Royal v Smurthwaite

[2007] NSWCA 76

Appeal Outcome: Appeal allowed - Roads and Traffic Authority v Royal [2008] HCA 19 - 14 May 2008

New South Wales

Court of Appeal

CITATION:	ROYAL v SMURTHWAITE [2007] NSWCA 76
HEARING DATE(S):	6 and 7 February 2007
JUDGMENT DATE:	4 April 2007
JUDGMENT OF:	Santow JA at 1; Tobias JA at 104; Basten JA at 105
DECISION:	(1) Appeal allowed in part; (2) (a) Set aside the order of the trial judge dismissing the appellant’s cross-claim against the RTA, and; (b) In lieu thereof, order that the RTA pay the appellant one-third of the judgment entered against him in favour of the first respondent; (3) Set aside the costs order made in the District Court and in lieu thereof order that; (a) the appellant pay the first respondent’s costs of the trial and of the appeal; (b) the RTA pay to the appellant; (i) one-third of the costs payable by the appellant under para (a) above; (ii) the appellant’s costs of the trial relating to his cross-claim against the RTA; (4) Order that -; (a) the appellant pay two-thirds of the first respondent’s costs of the appeal, and ; (b) the RTA pay one-third of the first respondent’s costs of the appeal.
CATCHWORDS:	TORT – Contributory negligence – liability of RTA for design of highway intersection which had resulted in a number of accidents – collision between two cars at intersection where driver of one was held to be negligent with contributory negligence on the part of the other driver – no interference with that apportionment – RTA liable for defective design in conjunction with primarily liable driver
LEGISLATION CITED:	Motor Accidents Act 1988 (NSW), s 45 Motor Accident Compensation Act 1999 (NSW), ss 3, 80, 83, 123, 128, 129, Ch 4 Pt 4.3, Ch 5
CASES CITED:	Almeida v Universal Dye Works Pty Ltd (No. 2) [2001] NSWCA 156 Bennett v Minister of Community Welfare (1992) 176 CLR 408 Brodie v Singleton Shire Council (2001) 106 CLR 512 Chapman v Hearse (1961) 106 CLR 112 Commissioner of Main Roads v Jones (2005) 215 ALJR 418 Ghunaim v Bart [2004] NSWCA 28 Gould v Vaggelas (1983-85) 157 CLR 215 Griffiths v Kerkemeyer (1977) 139 CLR 161 Haber v Walker [1962] VR 339 Herning v GWS Machinery Pty Ltd [2005] NSWCA 263 Herning v GWS Machinery Pty Ltd [No. 2] NSWCA 375 Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 Reeves v Metropolitan Police Commissioner [1999] 3 All ER 897 Sandersoon v Blyth Theatre Co [1903] 2 KB 533 Sved v Council of the Municipality of Woollahra (1998) NSW Conv R 55-842 Watts v Turpin (1999) 21 WAR 402 Wilson v McLeay (1961) 106 CLR 523
PARTIES:	Grant Royal - Appellant George Smurthwaite - First Respondent Roads and Traffic Authority of NSW - Second Respondent
FILE NUMBER(S):	CA 40093/06
COUNSEL:	S.J. Harben SC/S.B. Lowe - Appellant P.R. Hennessy SC/M.G. Gilbert - First Respondent J. Maconachie QC/T. McKenzie - Second Respondent
SOLICITORS:	Rankin Nathan, Newcastle - Appellant Stacks the Law Firm with Goudkamp Mahoney, Port Macquarie - First Respondent McCabe Terrill Lawyers, Sydney - Second Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 35/02
LOWER COURT JUDICIAL OFFICER:	DCJ Phelan
LOWER COURT DATE OF DECISION:	7 February 2006

CA 40093/06
DC 35/02

SANTOW JA
TOBIAS JA
BASTEN JA

4 April 2007

Grant ROYAL v George SMURTHWAITE & Anor

Judgment

1 SANTOW JA:

INTRODUCTION
This appeal arises from a two-car motor vehicle collision occurring at an intersection of a busy four-lane highway in a rural area of New South Wales. The appellant, Mr Royal, collided with the first respondent, Mr Smurthwaite’s car. Immediately before, Mr Smurthwaite, having first stopped at the stop sign at Bago Road, proceeded to drive across the Pacific Highway in a south-easterly direction at the area designated for such a crossing. Mr Royal was proceeding northwards along that highway, his cruise control set at 105 kph, when the collision occurred.

2 There is an issue on appeal as to whether the Roads and Traffic Authority of New South Wales (“RTA”) should have been held liable as a joint tortfeasor, by reason of what the appellant contends was the negligent design of the crossing.

3 Phelan DCJ, the trial judge, concluded that the appellant was two-thirds liable in negligence for the serious injuries suffered by Mr Smurthwaite, whilst Mr Smurthwaite was held to be contributorily negligent to the extent of one-third. It is only Mr Royal who now challenges that apportionment though not that he was negligent, seeking to substitute 20:80 apportionment.

4 However, Mr Royal, in relation to his appeal from the dismissal of his cross-claim against the RTA, challenges the finding by the trial judge that the RTA, the second respondent, was not liable at all as a joint tortfeasor. Mr Royal seeks to substitute an order that the RTA contribute to Mr Royal 80% of the amount ordered to be paid by Mr Royal to Mr Smurthwaite, together with 80% of the costs of Mr Smurthwaite ordered to be paid by Mr Royal with respect to the trial.

5 As Basten JA puts it, whose judgment I have had the advantage of reading in draft, the overall effect of the appellant’s challenge to the assessment of contributory negligence and to the RTA’s liability would be, if successful “to reduce his liability to 4%, by claiming that the plaintiff should bear 80% of the responsibility for the accident and that the RTA should contribute 80% of his (the defendant’s) proportion”.

6 Much of the argument on appeal concerned the second matter of liability, namely, whether the RTA should be required to contribute the 80% above mentioned, as having been negligent in the design of the crossing.

7 Mr Royal’s appeal against Mr Smurthwaite also extended to damages. The trial judge assessed damage at just over $1.3 million. The judgment in favour of Mr Smurthwaite, after allowing for one-third contributory negligence, became $871,019.50. The appellant contends that the trial judge erred in allowing past out-of-pocket expenses in the amount of $13,902.63, being the costs of a relative visiting the first respondent in hospital, contending that such allowance was prohibited by Chapter 5 and in particular s83 of the Motor Accident Compensation Act, 1999 (NSW) (“MACA”).

8 Mr Royal also contends that the trial judge erred in

(a) allowing the wrong amount for economic loss, by basing it not on his actual earnings but on higher “comparable earnings” of tree-fallers employed by the company which took over his employer and who would thus have probably employed him but for his injury, so producing an amount “ which was manifestly excessive in the circumstances ”; and

(b) in ordering Mr Royal to pay to Mr Smurthwaite the costs which Mr Smurthwaite was required to pay to the RTA with respect to the trial, such having been ordered by way of Bullock Order.

SALIENT FACTS

9 The following outline of the events that happened is essentially undisputed, save where indicated in [14] below.

10 The first respondent was injured on 12 March 2001 in a motor vehicle accident at Herons Creek, a rural area of New South Wales. The first respondent was driving his motor vehicle in an easterly direction across the Pacific Highway from a position guarded by a stop sign at the intersection of Bago Road and the Pacific Highway. There was a “dip” on the Pacific Highway about 210 to 300 metres south of the intersection. The appellant was driving his motor vehicle north on the Pacific Highway. The vehicles collided at the RTA designed and constructed intersection crossing Pacific Highway. The first respondent suffered serious injury as a result of the collision.

