Pearson v Sutherland Shire Council

[2010] NSWDC 1

CITATION:	Pearson v Sutherland Shire Council [2010] NSWDC 1
HEARING DATE(S):	9, 10, 11, 12, 26, 27 and 30 November 2009
JUDGMENT DATE:	10 February 2010
JURISDICTION:	Civil
JUDGMENT OF:	Levy SC DCJ
DECISION:	1. Verdict for the plaintiff in the sum of $836,317; 2. Judgment for the plaintiff in the sum of $750,000; 3. The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered.
CATCHWORDS:	TORTS – negligence – road authority – liability of council for unsafe condition of road – stationary vehicle with ignition off, handbrake on and in gear, slid down a roadside embankment – whether death of owner of vehicle who was standing beside it was due to negligence of council – road surface incorporated a 12 per cent sloping cross-fall – failure of council to adequately respond to repeated concerns of residents regarding safety of road – whether a guardrail should have been installed before the accident – whether any fault on the part of the deceased contributed to his death – whether defendant has established defences pursuant to ss 5F, 5H, 5I, 42, 43, 43A and 45 of the Civil Liability Act 2002 – consideration of whether another council would have acted as defendant council did in the circumstances - EVIDENCE – expert evidence – need for expert reports to comply with Sch 7 cl 5(c) of Uniform Civil Procedure Rules 2005 - DAMAGES – assessment of damages for pure mental harm under the Civil Liability Act 2002 – assessment of damages under Compensation to Relatives Act 1897
LEGISLATION CITED:	Civil Liability Act 2002, ss 5B, 5C, 5D, 5F, 5H, 5I, 16, 30, 31, 32, 42, 43, 43A, 44 and 45 Compensation to Relatives Act 1897, ss 3(1) and 4 District Court Act 1973, s 51 Roads Act 1993, ss 7(4), 7(5), 71, 87 and 146(d) Road Design Guidelines, s 6
CASES CITED:	Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 206 CLR 512 Chotiputhsilpa v Waterhouse [2005] NSWCA 295 Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 Edson v RTA [2006] NSWCA 68 Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161 John Pfeiffer Pty Ltd v Canny (1981) 148 CLR 218 Leichhardt Municipal Council v Montgomery [2007] HCA 6; (2007) 233 ALR 200 Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 North Sydney Council v Binks [2007] NSWCA 245 Rickard & Ors v Allianz Australia Insurance Ltd & Ors [2009] NSWSC 1115 RTA v Dederer [2007] HCA 42; (2007) 234 CLR 330 RTA v Refrigerated Roadways Pty Limited [2009] NSWCA 263 Sutherland Shire Council v Henshaw [2004] NSWCA 386 Sutherland Shire Council v Heyman (1985) 157 CLR 424 Turnbull v Alm & Anor [2004] NSWCA 173 Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442 Waverley Municipal Council v Swain [2003] NSWCA 61 Wyong Shire Council v Shirt [1980] HCA 81; (1981) 146 CLR 40
PARTIES:	Janis Pearson (Plaintiff) Sutherland Shire Council (Defendant)
FILE NUMBER(S):	3006 of 2008
COUNSEL:	Dr KP Rewell SC with Mr M Cleary (Plaintiff) Mr S Glascott (Defendant)
SOLICITORS:	Stephen Smart & Associates (Plaintiff) DLA Phillips Fox Lawyers (Defendant)

JUDGMENT

Table of Contents

A.	INTRODUCTION
Nature of the case	[1]
Background	[2] – [6]
Liability and causation issues for determination	[7] – [8]
Assessed heads of damage	[9]
Witnesses	[10]
Summary of findings	[12]
Evidence review on liability and causation issues	[13]
Lay witnesses
Mrs Janis Pearson	[13] – [21]
Mr Mark Wilson	[22] – [29]
Mr Patrick Bell	[30] – [37]
Mr Neil Porter	[38] – [42]
Mr Christopher Bruce	[43] – [50]
Expert witnesses
Mr Nigel McDonald	[51] – [93]
Mr Terry Winning	[94] – [127]
Council employees
Mr Paul Davies	[128] – [153]
Mr Des Hewitt	[154] – [178]
Mr Jeremy Morgan	[179] – [218]
Credibility of testimony	[219] – [236]
B.	LIABILITY ISSUES
Facts not in contention	[237] – [244]
The plaintiff	[238] – [241]
Mr Goodwin	[242]
Plaintiff’s dependency on Mr Goodwin	[243] – [244]
Facts over which there was contention	[245] – [325]
Accident on 11 July 2005	[246] – [289]
Accident scene	[290] – [295]
History of Simpson Road	[296] – [310]
Turning difficulty on Simpson Road	[311] – [315]
Traffic volume	[316] – [319]
Cost of a guardrail or barrier	[320]
Availability of council resources	[321] – [322]
Defendant’s knowledge of the risk	[323] – [325]
Findings on liability and causation issues	[326] – [456]
Issue 1 – Nature and scope of duty of care owed	[327] – [355]
Issue 2 – Breach of duty of care / negligence	[356] – [401]
Issue 3 – Causation	[402] – [406]
Issue 4 – Contributory negligence	[407] – [426]
Issue 5 – Statutory defences under the Civil Liability Act 2002	[427] – [457]
ss 5F, 5H and 5I of Pt 1A – assumption of risk	[428] – [442]
ss 42, 43, 43A and 45 – liabilities of public authorities	[443] – [456]
Summary of liability and causation findings	[457]
C.	DAMAGES ISSUES	[458] – [490]
Assessments of plaintiff by treating doctors	[461] – [475]
Assessments of plaintiff at request of solicitor for defendant	[476] – [478]
Consensus of medical opinions	[479]
Injury findings – nervous shock	[480]
Disability findings – psychological disabilities	[481] – [486]
Life span issues	[487]
Estimate of plaintiff’s probable life span	[488]
Estimate of Mr Goodwin’s probable life span but for the accident	[489]
Significance of difference in estimated life spans	[490]
D.	ASSESSMENT OF DAMAGES	[491] – [563]
Nervous shock claim	[492] – [515]
Non-economic loss	[493] – [501]
Past medical and allied treatment	[502]
Future medical and allied treatment	[503] – [515]
Claim pursuant to s 4 of the Compensation to Relatives Act 1897	[516] – [562]
Loss of past financial support	[517] – [522]
Loss of future financial support	[523] – [531]
Loss of past domestic support	[532] – [538]
Loss of future domestic support	[539] – [546]
Loss of past discounted air travel	[547] – [557]
Loss of future discounted air travel	[558] – [561]
Funeral expenses	[562]
Summary of damages assessment	[563]
E.	DISPOSITION & ORDERS	[564] – [565]
Disposition	[564]
Orders	[565]

A. INTRODUCTION

Nature of case

1. The plaintiff, Janis Pearson, sues the defendant, Sutherland Shire Council, claiming damages for nervous shock or pure mental harm in accordance with the Civil Liability Act 2002 as well as claiming damages in accordance with the Compensation to Relatives Act 1897. These claims arise from the death of her son, Shane Goodwin, in a street accident that occurred on 11 July 2005. The plaintiff claims that Mr Goodwin’s death was caused by the negligence of the defendant council.

