Roads and Traffic Authority v Royal [2008] HCA 19 14 May 2008 S517/2007
ORDER
1. Appeal allowed with costs.
2. Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales made on 4 April 2007 as varied by the further order made by consent on 1 August 2007, and in their place order that the appeal to that Court be dismissed with costs.
On appeal from the Supreme Court of New South Wales
Representation
J E Maconachie QC with T F McKenzie for the appellant (instructed by McCabe Terrill Lawyers)
S J Harben SC with S B Lowe for the first respondent (instructed by Rankin & Nathan Lawyers)
Submitting appearance for the second respondent
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Roads and Traffic Authority v Royal
Torts – Causation – Motor vehicle accident – Whether design of intersection a cause of the accident.
Negligence – Causation of damage at common law – Causation in fact – Whether multiple causes of damage exist – Whether highway construction and design a material contribution to collision – Whether foreseeable risk of harm to persons such as the plaintiff – "But for" test in causation – Considerations relevant to deciding contested questions of causation – Whether correct approach taken to question of causation by Court of Appeal in reversing conclusion of primary judge – Whether existence of Law Reform (Miscellaneous Provisions) Act 1946 (NSW) providing for contribution by tortfeasors relevant to causation in fact.
Appeal – Advantages enjoyed by primary judge in deciding contested question of causation of motor vehicle collision – Decision on question of fact – Whether Court of Appeal erred in giving effect to its own conclusion about causation – Whether Court of Appeal fulfilling duty to conduct an appeal on disputed questions of fact by reaching its own independent conclusion on the facts – Whether advantages of primary judge ought to have restrained Court of Appeal from substituting its own conclusion – Whether Court of Appeal applied incorrect legal test for deciding question of causation of motor vehicle collision.
Words and phrases – "a result of a tort" – "the extent of responsibility for the damage".
At about 8.40am on Monday 12 March 2001, Grant Royal, the first defendant and first respondent in this Court ("the defendant") was driving north along the Pacific Highway in a rural area near Wauchope. His car struck a car driven by George Smurthwaite, the plaintiff and second respondent ("the plaintiff"). The weather was fine. The light was good. Although the road was slightly damp in places from overnight rain, that played no role in the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Roads and Traffic Authority v Royal
Sign in free to access the full text
Details
AGLC
Roads and Traffic Authority v Royal [2008] HCA 19
Case
[2008] HCA 19
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal concerning a motor vehicle collision at an intersection where Bago Road met the northbound carriageway of the Pacific Highway. The plaintiff, Mr George Smurthwaite, was injured when his vehicle, while attempting to cross the highway, collided with the vehicle of Mr Grant Royal, the first respondent. The plaintiff had stopped at a stop sign and holding line before proceeding into the path of oncoming traffic, including a dedicated right-turn lane. The plaintiff, suffering from cerebral trauma, was unable to recall the events immediately preceding the collision. The Roads and Traffic Authority (RTA), the appellant, was alleged to have been negligent in the design of the intersection.
The central legal issues before the High Court were whether the design of the intersection by the RTA constituted a cause of the collision, and whether the Court of Appeal had erred in its approach to determining causation. Specifically, the High Court considered whether the Court of Appeal had correctly applied the "but for" test and other considerations relevant to contested questions of causation, particularly in reversing the primary judge's conclusion that the RTA's actions did not cause the accident. The Court also examined whether the Court of Appeal had fulfilled its duty to conduct an appeal on disputed questions of fact by reaching its own independent conclusion, and whether it had given undue weight to the advantages enjoyed by the primary judge in assessing witness credibility and factual findings.
The majority of the High Court found that the Court of Appeal had erred in its assessment of causation. They reasoned that the primary judge's conclusion that the accident was not caused by the RTA's negligence was open to him on the evidence. The majority emphasised that the plaintiff, from his stationary position, was undoubtedly able to see the defendant's vehicle approaching. Evidence from the defendant and other witnesses indicated that the plaintiff's vehicle had begun to move out before the collision. The majority concluded that no error of law or other error affected the approach of the Court of Appeal, and that there was no warrant for their intervention.
