Roads and Traffic Authority v Royal & Anor

[2008] HCATrans 11

[2008] HCATrans 011

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S517 of 2007

B e t w e e n -

ROADS AND TRAFFIC AUTHORITY

Appellant

and

GRANT ROYAL

First Respondent

GEORGE SMURTHWAITE

Second Respondent

GUMMOW J
KIRBY J
HAYNE J
HEYDON J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 31 JANUARY 2008, AT 12.22 PM

Copyright in the High Court of Australia

MR J.E. MACONACHIE, QC:   May it please the Court, I appear with MR T.F. McKENZIE for the appellant.  (instructed by McCabe Terrill Lawyers)

MR S.J. HARBEN, SC:   May it please the Court, I appear for the first respondent with my learned friend, MR S.B. LOWE.  (instructed by Rankin & Nathan Lawyers)

GUMMOW J:   There is a submitting appearance from the second respondent, Mr Smurthwaite, who I think was the plaintiff in the action.  Yes, Mr Maconachie.

MR MACONACHIE:   Your Honours, this is an appeal, as your Honours know, from the Court of Appeal of New South Wales which arises out of what is commonly called a T‑bone collision at an intersection.

KIRBY J:   Why is it called a T‑bone as distinct from a T‑intersection?

MR MACONACHIE:   It is the attitude that the cars describe to one another, your Honour.  Mr Smurthwaite’s car was hit amidships on the right‑hand or driver’s side by Mr Royal’s car and the front of his car impacted with Mr Smurthwaite’s car.

KIRBY J:   I realise that, but it is the “bone” that I ‑ ‑ ‑

MR MACONACHIE:   A bit like a T‑bone steak.  I think that is where the expression comes from.  It is a commonly used expression.  Our very short and simple point is that the Court of Appeal misunderstood the facts and failed to ‑ ‑ ‑

GUMMOW J:   The majority of the Court of Appeal.

MR MACONACHIE:   The majority of the Court of Appeal.  Your Honour is quite right.

GUMMOW J:   We do not want to lose Justice Basten.

MR MACONACHIE:   No.  We do not want to leave Justice Basten out at all.  We say that Justice Basten’s lucid analysis is correct and Justice Santow was wrong and principally because Mr Smurthwaite could see Mr Royal and Mr Royal could see Mr Smurthwaite in more than sufficient time for each of them to have avoided the collision.  Accordingly, that which seems ‑ ‑ ‑

KIRBY J:   That all has in it the assumption that everyone reacts in an immediate and effective way, whereas this was a very perilous intersection.  Lots of crashes were happening.  You had plenty of warning of that.  All that has to be shown is a contribution.  It does not have to be “the”.

MR MACONACHIE:   Yes, indeed, your Honour.  I see that your Honour has open the document at page 1539 which I want to take your Honours to.  You will find that in volume 4 towards the front – that is a photogrammetry study, if that is the right word, brought into existence by the New South Wales police investigation of this serious incident.  If your Honours are also able to do so, could you open the third appeal book at page 1273 where you will see a photograph of the intersection that may assist.  Dealing first with that which is shown on exhibit 1, page 1539, the large photogrammetry document, the north point is shown.  Mr Royal was travelling in a basically northerly direction and, relevantly ‑ ‑ ‑

KIRBY J:   Was he travelling away from us, or?

MR MACONACHIE:   He was travelling towards the right‑hand side of the document.  Mr Smurthwaite was travelling as it were down the document towards your Honour as you look at the plan.

HAYNE J:   This is by reference to the plan, not the photograph?

MR MACONACHIE:   Yes, your Honour.  Just the plan at the moment, if your Honour would be so kind as to just look at the plan.  That which is hatched yellow is a lane that is set aside for use by traffic intending to turn right into Boyd Road.  Mr Royal travelled in that lane for at least 150 metres, perhaps more.  He did so at 105 kilometres per hour through a section of roadway where the advisory speed sign was 85 kilometres per hour and in that right‑turn lane, notwithstanding that he intended to go through the intersection and travel north.  That was something he was not permitted to do.  That put him in a position further to the right, as it were, than if he was travelling in the correct lane.

HEYDON J:   He was going to run out of road in that lane. 

MR MACONACHIE:   Unless he changed direction slightly at the intersection ‑ ‑ ‑

HEYDON J:   Back to the left.

MR MACONACHIE:    ‑ ‑ ‑ which seems to have been his intention.  Mr Smurthwaite travelled up a short ‑ ‑ ‑

KIRBY J:   So in that yellow hatched area he ought to have been turning round into Boyd Road?

MR MACONACHIE:   Yes, your Honour.

KIRBY J:   And that was never his intention?

MR MACONACHIE:   Never his intention.

KIRBY J:   Was he intending to travel anywhere a bit further on?  I see there is a lane there.

MR MACONACHIE:   He was going to travel well to the north of this intersection and the reason given by him and found by the trial judge and not dissented from by the Court of Appeal, the reason he was in that lane was because he wanted to keep his special cruise control device operating so that it would increase the economy of his motor vehicle.  That is the reason he gave.

KIRBY J:   I saw that in the submissions.  People do not only use it for that purpose.  They use it to avoid getting booked for going over the speed and that is ‑ ‑ ‑

MR MACONACHIE:   The reason given by him was that it was to increase the fuel efficiency of his motor vehicle.

KIRBY J:   Anyway, it was under 110 or it was on 110?

MR MACONACHIE:   Yes, but it was a 100 kilometre an hour area.  It is only 5 kilometres an hour over the speed limit and in a part of the roadway where one would expect to find someone turning right and not going straight ahead.  That might or might not have impacted upon the mind of Mr Smurthwaite, we do not know, because the serious head injury suffered by him caused him to be amnesic for the incident.  Mr Royal accepted, and I will take you to it in a moment ‑ ‑ ‑

GUMMOW J:   Mr Royal was born in 1982, I see at page 266.

MR MACONACHIE:   He is a youngish man.

KIRBY J:   Where is the southbound lane, by the way?

MR MACONACHIE:   Southbound lanes, there are two of them, about 250 metres to the east of these northbound lanes.  The history of the road is this.  What you are looking at on 1539 was the original Pacific Highway which was two lanes, one north, one south.  In 1993 or thereabouts the road was duplicated to the east with the provision of two southbound lanes.  So this part of the roadway became two northbound lanes.  To say two northbound lanes is to some extent incorrect, as your Honours can see from 1539.  There was what is called a slip lane which is hatched green on 1539 to allow traffic to turn left into Bago Road and there was a right‑turn lane, which I have already referred to, to allow traffic to turn right into Boyd Road.

The very short point is that Mr Royal, travelling in excess of the speed limit by five kilometres an hour in a part of the road set aside for right‑turn traffic, not through traffic, at a point in time when he admitted he could have stopped or slowed down to avoid the accident, saw Mr Smurthwaite pull up to the stop line which is to be seen in the top right‑hand corner, as it were, where there is an orange coloured spot.  Mr Royal saw him do that.  Mr Royal saw him proceed into the intersection at a slow speed.  Mr Royal did not adjust his speed or the course of his vehicle but in answer to cross‑examination by counsel for Mr Smurthwaite said he was expecting Mr Smurthwaite to “wake up”. 

Immediately behind, two or three seconds behind Mr Royal, was a Mr Relf.  He pulled up.  He put his brakes on significantly earlier than did Mr Royal and he saw the collision occur.  His Honour, the trial judge, heard from Mr Relf.  Mr Hubbard was behind Mr Smurthwaite.  He saw Mr Smurthwaite pull up.  He saw Mr Smurthwaite begin to move into the intersection.  He looked to his right and he could see the car being driven by Mr Royal.  If he could see it, Mr Smurthwaite could see it.  The trial judge found that each could see the other and it was nothing to do with any alleged sight line deficiencies or the geometry of the road.  It was the conduct interacting of the two drivers that caused them to come together.  The trial judge found that even though the intersection might have been able to be improved, it was the conduct of the two drivers that caused the collision.

Justice Santow seems to have proceeded on the basis that because there could have been improvement, therefore there was breach of duty, and seems to have concluded that because that statistically might have increased the risk of such a collision – he did not say quite what he meant by that – therefore there was causative negligence.  That seems to be his reasoning.

Whilst in certain circumstances there might have been one car turning left that might, as it were, blind Mr Smurthwaite to Mr Royal’s car, that was not this case.  The trial judge so found.  Mr Hubbard proved it, Mr Relf proved it.  The plaintiff himself proved it and the Court of Appeal just failed to recognise that that stark factual issue meant that there was no causal connection between that which was found to be a breach and the injuries suffered by Mr Smurthwaite.

I can give your Honours a number of references to the trial judge’s findings of fact which we have summarised in our written submission.  It is not a case of a novus actus interveniens or supervening event, there is just no causal connection between that which occurred to Mr Smurthwaite and anything done or not done by the RTA.

KIRBY J:   It is just a little bit unfortunate for you that this was a black spot where there had been a large number of very serious accidents, and that puts you on notice of a fact that people who are driving rather fast in this area do not always act in an entirely prudent way.

MR MACONACHIE:   No, your Honour.

KIRBY J:   The suggestion is that that is a contribution, it is not the main one, but it is a cause of the collision that occurred because of the difficulty of adjusting in time to avoid collisions when people do rather imprudent, or possibly imprudent, things.

