Roads and Traffic Authority of NSW v Palmer - [2003] NSWCA 58

No judgment structure available for this case.

Reported Decision:
(2003) Aust Torts Reports 81-693

Court of Appeal

CITATION: ROADS AND TRAFFIC AUTHORITY OF NSW, COUNCIL OF THE SHIRE OF EVANS & PIONEER ROAD SERVICES PTY LTD v PALMER [2003] NSWCA 58

HEARING DATE(S): 6 November 2002
7 November 2002
8 November 2002

JUDGMENT DATE:
28 March 2003

JUDGMENT OF: Spigelman CJ at 1; Handley JA at 229; Giles JA at 235

DECISION: Appeal of RTA allowed with costs. Appeals of Council and Pioneer dismissed with costs.

CATCHWORDS: TORT - Negligence - Duty of care - Liability of statutory authorities - Car accident at road works - Where funded by RTA, road owned by Council, work carried out by sub-contractor - TORT - Negligence - Causation - Where multiple possible causes - Where little evidence from plaintiff - CONTRACT - Indemnity clause - Relevant approach - Whether intended to cover Principal's own negligence - DAMAGES - Life expectancy - Where injury interacting with pre-existing disease - PRACTICE AND PROCEDURE - Amendment of grounds of appeal - Where pleading not pressed at trial.

LEGISLATION CITED: Local Government Act 1993
Roads Act 1993

CASES CITED: Agar v Hyde (2000) 201 CLR 552
Australian Paper Plantations Pty Ltd v J & E M Venturoni [2000] VSCA 71
Bennett v Minister of Community Welfare (1992) 176 CLR 408
Betts v Whittingslowe (1945) 71 CLR 637
Brodie v Singleton Shire Council (2001) 206 CLR 512
Burnie Port Authority v General Jones Pty Ltd (1992) 179 CLR 520
Chappel v Hart (1998) 195 CLR 232
Coulton v Holcombe (1986) 162 CLR 1
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1
Darlington Futures Limited v Delco Australia Pty Ltd (1986) 161 CLR 500
Davis v The Commissioner for Main Roads (1966) 117 CLR 529
Donoghue v Stevenson [1932] AC 562
Fairchild v Glenhaven Funeral Services Ltd [2002] 3 WLR 89
Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155 at 161-162
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54
Holloway v McFeeters (1956) 94 CLR 470
Luxton v Vines (1952) 85 CLR 352
Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631
Naxakis v Western General Hospital (1999) 197 CLR 269
O'Brien v Komesaroff (1982) 150 CLR 310
Pye v Renshaw (1951) 84 CLR 58
Pyrenees Shire Council v Day (1998) 192 CLR 330
Roads and Traffic Authority v Scroop (1998) 28 MVR 233
RTA v Fletcher & Leighton Contractors [2001] NSWCA 63
Sutherland Shire Council v Heyman (1985) 157 CLR 424 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418
Trevali Pty Limited v Haddad NSWCA, 16 November 1989
University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481
Valkonen v Jennings Constructions Ltd (SAFC, 29 November 1995, unreported)
Water Board v Moustakis (1988) 180 CLR 491

PARTIES :

Roads and Traffic Authority of NSW
(Appellant in No. 40217/02)
Council of the Shire of Evans
(Appellant in No. 40102/02)
Pioneer Road Services Pty Ltd
(Appellant in No. 40133/02)
Lisa Denise Palmer
(Respondent)

FILE NUMBER(S): CA 40217/02; 40102/02; 40133/02

COUNSEL:
B H K Donovan QC / P A Regattieri
Appellant (Roads and Traffic Authority of NSW)
C G Gee QC / I R Pike
Appellant (Council of the Shire of Evans)
I G Harrison SC / P S Braham
Appellant (Pioneer Road Services Pty Ltd)
B M J Toomey QC / A J Black
Respondent (Lisa Denise Palmer)

SOLICITORS:
I V Knight, CrownSolicitor
Appellant (Roads and Traffic Authority of NSW)
Phillips Fox
Appellant (Council of the Shire of Evans)
Corrs Chambers Westgarth
Appellant (Pioneer Road Services Pty Ltd)
Walsh & Blair Lawyers
Respondent (Lisa Denise Palmer)

