Ryall v Cessnock City Council
[2014] NSWDC 31
•16 April 2014
District Court
New South Wales
Medium Neutral Citation: Ryall v Cessnock City Council [2014] NSWDC 31 Hearing dates: 4, 5, 6, 7, 8/11/2013 (last submissions 20/01/2014) Decision date: 16 April 2014 Before: Levy SC DCJ Decision: 1.Verdict and judgment for the defendant;
2.The plaintiff is to pay the defendant's costs on the ordinary basis unless otherwise ordered;
3.The exhibits may be returned;
4.Liberty to apply on 7 days notice if further orders are required.
Catchwords: TORTS - liability of local authority for condition of road - death of motorcyclist on rural road - whether negligence - whether defences made out pursuant to provisions of Civil Liability Act 2002; DAMAGES - assessment of damages under Compensation to Relatives Act 1897 Legislation Cited: Civil Liability Act 2002, s 5B, s 5D, s 45
Compensation to Relatives Act 1897
Roads Act 1993Cases Cited: Bellingen Shire Council v Colavon Pty Ltd [2012] NSWCA 34
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Colavon Pty Ltd trading as Thorman's Transport v Bellingen Shire Council [2008] NSWCA 355
Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352Category: Principal judgment Parties: Diana Louise Ryall (Plaintiff)
Cessnock City Council (Defendant)Representation: Mr B McManamey (Plaintiff)
Mr P Cummings SC (Defendant)
Burridge & Legg (Plaintiff)
Moray & Agnew (Defendant)
File Number(s): 2012/66686 Publication restriction: None
Judgment
Table of Contents
Nature of case
[1]
Background facts
[2]
Issues
[3] - [4]
Facts
[5] - [82]
The plaintiff's circumstances
[6]
The deceased's circumstances
[7]
Accident circumstances
[8] - [27]
Police investigation and related evidence
[28] - [39]
Evidence from Council employees
[40] - [72]
Evidence from Council records
[73] - [82]
Opinions from liability experts
[83] - [116]
Issue 1 - Sufficiency of factual information
[117] - [124]
Issue 2 - Civil Liability Act 2002, s 45
[125] - [128]
Issue 3 - Alleged negligence
[129] - [138]
Issue 4 - Alleged contributory negligence
[139] - [142]
Issue 5 - Assessment of damages
[143] - [152]
Disposition
[153]
Costs
[154]
Orders
[155]
Nature of case
The plaintiff, Ms Dianna Ryall, brings these proceedings pursuant to the provisions of the Compensation to Relatives Act 1897 in respect of the death of her de-facto partner Gregory Clive Walters ["the deceased"] who was killed in a motorcycle accident on a regional road for which the defendant, Cessnock City Council, had maintenance responsibilities. The proceedings are governed by the provisions of the Civil Liability Act 2002 ["CL Act"].
Background facts
At about 1:20pm on Sunday 1 March 2009, the deceased was riding his motorcycle in a northerly direction along the Great North Road, Bucketty, NSW. The area was also known as Road 181. When the deceased reached a point on that road at about 2km north of Bucketty Private Road Number 3, his motorcycle left the roadway and collided with a roadside tree whilst he was in the course of negotiating a right bend in that roadway. As a result of the collision he was fatally injured. There were no eyewitnesses to the events that led to the deceased's motorcycle leaving the roadway. The key factors that would ordinarily be relevant to a crash analysis, including the speed and road position of the deceased's motorcycle, remain unknown.
Issues
The plaintiff claims the accident occurred due to poor road maintenance by the defendant. The case the plaintiff seeks to make on that premise is based on inferences sought to be drawn from the surrounding circumstances and past-accident history of the roadway in question. The defendant disputed it had been negligent in any way. The defendant also relied upon statutory defences it claimed were available to it pursuant to the provisions of the CL Act.
The essential issues requiring determination in the case can be conveniently summarised as follows:
Issue 1 - Whether the evidence permits the factual circumstances of the accident to be sufficiently defined to enable the expert evidence to be engaged for the purpose of determining the cause of the deceased's accident and the liability issues;
Issue 2 - Whether the plaintiff has established an entitlement to proceed with her cause of action having regard to the requirements of s 45 of the CL Act;
Issue 3 - Whether there was negligence on the part of the defendant Council;
Issue 4 - Whether there was contributory negligence on the part of the deceased, and if so, to what extent;
Issue 5 - The assessment of the plaintiff's entitlement to damages.
Facts
In the paragraphs that follow, unless otherwise qualified, I set out my findings on matters of fact concerning the plaintiff's circumstances, the deceased's circumstances, and the known circumstances of the accident.
The plaintiff's circumstances
The plaintiff is presently aged 56 years. At the time of the accident she and the deceased had been in a de facto relationship for 2 years. They had known each other for some time beforehand. At the time of the accident she was working as a manager's assistant for a cosmetics company. She presently works in childcare.
The deceased's circumstances
The deceased was born in 1957. At the time of his death he was aged 50 years. He was a qualified tradesman plumber. At the time of his death he worked in a general capacity for a hardware business. He also had other sources of income from a family related business.
Accident circumstances
The circumstances of the accident were described from the different perspectives of three witnesses who were present at the accident scene, and also from observations made by the investigating police officers.
It is convenient to first review the evidence of those witnesses in order to glean from it whatever factual details are available that might throw light upon how the accident occurred. That course is also a necessary precursor to examining the evidence of the expert witnesses in order to determine whether the expert evidence can be used to provide a relevant input into the liability analysis.
In that regard, the relevant details extracted from the evidence of the factual witnesses, Mr Paul Nichols and Dr Deanne Venardos, is summarised in the paragraphs that follow.
Mr Nichols
Mr Nichols was a work acquaintance of the deceased. They shared a recreational interest in taking motorcycles for scenic rides. On the day of the accident he and the deceased set off for such a ride on separate motorcycles. During a rest break at a roadside café they met up with two other riders, Mr Thomas Horden and Dr Venardos, and they decided to join those persons on their journey to the Putty Road, a well known scenic ride for motorcyclists.
The group of four motorcyclists set out from the café in a single file formation. When they reached the accident scene at Great Northern Road, Mr Horden was in the lead, Mr Nichols was the second rider, Dr Venardos was the third rider, and the deceased was the last rider in the group. Mr Nichols described the road on the journey as being undulating and slightly bumpy, and comprising a coarse bitumen surface.
As the lead rider, Mr Horden had successfully negotiated a double bend in the roadway, but Mr Nichols was not able to do so without incident when he followed. When he passed the left bend in the roadway he then realised he was in a double apex bend, which required him to veer his motorcycle to his right. He had not seen any warning or indication of that right bend as he had approached it. He estimated that at the time he was riding his motorcycle at about 70kph. He was an L-plate rider at the time. He acknowledged that at the time he was inexperienced as a motorcycle rider.
After riding out of the first bend to the left, Mr Nichols' motorcycle had drifted a little wide. He was slowing down when he found he was riding on loose gravel. He described a sequence of events as involving his front tyre locking, followed by him sliding or skidding across the road from the bitumen road surface and onto the gravel and the grass edge of the road.
Mr Nichols described the bend in the road at the scene as having been deceptive in its appearance because it had started mildly but it then turned away more sharply. He said that in those events the exit to the bend had not been immediately visible to him. He agreed the bend had taken him by surprise at the time.
Mr Nichols said he did not recall seeing a speed advisory sign of 55kph just before the bend. He agreed that at the time of the accident, he had misjudged the corner at the accident scene.