MR MACONACHIE:   That is not the negligence that Justice Santow found or relied on.  He relied on what he referred to as sight deficiencies.

HAYNE J:   Where do I find that in the reasons?  Which paragraph?

MR MACONACHIE:   I will take your Honour to it now, if I may.  In volume 4 – sight distances, I beg your pardon.  Page 1815, your Honour, paragraph 88 of his Honour’s judgment.

HAYNE J:   Thank you.

MR MACONACHIE:   Starting at the top of page 1815, if I may, in the second line:

Indeed it made it, on one view, more dangerous.  This is because once the north-bound right-hand turn lane was constructed, the Bago Road vehicles had to cross that lane as well to reach the other side of the Pacific Highway.  So despite the RTA being alive to the problem with sight distances in 1997, nothing further was done until after the present accident –

That is what Justice Santow thought was the relevant negligence.  Mr Smurthwaite could see Mr Royal in plenty of time, and I will take your Honour to the findings in the evidence if necessary that supports that, and Mr Royal could see Mr Smurthwaite, and Mr  Royal said that he could have pulled up if he had deactivated his cruise control and applied his brakes earlier.  Sight distances had nothing to do with it.  The trial judge so found and he had a view, he saw all the witnesses over 11 days.

Whatever might have been the deficiencies of this intersection, it was not perfect, very few intersections are, that which was found to be the negligence was not causative because sight distances, obscurity or anything else played no part, factually, historically, as a matter of commonsense in this collision, and that is the point that we bring to this Court.

GUMMOW J:   Well, your opponent seeks to support Justice Santow by what Sir Owen Dixon said in Betts 71 CLR 637.

MR MACONACHIE:   Yes, your Honour, indeed.  There is sufficient reason to the contrary in this case.  Betts is not engaged, nor any of the other special, if I can call it that, rules with respect to causation.  Sir Owen Dixon said in terms unless there is special reason to the contrary.  Well, there is.  It is demonstrated in spades, that one could see the other in time.  Betts’ reasoning therefore cannot assist the plaintiff and was not relied on, as I understand the reasoning of Justice Santow, in the Court of Appeal.

KIEFEL J:   Mr Smurthwaite was apparently or appeared to be unaware or behaved in a manner which indicated a lack of awareness of Mr Royal’s vehicle.  What was the explanation accepted for that?

MR MACONACHIE:   That seems to be the case, your Honour.  He was seen by Mr Hubbard, who was behind him, to drive ahead at a steady pace and apparently not look to left or right.  I think one other witness, I think Mr Royal, whose evidence did not find favour with the trial judge, but he said he did not see him look left or right.

GUMMOW J:   What Sir Owen Dixon said in Betts was:

the facts warrant no other inference inconsistent with liability on the part of the defendant.

MR MACONACHIE:   Yes, indeed, your Honour.  It is not a Betts Case.  It cannot be because that which – it is not a case in which what happened is unknown or open to conjecture.  There were two witnesses, independent; one behind the plaintiff and one behind Mr Royal.  Each of them gave evidence.  Each of them was seen by the trial judge.  Each of them established that the sight lines were sufficient.  The evidence of neither of them admitted to there being a sight problem.

Why Mr Smurthwaite appeared, your Honour Justice Kiefel, to not be paying attention is unexplained, but that he was not paying attention was found by the trial judge to be a causative factor.  Accordingly, he was found to be guilty of contributory negligence to the extent of one third.  But Mr Royal was found, to use his Honour’s words, to be “primarily” liable for the obvious reason.  Let me take your Honour to what he said and what Judge Phelan relied on in an excerpt from his evidence ‑ ‑ ‑

HAYNE J:   Just before you come to that, do I understand your argument to come to really one or perhaps two propositions, one saying that the RTA could have and should have designed a better intersection does not tell you anything relevant until you know what the content of “better” is?

MR MACONACHIE:   Yes.

HAYNE J:   Step two, relevantly, the improvement identified by Justice Santow was that in sight lines.  You say these drivers could, and in one case did, see the other in time sufficient?  Is that it?

MR MACONACHIE:   Quite.  It is as simple as that.

GUMMOW J:   I see Mr Smurthwaite was born in 1941.

MR MACONACHIE:   Yes.

GUMMOW J:   If the Chief Justice was here - but he is not here – he would say that did not mean he was an old person.

MR MACONACHIE:   Absolutely.

HAYNE J:   He is a man approaching young middle age, I think is the ordinarily accepted expression.

MR MACONACHIE:   Daily I become more conscious of that proposition.  The way in which Justice Basten put it, volume 4, 1844, paragraph 155 we embrace.  It is set out in our written submissions.  It is these simple propositions:

However, an understanding of the circumstances within which the accident occurred demonstrates, in my view, that whatever the faults of the design of the intersection, they did not materially contribute to the accident in any relevant sense.  Both parties knew the intersection well –

That is a proposition which is undeniable.  Mr Royal passed over this intersection daily.

GUMMOW J:   He used to go to and from work?

MR MACONACHIE:   Yes, and Mr Smurthwaite had been living in the area for a very long time and it was uncontested that he knew it well and he knew that it was an intersection that did have a bad history.  Both parties knew the intersection well.

KIRBY J:   Presumably a number of those who were involved in the bad accidents also knew the area, but they still kept having accidents.

MR MACONACHIE:   Yes, because people did not take responsibility for their own safety when it was open to them to see approaching traffic.

KIRBY J:   Once you have shown us Justice Basten’s reasoning, perhaps after lunch, you can tell us what the experts theorise was the way of making this a safe place for people like the plaintiff and the other driver.

MR MACONACHIE:   I will do that, your Honour, but can I just continue with Justice Basten:

each knew it was a cross‑intersection and that it had turn lanes; indeed, the only mistakes which were made related to the conduct of the other driver, based on common knowledge of the design features of the intersection.

That is the beginning and the end of it, we submit to your Honours, and as Justice Basten said and as Judge Phelan implicitly said, what the so‑called – and I used that term advisedly – experts had to say was irrelevant to what happened on this occasion.  Of course there could have been a different kind of intersection.  Stop lines might have been adjusted two feet this way or three feet that way.  Yes, there could have been a staggered intersection but that did not mean that ‑ ‑ ‑

KIRBY J:   Presumably the stop lines are there precisely because people keep roaring through this place having very serious accidents.

MR MACONACHIE:   That might, of course, be an explanation for some of the eight or so accidents that happened beforehand or subsequently, that is, people did not observe the stop lines.  One cannot infer from the fact that there are a number of prior accidents that the geometry of the particular intersection had anything to do with each of those accidents.

KIRBY J:   One can infer that sometimes, probably, drivers have seen others crossing but somehow they have not stopped or been able to react in time.

MR MACONACHIE:   Your Honour, that is in the realm of conjecture, we would say, but after lunch perhaps I could develop that.

GUMMOW J:   Very well.  We will adjourn until 2.00 pm.

MR MACONACHIE:   As your Honour pleases.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.02 PM:

GUMMOW J:   Yes, Mr Maconachie.  You were going to talk about these experts.

MR MACONACHIE:   Yes.  The most convenient way to do it, and I think the only way to do it in the time available, is to look at the way in which Justice Santow dealt with it.  It can be demonstrated even on his Honour’s analysis of it that there is error in the way in which he dealt with it, if I may respectfully say so.  Would your Honour please go to page 1803 in appeal book 4?  That is where Justice Santow commences to deal with Mr Harben’s appeal against the dismissal of his cross‑claim against me.  At page 1804, Justice Santow says at line 10:

The trial judge concluded, presumably based on what he saw as a failure to demonstrate causation, that he “was not satisfied that the accident represented a failure by the RTA in the circumstances of this case”.  The reasons were thus conclusionary and extremely brief, leading to the appellant’s contention that they were inadequate.

For the reasons he gives he thinks they were.  We say he did not have to say any more than he said because of the manner in which he dealt with the issues relating to Mr Smurthwaite and Mr Royal.  But he goes on, and at page ‑ ‑ ‑

KIRBY J:   Just stopping there.

MR MACONACHIE:   Yes, your Honour.

KIRBY J:   The statement:

The trial judge concluded, presumably based upon what he saw as a failure to demonstrate causation, –

that really encapsulates, does it not, that his Honour did look at the issue of causation and looked it as a threshold way as you say he did not.

MR MACONACHIE:   Justice Santow?

KIRBY J:   Yes.

MR MACONACHIE:   It could be seen that way, your Honour.

KIRBY J:   Anyway, it develops, so you are going to take us on.

MR MACONACHIE:   Yes.  At paragraph 57 of his Honour’s judgment on page 1804 he extracts from some documents from the experts’ reports, or commented upon by the experts – the “crash history”, as he calls it.  That continues down to line 40 on page 1805.  Can I say this about what is there set forth.  Before I do that, I will go forward.  His Honour then looks at what Mr Keirnan had to say and what Mr Griffiths had to say and comes to a point at page 1807 where he said this – at paragraph 65 between lines 30 and 40:

Importantly, Mr Keirnan in commenting on the report of Road Safety Solutions made by Mr Griffiths, cites the following from that report:  “Michael Griffiths concluded that there were no obvious road environment reasons for these crashes.  But he formed a view that eastbound drivers who do not carefully observe highway and traffic for a sufficient length of time, may not see vehicles that are obscured by vehicles in the adjoining lane because of the curved approach.  I agree the curved approach is probably a factor.”