LOWER COURTJURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 20339/98

LOWER COURT
JUDICIAL OFFICER : Wood CJ at CL

CA 40217/02
CA 40102/02
CA 40133/02

SC 20339/98

SPIGELMAN CJ
HANDLEY JA
GILES JA
Friday 28 March 2003

ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES, COUNCIL OF THE SHIRE OF EVANS & PIONEER ROAD SERVICES PTY LTD

v

Lisa Denise PALMER

Facts
Lisa Denise Palmer (the Plaintiff) suffered catastrophic injuries as a result of a car accident which occurred on MR54, also known as the Sofala Road in the Shire of Evans. The accident took place on a broken back curve at which road works were being carried out. The Plaintiff sued the Roads and Traffic Authority (RTA), the Council of the Shire of Evans (Council) and Pioneer Road Services Pty Ltd (Pioneer) who were contracted by the Council to carry out the works with funding from the RTA. Wood CJ at CL entered judgment for the Plaintiff against all of the defendants and awarded damages in the amount of $16 347 477.91. This amount was to be paid, 50% each, by the Council and Pioneer. All of the defendants appealed.

Held
A. (per Spigelman CJ, Handley and Giles JJA agreeing)
The finding that the accident was caused by the combined effect of speed and gravel was open to his Honour below. Alternatives pressed by the Appellants were speculation and not supported by objective evidence.

B. (per Spigelman CJ, Handley and Giles JJA agreeing)
His Honour’s task in determining life expectancy for the purposes of assessing damages, was to do so on the whole of the expert evidence available. The evidence of the experts accepted did not require a conclusion that the 75% reduction in life expectancy for tetraplegia should be applied to the average life expectancy of 68 years for a sufferer of neurofibromatosis of the kind suffered by the Plaintiff. His Honour’s final conclusion of 65 years, allowing for the interaction of both conditions exhibited no error.

C. (per Spigelman CJ, Handley and Giles JJA agreeing)
As to the risk of harm created by combination of the presence of gravel and the 75 km/h sign, the RTA did not exercise, pursuant to the applicable statutory and administrative arrangements, sufficient control over that risk to give rise to a duty of care to the Plaintiff. That control was exercised by the Council and Pioneer.

Brodie v Singleton Shire Council (2001) 206 CLR 512; Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54 applied. Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 referred to.

E. (per Spigelman CJ, Handley and Giles JJA agreeing)
The finding that the Council did not owe a duty of care with respect to the guardrail does not require a disturbance of his Honour’s assessment of contribution between the Council and Pioneer at 50%.

Darlington Futures Limited v Delco Australia Pty Ltd (1986) 161 CLR 500 applied. Australian Paper Plantations Pty Ltd v J & E M Venturoni [2000] VSCA 71 discussed.

(additionally, per Giles JA, Handley JA agreeing)

The imbalance of risk allocation which would result if Pioneer were required to indemnify the Council for the Council’s breaches of duty indicates against such a construction of the clause. In circumstances where the Council’s liability to the Plaintiff arises partly from direct breaches of its own duty and partly from its responsibility for Pioneer’s conduct, the Council cannot claim an indemnity from Pioneer.

Australian Paper Plantations Pty Ltd v J & E M Venturoni [2000] VSCA 71 discussed.

G. (per Giles JA, Handley JA agreeing and Spigelman CJ for similar reasons)
Leave to amend the grounds of appeal of the Council to include a claim for damages for breach of contract against Pioneer is refused. This claim, although pleaded, was not pursued at trial and no error arises from his Honour’s failure to assess damages for breach of contract. The issue of causation is unclear. It would be unjust for the Council to be permitted to pursue the ground on appeal.

University of Wollongong v Metwally (No 2)

Coulton v Holcombe

Suttor v Gundowda Pty Ltd

Orders

CA 40217/02
CA 40102/02
CA 40133/02

SC 20339/98

SPIGELMAN CJ
HANDLEY JA
GILES JA

Friday 28 March 2003

ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES, COUNCIL OF THE SHIRE OF EVANS & PIONEER ROAD SERVICES PTY LTD

v

Lisa Denise PALMER

Judgment

1 SPIGELMAN CJ: On 27 February 1997 Lisa Denise Palmer (“the Plaintiff”) suffered catastrophic injuries when she lost control of her car at the Nobby’s Hill section of Main Road 54, known as the Peel or Sofala Road. The car proceeded over the edge of the road and fell some five to six metres down an embankment, rolling as it did. As a result of the accident the Plaintiff suffers from tetraplegia. The severity of her injuries is fully set out by Wood CJ at CL in his judgment at pars [438]-[455] and does not require repetition.

2 In large measure the findings of primary fact by Wood CJ at CL are not in contest. Insofar as they have been challenged I will refer to them in detail when dealing with the relevant ground of appeal.

3 The accident occurred at a point where roadworks were being undertaken by Pioneer Road Services Pty Ltd (“Pioneer”) pursuant to a contract between it and the Council of the Shire of Evans (“the Council”). The project was implemented pursuant to arrangements, including funding, between the Council and the Roads and Traffic Authority of New South Wales (“the RTA”).