11 As north-bound Pacific Highway traffic approached the intersection there were two principal lanes of travel. There was also provision for two south-bound lanes of traffic on the Pacific Highway with the north-and-south-bound traffic separated by a distance of about 250 metres. About 50-100 metres before the intersection a left-hand turn lane commenced to allow north-bound traffic to turn left into Bago Road. About 210 metres south of the intersection and 115 metres south of the point of impact, a right-hand turn lane commenced to allow north-bound traffic to turn right into Boyds Road (see figure 2 at page 10 of the report of Roger Stuart-Smith dated 11 April, 2003 at Blue, 737 and the parties’ annotated diagram of the motor vehicle accident added to Blue, 328). Boyds Road was directly opposite Bago Road, joining the north-bound and south-bound carriageways. The impact occurred in the right-hand turn lane near to the mouth of Boyds Road; the point of impact is shown on Blue, 328 (hatched orange).

12 The second respondent RTA had the care, control and management of the roadway upon which the motor vehicle accident occurred. The second respondent had also redesigned the relevant intersection, the construction of the redesigned intersection being completed in about 1993 (Red, 32P). After this accident, some further, but not major adjustments were made to move the “stop” sign a little closer to Boyds Road to improve the vision from that sign of on-coming north-bound traffic.

13 Both drivers, Mr Royal and Mr Smurthwaite, were familiar with the road and intersection. Mr Smurthwaite in his vehicle first stopped at the stop sign before crossing, the stop sign being some 21 metres before the point of impact and at the crest of the hill at the intersection of the Highway with Bago Road. There appear to have been four vehicles on the highway in the vicinity of the intersection when Mr Smurthwaite arrived at it.

14 Mr Smurthwaite then set about crossing the through lanes of the Pacific Highway from Bago Road (intending to enter Boyds Road on the opposite side of the Highway). Visibility was good from the stop sign at Bago Road. However it was possible that certain highway traffic could obscure traffic in the other lanes, given the dip referred to in [10] above. Mr Royal was travelling north on the Highway. There were two north-bound lanes and a turning lane left into Bago Road approached via a long sweeping curve in the road and a right-hand turning lane into Boyds Road. The appellant was driving using cruise control set at 105 kph. There is a dispute as to whether Mr Royal just prior to the collision had been “cutting the corner” by driving into the right-hand turning lane (as the two other drivers Relf and Hubbard suggested), or whether he had swerved to avoid Mr Smurthwaite and then braked. Mr Royal collided head-on with the side of Mr Smurthwaite’s vehicle, towards the rear door.

15 Mr Smurthwaite suffered serious injuries, including a profound head injury and major injuries to his right side, and hip, which required repeated surgery. He has restricted mobility and continuing pain in his hip and knee. He had, before the accident, worked as a tree-faller in the forestry industry nearby.

16 Mr Smurthwaite could give no explanation of why he proceeded in front of oncoming traffic from the stop sign in Bago Road. However, he had no recollection of the accident because of the injuries he suffered (Red, 56K). The trial judge speculated that Mr Smurthwaite might have assumed that Mr Royal, in merging into the right turn lane, would have to slow down significantly before he could turn right (Red, 57O), though also observing that this “scenario still posed … a risk of collision”.

17 Senior Constable Bentley was the crash investigator for the incident. His photos are Exhibit 6 at Blue, 1220. These identify the appellant’s skid marks one of which commenced some 25 metres before the point of impact and the other of which commenced 16 metres before that point.

The primary judgment

18 There were two other drivers who gave evidence of what they witnessed. Mr Relf was a driver travelling behind Mr Royal along the Pacific Highway. Mr Hubbard was travelling behind Mr Smurthwaite.

19 The trial judge accepted Mr Relf’s evidence as to Mr Royal’s speed and driving behaviour (Red, 48K). He also accepted Mr Hubbard’s account (which was consistent with Mr Relf, essentially to the effect that the appellant had been cutting the corner and braked too late to avoid the collision), noting that it accorded with all experts save for Mr Griffiths.

20 The expert evidence from Mr Hennessy (expert for Mr Smurthwaite), including his analysis of the skid marks on the road, confirmed the views of Mr Relf and Mr Hubbard as to the relevant events (Red, 55H). Only the expert, Mr Griffiths, (for the appellant) supported the appellant’s version of events (Red, 55J). The other experts were Mr Keirnan (for the second respondent) and Mr Stewart-Smith (for the appellant) and Mr Johnson (for the first respondent).

21 The trial judge found that the overwhelming evidence was that the appellant was the primary cause of the accident (Red, 55P). The respondent was held to be contributorily negligent to the extent of one-third (Red, 585).

22 The appellant was described by the trial judge as having repeatedly contradicted himself as to when he had first seen the first respondent, which lane he was in and how he had reacted (Red, 55Q). The key variations in the accounts went to whether the appellant had been “cutting the corner” by driving in the right-hand turning lane (as Mr Hubbard and Mr Relf suggested), whether he had swerved into that lane to avoid the first respondent, and when he had first braked.

23 Given these contradictions, the trial judge considered he could place almost no reliance on the appellant’s evidence (Red, 55S).

24 The trial judge held that the appellant could have avoided the accident in a number of different ways; in particular he should have deactivated cruise control earlier and applied his brakes (Red, 56C). The appellant also could have either gone behind or in front of the first respondent’s car (as suggested by Mr Relf, the driver travelling behind the appellant along the Highway) (Red, 56F).

25 The trial judge observed that it was consistent with the evidence of Mr Hubbard that when the first respondent took off from his stationary position the appellant’s car had not come into sight but was about to (Red, 56W). It may have been the case that there was nothing in his vision when the first respondent entered the intersection (Red, 57G).

26 The trial judge found that although the intersection was a known “black-spot” with a number of serious accidents including some fatalities and although the RTA had taken some (limited) steps to deal with the problem (Red, 58N), there was no negligence on its part which was causative of the accident (Red, 59H).

27 Significant issues as to damages were agreed between the parties (Red, 63 H). The trial judge accepted that the first respondent suffered from ongoing depression and required considerable ongoing nursing, as described by his wife (Red, 62H, P).

28 The trial judge made the following awards:

· $280,000 damages (out of a maximum of $341,000) reflecting pain and suffering and reduced enjoyment of life (Red, 63K) (not challenged);

· past economic loss for 172 weeks from 12 March 2001 as per Red, 63Q-Y; this is challenged as is future economic loss on the ground that the trial judge erred in wrongly allowing an increased amount for compensable earnings, based on the evidence of a Mrs Hoffman (who had acquired the tree falling business Bartletts which had, pre his accident, employed the first respondent);

· domestic assistance for 195 weeks at 21 hours per week and continuing in the future at 21 hours per week (see Red, 64K) (not challenged);

· past out of pocket expenses of $13,902.63 (Red, 64T) (challenged on the basis that these were wrongly allowed for amounts expended by a relation visiting and attending upon the first respondent when in hospital, on the basis that such an award was prohibited by Ch 5 and s83 of the MACA).

29 In dismissing the case against the RTA, the trial judge gave very limited reasons which I quote in full below:

“There remains the case against the second defendant. The evidence I think clearly establishes that this part of the roadway was seen by the RTA as a ‘black spot’. There had been a number of serious accidents, including some fatalities, over the period of time that the highway had been upgraded.

The RTA had taken steps from time to time to deal with the problem and the chief problem seem to have been the one that was demonstrated in Mr Griffith’s report and that is the difficulty of somebody stopped facing east at the Bago intersection being in a position of not being aware of traffic behind other cars proceeding north, particularly in the left-hand lane.

It is noteworthy that following the changes to which I made reference earlier there is said to have been fewer incidents of serious accidents at the intersection, that is by broadening the exit road for westbound traffic and bringing the median strip and the stop sign and line closer to the intersection.