Consequently, the High Court allowed the appeal with costs, setting aside the orders of the Court of Appeal and ordering that the appeal to that Court be dismissed with costs. This decision effectively reinstated the primary judge's verdict in favour of the Roads and Traffic Authority.
Orders
Orders of the court
1. Appeal allowed with costs.
2. Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales made on 4 April 2007 as varied by the further order made by consent on 1 August 2007, and in their place order that the appeal to that Court be dismissed with costs. (Majority decision, Kirby J dissenting)
Background
Background to the litigation
There is no question of principle and no injustice in the present case. The conclusion reached by the majority of the Court of Appeal was clearly open. No error of law or other error affected the approach of the majority. There is no warrant for our intervention. The judgment of the Court of Appeal should stand. The appeal should be dismissed.The facts A vehicular collision: The collision between the motor vehicles of Mr George Smurthwaite, the second respondent ("the plaintiff") and of Mr Grant Royal, the first respondent ("the defendant") occurred at an intersection near Herons Creek where Bago Road meets the northbound carriageway of the Pacific Highway ("the highway") on its western side. The plaintiff, having stopped at a stop sign and holding line controlling traffic exiting Bago Road at its intersection with the highway, attempted to cross the northbound carriageway to proceed into Boyds Road opposite. His purpose was to follow that road to the southbound carriageway of the highway, some 250 metres to the east. The plaintiff's intended path required him to traverse two lanes of northbound through-traffic, as well as a dedicated right-turn lane designed to allow northbound vehicles to exit to Boyds Road. Obviously, the traffic on the highway commonly proceeds with speeds typical on such a major national road. In the result, the plaintiff's vehicle did not reach the safety of Boyds Road. Instead, some 21 metres from the Bago Road stop sign, at a point within the right-turn lane, his vehicle came into collision with that of the defendant. The point of impact was in the vicinity of the driver's side door of the plaintiff's vehicle. It occasioned serious and permanent injuries to the plaintiff. Because of those injuries, including cerebral trauma, the plaintiff was unable to remember, or describe, the circumstances immediately preceding the impact. Specifically, he was unable to give evidence of exactly what he could, or could not, see when his vehicle was stationary in Bago Road before proceeding across the highway. The collision occurred at 8.40am on a Monday. It was daylight and the weather was fine. As a result of overnight rain, the road surface was slightly damp in places. However, both the plaintiff and the defendant were familiar with the highway and roads as they intersected. The defendant was travelling at 105 km/hour. This reflected the setting at which he had fixed a "cruise control" device governing the speed of his vehicle. The legally mandated maximum speed at the relevant section of the highway was 100 km/hour. An advisory sign, not far from the intersection, indicated a safe driving speed of 85 km/hour. The lower speed advisory sign was presumably placed in recognition of the geography of the highway and the intersecting roads. The terrain was undulating. The highway proceeded through a succession of curves and inclines which occasioned visual difficulties, including for drivers of vehicles standing at the holding line in Bago Road, looking towards the oncoming traffic travelling north along the highway. In approaching the intersection, such traffic negotiates a right-hand curve. There is also a dip in Bago Road some 200 metres from the intersection. These features were illustrated by aerial and road surface photographs and a plan produced by terrestrial photogrammetry. These were in evidence and are thus part of the record.