4 Wood CJ at CL made findings of primary fact which are not in contention and which state in succinct form the condition of the roadworks as follows:

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;

5 His Honour also made a series of findings of fact about the circumstances of the accident, as follows:

(i) The Plaintiff was 22 years of age at the time of the accident and had been licensed to drive a motor vehicle only in November 1996, i.e. she only had three months driving experience before the accident (pars [8]-[9]).

(ii) She had regularly driven over the road from her home at Wattle Flat to Bathurst and back over the course of those three months either for the purposes of work or for social purposes (par [9]).

(iii) However, she had not used the road over the several days preceding the accident, i.e. after 22 February, and accordingly had not encountered the roadworks or gravel in the Nobby’s Hill section of the road before the morning of 27 February when the accident occurred (par [9]).

(iv) An eyewitness observed her driving about 10 kilometres before the accident at a speed of about 70-80 km/h. That eyewitness took about two and a half minutes before proceeding in the same direction as the Plaintiff and he drove at about 90-95 km/h in straight sections and at lesser speed around the bends and one kilometre from the accident site he again observed the Plaintiff’s vehicle as it entered the first bend. The inference was that she was driving at a slower speed than he was (pars [12]-[13]).

(v) The eyewitness assessed the Plaintiff to have entered the bend at a moderate pace: “no faster than 75 kilometres and no slower than 60” (par [13]). His Honour accepted this evidence (par [180]).

6 With respect to each of the Appellants the trial judge made findings as to duty, breach and causation. Save in the case of Pioneer, there was an issue as to duty. In each case there was an issue as to breach and causation.

7 In the case of the Council, his Honour referred to the following circumstances as creating a duty to take reasonable care at [375]:

“a) the recitals in the road maintenance agreement in relation to the ‘shared responsibility’ of the RTA and the Council; the express adoption in that agreement of the Yellow Book which, in the several respects noted (eg Section B.01) referred to the Council as the ’Road Authority’ in relation to the Main Road 54; and the agreement by Council to administer that agreement in accordance with the requirements in that Book (Clause 6.1).

c) the terms of S7(4) of the Roads Act, so far as that made it clear that the Council was a road authority; and of S 115 of the Act which gave it the necessary powers to regulate traffic on the road;

d) the fact that the Council assumed responsibility for annual inspections, and for the submission of proposals to the RTA for maintenance, enhancement and black spot work; and also for the provision and erection of advisory speed signs;

e) the fact that the Council possessed local knowledge in relation to main roads within its boundaries, and was in a position to, and was expected to, identify problems requiring attention;

f) the fact that the Council entered in a contract with Pioneer to carry out the resealing works, and approved the shoulder widening, and to that extent, it was the body which directly permitted and authorised the road surface to be altered;

8 His Honour also found that the duty that the Council owed was a non-delegable duty. He referred to the decisions of this Court in RTA v Scroop (1998) 28 MVR 233 and RTA v Fletcher & Leighton Contractors [2001] NSWCA 63 (see pars [378]-[379]). On this basis his Honour found that the Council was liable for the breaches of duty which were committed by Pioneer (par [380]).

9 His Honour also went on to find, alternatively to its non-delegable duty, that the Council was itself directly in breach of its duty, for the following reasons:

a) the powers and right of control which it possessed under the Act to regulate traffic;

b) the responsibility and control which it possessed as a road authority pursuant to the Yellow Book arrangements and the road maintenance agreement;

c) the fact that it had the obligation to consider traffic control arrangements while the works were being carried out and the ability to approve or disapprove of the traffic control plan which was required under the Contract;

d) the presence of Mr. Vautin on site during the works, and the office of Superintendent held by Mr. Lovell under the Contract with Pioneer.

e) its participation in inspections and audits of the roads;

10 His Honour’s findings of direct breach of the duty owed by the Council were as follows:

“[381] Independently, I am of the view that it was itself directly in breach of the duty which it owed to the plaintiff, insofar as it failed to ensure that proper warning signs, (ie the slippery road, 60 km/h site regulation, and 55km/h advisory signs), were in place, or to ensure that the 75 km/h sign was covered over while there was still gravel on the roadway in the area of the top bend. Additionally, I find that it was in breach of the duty which it owed, in failing to take steps to have a guardrail installed adjacent to the embankment where the plaintiff left the road; or alternatively, until there were funds available for its installation, in failing to replace the 75 km/h advisory speed sign with a 55 km/h sign, in order to reduce the risk of a motorist losing control on the substandard bend, and as a consequence, leaving the road.”

