on curves even a shallow depth of loose gravel can be dangerous because of the need of the friction force to keep vehicles on the desired course. This is particularly so on the main roads and highways, because most drivers, used to city and suburban conditions, are not capable of recovering from loss of tyre/road surface friction.

87 Another circumstance of relevance which he identified in this regard, was the type of vehicle which the plaintiff was driving. He said, in his report:

“Again it could also be said that she

could

have come to grief on any of the preceding curves or for that matter even on the straight sections of the road – such is the inherent danger of loose gravel combined with a lightweight front wheel drive motorcar of Asian origin. This type of vehicle; which constitutes a considerable proportion of vehicles on Australian roads today, and for which therefore road conditions and standards should be prepared; is dangerous in the hands of other than expert drivers in marginal conditions. The road conditions at the time and location of your client’s accident were marginal. In marginal conditions this type of vehicle becomes unstable and very suddenly and usually without warning – feeling very safe and stable until it suddenly breaks away. The only chance of recovery from such a breakaway is hard acceleration, but in vehicles in the lower end of the power range this is not usually possible. Further the average driver’s reaction is to ease off the throttle, as this is the appropriate reaction for rear wheel drive vehicles but is fatal in front wheel drive vehicles. Again, very often the vehicle will turn through 180-degrees within the reaction time of even good drivers.”

88 The plaintiff’s reaction, as she described it, was exactly that described by Mr. Hespe as inappropriate – namely to slow her vehicle, although whether that was by braking, or easing off the accelerator, she did not say. Nor does it seem to matter, since the only correct response was that of hard acceleration.

89 The fact that the road surface was slightly uneven and had a ridge at the junction between the original pavement and the newly sealed shoulders, Mr. Hespe thought “could well have added to the instability of a vehicle traversing this part of the roadway”. That ridge he said was at most 5 to 6mm high, but it varied along the length of the curve. As he explained:

“A. Well, as a vehicle is travelling over an uneven road surface, depending on the unsprung weight of the vehicle, the wheels will not exert a continuous force onto the pavement and since the friction force is proportional to the vertical force, friction between the wheels or the tyres and the surface would change and if you couple that with the loose material, that would add to the risk of losing enough frictional force to prevent [sic] the vehicle from breaking away.

90 Mr. Hespe offered the following opinion as to cause of the plaintiff’s accident:

“that [she] lost control of her vehicle principally and probably solely because of the loose gravel on the road surface. It seems to me that the likelihood that the wheels of her vehicle diverged from the “cleared” tyre tracks in the loose gravel is high and that once having done so the friction between the tyres and the road changed from limiting to sliding, and due to the inherent instability of this type of vehicle in such conditions the vehicle spun towards the outside of the curve. It is highly unlikely that your client had the slightest chance to do anything about it once the condition of sliding friction became operative.

Again it is quite possible that the uneven surface of the southbound lane could have contribute to the initial instability or that the ridge at the junction of the original pavement and the newly sealed shoulder caused the vehicle to “tramtrack”.

I have said above that it is my opinion that the heaped gravel between the “cleared” tyre tracks initiated the loss of limiting friction and I am still of that opinion. However, it is also my opinion that there was sufficient loose gravel in the “cleared” tyre tracks to initiate a sliding friction condition. This mode of failure would probably have occurred at a higher critical speed than the first mentioned mode”.

91 He added, reiterating some of the factors previously mentioned:

“The road geometry may have had an effect in that the subject curve is tighter than the immediately preceding one but is signposted by the same advisory speed sign. As detailed … above it is my opinion that to most drivers these two curves would appear to be one longer tightening curve. This is a dangerous condition particularly in the circumstances where there was loose gravel on the road. Many drivers would instinctively at least ease throttle and probably even brake on realising that the curve was tightening. If this is indeed what (she) did there was no further hope of her avoiding an accident.

