Roads Corporation v Kelvin Dykes
[2011] VSCA 118
•4 May 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2009 3909
| ROADS CORPORATION | Appellant |
| v | |
| KELVIN DYKES | Respondent |
---
| JUDGES | HARPER, HANSEN JJA and HARGRAVE AJA | |
| WHERE HELD | MELBOURNE | |
| DATE OF HEARING | 10 February 2011 | |
| DATE OF JUDGMENT | 4 May 2011 | |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 118 | First Revision: 6 May 2011 Para 135 |
| JUDGMENT APPEALED FROM | Dykes v Roads Corporation [2009] VCC 1415 | |
---
NEGLIGENCE – Appeal – Road traffic accident – Causation – Whether trial judge erred in not finding driver’s conduct was the sole cause of the accident – Whether it was reasonably foreseeable that a directional sign erected by the appellant would, in circumstances of darkness and fog, cause driver confusion – Whether appellant breached its duty of care – Whether any breach caused the accident – Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431, Suvaal v Cessnock City Council (2003) 77 ALJR 1449, Commissioner of Main Roads v Jones (2005) 79 ALJR 1104 and Roads and Traffic Authority v Grant Royal & anor [2008] HCA 19 distinguished – March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506 discussed.
---
| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr D G Brookes SC with Mr D J Wallis | DLA Phillips Fox |
| For the Respondent | Mr R W Dyer with Mr B G Anderson | John R Sharkie |
Harper JA:
Background
On the morning of 20 March 2001 at about 5.30am the respondent, Kelvin Dykes, was driving north along Princes Way, Drouin. He was on his way to work. This was a journey that he had made regularly nearly every working day for about twelve months. On this occasion, however, it was dark and there was a thick fog. He was only able to see 10 to 20 feet in front of him. Nonetheless, he was travelling at approximately 80 to 85 kph on a road that carries a speed limit of 100 kph.
As an experienced long-distance truck driver, he was acquainted with the hazards of driving in darkness and fog. One of these, the risk of being struck from behind, arises from travelling too slowly. The obverse risk is of a collision caused by driving too fast. It was the need to strike the correct balance which, he said, explained (albeit, as the trial judge found, only partially excusing) his speed that morning. Travelling down the hill towards the entrance to the Princes Freeway, which ultimately took the traveller to Melbourne but which was Mr Dykes’ intended route to Dandenong, he kept an eye on the continuous white line (which, in his evidence, he called ‘the fog line’) bordering the left hand side of the carriageway. His headlights caught a green direction sign which was marked, on the lower portion of its face, with a 45-degree arrow and the word ‘Melbourne’. Above that, the sign included the words ‘Warragul via freeway’ and ‘Mt Baw Baw’ each with a directional arrow pointing directly ahead. Had Mr Dykes seen this section of the sign, his experience of the road would have told him that he had not yet reached the freeway entrance. Thinking, however, that he was entering the gradually curving exit to the freeway, he executed a matching turn to the left.
Mr Dykes was wrong. The sign was an ‘advance direction sign’, positioned approximately 170 metres from the traffic ramp leading vehicles towards the freeway and hence to Melbourne. He was not turning towards the freeway. On the contrary, he had entered McGlones Road, a secondary road located about 185 metres south of the freeway entrance (and therefore about 15 metres south of the advance direction sign). A driver wishing to travel along McGlones Road must first negotiate a sharp left turn then, almost immediately, a sharp turn to the right.
Mr Dykes failed to fully execute the first part of that manoeuvre. He did not steer far enough to the left. As a consequence, his vehicle hit a grassed median strip to which the trial judge referred as ‘the embankment’, became airborne, crossed to the other side of the road, and collided with a tree. He suffered very serious injuries to his face, jaw, left knee and left eye socket, as well as a closed head injury.
Mr Dykes sued the Roads Corporation in negligence. He contends that the Corporation has a duty to road users to use care in the placement of, and the wording included on, its directional signage. That duty is to so place those signs, and to so arrange their configuration, as to ensure that motorists receive clear and unambiguous directions. The particular content of the duty will vary according to the circumstances; alternatively, the question whether the duty has been breached will be answered by reference to the circumstances.
The point is illustrated by the facts of this case. Mr Dykes alleges that the scope of the Corporation’s duty is to be assessed against the circumstance that, because the McGlones Road intersection is only 185 metres or thereabouts from the ramp leading to the freeway, the two intersections must be clearly distinguished if confusion is to be avoided. Clarity on this point is doubly important because of the different configurations of McGlones Road, with its embankment and its dog-leg corners as it leaves Princes Way, and the gentle leftwards route taken by the ramp leading to the freeway. Those mistaking McGlones Road for the ramp would not expect to be confronted by one sharp turn followed quickly by another; and if taken by surprise might collide with the embankment, just as did Mr Dykes.
The respondent contends that, if the positioning of the advance direction sign was dictated by the limited distance between the two intersections, special care was required to avoid the confusion that would otherwise necessarily accompany such proximity. That care was not taken. On the contrary, the Roads Corporation was in breach of its duty of care. First, it had placed adjacent to the entry to McGlones Road a sign (the advance direction sign) which could reasonably have been taken by a Melbourne-bound motorist to indicate that a left turn at that point was required. Secondly, it had compounded this act of negligence by positioning another sign at a point about as far north of the entrance to the freeway as the advance direction sign was north of McGlones Road. And there was a striking similarity between the bottom section of the advance direction sign and the sign near the freeway entrance. It was not only that each was similarly positioned just beyond – that is, about 15 metres north of – their respective intersections. It was also that both were large, and either square or rectangular. Both had what was standard for that species of sign – namely, a green background with white borders. Both also bore an arrow placed at 45-degrees to the horizontal. Because in each case the word ‘Melbourne’ was associated with the arrow, both by that means pointed in the direction to be taken by travellers wishing to proceed to Melbourne and places in between. Even those familiar with the sign near the freeway might, therefore, in foggy conditions, mistake the advance direction sign for that 185 metres to the north.
It was on this basis alleged that the placement of the first sign induced drivers, including - on this morning – Mr Dykes, to believe that the ‘T’ intersection formed by McGlones Road and Princes Way was in fact the beginning of the exit ramp to the freeway. The respondent further relied upon the absence on the advance direction sign of any reference to McGlones Road, or any diagrammatical representation of the McGlones Road intersection; indeed, there was no ‘advisory’ sign by which that intersection was identified. Moreover, there were no arrows marked on the road which would have alerted drivers in Mr Dykes’ position (and in the circumstances obtaining that morning) to the fact that this was the intersection of the secondary road preceding the freeway entrance.
Following a seven day trial in the County Court, the trial judge found in Mr Dykes’ favour. His Honour held that, in combination, the course taken by the continuous fog line as it veered to the left, and the positioning and content of the bottom part of the advance direction sign, created a mistaken belief in Mr Dykes that he had reached the entrance to the freeway. Roads Corporation breached its duty of care to Mr Dykes by erecting a misleading sign, and that breach was a cause of his injury and loss. His Honour awarded Mr Dykes general damages of $225,000.00, together with damages for loss of earning capacity of $275,238.00. However, having also found that Mr Dykes had contributed to the accident (and therefore his loss) because the speed at which he was travelling was, in the circumstances, too fast, his Honour reduced the total sum by one third to $333,492.00 together with interest agreed at $2,240.00. This reduction for contributory negligence is not the subject of appeal.
Grounds of Appeal
The appellant now seeks to appeal from his Honour’s decision. It relies on the following grounds:
1.The trial judge erred in not finding that the sole cause of the respondent’s injury, loss and damage was the negligence of the respondent in the driving, management and control of his motor vehicle.
2.Alternatively, having found there were four causes of the accident, namely:
(a)the presence of thick fog;
(b)the speed of the respondent’s vehicle;
(c)the geography of the intersection with respect to the ‘fog line’; and
(d)the bottom part of the advance direction sign misled the respondent into assuming it to be the intersection sign causing him to veer sharply to his left:
the trial judge erred in finding that the accident was reasonably foreseeable by the appellant.
3.The trial judge erred in finding that the appellant had breached its duty of care to the respondent.
4.The trial judge erred in finding that any breach of duty by the appellant was a cause of the accident.
5.When considering causation, the trial judge found that ‘but for the presence of the (advance direction) sign, it was probable the transport accident would not have occurred’ and in doing so failed to disclose a path of reasoning as to how any breach was a cause of the accident, in that it was necessary for his Honour to consider the presence of both signs and the capacity for the motorist to confuse one for the other.
During the course of the appeal, counsel for the appellant indicated his client would not press ground 6, which was:
6.The trial judge erred in not finding that the duty of care by the appellant was only owed to those road users who were taking reasonable care for their own safety.
The appellant included extensive particulars of ground 2. It is said that the trial judge failed to take into account relevant considerations, namely, that in assessing whether there was a foreseeable risk of injury, the appellant would have had to take account of:
(i)a road user being familiar with the two signs, so as to confuse one for the other;
(ii)a road user not seeing the two upper arrows of the advance direction sign;
(iii)the road user not computing that he had missed the first sign, when purportedly confused that it represented the second sign;
(iv)the road user would not realise at the time of seeing the first sign that he would actually be some 170 metres from where he actually was;
(v)a road user upon seeing the advance direction sign, not realising that he had not yet made the turn off to the ramp leading to the freeway entrance;
(vi)a motor vehicle would be travelling in excess of 80 kph, with a visibility of 10 to 20 feet; and
(vii)between 1994 and the date of the accident, there had been no reported incidents to the appellant of either sign confusing motorists.
The appellant also relies on particulars of irrelevant considerations taken into account by the trial judge in relation to ground 2, namely:
(a) Evidence given by a witness (Deborah Donald) to the effect that:
(i)the advance direction sign ought to have been placed to the south of the intersection;
(ii)the advance direction sign ought to have made reference to McGlones Road by way of a stub sign or otherwise;
(iii) there ought to have been hook arrows upon the roadway; and
(iv) the advance direction sign had the capacity to mislead,
after ruling that Ms Donald could not give expert evidence as to the propensity of the signs to mislead motorists.
(b)His Honour gave weight to the behaviour of drivers, observed by another witness (Louise Stewart) who turned left into McGlones Road and then did a U-turn.