11 In the case of the RTA the basis on his Honour’s finding that it owed a duty of care was as follows:

RTA

a) the position of the RTA as manager of the State Road Network, and its acceptance for the overall management of Main Road 54 as part of that network;

b) the recitals to the State Roads Maintenance Agreement to the effect that the RTA and Councils ‘ share responsibility for the management of the roads and traffic system’; that ‘the RTA wants to work in partnership with the (Council)’; and that on a State Road, where Council carries out the work, ‘the RTA decides what work is to be done and engages the Council to carry out the work’;

c) the terms of engagement contained in clause 4.1 of the State Road Maintenance Agreement;

d) the entire structure of the Roads Act, in relation to the overall functions and powers of the Roads & Traffic Authority; and in particular the reservation of powers contained in Sections 61 and 64;

e) the terms of the Yellow Book, which note in the introduction that the arrangements made ‘reflect the RTA’s shift to take greater responsibility for the strategic management of State Roads’, and the statement in Section 1 B, that the maintenance and enhancement works respectively, if not carried out by the RTA, are carried out by ‘Councils by agreement with the RTA’.

f) the control which the RTA exercised through the funding arrangements in relation to the roads upon which works could be carried out, and in determining what works were permissible (see inter alia, Section F of the Yellow Book);

g) the fact that it conducted surveys and audits to assist both itself and the Council in determining the need, and priorities, for maintenance and enhancement; and participated in the decision making process concerning the erection of suitable regulatory and advisory road signs;

h) the fact that Black Spot funding is secured by the RTA in negotiation with the Federal Government, and available funds are then allocated by it to Councils according to its assessment of their needs and priorities;

i) the fact that the resealing work was deferred, following discussions between the RTA and Council, until the shoulders had been widened;

12 His Honour went on to note in the next paragraph:

Sutherland Shire Council v Heyman

13 His Honour referred again to RTA v Scroop to hold that the duty of care that the RTA owed was non-delegable (par [391]). However, his Honour’s final conclusion, of significance for the final apportionment amongst the Appellants, was :

“[392] I do, however, accept, both in relation to the shoulder widening and the resealing work that there was no relevant act or omission for which the RTA was directly responsible. Its liability is wholly vicarious.”

14 In the case of Pioneer, the Plaintiff alleged that Pioneer owed a duty to exercise proper care and skill when carrying out the roadwork in a way that did not present a danger to road users. It had further been submitted that the content of the duty was co-extensive with that set out in the contract documents which were designed to ensure quality control and proper practice in relation to all relevant safety issues. Pioneer accepted that it owed the duty of care which the Plaintiff alleged, but asserted that there had been no breach of duty and, alternatively, that if there had been a breach, causation was not established. The breaches which were alleged against Pioneer were set out by his Honour at par [394]:

“a) not submitting a Traffic Control Plan;

b) not taking steps to ensure that the advisory speed sign was covered, and replaced with an appropriate advisory speed sign;

c) not supplying or ensuring the provision of slippery road signs, or of a 60 km/hr limit for the whole of the site;

15 His Honour noted that the Plaintiff accepted that no claim could be made against Pioneer in relation to the failure to install the Armco guardrail. Nor could any claim be pursued with respect to the original installation of the 75 km/h advisory sign. Reliance was placed on the fact that the sign was allowed to remain uncovered and was not replaced with an appropriate advisory sign.

16 His Honour’s findings of breach against Pioneer were that both the breaches alleged under the contract with the Council and of the duty owed to the Plaintiff in tort were made out. His Honour said:

“[399] So far as the contract is concerned, those breaches related to clause 15(a) of the General Conditions; clauses 5.1.3, 5.1.9, 5.3.1, 5.3.2, of Part 5 Technical Specification; clauses 1.1, 1.3, 1.7 and 4 of QA Specification G10 Control of Traffic; clause 45 of the RTA QA Specification R45 (in particular 45.5.10); clauses 6.5 and 6.6 of the Sprayed Sealing Guide; and of the provisions of the Australian Standard 1742.3 contained in clause 2.2 and Table 4.4), in relation to the provision of the signs and controls which I have earlier found were necessary for the safety of the public while gravel was on the road. The contractual and tortious duties in this respect are, in my view, co-extensive.