Whilst I conclude that in a number of respects more could have been done by the RTA to improve this intersection, in the end result I am not satisfied that the accident represented a failure by the RTA in the circumstances of this case and thus there will be a verdict for the second defendant.”

30 To that brief statement of reasons I should refer briefly to the judgment on costs handed down 1 May 2006. Mr Harben, SC for the appellant submitted that this judgment, being in respect of costs only and following the judgment on liability, could not properly be resorted to as additional reasons with respect to denying RTA’s potential liability. I agree with that submission. In dealing with the case against the RTA I have not taken that part of the costs judgment into account.

31 The trial judge awarded costs in favour of the first respondent and in addition made a Bullock Order in favour of the first respondent against the appellant in respect of the costs of the RTA which is also the subject of the appellant’s appeal.

Grounds of Appeal

32 As to the first respondent’s claim against the appellant:

(1) The trial judge erred in not finding that the first respondent was the principal cause of the subject motor vehicle accident.

(2) The trial judge erred in finding that despite the first respondent entering onto a divided highway into the path of high-speed traffic including the appellant that he was only one third to blame for the subject motor vehicle accident.

(3) The trial judge erred in wrongly concluding that the expert Mr Griffiths was the “lone piper” with regard to the interpretation of skid marks on the highway and their significance and ignored the evidence given by other witnesses including the experts in the case.

(4) The trial judge erred in relying on the statements of witnesses Mr Rolf and Mr Hubbard which had been admitted for a limited purpose only and the trial judge failed to address in any way the difference between those statements and the witnesses’ oral evidence.

(5) The trial judge erred in allowing past out of pocket expenses in the amount of $13,902.63 (being the costs of a relative visiting the first respondent in hospital) which were prohibited by s83, MACA.

(6) The trial judge erred in allowing the wrong amount for comparable earnings in his calculation for past and future economic loss which produced an amount which was manifestly excessive in the circumstances.

(7) The trial judge erred in ordering the appellant to pay to the first respondent those costs which the first respondent was required to pay to the second respondent with respect to the trial.

33 As to the appellant’s cross-claim against the second respondent the trial judge erred in failing to find the second respondent liable:

(1) The trial judge failed to find that when the second respondent redesigned the subject intersection as a cross-intersection to enable traffic (including the first respondent) to directly cross the highway, that this made it foreseeably dangerous.

(2) The trial judge failed to find that the second respondent knew that such an intersection was dangerous and failed to act to remedy it.

(3) The trial judge failed to find that in view of the configuration of the subject intersection the second respondent should have redesigned the intersection to prevent persons such as the first respondent from attempting to directly cross the highway in the path of oncoming high speed traffic.

(4) The trial judge failed to find that the physical layout of the intersection designed and maintained by the second respondent led the first respondent and/or the appellant to misjudge their situations and caused or contributed to the subject collision.

34 Further, the trial judge erred in failing to give adequate reasons for dismissing the appellant’s cross claim against the first respondent.

35 In summary, the appellant also challenges the addition of $13,902.63 awarded for out of pocket expenses, seeks reduced earnings figures for the calculation of economic loss (with superannuation reduced accordingly), seeks a reassessment of contributory negligence by increasing it to 80%, seeks to render the RTA a joint tortfeasor to 80% and seeks modified costs orders.

DISPOSITION
Appellant’s appeal relating to contributory negligence

36 I consider that the principal issue in this appeal is not whether there is any basis for reapportioning liability as between Mr Royal and Mr Smurthwaite from the two-thirds/one-third determined by the trial judge. There is as I will explain, no basis for doing so as the evidence clearly enough reveals. I refer here first to the admissions of Mr Royal under cross-examination carefully recorded by the trial judge. These, coupled with the evidence of Mr Relf and Mr Hubbard, leave no basis for reapportionment in terms of the causal potency of the contributions of each of Messrs Royal and Smurthwaite to the accident. But in so concluding, I put to one side the RTA. It must be remembered that Mr Smurthwaite does not seek to challenge the attribution to him of one-third responsibility in contributory negligence. It is the appellant that seeks to do so, by increasing it to 80%. But because the appellant concentrates much of his attack upon the exoneration of the RTA from any causal responsibility for the accident, that issue must be squarely faced. However, before doing so, I need to consider more closely the role of Mr Royal in the accident.

37 I do so, bearing in mind the deference required to findings on apportionment (see, for example, Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529) though a lesser deference is required to a finding of contributory negligence (Ghunaim v Bart [2004] NSWCA 28). The only real basis put forward by Mr Royal as appellant for disturbing the apportionment against him was his reliance on the submission that the maximum available time for him to act or react was only 2.8 to 3.5 seconds. Mr Royal relies on this to mitigate if not remove any criticism of his driving behaviour.

38 That submission was based upon Senior Constable Bentley timing vehicles crossing the intersection and obtaining a range of 2.8 to 3.5 seconds. The expert Mr Griffiths similarly timed the vehicles crossing the intersection and obtained a range of 3.0 to 3.5 seconds. From this, Mr Royal argues that with Mr Smurthwaite’s vehicle travelling much slower than his, the opportunity and ability to either stop, slow or swerve available to Mr Smurthwaite was much greater than to him. The appellant complains that the trial judge “did not seem to address that in his judgment either but simply concluded, on the basis of the Appellant’s inconsistencies in his evidence, his insistence of his right of way and his failure to de-activate cruise control earlier (within the time frame) that this driving behaviour meant that he was largely responsible for the accident”. It is said that “this with respect ignores the grossly negligent behaviour of the First Respondent which was the immediate source of the potential collision” (Orange, 26).

39 Based upon this time dimension, the appellant then seeks to refute the trial judge’s conclusions set out below, namely that the appellant:

(a) should have deactivated cruise control long before he did;

(b) should have applied the brakes;

(c) could have gone round behind Mr Smurthwaite; and

(d) could probably have gone round in front of Mr Smurthwaite if he had continued on.

40 The conclusion, quoted below, then introduces the RTA as the source of “the real culprit”, being “the road geometry”, though interestingly the focus seems to be on Mr Smurthwaite being misled by the road geometry; that hardly exculpates Mr Royal. No doubt this reflected the appellant’s forensic dilemma. Challenging the appellant’s responsibility at all suggested inconsistency. For how then could the appellant establish in the alternative a shared liability or responsibility between himself on the one hand and the RTA on the other?

41 I set out the relevant part of the submission below:

“The real culprit is the road geometry. The intersection being at a crest or gradient, with approaching highway traffic rounding a curve and also travelling through a dip, meant that the intersection's physical layout created a real potential for misjudgement to occur. Misjudgement is consistent with and explanatory of the First Respondent being an experienced driver but making the gross elementary mistake of driving across the face of high speed oncoming traffic. Causatively, some deception must have been in play and the road geometry is the culprit.”

42 The appellant’s challenge has to somehow overcome the concessions in cross-examination elicited from Mr Royal and the findings which result from those concessions. The appellant attempted to do so by hypothesising the timeframe limited to 2.8 to 3.5 seconds to which I have referred. The fundamental problem for the appellant is two-fold. First the findings against him were based upon what he conceded in cross-examination. Second, the timeframe was never reliably established to be no more than 3.5 seconds.

43 I shall start with the concessions made by Mr Royal after a lengthy cross-examination, parts of which are quoted by the trial judge; Red, 37-47. That cross-examination concedes that “had you not insisted upon your right of way and had you accepted that cruise control ought to be deactivated you could simply have pulled up before you got to the intersection” (Black T, 355N-P). That concession was preceded by Mr Royal accepting that doing the best he could, he saw Mr Smurthwaite’s vehicle move off (from the stop sign) when Mr Royal was about 150 metres back from the intersection (Black T, 355J-M).