(c)His Honour gave undue weight to the evidence of the witness Lance Daldry that on two occasions he had misread the advance direction sign.
(d)His Honour took into account the placement of the advance direction sign relative to McGlones Road.
(e) The advance direction sign made no reference to McGlones Road.
Ground 1 - Causation – was the conduct of Mr Dykes the sole cause of the accident?
The question of what caused this accident was a question of fact to be determined by the trial judge by applying common sense to the facts of the case.[1] Where there may have been two or more causes of the damage, a finding of causation-in-fact is open in relation to any one of those causes provided that it is held to have materially contributed to the occurrence of the damage.[2] In order to succeed on this ground the appellant must show that his Honour erred in concluding that the advance direction sign was a cause of the accident.
[1]March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506, 515 (Mason CJ).
[2]Ibid 514; Henville v Walker (2001) 206 CLR 459, 493 (McHugh J); Roads and Traffic Authority v Royal [2008] HCA 19, [86] (Kirby J).
The trial judge found that, shortly before Mr Dykes entered McGlones Road, he was in the left-hand part of the northbound carriageway. The accident which followed was caused by a number of circumstances in combination, namely, Mr Dykes:
veering to the left of the continuous fog line, and ... sighting ... the bottom part of the advance direction sign that gave the plaintiff the mistaken belief that he had come upon the entrance to the freeway. As a consequence, he turned sharply to the left and entered McGlones Road.[3]
[3]Reasons, [138].
His Honour found that there were four causes of the accident:
(a)the thick fog, which made it much more difficult to see the signs and other visual cues familiar to the respondent;
(b)the respondent’s speed, which meant that he was unable to control his vehicle on the sharp turn into McGlones’ Road;
(c)the geography of the intersection, ‘in that in following the fog line as it turned to the left at McGlones Road, the plaintiff considered he was upon the freeway entrance because of the similarity of the verge to the left’; and
(d) the bottom part of the advance direction sign, which Mr Dykes mistakenly assumed was the intersection sign, thereby inducing him to veer left.
After considering the argument put on behalf of the Roads Corporation that the advance direction sign was not itself misleading or otherwise inappropriate, and instead the cause of the accident was driver error in failing to properly observe and interpret the sign in foggy conditions, his Honour said, in my opinion correctly:
Any motorist is reliant upon roadway signs to dictate the course his or her vehicle takes upon a roadway, particularly at an intersection. Such signs must be designed and installed in the knowledge that they ought to provide relatively clear directions to drivers in all conditions, particularly in the dark and foggy conditions which prevailed on the morning of the accident.[4]
[4]Reasons, [162].
His Honour then held that the advance direction sign was capable of misleading drivers, and it did so on this occasion, because: (a) it made no reference to McGlones Road despite its proximity to that intersection, (b) its position just past the McGlones Road intersection meant it was reasonably open to drivers to mistake that intersection for the freeway entrance, and (c) its similarity to the later intersection sign likewise rendered it open to misinterpretation.[5] In erecting the sign as it did, the Roads Corporation was in breach of its duty of care.[6] The capacity of that sign to mislead was neither a remote nor a fanciful cause of the accident. Furthermore, it was so connected with Mr Dykes’ loss as to make it a legal cause of that loss. Although his Honour acknowledged the limitations of the current applicability of the ‘but for’ test, he nonetheless indicated he was satisfied that, but for the presence of the sign, it was probable that the accident would not have occurred. [7]
[5]Reasons, [163].
[6]Reasons, [171].
[7]Reasons, [178].
His Honour considered, and rejected, the argument put on behalf of the Roads Corporation that the real cause of the accident was the conduct of Mr Dykes, namely, that he was travelling too fast in the circumstances, he was in the wrong lane (being the left turn lane into McGlones Road), and he failed to notice the visual cues leading to the intersection. The judge also found that Mr Dykes was not reconstructing evidence when he said that he misinterpreted the sign. Even having regard to the possibility of the passage of time distorting a witness’s recollection of events, his Honour found Mr Dykes to be an honest witness who had not reconstructed events; and his evidence about the influence of the sign on his decision to turn into McGlones Road was ‘credible’ and should be accepted.[8]
[8]Reasons, [136].
The appellant’s submissions on this appeal echoed those put at trial. It argued before this Court that the sole cause of the accident was the behaviour of Mr Dykes in driving too fast in the foggy conditions. It was this conduct which significantly hampered his ability to identify, and respond to, the visual cues which preceded the exit to the freeway. Even had he been confused by the advance direction sign, it was neither reasonable nor foreseeable for the respondent to react impulsively when he saw the sign. Mr Dykes’ belief that he had reached the entrance to the freeway was not, it was submitted, any ‘cause’ which resulted from a breach by the Roads Corporation of its duty. How could the appellant have reasonably foreseen that a driver would place himself in such a position? And why did Mr Dykes not take heed of there being no on-ramp extending, as did the freeway on-ramp, for 100 metres back to the south from that sign?
This last point seems to me to be amongst the strongest in the appellant’s armoury. Mr Dykes was familiar with this road. He knew, and had he been thinking clearly would have remembered, that drivers must travel some 100 metres along the entrance ramp to the freeway before reaching the sign nearest the freeway. By contrast, on this occasion, he had not moved into any entrance ramp before the sign first caught his eye; his evidence was that he had never left the northbound carriageway of Princes Way before he saw the sign which induced him into the mistaken turn into McGlones Road.
The trial judge was nevertheless entitled to conclude that, at the moment of decision, Mr Dykes was not thinking clearly. The fog was thick. He was concentrating on the fog line to his left. His instantaneous reaction to a glimpse of an arrow and the word ‘Melbourne’ was to turn in the direction of the arrow. That reaction is especially unremarkable, given that Mr Dykes was familiar with the sign nearest the freeway; and what he saw through the fog on that morning was a replica of the freeway sign.
The respondent concedes that ‘in circumstances of good visibility’ a number of visual cues to the position of the freeway entrance could have been relevant; but where, as here, it was dark and there was a thick fog, the cues were – he submits – less so. They were difficult to see, let alone identify. Mr Dykes’ evidence, which was accepted by the trial judge, was that he was concentrating upon the white fog line as he travelled along Princes Way. That fog line, as it was at the time, did not diverge left until it had almost reached the intersection with McGlones Road. This was a characteristic which it shared with the freeway exit. The evidence was that Mr Dykes was travelling with his headlights on low beam. In that position, they illuminated only the lower part of the advance direction sign; and that part of the sign was identical in appearance to the later sign just to the north of the exit to the freeway.
The visual cues, upon which the appellant placed some reliance, are not only the topography of the road, but also the road signs along the stretch of road leading, first, to the McGlones Road intersection and then to the freeway entrance. The appellant identified them in its written submissions:
(a) a sign reading ‘Drouin Racecourse – 300 metres’;
(b) the downwards slope of the road approaching McGlones Road;
(c) a sign reading ‘McGlones Road’;
(d) a sign reading ‘Drouin Golf club’;
(e) a sign reading ‘Drouin racecourse’;(f)the curve into McGlones Road, which the appellant describes in its written submissions as ‘sharp’;
(g)the advance direction sign;
(h)the on-ramp to the freeway;
(i)the intersection sign reading ‘Melbourne’.
It is unclear what item (c) describes. The Agreed Summary on this appeal does not refer at all to a sign, being one of the signs leading to this intersection, showing ’McGlones Road’. It would appear from the photographs forming part of the evidence before the trial judge that there was a street sign reading ‘McGlones Road’. And there is another photograph of a green ‘McGlones Road’ sign with a fingerpost board showing Drouin as being 6 km; but there is no evidence about where that sign was.
In my opinion, the judge was fully justified in concluding that none of the signs were noticed by Mr Dykes that morning. When fog is as thick as it then was, signs 10 to 20 feet away might not be legible, even by drivers who divert their concentration from the road for long enough to notice that those signs are there.
I also question the significance of the topography. In circumstances of darkness and heavy fog, where relatively short distances are involved, the downwards slope of the road approaching McGlones Road would not necessarily be noticeable. This does not strike me as a cue to be relied upon by the appellant as a means to safely and correctly guide fog-bound drivers, no matter how familiar with the locality, past an otherwise misleading directional sign.
Some time was spent during argument on the appeal considering the finding of the trial judge that Mr Dykes remained in the main north-bound carriageway of Princes Way, and therefore to the right of the fog line, until moments before the accident occurred. The appellant contended that the evidence was to the contrary. It was not, as the judge held, that the respondent had been guided by that fog line into a position where, having glimpsed the advance direction sign, he was induced into turning left, with the consequence that he then collided with the embankment. Rather, it was that he moved into the left-turn lane after deciding that the exit to the freeway was almost upon him and that, accordingly, he was about to leave Princes Way. It was only after having committed himself to a leftward deviation that he saw the advance direction sign. The sign, therefore, had nothing to do with a decision already made.
The appellant submitted that, having regard to this evidence, his Honour must have erred in the path of reasoning which led him to his finding about, first, the respondent’s position on the roadway and hence, secondly, about the appellant’s liability. There is, it was argued, a contradiction between (on the one hand) Mr Dykes’ evidence that he was in the left-turn lane moments before veering left into the intersection itself, with the fog line therefore on his right, and (on the other) the finding by his Honour that the fog line was then to the respondent’s left.
In his reasons for judgment, his Honour gave the following description of the position of Mr Dykes’ vehicle in the moments leading up to the accident:
As he proceeded down the hill, I accept that he was keeping his eye upon what he described as the fog line, the continuous white line along the left edge of the northbound carriageway so as to maintain his position upon the road. As he approached the intersection of McGlones Road, he was waiting to come upon the freeway entrance so as to proceed to Melbourne. At that point, the fog line veered to the left and at about that same time his headlights ‘lit up’ the bottom part of the advance direction sign with the words ‘Melbourne’ and a 45-degree arrow. It is difficult to say precisely where upon the roadway the plaintiff was at that moment, but I accept that when he first saw the sign, he had not commenced to turn into McGlones Road. I accept that it was a combination of the veering to the left of the continuous fog line, and the sighting of the bottom part of the advance direction sign that gave the plaintiff the mistaken belief that he had come upon the entrance to the freeway. As a consequence, he turned sharply to the left and entered McGlones Road. Shortly prior to entering, I accept that he was in the left-hand part of the northbound carriageway. Mr Brookes submitted that in fact he was upon the shoulder of the roadway as can be seen as the light grey asphalt in photographs at pages 534-536 of Exhibit 6. … While the plaintiff did accept that he was in the left turn lane, I am not satisfied that there was a left turn lane as now exists.