That has to be kept in perspective.  He is talking about the crash history, not this particular accident.  He then goes on to say in paragraph 66:

Mr Griffiths also considered that a further warning was required for eastbound drivers to spell out that they are “about to cross a divided freeway where vehicles may be travelling at high speed”.

But of course in this case that would have told Mr Smurthwaite nothing more than he already knew, because he was very familiar with the intersection.  His Honour goes on on page 1808 ‑ ‑ ‑

HAYNE J:   That further warning sign is intended to be in addition to the stop sign that requires you to come to a complete halt and have a look before you proceed.

MR MACONACHIE:   Which he did because he was seen by Mr Hubbard to do so and he was seen by Mr Royal to do so.  He rolled up to the stop line, stopped, and then moved forward, so that is of no consequence.  At paragraph 70 on 1808:

Mr Keirnan then refers to Mr Stuart-Smith’s conclusion that “the road alignment is not in accordance with current high speed design”, and states as Mr Keirnan’s own opinion that “these departures were not relevant to the crash”.

KIRBY J:   Now, can I just ask you, because I thought you had a very good point there when you quoted that passage on 65 in which he says here:

for a sufficient length of time, may not see vehicles that are obscured by vehicles in the adjoining lane –

so that is the lane travelling north.

MR MACONACHIE:   Yes, the two lanes travelling north.

KIRBY J:   That is the way the plaintiff was crossing the line of traffic.

MR MACONACHIE:   Yes.

KIRBY J:   But the plaintiff, who is one of the two actors in this collision, could not remember anything about the accident so he could not say, “I did or did not see the oncoming driver”, which – I mean, others may have seen him and the man behind him may have even seen him, but with traffic passing along the Pacific Highway going north it is possible, is it not, because of the configuration of the intersection that the very problem that Mr Griffiths said might have arisen in the case of the driver with whom he collided.

MR MACONACHIE:   Whether it might be or might possibly be is neither here nor there.  It is for my learned friend to demonstrate that that is what happened and he has not.  In any event the evidence is that Mr Hubbard saw – your Honours referred to that – and Mr Royal saw Mr Smurthwaite pull up, stop and move forward.  If Mr Royal could see Mr Hubbard, then Mr Hubbard could see Mr Royal, at least as a matter of probability.

Can I go on, your Honours.  At 65 – I have dealt with that.  At 70 – I have dealt with that.  Let me bring you forward to page 1813.  In the intervening pages there is discussion by Justice Santow of various aspects of the expert reports.  Importantly at 1813 in paragraph 84 at about line 32 he says this:

I would accept that this configuration as the appellant contends –

that is Mr Harben’s people –

created a foreseeable problem – 

and these are the important words –

for the observation of traffic travelling north by those vehicles exiting Bago Road.

So he says it creates a foreseeable problem then goes on to say in 85 there is a:

statistical inevitability of a proportion of cross vehicle crashes . . . While it does not make the present accident inevitable it did materially contribute to its occurrence, by creating a heightened risk of such an accident.

That is not ‑ ‑ ‑

GUMMOW J:   The vice is in the word “such”, I suppose.

MR MACONACHIE:   Absolutely.

HAYNE J:   Also, if you go back to 84, the “problem for the observation of traffic travelling north” that has been identified in paragraph 65 is the problem of observing one vehicle where in fact there are two.  That is not this case.

MR MACONACHIE:   Yes, and that is not this case on the findings made and on the evidence given.

KIRBY J:   It takes two to tango and two to have a crash.  It is not just a question of what the driver travelling north sees, it is a question also of what the plaintiff sees – or saw.

MR MACONACHIE:   Absolutely.  He could not speak to it because he was brain damaged.

KIRBY J:   Exactly.  I tell you what can speak for it – that is the material over which you passed very quickly at page 1805 of 20 crashes, and 17 of the 20 a result of cross‑traffic intersection; all in dry weather; no identifiable hazardous features.  It is a terrible intersection.

MR MACONACHIE:   I will come to that in a minute because the cross‑examination of Mr Stuart‑Smith demonstrates that all but one of them occurred in circumstances where the speed of 85 kilometres per hour, which was the advisory speed sign, was exceeded.  But, your Honour, you are speculating about the causes of each of those statistical pieces of information.

KIRBY J:   It is not speculation if you are relying on the evidence. The Court of Appeal has its own fact‑finding obligation under the Supreme Court Act as an appellate Court.

MR MACONACHIE:   Yes.

KIRBY J:   You have to show error on the part of the majority in the Court of Appeal.

MR MACONACHIE:   Yes.  I am attempting to do so, your Honour.  I understand that.  Section 75A is emblazoned on my mind.

HEYDON J:   When you die, we will find it on your heart.

MR MACONACHIE:   At line 30, page 1813, “observation of traffic travelling north” was the problem that was foreseeable.  At page 1815, I have referred to it earlier, at line 10, “sight distances” were identified as a difficulty.  Then you come to page 1817 where the learned judge, Justice Santow, speaks of a “known danger” in paragraph 91 at a specific location – that is, it must be the foreseeable problem of observation from Bago Road looking south to traffic coming north.  In paragraph 92 – it is here, in our respectful submission, that if there is any causation finding, it is to be found in 92.  He says:

the RTA failed to take the steps that would have been reasonable in this case, not just to move the stop sign as it did only after the accident but more fundamentally to have constructed a staggered T‑intersection and not a cross‑intersection ‑

Importantly:

which was pregnant with avoidable risk.

What avoidable risk?  Observational difficulty.  But Mr Royal said, and I will take you to it now, if I may, that he saw the man, he saw him stop, he could have pulled up, he did not ‑ ‑ ‑

KIRBY J:   I know all this, but do you remember Justice Glass?  He always used to say in this world we work with imperfect materials.  We are working with the imperfect perception, reaction time – this is a 1941 driver – and we are working with all of these factors, the place of the stop sign and a dreadful intersection where there were 20 crashes in the period since this construction of the road was put in place.  All the other party claiming contribution has to prove is that you contributed to some degree.

MR MACONACHIE:   I understand that, your Honour.  We stand on the evidence of Mr Hubbard, which was accepted by the trial judge; the evidence of Mr Relf, which was accepted by the trial judge; and the view had by the trial judge which the Court of Appeal, even with the assistance of the experts in the case, could never hope to replicate.  He came to the conclusion, having seen the road, having looked at these witnesses over 11 days, that this just had nothing to do with sight lines; nothing to do with an inability to observe.

KIRBY J:   Now, what was the repositioning of the stop sign after this accident?

MR MACONACHIE:   Moved a few feet forward.

KIRBY J:   What would be the significance of that?

MR MACONACHIE:   Well, the significance of that, so Mr Harben contends, is that that gave somebody at the stop sign a better opportunity to observe than if it were back a few feet, or a metre or whatever, and it does, assume it does.

HAYNE J:   It increases the depth of view by decreasing the angle of view.

MR MACONACHIE:   And reduces the amount of road you have to cover once you start up again, but that is all accepted.

KIRBY J:   It maybe discourages you from plunging forward in this very dangerous condition where people are rushing along this main highway.  It is a great national road.

MR MACONACHIE:   Yes.

KIRBY J:   People travel – they think they are on a German autobahn instead of a death-prone highway.

MR MACONACHIE:   What, when they come across an 85 kilometre an hour speed sign and maintain a speed of 105, your Honour?

KIRBY J:   Yes.

MR MACONACHIE:   Well, there is not much you can do about that if they are going to do it.

KIRBY J:   I mean, that is part of the reality.  I am sorry, it is part of the reality of the roads.

MR MACONACHIE:   And there is nothing to say, your Honour ‑ ‑ ‑

KIRBY J:   By 20 accidents you have to be pretty careful, you have to do something, and you did immediately after.  Now, that is not necessarily evidence – care after the event is not necessarily evidence of negligence before the event ‑ ‑ ‑

MR MACONACHIE:   It never is, your Honour.

KIRBY J:   ‑ ‑ ‑ but it is evidence that there was something you could have done to reduce the risk that the driver crossing this expressway would wait a little longer, take a little more care, not press forward, press forward when there was a greater chance of safety crossing this expressway.

MR MACONACHIE:   John Lysaght v Nelson, your Honour, I accept that.

KIRBY J:   If that is so, then the argument that appealed to the majority in the Court of Appeal is there is some contribution on your part which would not now happen because you have moved the stop sign forward.

MR MACONACHIE:   But the findings of fact by the trial judge negated that and were not capable of being dissented from in the circumstances of Mr Hubbard, Mr Relf and the view.

KIRBY J:   But largely they were findings that had to be based on inference because of the fact that the driver crossing this expressway could not himself give evidence ‑ ‑ ‑

MR MACONACHIE:    Quite, your Honour.

KIRBY J:   ‑ ‑ ‑ and say what he in fact saw.

MR MACONACHIE:   Yes, but Mr Royal could see him and he could see Mr Royal.

KIRBY J:   It is not based on the actual testimony of the driver.