92 Later, he expanded on this feature, when noting that there was a difference in the navigability of the two curves covered by the 75 K/ph advisory sign, by adding:

“In technical terms those two curves are called a broken back curve, which simply means there is a first curve, a short length of straight, and then the second curve. In my opinion a great number of drivers would look on it as being one continuing but tightening curve, and in that case it is called a compound curve. That is a very dangerous situation, and it is warned against in the Road Design Guide issued by the RTA, and the reason it is dangerous is that drivers going into the first curve set their speed and their attitude for that curve, and then when the second curve comes upon them it catches them by surprise so to speak, and if I can expand on that a little, the Road Design Guide also says that compound curves should not be road on radii of less than a thousand metres, and that the ratio between the two curves should be no more than 1 to .75 and certainly no more than 1 to .5, whereas we know that the subject curve had a radius of only 100 metres.”

93 His opinion as to the likely progression of the plaintiff’s vehicle, and as to the cause of the loss of control, which led it to commence rotating in a clockwise direction, while progressing along the road, as evidenced by the tyre marks, was encapsulated in the following passage of his evidence:

“A. I believe it started to get into trouble in the tight curve, in that 100 metre radius curve, and it probably was exacerbated by the fact that that curve is, as I said earlier, the second curve in a compound curve or the second curve of a broken back curve of a much tighter radius than the first curve. So that would have created a situation of ambuscade almost. So that when the driver got into that curve, irrelevant as to what the speed the vehicle was travelling, that curve created an additional problem. That was probably the fundamental initiator of the accident, which again probably wouldn’t have happened if there hadn’t been gravel. In other words, the difference between the safetiness of that curve or not was the gravel. So the first factor is the curve itself and its relation to the previous curve and the whole geometry of the road at that point, and then the second factor is the gravel on the road.

Now that gravel can be considered in two parts. There is the part that has been pushed into windrows by previous traffic, and a great deal of that traffic was heavy trucks because that road is used a lot by heavy trucks, and hence that cleared part, if we can call it the cleared part or the tyre tracks would have caused windrows of gravel between those cleared tracks. But even on the cleared tracks themselves there was scattered stone. Now, I don’t want to have to say was there one every two square centimetres or whatever, but there was scattered stone in those tracks, and it is my opinion that trouble could have been caused by that stone, quite apart from the windrows. But I think on the balance of probabilities the wheels of the subject vehicle got into a windrow.”

94 He added that once the vehicle became unstable:

“…. there was very little chance of the driver being able to recover and in my opinion the rear wheels probably moved to the right, that is out of the curve and thence the beginning of a yaw and whether the driver attempted to correct that or not again I think is probably irrelevant but if the driver attempted to correct that, she would have probably turned to the right because that would be the normal response. But whether she did or not, as I say in my view is irrelevant because the vehicle then either because of the driver or in any case fishtailed is the general expression used, in other words the vehicle yawed about its centre of gravity and then continued in a right-hand or clockwise rotation and that is where these marks on the other police photographs became evident.

Now, in my view, none of those marks represent locked wheels. In my view the wheels were still rolling at the time they made those marks and they are made because the wheels weren’t rolling in a true direction, they were rolling across the direction of travelling, so that you had that effect of the wheel making a mark on the road through the gravel windrows and slightly across the so-called clear tracks. Now, the vehicle veered to the right as a result of the initial break away, the fishtailing and by the physics involved in the vehicle, that when it started to – because of the left-hand turn and the way the wheels and the engine were rotating, that it would tend to swing clockwise about its own vertical axis and that was the final determinant of what happened.

95 When asked why there were no marks evident on the road before the yaw marks, he offered the view:

“I think that is because the vehicle was still then much more oriented to the direction of travel so that there wouldn’t have been the criss-crossing, if I can use that expression, that there was where the yaw marks in photograph 4 for example took place. So that there would be less likelihood of the vehicle showing very explicit marks on the road.”

96 Apart from the contribution of the gravel to the initial instability, he suggested that its presence would have made it more difficult for the average motorist to recover from that position, observing:

“If you’ve got a small patch on the road with loose gravel on it and if you lose control because of that, the moment you exit that patch and get on to a fully bound surface, there is much more likelihood that you can correct any problem that occurred during that small patch. But in this case, where the entire road surface has loose stone on it, it becomes very difficult and in a lot of cases impossible to recover.”