…
Given I accept the evidence of the plaintiff that the path of his vehicle was just to the right of the continuous fog line as he proceeded in a northerly direction, I am satisfied that he did not travel along what is shown in the December 2003 photographs as the lighter coloured asphalt area. I am satisfied that he proceeded upon the northbound carriageway although upon the western or left-hand portion.[9]
[9]Reasons, [138]-[139].
In my opinion, his Honour was justified in coming to these conclusions. Senior counsel for the Roads Corporation, however, pointed to evidence which, he submitted, showed Mr Dykes conceding that, in the moments leading up to the accident, he was travelling in the what was loosely described as the left (or turning) lane of the road, but which at that time was in reality its shoulder, sometimes accessed by drivers before executing a turn left into McGlones Road. It was, according to the appellant, entered by My Dykes before he saw the advance direction sign. Without reference to any Roads Corporation signage, or its road markings, he had already made up his mind about the course he would take. Independently of any of that, he thought he had reached the entrance ramp to the freeway; and he had entered the left turning lane in anticipation. But it was not the entrance ramp he thought it was. On the contrary, it was the McGlones Road intersection.
It is necessary in this context to revisit in some detail the evidence given by Mr Dykes. When examined in chief about the events leading up to the accident, he said:
I was coming down … sort of keeping my eye on the fog line and then I noticed the fog line veer off to the left and at that – that same instant, looked up because I noticed the … advanced directions sign as we know it, light up … there were the dotted lines. I can’t exactly about the – the arrows, but … yes, I sort of can’t remember whether they were there or not.
…
… They [the 90 degree hooked arrows presently upon the roadway] definitely weren’t there.
… [There were] dotted lines on the left-hand side of the road. Yes, as the fog line veered off to the left … that’s when I saw the green sign light up with the direction to Melbourne. I saw the arrow to Melbourne and I thought that was an onramp to – to the freeway.
On a good day you can still do 100 kilometres an hour [to negotiate the entrance to the freeway] – and quite easily on that onramp.
Yes, I started to go to the left as if I was going onto the freeway entrance and then at that stage I hit the embankment and realised that I wasn’t actually on the freeway entrance.
Once I realised I hit the embankment I knew I was in the – in the air because I had my foot on the brake and there was nothing. Once I come down on the ground it bounced maybe once, twice and then I was into the tree.
The respondent was then cross examined. In particular, senior counsel for the Roads Corporation relied on the following exchange:
Q: What would normally happen, would it not, is that you say your normal practice is to keep a lookout on the left-hand side as you approach. Is that right, for I think you use it as a fog line?
A: A fog line, that’s correct. Yes.
Q: And at some stage coming down the road the single lane becomes two lanes doesn’t it, as we see in Photograph number 2?
A: One – one through lane, one slip lane.
Q: Yes, so you’ve got a left turn lane. Photographs 1 and 2 show at the intersection of McGlones Road there is a left-hand turn lane, if you like, and there’s a lane for traffic going straight ahead. Is that correct?
A: That’s correct.
Q: At some point in time you veered your vehicle sharply to the left. That’s right, isn’t it, at some point?
A: Yes.
Q: Just before you hit the embankment it’s as a result of you veering to the left?
A: That’s correct.
Q: As you were coming down there, you say that you were keeping your eye on the fog line?
A: That’s correct.
Q: And if we’re at the top of the hill, say at or about the 300 metre sign, do you know where I’m talking about?
A: Yes.
Q: You’ve got the continuous white line?
A: That’s correct.
Q: All right. Now at some stage as you come down the road, did you realise that the two lanes had formed?
A: I realised because the fog line went to the left and the dotted line appeared.
Q: So you realised – you saw the fog line to go to the left and you saw at some point after that the appearance of the dotted white line … did you?
A: Straight away, as soon as it started veering left, I saw the dotted line straight away.
…
Q: Yes, and you, the reason why you veered left, you didn’t want to veer left where you did veer left, you wanted to veer left onto the freeway
A: That’s correct, yes.
Q: And you thought, when you looked up and you saw the green arrow, you thought that that was the arrow at the top of the ramp indicating that you should turn left?
A: Yes.
Q: And what you would normally do in order to do that, in say good weather, you wouldn’t take up a position in the left-hand lane to go left into McGlones Road, you’d stay in the straight line, in the normal lane until you got to the start of the – of the ramp for the freeway wouldn’t you?
A: In a clear day, yes.
Q: And what you would normally do then is get to a point, if we just go back to Photograph number 4, you’d be coming up to a point where – or first, before I ask you that. When you say that the green arrow flashed in front of you, as a result of that you veered your car to the left and mounted the embankment, that’s what happened?
A: That’s correct.
Q: And when you mounted the embankment, you went to the left of the sign because you didn’t hit that sign, and you went across the embankment and hit the tree?
A: That’s correct.
Q: So that when you – when the – when the arrow flashes up and you think that’s where you are, it seems that you must have been slightly to the right of the arrow, you thought, oh-oh that’s the ramp arrow, and you veered to the left and gone in front of it, would that be correct?
A: I was, in my opinion, I was heading towards the sign because I was already in the left-hand lane.
Q: You say you were already in the left lane?
A: Well I was coming into the left-hand lane, yes.
Q: You say that you were already in the left-hand lane?
A: Well I was coming into the left-hand lane, yes.
Q: Were you in the left-hand lane or the right hand lane when you saw the arrow?
A: Well I was in the left-hand lane.
Q: Why didn’t you realise that you were in the left-hand lane?
A: Well.
Q: That left-hand lane starts some time back from McGlones Road doesn’t it?
A: Well I know what the freeway entrance looks like and it’s a very wide intersection.
…
Q: Yes, but what you’re saying here, if this had been a clear day, you’d have stayed in the centre lane, you wouldn’t have gone into McGlones Road lane and you would’ve then continued on until you’d veered left up onto the ramp which----?
A: On a clear day I would have, yes.
Q: But what I want to ask you now is, we know it was not a clear day, but at the time that you looked up, do you know where on the roadway you were, which lane you were in, or would you be guessing?
A: No, I was in the left lane.
Q: You were in the left lane?
A: Yes.
Q: And you shouldn’t have been in the left lane?
A: Well, no, I shouldn’t have been if I knew where I was.
This evidence is of course important. It does give some support to the appellant’s case. But in re-examination Mr Dykes repeated what he had said in chief:
I was coming down that slight incline. I noticed the fog line veer off to the left where the dotted line started. I thought that was the entrance to the freeway and then the headlight – headlights picked up the sign to Melbourne and then I veered to the left and then saw the embankment, struck it and then whatever happened after that …
The fog line, which has since been altered, continued at the time of the accident to mark the western or left-hand edge of the north-bound carriage way. It then swung sharply left into McGlones Road. It thus extended beyond the commencement of the short left turning lane, and therefore divided the turning lane from the carriageway; it did not diverge left to mark the shoulder of the roadway, which was the western extremity of the sealed surface (or, in other words, the western extremity of the left turning lane). Had it done so, some other marking would have been necessary to identify the boundary between that lane and the through (northbound) carriageway. Instead, the western edge of that carriage way continued to be identified by the fog line, and the turning lane was unmarked.
Drivers moving across to the shoulder of the road in the belief that this was a preliminary manoeuvre before executing a left-hand turn would necessarily, therefore, have either crossed or at least straddled the fog line, placing it either to their right or somewhere beneath their vehicle. And this, according to the appellant, is what the respondent decided to do - not as a result of following the fog line, but of his own volition. Moreover, the argument continues, the evidence shows that Mr Dykes had committed himself to turn left before he saw the advance direction sign, so that the sign was irrelevant. It follows, according to this argument, that the appellant cannot be held responsible for Mr Dykes’ mistaken belief that he had reached the freeway entrance.
Senior counsel for the appellant took this Court to the evidence given at the trial by Mr Neil Jones, a civil engineer who had been an employee of the appellant for 34 years and later a consultant to it. Mr Jones inspected the Princes Way section of road leading up to the McGlones Road intersection in November 2003 in order to amend the line markings so as to create a designated left turn lane into McGlones Road using the sealed shoulder. It would seem that the road he inspected was of the same configuration as that which obtained when the accident occurred. His evidence was that the continuous white fog line marked the boundary between the northbound lane of Princes Way and the shoulder of the road; it did not at that stage run along the left hand margin of the sealed shoulder. The fog line therefore followed a sharp curve as it reached McGlones Road and marked the left hand turn, ‘getting towards a right angle’, into McGlones Road from Princes Way.
This is consistent with the evidence of Mr Dykes. However, as a result of the work performed by Mr Jones in 2003, the path of the fog line was changed to run along the left hand margin of the left turn shoulder into McGlones Road, as depicted in photographs taken in 2008. These photographs do not show the markings on the road as they would have been at the time of the accident; rather, they follow the outside or western edge of the left turn lane, thus depicting a less acute curve into McGlones Road. The appellant says that Mr Dykes relied on these later photographs, and their depiction of the fog line as running along the left hand boundary of the shoulder, when undertaking what the appellant characterises as a reconstruction of the moments leading up to the accident.
When, in the context of Mr Jones’ evidence about the road markings at the time of the accident, one considers the answers given by Mr Dykes under cross-examination, it is, according to the appellant, unclear how the trial judge could have found that Mr Dykes was following the fog line to his left in the moments before the accident. After all (as the appellant contends) Mr Dykes then said and repeated that when he saw the sign he was ‘already in the left lane’ or ‘coming into the left lane’.