[400] I am similarly satisfied that it was in breach of its general duty of care in allowing gravel to remain on the roadway, in circumstances where the signs and control of the site were inadequate in the respects earlier found, and in not arranging to cover over the 75km/h advisory sign.

a) give regard to and comply with AS 1742.3, and in particular so much of the Standard as required careful consideration to be given to the signing of the site so as to provide adequate warnings of changes in the road surface and driving conditions; as required it to remove any signs which were inappropriate while works were being carried out; as required it to establish an appropriate speed limit zone, and to provide repeater signs (generally and pursuant to clause 1.1 of the QA Specification G10 and clause 5.3.2 of the Part 5 Technical Specification);

b) give regard to and comply with the requirement of the Spray Sealing Guide Section 6.6, as well as those arising under RTA QA Specification R45 (45.5.10), in controlling traffic in the area of the works so as to provide for the safe movement of traffic, and to establish a temporary speed zone;

c) give regard to and provide appropriate slippery road warning and advisory signs for the safety of the public, as required by clause 15 of the General Conditions of Contract;

d) give regard to and ensure that the road was free of loose stone, unless sufficiently controlled and the subject of appropriate warning and speed advisory signs, as required by clause 5.1.3, 5.1.9, 5.3 of the Technical Specification and clause 1.7 of the QA Specification G10.

minimum requirements’

shall

Evidence of the Plaintiff

17 The Plaintiff is almost wholly disabled and is unable to move any portion of her body below mouth level. She is significantly impaired in speech and could not remember, when called as a witness, anything in relation to the accident. By reason of her disabilities her examination in chief and cross-examination was extremely limited. It was able to be conducted in part through the assistance of a nursing sister who had some familiarity in communicating with her. Her limited evidence enabled the trial judge to conclude, with some corroborative evidence, that the Plaintiff had regularly driven over the road in the three months since acquiring her license but that she had not done so for several days prior to the accident. Accordingly, she had not encountered the roadworks or the gravel at the Nobby’s Hill section of the road before coming upon it on the morning of 27 February.

18 An important part of her evidence was the statement that she had been able to make to her counsel out of the court about a year before the trial, which was admitted in evidence without objection. That statement was:

“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 75 km 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.”

19 In the circumstances of the Plaintiff’s physical condition, matters that would normally be required to be stated expressly can properly be the subject of a process of inference by the trier of fact. Similarly, matters that would normally be required to be put expressly in cross-examination would not be required to be so put.

20 The position is not wholly dissimilar from that which arises in the case of a compensation to relatives claim after the death of a person to whom a duty of care was owed. In such a case also, the absence of examination in chief or cross-examination on certain matters is obviously excused and important questions must be determined on the basis of inference which, in the usual case, would be the subject of direct evidence.

The Joint Experts Report

21 The expert evidence assisted the Court to understand both the likely mechanics of the accident and the inferences that are available from such objective circumstances that could be established. Each of the witnesses was also permitted to give opinion evidence as to the likely course of events. This evidence was of particular significance on the primary factual issue which arises on this appeal between the Appellants and the Plaintiff, i.e. the issue of causation.

22 In view of differences amongst the experts, a joint conference of four of the five (other than Mr Johnson) was convened. This led to the production of a joint statement which was reproduced in his Honour’s judgment at [64] as follows:

“ 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 definitive view of the initiation of the loss of control.

23 To a substantial degree on the basis of the joint experts report, his Honour made the following findings:

a) the sign posts warning of the work, its nature and dangers, were seriously inadequate;

c) there should have been more stone warning signs as well as ‘slippery’ surface signs repeated at regular intervals;

d) there should have been a Roadworks 60 km/h limit for the entire section of road;

(i) it suggested that even in normal conditions the safe speed for the two bends was the same, when clearly there was a proper differential between them of 15 to 20 km/h;

(ii) it indicated that the safe speed during the roadworks was the same as under normal conditions;

f) the adjoining embankment added to the hazard by reason of the potential drop off and the proximity of the newly widened shoulder to it;

h) the normal friction between the wheels of the plaintiff’s car and the road surface, which determines the speed at which a bend can be safely taken, was significantly reduced by the presence of loose aggregate on the newly sealed surface;

i) the loose aggregate was not evenly spread, by the morning of the accident, having been accumulated, in sections, into mounds;

j) the plaintiff began to lose control on the roadway before the point at which the tyre marks were left;

l) the plaintiff had safely traversed this section of roadway on many previous occasions, but came to grief on the one occasion when there was gravel on the road;

The Statutory Scheme

24 The relevant provisions of the Roads Act 1993 are as follows:

7 Roads authorities

(1) The RTA is the roads authority for all freeways.

(2) The Minister is the roads authority for all Crown roads.

(3) The regulations may declare that a specified public authority is the roads authority for a specified public road, or for all public roads within a specified area, other than any freeway or Crown road.

(4) The council of a local government area is the roads authority for all public roads within the area, other than:

a) any freeway or Crown road, and

b) any public road for which some other public authority is declared by the regulations to be the roads authority.