44 He then concedes that he was at the critical time in the right-hand turn lane (Black T, 356I-J), being the turning lane for turning right into Boyds Road. That was in breach of the road rules since his intention was to cut the corner trying to straighten the curve in the road. This Mr Relf’s evidence confirmed, based upon his observation from his car just behind Mr Royal; Red, 50T and Mr Relf’s examination in chief Black T, 100U-Y, 101X-102V and 102Q-T (“I’d describe it as straightening the road, like I mean there’s bends in the road and to straighten the road out”). Mr Royal was all the time maintaining his speed at around 105 to 110 kph in an area where the speed limit was 100 kph and the recommended speed given the presence of the dangerous intersection was 80 kph. Mr Relf was some three to four seconds behind Mr Royal and had a clear view of him (Black T, 102C-E). Mr Relf estimated Mr Royal’s speed at around 110 kph; Red, 49M. As the trial judge observes, Mr Royal conceded he knew that to use the right-hand turn lane as if he was going to travel straight ahead was something he was not entitled to do (Red, 47L-N).

45 The earlier stated concession bore out his capacity to have pulled up before he arrived at the intersection and thus to have obviated the collision. This, coupled with his insistence on maintaining cruise control for fuel economy and insisting on his right-of-way, were at odds with any inference one might draw that the time available to him to avoid the accident precluded the very thing that he considered he could have done, namely pulling up before the intersection and before the collision.

46 But in any event, as the written submissions of the first respondent demonstrate, there was evidence in support of a longer period than 2.8 to 3.5 seconds to take avoidance action. Although there was some dispute about the expert Mr Johnson’s calculation of 4.6 seconds, based on the acceleration factor assumed by him, there was also evidence of the other driver Mr Hubbard who had observed Mr Smurthwaite and Mr Royal. Mr Hubbard, from his vehicle behind Mr Smurthwaite, gave evidence that Mr Royal travelled virtually the full length of the right-hand turning lane in the time it took Mr Smurthwaite to cross to where he was hit (Black T, 132D-F). Given that (i) the right-hand turning lane was some 180-200 metres in length, and (ii) Mr Royal was travelling at approximately 29 metres per second, this would result in a longer time of some 5 to 6.5 seconds.

47 Indeed Mr Royal agreed in cross-examination that if he assumed, as would be the case, that at 105 kph he would take 6.8 seconds to travel 200 metres at the time Mr Smurthwaite moved off it would have taken about 4.6 seconds “may be a little more” for him to reach the point of impact (Black T, 346U-W). The 200 metres was derived from the fact that approximately 200 metres south of the intersection the roadway widened to form the dedicated turn bay for right-turning traffic and 150 metres for the left-turning traffic. Mr Royal conceded that he overtook some vehicles some distance short of that left-turning point using up around 50 metres (Black T, 345U-346S). The upshot of that evidence was that he conceded that he was about 150 metres back from the intersection when he first saw Mr Smurthwaite’s vehicle (Black T, 355J-M).

48 The result is that there was evidence available to permit an inference that the appellant had 4.6 to 6.5 seconds to take action to avoid the collision, this being as the first respondent points out, implicit in the trial judge’s reasons that he accepted that period of time.

49 This combination of Mr Royal’s concessions and Mr Relf’s evidence, accepted as reliable, from his observations of Mr Royal, made inevitable a finding that Mr Royal was primarily at fault for the accident.

50 Then there was the evidence from Mr Hubbard, also described by the trial judge as a careful and accurate witness and one, moreover, familiar with the area. He was able to add his observations of Mr Smurthwaite from his position behind Mr Smurthwaite coming to the stop sign in Bago Road. He observed the following:

(a) As he was approaching the intersection he saw a green station-wagon (Mr Smurthwaite’s) stopped at the stop sign waiting to cross the Highway (Black T, 119R-S);

(b) Just after he could first see Mr Smurthwaite’s green station-wagon starting to move off (Black, T, 119T-U), he observed what he described as a “second white car”, identified as Mr Royal’s, in the right-hand turning lane (Black T, 120U-W);

(c) He then noticed the vehicle described as “a white vehicle”, being Mr Royal’s, “braking” and “the bonnet dipped under brakes”, which “then … locked up” (Black T, 121H-K);

(d) He observed the bonnet “dipped under brakes and it virtually immediately locked up and skidded virtually in a straight line and hit the green station-wagon” (Black T, 121P-R);

(e) That vehicle (Mr Royal’s) was not observed at any time to swerve or move to the left or right (Black T, 121R-T);

51 Against this, it was admitted that the trial judge quoted from Mr Hubbard’s statement (Red, 53V-54S), in circumstances where the statement was only admitted on a limited basis, namely insofar as it coincided with evidence given in court (Black T, 475H-476E). However, it will be apparent that, as in the case of Mr Relf, that Mr Hubbard’s oral evidence in court did coincide in the relevant respects with the parts of the statement relied upon against the appellant.

52 Mr Relf’s evidence on the absence of swerve or steer by Mr Royal’s car so far as relied upon by the trial judge (Red, 51L-Q, 51P, 51X and 52E), was first described in the statement of Mr Relf. But then it was elaborated in both his evidence in chief and in cross-examination (see in particular Black T, 104R). It was not disputed that Mr Relf was three to four seconds behind Mr Royal. Insofar as the trial judge at Red, 52M-53K gave a further synthesis of what was said by Mr Relf, this was not relevantly material since it dealt with what happened after the collision. Moreover there was independent evidence supporting Mr Relf’s opinion that the intersection was “bad” while Mr Royal asserted that the intersection was “dangerous”. Moreover Constable Bentley gave evidence to the effect that there was ample opportunity to cross the Highway from west to east if one observed the traffic properly (Black T, 84H-T).

53 I should refer here to the observations of the trial judge at Red, 57K-T:

“If a driver proceeding north was in the dip, the plaintiff said it was safe to move across. That is consistent with what took place and the explanation that I am examining.

The plaintiff, however, might have assumed that the defendant’s vehicle merging into the right-hand turning lane would have to slow down significantly before it could turn right. That scenario still posed, however, a risk of collision.

This view of the matter is reinforced by both Mr Hubbard’s evidence as well as Mr Relf, that the plaintiff gave no appearance of being in danger and took no evasive action.”

Conclusion

54 Ultimately, the trial judge attributed one-third contributory negligence against Mr Smurthwaite, essentially for failing to look again before departing from the stop sign in crossing an intersection he knew to be dangerous when there was oncoming traffic. That attribution of contributory negligence not being disputed by the first respondent and the appellant being unable to establish a maximum reaction time of no more than 3.5 seconds, means no basis exists for interfering with it. This is so, whatever be the outcome of the appellant’s cross-appeal seeking to attribute a proportion of his liability to the RTA. To this I now turn.

Appellant’s appeal against the dismissal of his cross-claim against the RTA

55 This aspect of the case concerns only Mr Royal and the RTA, as Mr Smurthwaite has not sought to disturb the trial judge’s decision in relation to the lack of liability on the RTA’s part. That affects the consequences of any finding against the RTA, being limited to so much of the liability as is ultimately to be apportioned to Mr Royal. I have earlier concluded that, as between Mr Royal and Mr Smurthwaite, the two thirds/one third liability attributed by the trial judge should not be disturbed. Thus the effect of any determination that the RTA must contribute as a joint tortfeasor has implications only as to the two-third’s liability earlier found against Mr Royal. It may also bear upon the making of the Bullock Order.