97 In cross examination, following the joint conference, he made it clear that he adhered to his opinion that the principal and probably the sole cause for loss of control was the presence of loose gravel or stone on the roadway. He made it plain that he had considered all of the possible hypotheses which had been explored, and accepted that each was possible. However, when they were individually tested against the evidence, he had reached the view that only the one which he favoured was shown to be more probable than not.

98 In dealing with the other possibilities, he drew attention to the plaintiff’s recollection of feeling the steering wheel pull to the left. While recognising that there were a number of possible reasons why she might have felt that sensation, as identified by Mr. Richmond in his evidence, there was one, in particular, which he believed could have been the cause for it, and which was consistent with his opinion. This related to the “failure of the rear wheels to track properly around the curve because of the loose gravel”. This he thought was supported by some marks which he identified in photograph 3 (Ex A), the reference point for which appears as a white spot in that photograph, which were “definitely indicative of the commencement of a counter clockwise movement of a vehicle” whose “rear wheels were moving out (or breaking out) of track.” He did, concede that he could not be certain that these marks had been left by the plaintiff’s vehicle; as distinct from some other vehicle; although their coincidence of presence would suggest, in my view, that this assumption was, more probably than not, correct.

“… clearly established that the appellant’s brain damage reduced her ability to determine whether it was appropriate or responsible or reasonable for her to have children, either at all or in the circumstances in which she conceived and bore these children. The appellant’s conduct in having children, even if it could be objectively viewed as unreasonable, was caused by the respondent’s negligence and consequently there was no break in the chain of causation.”

504 Beazley JA considered that an associated argument, to the effect that the appellant had failed to mitigate her damages by electing to have children ran into a similar difficulty. It was difficult, her Honour observed, to see how the appellant could have mitigated her damages, save perhaps by sterilization, when the behaviour which led to her pregnancies was a result of her frontal lobe damage. In any event, there were problems in law in securing sterilization of a patient subject to the Mental Health Act 1990, and in the fact that there is probably a common law right to procreate: re “Jane” (1988) 94 FLR which is recognised in the International Covenant on Civil and Political Rights (Article 23(a).)

505 None of these considerations arise in the present case, there being no evidence to suggest that any injury to the plaintiff’s spinal cord, or to her resulting state mental state has affected her capacity to decide whether or not to have a child. If she has a child it will be as the result of her own free choice, although made no doubt with the benefit of advice from others.

506 Whether there needed to be a link between an injury and the capacity to determine whether it was responsible or appropriate for the appellant to have children, was not finally determined by Mason P in a passage in Sullivan v Gordon at p.324 where his Honour observed:

“The birth of children is also linked to the accident, in a sense, because the appellant’s brain damage impacted upon her ability to determine whether it was appropriate or responsible or sensible for her to have children: see at [67] of Beazley JA’s reasons. I incline to the view that it would make no difference if this unusual link were absent, but I express no final view on the matter. An injured plaintiff’s own need for personal care includes changing needs occurring throughout his or her lifetime. Nevertheless, it may be necessary to consider whether it is always reasonable to lay at the tortfeasor’s door the cost of care for children born after the injury. Pure logic is not the only matter at play in this difficult area of the law.”

507 Some reliance was placed by the defendants upon the decision in CES v Super Clinics (Australia) Pty Ltd (1995) 38 NSWLR 47. That was a case of an unwanted birth, following a negligent failure by a number of medical practitioners to properly diagnose the plaintiff’s pregnancy. The plaintiff sought, inter alia, the costs of rearing a child, which she incurred following her election to keep it. Priestly JA dismissed this aspect of the claim, noting (at 84-85):

“The point in the present case is that the plaintiff chose to keep her child. The anguish of having to make the choice is part of the damage caused by the negligent breach of duty, but the fact remains, however compelling the psychological pressure on the plaintiff may have been to keep the child, the opportunity of choice was in my opinion, real and the choice made was voluntary. It was this choice which was the cause, in my opinion, of the subsequent cost of rearing the child.