Background

2. The plaintiff claims that her son’s death occurred as a consequence of undue delay and neglect on the part of the defendant council in taking remedial action required to address complaints made by a number local residents concerning the alleged unsafe nature and condition of Simpson Road, Bundeena within the Sutherland Shire.

3. There were no eyewitnesses to the actual circumstances that led to Mr Goodwin’s death. It is alleged that before the events in question Mr Goodwin was standing beside his stationary vehicle on Simpson Road with the engine switched off and with the handbrake engaged. It is also alleged that the transmission was left in gear with the front of the vehicle facing towards the edge of the embankment. Somehow, the unoccupied vehicle moved forward towards the embankment. It then went over the edge and travelled down the embankment. It appears that in these events Mr Goodwin was swept down the embankment together with his vehicle. Mr Goodwin died of asphyxiation after being crushed by the weight of his vehicle when it ultimately came to rest some further distance down the embankment. The plaintiff arrived at the scene afterwards and tried to rescue her son, but without success.

4. The plaintiff alleges that at the relevant time, and for some considerable time beforehand, the narrow nature of the roadway of Simpson Road, the surface texture of its bitumen paved portion, the significant degree of cross-fall apparent within its construction, its vegetation covered and unpaved earthen edge, its juxtaposition to a relatively steep embankment and the absence of a protective guardrail, in combination represented a particular and risk laden hazard to road users. Over a number of years before Mr Goodwin’s death the defendant council had received complaints from residents concerning the unsafe nature of the roadway.

5. On 30 June 2004, some 376 days before the death of her son, the defendant council had documented the fact that the plaintiff had herself telephoned the defendant to request that something be done about the unsafe condition of the road. The defendant’s own record of that call documented the content of the plaintiff’s warning that the embankment at the edge of the road had been eroding for the previous 12 months. The defendant had minuted the plaintiff’s tragically ironic prediction that if a vehicle lost traction on that roadway, it could easily proceed over the embankment.

6. The response of the council to that warning from the plaintiff was that the council engineer responsible for considering the safety of the roadway assessed the problem as being of a low risk. This in turn substantially delayed the scheduling of the required remedial works, which it is claimed, ought to have instead been given a high priority on account of considerations of safety. The plaintiff claims that in these circumstances the defendant council was in breach of its duty of care. The defendant has denied that it was in breach of its duty of care and it also sought to rely upon defences that are founded upon the provisions of the Civil Liability Act 2002.

Liability and causation issues to be determined

7. The liability and causation issues to be determined may be conveniently outlined as follows:

Issue 1 : Whether the defendant owed Mr Goodwin a duty of care, and if so, the nature and scope of that duty;

Issue 2 : Whether the defendant breached the duty of care owed and if so, has the plaintiff satisfied the requirements of the Civil Liability Act 2002 in order to establish negligence;

Issue 3 : Was Mr Goodwin’s death caused by the negligence of the defendant;

Issue 4 : Whether there was any contributory negligence on Mr Goodwin’s part, and if so, to what extent;

Issue 5 : Whether the defendant has established any statutory defences pursuant to the Civil Liability Act 2002 , notably, ss 5F, 5H, 5I, 42, 43, 43A and 45.

8. Since the damages issues that arise are numerous and since they appear under the discrete heads of damage claimed, I have not incorporated a separate list of those damages issues here as I will analyse those multiple issues under the particular heads of claim in which they arise and where they can be conveniently grouped.

Assessed heads of damage

9. The plaintiff makes a claim for damages for pure mental harm or nervous shock. She also claims damages pursuant to the Compensation to Relatives Act 1897. The respective heads of damage are listed below together with the paragraph references in my reasons for judgment where those damages are assessed:

Heads of damage claimed – nervous shock claim	Paragraphs
(a) Non economic loss	[493] - [501]
(b) Past medical and allied treatment	[502]
(c) Future medical and allied treatment	[503] - [515]
Heads of damage claimed – Compensation to Relatives Act 1897	Paragraphs
(d) Past loss of financial support	[517] - [522]
(e) Future loss of financial support	[523] - [531]
(f) Past loss of domestic support	[532] - [538]
(g) Future loss of domestic support	[539] - [546]
(h) Past loss of discounted air travel	[547] - [557]
(i) Future loss of discounted air travel	[558] - [561]
(j) Funeral costs	[562]

Witnesses

10. The following 9 witnesses gave evidence on the liability issues:

(a) The plaintiff, Janis Pearson, the mother of the deceased, Shane Goodwin;
(b) Mr Mark Wilson, a neighbour of the plaintiff;
(c) Mr Patrick Bell, a neighbour of the plaintiff;
(d) Mr Neil Porter, a neighbour of the plaintiff;
(e) Mr Nigel McDonald, a civil engineer engaged by the plaintiff’s solicitor;
(f) Mr Terry Winning, a traffic consultant engaged by the defendant’s solicitor;
(g) Mr Des Hewitt, the defendant’s Director of Engineering;
(h) Mr Paul Davies, a Principal Engineer employed by Pittwater Council;
(i) Mr Jeremy Morgan, a Senior Manager and council engineer who was formerly employed by the defendant.

Summary of findings

11. For the reasons I have set out in my findings, I have found that the defendant owed a relevant duty of care both to Mr Goodwin and to the plaintiff, I have found that the defendant was in breach of that duty and I consider that the plaintiff has relevantly satisfied the requirements of the Civil Liability Act 2002 concerning the foreseeability of harm in issue, the duty of care owed and its breach as well as causation of damage. I have found that there was no contributory negligence on the part of Mr Goodwin in respect of the circumstances that led to his death. I find the defendant has failed to make good its claimed defences raised pursuant to the Act. I have assessed the plaintiff’s damages for pure mental harm or nervous shock in the amount of $362,420. I have assessed the plaintiff’s damages pursuant to the Compensation to Relatives Act 1897 in the amount of $473,897. These damages assessments amount to a total of $836,317. The plaintiff has acknowledged that she cannot obtain a judgment in excess of the jurisdictional limit. The plaintiff is therefore entitled to a judgment limited to the amount of the jurisdictional limit of the court for such cases, namely, $750,000.