MR MACONACHIE:   No.

KIRBY J:   That then would be very difficult for Justice Santow to disturb that.  It is based on absence of testimony and the drawing of inferences from all of the facts and circumstances, including the perils of this intersection, the greater view that you get by moving the stop sign forward, and the fact that you did after 20 crashes move it forward after this one.

MR MACONACHIE:   But – well, I have said what I – I think I have said all that I can say in answer to that, your Honour.

KIEFEL J:   Mr Maconachie, was the later action in moving the stop sign forward relied upon as a particular of negligence?

MR MACONACHIE:   I cannot remember that, your Honour.

HEYDON J:   Why would one think it would have altered the outcome even if it had been?

MR MACONACHIE:   Well, indeed, your Honour.  It still requires Mr Smurthwaite to look, and as his Honour said, look again, and it is pure speculation to say it would have made any difference at all.  Not only was there Mr Royal’s vehicle to be seen coming from the south to the north but also that of Mr Relf, both of which were seen by Mr Hubbard who was in a position immediately behind Mr Smurthwaite.  Well, if he could see them Mr Smurthwaite must have been able to see them, but I have said all I can say ‑ ‑ ‑

KIRBY J:   It falls purely in your mouth to say that it is pure speculation that any difference at all would have occurred because you moved it yourself.  You must have thought it would make some difference.  You moved it after this accident.  Twenty was enough for you.  So you must have moved it for some reason.

MR MACONACHIE:   But all that can go to ‑ ‑ ‑

KIRBY J:   It is not speculation, it is inference.

MR MACONACHIE:   But all that can go to is the breach issue, not causation, because John ‑ ‑ ‑

GUMMOW J:   That is the point.

MR MACONACHIE:   Yes.  John Lysaght v Nelson makes the point that merely because you do something after the event does not inform any issue other than reasonable possibility of doing something, the practicable alternative.  That is all it does.

KIRBY J:   Yes, but you then ask yourself, what is the practicable?  Why is it done?  The answer is the answer Justice Hayne suggested to you, that by pushing it forward you not only give the plaintiff, Mr Smurthwaite, the opportunity to get a larger view but a better angle of view.

MR MACONACHIE:   But that does not mean he looked, your Honour, and if he looked, whether he saw anything.

KIRBY J:   We do not know.  We do not have his evidence and therefore it is a matter of speculation which the Court of Appeal can do as well as the trial judge.

MR MACONACHIE:   Your Honour, I do not think I can help you any more than I have attempted to do on that point.  What I would like to do, if I could, is take you to the judgment of Judge Phelan ‑ ‑ ‑

HAYNE J:   Can I put it to you this way?  The proposition about black spot is itself a proposition which assumes that all accidents that occur at that intersection have a single cause, a single cause found in road geometry.  That is the proposition that has to be tested.  That is the proposition that has to be established.  If it is not established, the argument has the symmetry of circularity.

MR MACONACHIE:   Absolutely, your Honour.  We would accept all of that.

HAYNE J:   Whereas here one driver is apparently found to have been in a position where he could see the oncoming vehicle and there is no question of obscuring another vehicle, that tenders the issue that divided the Court of Appeal.

MR MACONACHIE:   Yes, your Honour.  I accept what your Honour says.  I do not want to say anything more about that.

GUMMOW J:   What do you want to say?

MR MACONACHIE:   I want to take you to 1732 in volume 4 in the judgment of the trial judge at line 40.  This is the cross‑examination of Mr Royal, which his Honour extracts:

Q.       Did you at some stage see a vehicle there –

meaning at Bago Road –

A.       Yes, I did.

Q.       Did you see him move into that intersection?
A.       He was rolling up to the intersection very slowly like he was about to stop.

Q.       Did you see him stop?
A.       I saw him stop . . . 

He just kept coming out.  He stopped and then he pulled out.

Can I take you then to 1736?  This is again Mr Royal speaking.  His Honour extracts his evidence and at line 20 he says:

He said that the advisory speed sign of 85 coupled with the traffic did not impact upon him.  He agreed that he was reluctant to come off cruise control.  He was asked why is that and the answer was, “because I don’t like coming off cruise control”.  He said he preferred to drive on cruise control, “that way you get better fuel economy and your speed’s not fluctuating”.

At page 1738 he accepts at line 20 that at the point at which Mr Smurthwaite was seen by him to move forward it was:

something a little less than 200 metres or more . . . 

Q.       The fact is, of course, you were reluctant to take your vehicle off cruise control, weren’t you?
A.       Well, I had the right of way so I shouldn’t have to take my vehicle off cruise control”.

His Honour makes a comment about that.  Line 46, 47:

Q.       That’s right, but you allowed the rest of the time to elapse waiting for him to wake up to himself?
A.       Yes.

Q.       Instead of applying your brakes on the basis that he may not wake up to himself?
A        Yes . . . 

A.       I did that because I just thought he would see me and would stop.  There’s plenty of room between the stop line and the start of the line.  He had plenty of time to stop.

KIRBY J:   There is a little difference between him and you, and the difference is you knew that there had been 20 accidents on this intersection; he does not.

MR MACONACHIE:   I understand that, your Honour.  But the 20 accidents do not inform the dynamics of this crash one iota, we would submit.

KIRBY J:   But after 15 or so you have to start saying that there is a problem with this intersection, that people do act on the basis that they have got the right of way on a super highway, a great national road.

MR MACONACHIE:   I understand your Honour’s point but I have answered as best I can.  At 1741, line 21:

Later when asked a similar question he said –

This is Mr Royal being cross-examined -

“Q.     On reflection now the plain simple fact is that had you not insisted on your right of way and had you accepted that cruise control ought to be deactivated, you could simply have pulled up before you got to the intersection, couldn’t you?
A.       Yes”.

Then the learned trial judge commencing at line ‑ ‑ ‑

KIRBY J:   Well, there is no doubt that he is guilty of negligence, there is no doubt about that, and that proves out of his own mouth that he is, but that does not answer the question we have, which is whether there is some material respect in which you have also contributed to the accident.

MR MACONACHIE:   Well, we say that we are just an historical sine qua non, as it were, your Honour.

KIRBY J:   Or a historical sine qua non with 19 warnings.

MR MACONACHIE:   None of which are sufficiently examined or explained to know what the cause of those accidents was.

KIRBY J:   You have passed over them very quickly, Mr Maconachie, and the expert makes the point that there are many innocuous or unamazing, unsurprising features of them.

MR MACONACHIE:   Can I point out, your Honours, that at line 50 on page 1741 his Honour the trial judge goes on to examine what he called the very significant evidence of Relf and Hubbard, both of whom were expressly accepted.  The important material commences at page 1747 at line 20.  This is Mr Hubbard I think:

He said although the intersection is considered bad by a lot of people there is plenty of vision.

KIRBY J:   Where is this, line 20, is it?

MR MACONACHIE:   Line 20 on page 1747.  In fact, it is Mr Relf who was behind Mr Royal, “plenty of vision” at line 20.  Then he examines what Mr Hubbard had to say.

KIRBY J:   There is plenty of vision but there is a point, is there not, in what Mr Royal said, that he had the right of way and he did not expect somebody to come across in the manner that this happened or expected him to pause and stop.

MR MACONACHIE:   The evidence given by Mr Relf travelling behind Mr Hubbard is that he braked much earlier than did Mr Royal because he saw Mr Smurthwaite coming onto the road.  His Honour examines that.  At line 43 on page 1747, Mr Hubbard, like Mr Relf said:

if you have a proper look at the oncoming traffic you have plenty of time to get across the intersection without racing.

I just invite your Honours, if you need to, to look at the extract from the statement exhibit 10 at line 50 on page 1747, which is the essence of what Mr Hubbard saw.  Then at 1749, with all of that in his mind, the learned trial judge says at line 36:

In my conclusion the overwhelming evidence is that the primary cause of this accident was the first defendant -

and explains why.  At line 49 says:

when he could see the plaintiff’s vehicle coming towards him in circumstances where it was apparently doing nothing to avoid the accident . . . the person who could have easily avoided the accident in a number of different ways was the first named defendant.  First of all, he should have deactivated cruise control long before he did.  He should have applied the brakes.  As Mr Relf suggests, he could have gone round behind him.  He could probably have gone round in front of him if he had continued on.

Then he goes on to deal with Mr Smurthwaite.

HEYDON J:   Is this part of the judgment where he is concentrating on the question, is the defendant liable or not, or is he concentrating on our question, namely ‑ ‑ ‑

MR MACONACHIE:   Your Honour, at this point there is no doubt he is concentrating on what Mr Royal could or could not have done, should or should not have done.  Then he goes on to deal with what Mr Smurthwaite might or might not have done, comes to the conclusion at 1752 ‑ ‑ ‑

KIEFEL J:   Just before you go to that page, 1750, line 48:

In the light of Mr Hubbard’s evidence it is consistent that when the plaintiff took off from his stationary position the defendant’s car had not come into sight, but was about to do so.

I thought you had said before that the position was that Mr Smurthwaite must have seen the defendant’s car as he took off, but the trial judge’s finding is that he does not actually have Mr Royal’s vehicle in sight when he takes off.

MR MACONACHIE:   He says it is consistent.  He is then dealing with the problem that Mr Smurthwaite was unable to speak to events himself.

