Shire of Leonora v Cooper

[2008] WASCA 247

SHIRE OF LEONORA -v- COOPER [2008] WASCA 247

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASCA 247
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:99/2007	Heard:	15 SEPTEMBER 2008
Coram:	WHEELER JA MILLER JA LE MIERE AJA	Delivered:	1/12/08
No of pages:	24	Judgment Part:	1 of 1
Result:	Appeal dismissed Cross­appeal allowed
Category:	B
PDF Version

Parties:	SHIRE OF LEONORA ROBERT JOHN COOPER
Catchwords:	Torts Negligence Contributory negligence Motor vehicle accident Cross­appeal Loss of earning capacity Turns on own facts
Legislation:	Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947, s 4
Case References:	Brodie v Singleton Shire Council (2001) 206 CLR 512 Lujans v Yarrabee Coal Co Pty Ltd [2008] HCA 52 Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 Pennington v Norris (1956) 96 CLR 10 Wyong Shire Council v Shirt (1980) 146 CLR 40

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SHIRE OF LEONORA -v- COOPER [2008] WASCA 247 CORAM : WHEELER JA

MILLER JA
LE MIERE AJA

HEARD : 15 SEPTEMBER 2008 DELIVERED : 2 DECEMBER 2008 FILE NO/S : CACV 99 of 2007 BETWEEN : SHIRE OF LEONORA

Appellant

AND

ROBERT JOHN COOPER
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : EATON DCJ

Citation : COOPER -v- SHIRE OF LEONORA [2007] WADC 73

File No : CIV 3393 of 2002

(Page 2)

Catchwords:

Torts - Negligence - Contributory negligence - Motor vehicle accident - Cross­appeal - Loss of earning capacity - Turns on own facts

Legislation:

Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947, s 4

Result:

Appeal dismissed

Cross­appeal allowed

Category: B

Representation:

Counsel:

Appellant : Mr D R Clyne
Respondent : Mr T H Offer

Solicitors:

Appellant : John Eller
Respondent : Vertannes Georgiou

Case(s) referred to in judgment(s):

Brodie v Singleton Shire Council (2001) 206 CLR 512
Lujans v Yarrabee Coal Co Pty Ltd [2008] HCA 52
Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383
Pennington v Norris (1956) 96 CLR 10
Wyong Shire Council v Shirt (1980) 146 CLR 40


(Page 3)

1 WHEELER JA: This is an appeal against a decision of a District Court judge awarding damages to the respondent in relation to injuries arising out of a motor vehicle accident. There is also a cross-appeal in relation to his Honour's failure to award any damages for loss of earning capacity.

2 In 2002, the respondent, Mr Cooper, was a sales representative for Aquacrete Mining Services, and was working in the goldfields region. In January 2002, another employee of that company, Mr Nowotny, visited the region in order to carry out an appraisal of Mr Cooper's performance. In order to do this, Mr Nowotny accompanied and observed Mr Cooper in the course of his work.

3 On 18 January 2002, Mr Cooper and Mr Nowotny left Kalgoorlie in a car provided by Aquacrete. Between the 14th and the 18th, the men took turns driving the vehicle, approximately an hour or two at a time each. They travelled from Kalgoorlie to a mine site in Leonora, and from there to the Bronzewing mine site in Leinster. On 18 January, the men left Bronzewing and returned to Leonora, Mr Cooper driving for the first half of the journey and Mr Nowotny for the second. They stopped in Leonora for breakfast. Mr Cooper then took over the driving as the men headed in the direction of Laverton. In order to visit a mine site, the men turned off the road to Laverton, after having travelled approximately 20 km.

4 The road the two men turned down was the Malcolm-Kookynie Road. That road is sealed for approximately 1 km, and then becomes gravel. It had been raining the night before, and, although there were no visible puddles, it seems to have been clear that the road was damp, as there was no dust. So far as the road surface is concerned, the evidence of both Mr Cooper and Mr Nowotny seems to have been that there was nothing remarkable about it. Mr Cooper described the condition of the road as "quite good". To Mr Nowotny, it looked like a normal gravel road. The evidence of both men was that the speed of the vehicle was generally somewhere between 80 and 90 km per hour, and this appears to have been approximately the speed at the time at which the accident occurred.