56 I have earlier quoted the only part of the judgment which deals with the RTA’s position. At a high level of generality, the evidence was to the effect that the RTA saw this area as a “black spot” and could be taken to be aware that there had been a number of serious accidents including some fatalities, over the period of time that the Highway had been upgraded (presumably from 1993). The RTA had taken some steps to deal with the problem based upon its perception of the problem being the difficulty of a driver stopped in Bago Road facing east at the intersection being aware of traffic to his or her right behind other cars proceeding north along the Highway, particularly in the left-hand lane. The trial judge concluded, presumably based upon what he saw as a failure to demonstrate causation, that he “was not satisfied that the accident represented a failure by the RTA in the circumstances of this case”. The reasons were thus conclusionary and extremely brief, leading to the appellant’s contention that they were inadequate. For reasons which I develop below, I conclude that the appellant’s submissions on this aspect should be accepted. This has a consequential effect so far as the two-thirds liability attributed to the appellant is concerned but does not affect the one-third liability attributed to Mr Smurthwaite.

57 I consider that the first proposition, though stated in conclusionary terms by the trial judge, was amply made out by the evidence, namely that this part of the roadway was seen by the RTA as a “black spot”. The accident statistics bore that out and include a number of serious accidents. The primary evidence for this can be found in the RTA’s own expert’s report, that by Mr Keirnan under the heading “Crash History” at para 6 of his report of 23 November 2003. That crash history deals with crashes recorded as occurring at the intersection of Pacific Highway and Bago Road between December 1993 and March 2001; that is, from the time of the dual carriageway construction to the date of the present accident. Drawing upon an RTA document included as appendix 9 to the report, that crash history is characterised as follows:

“Details of crashes recorded as occurring at the intersection of Pacific Highway and Bago Road between December 1993 and March 2001, ie, since dual carriageway construction and this crash, are tabulated on an RTA document included as Appendix 9.

The following is a summary of the characteristics of these crashes:-

· There have been 20 recorded crashes that were either fatal, injury or tow away.

· Two of these crashes resulted in a fatality and 14 resulted in one or more person being injured, ie, 16 casualty crashes – 2 per year.

· 17 of the 20 crashes were the result of ‘cross traffic at the intersection’.

· All 20 crashes were in dry weather conditions, and all but one were in daylight.

· No identifiable hazardous features at the site were recorded.

· One crash involved a motor cycle, one other a semi-trailer and the remainder were light passenger type vehicles.

· Speed was recorded by police as a factor in one crash.

· In 16 of the 20 crashes the unit at fault was identified as the eastbound driver.

Details of crashes recorded as occurring between April 2001 and March 2003 are attached as Appendix 10.

The following is a summary of characteristics of these crashes.

· There have been 6 crashes recorded in this 2 year period.

· Two crashes resulted in a fatality and four resulted in injuries, ie, 3 casualty crashes per year.

· All six crashes were cross traffic at the intersection.

· Three crashes were in wet weather.

· All six crashes were in daylight.

· All six crashes were light passenger type vehicles.

· No hazardous features were identified.

· Speed was not identified by the police as a factor in all crashes.

Because of the significant number of casualty crashes over a period of 10 years, the RTA have examined possible improvements, and modifications to traffic control devices have been carried out at the intersection.” (Blue, 1117-8)

58 Under factors contributing to the crash, the analysis from the statistics was to the effect that “driver causes were most likely the dominating contributing factors to the crash”, with “driver error” being subdivided into “direct causes” and “indirect causes”. Under “direct causes” appears “improper lookout and/or inattention (unaware of the defendant’s vehicle)”, with also “improper driving technique (allegedly cutting the corner)” and “improper evasive action” and “speed above the 85 kph advisory speed”. This derives from a publication called “Aust Roads Publications” Part 4 ‘road crashes’ 1988. It describes casualty accident rates on rural roads as being a result of higher speeds and intersections in rural areas, exceeding those in urban areas. The resultant statistic was a casualty accident rate of 5.1 per 10 million entering vehicles (Blue, 1119-1120). This reflected some 20 crashes over 8 years, as borne out by the crash history in the separate report by Mr Griffiths (Blue, 1123).

59 Under the heading “Improvements at the Intersection” (Blue, 1121) reference is made to improvements falling short of any radical redesign, directed more to maximising the sight distance for eastbound drivers before they entered the intersection, recognising that eastbound drivers were most frequently at fault. The improvements included “to place the stop sign holding line closer to the Pacific Highway travel lanes, and thereby reduce the Highway crossing travel distance and exposure”; that step was however taken only after the date of this accident.

60 Mr Keirnan nevertheless concluded that, “irrespective of the circumstances of this accident, there was ample time for eastbound Bago Road drivers to view vehicles approaching from the right, wait for a suitable gap, and move the vehicle from the Bago Road Stop Sign and cross the north-bound lanes of the Pacific Highway with safety” (Blue, 1121O).

61 Under the heading “Intersection Design Assessment” Mr Keirnan notes that he was not provided with an accident history between 1981 and 1993 before the dual carriageway was completed. However, I would interpolate that making a dual carriageway out of a single carriageway must have increased the volume of traffic along Pacific Highway and thus have accentuated the risk of accidents. This is more especially so when you have, as here, a T-intersection between a rural road and a two-lane divided carriageway, with no significant improvements between 1993 and 2001 in the “high number of similar ‘crossing’ crashes because of highway speed ‘fatalities’” (Blue, 1122J-K).

62 Instead of constructing what Mr Keirnan described as “intersection design options” consisting of the much safer “left-right staggered ‘T’ treatment”, as described below, lesser improvements left the two-stage crossing as built and could be described as minor. A prime feature of these lesser improvements was a warning to “Bago Road traffic not to accidentally turn into oncoming traffic on each carriageway”, given “the long distance between the dual carriageways” (Blue, 1123F).

63 So far as the “staggered ‘T’ intersection” was concerned, this was recommended in the event there should be a “a relatively high volume of traffic at the intersection and/or … of the physical constraints to safe entry”. Under that option “eastbound traffic would make a left turn on to the north-bound carriageway and then merge across the travelling lanes to a right-turn lane some distance to the north” (Blue, 1123J-L).

64 No cost estimates are given in relation to the staggered “T” treatment. Mr Keirnan states as his conclusion, “On the information available to me it would appear that the two-stage crossing would have been adequate at the time when the design was carried out”; being 1993 (Blue, 1123K).

65 Importantly, Mr Keirnan in commenting on the report of Road Safety Solutions made by Mr Griffiths, cites the following from that report: “Michael Griffiths concluded that there were no obvious road environment reasons for these crashes. But he formed a view that eastbound drivers who do not carefully observe highway and traffic for a sufficient length of time, may not see vehicles that are obscured by vehicles in the adjoining lane because of the curved approach. I agree the curved approach is probably a factor.” (Blue, 1123P-S) [emphasis added]

66 Mr Griffiths also considered that a further warning was required for eastbound drivers to spell out that they are “about to cross a divided freeway where vehicles may be travelling at high speed” (Blue, 1124C).

67 He then refers to Mr Griffith’s recommendation of a modification of the intersection by stepping (staggered ‘T’) and then to provide slip lanes at highway speed for exit at a ‘T’ intersection. He states “this option was discussed earlier in the report and it is agreed that it is safer than a direct cross intersection” (Blue, 1124G-H). I consider that assessment of some importance, given the known character of that crossing to the RTA as a “black spot”.

68 While Mr Johnston’s report is then referred to, more relevant is the traffic engineering report of Mr Stuart-Smith, referred to at Blue, 1125. He too quotes the crash statistics and records as his conclusion “such a crash history is indicative of endemic problems at the site.” He then adds, “From a road safety perspective, this rate [of accidents] should be considered to be unacceptable for an intersection constructed in late 1993.”