KIEFEL J:   Is the trial judge’s point that it might have been a matter of a second and if he had looked again, because he points out at some other passage that if he had looked again he would have seen Mr Royal’s car?

MR MACONACHIE:   Page 1752 at line 10, “not only look once, but look again”.  It can only be understood as his Honour saying the vision was good, all he had to do was look, if he did not look a second time that was a failure to take care for his own safety.  But his Honour then goes on ‑ ‑ ‑

KIEFEL J:   It was Mr Hubbard behind Mr Smurthwaite?

MR MACONACHIE:   Yes.

KIEFEL J:   Mr Hubbard said that he saw – did he say that he saw Mr Royal’s vehicle as Mr Smurthwaite left, or it was not as precise as that?

MR MACONACHIE:   As he started to move from the stop line he looked to – just after he had moved from the stop line.  It was not in terms of metres or seconds, your Honour.  As soon as Mr Smurthwaite had moved off Mr Hubbard came to the stop line, looked to his right and saw two cars.  If he could see them, so could Mr Smurthwaite.  At line 10 on page 1752, “not only look once, but look again”.  Then he goes on at line 29 on 1752 to briefly ‑ and we say that is all he needed to do – determine that the second

defendant, that is, the RTA, was not causally involved.  He says from line 39:

The RTA had taken steps from time to time to deal with the problem and the chief problem [seemed] to have been the one that was demonstrated in Mr Griffith’s report and that is 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.

It is noteworthy that following the changes to which I made reference earlier there is said to have been fewer incidents –

Then he says at line 10 on page 1753:

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 –

He said any number of times the vision was good.  In our respectful submission, with the benefit of the evidence of Hubbard and Relf and Royal and having observed them over days and having had a view, that is unappealable.  There is nothing more I wish to say in support of the appeal.

GUMMOW J:   Thank you, Mr Maconachie.  Yes, Mr Harben.

MR HARBEN:   Just a housekeeping matter first, may it please the Court.  Apart from some typographical errors in our submissions, could I apologise to Justice Kirby for attributing something to him in paragraph 26.

KIRBY J:   Yes, I saw I was elevated to the Court 10 years before.  It should have happened too.

MR HARBEN:   Yes.  It was as if the veil dropped from my eyes last night and I for the first time realised my error and I do apologise and withdraw it.

KIRBY J:   Do not worry about it.  I think I have adopted March in many cases.  I think we all have.  It is pretty standard.

MR HARBEN:   It is March to which I will ultimately come.

GUMMOW J:   Who is the mystery judge at paragraph 26?

MR HARBEN:   Despite my best beavering last night and that of my junior, we have been unable to source that quote.  I can remember it but I do not have an answer for your Honour.  I certainly know it is not Justice Kirby in that case.

KIRBY J:   No.

HEYDON J:   It is probably Justice Mason.

MR HARBEN:   I did look, your Honour, and I could not find it.  It is a complete wobble.  My learned friend has spent a deal of time addressing your Honours on outlining the proposition to establish that vision was good by referring to Mr Royal being able to see Mr Smurthwaite and corroborating that by reference to, in particular, the evidence of Mr Hubbard.  About that we would say this.  Firstly, that would assume that at the time Mr Royal made the observation of Mr Smurthwaite, that at that precise time Mr Smurthwaite was making the same observation.  That is just speculation, to adopt a word that has been spoken of recently.  There is no evidence to say that that is or could or might in fact be even possible.

KIRBY J:   But is it against you on the footing that if the complaint is because of the positioning of the stop sign further back that therefore a driver in the plaintiff or Mr Smurthwaite’s position is less able to see the oncoming traffic travelling northwards, that by inference a driver behind him is further back from the carriageway and therefore, if he can see it, then the inference is that both of them are further back than they would now be, if Mr Hubbard can see it, so should Mr Smurthwaite be able to?

MR HARBEN:   I will answer that this way, your Honour.  Mr Hubbard – I will take your Honours to his evidence – was travelling up Bago Road and his first observation of Mr Smurthwaite was that he had stopped.  Could I add this.  He says in his evidence that as soon as he made that observation Mr Smurthwaite, he describes as the green car, moves off.  It is logical that at some point in time before then Mr Smurthwaite has looked to the right and made an observation of whatever it is he could or did see.  Whatever Mr Hubbard saw could not have been that same snapshot because it was a dynamic situation. 

The northbound traffic was travelling, travelling we know at the speeds they were, at about 100 kilometres per hour, and whilst it is not precise in the evidence despite some questions about it, about how far behind Mr Smurthwaite he was, we know that it is an incline up to that intersection and the photographs show that you must be quite a long way up to the intersection to make the observation of the roadway.

KIRBY J:   Is that against you?  If Mr Hubbard is coming up the incline and if he is further back than Mr Smurthwaite and if he can see, why would not Mr Smurthwaite be able to see?

MR HARBEN:   Firstly, he is further back at a point in time, but I think a fair reading of the evidence would suggest that he is reaching about the point, around about, where he is supposed to stop at the intersection.  By that time, he tells us, there is one car having reached the point to come into Bago Road.  That must have been travelling north at a prior time.  There are two cars at that time have reached the left‑hand turn lane.  So at a point prior to that they must have been in the northbound travelling lanes.  He also makes the point at that time he can then see the two white cars, one of which was Mr Royal. 

What that does is place other vehicles on the roadway.  It means that at this stage Mr Smurthwaite has moved off.  He has made an observation previous in time and whatever Hubbard was able to see at the point where the northbound traffic had progressed was entirely different to the view that Mr Smurthwaite had and, in our submission, one cannot prop up the proposition that Smurthwaite could see Royal based on Hubbard’s observations. 

The effect of the movement of the line, as everybody in this case says, including the RTA’s own expert, Mr Kiernan, was that it improved the visibility aspects and it reduced the crossing time; simple steps to be taken.  That is against a background of a document, Exhibit R, found in appeal book volume 2 at 874, a memo under the hand of Peter Morris, the District Works Manager of the appellant, in which he refers to a number of attachments and then some comments about safety concerns. 

KIRBY J:   What do you get out of this?

MR HARBEN:   Mr Morris says in relation to the northbound carriageway safety concerns:

installation of a right turn bay would adequately address that movement however the intersection has an accident history due to poor sight distance for traffic entering from Bago Road or the cross median.

Due to poor sight distance –

The Bago Road approach is also over a sharp crest.  Stop signs have been installed to control traffic flow.  Major Projects have a survey in hand to assist in formulating an appropriate strategy for intersection improvements.  Any action at this junction should be delayed until this can be completed. 

What we know is that in 1999 some modification was made to install a right‑hand turn lane and some vegetation was removed but nothing at all was done about the real problem, that is, the difficulty with vision.  That, with respect to my learned friend’s argument, was what Justice Santow focused on.  We would submit that what his Honour was really finding was that the breach was continuing at the time that this accident occurred.  This was a breach that made this intersection manifestly more dangerous.  It was an accident waiting to happen because people do not drive in a state of perfection.  They do make errors. 

The question is, is it likely in the normal run of things, and the importance of the evidence about visibility and the difficulties thereof is it enhances the proposition that it is so likely.  In a State where the breach is continuing, we would say that that puts us on all fours with this Court’s decision in March v Stramare.

KIEFEL J:   Mr Harben, might I interrupt you?  Did anyone estimate the extent of the sight distance from the stop sign at the Bago Road intersection if one were looking down the northbound carriageway?

MR HARBEN:   Yes, it is about 250 metres.

KIEFEL J:   All right.  So someone has estimated it?

MR HARBEN:   Yes, but it goes across the corner.

KIEFEL J:   Because of the angle.  Did someone then ‑ ‑ ‑

MR HARBEN:   Not just because of the angle.  As the road is travelling towards Bago Road ‑ ‑ ‑

KIEFEL J:   It cambers as well.

MR HARBEN:   ‑ ‑ ‑ it goes around a right-hand bend, up an incline.  The problem occurred into the bend for two reasons.

KIEFEL J:   No, but could I just ask you this?  Did someone then estimate the likely position of the defendant’s vehicle, given the speed he was travelling, at the point when Mr Smurthwaite is sitting at the stop sign about to move off, within a degree?

MR HARBEN:   Well, there was a very lively debate about that very issue in the sense that there was a question of the time it would have taken Mr Smurthwaite to cross the road, it was a distance somewhere between 16 and 21 metres.  There was a debate about how far Mr Royal must have been away, and a figure of 150 metres is mentioned by Justice Santow as his reading of what the trial judge found.  So there was no hard and fast finding ‑ ‑ ‑

KIEFEL J:   So I take it it was inconclusive?

MR HARBEN:   It was inconclusive.  The problem was not so much at the 250 metre point and as demonstrated, as the trial judge said, ably demonstrated by the photographs taken by Mr Griffiths, that you have this curve if there are traffic on it, then the vehicles swing from side to side behind vehicles that they are travelling.  So that at one stage you might be looking at a vehicle that appears on the left of a vehicle, as they progress it appears behind it and then on the right.  So at one stage you have this obscuring pattern which is what the trial judge mentioned.

HAYNE J:   Has that got anything to do with the present litigation?

MR HARBEN:   Yes, your Honour.