In those events, Mr Nichols' motorcycle went off the bitumen road surface. When this occurred he slid along with his motorcycle, and he then fell to the ground. At the time, in the course of those events, he said he was in shock.
As Mr Nichols recalled it, at around that time when he was in the course of gathering himself and getting up from the ground, he saw some smoke and then heard a sound that indicated to him that another rider could have come off his motorcycle in the vicinity. He then realised the deceased had also come off his motorcycle and had hit a tree, and was seriously injured. Mr Nichols then approached to render assistance.
Mr Nichols described the roadway at the scene as being bumpy, as he had expected it to be. He considered that he had been riding his motorcycle cautiously at the time because of the condition of the road.
Mr Nichols explained that there was no signposting of the double apex road configuration on the approach to that area, and he said that this was not something he had ever experienced beforehand.
Dr Venardos
Dr Venardos described having, together with Mr Horden, met the deceased and Mr Nichols, neither of whom she had known beforehand. She confirmed that the latter two had decided to join them for a ride of the Putty Road loop.
Dr Venardos described the order of riders as having been the same as that which was described by Mr Nichols. She had followed Mr Nichols into the left bend in question and had noticed that he had run wide on the following right hand bend.
That bend has been described elsewhere as a sweeping right bend. Dr Venardos described seeing Mr Nichols go off the road to the left and she saw him coming off his motorcycle. She had been travelling about 30 metres behind Mr Nichols and was able to observe that sequence of events. As she approached the scene, she stopped, got off her bike, and started running towards Mr Nichols. By that time, Mr Nichols had got up from the ground and was already on his feet. He had told Dr Venardos that he was alright, and she then stopped running towards him.
Dr Venardos described having then seen some smoke that appeared to have come from behind where she had been standing. She then ran back towards where the deceased had crashed, and she then saw him lying on the ground. She had not seen the sequence or the course of the events in which the deceased's motorcycle had left the roadway.
Dr Venardos had observed Mr Nichols to have been a very inexperienced rider. She described an event earlier in the ride where Mr Nichols had also taken a bend wide causing his motorcycle to hit the edge of the road some distance a bit further back from the accident scene.
Dr Venardos said that earlier, during the ride along the roadway in question, before reaching the accident scene, she had on occasions observed the deceased in her rear view mirror, variously slowing down, and also coming closer to her cycle. She interpreted those observations as the deceased from time to time preparing to ride faster through bends as he approached and then negotiated them.
Mr Horden
In the events leading up to the accident, Mr Thomas Horden was the first motorcyclist in the group. He therefore did not see the accident. His statement to the police was tendered, but it was not contributory to the factual analysis.
Police investigation and related evidence
The remaining factual evidence concerning the aftermath of the accident came from the observations and measurements made by the police officers who had been called to attend and investigate the accident. Given the limited factual details, it is appropriate to set out the relevant details of the police investigations in the paragraphs that follow.
Senior Constable Fowler
Senior Constable Christopher Fowler was the first police officer to attend the scene of the accident. He attended in response to a message to the effect that there had been two reported accidents at the scene involving motorcycles. He made a number of factual observations at the scene.
Senior Constable Fowler secured the scene as best he could by blocking it to the flow of other traffic whilst he examined the scene for physical evidence. He was familiar with the section of the roadway in question as he had attended the scene for other motor vehicle accidents and also for bushfires on a number of previous occasions. He had previously patrolled the area in the course of his general duties between 2005 and 2009. The majority of the accidents he had previously attended at the scene had been motorcycle accidents. Understandably, he could not recall how many such accidents he had attended at that particular place: T36.
The measurements made and recorded by Senior Constable Fowler were only approximate as he had no means of making accurate measurements. He had therefore paced out the various distances for the purposes of his initial inspection and survey of the scene. Senior Constable Fowler gave his evidence with the assistance of police photographs that had been taken by Senior Constable Sanson, who had attended the scene to take more accurate measurements and to take a series of photographs for the purposes of preparing a report for the coroner.
Senior Constable Fowler's factual observations, which were unchallenged, were as follows:
(1) The section of road where the accident occurred was quite curved: T31.24;
(2) The roadway in the general vicinity of the accident scene was described as a heritage road. It was an old convict constructed trail. It was narrow in parts, and traversed through undulating country, including heavily treed National Park areas, with cliffs and roadside edge drops, and culverts: T51.23 to T51.43;
(3) The roadway in the vicinity of the accident scene comprised a number of intersections and bends on what was described as a very winding road: T50.22 to T50.30; T51.8;
(4) The roadway in the general vicinity had been repaired with patches in places. There were some places with potholes, some of which were either filled or which were left to remain unfilled: T51.20
(5) The left or northbound side of the roadway, which was the direction in which the deceased had travelled, was marked with flexible white plastic roadside guideposts fitted with what was described as cat's eye reflectors: T31.29. Those guideposts were located right on the edge of the roadway: T48.46;
(6) One such guidepost had been damaged, consistent with having been hit by the deceased's motorcycle: T31.30;
(7) There was a gravel verge adjacent to the bitumen edge of the road. This verge extended to the roadside bush canopy: T49.9;
(8) The deceased's motorcycle had taken a path from the bitumen and then into collision with a tree located about 2.5m from the edge of the roadway: T31.34;
(9) It appears that after colliding with the tree referred to in (8) above, the deceased's motorcycle was then deflected and subsequently collided with a second tree: T32.33;
(10) The deceased was found on the ground about 2.5m from the edge of the road on the gravel verge: T32.35 to T33.20;
(11) Some fresh drag marks were seen on the side of road in a path in the gravel that led from the side of the road to a damaged tree, and then to a point where the body of the deceased was found: T34.39 to T35.7. Senior Constable Fowler used those markings to form a re-constructed view of the sequence of events that occurred in the lead-up to the accident, concluding the premise that this was the path the deceased had travelled when his motorcycle had left the roadway: T33.41; T34.5;
(12) Only minor positional adjustments had been made to the post-collision position of the deceased. This had been for the necessary purposes of performing CPR and attendances by ambulance officers. There had been no major movement of the position of his body which was located on the verge of the road: T49.18 to T49.31;
(13) Senior Constable Fowler made entries in his notebook at the scene with regard to the state of the roadway: T38.45;
(14) Senior Constable Fowler prepared a summary of the event for the coroner in the following terms:
"At the time of the incident the weather was overcast but dry. The road was dry and sealed and in average and poor condition at the incident site. The bend is moderate and the area, although very well known to local police for similar incidents, is not considered unsafe. It is the opinion of the highway patrol that speed, vehicle control, inexperience and distraction of the earlier accident have contributed to the collision."
(15) Senior Constable Fowler formed the opinion that the section of the roadway in question was in "poor condition": T41.23; T43.23. He explained that this description was meant to convey the meaning that some parts of the roadway were of average condition and that others were in poor condition: T42.26;
(16) Senior Constable Fowler based his description of "poor condition" on the presence of potholes, cracks, loose bitumen, soft edges and narrow edges: T43.26. He was describing a road surface that had over time crumbled and broken away in parts: T43.28;
(17) There were a number of speed advisory signs in locations both before and beyond the accident scene, but Senior Constable Fowler could not recall any specific signs, for example, signs for the information of motorcycle riders using the road: T43.35 to T43.41;
(18) Senior Constable Fowler recalled a speed advisory sign about 100m or 120m south of the bend, thus indicating an approach to a winding road with a moderate left-hand corner: T43.43 to T44.16;
Senior Constable Fowler's notebook which formed part of Exhibit "J" at Tab 3, recorded witness statements written at the scene. None of those statements aided an understanding of how or what had caused the deceased's motorcycle to leave the roadway and end up in collision with roadside trees.