5 The accident which occurred was a single vehicle accident. The Toyota Landcruiser being driven by Mr Cooper rolled over a number of times. Both Mr Cooper and Mr Nowotny gave evidence about the circumstances of the accident, but the evidence of each man was somewhat different. So far as Mr Cooper was concerned, he said that he negotiated a right-hand corner, followed by a straight section, then a

(Page 4)

left-hand corner. As he was coming out of the left-hand corner, the back of his vehicle started to veer to the right. He attempted to correct that and the back then started to veer to the left. Again, he attempted to correct the slide and the vehicle began to veer right again, and then rolled.

6 So far as Mr Nowotny was concerned, immediately prior to the rollover, the vehicle had negotiated a slight bend and was on a straight road when the rear of the vehicle swung to the left. Mr Nowotny described three attempts at correction of sliding in which Mr Cooper over-corrected, until the rear left-hand wheel made contact with the windrow on the side of the road, and the vehicle then began to roll.

7 Having described the evidence of each of Mr Nowotny and Mr Cooper, the learned trial judge then turned to consider a videotape made by Mr Cooper some time after the accident. In that videotape, there was depicted what was said to be the broken windscreen of Mr Cooper's vehicle lying in the scrub on the side of the road, and that videotape was said to portray what was said to be the stretch of road where Mr Cooper lost control of his vehicle. His Honour observed that the videotape, "To the limited extent that it is probative, tends to be more consistent with the description given by Mr Nowotny ... ". His Honour went on to observe at [17]:

In any event, putting aside the video-tape, I was inclined to place more reliance on Mr Nowotny's account given his demeanour and apparent candour. That is not to say that I took an adverse view of the plaintiff's evidence in that regard but rather to say that I regarded Mr Nowotny's evidence as being more acute.

8 Although his Honour did not make a specific finding about the way in which the accident occurred, it appears to me that there was little, if any, difference between the men so far as the dampness of the road surface, the condition of the road surface, and the speed of the vehicle were concerned. The significant difference was that concerning whether the accident had occurred during the last stages of Mr Cooper negotiating a bend, or whether it had occurred shortly after a bend and on a straight section of road. It appears to me that the evidence which his Honour preferred was the evidence of Mr Nowotny to the effect that the accident happened on a straight stretch of road.

9 Two other matters concerning the condition of the road should be noted. The first is that, although his Honour the learned trial judge did not specifically mention the fact, the section of road depicted in the videotape is surrounded by very low vegetation. The second is that there does not

(Page 5)

appear to have been any visible indication that the stretch of road where the accident occurred was different from any other section of road. Mr Nowotny said that it seemed like a normal gravel road. Mr Cooper referred to a "shiny stretch" of road in front of him, but his evidence was that he observed the shiny stretch at a point at which he had already begun to lose control of the vehicle, rather than driving onto the shiny stretch and then losing control of the vehicle.

10 Relevant evidence called by the defendant included the following matters. Mr Mirams, the works supervisor for the Shire of Leonora, had been travelling on the Malcolm-Kookynie Road and came across the site of the accident shortly after the accident had occurred. He thought that the road surface at that area was approximately 30 feet wide. The only unusual feature of the road surface that was visible was the presence of extra wheel tracks where other vehicles had stopped. He said the Malcolm-Kookynie Road was graded at least four times a year and sometimes more often. He attempted to inspect the "more well travelled" roads within the shire at least once each month, and he classed the Malcolm-Kookynie Road as being in that category. The shire had, overall, approximately 1,500 to 1,600 km of roads in use, mainly unsealed.

11 Importantly, Mr Mirams explained that there is a large lake system which crosses many roads within the shire. The area in which the accident occurred was part of that lake system. He knew that the particular section at which the accident occurred was prone to being slippery when wet. He said there were 10 to 20 other sections within the shire which he also knew to have a tendency to become slippery when wet. They would, however, be quite safe when dry. Mr Mirams said that, when rain fell within the shire, it would not necessarily fall on this particular section of road. To his knowledge, there had not been an accident previously on the section of road on which this accident occurred.