Evidence review on liability and causation issues

12. In the paragraphs that follow I set out a summary of the oral evidence given by the various witnesses. Where relevant, I have also included references to any documentary exhibits that related to the evidence of those witnesses.

Evidence of the plaintiff Janis Pearson

13. Between 2003 and July 2005 the plaintiff Mrs Janis Pearson had rented a house at 18A Simpson Road. In that period she had observed that the northern part of Simpson Road had a steep embankment on the western edge of the roadway and the road itself had a steep cross-slope. She had on occasion observed the vehicles of visitors to the area becoming “stuck” following unsuccessful attempts at turning their vehicles around as Simpson Road was a cul-de-sac and it had no turning circle. On occasions she had also observed a neighbour, Mr Bell, use a winch device to haul and tow such “stuck” vehicles to safety after they had lost traction on the western edge of the road.

14. The plaintiff gave evidence of a telephone complaint she had made to the defendant council on 30 June 2004. Exhibit “G” which included a council generated customer request for maintenance service form or CRMS. That document contained a record of the council’s description of the plaintiff’s complaint in the following terms:

“Concerned cars may go over the embankment, which has been eroding for the past 12 months. Disused pipe goes across the dirt road, which is now totally exposed on one side and still eroding on the other. Very steep, so that once car is committed, must keep turning. If traction is lost, will easily go over embankment. (low gravel road). Other side is national park.”

15. In a statement given to the police who investigated the circumstances of Mr Goodwin’s death, the plaintiff described how, on 10 July 2005, which was the day before the incident in which her son died, she had driven the vehicle in question on Simpson Road when a mechanical problem had occurred. This caused her to leave the car parked on the roadway to wait for her son to deal with the problem later. She then described the events that followed on the day of the incident in the following terms:

“On 11 July 2005 I got up at about 8am, I had a cup of tea with Shane. Shane and I started talking about the car. I had trouble with my car when I was driving back from Sutherland. The car’s engine was surging, I thought it might have had a fuel blockage. On my way home I decided to leave the car parked just down the road as I couldn’t get it to go any further. I wanted to get Shane to have a look at it. I left the car just at the bottom of Simpson Road. My car is a white Jackeroo 1991 model. I can’t remember the registration number and the car is not insured.”

16. The plaintiff described the events leading to the death of her son in the following terms:

“Q. Before Shane did anything to his vehicle on this date do you know where it was parked?
A. It was parked at the bottom of the road because I had parked it there.

Q. That’s in the wide, paved area?
A. Yes.

Q. Did you see where Shane went when he left the house on that day or not?
A. No. I knew he was going to bring the vehicle up and turn it around and do whatever he wanted to do to it, whatever, I don’t know what he was going to do to it.

Q. So did Shane leave the house with that intention as you understood?
A. Yes he did.

Q. Some time after that did something come to your attention?
A. I went down and - to go down to him to tell him I was going down to the village to pay the rent and when I came from the house I - all I could see was four wheels of his vehicle over the bank.
Q. At what point, in relation to the top of that steep, sloping section was the vehicle? Was it past that? Was it at the top of that sloping section or was it up further towards Paddy’s? Where was this?
A. It was about - I don’t know. It was not that far - well it was, it was a little ways from where the seal had stopped and it was probably about another ten feet down, ten or twelve.

Q. Towards Paddy’s?
A. Towards Paddy’s place, yeah.

Q. And immediately above where you saw the vehicle, was Simpson Road sealed or was it gravel?
A. It was gravel.

Q. So when you saw the vehicle with its wheels, was it on its side or upside down?
A. Upside down.”

17. The plaintiff described how she then hurried to the overturned vehicle and endeavoured to assist her son:

“Q. What did you do at that point?
A. I raced down the bank and tried to get to him.

Q. Could you see where Shane was?
A. I could see part of him.

Q. Where was that?
A. I could see part of him by the front seat.

Q. But only part - he wasn’t sitting in the car?
A. No.

Q. And was he - where was the car in relation to his body? Was the car on his body?
A. Yes.

Q. Was he conscious or not, could you tell?
A. He was unconscious. His head was still warm but his warm but his arm was cold when I reached.

Q. Did you try and do something then?
A. I tried to - I don’t really know what I was doing, to be honest. I just needed to get to him and then I realised that I couldn’t, on my own, so I raced up the hill and phoned the guys at the garage and they came down to try and help me and they couldn’t help, so they called the emergency services, then Mark came down before that, yeah.

Q. Is that Mark Wilson?
A. Mark Wilson, yeah.

Q. In the meanwhile, did you try and do something to get to Shane?
A. Yeah, I was trying to get to the windscreen so I could touch him and I couldn’t break it with the rocks because the rocks are all pumicey, they’re very soft and I had to go and get the hammer and break the screen. Then I managed to break the screen and that was when I felt his head and his hand.”

18. The plaintiff said that she realised her son had died when she noticed that an emergency helicopter that was approaching the scene had changed its course on its approach and did not land at the scene. An ambulance later took her to hospital for medical attention. In the hours that followed these events the plaintiff said she felt numb and said she was in disbelief.

19. On the morning of 11 July 2005, on the last occasion when the plaintiff had seen her son before his death, she had observed from a distance that he and Mr Bruce, a neighbour, were using a rope to try to turn Mr Goodwin’s vehicle around from the position at which it was located at the top of the hill straddled across Simpson Road with the front of the vehicle facing towards the embankment on the western edge of the roadway. She saw that they were trying to pull the vehicle away because the vehicle had “reached the point of no return on the road.”.

20. The plaintiff did not see the events in which the vehicle or Mr Goodwin proceeded to travel down the embankment. Neither did she see how Mr Goodwin came to be positioned in the way that she had subsequently found him, shortly before his death.

21. It was the plaintiff’s recollection that at the time of her son’s death, at the point on Simpson Road where the vehicle had left the roadway and travelled down the embankment, there was no road seal of any type on the surface of the northern section of Simpson Road. Later in the trial, on behalf of the plaintiff, that recollection was ultimately conceded to be incorrect. It was conceded that there was a form of bitumen sealant on the road surface at the point where Mr Goodwin’s vehicle had left the roadway. In my view, for the reasons I shall set out in stating my credit findings, I consider that nothing of significance turns on the plaintiff’s mistaken recollection in that regard.

The evidence of Mr Mark Wilson

22. Mr Mark Wilson was a neighbour of the plaintiff. He has lived at 22 Simpson Road, Bundeena since 1983. His property is on the upper level of Simpson Road which splits from the lower level on which the accident occurred and was at a fork in the roadway some distance south of the accident scene. At the time of the hearing Mr Wilson was a currently serving senior fire fighter employed by the NSW Fire Brigade. He had participated in the attempt to rescue Mr Goodwin. He identified the accident scene by reference to the photograph that comprised Exhibit “2” to indicate that the point where Mr Goodwin’s vehicle had left the roadway and went down the embankment, was a short distance north of the carport located outside 16 Simpson Road, as is seen in Exhibit “2”.