The coroner found that the deceased had died of multiple injuries in the subject accident: Exhibit "J", Tab 3, page 160.
A mechanical examination of the deceased's motorcycle did not reveal any contributory mechanical defects or faults: Exhibit "J", Tab 3, pages 157 to 158.
Senior Constable Sanson
Senior Constable Brett Sanson attended the accident scene to obtain accurate measurements for the purpose of a report to the coroner. He took 103 photographs of the scene. The parties only obtained access to printed copies of those photographs on the first day of the hearing.
Those photographs were reproduced and tendered as Exhibit "4" and Exhibit "9". He also took measurements at the scene and prepared a diagram on which those various measurements had been marked in different colours to signify differing measurements and positions: Exhibit "H".
The measurements and observations made by Senior Constable Sanson can be summarised as follows:
(a) A reference point was marked on the diagram to signify the focal point of the marked measurements: T54.3;
(b) A thin blue line was marked on the diagram to represent a tyre mark within the gravel verge of the road. This was measured at 35.9 metres. Senior Constable Sanson interpreted that mark to represent tyres rotating over the area in a slightly sideways manner to indicate slippage on gravel rather than braking: T54.17 to T54.27;
(c) The point on the roadway where the above tyre marks had commenced was represented by a yellow mark shown in the photographs comprising Exhibit "3.1"; T55.5;
(d) There were no tyre marks on the roadway itself: T55.24;
(e) The thin blue line on the diagram was marked to represent a 62m distance between the commencement of the tyre marks and the first tree that was inferred from the presence of gouge marks (T56.11) to have been damaged by contact with the deceased's motorcycle: T55.30 to T55.40;
(f) The above line was not intended to represent a line of sight as it followed the curve of the road: T55.47 to T55.50;
(g) The thin blue line continued to a point that was 67.8m from the reference point to indicate the location of a second tree with gouge marks from the deceased's motorcycle: T56.6 to T56.11;
(h) The blue line continued to a point 70.5m from the reference point. This was marked to represent the location of the deceased's motorcycle from the reference point: T56.24;
(i) The blue line continued to a point 72.2m from the reference point. This was marked to represent the location of the deceased's body, at the position of the feet, from the reference point: T56.30;
(j) The way in which the deceased was laying on the ground was drawn to represent the position of his head being about 5m from the base of the second tree: T56.38 to T56.50;
(k) Other markings were made on the diagram to represent the position of Mr Nichols' motorcycle, and the tyre marks and gouges that it had made as it slid on the ground, i.e. 56.6m and 58.7m, in a slightly different location: T57.12 to T57.34;
(l) The major damage to the deceased's motorcycle was primarily to the left side to the engine components and housings at the front: T62.25 to T62.49;
(m) The described tyre mark was located on the western side of the roadway, past a flexible grid post and to a gum tree on the western verge: T63;
(n) The line of travel on the verge from the edge of the road to the guidepost and to the first tree was slightly curved, but not as curved as the road curvature: T64.1 to T64.19;
(o) Senior Constable Samson concluded the tyre marks were not made under braking, or if they were, any braking would have been very limited as the wheel had been rotating: T65.16;
(p) The gouge mark on the road was also interchangeably described as a scrape or a skid: T63.9; T65.40;
(q) The marks left by the deceased's motorcycle on the tree led Senior Constable Sanson to conclude the deceased's motorcycle was in an upright position when it hit that tree: T63.7.
The photographs of the accident scene, namely Exhibits "A", "B", "E", "F", "G", "N", and the series of photographs comprising Exhibits "3" and "4" do not throw any useful light on the events which led to the accident in terms of what had actually caused, or had probably caused the deceased's motorcycle to leave the roadway before it collided with a roadside tree.
Evidence from Council employees as to road conditions
The defendant called evidence from three Council officers, namely, Mr Meyers, Mr Bent and Mr Miles.
Mr Meyers - Council's road maintenance co-ordinator
The defendant called evidence from Mr Allan Meyers, the Council's road maintenance co-ordinator for the roadway in question. Mr Meyers had held that position for some time before the accident. Part of his duties included working regular inspections of the road. He was familiar with the road in question before the subject accident.
Mr Meyers described the road in question as being classified as a regional road, which was also described as Road 181, and which was some 35kms in length. On a scale of 1 to 5, with 1 being assigned as the best, and 5 being assigned as the worst condition, he described Road 181 as being rated between 2 to 3.
Mr Meyers conducted his routine inspection of the road every 3 weeks according to a calendar that scheduled such inspections. His practice was to carry out his inspections by driving a motor vehicle at normal travel speed just under the speed limit in both directions, namely around 60kph but under 80kph.
In the course of such inspections Mr Meyers would look for any obvious potential hazards to road users, including motorcyclists. Where he considered it necessary to do so, he would stop during his inspection for a closer look at matters of concern, such as the ponding of water or any scouring of the road surface.
If a defect was identified on such inspections, Mr Meyers would dictate a note about it and then schedule a remedial intervention according to RTA maintenance protocols and principles, as provided for in an applicable RTA intervention manual.
If Mr Meyers determined there was a need for a mandatory repair, such repairs would be arranged without regard for budgetary restraints, even if this resulted in an overspending of the Council's allocated budget: T120.40; T124.3. Mandatory repairs meant attention to potholes, removal of dead animals, fallen tree limbs, debris on the road, attention to bumps on the road, and like matters.
Mr Meyers had carried out his last pre-accident routine inspection of the roadway on 26 February 2009, which was just 5 days before the accident in question: T114.40.
Exhibit "8" comprised a record of the maintenance actions that Mr Meyers listed for attention following that inspection which concerned some 5 defects: Exhibit "8", pages 1 and 2. Those actions were listed as scheduling some patching of the road from Bellbird to Wollombi for pothole repairs (Exhibit "8", p 4), removing a fallen tree branch behind a guardrail (Exhibit "8", p 5), removing fallen tree branches on a section of the roadway between Wattagon Creek Road and Yango Creek Road (Exhibit "8", p 6), removing fallen tree branches between Yango Creek Road and Blaxlands Arm Road (Exhibit "8", p 7) and replacing some missing and damaged guideposts (Exhibit "8", p 8).
Mr Meyers agreed that if, during his inspection of the road in the manner he described, he had become aware of signs of an accident having occurred, that could be an indication that the roadway needed a closer inspection to determine whether the condition of the roadway was a contributory factor.
Mr Meyers agreed that if he had observed the presence of scrape marks on the road surface or the presence of furrows going off the roadway on the roadside verge, or vehicle debris, this would indicate to him that there was a problem with the particular corner of the roadway that needed investigating: T127.24 to T127.38. He qualified that answer by saying that his inspections would probably not pick up a single roadside track heading from the roadway into the bushes: T128.34. It was not suggested that inspections aimed at detecting such single roadside tracks ought to have been carried out.
Mr Meyers agreed that the roadway in question was used quite frequently by motorcyclists on weekends. He also agreed that (motor) bike accidents were "not uncommon" along that roadway: T128.44. That of itself does not bespeak a deficiency in the road.
Mr Meyers agreed that a matter to be taken into account when determining safety of a roadway was to look for the signs that indicated there was a hazard to (motor) bike riders: T128.50; T129.5. He agreed that such signs would include the described matters, which included debris off the roadway, single roadside furrows, and the like: T129.11.
Mr Meyers stated that his inspections were considered to be thorough, and even with his good knowledge of the roadway, he agreed he would not necessarily have seen debris and furrows on the edges of the road during the course of the inspections he described.