12 No evidence was given concerning the number of days upon which rainfall might be expected within the Shire of Leonora, or the average amounts of rainfall received. His Honour would, I think, have been entitled to take judicial notice of the fact that rain is much less frequent in that area than in, for example, many portions of the Kimberley or of the South-West of the State, but would not otherwise be able to reach a conclusion about the likely frequency of rainfall.

(Page 6)

13 Mr Mirams also said that, in July 2002, that is, after the accident, the shire placed an order which included an order for four "Slippery when wet" traffic signs, one of which was placed immediately prior to the scene of this accident. The individual signs cost about $50.00 and the total cost of installation would amount to between $300.00 and $400.00.

14 His Honour found that the shire had owed Mr Cooper a duty of care, which it had breached. He found that the breach of that duty had caused the accident which occurred. He rejected a claim of contributory negligence. He ordered Mr Cooper be paid the sum of $60,000.00 by way of damages.

15 The appellant appeals the findings in relation to negligence and contributory liability, and there is a cross-appeal in which the respondent asserts that his Honour erred in failing to make any allowance in the award of damages for loss of earning capacity. Each of the grounds of the two appeals raises fairly confined issues, and it is convenient to consider each ground in turn, against the general background set out above.

Ground 1

16 This was a two-pronged ground, asserting an error in failing to provide reasons for determining that a duty of care existed, and an error in failing to identify the nature and scope of the duty. At the hearing of the appeal, the assertion that his Honour failed to provide reasons for determining that a duty of care existed was abandoned, but it was asserted that his Honour failed to identify the content of the duty.

17 At a broad level of generality, his Honour plainly relied upon the formulation of the relevant duty in Brodie v Singleton Shire Council (2001) 206 CLR 512. In a passage quoted by his Honour, Gaudron, McHugh and Gummow JJ said in that case at 577:

The duty which arises under the common law of Australia may now be considered. Authorities having statutory powers of the nature of those conferred by the LG Act 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 power within a reasonable time to address the risk. If the risk be unknown to the authority or latent or only discoverable by inspection, then to discharge its duty of care an authority having power to

(Page 7)

inspect is obliged to take reasonable steps to ascertain the existence of latent dangers which might reasonably be suspected to exist.

The perception of the response by the authority calls for … 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.

18 At [42] of his Honour's reasons, he noted that there was a risk to road users posed by the surface of the road where Mr Cooper's accident occurred when it was wet. He noted that the risk was known to the shire. He noted that it was important that drivers in the outback drive according to the conditions, but that some conditions, such as the slipperiness of the road in the present case, are not readily apparent. He noted the cost of a sign. His Honour concluded:

It does seem to me that the proper discharge of the shire's duty to road users involved the shire ascertaining all of those affected areas [that is, the areas affected by the lake system which were slippery when wet] and erecting appropriate warning signs.

19 The submissions of the appellant in relation to this ground make much of the fact that the shire had 1,600 km of roads to care for and that roads may become dangerous for all sorts of reasons, many of which will be transient (such as stock straying onto the road, or damage being caused by large vehicles passing through) and many of which will not be able to be ascertained by the relatively infrequent inspection possible for a shire with a small population and a large area. However, these submissions are not relevant to the facts found by his Honour, and miss the point of his Honour's findings.

20 I do not understand the trial judge in this case to have been suggesting that the duty of care owed by the shire was a duty to ascertain every risk which might be posed to a traveller by every section of road at any time, much less a duty to warn about such risks, no matter how transient or unexpected they might be. In the context of the factual findings made by his Honour, it seems plain to me that, although he did not express his findings as directly as might have been desirable, he considered that the relevant duty was one to warn of risks which were permanent, in the sense that they stemmed from the location of portions of roads in the lake system, which were known to the shire, and which would

(Page 8)

not be visible to a driver taking reasonable care for his own safety. His Honour considered that a duty of that kind existed, notwithstanding that the risk was not always present, but materialised only after rain.