I do not agree with this contention. In my opinion, the appellant’s submission that, based on photographs of the amended road markings, Mr Dykes reconstructed the role of the fog line, is unsound. The truth is to be found not in the answers he gave in cross-examination, but in his answers to his own counsel in chief and in re-examination. From them, one can properly conclude, as did the trial judge, that Mr Dykes did not diverge from the north-bound carriageway of Princes Way until he saw the fog line change direction with a 90 degree turn to the left. At the moment he noticed that change he lifted his eyes, which caught the bottom section of the advance direction sign. He saw the arrow pointing 45 degrees to the left. He also saw the word ‘Melbourne’. He noticed, in addition, that the continuous fog line had been succeeded by a broken line marking the continuation of the north-bound carriageway across the face of the intersection. It was only then that he concluded that the entrance to the freeway was upon him. At the time of the accident, that broken line occurred not at the point when the shoulder began to diverge from the through lane (as it was later marked by Mr Jones and as it appears in the exhibit A photographs), but only where McGlones Road intersected with Princes Way.
In my opinion, it was open to the trial judge to find that in the moments leading up to veering left, Mr Dykes had the fog line to his left. When during his cross examination the respondent said that he was in the ‘left hand lane’ both he and his cross-examiner were, it seems to me, confused. I come to this conclusion for the following reasons.
The relevant questions were asked while Mr Dykes, then under cross-examination, was being shown photographs in exhibit A. These depicted the markings on the road as they were after having been re-drawn some time in or after 2003. These new markings designated the shoulder of the road as a left-turn ‘slip’ lane leading into McGlones Road. It was therefore possible with only a little exaggeration to characterise the roadway as having, for a short distance, two marked ‘lanes’.
This was not the position at the time of the accident. As the appellant itself states in its written submissions on this appeal, ‘the evidence was that there was no left-hand lane at the time of the accident and there was no fog line to the left-hand side of any left-hand turn lane at the time of the accident as this lane was not created until late 2003.’
In these circumstances, senior counsel for the appellant could have had only one excuse, other than confusion, for putting to Mr Dykes that ‘at some stage coming down the road the single lane becomes two lanes doesn’t it, as we see in Photograph number 2 … so you’ve got a left turn lane … shown in photographs 1 and 2’ and ‘the left-hand lane starts some time back from McGlones Road, doesn’t it?’ That other excuse would be that he was putting only what appeared in the photographs, not what was on the ground when the accident occurred in March 2001. But if the latter was the explanation for the relevant line of questioning, the appellant cannot properly contend that Mr Dykes was not confused when in answer to those questions he said that, immediately before the accident, he was ‘already in the left lane’ while he was ‘heading towards the sign’.
Mr Dykes consistently gave evidence, both in chief and in re-examination, that he was keeping an eye on the fog line when he saw it veer left. If accepted, the appellant’s position would require the Court to find that at some stage Mr Dykes, while entering the left-turn lane, crossed the fog line. There is no evidence of this. Moreover, such a manoeuvre would seem to run contrary to common sense – why would a driver, driving in dark and foggy conditions, leave the security of the fog line to veer left into an unmarked portion of the verge? I do not accept the appellant’s submissions on this point.
I am further of the opinion that the trial judge was entitled to find that it was the presence of the advance direction sign which triggered Mr Dykes’ decision to veer left into McGlones Road. That finding was consistent with his evidence.
The appellant submits that his Honour misunderstood his role and attempted to arrive at an explanation of the accident, notwithstanding the evidence, rather than determine whether the plaintiff had proved his case. It relies on the decision of Suvaal v Cessnock City Council.[10]
[10](2003) 77 ALJR 1449.
In my view the present case is quite different to that considered by the High Court. In Suvaal the trial judge found in favour of the plaintiff on the basis of a version of the facts not only not put by either party at trial, but also expressly rejected by the plaintiff. Quite understandably, the Court held that the judge’s approach was incorrect. Callinan J, delivering the leading judgment, said:
In my opinion the Court of Appeal had no option but to allow the appeal. The approach of the Master was an incorrect one. She seemed to think that, rather than decide whether the appellant had proved the case that he sought repeatedly to make at the trial and which she concluded she was bound to reject, she was obliged to find some other explanation for the accident. This was to misunderstand the nature of the task she had to perform.[11]
That is not this case. The findings of the trial judge here were open on the evidence given by Mr Dykes and consistent with the case put on his behalf.
[11]Ibid [144].
Nor do I think that the trial judge can be criticised for not finding that the respondent’s actions and perceptions were the sole cause of the accident. This case can be contrasted with that considered by the High Court in Commissioner of Main Roads v Jones[12] in which the plaintiff, Lloyd Jones, was injured in a road traffic accident after he struck a stray feral horse on the Great Northern Highway in Western Australia. He sued the Commissioner on the basis that the latter was negligent for not erecting, at the point of the accident, either signs warning of the risk of animals straying onto the highway, or reducing the speed limit. But the trial judge found against Mr Jones on the basis that it was his conduct, in driving at a dangerous speed at night, which was as a matter of ordinary common sense the sole real cause of the accident. His Honour found that the plaintiff, as an experienced traveller in the area, was aware of the likely presence of animals on the highway, especially at night. Having driven at an average speed of 140 kph over a distance of some 200 km, including driving through a town with a 90 kph speed limit only 6 km from the point of the accident, the trial judge found that the plaintiff would not have heeded any warning signs or observed any reduction in the speed limit even if such signs had been present. The Full Court reversed these findings, but the High Court held that the Full Court was in error.
[12](2005) 79 ALJR 1104.
Ground 1 must fail.
Grounds 2, 3 and 4 – Was the accident reasonably foreseeable by the appellant and, if so, was a breach by the Roads Corporation of its duty of care a cause of the accident?
Grounds 2, 3 and 4 of the grounds of appeal were argued together. They give rise to intersecting issues. It is for these reasons convenient in this judgment to consider them under the one heading.
It was accepted by both parties at the trial that the Roads Corporation owed a duty of care which extended to road users generally: it was not a specialised duty owed only to road users exercising reasonable care for their own safety. The relevant duty was considered by Gillard J in Montfroy v Roads Corporation.[13] His Honour there described the duty as a general one owed by the Roads Corporation ‘in its role as the body responsible and empowered to erect and maintain traffic warning signs.’ He then continued:
Whilst the power to do so is expressed in discretionary terms, in accordance with the general principles laid down in Donoghue v Stevenson, it is reasonably foreseeable that if [the Roads Corporation] fails to erect and/or maintain proper and appropriate road warning signs to road users, injury could occur and secondly, the relationship of the authority having exclusive powers concerning signs on State highways and road users is sufficiently proximate to establish the duty of care. The Roads Corporation is the body empowered to erect proper adequate and suitable signs and is entrusted by Parliament to do so. It knows the volume of traffic on a State Highway, such as the Calder Highway. It has in the past undertaken the task to erect suitable signs on the Calder Highway. It is in control of the task of erecting the signs. It had a duty to take reasonable care to erect in appropriate places proper warning signs of any known hazards. The Corporation had the power to, and exercised control over, the installation of suitable signs.[14]
[13][2005] VSC 320.
[14]Ibid [35].
Here, the gist of the appellant’s alleged breach of its admitted duty of care is its placement of the advance direction sign. In combination with the marking of the fog line and the prevailing darkness and thick fog, this inappropriate placement gave rise to the foreseeability of driver confusion.
Counsel for the appellant agreed during oral submissions that it was reasonably foreseeable by his client that there would be fog from time to time. Even so, he submitted, and notwithstanding the abandonment of ground 6, the appellant was entitled to expect, in considering the content of any duty of care, that road users would in such circumstances exercise reasonable care.
One may accept that, in the design and positioning of its directional signs, the Roads Corporation is not required to guard against gross negligence on the part of those who use Victorian roads. It is, however, required to accept the inevitable – which is that drivers will exercise less than due care some of the time. The Corporation has a duty, when designing and positioning signs and when marking the surface of its roads, to anticipate such carelessness and take reasonable measures to avoid its consequences.
One of the functions of the Roads Corporation is to assist motorists by appropriately marking the surface of its roads, and by the appropriate placement and design of directional signs. The corresponding duty undoubtedly owed by the Corporation to road users, including Mr Dykes, therefore was and is to ensure that the markings it places on the surface of its roads, and the design and placement of its signage, does not have an effect which negates assistance by causing confusion. The likelihood of confusion ordinarily increases in conditions of lowered or impaired visibility. So much is foreseeable. Fog such as Mr Dykes encountered in the area of McGlones Road is also foreseeable. A combination of signs, road markings and topography, which in ideal conditions ought not to confuse drivers whether familiar with the road or not, may in the dark and the fog cause disorientation resulting in a foreseeable accident. In circumstances of impaired visibility, such as occurred here, it becomes even more important for signs and markings to be designed and positioned so as to provide road users with clear and safe guidance.
In this case, the relevant advance direction sign was positioned near the intersection of Princes Way with McGlones Road. In my opinion, the trial judge, having had the benefit of a view and having heard the evidence, was justified in concluding that this placement carried with it a foreseeable risk that users of Princes Way would be misled into thinking that the intersection with McGlones Road was in fact the point at which they should turn off towards Melbourne. For, given its proximity to McGlones Road, the sign included a directional arrow which pointed at one and the same time to two conflicting destinations. It pointed not only to Melbourne, but also in the direction taken by McGlones Road. That, however, was not the Roads Corporation’s recommended route for travellers bound for the city (or for Dandenong).
I thus come to the real issue in this case. It is whether the risk which the Roads Corporation by this means brought into being was so small as not to constitute a breach of the duty of care which the Corporation admittedly owes to users of Princes Way. The first question for the trial judge, then, was whether a reasonable person in the appellant’s position would have foreseen that placing an advance direction sign near this secondary road (McGlones Road), which preceded by about 185 metres this entrance to the freeway to Melbourne, created a risk of injury to drivers – if not in ideal conditions then at least in conditions of significantly reduced visibility.[15] If that danger was reasonably foreseeable, the second question is whether the risk was nevertheless so small as to be far-fetched or fanciful. If it was not, the third question is whether the appellant had acted reasonably in response, having regard to:
… the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.[16]
[15]Wyong Shire Council v Shirt (1980) 146 CLR 40, 47 (Mason J).
[16]Ibid.