23. Mr Wilson described an earlier event that occurred in 1986 which involved a partial collapse of land above Simpson Road and which resulted in the road being blocked from use for a time. Subsequently, the defendant council carried out substantial road works over the course of about a year. This included some paving of the road surface and the erection of some nearby guardrails but not along the entire length of the roadway. The erected guardrails stopped some distance south of the plaintiff’s residence, and well south of the accident scene.

24. Mr Wilson described his observations of the traffic volumes on Simpson Road. He stated that, midweek, and even on weekends in winter, around 20 vehicles per day would use the northern section of Simpson Road. He said that on weekends in summer, traffic volume on that road customarily increased to as many as 150 vehicles per day as motorists attempted to seek vehicular access to Bonnie Vale Recreational Area or to the nearby waterfront whereas in fact, Simpson Road did not provide any direct vehicular access to Bonnie Vale or to the waterside. He described how persons attempting to obtain such vehicular access would either park in Simpson Road or turn their vehicles around in order to find alternative access to those areas. He confirmed that along its length, Simpson Road had no provision for vehicles to turn around, other than on the narrow road surface itself. At the time of the accident there were no advisory signs to warn drivers that the road did not provide vehicular access to the park or the water.

25. Mr Wilson stated that he knew of instances of vehicles “going over the edge” of Simpson Road. He said he had witnessed three such incidents before Mr Goodwin’s death. He also described how, following the construction of sewer works in the area in 2001, these works had resulted in substantial damage occurring to various parts of Simpson Road, including to the northern section. He said that little or no rectification work had been carried out by the defendant after the sewerage authority had completed its work. However, he agreed that after the 2001 works had been completed the road was “tarred”.

26. At the time of the incident in question Mr Wilson was at home. After the accident he went to the scene and he observed Mr Goodwin’s vehicle which was then located at the bottom of the embankment. He also identified the location on Simpson Road at which Mr Goodwin’s vehicle had left the roadway in its course of travel down the embankment. He described the road edge at that place as “loose vegetation and rubble, boulders and … quite unstable … probably gravel and dirt to the edge, with some grass and weeds and minor vegetation”. These quoted observations of Mr Wilson appear to be consistent with Exhibit “3” which comprised the photograph of the accident scene taken on 11 July 2005 although I observe the caution concerning the difficulty interpreting photographs.

27. Mr Wilson described the observations he had made at the scene as to the position of Mr Goodwin’s body as he had seen it after the incident. He said he observed that Mr Goodwin’s head and torso were in the driver’s area of the cabin of the vehicle from the chest up, whilst his legs were pinned by the vehicle, being located between the open driver’s door and the doorsill of that door.

28. Mr Wilson described the topography of the lower track of Simpson Road in the region of house numbers 18 to 20 as follows:

“Q. 18 to 12?
A. Yes.

Q. And you saw some paving on that track as well?
A. I believe it went to just below our carport, perhaps another five or ten metres, but I’m not certain of that.

Q. To your knowledge, did it go to number 18?
A. No.

Q. Now can you describe, by reference to what you’ve called the lower track?
A. Yes.

Q. The topography of the area around the lower track?
A. The slope, as I’ve stated, varies from 20 degrees to, in places as steep as 50 degrees off the vertical. It’s heavily forested with sub rainforest. Trees up to 80 to 90 feet high, with quite an amount of lantana and other weed and vegetation mixed in amongst it. There are extremely steep banks at various points along the track from the western side and on the eastern side uphill, again a variety of vegetation, mostly on the smaller side on the uphill side.

Q. Now travelling north, the western side is downhill, is that right?
A. That’s correct, yes.

Q. When on leaves the lower track, as you’ve described it?
A. Yes.

Q. How steeply downhill is it?
A. In parts it’s near vertical. In other parts it would be 20, 30, 40, 50 degrees. Just depends on varies quite an amount as it’s a slight curvature around to the north east, so it’s running across the edge of a ridge and a point running out to the cliff lines on the sea.

Q. And on the eastern side of the lower track?
A. Yes.

Q. Presumably it’s uphill?
A. Yes.

Q. How steeply uphill is it?
A. If you walk uphill, anything from five to 20 metres, there is a cliff line running pretty much uninterrupted across the entire length of Simpson Road. Anything as high as 10 to 15 metres high, depending on where you hit it.”

29. Mr Wilson was careful to state that he was unsure as to whether that section of roadway where Mr Goodwin’s vehicle had left the roadway was sealed with tar or comprised just road base at the time of the accident. If it was sealed he was not prepared to venture a guess as to the extent of any such seal.

The evidence of Mr Patrick Bell

30. Mr Patrick Bell, a neighbour, has lived at 12 Simpson Road, Bundeena since 1973. He stated that on numerous occasions before Mr Goodwin’s death he had been called upon to use his chain block and tackle equipment to assist stranded motorists whose vehicles had lost traction either on or over the edge of the northern section of Simpson Road. Mr Bell estimated that he was called upon to render such assistance at least two or three times per year. Mr Bell agreed that there was a seal on the relevant portion of the roadway but he was uncertain as to when that seal had been applied.

31. Although Mr Bell recalled only one previous occasion on which a vehicle had gone over the embankment and down onto the track below; he recalled that many other vehicles “got themselves so far over [the road edge] that they didn’t have any traction to get back” so that these vehicles had either a wheel or a number of their wheels off the roadway when they had got into such trouble.

32. The section of Simpson Road on which Mr Bell had occasion to use his block and tackle to assist motorists in difficulty included the part of the roadway where the accident had occurred.

33. Mr Bell described how, after Mr Goodwin’s death, a Telstra vehicle that came to Simpson Road in order to provide service to Mr Bell’s property was found over the edge of the roadway, “precariously balanced on a loose rock”.

34. Mr Bell gave evidence about his correspondence with the defendant council as to the state of the roadway. He had sent letters to the council on 6 June 2001 and on 8 February 2004. Both of these letters form part of Exhibit “G”.

35. Mr Bell’s letter dated 6 June 2001 to the defendant referred to the “unsafe” access provided to his property by the northern section of Simpson Road. Mr Bell’s property is the last or most northern property on that section of roadway.