21 The proposition that his Honour failed to identify the content of the duty owed to the respondent is not made out.

Ground 2

22 This ground contends that his Honour erred in determining that a breach of duty had occurred "in that he has determined the issue in a retrospective manner rather than in a prospective manner thereby improperly applying the principles relating to foreseeability of risk". Quite what this means is not clear on the face of the ground.

23 The way in which his Honour expressed his conclusions is not consistent with the way in which the ground is framed. At [42] of his reasons for decision, to which I have already referred, his Honour firstly considered the existence of the relevant risk and its foreseeability, and then turned to a question of "what a reasonable man would do by way of response to the risk". His Honour does not appear to me to have been asking the retrospective question, "What could the shire have done to have avoided this accident?"

24 The submissions in support of this ground suggest that the real complaint is that his Honour failed to deal with the factors falling within what the appellant describes as the "Shirt calculus", referring to this passage from the reasons of Mason J (with whom Stephen and Aickin JJ agreed) in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 - 48:

The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.

25 His Honour had relatively limited information about the factors relevant to the "Shirt calculus", but it appears to me that he referred to and considered all of them. He did not, in terms, consider the "magnitude of the risk", but it appears to me that it was not necessary for him to spell out something as obvious as the proposition that a section of road which is slippery, but does not appear to be slippery, poses a very significant risk of serious injury to those drivers who travel along it. So far as the degree of probability of occurrence of the risk was concerned, his Honour had before him, and noted, evidence that, as roads in the shire went, this road
(Page 9)

was reasonably well travelled. He noted that the road would not always, or even usually, be wet; but the risk would apparently exist whenever there had been any significant degree of rain. He referred to the expense, difficulty and inconvenience of taking alleviating action, which was negligible. His Honour did not say, expressly, that a risk of serious injury, which is likely to recur at the same spot, year after year, albeit intermittently, and which may be alleviated with almost no expense or difficulty, is one against which a shire must guard, but it appears to me that such a conclusion is inevitable.

26 In my view, this ground cannot be made out.

Ground 3

27 This ground asserts that his Honour failed to consider properly, or at all, the issue of causation, and, in particular, the question of whether, in the circumstances of this case, a warning sign would have influenced the respondent to have slowed down sufficiently to have avoided the accident. It is also asserted that his Honour gave inadequate reasons for concluding that such a sign would have influenced the respondent.

28 All his Honour said about this was: "Had there been such a sign I infer that [the respondent] would have driven more cautiously than he did do and that the accident which did occur would have been avoided". The facts which are relevant to this conclusion are also relevant to ground 4, which is concerned with contributory negligence.

29 It was the respondent's unchallenged evidence that, on the same road and not very long before the accident which occurred, there had been a sign warning of a dip in the road. It was his evidence that he had slowed his vehicle very significantly - by some 30 km per hour, or thereabouts - in order to negotiate that dip. It was, in my view, entirely reasonable for his Honour to infer that, the respondent having already altered his behaviour in response to one warning sign, it was likely that he would have altered his behaviour in response to another. There was no evidence that the respondent was prone to disregarding warning signs, or driving in a dangerous manner; on the contrary, it was his evidence that he had no "cancellations, suspensions, driving offences of any significance" (ts 21). He was experienced in driving in relatively remote areas similar to the area in which the accident occurred. It was Mr Nowotny's evidence that Mr Nowotny, too, had extensive experience of driving in remote areas and on gravel roads. Mr Nowotny considered that Mr Cooper's driving was appropriate to the conditions.

(Page 10)

30 His Honour referred in his reasons for decision at [7] and [44] to the evidence that Mr Cooper was driving in accordance with the prevailing conditions and that he had slowed for a signposted dip shortly prior to the accident. In those circumstances, it would have been, in my view, an error for his Honour not to have drawn the inference that Mr Cooper would have modified his driving in response to a warning sign.

Ground 4

31 In relation to contributory negligence, his Honour said the following at [44]:

The plaintiff said that his last recollection of the speed of his vehicle prior to the accident was that he was travelling at approximately 80 kilometres per hour. Given that the maximum speed throughout the State on any road is 110 kilometres per hour and that the maximum speed generally applicable to main roads in built-up areas is 60 kilometres per hour I regard 80 kilometres per hour as being a reasonable speed in all of the circumstances. I accept, as a matter of fact, that the plaintiff was travelling at that speed immediately prior to the accident. Mr Nowotny was cross-examined about the plaintiff's manner of driving. He accepted that if the road is wet one should drive according to the conditions and slow down. He thought that the plaintiff was driving according to the conditions even though the accident did occur on what he described as 'a greasy straight stretch of road'. He estimated the length of that particular stretch to be between 300 and 400 metres and to encompass the whole width of the road.