Significantly for the case for the plaintiff, Mr Meyers agreed that he believed there were no Chevron markers in place on the corner of the bend where the deceased's accident occurred: T129.42. On that topic, at T129.40 to T131.18, Mr Meyers gave the following evidence:
"Q. Would you agree that at the time this accident happened in March 2009 that there were no chevron - no CAM markers on that corner?
A. No I don't believe there was.
Q. But there are now though aren't there?
A. I think so, I believe so I haven't been out there for a while. I've been off work so yeah I think so.
Q. This particular corner where the accident happened, is a right-hand bend, correct?
A. Yes.
Q. I think what happened is you come north up the Great North Road you go round a left-hand bend, correct?
A. Yeah, yeah.
Q. Then it straightens out for a bit then you go down a right-hand bend, the two bends are reasonably close together, do you agree with that?
A. Yes.
Q. Would you agree that at that time in March 2009 there were chevron markers on the left-hand bend immediately before the right-hand bend?
A. I honestly couldn't answer that.
Q. Just one thing, the reason you put chevron markers on the roadway is to indicate to oncoming drivers and riders the direction in which the road is turning?
A. Or bending yes.
Q. And often put on bends where you can't see the end of the bend?
A. Yeah, there is a specification for installing them, yeah.
Q. Also often for bends that are tighter than you expect them to be?
A. Yes.
Q. Generally speaking as a driver approaches as you see a corner with the chevron markers on it, it's a warning this is a corner you've got to be more careful on, perhaps slow down and take with care?
A. Yes, and probably be a speed advisory sign if that was the case.
Q. Yes, and would you agree that conversely if one's driving through a road area where some corners are marked with chevrons, some are not, that that would be conveying to the driver that to have more care on the corners with chevrons, maybe not as much care on the corners that don't have chevrons?
...
[Objection dealt with - question allowed]
WITNESS: No. My answer would be that yeah that would be quite right that you would use more caution but you would obviously drive to the speed limit and so, yeah.
MCMANAMEY
Q. Yes you'd use caution generally however--
A. Yeah.
Q. --the corners that are marked with the chevrons, the chevrons are there as a warning to take more care on those corners?
A. Maybe, maybe a tighter corner, yeah."
Earlier Mr Meyers gave evidence that where, on a corner such as the one where the accident occurred, and where the exit was not visible as one drove into the bend, or where it "tightened up a bit more than you expected or the tail was longer" than expected, these were matters that had to be taken into account in an inspection: T127.44.
Mr Meyers agreed that a matter of mandatory importance to road inspection and maintenance was the need to repair guideposts, warning and advisory signs because deficiencies in respect of those matters were considered to pose a serious risk to road users: T124.16 to T124.29.
Mr Meyers was unaware that an inspection of Road 181 had been carried out in April 2008 and that subsequently, on 21 April 2008, the Council's traffic committee determined that Chevron alignment markers were to be installed along the Great Northern Road: T125.4. It appears that no such Chevron markers were in place at the bend in question on the day of the accident although Mr Meyers was unable to say whether or not that was the case: T130.11.
Mr Geoffrey Bent - Council's Civil Engineer
The defendant called its civil engineer, Mr Geoffrey Bent, to give evidence. He has been a civil engineer for 26 years with experience in road maintenance and construction in local government employment. He had commenced his employment with the defendant in December 2008. He confirmed that the defendant's roads network comprised some 266.3kms of unsealed roads, and 97.66kms of regional roads.
Mr Bent confirmed that maintenance monies for Road 181 were periodically provided to the defendant by the RTA in the form of an annual block grant and that this was within the defendant's sphere of responsibility. He confirmed that Mr Meyers worked under his supervision. Mr Bent was not personally involved in road inspections but in his position with the Council, he had overall budgetary responsibility for road maintenance and repairs.
It is clear from the evidence of Mr Bent that in the event of a need arising for over-budget expenditure for road maintenance in order to deal with dangerous areas or black-spots, the defendant was able to access additional funding, especially where a location has been identified as having had a lot of accidents: T145.46.
Mr Bent was not aware of any communications with the RTA concerning possible black-spot funding for remedial work at the site of the subject accident after it had occurred: T146.43.
Mr Bent stated that maintenance responses to the presence of potholes on the roadway was a different consideration to a possible future improvement programme for the surface of the road: T147.35.
Mr Bent agreed that if, in October 2008, there was evidence of there having been 7 instances of motorcycles having left the left-hand side of the roadway on the corner in question, that would be a relevant matter to be taken into account when determining the maintenance requirements of that part of the roadway: T150.7.
Mr Philip Miles - Civil Engineer employed by defendant
The defendant called evidence from its employed civil engineer, Mr Philip Miles. Since 2008 Mr Miles has been the strategic assets planning manager at Cessnock Council. His primary role was to identify and prioritise infrastructure works on the defendant's assets, including the roads for which the defendant was responsible.
Mr Miles confirmed that the defendant had budget allocations for the day-to-day or periodic repair of potholes in roads, relining of markings, and repairs to guideposts, signage and the like.
Mr Miles produced a document that set out a schedule of the defendant's expenditure on rural roads, maintenance, repairs and rehabilitation between 2003 to 2010: Exhibit "10". That expenditure came from the Council's own funds and also from RTA block grants. He confirmed that to his knowledge, in each year since 2008, the defendant had applied for and had received maximum funding for such works on its regional roads.
Mr Miles also stated that the defendant had a system for prioritising the redevelopment or upgrading of regional roads, including renewal of the road surface where traffic safety considerations applied, and where it was considered that the road pavement had reached the end of it's life.
That activity was distinguished from routine maintenance. As an example, he identified the cost of rehabilitating a 400m segment of bitumen road surface as representing an estimated cost of about $400,000: T159.43 to T160.2. From an asset management perspective, the useful life of a bitumen road was estimated as being between 12 to 15 years, depending upon its usage, wear and tear factors and maintenance variations: T160.44.
Mr Miles stated that ideally, a bitumen road would need to be resealed every 15 years: T161.25. Based on funding considerations, from a practical perspective, the defendant was only able to achieve resurfacing of its regional road network on a 30 year average: T161.40. That estimate was subject to variations depending upon the condition of the roads and matters such as usage levels, loads, drainage, topography, sun exposure to the bitumen surface, and other factors: T161.44 to T162.31.
Mr Miles stated that in comparison with other roads, in 2008/2009, the roadway in question in these proceedings was considered to be a lesser trafficked road and therefore the assessed condition of the road was considered to be of an acceptable standard when considered in terms of the budget for maintenance and any programme for renewal: T164.5 to T164.23.
Mr Miles stated that the section of the road in question, which was later revealed to be colloquially known as Lemmings Corner, had been the subject of successive applications for black-spot funding, the outcome of which was dependent upon cost benefit analysis considerations: T164.28 to T165.5.
Mr Miles agreed with the proposition that the activity of repairing potholes was a cheaper undertaking than the process of road rehabilitation. He also agreed that in the hierarchy of available road safety options, the placement of signage was one of the cheapest options: T167.
Evidence from Council records
The defendant's road maintenance records indicate that between 27 September 2004 and 26 February 2009, the defendant had undertaken numerous instances of inspections, repairs and maintenance tasks undertaken on the subject road. These included pothole and pavement repairs, replacement of signs, barriers and guideposts: Exhibit "J", Tab 15, p 212.
On behalf of the plaintiff, her solicitor made an FOI request of the defendant for records of complaints and notifications concerning the safety of the roadway in question from 1999 to February 2010. The defendant ultimately responded to that request by producing a bundle of documents: Exhibit "J", Tab 2, pages 95 to 155.