As it left the intersection, McGlones Road turned hard left and then hard right, swerving around an embankment as it did so. The configuration of that road, together with the presence of the embankment, would each have been clearly visible to the Roads Corporation employees charged with positioning the advance direction sign. Those personnel would therefore have been able to appreciate that drivers, if confused by the advance direction sign into thinking that they had reached the point of departure for Melbourne, might fail to make the adjustments necessary to avoid a collision with the embankment. In these circumstances, the trial judge was justified in holding that the positioning of the advance direction sign a mere 15 metres to the north of McGlones Road created a foreseeable danger that physical damage and personal injury might follow.
The second question is whether the risk of this eventuality was so small as to be disregarded. The appellant submits that the trial judge ought to have answered that question in the affirmative. It argues that it would have had to anticipate the unforeseeable combination of factors which make up the appellant’s particulars to ground 2 of its grounds of appeal.[17] It would, in addition, have had to go further and foresee that, when taken together, these factors and circumstances would lead to an accident such as that which befell Mr Dykes.
[17]See paragraph [12] above.
In my opinion, the appellant has magnified impermissibly the difficulty of taking into account the factors to which it points. When considered against the circumstances of this case, the difficulty largely disappears. The Corporation has, with one exception, failed to embrace the vital part played on the morning in question by the thick fog which enveloped the scene of the accident. Given the foreseeability of the conditions which then obtained, it would have been perfectly appropriate for the Corporation, when assessing the degree of risk, to ask itself whether (in the words of the appellant’s particulars to ground 2 of its grounds of appeal) a ‘road user being familiar with the two signs,’ would ‘confuse one with the other’ or ‘not see the two upper arrows of the advance direction sign‘ or ‘not [compute] that he had missed the first sign’ or ‘not realise at the time of seeing the first sign that he would actually be some 170 metres from where he actually was’,[18] or ‘not realise that he had not yet made the turn off to the ramp leading to the freeway entrance’. And, having asked those questions, the answer would be: it is indeed foreseeable that a road user being familiar with the two signs would confuse one with the other; or not see the two upper arrows of the advance direction sign; or not compute that he had missed the first sign; or not realise at the time of seeing the first sign that he would actually be some 170 metres from where he actually was; or not realise that he had not yet made the turn off to the ramp leading to the freeway entrance.
[18]It is a tough ask for those of us who are not omnipresent to actually be some distance from where we actually are – but the reader of the appellant’s submissions can catch their drift.
The appellant further submits that, in considering whether there was any breach of its duty, the trial judge ought to have had regard to the absence of any reported incidents in assessing whether this accident was foreseeable. In particular, the Roads Corporation contends that, in the case of this intersection, the absence of any reported incidents over a period of seven years tends ‘to confirm the assertion that the risks of harm were negligible’ and therefore not foreseeable. Indeed, according to the appellant, his Honour gave little consideration to the question of foreseeability. This omission was, the appellant says, ‘a critical oversight’.
In this context, the appellant points to the case of Romeo v Conservation Commission of the Northern Territory in which Kirby J noted:
Although a reasonably foreseeable risk may indeed give rise to a duty, it is the inquiry as to the scope of that duty in the circumstances and the response to the relevant risk by a reasonable person which dictates whether the risk must be guarded against to conform to legal obligations. Precautions need only be taken when that course is required by the standard of reasonableness. Although it is true, as the appellant argued, that an occupier is not entitled to ignore safeguards against dangers because of the absence of past mishaps, it is equally true that years of experience without accidents may tend to confirm an occupier's assessment that the risks of harm were negligible.[19]
[19]Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431, 480 [128].
An assessment of the magnitude of risk is also a question of fact and will depend on the circumstances of the particular case. Romeo v Conservation Commission of the Northern Territory was concerned with a claim brought against the Commission by a young woman who fell from a cliff top forming part of the Casuarina Coastal Reserve, which extends over 8 km of coastline near Darwin. The Court was there concerned with defining the limits of common law liability of a public authority, in particular where the damage was brought about in large part by the visitor’s own conduct. In that case, Ms Romeo had fallen after wandering towards the edge of the cliff while intoxicated at night. She was aware of the cliff, and the trial judge found that any fence or signs would not have prevented the accident. At play in the consideration of the balancing exercise between the risk of harm and the burden of measures which might have been taken, were issues about the effective application of limited resources, the preservation of the aesthetics of the landscape and ‘the avoidance of measures which would significantly alter the character of a natural setting at substantial cost and for an improvement in safety of negligible utility.’[20]
[20]Ibid 481 [130] (Kirby J).
In the present case, the risk was created by the Roads Corporation. It is therefore to that extent to be distinguished from Romeo v Conservation Commission of the Northern Territory, where the risk was constituted by the presence of the cliff, and the complaint was that the Commission failed to guard against it. On the other hand, this case impels an inquiry into the scope of the duty of the Roads Corporation in the circumstances, and into the adequacy of its response to the relevant risk. As Kirby J pointed out in Romeo, precautions need only be taken when that course is required by the standard of reasonableness.
In this case, the fact that the appellant had received no complaints was not, in my opinion, of great significance in assessing whether the Roads Corporation had, through the advance direction sign, created a risk of confusion. Those who, intending to take the route to Melbourne, negotiated the left turn without incident would in the process of making the turn realise that they had not entered a ramp leading to a freeway. They would then execute an about-turn, retreat to Princes Way, and enter the freeway ramp after travelling a further 185 metres to the north. Annoying, no doubt; but hardly enough to warrant the time and trouble that a complaint would entail.
As mentioned, during the course of the trial, the appellant argued that his Honour ought to have had regard to the absence of any reported incidents. It nevertheless objected to evidence called on behalf of Mr Dykes about the advance direction sign’s tendency to mislead. In a number of instances, the objection was upheld, at least in that the judge declined to draw from this evidence the conclusion to which Mr Dykes asked him to come.
An example may be seen in the evidence given by a tow-truck driver, Mr Gregory Reidy. A short time before Mr Dykes was injured, Mr Reidy had, in his professional capacity, attended upon two vehicles, both of which had been extensively damaged after, in his Honour’s words, they ‘had gone through the fence at approximately the same place as the [respondent’s] vehicle.’[21] But no evidence was called from the driver of either vehicle. The judge was therefore unable to conclude that either had been mislead by the sign. Similarly, his Honour declined to draw inferences, adverse to the clarity of the sign, from Mr Reidy’s evidence that two further drivers had in more recent times also unwontedly concluded their journeys in the same vicinity. Again, the judge reasoned that, because neither of those drivers were called to explain why they acted as they did, the influence of the sign upon their behaviour could not be known.[22]
[21]Reasons, [142].
[22]Reasons, [146].
Nor did his Honour draw any inferences adverse to the appellant from evidence given by Sergeant Clint Wilson, a senior police officer in charge of the Traffic Management Unit in the Warragul area. Twelve months before Mr Dykes’ accident, Mr Wilson had observed a vehicle follow the same path as the respondent, with the same result: a collision with a tree. Shortly before that collision, however, the police officer had signalled the driver to pull over because he was speeding. In these circumstances, his Honour held that ‘it is not possible to say whether the path [the driver] took into McGlones Road was as a result of a mistake, having seen the sign, or an attempt to evade the police officer.’[23]
[23]Reasons, [144].
There was, nevertheless, a point to this evidence. It clearly supported the conclusion that the intersection of McGlones Road with Princes Way was not necessarily easy to negotiate once the decision to turn left had been made by previously northbound traffic. Moreover, his Honour did have regard to evidence from other witnesses of drivers being misled into entering McGlones Road instead of the freeway by the advance direction sign.
One such witness was Ms Louise Stewart, who since 2007 had lived upon premises on McGlones Road immediately adjoining the area in question. According to her evidence, about twice each week she observed cars turn into McGlones Road, execute a u-turn, and re-enter Princes Way. She would then hear them driving north before turning off further down the road.
Another witness was Mr Lance Daldry, a resident of Drouin. Like Mr Dykes, Mr Daldry regularly used this road to drive to and from work, and had done so for some eight years. He gave evidence that on two occasions, in about mid 2008 and again in mid 2009, he turned into McGlones Road thinking it was the entrance to the freeway. It is of particular significance that the latter incident occurred at 6.30am when it was dark and foggy. Mr Daldry, travelling at 70 kph, saw the word ‘Melbourne’ on the advance direction sign, veered to the left, and collided with the embankment.
The trial judge accepted that the evidence of both Ms Stewart and Mr Daldry was relevant. He concluded on the basis of their evidence ‘that the advance direction sign was capable of and did mislead drivers approaching the intersection of McGlones Road to believe that they were upon the freeway entrance.’ Among those drivers was Mr Dykes. In his Honour’s judgment:
… it was the capacity of the sign to mislead … which caused the [respondent] to veer to the left at McGlones Road. The advance direction sign made no reference to McGlones Road, notwithstanding its position some short distance to the north. This was because of the position of the advance direction sign just past the intersection, and its similarity to the intersection sign. To that end, the sign was misleading. [24]
[24]Reasons, [163].
The Roads Corporation challenges this finding. It contends that the evidence of Ms Stewart and Mr Daldry was irrelevant. There was no evidence about the reason why any of the drivers observed by Ms Stewart pulled into McGlones Road. It may have been, for example, that they were inebriated, or were distracted (as Mr Daldry was on the occasion of his first accident in mid 2008 when he was adjusting his radio), or were pulling over to check a map for directions. In any event, Ms Stewart’s evidence was of events which occurred after the accident.
I agree with his Honour that none of these points are valid. Although there was no evidence about the reason why Ms Stewart’s drivers had turned into McGlones Road, only to turn back to Princes Way, the trial judge was entitled to infer that some if not all of them did so because they had made the left turn by mistake. If so, it was clearly open to his Honour to additionally infer that the mistake was induced by the advance direction sign. Furthermore, in this context it makes no difference that Ms Stewart’s evidence covered a period after Mr Dykes’ accident. The signage was on 20 March 2001 as it was during the period about which she spoke. Her evidence is therefore no less relevant than evidence of the same mistakes occurring before the accident. It was the absence of this evidence which the appellant relied upon as tending to prove that such mistakes were not foreseeable. But the appellant cannot have it both ways. If evidence of it would have been admissible when occurring before, it was also admissible when occurring after.
Given that the appellant necessarily had no notice, before Mr Dykes’ accident, of the problems encountered by the drivers observed by Ms Stewart, the Roads Corporation was of course entitled to bring to the attention of the court the point made by Kirby J in Romeo: years of experience without accidents of which the Corporation had notice tended to confirm its assessment that the risks of harm were negligible.