32 The ground of appeal asserts that his Honour erred in determining that there was no contributory negligence, in that his Honour did so primarily on the basis that Mr Cooper was travelling slower than the maximum speed permitted within the State, and "without properly considering all other relevant factors". The fact that Mr Cooper was travelling at a speed lower than - and significantly lower than - the maximum speed applicable to the road is of some relevance, but is plainly not decisive. As his Honour accepted, in the passage quoted, it is necessary to drive according to the conditions.

33 The appellant's argument is essentially that, as it was a gravel road, and it had been raining, a speed of 90 km per hour, or thereabouts, was plainly excessive in the circumstances. There are, however, a number of difficulties with this argument. There was fairly limited evidence about the nature of the road surface, but what evidence there was, was to the effect that it appeared to be in generally good condition. Mr Cooper had been driving at a speed of between 80 and 90 km per hour for some time, on the gravel road, without any apparent difficulty. Mr Nowotny

(Page 11)

considered Mr Cooper's driving to be appropriate for the conditions. As I noted earlier in these reasons, the vegetation surrounding the road was low; it was therefore not a road on which there was a significant risk of suddenly encountering large animals. The accident occurred on a straight stretch of road, so that any hazards on the road surface itself (save for the unusual slipperiness, which was apparently undetectable) would have been reasonably apparent.

34 The appellant's submissions, in effect, boil down to no more than the proposition that it is inherently dangerous to drive at up to 90 km per hour on a gravel road when it has been raining. However, much will, of course, depend upon the nature of the road surface, the nature of the surrounding terrain, the nature of the vehicle being driven, the visibility, and the extent to which the road appears to be affected by rain. Having heard the evidence of Mr Cooper and Mr Nowotny, the learned trial judge, in effect, accepted their evidence that Mr Cooper was driving according to the prevailing conditions. The appellant has not persuaded me that an analysis of the objective facts would demonstrate that that conclusion was incorrect.

Conclusion - Appeal

35 I would dismiss the appeal.

Cross-appeal

36 The cross-appeal asserts a number of errors in relation to his Honour's decision to make no award for lack of earning capacity. I deal with those alleged errors, which appear to fall into three broad categories, below.

37 The first "category" of error is said to be that his Honour failed to make findings as to the nature and extent of the respondent's level of disability. However, there was very little difference between the medical experts in relation to the respondent's residual disability. No medical witnesses were called. Mr Hardcastle, in written reports which were tendered, considered that the respondent would need continued self-medication, occasional physiotherapy and the possibility of further cortisone injections in his shoulder. His only long-term restriction for work would involve the avoidance of heavy lifting with the right arm, avoiding the use of that arm above 90 degrees abduction and repetitive use such as pulling and pushing with the right upper arm. Mr Skinner completed his review of the respondent earlier than Mr Hardcastle, by approximately two years. He considered the respondent did not require

(Page 12)

further treatment for his right shoulder and that he would be left with a "mildly reduced range of motion" in the right arm as compared to the left. He noted complaints, at the time of his review, of mild discomfort affecting the shoulder, in particular at the extremes of motion and a pain radiating from the cervical spine across his shoulder and into his right arm. The respondent's evidence was of "constant" pain in the neck, albeit at a relatively low level, which was exacerbated by travel, stress and worry. His evidence, too, noted the difficultly of lifting. His Honour recited, and apparently accepted, all the evidence outlined above. There was no need, in that context, for the separate step of a "finding" as to the nature and extent of the respondent's disability.