5) A roads authority has such functions as are conferred on it by or under this or any other Act or law.

…

46 Main Roads

The Minister may, by order published in the Gazette, declare to be a main road:

(a) any public road, or

(b) any other road that passes through public open space and joins a main road, State highway, freeway, tollway, transitway or controlled access road.

…

61 Road works on certain classified roads

(1) It is exclusively the function of the RTA to make decisions as to what road work is to be carried out:

a) on any freeway, State highway or metropolitan main road, or

b) on any other classified road in respect of which the carrying out of that kind of road work is, by virtue of an agreement or direction under this Division, the responsibility of the RTA.

(2) It is exclusively the function of the RTA to construct and maintain State works.

62 Roads agreements between RTA and roads authorities

(1) The RTA and a roads authority may enter into an agreement under which some or all of the functions of the roads authority with respect to a classified road become, to the extent provided by the agreement, the responsibility of the RTA.

(2) While an agreement under this section has effect, the functions of the roads authority with respect to the road are, to the extent provided by the agreement, to be exercised by the RTA.

(3) This section does not limit the power of the RTA to exercise any function conferred on it by or under any other provision of this Act with respect to a classified road.

63 Ministerial directions

(1) The Minister may, if of the opinion that special circumstances so require, direct that some or all of the functions of a roads authority with respect to a classified road are to become, to the extent provided by the direction, the responsibility of the RTA.

(2) While a direction under this section has effect, the functions of the roads authority with respect to the road are, to the extent provided by the direction, to be exercised by the RTA.

64 RTA may exercise functions of roads authority with respect to certain roads

(1) The RTA may exercise the functions of a roads authority with respect to any classified road, whether or not it is the roads authority for that road, and, in the case of a classified road, whether or not that road is a public road.

(2) The roads authority for a classified road with respect to which the RTA is exercising a particular function may not exercise its functions with respect to the road in any manner that is inconsistent with that in which the function is being exercised by the RTA.

65 RTA has immunities of a roads authority

While exercising the functions of a roads authority under this Division with respect to a road for which it is not the roads authority, the RTA has the immunities of a roads authority with respect to that road.

…

71 Powers of roads authority with respect to road work

A roads authority may carry out road work on any public road for which it is the roads authority and on any other land under its control.

…

74 Standard plans and specifications

(1) The RTA may cause standard plans and specifications to be prepared for the carrying out of road work on a classified road, either generally or in a particular case, and may require a roads authority to carry out any such road work in accordance with those plans and specifications.

(2) Any road work in respect of which the RTA has made such a requirement must be carried out by the roads authority in accordance with the requirement.

75 Public authorities to notify RTA of proposal to carry out road work on classified roads

A public authority may not carry out road work on a classified road, being work that involves:

(a) the deviation or alteration of the road, or

(b) the construction of a bridge, tunnel or level crossing in the road,

unless the plans and specifications for the proposed work have been approved by the RTA.

…

114 Roads authorities may only regulate traffic in accordance with Part

A roads authority may not regulate traffic on a public road by means otherwise than in accordance with this Part.

115 Roads authority may regulate traffic in connection with road work etc

(1) A roads authority may regulate traffic on a public road by means of barriers or by means of notices conspicuously displayed on or adjacent to the public road.

(2) The power conferred by this section may be exercised by the RTA for any purpose but may not be exercised by any other roads authority otherwise than:

(a) for the purpose of enabling the roads authority to exercise its functions under this Act with respect to the carrying out of road work or other work on a public road, or

(b) for the purpose of protecting a public road from serious damage by vehicles or animals as a result of wet weather, or

(c) for the purpose of protecting earth roads from damage caused by heavy vehicles or by animals, or

(d) for the purpose of protecting members of the public from any hazards on the public road, or

(e) for the purpose of protecting vehicles and other property on the public road from damage, or

(f) for the purpose of enabling a public road to be used for an activity in respect of which a permit is in force under Division 4 of Part 9, or

(g) for a purpose for which the roads authority is authorised or required, by or under this or any other Act or law, to regulate traffic.

…

116 Applications for consent

(1) A roads authority may apply to the RTA for consent to:

(a) the erection of any notice or barrier, the carrying out of any work or the taking of any other action for the purpose of regulating traffic on a public road for purposes other than those referred to in Division 1, or

(b) the removal of any notice or barrier, the demolition of any work or the ceasing of any action for which it has been given consent under this Division.

(2) Before doing so, the roads authority must cause notice of the application to be published in a local newspaper.