Putting the matter another way, in my opinion, if the test accepted by Deane J, in

March v E & M Stramare Pty Ltd

(1991) 171 CLR 506 at 522, and see Gaudron J (at 525) is applied, the defendant’s negligence should not, as a matter of ordinary commonsense and experience, be regarded as a cause of the ordinary expenses of rearing a child that is (sic) parent has chosen to bring up.

The plaintiff, having chosen to keep the child in the human way that as I have said I think most people in the community would approve of, is not entitled to damages for the financial consequences of having made that difficult but ordinary human choice.”

508 While decided by reference to causation theory, the case is not one from which any clear ratio can be drawn, having regard to the dissenting judgment of Meagher JA and the different approach taken by Kirby P. I am not inclined to the view that it assists in the resolution of the present case, which is concerned with a somewhat different factual situation.

509 The plaintiff, in the present case, had a potential capacity at the time of the accident, to conceive and to raise a child, without the need to pay for a carer. At the time of trial she wished to continue to exercise that capacity, but by reason of her accident induced disability, its exercise would occasion her extra cost of a substantial nature.

510 The decisive consideration, in my view, is whether it would be reasonable for her to now have a child, or whether it would be unreasonable to the point where the chain of causation was broken. I am of the view that, notwithstanding the emotional advantage to the plaintiff of having a child, and the natural desire that she be able to achieve fulfilment as a mother in that regard, it would be unreasonable for her to do so. The risks to herself and to the child, and the uncertainties and the practical problems involved at all stages between conception and delivery, as well as those associated with the management of an infant, in her special circumstances, cause this to be so.

511 Independently of that conclusion, it also appears to me that, in the light of the advice which Dr. Newlinds has given, and in the light of the counselling which she is likely to receive, it is improbable in the extreme that she would go ahead, to the point where the chance of her delivering a child are so speculative as not to sound in damages: Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 642-643.

512 In all of these circumstances, I do not propose to award any damages under this head of claim.

6. Funds Management

513 A significant issue remains in relation to the financial management of so much of the plaintiff’s damages as are required to provide for her care and future losses.

514 Dr. Lahz considered the plaintiff to be “very vulnerable to exploitation”, and strongly recommended the appointment of a funds manager, who would be in a position to supervise her investments and to provide her with an appropriate fortnightly allowance.

515 In this regard, Dr Lahz took into account her intelligence level, which was assessed to be probably low average, her social isolation, her hearing disability which was likely to progress, her problems in speaking, and also the impression which she had gained that her reading ability may have been compromised by her left third nerve palsy, which had left her with a dilated pupil.

516 She also thought that, by reason of the fluctuations in the plaintiff’s mental state, one could not rely upon her consistently making good decisions from day to day about financial matters. She expected that it would be “extraordinarily difficult” for her to check up, or to keep a track on specific things that were being done in this regard. There was a difference, Dr. Lahz thought, between the plaintiff being able to pay day to day bills, and to deal with minor matters, on the one hand, and being able to manage and invest a large sum of money so as to provide for her long term future.

517 Professor Yeo similarly thought it inappropriate and impractical to expect the plaintiff to manage the fund which would be available and needed for her future support, in the event of her success in these proceedings. As a tetraplegic, he expected her to “drift in her concentration and attention”. This related to the low blood pressure, as well as the fatigue which are associated with this condition.

518 In this regard, as appears from the cross examination, he also paid attention to the plaintiff’s communication difficulties, which are significant.

519 Sister Monaghan, who noted that the plaintiff had a tendency to not be alert when stressed as well as having a difficulty in communicating with people who were not familiar with her, said that she had experienced a wish to be involved in the financial management of the damages, and in particular to do so by way of a computer. It was her apparent desire to be in control of her own life. The ability for her to take some control of her affairs, Professor Yeo agreed, would enhance such residual capacity as she had to enjoy her life. However, this, he made clear, was always subject to her having appropriate advice and assistance, otherwise she risked losing the fund established for that purpose, and of being thrown onto a pension, at which time she would be unlikely to survive for long.