Those documents disclose the following pre-accident matters:
(1) After the RTA had been notified of the deceased's accident, it undertook a crash history analysis of the scene which, on 9 March 2009, revealed "an emerging pattern of loss of control and rear end accidents along this length of road": Exhibit "J", Tab 2, p 98;
(2) Between 1 April 2003 and 16 February 2009, there had been 6 other crashes involving motorcycles within 200m of the site of the subject accident: Exhibit "J", Tab 2, p 99;
(3) All of the 6 previous motorcycle accidents at the general location between 29 November 2004 and 28 June 2008 did not involve second vehicles. Furthermore, all of those accidents had occurred in dry, daylight conditions where, in 4 such cases, no other object had been hit, and in the remaining 2 such cases, a fence or guardrail had been hit by the motorcycle in question: Exhibit "J", Tab 2, p 118;
(4) On 9 March 2009 after reviewing the above data, the defendant undertook a traffic engineering analysis which suggested that the history of accidents on the roadway in question met the Federal Blackspot criteria. On 20 April 2009, the defendant's Traffic Committee made the following recommendations:
(a) The existing advance warning signage on all low speed curves be upgraded to size "C";
(b) The existing BB markings be re-marked in the interim;
(c) Edge lines be installed where the pavement widths permit, in the interim;
(d) A Blackspot Funding Application be forwarded to the RTA to carry out pavement widening, resealing and the provision of edge-lines and guardrails or wire fencing on the outside of the curve of the crash site: Exhibit "J", Tab 2, p 143;
On 21 April 2008 the minutes of the defendant's Traffic Committee meetings recorded a relevant matter under consideration at that time as follows:
"MATTER:
Great North Road from Bucketty through, to Fernances Crossing (and including Lemming Corner) requires barricades all along - if you went over the edge no one would know you were missing.
COMMENT:
Great North Road was inspected by Council on 8 April 2008 and in the section between Bucketty and Fernances Crossing, guard rail is present on a number of the existing curves.
It was also noted that some curves in this section do not have advance warning signs (with supplementary speed advisory plates) installed and it is recommended that the provision of
these signs be investigated and installed where necessary.
The installation of Chevron Alignment Markers (CAMs) is also recommended on curves where sight distance is limited or off-carriageway crashes are likely.
RECOMMENDATION:
The installation of advance warning signage (with speed advisory plates) and Curve Alignment Markers (CAMs) be investigated on Great North Road between Bucketty and Fernances Crossing and installed where required."
[Exhibit "J", p 153]
That memorandum did not refer to the road surface as being in any way deficient. In that context the reference to the likelihood of "off-carriageway crashes" cannot be reasonably read to be referring to any substandard condition of the carriageway. It could equally apply, for example, to unsafe driving causing such crashes. The reference to "some curves" having no advance warning signs was non-specific.
On 7 April 2009, the first of the above recommendations was endorsed at an estimated cost stated to be $2000: Exhibit "J", Tab 2, p 143.
On 31 March 2009 the defendant's Traffic Committee inspected the accident site. On 20 April 2009 the defendant's committee met and adopted the following:
"TC RECOMMENDATION: 1. The following works be undertaken on George Downes Drive Bucketty between Wisemans Ferry Road and Mt Simpson Track:-
· The existing advance warning signposting on the approaches to all low speed curves be upgraded to size 'C';
· Chevron Alignment Markers (CAMs) be installed for both directions of travel at the curves located at 0.25km, 0.45km, 0.55km, 1.08km, 1.43km, 1.55km, 2.05km and 2.22km north of Wisemans Ferry Road;
· The existing double unbroken (BB) markings be re-marked.
2. A Federal Blackspot Funding application be submitted to the RTA for the construction of pavement widening, construction of guard rail / wire-rope fencing and the installation of edgelines and Raised Reflective Pavement Markers (RRPMs) on the existing curves between 0.95km and 1.25km north of Wisemans Ferry Road Cncl DECISION: The recommendation be adopted."
[Exhibit "J", Tab 2, p 145]
After the deceased's accident, a concerned citizen wrote to the Council about the accident site in the following terms:
"Re: Corner on George Downes Drive approximately 1 km north of Settlers Road junction at Bucketty. Sadly there was a fatality on the afternoon of Sunday 1 March 2009 when a motorbike left the road on this dangerous corner. This corner is notorious to those who use the road and over the years there have been many instances of vehicles failing to negotiate it successfully. There has been at least one other fatality.
Some time ago local residents put up home-made wooden signs painted with "Bad Bend" to try to warn drivers but these have since rotted away. Drivers coming north from Kulnura have a relatively straight, easy, fast run up to the Settlers Road junction after which the road speed limit is 80kph. However, there is no clear warning of how difficult this first corner is to negotiate - due to its double curve, its tightness, the unsympathetic camber of the road and the poor condition of the bitumen surface."
[Exhibit "J", Tab 2, p 147]
The letter went on to describe the aftermath of the subject accident in the following terms, followed by a request for works to be carried out:
"We arrived at the scene of the accident on Sunday shortly after it had occurred. As a Senior First Aider I assessed the situation and commenced CPR. Others came along and helped. It was 45 minutes before the ambulance arrived, the long wait being due to the lack of mobile telephone service, the remoteness of the location and to make matters harder this is a radio black spot for Emergency Services. All these factors add up to extending the time for a response to such an accident. It was certainly far too long on Sunday to save the casualty.
Additionally, the road was closed for over six hours during which time five volunteer Fire Brigade crews were required to manage the considerable traffic that occurs on the road at that time of day.
I am asking Council to erect clear warning signs on this corner. Signage, that will not only warn drivers of the danger, but also seriously impact on them so that they reduce speed and take the necessary care. If this prevents further accidents and, most especially, the loss of another life, it would be utterly worthwhile. It would also have the benefit of reducing the need of volunteer hours in traffic control and the anguish of all who become involved in such incidents where the remoteness means that professional help is unlikely to arrive in time to save the life of anyone critically injured.
I fully understand that signage is a cost to Council. However, this must be worthwhile given the terrible human (and financial) costs of the loss of life and the costs of hours of emergency services and volunteer time due to the remote location of this corner. The excessive use of George Downes Drive by motorcycles is well known and I commend Council for the signage at "Lemming Corner". However, I now urge Council to install equally effective signs on this corner, the site of Sunday's fatality and many other accidents over the years, to at least try to prevent further loss of life."
[Exhibit "J", Tab 2, p 147]
No interrogatories had been issued to the defendant seeking to clarify the extent to which the defendant knew of some of the key matters within the above letter, and when such knowledge concerning the described condition of the road might reasonably have been held by the defendant at an earlier point in time, including before the deceased's accident.
Opinions of liability experts
The respective parties qualified road traffic engineers as accident reconstruction experts.
Mr Fred Schnerring was retained as the plaintiff's traffic engineering expert. He prepared a report dated 27 June 2011. On behalf of the defendant, Mr Stuart Smith was retained. He prepared a report dated 23 January 2013. Each of those reports were based on factual assumptions that required proof by evidence given in these proceedings.
As there were differences within the expert opinions, at the commencement of the trial, the parties were directed to arrange for the experts to meet in conclave in order to try and reach agreement on matters where possible, and to identify matters of opinion remaining in dispute between them. Consequently, on 5 November 2013, the experts met and produced a joint report of the same date: Exhibit "L". That report is a more concise and focussed analysis than the earlier reports. The police photographs became available to the parties on the morning of the hearing. This assisted in refining the liability analysis. The experts also gave oral evidence.