38 In the next category, it is submitted that his Honour failed to assess the impact of such disability on the respondent's capacity to work. However, it is clear that, as his Honour noted at [62] of his reasons, the contention urged upon him by the respondent's counsel at trial was simply that there might be a "narrowing in his range of employment in the mining industry in the future". This was not a case which could involve finding the respondent fit or unfit for a variety of different types of employment. Rather, it was a case in which what was being submitted was that, should the respondent for one reason or another leave, or be required to leave, the employment which he had at the time of trial, he might find it more difficult than a worker without his disability to find appropriate employment in the future.

39 Before I turn to the other components of the cross-appeal, it is desirable to summarise briefly the course of the respondent's employment. He had been working in various relatively heavy occupations in the mining industry, earning in the range of $70,000 to $80,000 prior to 2001. Events associated with the break up of his marriage led him, after a time, to decide to look for less physically demanding work. He took up the position with Aquacrete in July 2001, on a salary of $50,000 gross per annum.

40 His Honour noted that it was the respondent's evidence that he intended to stay in the job with Aquacrete, notwithstanding that he was only earning $50,000 per annum [67]. This observation is correct as far as it goes. However, the $50,000 was apparently in addition to the supply of a vehicle and telephone, the value of which was not calculated (ts 66). Further, the indication of the respondent's intention to remain in that job formed part of a longer answer, which read as follows:

(Page 13)

Had I gone up to management side I would have got a bit more money, but to answer your question, I would have stayed in the job. I enjoyed the job. It wasn't a matter of - you've got to look at it in a context that I'm a people person; I still had contact with the mining industry; I still saw the people that I knew; I still mixed with the mates that I knew, but only on site for a night, onto the next place and on site for a night and gone to the next place. I would have stayed there for quite a long time. I quite enjoyed the job. (ts 20)

41 Immediately before that answer he had noted that the manager of Aquacrete had been in his job for some years and because that manager also had a mining background, it was the respondent's view that if he had left, the respondent would be able to step into his position. His intention, then, appears to have been to stay "for quite a time", earning $50,000 plus car, and with a view to stepping into a management role.

42 His Honour concluded that the respondent "would not have returned to work as a miner and will not do so in the future" [67]. That was a conclusion which was well open to his Honour. However, that is different from finding, and his Honour did not find, that the respondent would have been content to remain, for the rest of his working life, in a position in which he earned an income of no more than $50,000 per annum.

43 After the accident, the respondent returned to work with Aquacrete on light duties, and in due course was offered an alternate position as a warehouse administrator. However, the respondent felt that he was unable physically to carry out the tasks involved with that job. He re-trained, completing computer courses and obtaining a certificate in occupational health and safety. In October 2003, he obtained employment with a company supplying drilling products to the mining industry. However, that work involved lifting, so that he was unable to continue with it and he returned to complete a diploma course in occupational health and safety. He had two further jobs in the mining industry in the health and safety area. It is not clear why he left one, although he did require analgesics at times while working. The second of those jobs ceased when the company ceased operations. At the time of giving evidence, he had obtained a job as a fly-in fly-out safety adviser and trainer at the Argyle Diamond Mine in the Kimberley with a gross salary of approximately $90,000 per annum. It was his evidence that he thought the life of the Argyle Mine was likely to be 10 to 15 years, and that the position was a full-time position.

(Page 14)

44 The respondent was at the time of trial 50 years of age. His Honour noted that his re-training had equipped him for work in the mining industry in a "relatively specialised field".

45 His Honour's reasons for declining to make any award in relation to loss of earning capacity are found in [70] of his reasons. His Honour said:

Counsel for the plaintiff, in his closing address, submitted that there was a considerable narrowing in the plaintiff's employment options and that if he were to find himself on the employment market again he would be at a significant disadvantage both in terms of the jobs that he can do and in terms of his attractiveness to potential employers. The evidence does not, however, bear out either of those contentions. The plaintiff, as already mentioned, has shown an ability to obtain work, to improve his position and to re-train and has done so. It is entirely unrealistic to contemplate that the plaintiff might have, at the age of 50 years, returned to the more physical work of his younger days. He had, as already mentioned, made the change to his work circumstances prior to the motor vehicle accident and there was, I find, no realistic prospect of a return to the former circumstances. In my view the plaintiff has failed to establish any future economic loss resultant from the injuries suffered in the motor vehicle accident. To the contrary, by reason of his own re-training and determination he has substantially improved his position over the years and will, I expect, maintain that situation for the foreseeable future. [70]