520 The principles according to which the cost of funds management may properly be awarded by way of damages have been the subject of consideration in GIO of New South Wales v Rosniak (1992) 27 NSWLR 665, and more recently in Nominal Defendant v Gardikiotis (1996) 186 CLR 49.

521 As was pointed out by Brennan CJ, Dawson, Toohey and Gaudron JJ at 52, and by McHugh J at 57 in Gardikiotis the entitlement to an award under this head depends upon proof that, as a result of physical or intellectual disabilities caused by the defendant’s negligence, the plaintiff will incur additional expense in managing her affairs. It is not sufficient to show simply that there is a fund, even a substantial fund, provided by way of damages for the injury. This is a consequence of causation theory.

522 The question whether the need arises from the accident is, as the majority pointed out, essentially one of common sense; it is not a question to be answered by application of the “but for” test.

523 Gummow J at 66 cited, as a correct representation of the law, the statement of principle by King CJ in Campbell v Nangle (1985) 40 SASR 161 at 192:

“It seems to me that the principles of the law relating to damages for tort require the inclusion in an incapacitated plaintiff’s damages of the amount which he will be required to pay to a manager by reason of his incapacity. A plaintiff is entitled to recover the loss caused by the tort. The fundamental principle upon which damages are assessed is the principle of compensation that the plaintiff is to be placed, so far as possible, in the same position financially as he would have been if he had not sustained the wrong for which he receives the damages. The capital sum awarded to him is computed upon the basis of an assumed real return from its investment. If the plaintiff has been rendered by the wrong for which he recovers damages incapable of managing his affairs so that the fund resulting from the damages must be managed for him, the fees payable to the manager will reduce the real return from its investment. Unless an amount is included in the damages to compensate for those fees, the plaintiff will not receive the full restitution to which the law entitles him. It seems to me that the liability for the fees is a loss flowing directly from the wrong and is recoverable as damages caused by the wrong. I should say for the sake of completeness that the same is true, in my opinion, where the plaintiff’s incapacity to manage his affairs does not result from the wrong but is antecedent to it, being the result of legal disability or some other cause.”

524 So far as Dr. Lahz and Professor Yeo concluded that there was a need for an allowance under this head, by reason of an assumption, either that the amount of money potentially available for investment was, of itself, such as to provide a warrant for specialist assistance or protection, or that the management needed would call for constant investment switching or getting out and about to monitor stock prices and to inspect properties, then their opinions need to be qualified, as they would have proceeded upon an incorrect premise. However, their observations concerning the factual impact of the plaintiff’s reduced capacity, by reason of her accident, both emotionally and physically, to become effectively and appropriately involved in the safe management of the invested funds, remain relevant.

525 The various considerations which they mentioned along with the plaintiff’s extreme immobility, her confinement to a bed or wheelchair, her inability to write and to communicate with any facility, along with her tendency to depression and emotional lows are, in my view, properly to be considered direct sequelae of the accident.

526 The case is accordingly proper for an application of the principle discussed in Gardiokitis, subject to quantification of the extent to which there is a need for management causally related to these circumstances. The need to make suitable allowance where there has been a partial, but not a complete interference with the capacity to manage the fruits of an award of damages, was acknowledged by Gummow J, at 69.

527 It was agreed by all parties that if the plaintiff was entitled to total funds management, then the amount to be awarded would be in accordance with the rate as set out by the Public Trustee (Ex D pages 170 to 171), relevantly as follows:

“Payment of Personal Bills

At the convenience of the Trust Beneficiary and guardian the Public Trustee could arrange payment of personal bills possibly by way of a separate account at the local bank with an initial deposit and then maintained on the imprest system with recoups to be arranged on receipt of details of expenditure. This arrangement would be considered on an individual case basis as it is not a normal occurrence.

Tax Returns

The Public Trustee would attend to the preparation and lodgement of tax returns. Fees for this service are on the basis of an investigation fee of $39 per hour plus a fee of $39 per hour for preparation and lodgement of return.