The matters traversed in that joint report were as follows:
(a) Road geometry;
(b) Road surface;
(c) Advisory speed;
(d) Signposting;
(e) Crash dynamics;
(f) Speed;
(g) Crash causation;
Resolution of differences in the expert opinions
In the paragraphs that follow, I set out the matters upon which the experts remained in disagreement on the essential topics identified in the preceding paragraphs.
Road geometry
The experts disagreed on aspects of how the geometry of the road was to be measured. In the joint report, it was noted that Mr Schnerring took the view that there were possible differences in the measurement of the reflection of the central radius of the curve in question, indicating it possibly did not follow conventional modern geometry of spiral transitions leading into a central circular curve. In contrast, Mr Stuart-Smith did not agree that the curve had unconventional geometry.
This issue was of limited significance given the underlying road was formed in convict times and the road was developed on those lines.
The oral evidence on this topic indicated that there were subjective factors of interpretation of diagnosis that underpinned this area of disagreement.
Road surface
The experts agreed that the road surface of the curve at the crash site comprised spray seal aggregate, parts of which were in a reasonable condition, and other parts were in a poor or rough condition. They agreed there were permanent and temporary patches located on the outside of the road before the right curve, and through the first half of the curve.
Mr Schnerring considered that the pavement of the road surface showed evidence of corrugations, shoves and depressions, indicating pavement failure. In contrast, Mr Stuart-Smith considered the pavement in the area close to the crash site alongside the tyre mark beside the road was rough, but passable. He also considered that the pavement in the lead-up to where the deceased apparently left the roadway, was generally adequate.
The oral evidence indicated that these considerations also involved subjective judgments that in turn influenced the interpretation of the deceased's line of travel and road position, speed and braking behaviour and intentions at the time his motorcycle left the roadway.
Advisory speed
Both experts agreed that the posted advisory speed of 55kph was appropriate.
Signposting
Both experts agreed that a reverse curve warning sign with a 55kph advisory speed was present preceding the first curve, consistent with AS 1742.2. They also agreed that Chevron alignment markers ["CAMs"] were present on the outside of the first curve and that CAMs had been added to the outside of the northbound right curve at the crash site since the subject accident.
Mr Schnerring considered that CAMs should have been present on the right curve, and the location of CAMs along the entire curve would provide guidance to road users. In contrast, Mr Stuart-Smith considered that the CAMs suggested by Mr Stuart-Smith was not based on the requirements of AS 1742.2.
Significantly, Mr Stuart-Smith believed that the curvature of the road was easily apparent to road users prior to entry into the curve, and whilst the exit was not immediately visible, it should not have been mis-perceived when it came into view.
Assuming a speed within the advisory speed, and assuming a motorcycle rider was keeping a proper lookout for the nature of the varying terrain in daylight hours, I see no fault with Mr Stuart-Smith's view.
Crash dynamics
The views of the experts on the topic of crash dynamics necessarily involved consideration of the factors of:
(a) impact and rest considerations;
(b) the tyre mark leading to the point of impact with the tree;
(c) the assumed approach to the tyre mark.
As to the positions of impact and rest, the experts took their assumptions from the police photographs. They concluded the deceased's motorcycle made significant contact with the tree in a primarily upright position with a possible slight lean to the right, resulting in a reduction in a deflection of the motorcycle to the right and away from the tree, with the deceased being thrown about 6m to the right of the tree, and the motorcycle coming to rest about 4m from the tree.
As to the tyre mark leaving the road and traversing the gravel verge of the road, the experts agreed it commenced on the western edge of the sealed surface of the road and it passed through the gravel verge over a guide post locate, and into the grass towards the tree in question, with a slight curve to the right. That tyre mark commenced 32m south of the tree at a point where there was a permanent pavement patch on the road surface.
There is difficulty interpreting the photograph for determining whether the pavement at the start of the mark had been repaired. Significantly, there was some loose aggregate noted on the photograph of the pavement where the tyre mark commenced in the gravel. It is not known when and how it came to be there, or whether the deceased's motorcycle had traversed it.
The experts concluded the mark appeared to show little evidence of slippage but some likely slippage from a non-locked braked wheel. This led Mr Schnerring to conclude that the braking was light only, and almost certainly from the rear wheel of the deceased's motorcycle.
As to the approach of the motorcycle to the tyre mark, the experts were in disagreement.
Mr Schnerring undertook an analysis of various assumed scenarios of the tracking approach of the motorcycle to a point where it left the pavement and where the tyre mark in the gravel commenced. All of these scenarios were necessarily speculative as there were no antecedent marks on the road pavement anywhere to the south of the tyre marks in the gravel that would permit a fact-based, reasoned plotting of a line of approach.
Whilst Mr Stuart-Smith also specialised on the matters of road position and trajectory, his essential view was that it was not possible to determine the precise path or intended line of travel of the deceased's motorcycle to the commencement of the tyre mark. Mr Stuart-Smith nevertheless considered that something, or some perception, the details of which were unknown, had caused the deceased to apply the brakes on "approaching or at the start of the central part of the curve at the time".
The oral evidence of the experts was necessarily limited in terms of providing a probative analysis because of the need to make assumptions which necessarily remained speculative.
Speed
Both experts agreed that, based on the postulated throw distances as well as the damage to the motorcycle, the speed of the motorcycle must have been "likely to have been around 45 to 50 km/h". Within that assessment lay the critical unknown, namely that the deceased's "approach speed is dependent on the extent to which he braked before creating the tyre mark (if any), as well as a degree of braking whilst leaving the tyre mark".
Crash causation
As to the critical question of the diagnosis of the crash, the experts were in complete disagreement. That disagreement is evident from the following different analyses.
Mr Schnerring's analysis was:
"The tyre mark commences just after the "tip in" or "turn in" point for the curve. Up to the "tip in" point, a rider would be expected to follow a path on the left side of the lane and parallel to the edge of the pavement, generally the left wheel path of a car. At the "tip in" point a rider would expected to transition away from the left side of the lane and move across towards the right side of the lane, generally the right wheel path of a car.
The tyre mark indicates Mr Walters was clearly off-line. The motorcycle was upright and heading away from where it would be expected to transition towards the right side of the lane.
In conjunction with my comments regarding the approach to the tyre mark, the likely cause of the crash is Mr Walters misperceiving the right curve and apexing too early. The curve had the appearance of ending earlier than it actually did. This can be a matter of an individual road user's perception, i.e., some road users may correctly perceive the curve but I consider that a road user could reasonable misperceive the curve as ending early. This would cause a rider to aim to apex early, leading them to run wide on the curve before the true exit.
The two curves of the reverse curve sequence are markedly different. A road user might reasonably perceive the second curve to be similar to the first curve precisely because they are marked as a reverse curve. Indeed, the use of the reverse curve sign should apply to a pair of curves that are similar in geometry. So a road user who based their negotiation of the right curve being like that of the left curve could reasonably be surprised by the markedly different geometry.
Furthermore, other curves marked with an advisory speed of 55km/h on George Downes Drive and Great North Road were found to be easily and safely negotiated at speeds of around 80km/h at the time of my site inspections. This included the
inspection undertaken with a motorcycle on 28 May 2011. The right curve at the accident site required a significantly lower speed.
Road users expectations are built up by preceding experiences as they travel along a road. If a road user found that they could comfortably or easily negotiate curves marked with advisory speeds of 55km/h at say 75km/h to 80km/h, they would be surprised by the curve at the accident site. Their expectations, built up by how they had negotiated the previous curves, would be violated.