36. Mr Bell’s letter dated 8 February 2004 to the defendant is particularly pertinent. The relevant parts of that letter are as follows:

“I would like to draw your attention to the neglected and dangerous state of the North end of Simpson Road. No. 8 → 18 are effected (sic).
The track is so rutted that it is all but impassable for light vehicles. Because of the ruts, vehicles are forced onto the shoulders of the track. On occasions cars have rolled over this shoulder and have had to be winched out.
The shoulder itself is unstable …
Perhaps it is time for the council to assume responsibility for the road and design and effect a solution to the problem”

37. Following Mr Goodwin’s death Mr Bell wrote to the defendant council again on 12 August 2005. That letter comprises Exhibit “L”. The primary significance to the present case of the existence of that letter and the receipt of that letter by the defendant is that notwithstanding the receipt of the letter by the defendant council, it became apparent that the occurrence of the incident which claimed the life of Mr Goodwin had not been recorded on the council’s accident “database”. The council had apparently considered the content of the database to be relevant to any decision to be made by council to undertake road safety works on that road. This raised questions as to the accuracy of the database.

The evidence of Mr Neil Porter

38. Mr Neil Porter, a neighbouring resident, has lived at 16 Simpson Road for 30 years. He is the owner of the carport outside his property. That carport is shown in the photograph Exhibit “2”.

39. Mr Porter had sent several email communications to the defendant council on 27 January 2004 and again in March 2004, expressing concerns on behalf of the residents of the northern section of Simpson Road as to the state of the road. In oral evidence he described the road after its reinstatement by Sydney Water in 2001 as being a sort of dirt road, not a made road. Mr Porter confirmed that subsequently, in July or August 2004, the council, applied some form of road seal to that section of Simpson Road. He described that work as comprising some form of grading and then steam-rolled with bitumen. Mr Porter described the seal, as shown in the photographs Exhibit “4” and Exhibit “2”, as comprising a non-smooth bitumen surface with protruding pieces of blue metal that interrupted the smoothness of the road surface. Shortly after these works were completed Mr Porter was sufficiently grateful that the surface of the roadway had finally been “upgraded” after what was described as 25 years of inactivity by the defendant council, that he forwarded a congratulatory email to the council on 16 August 2004. That correspondence is part of Exhibit “G”.

40. Mr Porter observed that, before the work was done, the roadway in question was in a very poor state and in his opinion, it was close to being undriveable.

41. At the time of Mr Goodwin’s death Mr Porter was overseas. He confirmed that in his view the state of the road surface in Simpson Road, after the works carried out in August 2004 was as is shown in the photographs comprising Exhibits “3” and “4”. His description was that the road surface was not a smooth bituminous surface, and in particular, the edge was not smooth. The terms of Mr Porter’s description of the work did not extend to a precise description of the type of bitumen seal applied to the road in 2004. It was evident that not all of the road area was “sealed” in August 2004 and that some areas of the roadway had remained unsealed, for example, the area next to Mr Porter’s carport as shown in Exhibit “2”. Mr Porter described the strip of bitumen seal, which was laid on the roadway in August 2004 as being “one car width”.

42. It was plain that Mr Porter’s use of the road was not affected by the difficulty in turning his vehicles on the northern section of Simpson Road because he had the benefit of a double carport, the existence of which made the manoeuvring, turning and parking of his vehicles much easier.

The evidence of Mr Christopher Bruce

43. Another neighbour, Mr Christopher Bruce made a witness statement to the investigating police on 12 July 2005. That statement was tendered in the defendant’s case as Exhibit “12”. Mr Bruce apparently declined to give evidence at the hearing. This was evident from his mobile telephone communications with the solicitor for the defendant which made it plain he did not want to disclose his address for the purpose of service of a subpoena. His statement to the police was ultimately admitted as a business record without objection.

44. In his statement Mr Bruce said he had lived in Simpson Road for around nine years prior to the death of Mr Goodwin.

45. At paragraph 4 of his police statement Mr Bruce said he had personally witnessed two other vehicles go over the embankment before Mr Goodwin’s death. Those incidents had apparently occurred before the defendant had applied a temporary seal to the road surface in August 2004.

46. In his statement Mr Bruce described his pre-incident attempts to assist Mr Goodwin on the morning of 11 July 2005. That assistance involved attempts to try and turn Mr Goodwin’s vehicle around on the northern section of Simpson Road because it would not start and Mr Goodwin wanted to coast the vehicle down the hill to a nearby service station. Mr Bruce’s statement describes how, on the day of the incident when he first went to assist, Mr Goodwin’s vehicle was parked across the roadway, facing towards the embankment. He described how he took a length of rope from his car and tied it to the tow bar of Mr Goodwin’s vehicle and then attempted to pull Mr Goodwin’s vehicle around, but this was unsuccessful in turning the vehicle. Mr Bruce stated that he had an appointment he had to keep and so he could not assist further at that stage. According to Mr Bruce, before he left to keep his appointment he said he had asked Mr Goodwin “on two or three occasions, not to do anything with the car by himself, because I had seen cars go over the edge before”.

47. Several hours later Mr Bruce returned to the scene but by then the accident in question had already occurred.

48. In his statement Mr Bruce said that whilst he was still at the scene assisting Mr Goodwin, the vehicle was located wholly on the sealed surface of the road. According to the statement of Mr Bruce : “When I left Shane, his car was still about three or four inches still on the bitumen”. In his statement Mr Bruce also conceded that Mr Goodwin’s vehicle “was close to the edge”.

49. On behalf of the plaintiff it was submitted that the weight to be given to Mr Bruce’s statement is somewhat diminished by the fact that he declined to make himself available to give evidence and to be cross-examined. In particular the plaintiff draws attention to that part of the statement concerning Mr Bruce’s parting conversations with Mr Goodwin and states this should be given no weight because the assertions cannot be tested. The possibilities are that those conversations either did occur in the terms stated by Mr Bruce, or did not occur at all, or did not occur precisely in the terms stated. The plaintiff has submitted that by the content of his statement, and for whatever reason, Mr Bruce may well have been attempting to exculpate himself, or to assuage the guilt he may have felt after Mr Goodwin’s death because he had deferred continuing to provide further assistance and had left Mr Goodwin at the scene in order to keep an appointment.

50. The plaintiff also draws attention to Mr Bruce’s stated recollection as to the position of Mr Goodwin’s vehicle on the sealed surface and submits that this evidence may also have been found wanting, had cross-examination of Mr Bruce been possible. The plaintiff also points to the need for elucidation of Mr Bruce’s statement of his observation that Mr Goodwin’s vehicle “was close to the edge …”.

The evidence of Mr Nigel McDonald

51. Mr Nigel McDonald, an expert civil engineer, was called by the plaintiff. Mr McDonald’s reports dated 1 June 2009 and 5 November 2009 were tendered as Exhibits “B” and “C”.