The appellant maintained that Mr Daldry’s evidence ‘was totally explicable in terms of his own driving behaviour’. The appellant points to the following exchange at the end of cross examination:
Q:What happened on this occasion in June of this year is you misread the conditions didn’t you?
A:Well, misread the conditions, the sign; whatever, yeah.
This evidence does not present as that of a witness doing his best to be accurate and fair. But it is clear from the whole of Mr Daldry’s evidence that he was looking for, and relied upon, the ‘Melbourne’ designation on the advance direction sign when he had his accident in mid 2009. His answer quoted above, in which he says ‘the conditions, the sign; whatever …’, while it does not impress as that of a witness doing his best to advance the truth, is not inconsistent with his evidence when viewed in the round. In my opinion the judge was entitled to find that confusion caused by the advance direction sign was a cause of at least one of Mr Daldry’s mishaps at that intersection.
Evidence was given at the trial by two civil engineers, both of whom had extensive training and experience in road and traffic management. Ms Deborah Donald was called on behalf of Mr Dykes, while Mr David Nash gave evidence on behalf of the Roads Corporation. The former witness had been, while the latter still was, an employee of the appellant. The appellant submits that, in taking into account Ms Donald’s evidence, his Honour had regard to irrelevant considerations.
Following objection by senior counsel for the appellant, the trial judge ruled that various aspects of Ms Donald’s evidence were inadmissible. She was, however, permitted to give evidence about a specialised body of knowledge of best signage practice. This specialised knowledge relies on a variety of approaches, including statistical analysis of data, collected from the field, about driver reaction to signs; obtaining responses from users through the journals of motoring organisations such as the RACV; and conducting surveys within road authorities. The information thus acquired is then used to prepare an Australian Standard for developing and testing new road signs. However, Ms Donald informed his Honour that while the signs in this case generally complied with the relevant Australian Standards and the appellant’s manuals, there were no guidelines for signage where a side road precedes a freeway entry ramp. The presence of such a side road is a complicating factor which must be addressed on a case by case basis.
Ms Donald located, and gave evidence about, examples of signage that had been erected to reduce driver confusion in such circumstances. Those examples included advance direction signs showing both the preceding side road as well as the freeway entrance. More recent EastLink signage includes a ‘stub’ sign with a hook arrow to show the location of a side road. Ms Donald expressed the view that these special signs are appropriate regardless of whether the road is urban or rural, or whether the through road is a single or a multi lane highway; the issue is whether they adequately address the potential confusion. In her opinion, they did.
His Honour recorded Ms Donald’s evidence that, in her view, the advance direction sign did have the capacity to mislead. Not only that, but she was also of the opinion that it was possible to design and position alternative signage which would have been more appropriate because not apt to confuse.[25]
[25]Reasons, [157].
Mr Nash was the Manager for Road Traffic Standards at the Roads Corporation. His evidence was that the design of the advance direction sign complied with the Australian Standard applicable at the time it was erected in about 1993 or 1994. He agreed that the location of the sign would depend on how the relevant engineer interpreted the Standards and the guidelines. He also agreed that multiple intersections near a freeway entrance give rise to signage problems. Nevertheless, his view was that the advance sign at the McGlones Road intersection was appropriately designed and positioned; but, following objection, his Honour ruled that this evidence was inadmissible.
Mr Nash acknowledged that in conditions of reduced visibility the similarity of the two relevant signs, together with the course taken by the fog line, could add to driver confusion; but drivers who were familiar with the road would probably use other cues. He struggled to think of any action that could be taken to reduce the risk of collision at this intersection. The suggestion of moving the advance direction sign to a location south of McGlones Road would, he said, create its own problems, while placing a placard over the lower portion of the advance direction sign (as occurred for some years after the accident) would not provide drivers with sufficient notice of the freeway entrance. Furthermore, using a hooked arrow with a stub sign was exceptional, and not condoned by the Standards or covered by the Roads Corporation guidelines.
To the extent that there was a divergence of opinion between the two experts, the trial judge preferred the evidence of Ms Donald. Mr Nash was not only a current employee of the appellant, and therefore necessarily less independent than Ms Donald, but his objectivity was further compromised by the fact that he ‘has made determinations about the adequacy of the advance direction sign’; and that circumstance, in his Honour’s view, caused him to become ‘far too rigid’. It also ‘affects his capacity to take an independent view.’[26]
[26]Reasons, [158].
Both experts agreed that the McGlones Road/Princes Way intersection, with a side road preceding by only a short distance the entrance to a freeway, does create problems for those whose task it is to provide signage which avoids confusion. Neither the relevant Standards nor the Corporation’s guidelines specifically provided for such a situation. It is therefore not surprising that in the opinion of both experts the difficulty could only be resolved if the circumstances and context of the particular intersection were appropriately taken into account.
Ms Donald and Mr Nash differed about what if anything should be done. Mr Nash was satisfied that the signage at McGlones Road met the problem, at least given that motorists ‘would probably’ use other cues to ensure that they took the correct turning; any ad hoc signage would need to be approached cautiously to ensure it did not create its own problems. Ms Donald, on the other hand, was less optimistic, and more open to novel solutions. Yet neither of them suggested that, in the absence of any information about accidents or complaints in relation to the intersection, further investigative or remedial steps would ordinarily have been taken.
The appellant submits that the trial judge erred in preferring the evidence of Ms Donald over that of Mr Nash. It is true that, unlike Ms Donald, the latter was an employee of the Roads Corporation; but no challenge was made to Mr Nash’s independence, and in any event (the submission continues) even had there been such a challenge, there was no evidentiary basis for it. Moreover, Ms Donald was herself a former employee of the appellant. Indeed (as the appellant submitted) one would expect that any expert in this field would at some stage have had a connection with the appellant given that it is responsible for all road signage in Victoria.
It is for the trial judge, not this Court, to assess the weight to be given to issues of independence when those issues turn on the fact that one witness is an employee of a party to the proceeding while another, who gives conflicting evidence, is a former employee. But whatever the consequences for the relative weight to be given to the competing evidence, the fact remains that the present employee will – for the very reason that he or she is in that position – be subject to influences from which the former employee will be free.
I can see no proper basis for complaint flowing from his Honour’s conclusions about the comparative effect on Mr Nash on the one hand and Ms Donald on the other of their relationship with the Roads Corporation.
According to the Corporation, his Honour also failed properly to consider Mr Nash’s report, even though it was tendered in full. The appellant contends that the report ‘quite thoroughly’ examines why the signs at this intersection were suitable. Yet the appellant in neither its written nor its oral submissions on the appeal has identified any gaps in the oral evidence given by Mr Nash which his written ‘report’ was designed to fill, or does fill.
I am unable to ascertain from any of the material available to me how the Nash ‘report’ came to be tendered. It was not a statement made in accordance with the ‘expert evidence’ requirements as laid down in Order 44 of the County Court Civil Procedure Rules 2008. It was not adopted by the witness, whether as his evidence in chief or as having some other proper use. While the appellant’s written submissions identify the report as exhibit R in the appeal book,[27] the document appearing there is not what it purports to be. At first sight it does present as a statement prepared for the purposes of compliance with Order 44. Yet the witness neither wrote nor signed it. Rather, it is signed and filed by the appellant’s solicitors. Moreover, it merely sets out the evidence which the Roads Corporation proposed to adduce from Mr Nash. There is no evidence that he was provided with a copy of the code as defined in rule 44.01 and required by rule 44.03(1)(a). Nor does the ‘report’ comply with rule 44.03(2); it is not in any sense a ‘report of an expert’ as that expression is understood by the law.
[27]The document reproduced in the Appeal Book does not bear any stamp or mark by his Honour’s associate; instead it is preceded by a typewritten sheet stating ‘Exhibit R Expert evidence statement of David Nash dated 8 April 2009’.
Although it is not entirely clear, a portion of the ‘report’ may have been the basis for a question which counsel for Mr Dykes put to Mr Nash in cross examination.[28] The effect of that question was whether any tests revealed that drivers understood what signs showing a ‘hooked arrow with a stub’ were intended to convey. No evidence on this point was given by Mr Nash during his evidence in chief. The asking of the question nevertheless resulted in senior counsel for the appellant successfully insisting that the respondent tender the ‘report’ in its entirety.
[28]The document from which Mr Dyer cross-examined is not identified in the transcript, save to say that it is an Order 44 statement written by the defendant’s solicitor, Mr Dobeli.
While counsel for Mr Dykes did not object during the course of the trial to the tender of the section of the document on which he cross examined, he did object to the reception into evidence of the whole of the document. He based this objection on the absence of oral evidence from Mr Nash about some of the matters covered by it. It would have been different had the document been written by the witness himself; certainly, Mr Dyer submitted to his Honour, it could not be received pursuant to Order 44 as an expert witness statement.
In my opinion, these submissions were correct. His Honour deferred any decision on the point, however, and we have not been provided with any subsequent ruling. The status of this document is therefore uncertain. It may have been tendered at some other point during the trial; but if so, this Court has been provided with no relevant material. Nor do we know on what basis its reception was allowed. As best I can judge, the only basis would be that approved by the High Court in Walker v Walker, that is, that the document having been (in effect) called for and inspected by the respondent, he must, upon demand by the appellant, put it in as part of his case, with its probative value then to be determined and dealt with as a matter of fact. [29]
[29](1937) 57 CLR 630, 636 (Dixon J).
If the ‘report’ were properly in evidence, it does support the proposition that the sign was appropriately designed and located, and that it complied with the Australian Standards and guidelines, so far as these were relevant. Its principal concern, however, is to demonstrate that the alternatives advanced by Ms Donald were unsatisfactory. Yet no research or data is cited as a basis for the opinions the ‘report’ purports to express. There is in the ‘report’ no reference to any body of knowledge about (a) the signage problems created by the presence of a secondary road preceding the entrance to a freeway; (b) investigations about the perceptions and behaviours of drivers in conditions of reduced visibility particularly when dealing with such an intersection; (c) possible solutions to any problems that may arise in such circumstances; or (d) whether these signs in fact addressed any such problems. Instead, the ‘report’ deals with signage conventions, and with what Mr Nash apparently believed drivers would on the one hand expect to see, and on the other would be expected to do.