HAYNE J:   What?

MR HARBEN:   Because it makes it likely that there will be such events occur when drivers behave in this way.

GUMMOW J:   Well, that is a duty point, is it not?

MR HARBEN:   Well, it is precisely, we would say, the reasoning behind the decision in March, but in that case, as your Honours are well aware, the breach was committed by the parking of the truck.  As I think Justice Deane said, that anybody driving carefully and keeping a proper lookout would have seen the truck and the flashing lights, flashing hazard lights, and the park lights, but people who commit breaches cannot just take that into account when you must take account of people who are going to drive as normal people do, that is, not in a state of perfection but committing errors of judgment, being negligent, driving where they should not, and in this case the overwhelming thing and to do with the crossing time and the visibility is the very design selected by the appellant made the path that Mr Smurthwaite had to travel mandatory. 

He had to go from point A to point B and to do that he had to cross over the path of Mr Royal.  If he did that, committing his own negligence, there was going to be an accident.  When one looks at the history, that is what was discovered about this intersection and the reason that we say that it is on all fours with March, could I take your Honours to the final two paragraphs of the then Chief Justice’s judgment, and he says at page 518:

As a matter of both logic and common sense, it makes no sense to regard the negligence of the plaintiff or a third party as a superseding cause or novus actus interveniens when the defendant’s wrongful conduct has generated the very risk of injury resulting from the negligence of the plaintiff or a third party and that injury occurs in the ordinary course of things.  In such a situation, the defendant’s negligence satisfies the “but for” test and is properly to be regarded as a cause of the consequence because there is no reason in common sense, logic or policy for refusing to so regard it.

Then his Honour concludes:

Viewed in this light, the respondents’ negligence was a cause of the accident and of the appellant’s injuries.  The second respondent’s wrongful act in parking the truck in the middle of the road created a situation of danger, the risk being that a careless driver would act in the way that the appellant acted.  The purpose of imposing the common law duty on the second respondent was to protect motorists from the very risk of injury that befell the appellant.  In these circumstance, the respondents’ negligence a continuing cause of the accident.  The chain of causation was not broken by a novus actus.  Nor was it terminated because the risk of injury was not foreseeable; on the contrary, it was plainly foreseeable.

We would say that that is the principle that Justice Santow clearly grasped when, after he had journeyed through the expert material, some of which my learned friend has taken your Honours to, and he reached the point at 91, at appeal book 1817, he said:

the RTA was obliged to take reasonable steps to alleviate what was a known danger at a specific location and with specific options available for seeking to remedy it.

He then referred to the two matters in paragraph 92 on the same page; the first of them:

not just to move the stop sign as it did only after the accident –

which was a step reasonably available and, we would say, relevant –

but more fundamentally to have constructed a staggered T‑intersection and not a cross-intersection which was pregnant with avoidable risk.

HAYNE J:   Now, how would doing either of those things have stopped this accident?

MR HARBEN:   If a staggered T-intersection had been constructed, Mr Smurthwaite would not have been crossing from A to B in the manner that he was required to do.

HAYNE J:   Things would have been different.  I understand things would have been different.

MR HARBEN:   Yes, your Honour.

HAYNE J:   How would it have stopped this accident where, by hypothesis, Mr Smurthwaite takes off without recognising the danger of the oncoming car.

MR HARBEN:   Because, your Honour, he is not taking off in the path that he did.  The staggered T-intersection does not allow that to happen.

KIRBY J:   He goes around hard to his left ‑ ‑ ‑

MR HARBEN:   He goes to the left in a separate lane, travelling at a different speed ‑ ‑ ‑

KIRBY J:   And then he has to find a place where he can make a U‑turn to come back to his other road.

MR HARBEN:   There is a staggered T-intersection and the evidence was has a distance of travel in a dedicated lane going from Bago Road with a merging of the traffic into the highway and at a point further down an exit off a road, then across to the southbound travelling lanes and turning onto that.

KIRBY J:   Was there an overhead bridge in the vicinity, a road bridge?

MR HARBEN:   Down at the main turn to Port Macquarie, but that is some kilometres down the road, your Honour.

KIRBY J:   So you would not be thinking of that, but you would be thinking of somewhere where he can go down the road and then make a U‑intersection and moving gradually to the right and then getting to the centre of the road instead of trying to dash across in front of helter‑skelter traffic on a main national highway.

MR HARBEN:   Your Honour, at 1497 is an overhead photograph of the area after the reconstruction.  It is volume 3, page 1497. 

To put it in context, your Honours, in the upper left‑hand corner of the photograph is an intersection.  That is this intersection.  The road in the upper left‑hand corner that heads to the top of the page is Bago Road.  The lower road is the southbound new construction.  At the intersection the road that goes through the intersection is the northbound lanes which was the existing highway.  Joining the two northbound and southbound carriageways is that 250‑metre road, which is Boyds Road which was a new construction when the reconstruction took place. 

Your Honours can see that further north, which is towards the right‑hand side of the page, the distance between the two carriageways considerably lessens.  There was no argument in any event, no evidence led by the RTA that there was any financial constraint on building a staggered intersection or that it would cost more doing it further north as the photograph suggests it might be easier to do.

KIRBY J:   As against that – showing us this photograph does indicate that it is not just a little matter, you then have to destroy part of the forest and move the thing so that there is not a cross – you see, Boyds Road has just been built.

MR HARBEN:   It has been built through the existing forest, your Honour, yes.

KIRBY J:   You would have to move the configuration of Bago Road at least as it approached the northbound traffic of the Pacific Highway.  You would have to move that to the north so that traffic would then merge into the northbound road.  Then you would have to, somewhere near the top of the photograph, put a place where you could come back into the southbound traffic.

MR HARBEN:   Two things; you would have to move what is Boyds Road further north.  It would be a smaller section of road, that is the first thing, because it would then be the link between the two carriageways.

HEYDON J:   Boyds Road existed at the time of the accident, did it not?

MR HARBEN:   No, it did not, your Honour.

HEYDON J:   So this terrestrial photogrammetry that Senior Constable Streatfeild prepared, I took that to be a depiction of the scene at the time of the accident, page 1539.

MR HARBEN:   I am sorry, yes.

HEYDON J:   What the plaintiff was trying to do was go straight ahead down Boyds Road.

MR HARBEN:   Yes, your Honour.

HEYDON J:   So Boyds Road did exist?

MR HARBEN:   I am sorry, your Honour, yes.  At the time of the reconstruction Boyds Road did not exist.

HEYDON J:   The reconstruction when?

MR HARBEN:   In 1993 they built the southern carriageways and they linked them at that point by building Boyds Road.  In addition to that your Honours will see adjacent to the highway another road which they also built to link up with something else.

HAYNE J:   The proposition is no crossroad should have been built, is that right?

MR HARBEN:   Yes, your Honour.

HAYNE J:   And if there had not been a crossroad, there would not have been an accident?

MR HARBEN:   Yes, your Honour.

HAYNE J:   That is what it comes to.

MR HARBEN:   We say that is what it comes to, particularly in the light of what this Court has said in March.  That is what we are saying, that the breach was continuing.

KIRBY J:   Having built a configuration with a crossroad with Boyds Road meeting Bago Road, after you have about 20 accidents you start to think, well, we have got to discourage or prevent traffic going straight across and then you just swing Bago Road a little bit to the north, you merge the traffic that wants to get into Boyds Road so that it does a U-turn further on and then comes back on its own correct side of the road in order to move into Boyds Road without the helter skelter of crossing in the line of traffic travelling at great speeds on a national highway.

MR HARBEN:   Yes, your Honour.  That is why I took your Honours to that memo of 1997.  The RTA were alive to this.  They could read the statistics as well as anyone, particularly since they were the collectors of them and the analysers of them and they did not do anything about it until after this tragic accident involving Smurthwaite and Royal.  It is not to the point, we would say, that having committed the fundamental breach that they did, they can turn around and say that the drivers were negligent, they were at fault, they could have avoided this.

KIRBY J:   That is a sine qua non.  That is accepted the drivers were negligent.

MR HARBEN:   That is accepting the drivers were negligent?

KIRBY J:   Yes.

MR HARBEN:   Yes.  What his Honour Justice Santow said in 1998 after he went through his causation analysis:

I consider that the supervening conduct of Mr Royal so understood did not render the antecedent breach of duty of the RTA as no longer operative.

In other words, what he was saying was at the time of this accident it was operating, the breach was operating.

HAYNE J:   The proposition that there will be no intersection collisions if there are not intersections may be logically complete and ultimately that is your case, is it not?

MR HARBEN:   No, your Honour.

HAYNE J:   There is not to be any intersection collision because there should not be an intersection.  The negligence of the drivers concerned proceeding through an intersection without keeping a proper look out and at, in one case, an excessive speed.

MR HARBEN:   No, your Honour, that is not our case at all, with respect.  Our case is that in this case there was a reasonably available alternative both in 1993, in 1994 when it started to happen, in 1997 when the RTA knew about it and certainly before March 2001.  This is not an ordinary litigant.  This is the RTA who is supposed to look after the safety of motorists both in the engineering, maintenance and construction of our roadways.  They are not an ordinary member of our community.  What they have done is done something wrong, the breach has been found and what they now want to say is, “Well, even though everybody knows motorists will take poor options, fail to keep proper look outs and those things, we cannot be responsible for our ongoing breach”.  That is our case, your Honour.