Evidence
Evidence Before The Court
The appellant advanced two submissions. First, it submitted that the collision was not caused by any breach of duty on its part, but only by the negligence of the defendant and the plaintiff. Secondly, the appellant submitted that the majority of the Court of Appeal moved straight from a conclusion that the appellant was in breach of duty to consideration of whether the defendant's supervening conduct broke the chain of causation, without first examining whether the chain of causation actually existed. In that respect the words emphasised in the passages quoted above have significance. Some aspects of the evidence It is desirable to make clear that whether or not the plaintiff, from his stationary position at the Stop sign, did see the defendant's vehicle moving north along the Pacific Highway, he was undoubtedly able to do so. That follows from three categories of evidence. First, there is the evidence of the defendant that he saw the plaintiff, both when the plaintiff's car was stationary and when he had begun to move forward. Secondly, there is the evidence of Mr Relf, driving in a through lane three or four seconds behind the defendant in the right-hand turn lane, that he saw the plaintiff's vehicle "pulled out from the stop sign", ie he "saw it move out". If Mr Relf could see the plaintiff moving out, it is likely that the plaintiff, while halted at the Stop sign, could have seen the defendant three or four seconds earlier. The trial judge thought that Mr Relf "made accurate assessments" and showed "very real care ... in reporting his observations." Thirdly, there is the evidence of Mr Hubbard, driving immediately behind the plaintiff, that he saw the defendant. The defendant met the last point by arguing that what Mr Hubbard saw was an observation made just after the plaintiff began to move forward, and was thus made at a different point of time from the point at which the plaintiff, from a stationary position, could have looked right. "Whatever Mr Hubbard saw could not have been that same snapshot because it was a dynamic situation." That submission is inconsistent with the evidence of Mr Hubbard, whom the trial judge described as "a careful and accurate witness". He said that as he approached the Stop sign in Bago Road he saw the plaintiff's vehicle stopped at the Stop sign waiting to cross the Pacific Highway. Both before and after the time when the plaintiff's vehicle started to move off, he looked right. He saw one car that had turned left off the Pacific Highway into Bago Road, and two other cars in the left turning lane with their blinkers on with a view to turning left into Bago Road. He also saw Mr Relf's vehicle, and he saw the defendant's vehicle in the right-hand turning lane slightly ahead of Mr Relf and travelling faster than Mr Relf. Then he saw the defendant's vehicle braking, skidding and hitting the plaintiff's vehicle. With the cars so positioned – Mr Relf's behind and to the left of the defendant's – there was no possibility of the former masking the latter from observation by a driver at the Stop sign, and Mr Hubbard specifically identified them as distinct vehicles at all stages of his observations. He also said that the two vehicles in the left turning lane with their blinkers on turning left into Bago Road did not obscure his view of the defendant's vehicle.Did the Court of Appeal majority find causation?
Dangers of cross-intersections: The effect of this evidence, given by the RTA's own expert, and reinforced by the evidence of other experts in highway design, construction and maintenance, was that the intersection created in 1993 was such that, at that time, experts in highway design would reasonably have expected accidents to occur, as indeed they did. As noted, in terms of safe highway design, Mr Keirnan agreed that it was generally desirable to avoid cross-intersections. Common sense suggests that this was especially so where:(1)The cross-intersection was created in substitution for earlier, less dangerous traffic conditions, and compelled drivers proceeding across the highway to negotiate a multi-lane roadway containing fast-moving traffic all proceeding in the same direction;(2)The oncoming traffic approached the intersection through an undulating landscape and on a curved trajectory, which had the potential to obscure sight lines and render appreciation of the existence and speed of other vehicles difficult or impossible; and(3)A significant distance had to be traversed by the cross-traffic, starting from a stationary position well behind the intersection itself, and then crossing, in effect, three lanes of one of the major arterial highways of the Commonwealth[50].[50]In his report of 24 November 2003, Mr Keirnan expressed the opinion: "I agree there may be some visual obscuring of vehicles on the curve. Also there may be some uncertainty as to which lane the approaching vehicles were travelling around the right curve when viewed from the stop line in Bago Road."The decisional history The decision at trial: The primary judge dealt with the issue that is now before this Court very briefly. Relevantly, he said[51]:"There remains the case against the [RTA]. The evidence … clearly establishes that this part of the roadway was seen by the RTA as a 'black spot'. There had been a number of serious accidents, including some fatalities, over the period of time that the highway had been upgraded.The RTA had taken steps from time to time to deal with the problem and the chief problem seems to have been … the difficulty of somebody stopped facing east at the Bago intersection being in a position of not being aware of traffic behind other cars proceeding north, particularly in the left hand lane."[51]George Smurthwaite v Grant Royal, unreported, District Court of NSW, 7 February 2006 at 33 ("reasons of the primary judge"). The primary judge acknowledged that there had been fewer serious accidents following changes effected by the RTA after the present collision. However, in a single sentence, he rejected the claims which the plaintiff and the defendant had presented against the RTA[52]:"Whilst I conclude that in a number of respects more could have been done by the RTA to improve this intersection, in the end result I am not satisfied that the accident represented a failure by the RTA in the circumstances of this case and thus there will be a verdict for the [RTA]."[52]Reasons of the primary judge at 34.