(3) The notice:

(a) must specify the particular action for which the roads authority is applying for consent, and

(b) must state that any person is entitled to make submissions to the RTA with respect to the granting of consent, and

(c) must indicate the manner in which, and the period (being at least 28 days) within which, any such submission should be made.

(4) This section does not apply to the erection of any notice, the carrying out of any work or the taking of any other action that the roads authority is required by Division 3 to erect, carry out or take.

117 Public submissions

(1) Any person may make submissions to the RTA or to the roads authority with respect to the application.

(2) The roads authority must ensure that any submissions received by it with respect to the application are forwarded to the RTA.

118 Decision on application

(1) After considering any submissions that have been duly made with respect to an application, the RTA may grant consent to the application, either conditionally or subject to conditions, or may refuse the application.

(2) The roads authority is authorised to take such action as is specified in a consent under this section.

119 Review of RTA’s decision

(1) A roads authority may request the Minister to review the decision of the RTA:

(a) to refuse an application under this Division, or

(b) to impose conditions on a consent granted under this Division.

(2) The request must be accompanied by copies of all submissions made in connection with the original application.

(3) The Minister, after taking into consideration the submissions and any representations made by the RTA with respect to the application, may deal with the application in any way in which the application could have been dealt with by the RTA.

(4) The Minister’s decision under this section is taken to be the decision of the RTA and has effect accordingly.

…

145 Roads authorities own public roads

(1) All freeways are vested in fee simple in the RTA.

(2) All Crown roads are vested in fee simple in the Crown as Crown land.

(3) All public roads within a local government area (other than freeways and Crown roads) are vested in fee simple in the appropriate roads authority.

(4) All public roads outside a local government area (other than freeways and Crown roads) are vested in fee simple in the Crown as Crown land.

146 Nature of ownership of public roads

(1) Except as otherwise provided by this Act, the dedication of land as a public road:

(a) does not impose any liability on the owner of the road that the owner would not have if the owner were merely a person having the care, control and management of the road, and

(b) does not affect the rights or liabilities of any person under any easement or under any Act or law, and

(c) does not affect any rights of any person with respect to minerals below the surface of the road, and

(d) does not constitute the owner of the road as an occupier of the land, and

(e) does not authorise the owner of the road to dispose of any interest (other than an easement or covenant) in the land, and

Land Acquisition (Just Terms Compensation) Act 1991

…

163 Roads authorities to keep records

(1) A roads authority must keep a record of the public roads for which it is the roads authority.

(2) The record must indicate with respect to each public road:

(a) its location, and

(b) the name and number (if any) given to it by the roads authority, and

(c) the reference of any plan in accordance with which its boundaries or levels have been fixed or varied by the roads authority, and

(d) such other particulars as may be prescribed by the regulations.

(3) The record must be available for inspection by members of the public, free of charge, during the normal business hours of the roads authority.

(4) The RTA must keep a record of all classified roads in addition to the records that it keeps in its capacity as a roads authority.

(5) The record must indicate with respect to each classified road:

(a) its location, and

(b) the name and number (if any) given to it by the RTA, and

(c) its classification, and

(d) the reference of any plan in accordance with which its boundaries or levels have been fixed or varied by the RTA, and

(e) such other particulars as may be described by the regulations.

(6) The record must be available for inspection by members of the public, free of charge, during the normal business hours of the RTA.

…

207 RTA may provide financial and other assistance to roads authorities for road work on classified roads

(1) The RTA and a roads authority may enter into, and may perform their obligations under, an agreement under which the RTA provides financial or other assistance to the roads authority to enable it:

(a) to carry out specified road work or specified traffic control work on a specified classified road, or

(b) to carry out road work or traffic control work generally.

(2) Under an agreement of the kind referred to in subsection (1) (a), the RTA is liable to pay to the roads authority:

(a) the whole of the cost of the road work or traffic control work, in the case of work to be carried out on a main road, or

(b) no less than half of the cost of the road work or traffic control work, in the case of work to be carried out on a secondary road, or

(c) such part of the cost of the road work or traffic control work as the RTA determines, in the case of work to be carried out on a tourist road,

unless the roads authority notifies the RTA that it is prepared to accept a lesser amount.”

25 The Roads Act also contains a dictionary which includes the following pertinent definition:

regulate traffic

26 MR 54 had been declared to be a main road pursuant to s46 of the Act. Nevertheless, s7(4) continued to apply to the road so that “the roads authority”, within the meaning of that term in the Roads Act 1993, continued to be the Council of the Shire of Evans. None of the provisions pursuant to which the RTA could be made the roads authority applied to MR 54.