Charges

All charges are set by regulation. The following is a summary:

(i) Capital commission, a once only charge for the duration of the Trust, would be the following rates:

on the first $100,000 -4%

on the next $100,000 -3%

on the next $100,000 -2%

On all in excess of $300,000 -1%

If appropriate the Public Trustee’s commission may be ‘split’ over a period of years to maximise income from the Trust.

(ii) Income Commission – on all income received including interest credited from the Common Fund 5.25% except for rents which are collected by Managing Agent in which case the commission is reduced to 2.5%.

(iii) Administration fee - $24 per annum

(iv) Out of pocket expenses including postal, telephone, etc would be in addition to the prescribed charges mentioned above.

(v) The above fees and charges cover the basic trust management fees. If the Public Trustee is ever required to become involved in litigation or legal expenses, including conveyancing, on behalf of the Trust Beneficiary, the Public Trustee is entitled to be reimbursed for such expenses incurred bona fide for the benefit of the Trust Beneficiary.”

528 The plaintiff did not develop a submission as to the precise amount which should be allowed, by reference to an application of these rates to the sum available for investment, particularly that which is expected to meet recurring expenses or losses on a diminishing basis, through an application of capital and interest, in accordance with the principles established in Todorovic v Waller (1981) 150 CLR 402.

529 The defendants accept that there will be some expense consequent upon the injury, but dispute that the sum to be awarded is as extensive as that contended for by the plaintiff which, it was submitted, assumed a need for aggressive and vigilant management including frequent trading in shares and securities, the switching of investments, and the like.

530 That assumption, they correctly submitted, is not the basis upon which the 3% discount rate for future losses is predicated. As was pointed out in Todorovic (which the High Court declined to reconsider in Rozniak v Government Insurance Office of New South Wales, when refusing special leave), it is premised on “a speculation free model” (per Stephen J at 436) or on “such investments as loans issued by Public Authorities … or debentures issued by large well established industrial companies” (per Gibbs CJ and Wilson J at 415), or on “the rate of interest available on government loans or some suitable investment” (per Brennan J at 477).

531 The management expense to be incurred and recouped, accordingly is that which is needed to secure regular income from non equity, risk-free investments, and that which will allow some draw down of capital, so as to meet the recurring expenses or future losses, but which does not contemplate an objective of securing capital growth through speculative or aggressive investment strategies. Necessarily, the fund invested will be net of any amounts repaid to the Workers Compensation Insurer and to others, for past losses, and of any amounts applied in the immediate acquisition of capital assets such as housing, equipment, and a motor vehicle, and any necessary modifications thereto.

532 In assessing the extent to which the plaintiff will need assistance, it is proper in my view to pay some regard to Sister Monaghan’s view (shared by Dr. Lahz) that she could, successfully, in her own interest, attend to some aspects such as paying cheques, and could also participate, with appropriate advice, in some management decisions. In this regard, there is no clear indication of her intellectual capacity having been reduced to any appreciable extent by the accident. She remains able to participate in some recreational activities of a cerebral kind, and she is apparently considered able to undertake some limited TAFE studies, and to use a computer once it is provided. Moreover, a sum has been agreed for the cost of a co-ordinator to assist with the procurement and management of the specialist medical and related services which the plaintiff needs (as well as their updating).

533 The defendants submitted that additionally the plaintiff was entitled to look to her various carers, including her medical practitioners and registered nurses and so on, for guidance and protection from exploitation. While it may be conceded that ethical duties do attach to these positions, it is not their proper role to become involved in the management of the plaintiff’s financial affairs. To do so would be potentially to raise a conflict of duty and interest, and to expect of them expertise in an area of skill which they do not posses. This submission I disregard entirely.

534 Otherwise, it appears to me that the defendants’ submissions have weight, and that the plaintiff does not fall into the category, for example, of a severely brain damaged patient, for whom an allowance for full fund management should be made. On the contrary, the need, in her case, is for a reasonable allowance for the initial creation of an investment plan involving the moneys left, after the necessary immediate outlay, accompanied by ongoing review and advice on a bi-monthly basis. The initial set up will require the services of a suitably qualified investment adviser and legal adviser. Review will require consultation with an investment adviser and accountant.