The nature of the road repairs are likely to have been a factor in making a correction of the line more difficult, as discussed earlier.
CAMs around the outside of the curve would have provided guidance as to the true nature of the curve, i.e., that the curve extended further than a road user might perceive. Signage warning of a rough surface would warn and inform motorcycle riders in particular of the condition of the pavement ahead.
If Mr Walters was distracted by Mr Nichol's and or his motorcycle, then it should be noted that, Mr Walters would have to have looked through the curve. A motorcycle will go where a rider looks. This is because as a rider turns his head, handle bar inputs follow. It is very difficult to ride in a different direction to where a rider is looking. Looking towards Mr Nichols would not expect to have taken Mr Walters off the road."
Mr Stuart-Smith's analysis was :
"The evidence of braking along the tyre mark and the tyre mark's curvature show that the crash resulted from Mr Walters decision to brake and travelling too wide as he rounded the curve.
The trigger for braking (which occurred when Mr Walters was approaching or at the start of the central curve) is not known but could have been his observation of Mr Nichols on the side of the road, with the possibility of "target fixatedness", and/or excessive speed for the curvature of the road being factors. The trigger was not likely to have been a perception of the poor road surface, which would have been too far away to perceive as a potential hazard.
There is no evidence of the road surface having been a factor in Mr Walter's decision to brake or in his loss of control. The area of rough pavement was located after the commencement of the tyre mark.
The curve was correctly signposted with the appropriate curve warning sign and advisory speed. The degree of curvature of the right curve is readily apparent. There is no reason why the extent of the curvature could be mis-perceived.
Nonetheless, the location where Mr Walters left the road (about half way around the curve) means that he could not have apexed the curve beforehand from a conventional approach. Mr Walters left the curve too early within the curve for misperceptions of the curve to have been possible.
Previous 55 km/h advisory speed curves could be seen to be shorter than the curve at the crash location and consequently, able to be traversed at higher speeds.
A prudent rider could be expected to take a line through the curve at an appropriate speed that allowed for a sufficient safety margin to be able to cope with any misperceptions.
Mr Stuart-Smith disagrees with Mr Schnerring that the geometry of the two curves is sufficient dissimilar to warrant separate treatment. The twin curves were appropriately signposted based on to AS 1742.2.
The cause of the crash relates to the decision by Mr Walters to brake (possibly combined with excessive speed) as he was approaching the central portion of the curve. There is no evidence or indication that pavement factors played a role. Mr Walters left the road too early within the curve for misperception of its termination or curvature to have been possible factors."
Mr Schnerring's theory was that the deceased misperceived the curve, but noted this can be a matter of individual perception. His theory is also founded upon a build-up of perceptions based on experience. His view that the rates of the road repairs having been a likely factor in making a correction line more difficult for the deceased must be based upon the road position he assumed the deceased had adopted. In my assessment that analysis involves speculation that is unsupported by the evidence.
Mr Stuart-Smith's assumptions as to the plaintiff's decision to brake as the cause for the tyre mark is also unsustainable without evidence as it fails to deal with steering as a possible explanation for the direction and curvature of the tyre track.
The essential point is, as both experts recognise, the reason for the deceased's decision to brake is unknown, and therefore any analysis around that action must remain speculative.
The discussions by the experts about rider misperceptions and excessive speed are also based on unsupported speculation. Mr Stuart-Smith has identified the problem in saying, at the conclusion of the quotation at paragraph [111] above, that these were "possible factors".
In short, there is so much unknown about the circumstances, that a liability analysis must proceed with caution.
Issue 1 - Sufficiency of factual information
On considering the entire array of the evidence summarised in the preceding paragraph, the compelling conclusion is that there is insufficient information available for a reasoned analysis as to the cause of the deceased's accident.
A speculative analysis is impermissible and findings of fact should not proceed upon the basis of unwarranted speculation: Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 at [8], citing the decision of the High Court in Bradshaw v McEwans Pty Ltd, now reported at (1951) 217 ALR 1, where, omitting other internal references and citations, the following statement appears:
"... as far as logical consistency goes many hypotheses may be put which the evidence does not exclude positively. But this is a civil and not a criminal case. We are concerned with probabilities, not with possibilities. The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while in the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture ... But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise ..."
[Emphasis added]
In my view the following factors preclude a reasoned factual analysis of the events that led to the death of the deceased.
(1) The road position and curve trajectory position of the deceased's motorcycle in the moments before his motorcycle left the bitumen roadway remains unknown, despite the reasonable attempts of the experts to posit their theories of crash dynamics, which must necessarily be speculative;
(2) The speed of the deceased's motorcycle in the moments before his motorcycle left the bitumen roadway remains unknown;
(3) The extent to which the deceased's motorcycle was braking, and the underlying perceptions and reasons for this, and in the moments before his motorcycle left the bitumen roadway, remains unknown;
(4) Whether or not the deceased's motorcycle tyres encountered a pothole, a corrugation or undulation in the road surface before leaving the roadway in the moments before it left the bitumen roadway and if so, how the deceased responded to this, remains unknown;
(5) Whether or not the deceased's operation and control of his motorcycle was baulked or distracted by an external occurrence, such as the appearance of an animal on or near the road in the moments before his motorcycle left the bitumen roadway, or a misperception or misjudgement about any of the topographic or surrounding characterisation of the curve in question, remains unknown;
(6) The configuration of the roadway meant that there was scope for inattention to the demands of the curve to lead to mis-judgments and loss of control of a motorcycle whilst negotiating the curve, as is evident from the experience of Mr Nichols moments before the deceased crashed his motorcycle.
The preceding factual analysis is therefore left with competing explanations for the crash without any definite evidence or inferences favouring on explanation over another, with supporting reasons that do not rely upon unwarranted speculation.
One such explanation is that the deceased simply misjudged the demands of the curve, as had Mr Nichols, irrespective of his greater experience in riding motorcycles.
Another possible explanation could be some characteristics of the road surface and the nature of the CAMS and signage. Any explanation along those lines must link a specific condition of the road, which according to the evidence of the Council employees, did not warrant closure, and ordinary unremarkable motorcycle riding. There is no evidence that provides a satisfactory explanation along those lines.
In my view these competing possibilities cannot be resolved by non-speculative reasoned analysis. There are no facts or reasonable inferences available to be drawn from the facts that would properly permit the favouring of one possibility over the others, so as to result in that explanation being given decisive weight in balancing the competing possibilities, and to enable a finding made on the balance of probabilities. Instead, each of those elements remains equally speculative and cannot be favoured to reach a reasoned conclusion as to how or why the deceased's motorcycle left the roadway and crashed, thus causing his death.
Lest I be wrong in the foregoing analysis, in the paragraphs that follow, I will nevertheless address the issues calling for decision as best can be achieved consistent with the conclusion I have reached on the essential underlying factual question concerning how the accident occurred.
Issue 2 - Civil Liability Act 2002, s 45
In order to proceed with the claim, the plaintiff must prove the preliminary matters required by s 45 of the CL Act, which provides:
45 Special non-feasance protection for roads authorities
(1) A roads authority is not liable in proceedings for civil liability to which this Part applies for harm arising from a failure of the authority to carry out road work, or to consider carrying out road work, unless at the time of the alleged failure the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm.
(2) This section does not operate:
(a) to create a duty of care in respect of a risk merely because a roads authority has actual knowledge of the risk, or
(b) to affect any standard of care that would otherwise be applicable in respect of a risk.
(3) In this section:
"carry out road work" means carry out any activity in connection with the construction, erection, installation, maintenance, inspection, repair, removal or replacement of a road work within the meaning of the Roads Act 1993 .