HEYDON J:   I was going to put this to you.  Paragraph 92 and paragraph 98.

MR HARBEN:   Paragraph 92?

HEYDON J:   Yes, 92 which is on page 1817.

MR HARBEN:   Yes, your Honour.

HEYDON J:   The third last line there.  Justice Santow says, “could be said to have broken the chain of causation”.  He is there assuming causation, I think.  In paragraph 98 he says of Mr Royal’s conduct it did not cause the RTA’s “breach to cease to be casually significant”.  Again he is assuming causation.  Is there any part in his judgment where he makes good that doubly stated assumption?

MR HARBEN:   He does say, and it may well be a matte of semantics, but he does say in paragraph 85, your Honour, which finishes at the top of 1814, the part that my learned friend took your Honours to when he talks about the statistic ‑ ‑ ‑

KIRBY J:   What page is this?

MR HARBEN:   Page 1813, right down the bottom:

This required vehicles travelling east from Bago Road to cross the path of two lanes of high‑speed through traffic.  It gave rise to a statistical inevitability of a proportion of cross vehicle crashes, as demonstrated by the statistics to which I have earlier referred.  While it does not make the present accident inevitable it did materially contribute to its occurrence, by creating a heightened risk of such an accident.

Now, his Honour there used the word “occurrence”.

HEYDON J:   If that is causation reasoning, it does depend on, if one were to test it, on a close examination of the 20 accidents, the other 20 accidents.

MR HARBEN:   The close analysis, and I will have to paraphrase this and it is set out in their Honour’s judgment, is that most of these accidents were crossing accidents.  It seems that as far as the statistics gathering went they were deemed to be, and I suppose this would have to be looked at somewhat generously, the fault of the exiting driver from Bago Road.  That is how it appeared on the face of the statistics and that is precisely the format of this accident.

KIRBY J:   In that passage of the dot points on 1805 the last of the dot points is that “16 of the 20 crashes the unit at fault was identified as the eastbound driver”.  Now, was the plaintiff the eastbound driver?

MR HARBEN:   Yes, your Honour.

KIRBY J:   And they were all in daylight and all in dry weather conditions, all but one in daylight, no identifiable hazardous features at the site.  What does that mean?

MR HARBEN:   As I said, the tables are a little difficult to read and they are attached to the books.  I would interpret that to mean no running water travelling across the highway or holes in the road that might have been an unusual occurrence at the particular intersection.  Could I just deal with something that ‑ ‑ ‑

KIRBY J:   The problem was that the configuration of the road and the positioning of the stop sign and the placement of the line across the east borne traffic when added to the fact that it is a crossroad really across a major highway ‑ ‑ ‑

MR HARBEN:   It is a crossroad now, your Honour, yes – then it was, yes.

KIRBY J:    ‑ ‑ ‑ caused drivers to run the gauntlet really.

MR HARBEN:   Yes, your Honour.

KIRBY J:   The question is whether or not that feature and the failure to move the cross sign earlier or to stop it being a cross intersection in the light of all that experience was a material contribution to the injury to the plaintiff or a material contribution to the accident for which you are entitled to contribution from the RTA.

MR HARBEN:   Yes.  We say that demonstrates that it is a cause.

HAYNE J:   There is statistics of 20 accidents at this intersection, is that right?  Is there any further analysis of those statistics, in particular, the rate of collision per cars passing that point, whether in one direction or t’other?

MR HARBEN:   There was.  Your Honour, the 20 crashes was to the time of March 2001 and on page 1805 ‑ ‑ ‑

HAYNE J:   I understand that, but lies, damned lies, statistics.

MR HARBEN:   Your Honour, during the trial I think it was accepted and conceded by the defendant’s expert that the risk created by the crossing intersection was significantly greater than a staggered T-intersection and there was an analysis in terms of five accidents per 10 million vehicles, 5.1, I think, which was set out in some of the statistics.  Could I just say that about those statistics, though, the large bulk of those cars were travelling on the highway, a very small percentage of them were exiting Bago Road.  So, whilst, as your Honour says, statistics and statistics, they can mean anything, five accidents out of 10 million might sound a small sum but those who gave expert evidence about it recognised, in terms of risk, the significantly greater risk by that type of intersection, as opposed to the alternative that was suggested.

KIRBY J:   Two of the 20 resulted in a fatality and 14 resulted in one or more persons being injured, so that is quite a high number of the 20.

GUMMOW J:   Can you look for a minute at page 2 of Mr Maconachie’s reply?  It was filed on 29 January.

MR HARBEN:   My friend sent me a draft that was being filed and I just have not caught up – I am assuming it is the same document, your Honour.

GUMMOW J:   He refers to your paragraph 11, do you see that, about 10 lines down?

MR HARBEN:   Yes, your Honour.

GUMMOW J:  

Santow JA did not apply a “but for” test to demonstrate factual or historical causation.

What Santow JA did –

and then there is a reference to Fairchild, do you see that?

MR HARBEN:   Yes, your Honour.

GUMMOW J:   What I take by the reference to Fairchild [2003] 1 AC is the idea that in some circumstances – and that was an asbestos case you will remember – there can be an evidentiary jump or gap.  Are you relying on that to support Justice Santow?  I did not think you were.

MR HARBEN:   No, your Honour.

GUMMOW J:   I thought Mr Maconachie was verballing you a bit.

MR HARBEN:   He does it well.  We are saying we do not need to do the Lord a’leaping argument.  Is that the short answer to the question?

GUMMOW J:   All right.  Yes, thank you.

KIRBY J:   What do you say in answer to the point, well, if only your client had not been so selfish and concerned about saving his petrol and slowed down a bit when he could see the plaintiff, this accident would not have occurred and that therefore that is the real and only causative factor?

MR HARBEN:   Two things about that, your Honour.  It is one thing to analyse these things in the cold light of a courtroom, but on any view of whatever was found this was a matter of seconds and even accepting that he said those words in his cross‑examination, it was still only a matter of seconds.  The second thing is that that is why one must be careful not to commit breaches that have the potential for such tragedy because human beings being what they are will make it likely that these things will happen.  His conduct is not so outlandish that it would not be normal.  This is how accidents happen on the roads.

KIRBY J:   The whole point, I suppose, of cruise control is that people get into it and stay in it and that that is a feature and it is generally, at least as far as I know, used in order to stay within the speed limit.

MR HARBEN:   Yes.

KIRBY J:   So you do not have any risk that you will be arrested or stopped.

MR HARBEN:   That is so, your Honour.

KIRBY J:   Do you have a reference in your written submissions to where the expert evidence concerning the implementation of a requirement to turn and not to cross the highway, what impact that has on accident‑prone black spots?

MR HARBEN:   No, your Honour.  When I say no, except in the context of Mr Kiernan’s concessions that crossings at grade intersections, which this was, are not a good idea, that there is a safety concern.

KIRBY J:   What are you putting your hands up in the air for?  What is that supposed to make of the geography, the contours?

MR HARBEN:   No.

KIRBY J:   Is there something in the contours that you are trying to illustrate with your hands?

MR HARBEN:   I should not be, if I am.

KIRBY J:   If so, I do not know what the contours are.

MR HARBEN:   No.  Bago Road at the point of the intersection was at a crest.  So not only do we have to deal with a curve but a crest.  So vehicles travelling along Bago Road to the intersection were travelling upwards and it flattened out right at the top.

KIRBY J:   I realise that, but Mr Maconachie says all of that is cancelled because you admit you saw.

MR HARBEN:   We are two‑thirds liable for the accident is our answer to that.  There is no doubt we are liable.  It came from our driver’s own words, but these things happen because drivers commit negligent acts on the roadway and what the keeper of the roads should be careful is to ensure that situations are not developed where those risks are heightened.

KIRBY J:   If we are looking at policy here as to assignment of the fault and the cause, is it reasonable to say, well, when a driver says “I saw and I could have stopped in time and I could have been precautionary, even though I am travelling as I think with my right of way on the highway, but I could have stopped it”, that to introduce elements that the public road authority has to go barging through the forest building new entrances and stopping cross‑intersections, that it is not reasonable to expect that that will be done anyway in the short term and therefore it is reasonable for the law to assign the entire blame to the driver who was just not prudent enough?

MR HARBEN:   It might be different if this was a deliberate intentional act to cause an accident.  That may be a different thing, but there is a second part to it and that is that Mr Smurthwaite was found liable as well.  It is not simply a question of Mr Royal being negligent.  This is a two car accident in which both drivers were negligent.

KIRBY J:   Mr Smurthwaite’s liability was 30 per cent, was it not?

MR HARBEN:   A third, your Honour, yes.

KIRBY J:   A third.

MR HARBEN:    And as far as policy would go ‑ ‑ ‑

HEYDON J:   Things are rather better for you than Justice Kirby’s question would suggest because of the failure of this Court to grant him special leave on breach of duty.  Justice Kirby’s points go to breach of duty, the Shirt calculus.  He is presenting a stark case in saying, “We were in breach of duty”.  The problem is the breach did not cause this accident.  This accident was caused by two drivers who could see each other and acted way outside the ordinary course of events.