46 With respect to his Honour, these findings are not altogether easy to understand. His Honour had noted that the field for which the respondent had re-trained was a relatively specialised one. It was plain from the respondent's evidence, which his Honour appeared to accept (and indeed there was no evidence to the contrary), that he had had difficulty in some occupations, since the accident, because of his residual disability. While it may or may not have been correct to describe his residual disability as "considerable", it seems to me that it necessarily followed from the evidence that there had been a narrowing in the respondent's employment options as a result of his disabilities. In those circumstances, it would appear to follow that if he were to find himself on the employment market again, he would be at a disadvantage in terms of the jobs that he could do and in terms of his attractiveness to potential employers.

47 Perhaps the key to his Honour's reasons lie in the finding that his Honour expected that the respondent would "maintain [his] situation for the foreseeable future". That ties in with his Honour having noted in [68] of his reasons that Western Australia presently enjoys buoyant economic conditions, largely as the result of metals exploration and mining activity. It is in that context that it seems to me that there is a force in the third category of the respondent's contentions in the

(Page 15)

cross-appeal, to the effect that his Honour erred in failing to consider how long those buoyant economic conditions might continue, or to consider the effect that the end of those buoyant economic conditions might have on the respondent.

48 Just as it is a notorious fact that conditions are at present very buoyant in the mining industry, it is also a notorious fact that mining activity tends to move in cycles, with conditions of boom being followed by conditions of "bust". The respondent had alluded to this fact in the course of his evidence; he appeared to accept that it would not be particularly difficult for him either to continue in or to find employment so long as conditions were buoyant, but expressed concern about what might happen when they were not. Given that the respondent was at the time of trial 50 years of age, it was necessary to consider whether his loss of earning capacity might be productive of financial loss at some time during the next 10 to 20 years. While it may be that buoyant economic conditions in the mining industry will persist for that period of time, his Honour was, in my view, in error in making no allowance for the possibility that such conditions would not continue.

49 Further, although it was the respondent's evidence that the life of the Argyle Mine could be estimated at 10 to 15 years, it would be wrong to assume that the respondent would therefore continue in his present occupation for up to 15 years. The mine might, for a variety of reasons, become uneconomic; alternatively, his position might become redundant or he might wish to leave that employment, for any number of reasons. Given the personal difficulties which can be attendant upon "fly-in fly-out" occupations, it would be optimistic to assume that the respondent would continue in such an occupation for up to 15 years.

50 It follows therefore, in my view, that his Honour should have made some allowance for the not insignificant possibility that, at some stage during the respondent's working life, conditions in the mining industry might become less buoyant and that a person working in the occupational health and safety field who was subject to some physical limitations, particularly in relation to lifting, might be at a disadvantage in that industry. The respondent in his evidence summarised the possibility in respect of which it would, in my view, have been appropriate for his Honour to make some allowance, in the following way:

Again, if we weren't in a boom or bust situation, if we weren't in the boom side of it, I don't say that I'd be out in the cold but I think I'd find it hard to get jobs. (ts 73)

(Page 16)

51 His Honour noted that the respondent knew a lot of people in the mining industry, and obviously had an ability to work well with people. In those circumstances, and given the respondent's apparently stable employment, it would have been inappropriate for his Honour to have made a substantial award for loss of earning capacity. However, there is a realistic and not insignificant possibility that at some stage the respondent may find himself having periods of difficulty in finding employment. In my view, a modest global allowance for that possibility would have been an amount of $25,000. I would allow the cross-appeal and make an award in respect of loss of earning capacity in that amount.

52 MILLER JA: I have had the opportunity of reading in draft the reasons for judgment of Wheeler JA. I agree with her Honour that the appeal should be dismissed on grounds 1, 2 and 3, and I respectfully adopt her Honour's reasons for dismissing the appeal on those grounds.

53 I agree also that the cross-appeal should be allowed and that the award of damages should be increased in the amount and for the reasons given by her Honour.