Reports of Mr McDonald

52. For the purposes of his report, Mr McDonald undertook an analysis of the circumstances of the incident whereby he assumed that, before the incident, Mr Godwin had been unsuccessfully attempting to turn the vehicle around from a north facing position on a narrow section of Simpson Road at a point where the western edge of Simpson Road sloped steeply away towards a very steep embankment. He also assumed that Mr Goodwin had managed to turn the vehicle to face west and across Simpson road but that he was thereafter unable to move the vehicle from its position which was then in close proximity to the western edge of Simpson Road which sloped away down the embankment. He also assumed that the vehicle later toppled down that steep slope, carrying Mr Godwin with it in the process, with the result that when the vehicle came to rest, Mr Godwin had been crushed by the vehicle.

53. Before arriving at that analysis Mr McDonald examined the material identified in his first report and he also visited the accident scene on 31 March 2009 to take measurements and to take photographs. The observations made by Mr McDonald are recorded at paragraphs 3.5 to 3.14 of his first report.

54. Mr McDonald described the roadway as comprising a single lane north / south roadway with a total width of 7 metres for vehicle manoeuvring which included a 3 metre wide traffic path. The road had incorporated within its surface what Mr McDonald described as a cross slope of approximately 12 per cent towards the edge of the roadway sloping towards the adjacent embankment. This section of roadway was without guardrails. The appearance of the road surface on the occasion of Mr McDonald’s inspection in 2009 was different to that which as described by the lay witnesses as at 11 July 2005.

55. Mr McDonald was required to make a number of assumptions as to the state of the vehicle involved in the incident. These assumptions were that the vehicle was not mechanically operating at the time of the incident and had slipped rather than rolled down the embankment, thereby knocking over an in situ roadside guide post in the process and then coming to rest further down the embankment on its off-side, with the key remaining in the ignition, the handbrake on and the vehicle being in gear. He also assumed that immediately before the vehicle went down the embankment, Mr Goodwin was located outside the vehicle and beside the drivers’ side with the door open when he was carried down the embankment. These assumptions were inferred from the police documents and photographs.

56. From his consideration of the matters he had assumed, as well as from his own observations of the topography of the accident scene on the occasion of his inspection, Mr McDonald concluded that at the accident scene, Simpson Road was a high-risk environment for road users. He came to this conclusion on account of his assessment of the independent operation of a number of factors.

57. Those factors were first, that Simpson Road was in close proximity to a large unprotected embankment that fell away immediately beside the vehicle travel path on the road, secondly, the likelihood that vehicles would need to manoeuvre in a confined space to turn around near the large drop-off, including the likelihood that the vehicles of residents would be manoeuvring in close proximity to the drop-off and thirdly, because the nature of the road, being a poor low friction surface which was sloping away from the horizontal plane, notably towards the drop-off. These factors led Mr McDonald to the view that there was significant risk in the use of the roadway. He pointed to the fact that despite these factors there was no edge protection on the roadway other than a guide post positioned at the edge of the embankment. He also expressed the view that the nature of the risk at the location had been increased due to disruption of the road surface due to sewage works carried out in approximately 2001.

58. Mr McDonald described the roadway in question as being a roadway intended for low speed traffic use but the roadway was not low risk in its use because the narrowness of the road space available and the extended distance of the access road made it inevitable that local residents and other road users would be required to manoeuvre in a limited space when parking or changing direction and exiting Simpson Road. He pointed to the fact that the slope of the road was about 12 per cent compared to a typical cross-fall of about 3 per cent. He described these factors as being circumstances that would allow a vehicle to move over the edge and slip down the embankment from a notable height. He drew attention to the fact that the commonly encountered vehicle turning manoeuvre, namely a three point turn, was unlikely to be achievable within the area of the 7 metres of available road space at the scene.

59. Mr McDonald stated that the implementation of safety treatment of the area was warranted to minimise the risk of vehicles passing over the embankment, noting for comparison purposes, that the defendant council had previously treated lesser risks located further south on Simpson Road by installing crash barriers that would serve to prevent any vehicular passage down the embankment. That area involved a much smaller drop-off and a shorter access road. In Mr McDonald’s view, the defendant should have either installed low cost barriers to keep vehicles away from the edge or considered closure of the relevant portion of Simpson Road until safety treatment of that nature could have been undertaken.

60. In giving consideration to the approach to be applied to the design of some form of safety barrier Mr McDonald noted that the provision of a full crash barrier was not necessarily required. In that regard he identified the other options as being the installation of a chain wire fence, a fence/handrail arrangement or the installation of a length of kerb as being appropriate treatment to provide a visual reference. He also suggested that it would have been desirable to seal the surface of the relatively short distance of the roadway.

61. In approaching his analysis Mr McDonald made reference to the Australian Standard AS2890.1:2004 as being an appropriate reference point to aid the process of selection of an appropriate physical barrier. In doing so he thought that the applicable considerations for car park safety represented an appropriate analogy. He explained that the car park analogy provided a useful benchmark for a consideration of safety issues at the site because of the likelihood of vehicles manoeuvring there at low speed and because there was a change in height of 0.6 metres or more between levels. I infer from the context that he was referring to changing height levels of the roadway associated with the cross-slope on the roadway. He thought that a barrier would be a sufficiently durable installation to endure impact in the assumed conditions. He estimated the cost of implementing these measures as being of the order of $50 to $130 per metre for a wire rope solution or approximately $260 per metre for a conventional steel W beam crash rail system.

62. Mr McDonald’s second report, which was dated 5 November 2009, was marked as Exhibit “C”. It was prepared in response to the report by Mr Winning which was tendered by the defendant. For convenience I have juxtaposed the analysis of that report to the analysis of the evidence of Mr Winning.

Oral evidence of Mr McDonald

63. Mr McDonald’s oral evidence expanded upon and explained his written opinions.

64. Mr McDonald described the seal carried out on the northern surface of Simpson Road in August 2004 as a “temporary (road) seal”. He believed that the “seal” probably comprised a mixture of aggregate and a binding agent, which had then been rolled to “smooth” the surface and to distribute the aggregate evenly. According to Mr McDonald, the application of that process was consistent with the road surface appearance as shown in the photographs Exhibit “3” and Exhibit “4”.

65. Mr McDonald said that if there was any loose aggregate on the road surface, particularly located near the edges, this would have the tendency to reduce the slip resistance of the road surface. In any event, the “temporary seal” would not provide the same grip as a permanent bituminous seal. According to Mr McDonald, the surface shown in Exhibit “3” did not appear to have been rolled smooth, and was likely to be “still quite slippery”.