As one would anticipate of someone who has specialised knowledge of road signage, Mr Nash was familiar with the relevant conventions – namely, that the road authority would erect an advance direction sign at a certain distance ahead of the intersection and then position an intersection direction sign in an appropriate relationship with that intersection – but there was no evidence to underpin his assumption that lay drivers would in like manner consciously take on board such conventions when driving.
At best, Mr Nash’s evidence was that a driver familiar with the road will use ‘many visual cues, other than signs’ and would be ‘familiar with the sequence of signs’. No basis was given for these opinions, although common sense and one’s experience of life form a basis for a reasonably reliable assessment of their reliability. In this context it is interesting to note that Mr Daldry’s evidence was that he did not use the blue ‘Drouin Racecourse’ sign as a visual cue in the way envisaged by Mr Nash; darkness usually accompanied Mr Daldry when he was in the vicinity of that sign, and he did not take any notice of it. Indeed, the presence of the ‘Drouin Racecourse’ sign had not troubled his conscious mind until it was put to him in cross examination.
Nor does the ‘report’ identify what the cues might be, or what effect fog may have on a driver’s perception of them, save to say that foggy conditions ‘make the driving task much more difficult’ and that neither the Standards nor the guidelines provide for signs to be designed differently in areas subject to fog. It does not grapple with the similarity at the two intersections of both the path of the fog line and the signs.
By contrast, the expert report tendered on behalf of Ms Donald does comply with Order 44: it is a detailed document that describes a site inspection, gives examples of similar intersections, and includes the appropriate acknowledgement of the expert witness code, together with a declaration that Ms Donald has made all the inquiries which she believes are desirable and appropriate.
In my opinion, it was open to his Honour to prefer the evidence of Ms Donald to that of Mr Nash. Ms Donald’s evidence, as outlined in his Honour’s judgment, was that:
Had she been responsible for the construction of the intersection ... she would have had an advance direction sign south of McGlones Road. She agreed that each case had to be assessed on its particular merits, but on such a sign, she would have had a marking to indicate a side road at McGlones Road. ... She referred to this as a ‘stub road’, that is a short straight line upon an arrow to indicate a side road before a main freeway turnoff.[30]
[30]Reasons, [69].
The judge was, it seems to me, entitled to accept this evidence as pointing to a practical and satisfactory solution to a problem which Mr Nash viewed as far more difficult than it really was.
In my view, therefore, it was open to his Honour to find that the approach taken by Mr Nash was too rigid. The witness’ unwillingness to acknowledge any defect in the advance direction sign, or to grapple with possible improvements, was, it may well have seemed to the judge, unimpressive. His Honour may also have been unimpressed by Mr Nash’s assumption - made without considering the effect of reduced visibility and, with it, a driver’s primary focus on guides such as the fog line – that a driver in Mr Dykes’ position would probably see other cues.
While it is true that his Honour did not explicitly examine issues of foreseeability, consideration of such issues is implicit in his judgment – as is recognised in the framing of ground 2 of the grounds of appeal. An example of the judge’s implicit consideration of issues of foreseeability is to be found at paragraph [163] of the judgment, where his Honour says:
The advance direction sign made no reference to McGlones Road, notwithstanding its position some short distance to the north. It was distinctly open to drivers descending the hill, particularly in foggy conditions, to reasonably interpret the sign as indicating McGlones Road as the freeway entrance. This was because of the position of the sign just past the intersection, and its similarity to the intersection sign. To that end, the sign was misleading.
If it was distinctly open to drivers to reasonably misinterpret the advance direction sign, then such misinterpretation was reasonably foreseeable.
For these reasons, it was in my opinion open to his Honour, on the evidence called in the trial, to find that by reason of the positioning of, and signage on, the advance direction sign, the Roads Corporation ought reasonably to have foreseen that that sign might so confuse motorists that they might attempt a left turn at McGlones Road, collide with the embankment, and be injured.
It was Mr Dykes’ very familiarity with this road that caused him to be on the lookout for the sign reading ‘Melbourne’ accompanied by an arrow. His failure to see the usual cues leading up to that sign, and becoming disorientated about where he was on the road, are all attributable to a combination of fog, darkness, signage and speed. Mr Nash himself agreed that it was sensible for Mr Dykes to be driving in the fog with headlights on low beam and that the first thing he would see, if a sign was erected above the roadway, would be the bottom of that sign. He was driving too fast, but that was only one cause of his misfortune. It is moreover entirely foreseeable that speed will be a factor which will sometimes increase the difficulties posed by confusing signage; and when the danger of such confusion is further increased by such plainly relevant factors as embankments and dog-leg bends, a judge in the position of his Honour is entitled to conclude that the totality of what happened to Mr Dykes on the morning of 20 March 2001 was foreseeable by the Roads Corporation.
The appellant had a duty to position and design its road signs so as to provide clear and certain directions to motorists. His Honour found that the advance direction sign at the intersection of McGlones Road and Princes Way did not meet the requisite standard. In my opinion, he was justified in coming to that conclusion. He was also justified in concluding that this was a breach of the duty of care owed by the Roads Corporation to users of the road, and that Mr Dykes’ accident was not only a consequence, but a foreseeable consequence.
The appellant says that this case is similar to that considered by the High Court in Roads and Traffic Authority v Royal & anor.[31] In that case, the Authority had failed to remove a hazard at an intersection. The Court held that, even though the intersection in question had the propensity to mask an oncoming vehicle, thereby creating a hazard, in the circumstances of that case the two drivers involved in the collision did see each other, and so any breach of duty by the Authority did not cause the accident. In the leading judgment, Gummow, Hayne and Heydon JJ accepted that the Authority was correct in submitting that the majority of the Court of Appeal below did not specifically deal with the causation of the particular accident. While the Authority may have been in breach of its duty for not dealing with the danger created by the intersection, that problem ‘had nothing to do with the collision in question.’ Their Honours observed that:
In short, even if it could be said that the appellant's breach of duty ‘did materially contribute’ to the occurrence of an accident, ‘by creating a heightened risk of such an accident’ due to the obscuring effect of one vehicle on another in an adjoining lane, it made no contribution to the occurrence of this accident.[32]
[31][2008] HCA 19.
[32]Ibid [25].
Among the several causal factors identified in Royal, the majority included the failure by the plaintiff ‘to use his very good knowledge of the intersection to drive sufficiently carefully to avoid the risk of a collision.’[33] In the present case, the appellant submits that Mr Dykes likewise had a good knowledge of this road, and his mistake about where he was on it was the result of his own actions, perceptions and knowledge, not the result of any breach by the Roads Corporation.
[33]Ibid [29].
I do not agree. For the reasons I have already set out, the trial judge was entitled to find that the advance direction sign was a cause of this accident and the appellant breached its duty of care in erecting it as it did. Unlike the design of the intersection in Royal, the sign in the present case was clearly an operative cause.
Grounds 2, 3 and 4 of the grounds of appeal therefore fail.
Ground 5 – The application of the ‘but for’ test and the trial judge’s path of reasoning.
Ground 5 was that when considering causation, the trial judge found that ‘but for the presence of the (advance direction) sign, it was probable the transport accident would not have occurred’, and in so holding he failed to disclose a path of reasoning as to how any breach was a cause of the accident, in that it was necessary for his Honour to consider the presence of both signs and the capacity for the motorist to confuse one for the other.
The issue of causation, and the use of the ‘but for’ test, was examined at length by the High Court in March v Stramare (E & MH) Pty Ltd.[34] That case was also concerned with a road traffic accident. The second respondent had parked a truck owned by the first respondent along the centre line between two southbound lanes, so that one half of the truck was in the lane down which the appellant was travelling. It was 1.00am on a Friday, and the road was moderately well illuminated. The truck was parked in this manner to enable the second respondent to load fruit and vegetables. The truck’s parking lights were on, and its orange and yellow hazard lights were flashing. The trial judge found that they were visible to approaching traffic. However, Mr March was intoxicated, with the result that his ability to appreciate his own speed and his ability to see moving objects was impaired. He was also speeding. He collided with the rear of the truck. The trial judge held that the second respondent should have foreseen that the parked truck, even though well lit, might provide a danger to other traffic. His Honour also found that the duty of care was owed not only to careful drivers, but also to careless and drunken ones. The second respondent was held to be guilty of negligence and the first respondent to be vicariously liable, while Mr March was adjudged to be guilty of contributory negligence.
[34](1991) 171 CLR 506.
On appeal, the majority of the Full Court held that the breach of duty by the respondents was inoperative, either because it was not the sole cause of the accident, or because, while a cause, it was not the real cause. The High Court disagreed. It held, unanimously, that the appeal should be allowed. While McHugh J expressed the view that, in general, the ‘but for’ test should be seen as the test of legal causation, with the damage suffered by Mr March being fairly within the risk created by the respondent’s breach of duty, the other members of the bench were of the opinion that that test should not be the exclusive test of causation in negligence cases. This was particularly so where legislation had been enacted to allow apportionment of liability between wrongdoers. The common law has traditionally treated the question of the cause of an event as a question of fact to be determined by applying common sense to the facts of each case. As Deane J noted:
… the question whether conduct is a ‘cause’ of injury remains to be determined by a value judgment involving ordinary notions of language and common sense.[35]
However, his Honour introduced the following note of caution:
The other further matter is that it should be apparent that nothing in what is written above should be read as indicating a view that a plaintiff is entitled to recover compensation under apportionment legislation in circumstances where his or her own negligence was, as a matter of ordinary common sense, the sole real cause of the accident. Even under apportionment legislation, it is an element of the tort of negligence that the injury sustained by the plaintiff be caused by the defendant's breach of duty. In a case where, as a matter of ordinary common sense, the ‘sole’ cause of the plaintiff's injury was his or her own negligence, that element of the tort will be lacking.[36]
[35]Ibid 524.
[36]Ibid.