535 Additionally, the plaintiff will need ongoing assistance from the accountant with the preparation of her income tax returns, and of the periodic statements which are now required under Australian tax law, since they will necessarily be significantly more complex than those required of the PAYE taxpayer which she would otherwise most likely, have been. In this respect, the complications of communication and writing difficulties quite apart from the complexity of the documentation, justify an allowance for such an expense.

536 Otherwise, as I have observed, I see merit and benefit in preserving for the plaintiff some say in relation to her affairs, including attention to recurrent domestic accounts which could be attended to under her supervision, particularly via electronic banking.

537 The evidence is, at this stage, incomplete as to the final amount which is likely to be available for investment, and as to the costs of the kind of management which I consider justified. Moreover, the submissions on both sides of the record in relation to this head of loss, depend to some extent on the findings as to life expectancy, and in any event, were more directed to the matter of broad principle than to an actual calculation.

538 I therefore propose to reserve further quantification of this head of damage so as to allow the parties to provide such further evidence or submissions, as they may consider appropriate, in the light of the conclusions which I have reached. Absent agreement or further submissions, I will make an assessment, as best as I can, noting at the moment, that the amount contended for by the plaintiff would seem to be excessive, in so far as it would sound in a sum in the order of $1.3m, while that contended for by the defendants, when extended over the remaining life expectancy of the plaintiff, in the order of $110,000 would appear insufficient.

539 That this last mentioned sum is inadequate, is supported by the circumstance that, being unable to articulate clearly, or to be understood except by those who have a close association with her, telephone communication is next to impossible for the plaintiff, although internet banking would seem to be available. The other significant difficulty in reserving any substantial management role for herself relates to the everyday stresses which leave her easily exhausted, and which occasion difficulties in concentration and emotional stability.

6. General Damages

540 I have sufficiently recounted earlier the devastating and far reaching consequences of the accident for the plaintiff. These consequences were sustained at an early age, and they will endure, without any prospect of improvement, for the remainder of her life. The interference with her enjoyment of life and amenity is as extensive as it could be, and she is fully aware and conscious of it. These damages are to be assessed in accordance with the principles considered in Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 119, and in particular are to constitute fair and reasonable compensation for the injuries received and the disabilities caused, which is to be proportionate to the position of the plaintiff.

541 It was submitted, on her behalf, that the award should be in the range of $500,000 to $600,000, of which 35% should be apportioned to the past. The defendants submitted that the award should be in the range of $375,000 to $400,000, of which 20% to 30% should be apportioned to the past.

542 In my view, so far as any monetary award can compensate the plaintiff in relation to this head of loss, it should be assessed in the sum of $420,000. Of that sum, for the purpose of assessment of interest, I apportion 30% or $126,000 to the past. Although, I am mindful of the fact that the loss will be suffered for a longer period into the future than for the past (now almost 5 years) I consider it fair to regard the initial period, when the enormity of the consequences of the accident came to be experienced and appreciated, and when adjustment to a new life had to be made, as significantly more traumatic.

8. Summary in relation to Damages

543 Having regard to the need to update the losses as at the time of judgment, it is convenient to record the basis for calculation, as found by me, and to require the parties to bring in short minutes to reflect those findings (excluding that brought against QBE, which is still reserved).

544 In summary, therefore, I assess damages on the following basis:

a) General Damages (assessed) $420,000

b) Interest on past general damages of $126,000 at 2% p/a from 27/2/97 to date of judgment (to be calculated as at Judgment date)

c) Past economic loss (as agreed at trial) $77,500

d) Interest on past economic loss (as agreed at trial) $6,600

e) Future economic loss (as agreed at trial) $454,708

f) Loss of past superannuation (as agreed at trial) $4,462

g) Loss of future superannuation (as agreed at trial) $386,045

h) Past out of pocket expenses (as agreed at trial) $1,813,856.60

Case Co-ordinator

(agreed at $180 per week until age 65 years (to be calculated at judgment date)

j) Full time (24 hr) Registered Nurse (Agreed at $6,375.84 per week until age 65 years) (to be calculated at judgment date)

l) Additional carer to assist registered nurse (agreed at $817.88 per week until age 65 years) (to be calculated at judgment date)