66. Mr McDonald observed from the photographs, that the grassed shoulder to the roadway was irregular in shape and was soft, not firm. He came to that view because of the appearance of depressions on the surface of that area. He said that in such circumstances, the road shoulder would provide very minimal slip resistance, particularly as the road shoulder sloped towards the embankment.

67. Mr McDonald’s hypothesis as to the manner in which the accident occurred was based on photographs and police records. The hypothesis was that Mr Goodwin’s vehicle slid, with its wheels locked, either rear or nose first, down the embankment. Mr McDonald noted that, when the vehicle was inspected by a police engineer in the yard at the Engadine police station, the vehicle was in first gear, with its handbrake in the “on” position. He also noted that the ignition key had been turned “off” : Exhibit “O”. Mr McDonald considered it was unlikely that police or rescue personnel would have interfered with the gears or the handbrake before the police engineer conducted his mechanical examination.

68. Mr McDonald advanced the hypothesis that before the vehicle proceeded down the embankment it had probably been stationary, and was positioned not quite perpendicular to the road edge, with its front wheels either on the edge of the “temporary seal” or on the grassed shoulder. He expressed the view that Mr Goodwin was probably standing outside the vehicle and was located between the open driver’s door and the doorsill on that side and he may have been leaning into the driver’s area. This would appear to be consistent with the observations Mr Wilson made at the scene. Mr McDonald stated that with the vehicle in that position, some force would be required to overcome the inertia of the stationary vehicle. In Mr McDonald’s view, that force did not have to be major force. He said it “may have been something as trivial as taking a load in or out of the vehicle to change the weight distribution or an occupant getting in and out of the vehicle or opening a door”.

69. In Mr McDonald’s view, once the inertia of the vehicle had been overcome in the manner postulated and the vehicle had begun to slide toward the embankment, the fact that the road shoulder sloped downhill towards the embankment would have directed the vehicle towards the embankment and this would have caused the vehicle to increase the velocity of its forward movement until it reached the edge of the road and then slid down the embankment.

70. In Mr McDonald’s view, it was improbable that Mr Goodwin had been sitting in the driver’s seat when the vehicle began to slide. He thought there was no reason for him to do so, given that the vehicle was in gear with the handbrake on. He also stated that the final position of Mr Goodwin’s body was inconsistent with him having been thrown from the vehicle as it slid down the embankment. For the same reasons, in Mr McDonald’s view it was improbable that Mr Goodwin was attempting to drive the vehicle at the time it slid down the embankment.

71. Mr McDonald thought it was significant that the police photograph Exhibit “O” showed that the ignition key was in the “off” position. He said that this appeared to be inconsistent with the proposition that Mr Goodwin was attempting to drive the vehicle at the time it slid over the embankment. Mr McDonald also thought that it was improbable that Mr Goodwin was attempting to push the vehicle because such activity was inconsistent with the vehicle being in gear, with the handbrake on and facing the embankment.

72. In Mr McDonald’s view, the most probable hypothesis is that Mr Goodwin was standing on the roadway outside the stationary vehicle at a point between the open driver’s door and the door sill; the vehicle was at an angle to and not perpendicular to the embankment; the vehicle began to slide, an action that could have occurred if Mr Goodwin had leaned into the vehicle to remove something from it; as the vehicle slid down the embankment, it carried Mr Goodwin with it, until it was eventually tipped onto its driver’s side, thereby pinning Mr Goodwin’s legs beneath the vehicle.

73. Mr McDonald’s view was that the factors relevant to the vehicle commencing to slide in the manner he postulated included the degree of cross-fall of the road surface, as well as the slightly greater degree of cross-fall of the grassed road shoulder. Mr McDonald was the only witness who had made a measurement of the cross-fall of the road surface. He measured it at 12 per cent, which he described as “exceptionally high” for a road surface used by vehicular traffic. He said that road design values do not normally exceed 3 per cent to 4 per cent. In Mr McDonald’s view, the nature of cross-fall of the road surface was likely to have drawn vehicles towards the western edge of the roadway, and the embankment. He said it probably contributed to Mr Goodwin’s vehicle sliding over the road shoulder and embankment. In Mr McDonald’s view, in August 2004 the defendant should have taken action during the course of applying a “temporary seal” to the road surface to remedy what he considered to be an excessive cross-fall in the roadway.

74. Mr McDonald measured the width of the northern section of Simpson Road both at and near the accident scene. He included in his measurements, both the sealed road surface, and unsealed areas to each side of the traffic pathway. In Mr McDonald’s opinion, the relevant section of Simpson Road was too narrow for any vehicle to make a U-turn, or a three-point turn. He said the minimum turn which could safely be performed in the area was a five-point turn.

75. As to the risk to safety created by the narrowness of the relevant section of Simpson Road, Mr McDonald gave the following evidence:

“Q. Is that difficulty in turning, in your view, relevant to whether or not protection should have been provided by way of a guard rail or some other system along the western embankment?

A. Yes, most certainly. I consider the narrow width means, firstly, that it would be difficult to navigate within that space, but secondly, that there will be a tendency for drivers to try and minimise the number of turns, and therefore use the full width available, which would bring them perilously close to the top of the embankment.”

76. The fact that the northern section of Simpson Road was a no-through road was, in Mr McDonald’s view, relevant to an assessment of the likelihood that turning manoeuvres would take place on the roadway. Mr McDonald pointed out that apart from vehicles turning into Mr Bell’s driveway at 12 Simpson Road, all vehicles would be required to undertake either a multi-point turn, or to reverse out of Simpson Road. He described both alternatives as being equally perilous.

77. In Mr McDonald’s opinion, it would be unreasonable for any competent council engineer to make an assessment that the northern section of Simpson Road was, at the time of Mr Goodwin’s death, “low risk” so as not to warrant remedial treatment. Mr McDonald described the location as “moderate to high risk”.

78. In Mr McDonald’s opinion, the area of “moderate to high risk” extended from the carport situated outside 16 Simpson Road, to the position of the driveway of 12 Simpson Road, a distance of the order of 20 to 30 metres. Whilst there were wider areas of Simpson Road just north of the carport, as well as at the driveway to 12 Simpson Road, he noted that those areas might not be available for turning traffic.

79. Mr McDonald was of the view that it would be unreasonable to erect separate barriers only at the two most likely turning areas, such as near the carport outside 16 Simpson Road and near the driveway at 12 Simpson Road. He was of this view because if multi-point turns were required, each barrier would have to be about 15 metres in length, and therefore, having due regard to safety considerations, the barriers might as well be continuous. In Mr McDonald’s opinion, it would have made no engineering or economic sense to erect two separate sections of guardrail adjacent to the “most likely” turning areas on that section of Simpson Road even if it was reasonable to assume that turning would be limited to those areas.