"roads authority" has the same meaning as in the Roads Act 1993 .
According to s 45(2) of the CL Act, in order to proceed with her claim against the defendant, the plaintiff was required to show that the defendant had actual knowledge of the particular risk of materialisation which resulted in the harm the subject of the claim: Colavon Pty Ltd trading as Thorman's Transport v Bellingen Shire Council [2008] NSWCA 355, at [97] - [98]; Bellingen Shire Council vColavon Pty Ltd [2012] NSWCA 34, at [11] - [12].
No interrogatories were tendered on the issue of the defendant's knowledge of the risk in question. Similarly, there had been no discovery or notice to admit facts or authenticity of documents on such issues. Therefore, the only evidence available for analysis concerning the issue of the defendant's knowledge provided for by s 45 of the CL Act, had to be sought from the defendant's disclosed FOI documents, the summary of the plaintiff's investigations (Exhibit "1") and the evidence of the defendant's employees as has been summarised.
Nothing from within the evidence of the Council documents or the evidence given by the defendant's employees, assists the plaintiff on the issue raised by s 45(1) of the CL Act. There is no evidence as to what the particular risk was that is said to have materialised, so as to cause the accident. Furthermore, there was nothing within the Council records or from the oral evidence given by Council employees that suggest the threshold requirements of s 45(1) of the CL Act have been satisfied. Without that threshold matter being satisfied, the plaintiff's claim cannot succeed.
Issue 3 - Alleged negligence
The allegations of negligence relied upon by the plaintiff were particularised under paragraph 8 of the statement of claim as follows:
"i. Failure to properly maintain the road pavement.
ii. Poor workmanship impacting the road pavement and failing to correct failures of the patches and pavement,
iii. Failure to carry out routine ongoing inspection and maintenance of the road pavement.
iv. Failure to correct a dangerous curb alignment.
v. Failure to warn road users including motorcyclists of the dangerous road alignment.
vi. Allowing the road pavement to remain in rough and uneven state.
vii. Repairing the road with patches that had raised edges.
viii. Creating a hazard for motorcyclists by poor workmanship repairing previous pavement failure.
ix. Failure to heed the warning created by previous motorcycle accidents at the same location.
x. Failure to warn that the road service was corrugated and hazardous for motorcycles."
The issue of negligence must be determined according to the requirements of s 5B and s 5D of the CL Act.
There is no basis from within the lay or expert evidence for making non-speculative findings of fact that any of the alleged failures comprising particulars of negligence (i) to (x) could be sustained. Neither is there any basis of support for a negligence finding that satisfied the requirements of s 5B of the CL Act, and the requirements of factual and legal causation required by s 5D of the CL Act.
The pavement of the road was the subject of maintenance, repairs and inspections: Particulars of negligence (i), (ii) and (iii).
None of the experts stated that there was a dangerous curb alignment which required correction: Particulars of negligence (iv).
There is no evidence that the patches on the road were repaired in an unreasonable way so as to leave improperly raised edges or patch work: Particulars of negligence (vi).
Neither expert supported the allegation that the road surface was left in a roughened and uneven state, including to a degree that was dangerous: Particulars of negligence (vi).
The particulars alleging a duty and failure to warn motorcyclists of special circumstances creating a risk of injury proceed on the assumption that there was an awareness on the part of the defendant of special hazards for motorcycles at the scene: Particulars of negligence (v); (viii); (ix) and (x).
The evidence does not show that the previous accidents at the site were due to the condition of the road surface or that the road surface was in a dangerous state for use by motorcycles.
Accordingly, there is no basis upon which to either apply a s 5B analysis or a s 5D analysis because factual causation has not been established.
Issue 4 - Alleged contributory negligence
In paragraph 7 of its defence, the defendant relied upon an alternative defence of alleged contributory negligence on the part of the deceased, involving the following particulars:
"(a) Failure to keep a proper lookout.
(b) Failure to take all due care in the circumstances to avoid personal injury.
(c) Failure to take care for his own safety.
(d) Riding his motorcycle at an excessive speed in the circumstances.
(e) Failure to take any, or any proper, evasive action.
(f) Riding his motorcycle in a manner which was unsafe."
The defendant sought a finding that by reason of the deceased's alleged contributory negligence, the plaintiff's entitlement to damages should be reduced by 100 per cent so as to defeat the plaintiff's claim.
All of those particulars, if claimed to represent statements of fact to base a claim for contributory negligence, require proof. Absent such proof, on the evidence of this case, those matters must be seen as unproven speculation.
In my view, for the same reasons that I have outlined in respect of the lack of sufficient factual material to base a finding of negligence, the same comments apply equally to the issue of the deceased's contributory negligence. Therefore, the contributory negligence issue does not arise as there is no proper factual basis upon which to identify a reasoned and non-speculative finding of any departure on the deceased's part concerning his obligation to take reasonable care for his own safety.
Issue 5 - Assessment of damages
In accordance with convention, notwithstanding my liability findings in favour of the defendant, I now turn to the assessment of the plaintiff's damages.
The plaintiff's case for assessment was based upon the calculations set out by Messrs Furzer Crestani, Forensic Accountants, in a report dated 12 March 2013. The parties developed a document that set out their respective positions on damages: MFI "7".
The evidence does not permit precisely refined calculations of the loss of the financial and other support from the deceased. In broad terms, the parties were at significant difference on the appropriate range of damages that should apply to this case.
Shortly stated, the plaintiff's figure was submitted to be of the order of $700,000. In contrast, on behalf of the defendant, the damages were suggested to be in alternative amounts of the order of between $445,000 and $550,000, depending upon the assumptions adopted for the valuation of the claim for the last services that the deceased provided to the plaintiff.
If the plaintiff had succeeded in establishing liability in the defendant for the accident in which the deceased died, on the evidence I consider that the assessment of damages should be approached on the basis of the assessment claimed by the plaintiff as set out in MFI "7", but discounted in the following respects:
Head of claim
Assessment
(a) Loss of past support
$154,286
(b) Future loss of support less 15 per cent
$210,103
(c) Superannuation less 15 per cent
$40,058
(d) Loss of benefit for NCD income
$135,562
(e) Past loss of services
$Nil
(f) Future loss of services
$Nil
Total
$540,009
In making that assessment I consider that no case has been made out for the loss of services as claimed.
Against that assessment I consider that some discounts should be applied for the prospect of the plaintiff re-partnering and thus reducing her level of dependence on the deceased's support as well as increasing her own earning capacity.
Those discounts have been applied to reflect the fact that the plaintiff retained her own earning capacity, and the level of dependence would have been diminished.
It would also have been necessary to apply a discount for vicissitudes to reflect the usual uncertainties involved in assessing future losses. These include whether the employment of the deceased would have been continuous, whether the deceased would have enjoyed continued good health, and the usual discounting factors.
If the plaintiff had succeeded on the issue of liability the discounted award of $540,009, would have been made.
Disposition
My analysis of the evidence and the issues results in the conclusion that the plaintiff's liability case has not been established. There must therefore be a verdict and judgment for the defendant.
Costs
It must therefore follow that the plaintiff must pay the defendant's costs of the proceedings on the ordinary basis unless a party can show an entitlement to some other costs order.
Orders
I make the following orders:
(1) Verdict and judgment for the defendant;
(2) The plaintiff is to pay the defendant's costs on the ordinary basis unless otherwise ordered;
(3) The exhibits may be returned;
(4) Liberty to apply on 7 days notice if further orders are required.
Decision last updated: 16 April 2014
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