257 The Council did not provide submissions on causation, even after Pioneer pointed out the difficulties. We are not in a position to decide the Council’s entitlement to damages from Pioneer for breach of contract. We were not asked to remit the matter for further findings and decision at first instance. I will not tarry over our power to do so, because even if we had been I do not think that, when the Council did not maintain the claim to damages for breach of contract in submissions at the trial, it would be just that Pioneer should have to undergo a further hearing upon a late apparent change of mind by the Council. The application should therefore be refused.

258 I agree with the orders proposed by the Chief Justice.

**********

Last Modified: 04/01/2003

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Citations

Roads and Traffic Authority of NSW v Palmer [2003] NSWCA 58

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CITATION:	ROADS AND TRAFFIC AUTHORITY OF NSW, COUNCIL OF THE SHIRE OF EVANS & PIONEER ROAD SERVICES PTY LTD v PALMER [2003] NSWCA 58
HEARING DATE(S):	6 November 2002 7 November 2002 8 November 2002
JUDGMENT DATE:	28 March 2003
JUDGMENT OF:	Spigelman CJ at 1; Handley JA at 229; Giles JA at 235
DECISION:	Appeal of RTA allowed with costs. Appeals of Council and Pioneer dismissed with costs.
CATCHWORDS:	TORT - Negligence - Duty of care - Liability of statutory authorities - Car accident at road works - Where funded by RTA, road owned by Council, work carried out by sub-contractor - TORT - Negligence - Causation - Where multiple possible causes - Where little evidence from plaintiff - CONTRACT - Indemnity clause - Relevant approach - Whether intended to cover Principal's own negligence - DAMAGES - Life expectancy - Where injury interacting with pre-existing disease - PRACTICE AND PROCEDURE - Amendment of grounds of appeal - Where pleading not pressed at trial.
LEGISLATION CITED:	Local Government Act 1993 Roads Act 1993
CASES CITED:	Agar v Hyde (2000) 201 CLR 552 Australian Paper Plantations Pty Ltd v J & E M Venturoni [2000] VSCA 71 Bennett v Minister of Community Welfare (1992) 176 CLR 408 Betts v Whittingslowe (1945) 71 CLR 637 Brodie v Singleton Shire Council (2001) 206 CLR 512 Burnie Port Authority v General Jones Pty Ltd (1992) 179 CLR 520 Chappel v Hart (1998) 195 CLR 232 Coulton v Holcombe (1986) 162 CLR 1 Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 Darlington Futures Limited v Delco Australia Pty Ltd (1986) 161 CLR 500 Davis v The Commissioner for Main Roads (1966) 117 CLR 529 Donoghue v Stevenson [1932] AC 562 Fairchild v Glenhaven Funeral Services Ltd [2002] 3 WLR 89 Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155 at 161-162 Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54 Holloway v McFeeters (1956) 94 CLR 470 Luxton v Vines (1952) 85 CLR 352 Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 Naxakis v Western General Hospital (1999) 197 CLR 269 O'Brien v Komesaroff (1982) 150 CLR 310 Pye v Renshaw (1951) 84 CLR 58 Pyrenees Shire Council v Day (1998) 192 CLR 330 Roads and Traffic Authority v Scroop (1998) 28 MVR 233 RTA v Fletcher & Leighton Contractors [2001] NSWCA 63 Sutherland Shire Council v Heyman (1985) 157 CLR 424 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 Trevali Pty Limited v Haddad NSWCA, 16 November 1989 University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 Valkonen v Jennings Constructions Ltd (SAFC, 29 November 1995, unreported) Water Board v Moustakis (1988) 180 CLR 491
PARTIES :	Roads and Traffic Authority of NSW (Appellant in No. 40217/02) Council of the Shire of Evans (Appellant in No. 40102/02) Pioneer Road Services Pty Ltd (Appellant in No. 40133/02) Lisa Denise Palmer (Respondent)
FILE NUMBER(S):	CA 40217/02; 40102/02; 40133/02
COUNSEL:	B H K Donovan QC / P A Regattieri Appellant (Roads and Traffic Authority of NSW) C G Gee QC / I R Pike Appellant (Council of the Shire of Evans) I G Harrison SC / P S Braham Appellant (Pioneer Road Services Pty Ltd) B M J Toomey QC / A J Black Respondent (Lisa Denise Palmer)
SOLICITORS:	I V Knight, CrownSolicitor Appellant (Roads and Traffic Authority of NSW) Phillips Fox Appellant (Council of the Shire of Evans) Corrs Chambers Westgarth Appellant (Pioneer Road Services Pty Ltd) Walsh & Blair Lawyers Respondent (Lisa Denise Palmer)

LOWER COURTJURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC 20339/98
LOWER COURT JUDICIAL OFFICER :	Wood CJ at CL