69 In referring to visibility, Mr Stuart-Smith is quoted as setting out in his report “the published Austroads & RTA road design guidelines and records departures from these guidelines”. Relevantly this included “approach sight distance (ASD) and entry sight distance (ESD), but he agreed that safe intersection sight distance (SISD) satisfies the guidelines” (Blue, 1126N-O).

70 Mr Keirnan then refers to Mr Stuart-Smith’s conclusion that “the road alignment is not in accordance with current high speed design”, and states as Mr Keirnan’s own opinion that “these departures were not relevant to the crash”. Insofar as there was a suppressed premise, in the trial judge’s brief reasons I suspect that was it. However, as I later explain, that conclusion has to be re-assessed in light of the concessions Mr Keirnan later made in cross-examination.

71 In stating his observation of the scene at the site inspection, he made the following observation: “And if you ‘stop’ and ‘look’ there is a clear view of approaching vehicles. A four second gap was all that was required to cross safely. I do not agree that any additional signs were required particularly when vehicles are required to ‘stop’ and the plaintiff is said to have stopped”.

72 Mr Keirnan’s overall opinion is stated at Blue, 1127O as follows: “The RTA have upgraded the Pacific Highway and the intersection with Bago Road as traffic has increased over the past twenty years. With the information available to me, I consider that the upgrade process of road design, construction and traffic management has been sound, and in accordance with accepted practice.” He then states that “Analysis of the crash indicates it was driver inattention that was the most significant factor contributing to the crash. No typical road environment factor could be identified. But the curved highway approach may have reduced eastbound driver’s ability to anticipate safe gaps in the traffic.” (Blue, 1128F-G)

73 He then adds this, somewhat inconsistently with his earlier conclusion. “I consider that the most recent easterly movement of the stop sign holding line at Bago Road will reduce the crossing exposure time and probably reduce accidents”. This was because that most recent movement of the stop sign was an improvement albeit limited. It was an improvement readily capable of being made and had not been made before the accident. What was thereby recognised is that there was a visibility problem. It was not one that made any particular accident inevitable; rather it made accidents of the driver inattention type inevitable as a statistical probability, with the rate estimated at five in 10 million.

74 In Mr Keirnan’s earlier report of 7 April 2004 there is a concession that there were visual difficulties associated with the judgment of positions and speeds of north-bound vehicles on the Highway as they pass around the curve and approach the crest on which the intersection was situated. Mr Keirnan acknowledged that moving the stop signs and holding line in Bago Road to the east after the accident did improve visibility aspects for Bago Road east-bound drivers such as Mr Smurthwaite (Blue, 610-617). That bears directly on causation as does his evidence below in cross-examination.

75 The relevant cross-examination of Mr Kiernan appears at Black, 589E-640K.

76 That cross-examination culminates in these concessions finally made by Mr Keirnan:

Q. Well you say on page 18, in paragraph 1, ‘Similarly it is desirable to avoid cross intersections.’ That’s what you say?
A. Yes, well that’s an accepted fact.

Q. So if you were the design engineer, you would have started with the proposition that it was desirable to avoid cross intersections?
A. That’s a fact that is indisputable. When you’re--

Q. So if--
A. --when you’re duplicating an existing two lane rural highway into a divided carriageway, you can’t avoid – you can’t avoid local roads intersecting that highway. They all have to be redesigned, modified, looked at, but inevitably they end up as an at grade intersection to a fast traffic road. They even have residential gates come out onto that road. You can’t cut everyone off, you can’t put private roads leading away. But if – if it’s dangerous, some times they do.” (Black, 610P-W)

77 At Black, 613F-M severity of accidents and their higher rates was conceded:

“Q. I’m talking about in consideration of changing it from a T-intersection to a crossing intersection, the starting point would have been, it was desirable to avoid cross intersections?
A. Yes, that’s correct.

Q. And because he would have known, as you have told us, that intersections in rural areas usually have a higher casualty accident rates than those in urban areas?
A. Yes, severity, higher severity, yes.

Q. Significant and severe accidents?
A. Yes.

Q. That would be the starting point, and that would, would it not, require whoever designed this intersection to be very careful on the driving task of east bound drivers?
A. Yes, it’s just automatic to take that into account.”

78 Mr Keirnan is then pressed about the staggered version of an intersection at Black, 615G-I:

“Q. And if this traffic had been diverted left out of Bago Road with a merging lane to make a right-hand turn on a link road 300 metres further north, there would have been no need for cross-intersection traffic, would there?
A. Yes, you could have done that, hmm.”

79 Finally, at Black, 630G-X appears to be the culminating concession, the reservation being only as to cost of the staggered ‘T’ intersection:

“Q. And where you have two options as provided by the guide as a guide if one of them has a statistical certainty of resulting in crossing traffic high speed collisions and the other doesn’t it would seem to have been more appropriate to choose the staggered intersection?
A. Well the staggered intersections in the Road Design Guide but its use is usually restricted to roads of some significance that are crossing a main road.

Q. That doesn’t mean you couldn’t have used it here does it Mr Kiernan?
A. That’s right, that’s correct. What I’m getting at is that if you have two roads intersection at right angles one is a main road and the other is what you might call a significant council road or it even could be a secondary road. To avoid that cross intersection with high traffic on the main road and also relatively high traffic on the side road a staggered t is one of the ways of avoiding that cross.

Q. But you see this intersection had for Pacific Highway travellers very high volumes of traffic didn’t it?
A. Yes, that’s right.

Q. Very high volumes of fast moving traffic?
A. Yes.

Q. You’re not suggesting are you that this theoretical designer said ‘Well Bago Road wasn’t a main enough road to have a staggered intersection’. That’s not what you’re suggesting is it?
A. No, Bago Road was a t-intersection.

Q. So my previous question was in circumstances where on its face it appears that the cost of the staggered intersection would be less and there was a statistical certainty of high speed crossing crashes it would have been more prudent to choose the staggered t-intersection?
A. Well it may have been shall we say an option but here are other things to consider, one of them possibly is the inconvenience to residents being having to travel distances and then turn back. I don’t know. There’s acquisition costs and those sort of things.”

80 He then attempts to retreat from that concession at Black, 631D-F where he says, “I’m saying that if I was there in 1993 or 1990 when the design was done I wouldn’t have thought that a staggered t-intersection was appropriate here”. He makes the further assertion that the “intersection was built in accordance with normal requirements”. He conceded though that “a stop sign just isn’t going to always work”. Later, he concedes that in 1993 a decision was taken to retain the existing alignment. He is then pressed about what he says in his report to the effect that “the curved highway approach may have reduced eastbound drivers’ ability to anticipate safe gaps in traffic”. Here he concedes “yes, the curved roadway is, seems to be a factor which I didn’t consider it to be when I first went to the site” (Black, 637M).

81 He then concedes that judging the speed of approaching vehicles always has some difficulty and specifically at the subject intersection, a fact that existed prior to reconstruction in 1993 (Black, 637T-638B) when there was only one northbound lane and which, as a matter of common sense, would in my view have been exacerbated when there were two lanes carrying an increase in traffic volumes at high speed.

82 At Black, 638M-P he concedes in relation to Mr Stuart-Smith’s report, that the staggered T-intersections are a safer form of intersection, having earlier acknowledged the visual difficulties. He adds that making the traffic one-way rather than two-way would also have improved matters (Black, 638D-F).

83 Finally, at Black, 640E, he first states that he would not have considered it foreseeable in 1993 that the reconstruction of Bago Road intersection from a rural two-lane road would have been a safety problem and that he himself wouldn’t have picked it up. But then there is the following highly significant exchange (Black, 640I-K):

“Q. Is this the case that you think that there was this massive project and along the way little intersections such as Bago Road was simply ignored in the process?
A. No, they weren’t ignored. It was just a case of a design was required for duplication. There was an opportunity to retain the existing carriageway and they took it.”