Third nurse for tracheostomy change, domestic assistance, home maintenance and van driver

(agreed at $514.50 per week until age 65 years) (to be calculated at judgment date)

Gratuitous past domestic assistance

(as agreed at trial) $75,570

Future gratuitous domestic assistance

(Agreed at $200 per week until age 65 years) (to be calculated at judgment date)

p) Future Equipment requirements (agreed at $1,140.50 per week until age 65 years) (to be calculated at judgment date)

q) Additional motor vehicle expenses

(agreed at $100 per week until age 65 years) (to be calculated at judgment date)

r) Personal Computer Equipment set up costs

(agreed at trial) $20,000

s) Annual allowance for computer (agreed at $250 per week until age 65 years) (to be calculated at judgment date)

t) Environmental control equipment set up costs

(Agreed at trial) $34,852

u) Annual Allowance for Environmental Control Equipment

(agreed at $100.54 per week until age 65 years) (to be calculated at judgment date)

v) Extra cost of suitable housing - establishment

(agreed at trial) $270,000

House Maintenance

(agreed at $145 per week until age 65 years (to be calculated at judgment date)

x) Future consultations with medical practitioners

(agreed at $34.70 per week until age 65 years) (to be calculated at judgment date)

Future consultations with other professional health carers

(agreed at $72.79 per week until age 65 years) (to be calculated at judgment date)

Medications

Agreed at $73.66 per week until age 65 years) (to be calculated at judgment date)

Annual holiday for plaintiff and carer

Agreed at $250 per week until age 65 years (to be calculated at judgment date)

ab) Nanny Care (disallowed)

Funds Management

545 I deliver these reasons in advance of entering judgment to enable the parties to confirm the correctness of the agreed figures, to bring in short minutes that will reflect the findings made, to update any of the figures which may have changed since the time of trial, to provide for any order which may be necessary for payment out to third parties, and to allow the parties, to direct attention to such orders as should be made in relation to the cross claims between the Council, the RTA and Pioneer.

546 I reserve, in case it be necessary, in the light of my findings as to the cause of the accident, any further questions relating to the cross claim between Pioneer and QBE. I grant the parties leave to supply any further submissions which may be necessary in that regard.

547 I reserve all questions of costs of the proceedings and cross claims for further consideration, upon a date to be fixed.

**********

Last Modified: 01/22/2002

LOWER COURT JURISDICTION :	Supreme Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :

CITATION:	Palmer v RTA & Ors [2001] NSWSC 846
FILE NUMBER(S):	SC 20339/98
HEARING DATE(S):	July 24, 25, 26, 27 ; 31; August 1; 2; 3; 6; 78; 9; 16; 27 2001
JUDGMENT DATE:	20 December 2001
PARTIES :	Lisa Denise Palmer RTA of NSW and Ors
JUDGMENT OF:	Wood CJatCL at 1

COUNSEL :	B Toomey QC with A Black [P] B Donovan QC with P A Regottieri [D1) J E Maconachie QC with I R Pike [D2] I G Harrison SC with P S Braham [D3] P Hallen SC (6 xD]
SOLICITORS:	Walsh & Blair (P) I.V. Knight (Crown Sol) (1D) Phillips Fox (2D) Corrs Chambers Westgarth (3D) Colin Biggers & Paisley (6xD)
CATCHWORDS:	NEGLIGENCE - causation - cause of motor vehicle accident - whether accident reasonably foreseeable - test for duty of care - liability - who is responsible for maintenance and traffic regulation of public road - highway rule no longer applicable - general damages where plaintiff is tetraplegic requiring 24 hour care - horrific injuries - whether damages awarded for funds management - whether damages awarded for nanny in event of plaintiff becoming pregnant.
LEGISLATION CITED:	Roads Act 1993 ss 7, 62, 64, 145, 146, 207
DECISION:	Reasons published. Final Orders to be entered. See par 545 or Reasons.