Although McHugh J expressed a preference for using the ‘but for’ test as the exclusive test of causation, his Honour acknowledged that it may not be a satisfactory way of dealing with unusual cases where there may be two or more separate and independent events, working simultaneously, each of which was sufficient to cause the damage. In such a case, each wrongful act may need to be treated as an independent legal cause. His Honour also considered the significance of the approach taken by the law towards questions of causation and that used in scientific and philosophical theories. While a particular act or omission may be a necessary condition of the damage in a scientific and philosophical sense, it may not be a legal cause of that damage. Nevertheless, the use of notions such as common sense to determine whether an act is viewed as a legal cause has, in his Honour’s opinion, its limitations. It ‘appeals to extra-legal values to determine “hard cases”’ and results in ‘invitations to use subjective, unexpressed and undefined extra-legal values to determine legal liability.’[37]
[37]Ibid 533.
Even though the majority held that the ‘but for’ test was not the exclusive test for causation, as Mason CJ observed in his judgment with which the majority agreed, the test has an important role to play when applied as a negative criterion of causation. However, that role should be qualified:
The ‘but for’ test gives rise to a well-known difficulty in cases where there are two or more acts or events which would each be sufficient to bring about the plaintiff's injury. The application of the test ‘gives the result, contrary to common sense, that neither is a cause’ … . In truth, the application of the test proves to be either inadequate or troublesome in various situations in which there are multiple acts or events leading to the plaintiff's injury … . The cases demonstrate the lesson of experience, namely, that the test, applied as an exclusive criterion of causation, yields unacceptable results and that the results which it yields must be tempered by the making of value judgments and the infusion of policy considerations.[38]
[38]Ibid 516.
The Court held in March v Stramare that the second respondent’s act of parking the truck as he did created a situation of danger, with the risk that a careless driver would collide with it. That risk was plainly foreseeable. Therefore, the respondents’ negligence was a continuing cause of the accident, notwithstanding the appellant’s contributory negligence.
All the members of the Court agreed that the duty of care owed by the two respondents was to other road users, whether or not they were taking reasonable care for their own safety. In the words of Deane J:
It is clear that the second respondent was in a relationship of proximity with other users of the road on which he left the truck. That relationship gave rise to a duty to take reasonable care to avoid foreseeable injury to such other road users. That relationship and that duty of care were not confined to persons who were careful and sober but extended to all foreseeable users of the road, including bad and inattentive drivers and those whose faculties were impaired either naturally or by reason of the effect of alcohol.[39]
[39]Ibid 520.
Indeed, McHugh J emphasized that the risk of:
… an intoxicated driver, driving at excessive speed and failing to keep a proper lookout, … [colliding] with the parked truck was one of the risks which the defendants were obliged to reasonably foresee and guard against. Thus, the collision which occurred was ‘the very kind of thing which [was] likely to happen’ if there was a want of care on the part of the defendants …[40]
[40]Ibid 537.
The appellant submits that the present case is one where a common sense approach should take precedence over the ‘but for’ test. It reiterates that Mr Dykes’ confusion, and therefore the accident, was ‘a function of the respondent’s perceptions and actions’ in mistaking the advance direction sign for the intersection sign.
I disagree. His Honour’s reference to the ‘but for’ test was not the only means to determine whether or not the sign could be excluded as a cause. His Honour also turned his mind to whether, as a matter of common sense, it was so connected with the respondent’s loss as to make it a legal cause. In my view it was open to the trial judge to find, as a matter of common sense, and based on the evidence of Mr Dykes, that his decision to veer left when he did was caused in part by seeing the lower part of the advance direction sign – a sign that in the relevant respect was identical to the intersection sign and placed, as the latter was, to the north of an intersection of similar configuration.
There is here, it seems to me, a clear path of reasoning. I have endeavoured in the course of this judgment to set it out.
In my opinion this ground must also fail.
Conclusion
For the reasons set out above, the appeal must in my opinion be dismissed.
HANSEN JA:
I agree with Harper JA. I also agree with the separate reasons of Hargrave AJA.
HARGRAVE AJA:
I have had the advantage of reading a draft of the reasons for judgment of Harper JA.
I agree that the appeal should be dismissed.
Specifically, I agree that the content and positioning of the advance direction sign, when combined with the manner in which the fog line veered to the left at the intersection of Princes Way and McGlones Road, created a foreseeable risk of significant confusion to road users in conditions such as the dark and foggy conditions which prevailed at the time of the accident. Accordingly, the respondent breached its admitted general duty of care to road users.
The critical question was whether the respondent’s breach of duty was a sufficiently material cause of the accident, or whether the sole cause was Mr Dykes’s own conduct in driving too fast in the prevailing dark and foggy conditions. The trial judge accepted that Mr Dykes was driving too fast in all the circumstances, and that this conduct was a material cause of the accident. However, the trial judge rejected the respondent’s argument that this was the sole cause of the accident, and apportioned only one-third responsibility to Mr Dykes.
The trial judge made a series of essential factual findings which supported his
conclusions. If those factual findings are correct, the appeal must fail. In his reasons, Harper JA has explained why those findings were open to the trial judge. I agree that they were open, and should not be disturbed on appeal. The trial judge had the benefit of a view of the relevant area, and the benefit of seeing and hearing the witnesses give their evidence by reference to the available photographic evidence. This Court does not have that benefit. Further, the trial judge described Mr Dykes as an honest and impressive witness who gave his evidence directly and made concessions where appropriate. In these circumstances, in the absence of some incontrovertible fact which dictates a different result, or there being compelling inferences making the findings glaringly improbable, this Court should not interfere with those factual findings.[41]
[41]Fox v Percy (2003) 214 CLR 118, [28]-[29].
In order to more clearly comprehend the significance of the factual findings, it is helpful to refer to diagrams derived from the evidence, which are annexed to these reasons, as follows:
(1) Annexure A – this annexure depicts the two relevant road signs:
· A1 – the advance direction sign.
· A2 – the direction sign appearing to the north of the entrance to the freeway (the ‘freeway entrance sign’).
(2) Annexure B – a depiction of the McGlones Road intersection, relevant road markings and the position of the advance direction sign at the time of the accident.
(3) Annexure C – a depiction of the McGlones Road intersection, relevant road markings and the position of the advance direction sign following changes made to the intersection after the accident. This annexure is based on a photograph which formed the basis of cross-examination of Mr Dykes (as referred to below) and the evidence of Mr Jones.
(4) Annexure D – a depiction of the freeway entrance, relevant road markings and position of the freeway entrance sign.
The critical factual findings which support the trial judge’s conclusions are as follows.
First, that the combination of darkness and thick fog caused Mr Dykes to focus his concentration on the white fog line. I would add that, although no express finding was made to this effect, the trial judge apparently accepted that this was a reasonable approach for Mr Dykes to adopt in the prevailing conditions. That was open as a matter of common sense. The visibility was so low that the only safe guide for Mr Dykes to follow was the fog line, while he waited for the expected sign indicating the entrance to the freeway.
Second, that the fog line commenced veering to the left immediately before the McGlones Road intersection. This finding was open to the trial judge. It was consistent with the evidence of both Mr Dykes and Mr Jones as to the road markings at the time of the accident, as depicted in annexure B.
Third, that Mr Dykes saw the fog line veer to the left and then, ‘at about that same time’, he saw the bottom part of the advance direction sign. This finding involved acceptance by the trial judge of Mr Dykes’s evidence that he ‘noticed the fog line veer off to the left’, that ‘at that same instant’ he looked up and noticed the bottom portion of the advance direction sign ‘light up’ and that, as a result, he thought he had reached the entrance to the freeway.
Fourth, that as a result of his combined observations, Mr Dykes turned sharply to the left and entered McGlones Road at a speed too fast for that turn. As a result, his vehicle hit the embankment.
Fifth, that prior to turning sharply to the left, Mr Dykes was travelling in the left-hand portion of the northbound carriageway on Princes Way. This particular finding was the subject of much contention on appeal. It was submitted on behalf of the respondent that it was inconsistent with evidence given by Mr Dykes in cross-examination that he was ‘already in the left-hand lane’, and thus committed to making his left turn or veering left, before he saw the bottom half of the advance direction sign light up. For the reasons given by the trial judge and Harper JA, I accept that the evidence given by Mr Dykes in this regard was the result of confusion caused by questioning by counsel for the appellant at trial, on the unstated assumption that the road markings at the McGlones Road intersection were those depicted in the photograph on which annexure C is based. As stated above, annexure C depicts the road markings after they had been changed following the accident. At the time of the accident, as depicted in annexure B, there was no left-hand lane, no arrows indicating a sharp turn to the left and the fog line followed a materially different course.
Sixth, taking the evidence as a whole, that Mr Dykes had not reconstructed his evidence. That finding accords with common sense. Mr Dykes’s evidence about the fog line is consistent with that of Mr Jones and, at 80 kilometres per hour, it is likely that he would have observed the fog line veer to the left at about the same time as he saw the bottom half of the advance direction sign light up. In my opinion, the only real basis for challenging Mr Dykes’s evidence on the ground of reconstruction was the confusing cross-examination on the basis of the photograph on which annexure C is based. The trial judge was correct to reject that challenge.
Seventh, that the lower portion of the advance direction sign and the freeway entrance sign were substantially the same. Both were positioned to the north of the relevant intersection, both were green with reflective markings, both had the word ‘Melbourne’ in the same script and an adjacent 45 degree directional arrow, both had an ‘M1’ marking and both were of a similar if not identical size. Accordingly, even to a road user who was familiar with the area, such as Mr Dykes (and recognising that there were some material differences between the two signs, their positioning and their surrounding areas) the trial judge found that the advance direction sign had the capacity to mislead and did mislead Mr Dykes. As to the capacity for the advance direction sign to be misleading, I see no error in the trial judge preferring the evidence of Ms Donald over that of Mr Nash for the reasons he gave. Nor do I see any error in the trial judge acting on the evidence of Mr Daldry and Ms Stewart. Further, the judge was entitled to exercise his own common sense and judgment in making his finding that the lower portion of the advance direction sign had the capacity to be misleading in circumstances such as those which prevailed on the morning of the accident.
---
ANNEXURE A - SIGNS
A1 – Advance Direction Sign
A2 – Freeway Entrance Sign
ANNEXURE B – ROAD LAYOUT AND MARKINGS AT TIME OF ACCIDENT
ANNEXURE C – CHANGES TO ROAD LAYOUT AND MARKINGS
ANNEXURE D – ENTRANCE TO FREEWAY
6
0