84 I need now to turn to look more closely at the history of the construction of this intersection. Prior to 1993, Bago Road met the Pacific Highway at a T-intersection. Traffic could turn left from Bago Road and head north in the left-bound lane of the Pacific Highway which was then a two-lane highway with one lane of travel in each direction. Traffic could also turn right from Bago Road and head south after having crossed only one lane of traffic. In 1993 as I have said, the RTA re-designed that intersection. It did not, however, change the geometry of the intersection. Bago Road met the Pacific Highway at a crest. For approaching Pacific Highway traffic travelling north, there was a right-hand curve and a dip in the highway south of the intersection. I would accept that this configuration, as the appellant contends, created a foreseeable problem for the observation of traffic travelling north by those vehicles exiting Bago Road. It can be taken too that those physical features must have been known to the RTA before the reconfiguration of the intersection in 1993, but neither the crest nor the curve were changed at all in the reconstruction.

85 The 1993 reconstruction saw the RTA, instead of choosing the staggered T-intersection, requiring traffic wishing to travel south from Bago Road to proceed across two fast moving lanes of traffic and then travelling 250 metres on the newly constructed Boyds Road to turn right onto the newly constructed south-bound carriageway. This required vehicles travelling east from Bago Road to cross the path of two lanes of high-speed through traffic. It gave rise to a statistical inevitability of a proportion of cross vehicle crashes, as demonstrated by the statistics to which I have earlier referred. While it does not make the present accident inevitable it did materially contribute to its occurrence, by creating a heightened risk of such an accident.

86 As to cost, further north from the Bago Road intersection, the distance between the north-bound carriageway and the new south-bound carriageway was considerably less. It is therefore reasonable to infer that the cost of the connecting roadway would likely have been correspondingly less; that is to say it is at least plausible that constructing the safer staggered T-intersection would have cost less than what was constructed. Concededly this conclusion remains contestable. But the evidentiary onus as to lesser cost had shifted to the RTA, who provided no evidence to the contrary. Nor was there any evidence from the RTA to establish that, even were it to cost less for this intersection to set up a staggered T-intersection, there would be other crossings of similar kind scattered throughout the state that would have made the cost much more expensive cumulatively. Absent such evidence, it is not a proposition that is self-evident. Clearly, in 1993 the RTA had the two options to which Mr Keirnan referred. There is no suggestion to substantiate in any way that the cost would have been significantly greater to have chosen the staggered T-intersection as against the less safe option that was adopted.

87 The adverse traffic history started to manifest itself almost immediately after 1993 in accidents. These by 2003 amounted to 20 vehicle crashes or more. Yet response by the RTA was minimal. “Stop ahead” and “Stop” signs had been installed in or after 1997 as also painted transfer pavement bars. These were installed in 1997 in Bago Road. They were to slow and warn traffic coming up the rise in Bago Road heading towards the intersection. But those changes did not really grapple with the danger of vehicles exiting Bago Road and crossing the path of several lanes of fast moving oncoming traffic to get to Boyds Road on the other side.

88 In addition, in February 1999 the north-bound right-hand turn lane had been constructed and some trees cleared on the eastern side of the north-bound carriageway. This again did little if anything to alleviate the safety problems faced by vehicles exiting Bago Road to cross the Highway in the face of oncoming traffic. Indeed it made it, on one view, more dangerous. This is because once the north-bound right-hand turn lane was constructed, the Bago Road vehicles had to cross that lane as well to reach the other side of the Pacific Highway. So despite the RTA being alive to the problem with sight distances in 1997, nothing further was done until after the present accident and then only to move the stop sign further forward.

89 The relevant principles applicable to authorities such as the RTA in relation to the design and construction of roads are set out by Gaudron, McHugh and Gummow JJ in Brodie v Singleton Shire Council (2001) 106 CLR 512 in the paragraphs below:

“[150] Authorities having statutory powers of the nature of those conferred... upon the present respondents to design or construct roads, or carry out works or repairs upon them, are obliged to take reasonable care that their exercise of or failure to exercise those powers does not create a foreseeable risk of harm to a class of persons (road users) which includes the plaintiff. Where the state of a roadway, whether from design, construction, works or non-repair, poses a risk to that class of persons, then, to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk. If the risk be unknown to the authority or latent and only discoverable by inspection, then to discharge its duty of care an authority having power to inspect is obliged to take reasonable steps to ascertain the existence of latent dangers which might reasonably be suspected to exist."

[151] The perception of the response by the authority calls for, to adapt the statement by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48, a consideration of various matters; in particular, the magnitude of the risk and the degree of probability that it will occur, the expense, difficulty and inconvenience to the authority in taking the steps described above to alleviate the danger, and any other competing or conflicting responsibility or commitments of the authority. The duty does not extend to ensuring the safety of road users in all circumstances. In the application of principle, much thus will turn upon the facts and circumstances disclosed by the evidence in each particular case.

[162] The formulation of the duty of care includes consideration of competing or conflicting responsibilities of the authorities. In the circumstances of a given case, it may be shown that it was reasonable for an authority to deal in a particular priority with repairs in various locations. The resources available to a road authority, including the availability of material and skilled labour, may dictate the pace at which repairs may be made and affect the order of priority in which they are to be made. It may be reasonable in the circumstances not to perform repairs at a certain site until a certain date, or to perform them after more pressing dangers are first addressed. Even so, it may well be reasonable for the authority to exercise other powers including, for example, by erecting warning signs, by restricting road usage or, in extreme cases, by closing the road in question.”

128 Damages for economic loss – maximum amount for provision of certain attendant care services
(1) Compensation, included in an award of damages, for the value of attendant care services:
(a) which have been or are to be provided by another person to the person in whose favour the award is made, and
(b) for which the person in whose favour the award is made has not paid and is not liable to pay,
must not exceed the amount determined in accordance with this section.
…
(3) No compensation is to be awarded if the services are provided, or are to be provided:
(a) for less than 6 hours per week, and
(b) for less than 6 months.
…
(7) Except as provided by this section, nothing in this section affects any other law relating to the value of attendant care services.

162 The differences in language between this provision and s 83(1)(d) make it unlikely that the terms found in the latter provision are intended as an additional constraint on the award of such damages. On the other hand, s 129, dealing with respite care, is in very similar terms to s 83(1)(c), taken together with 83(2)(a), but the fact that the provision is repeated in Chapter 5 is again an indication that the constraints on awards of damages by courts are to be found solely in Chapter 5, and not by implication to be derived from other parts of the Act.

163 In these circumstances, it is not necessary to inquire whether the expenses incurred by the plaintiff’s wife were expenses for attendant care services, although the plaintiff argued that they were not. The term “attendant care services” is defined in s 3 of the MAC Act to mean “services that aim to provide assistance to people with everyday tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services”. The precise scope of this definition should remain for a case in which it needs to be determined.

164 Similarly, it is not necessary for present purposes to consider the scope and operation of Wilson v McLeay (1961) 106 CLR 523 (in which Taylor J allowed for the expenses of visits by parents to a daughter seriously ill in hospital, as an element of general damages) in the light of more recent cases, including Griffiths v Kerkemeyer (1977) 139 CLR 161 at 173-178 (Stephen J). This ground of appeal should be rejected.

165 The second question in relation to damages concerned the calculation of economic loss based, not on the plaintiff’s pre-accident earnings, but on evidence of earnings of two comparable workers operating as tree fallers.