MR HARBEN:   Your Honour, we would say that this was not way outside.

HEYDON J:   To be doing 105 in an 85 limit when you are about to do a right‑hand – when if you were in the correct lane you would be about to do a right‑hand turn, but you are not in the correct lane and the road is about to run out in that lane, you can see the car that you hit a few seconds later and in order to save fuel you do nothing.

MR HARBEN:   As I said, your Honour, it might be different if he had deliberately intended to cause an accident, but when one breaks down what happened, those decisions are taken in the course of those few seconds.  It was not as if, “Well, I will travel another a hundred metres and I will keep exercising my right of way and then oh, he is keeping on coming”.  This is a very short, sharp event and it would have to, in our submission, be a very unusual case for such a policy reason to prevent a finding of a cause in these circumstances and, we would submit, is just not there.

HAYNE J:   If I put to you four propositions which I would understand to represent the core of the argument you are advancing.  One, there would have been no intersection accident if there was no intersection.  Two, this intersection did not allow a clear view of a second car following a car visible to someone at the stop sign.  Three, that problem of visibility would be addressed by eliminating the intersection.  Four – this is the conclusion – the failure to address the problem of visibility by eliminating the intersection was a cause of this accident even though there was no problem of visibility as between these cars.

MR HARBEN:   Your Honour, we do not accept that there was any finding that there was no problem with visibility as between Smurthwaite and Royal for the reasons which I outlined when I opened my submissions.  The point your Honour has not mentioned is the movement of the stopping position which impacts on the vision and impacts on the crossing time, all of which we say was substantially relevant.

KIRBY J:   There is that and Justice Santow also relies on substitution of a turn into the highway instead of the risk, apparent on 20 accidents, that people try to run the gauntlet.

MR HARBEN:   Yes, your Honour.

HAYNE J:   That was step three.

GUMMOW J:   All right, is there anything else, Mr Harben?

MR HARBEN:   No, thank you, your Honour.  Sorry, there is one thing.  Your Honours will see that I had the audacity to refer to a photograph in the appeal books and then was alarmed to find that the quality of the photograph was less than ‑ ‑ ‑

GUMMOW J:   Is this the aerial photograph?

MR HARBEN:   No, your Honour, it is the photograph that appears in Mr Griffiths’ report.  If your Honour would just give me a moment I will ‑ ‑ ‑

GUMMOW J:   Have you got duplicates you want to hand up?

MR HARBEN:   Yes, I want ‑ ‑ ‑

GUMMOW J:   Do you have better copies you want to hand up?

MR HARBEN:   I have, your Honour, yes.

GUMMOW J:   What page do they go in in the appeal book?

MR HARBEN:   I will just turn that up in my submissions, your Honour.

GUMMOW J:   I think it is page 1047.

MR HARBEN:   I think that is right, your Honour, yes.  Thank you, your Honour.

KIRBY J:   What do you make out of this?  It looks like some of my dental photographs.

MR HARBEN:   Your Honour, those are a series of photographs taken by Mr Griffiths from a position just short of the stopping line, looking south, in other words, watching northbound traffic.  The top photograph identifies four vehicles:  a black car, a red car, a gold car and a truck, and the photographs sequentially after that together with the captions show that as the traffic moves up the highway it demonstrates the obscuring effect.

KIRBY J:   Now, Bago is on the top left of the photograph, is that correct?

MR HARBEN:   The photograph is taken from Bago Road ‑ ‑ ‑

KIRBY J:   It is taken from Bago?

MR HARBEN:   ‑ ‑ ‑ looking south.

KIRBY J:   Well, there is not much vision of the south, at least in this photograph.  I am always a little bit suspicious because I remember Mr Taylor, you are too young to remember Mr Taylor ‑ ‑ ‑

MR HARBEN:   Thank you for that, your Honour.

KIRBY J:   ‑ ‑ ‑ but Mr Maconachie might remember Mr Taylor ‑ ‑ ‑

MR MACONACHIE:   Thank you for that, your Honour.

KIRBY J:   ‑ ‑ ‑ he used to take photographs, take photographs, and they could be made to do anything.  Mr Taylor was brilliant in photography.

MR HARBEN:   Your Honour, I do not raise them to make any point about available distance, sight distance.  They are there as a recognition of the validity of the point about the obscuring effect as vehicles travelled northward.

GUMMOW J:   All right.

MR HARBEN:   That is the point that the trial judge made when he said that was the problem identified in the report of Mr Griffiths, it was to that photograph that his Honour was directing himself.

GUMMOW J:   Thank you.

MR HARBEN:   Thank you, your Honour.

GUMMOW J:   Yes, Mr Maconachie, anything in reply?

MR MACONACHIE:   Very briefly, your Honour.

GUMMOW J:   Do you want to say anything about March v Stramare?

MR MACONACHIE:   I do in a moment.  First, I stand on the written submission that was put in in reply, that which your Honour referred to as my verbal.  In my respectful submission, my learned friend’s submissions are pregnant with the proposition that all he has to show is an increase in the risk and that is enough to make good a material contribution ‑ ‑ ‑

KIRBY J:   Would you come to the middle because it is not only dental, it is also auditory that deteriorates?

MR MACONACHIE:   I do beg your pardon, your Honour.  I have never been accused of not being able to be heard.

GUMMOW J:   We have transcript people too.

MR MACONACHIE:   Of course, your Honour, I am sorry for that.  My learned friend’s submissions are pregnant with the proposition that all he has to do is to show an increase in the risk and that is good enough, and that is not the law, and would be a huge step in the law.  At the special leave application my learned friend tinkered with that proposition.  Your Honour said, “That sounds like a matter of principle to me”, and he walked away from it, but much of that which he has said is pregnant with that proposition.  I want to say no more about that than I have.

I do want to say something about March v Stramare.  It is reported, as your Honours know, at 171 CLR 506.  My learned friend took you to a passage at 518 which deals with supervening events, a novus actus interveniens, which necessarily assumes that the breach has been causative and the inquiry then is whether there is a supervening or overwhelming further causative act.  At page 51 Sir Anthony Mason said this at about point 5, after referring to Sherman, to Stapley he says:

These statements echo the remarks of Lord Wright in McLean v Bell.  Obviously, in the nature of things, there will be some cases in which a court concludes that a precondition does not play such a part in the consequence that it deserved to be characterized as a cause.

My learned friend starts with the proposition that it was causative.  Our point is he has not demonstrated that it is.  He secured no finding either at trial or on appeal.

GUMMOW J:   I think also Justice Deane at 522 might give you some comfort, perhaps, in the first complete paragraph – the only complete paragraph – at about line 12, “There are two further matters . . . I do not subscribe to”.

MR MACONACHIE:   Yes, your Honour, I stand on that as well.  My learned friend secured no finding at trial or on appeal that Mr Smurthwaite on this occasion had any problems of vision at all – none.

KIRBY J:   It is just that we will never know and it is left to inference and inference is something judges deploy every day and they do it on the basis of the evidence and they in the absence – if Mr Smurthwaite had been able to give evidence, well, this would be a very different sort of case.

MR MACONACHIE:   Your Honour, my short point is that Judge Phelan did not find that Mr Smurthwaite had any problems, nor did Justice Santow.  Justice Santow found, at a level of generality, that there might be a problem.  There was no finding secured by my learned friend who bore the onus of proof that Mr Smurthwaite was impacted upon by a problem.  Justice Kiefel asked whether or not there was any evidence of the speed at which Mr Royal was travelling when he saw Mr ‑ ‑ ‑

KIEFEL J:   No, it was really the position of his vehicle; whether it was in line of sight, whether or not the evidence was conclusive as to that and I think your opponent has conceded that the evidence was inconclusive.

MR MACONACHIE:   Yes, I am sorry.  I thought, your Honour – well, it was conclusive that Mr Royal saw Mr Smurthwaite.

KIEFEL J:   Except that his evidence was disregarded by the trial judge.  Perhaps your stronger evidence is that there was clear evidence that the people who knew the intersection knew that they had time to cross.

MR MACONACHIE:   Yes, indeed, your Honour.  I think that is everything.  There is one thing I would want to say about this staggered T‑intersection proposition.  Justice Kirby spoke of, as indeed did Justice Santow, if there were a T‑intersection that would mean that Mr Smurthwaite would come out into a left‑hand lane and, as it were, hug the left‑hand side of the road and gradually move across.  There is nothing to suggest that that would have happened at all.  Mr Smurthwaite has been found to have been acting other than carefully for his own safety.  There is no reason to assume ‑ ‑ ‑

KIRBY J:   They found contributory negligence.

MR MACONACHIE:   Quite, but there is no reason to assume that if they are a different form of intersection that he would necessarily act responsibly and carefully.  He might have driven straight across the road and then turned into the right‑hand lane.

KIRBY J:   He would not have been put in peril of running the intersection which 20 people have done, with 2 killed and 14 seriously injured.

MR MACONACHIE:   I understand that, your Honour, and there is nothing to suggest that in the circumstances of this case with two people acting negligently that the outcome would have been any different.  They are my submissions in reply.

GUMMOW J:   Thank you, Mr Maconachie.  The Court will consider its decision in this matter and we adjourn to 10.00 am tomorrow.

AT 3.27 PM THE MATTER WAS ADJOURNED