80. Mr McDonald pointed out, as was obvious, that the risks involved in manoeuvring vehicles at any point on the roadway between 12 and 18 Simpson Road, were even greater at nighttime.

81. In re-examination, Mr McDonald explained in detail the many factors which he felt ought to have been taken into account in an assessment by a reasonably competent council engineer in considering whether there were sufficient safety risks near the accident scene to warrant the installation of a guardrail for a length of around 30 metres along the relevant section of Simpson Road.

82. The plaintiff argued that it would appear that none of those factors were actually taken into account by the relevant council engineer, Mr Morgan, whose duty it was to give such consideration to the matter, or by any of the other engineering personnel employed by the defendant and who had inspected the northern section of Simpson Road prior to Mr Goodwin’s death. Alternatively, it was argued that any factors that may have been taken into account, were given inadequate weight.

83. The defendant relied on expert evidence from Mr Terry Winning. He was not a qualified engineer, but claimed to have had “quite a bit of experience in the civil engineering and traffic engineering fields”. Mr Winning was asked to “certify” calculations made by a council officer, Cristian Vasquez, and he did so. Both Mr Winning and Mr Vasquez used s 6 of the Road Design Guide [RDG] that had been published by the Roads and Traffic Authority. That particular section of the guidelines dealt with safety barriers.

84. Mr McDonald stated his view that this part of the RDG was inappropriate to be used to undertake a risk analysis of the northern section of Simpson Road because it was irrelevant. He explained that the guide in question deals with the scenario of vehicles travelling along a roadway, and is concerned with the prospect that vehicles will drift or be driven off the road surface whilst progressing along the road, which was a different risk scenario to the one under consideration. He stated that s 6 of the RDG dealing with safety barriers is not intended to, and does not contemplate, a roadway such as Simpson Road, where at some point almost every vehicle using that roadway must turn and manoeuvre within the road width. Almost every vehicle on Simpson Road will at some point be driven towards the edge of the roadway either in forward or reverse gear, either by day and by night.

85. In Mr McDonald’s view, s 6 of the RDG was not definitive and could only ever be used as an aid in undertaking a risk assessment. He said it should be used in conjunction with the relevant Australian Standard for car parks which contemplates repetitive vehicle manoeuvres. He also invoked the RDG for the design of bridges because that guide also contemplates protection from a steep fall away from the edge of the roadway embankment at the side of the roadway.

86. Mr McDonald pointed out, significantly, that in any risk assessment, and in particular a risk assessment of a location such as Simpson Road, professional judgment by a competent engineer should be the basis of any risk analysis, rather than simple reference to a road design guide which may be inappropriate.

87. Mr McDonald explained in detail why almost every component of Mr Vasquez’ calculations that were “certified” by Mr Winning, were inappropriate, misleading, and/or simply erroneous in the context under consideration.

88. In Mr McDonald’s view, each of the complaints the defendant had received concerning the condition of the northern section of Simpson Road should have triggered a proper risk assessment based on the professional judgment of a competent council engineer. In addition, Mr McDonald expected that those complaints, and the occasion of the sewerage works in 2001, would have resulted in actual inspections of the site by council engineers. It is apparent from the evidence of Mr Hewitt and Mr Morgan that such inspections did occur. In Mr McDonald’s view those inspections ought to have resulted in risk factors being identified, with remedial work being appropriately scheduled and undertaken promptly on account of safety considerations.

89. Mr McDonald noted that in Mr Vasquez’ calculations, in 2008, the cost of the supply and installation of a guardrail of the appropriate length, was estimated to be $8,365. On any view, Mr McDonald considered that this cost was justified, having regard to the risk. He said that if necessary, an even cheaper alternative such as a wire fence could have been installed, which would also have prevented Mr Goodwin’s death. He said that until remedial work had been undertaken, the relevant section of road could and should have been closed.

90. Mr McDonald disagreed with a number of observations of the site made by the defendant’s witness Mr Davies, an engineer employed by Pittwater Council. Mr McDonald disagreed with Mr Davies’ description of the embankment in the relevant section of Simpson Road. Mr McDonald also disagreed with Mr Davies’ description of the state of the road shoulder at the accident scene. In Mr McDonald’s view, Mr Davies had underestimated the steepness of the embankment, and should have regarded the embankment as an “extensive hazard” requiring treatment.

91. Mr McDonald pointed out that in his consideration, Mr Davies had not referred to the lack of slip resistance on the grassed road shoulder, nor had he taken into account that the road shoulder was soft as well as slippery. In Mr McDonald’s view, Mr Davies wrongly took into account the presence of vegetation along the western edge of the road as a guide to where the trafficable area of the pavement was located. The plaintiff submitted that Mr Davies failed to take into account that the vegetation at the time of the accident was less dense than how it appeared at the time of Mr Davies’ inspection.

561. Applying a discount of 35 per cent to the amount of $111,133 this yields the sum of $72,236. I therefore assess the plaintiff’s damages for the future loss of discounted air travel in the sum of $72,236.

Funeral costs

562. The defendant has conceded that the plaintiff’s claim for reimbursement of the funeral costs she has incurred in respect of her deceased son are in the amount of $3318. I therefore assess funeral costs in the sum of $3318.

Summary of damages assessment

563. My assessment of the plaintiff’s damages is summarised as follows:

Heads of damage claimed in the nervous shock claim	Assessment
(a) Non economic loss	$189,500
(b) Past medical and allied treatment	$72,920
(c) Future medical and allied treatment	$100,000
First sub-total	$362,420
Heads of damage claimed under Compensation to Relatives Act 1897	Assessment
(d) Past loss of financial support	$45,200
(e) Future loss of financial support	$150,720
(f) Past loss of domestic support	$34,804
(g) Future loss of domestic support	$134,517
(h) Past loss of discounted air travel	$33,102
(i) Future loss of discounted air travel	$72,236
(j) Funeral costs	$3,318
Second sub-total	$473,897
Total	$836,317

E. DISPOSITION AND ORDERS

Disposition

564. The plaintiff has succeeded on the issues of liability and causation and I have assessed the plaintiff’s entitlement to damages in respect of both claimed causes of action in the combined sum of $836,317. As there is no memorandum of consent to unlimited jurisdiction the plaintiff has acknowledged that she cannot and does not expect to recover damages in excess of $750,000 : s 51 of the District Court Act 1973. She is entitled to a judgment in that amount. There is no reason why in this case costs of the proceedings should not follow the event of a successful outcome for the plaintiff.

Orders

565. I make the following orders:

(a) Verdict for the plaintiff in the sum of $836,317;
(b) Judgment for the plaintiff in the sum of $750,000;
(c) The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered;
(d) Liberty to apply on 7 days notice if further orders are required;
(e) The exhibits may be returned.