166 His Honour’s calculation of economic loss was based on the average weekly earnings of the comparable workers, being $893 per week net. This figure was adopted for the period from the date of the accident, 12 March 2001, until 30 June 2004. The agreed figure for the plaintiff’s income at the date of the accident was $798 per week net.

167 Prior to the accident, the plaintiff was working for Bartlett Haulage Co Pty Ltd on a piecework basis. He was employed as a log faller felling timber with a chainsaw. Various payment records indicated that the plaintiff was paid in accordance with a federal timber industry award and that the amounts calculated by reference to the timber cut varied quite significantly, as it would appear, between $3.15 and $4 per tonne. An item entitled “Koppers” was at a different rate of $9 but that may have been a rate per metre rather than a rate per tonne. There may have been some variation dependent upon the forest in which timber was being felled. A second variable was no doubt the hours worked, but the plaintiff’s wife gave evidence that he worked from early morning until dark.

168 Although the evidence is not precise, it appears that Bartlett Haulage went out of operation during 2002 and that its business and employees were taken over by a company known as Haulers and Fallers Pty Ltd, of which Ms Christine Hoffman was a director. She knew the plaintiff, and described him as “a very experienced and very good worker in the timber industry. He was a really good manual faller”: Tcpt, 5 May 2005, p 45. She gave evidence that someone with his experience was highly sought after in the industry and that her company would have taken him on when they took over the timber falling aspect of Bartlett Haulage in 2002. It was her view that the plaintiff would have been earning the same money as the two comparable fallers whose group certificates for the financial year ending 30 June 2004 she produced and which were relied on by the trial judge.

169 No date was given for the changeover from Bartlett Haulage to Ms Hoffman’s business, but in broad terms it may be reasonable to assume that the plaintiff would have continued to work for Bartlett Haulage for a year after the accident. The difference in earnings may also have been partly accounted for by inflation over the ensuing two years.

170 Accepting that the figures adopted in calculating loss of earning capacity cannot be refined with too much precision, it would nevertheless have been appropriate, in my view, for the trial judge to have adopted the earning rate disclosed for the plaintiff immediately prior to the accident as the rate which would have continued until his change of employment. This would involve a reduction of the award of approximately $5,000. Given that total damages were in excess of $1.3 million, this is a trivial variation of less than 0.5%. To interfere on this basis would imply that the calculation of damages has a degree of precision which, speaking generally, is not remotely approached. I would not interfere with the assessment undertaken by the trial judge.

Costs order in relation to RTA

171 It is somewhat regrettable that neither of the parties reduced the orders proposed by his Honour in his reasons into written form. I infer that, had that been done, the orders would have been along the following lines:

1. Judgment for the plaintiff against the first defendant in the amount of $871,019.50.

2. Dismiss the plaintiff’s claim against the second defendant (the RTA).

3. Dismiss the defendant’s cross-claim against the RTA.

172 His Honour appears to have ordered that, subject to one qualification, costs should follow the event. That would have required that the RTA’s costs would need to be divided between its resistance to the plaintiff’s claim and its resistance to the cross-claim for contribution filed by the defendant. The qualification to the general order was achieved by ordering the defendant to pay the RTA’s costs for which the plaintiff was liable. That appeared in a subsequent judgment by his Honour, following further written submissions, given in chambers on 1 May 2006, in which his Honour held:

“In those circumstances I conclude that a Bullock order should be made in favour of the plaintiff against the first defendant in respect of the costs of the second defendant. Otherwise costs to follow the event.”

173 The defendant challenges this order. He says, in effect, that the conditions for transferring the plaintiff’s liability in relation to the costs of the successful defendant to the unsuccessful defendant were not made out.

174 The reasons given by his Honour for the order were in substance that:

(1) it was the defendant who joined the RTA by way of cross-claim for contribution;

(2) the plaintiff’s amended statement of claim merely reflected the same allegations against the RTA and was a reasonable step for the plaintiff to take in the circumstances;

(3) the refusal of the defendant to give a statement to the police left the plaintiff, who had no memory of the circumstances prior to the accident, “very much in the dark as to what had caused the accident”;

(4) the strength of the plaintiff’s case against the defendant did not fully appear until the defendant had been cross-examined;

(5) there was a reasonable case of neglect of duty on the part of the RTA, which ultimately failed because it was not causative of the accident.

175 In addition to these considerations, the plaintiff sought to rely on correspondence in the course of which, shortly prior to the hearing, it had sought to withdraw its claim against the RTA on the basis that each party bore his or its own costs, an offer which fell through, because the RTA was not willing to accept unless the defendant also withdrew his claim against the RTA. Accordingly, the plaintiff argued, it was the defendant’s conduct, not only in commencing proceedings against the RTA, but in refusing to settle them, which led to the plaintiff continuing against the RTA.

176 The relevant principles to be applied in determining this question may be derived from the well-known statement in the judgment of Gibbs CJ in Gould v Vaggelas (1983-85) 157 CLR 215 at 229-230, referring in turn to Sanderson v Blyth Theatre Co [1903] 2 KB 533 at 539; see also Sved v Council of the Municipality of Woollahra (1998) NSW Conv R 55-842 at 56, 605 (Giles J) relied on in Almeida v Universal Dye Works Pty Ltd (No. 2) [2001] NSWCA 156 at [7]-[8] (Priestley JA) and at [32]-[39] (Santow AJA) and see Herning v GWS Machinery Pty Ltd [2005] NSWCA 263 at [40]-[41] and Herning v GWS Machinery Pty Ltd [No. 2] [2005] NSWCA 375 at [2].

177 Because the defendant must bear the costs of the unsuccessful cross-claim, the question is in reality whether it should bear the whole of the costs of the RTA, or only part thereof. As noted above, the primary expert evidence in support of the view that the RTA bore at least part of the responsibility for the accident was that led from Mr Stuart-Smith, a consulting traffic engineer called by the defendant. The defendant also obtained the report from Mr Michael Griffiths of Road Safety Solutions. It is clear from the supplementary report of Mr Kiernan for the RTA, dated 7 April 2004, that the RTA was primarily concerned to rebut the evidence of Mr Stuart-Smith. Although Mr Kiernan provided a second supplementary report addressed to the report of Mr Johnston, called on behalf of the plaintiff, as noted above, Mr Johnston did not sheet home responsibility for the accident to the RTA. Accordingly, the substance of the case against the RTA was provided by the defendant and the primary issue addressed by Mr Kiernan was the road design faults identified by Mr Stuart-Smith for the defendant. The cross-examination of Mr Kiernan by counsel for the plaintiff covered 1.5 pages of transcript, whereas the cross-examination on behalf of the defendant covered almost 50 pages.

178 The bulk of the costs incurred by the RTA were therefore in response to the defendant and he should bear those costs as a result of failing in his cross-claim. As between it and the plaintiff, it is fair that, because of the other factors noted above, it should bear the remaining small proportion of the RTA’s costs which would otherwise have fallen to be paid by the plaintiff, because of the failure of his claim against the RTA. To avoid complexity in accounting, it would be preferable to make an order that the defendant pay directly the RTA’s costs of the trial.

Costs of appeal

179 The defendant (Appellant) has been entirely unsuccessful in its appeal: accordingly, it should pay both the plaintiff’s and the RTA’s costs of the appeal.

180 I would propose the following orders:

1. Subject to the variation with respect to the costs order noted below, dismiss the appeal.

2. Vary the costs order made by the trial judge so that it provides:

(a) the defendant pay the plaintiff’s costs of the trial other than the plaintiff’s costs as against the RTA;
(b) the defendant pay the RTA’s costs of the trial being those incurred as against the plaintiff and in relation to the cross-claim brought by the defendant.

3. The Appellant pay the costs of the First and Second Respondents of the appeal.

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