54 I have a different view from Wheeler JA on the issue of contributory negligence, and my reasons for allowing the appeal on ground 4 follow.

Contributory negligence

55 The fourth ground of appeal contends that the trial judge erred in fact and in law in determining that there was no contributory negligence on the part of the respondent. The particulars are contained within the ground, it being said that the trial judge erred in reaching the view that there was no contributory negligence on the part of the respondent:

[P]rimarily on the basis that the Respondent was travelling slower than the maximum speed permitted within the State and without properly considering all other relevant factors including the nature of the road surface, the fact that the road was wet which circumstances properly understood required the Respondent to adapt to those conditions and drive at a slower speed.

Conclusions of trial judge

56 The conclusions of the trial judge on the issue of contributory negligence were as follows:

The plaintiff said that his last recollection of the speed of his vehicle prior to the accident was that he was travelling at approximately 80 kilometres per hour. Given that the maximum speed throughout the State on any road

(Page 17)

is 110 kilometres per hour and that the maximum speed generally applicable to main roads in built-up areas is 60 kilometres per hour I regard 80 kilometres per hour as being a reasonable speed in all of the circumstances. I accept, as a matter of fact, that the plaintiff was travelling at that speed immediately prior to the accident. Mr Nowotny was cross-examined about the plaintiff's manner of driving. He accepted that if the road is wet one should drive according to the conditions and slow down. He thought that the plaintiff was driving according to the conditions even though the accident did occur on what he described as "a greasy straight stretch of road". He estimated the length of that particular stretch to be between 300 and 400 metres and to encompass the whole width of the road.

In my view, having regard to the evidence, the defendant's claim of contributory negligence is not made out. [44] - [45]

The evidence

The respondent

57 The respondent was 44 years of age when the motor accident occurred. He was then employed by Aquacrete as a client service co-ordinator. He travelled around the State in connection with his work and was normally 'on the road' for three weeks at a time. He had extensive experience in driving motor vehicles, having driven since he was 16 years of age. He had no driving offences of any significance and had never had his motor driver's licence suspended or cancelled.

58 In January 2002, the respondent was driving a Toyota Landcruiser. It was a 'flat tray', or 'tray back' vehicle, which was provided to him for the purpose of his employment. He said that it had good tyres, the two rear tyres having been renewed two or three weeks before 18 January 2002, and the front tyres being in good condition.

59 The respondent began the trip that ended with his accident on 18 January 2002 some four days earlier, on 14 January. The trip involved driving first from Kalgoorlie to Leonora and thence to Laverton. The respondent was accompanied by Mr Stanley Nowotny, the product development co-ordinator of Acquacrete.

60 Mr Nowotny joined the respondent at Kalgoorlie on 13 January and on 14 January they set out for Leinster, Bronzewing and Leonora. The journey appears to have taken some days, because it was 18 January when the respondent and Mr Nowotny set off from Leonora for Laverton.

(Page 18)

61 Between Bronzewing and Leonora, the road had been wet. It had been raining at times. The rain was described as 'drizzly rain'. However, by the time the respondent and Mr Nowotny got to Leonora, it was only overcast and it had not rained for about 30 km.

62 After leaving Leonora, the respondent took the road that ran east towards Laverton. He drove about 30 km to the Malcolm-Kookynie Road turnoff, and then turned to the right down that roadway. There was a short stretch of sealed road before the roadway became a gravel road.

63 The weather was still overcast as the respondent drove down the Malcolm-Kookynie Road. He drove on the gravel road at a speed which he estimated in the following terms:

Sitting on around 60, 70, 80 kilometres an hour. At times, at one time roughly probably 90.

64 The respondent was asked why his speed varied and he said:

Well, the gravel road to an extent. I mean, you had the sealed road coming off that, sitting on about 90-odd, 90, 100, and then go back onto the gravel back off to about 80, 90 K's an hour, the variations in speed were - there was a railway track, from memory, and a dip in the road some way up the road so I had to slow down for the dip, which I slowed down to about 50, 60 kilometres an hour roughly and then went through the dip. Had I not gone through that at that speed you would have flown across it.

65 The respondent said that after proceeding through the dip at 50 - 60 km per hour, he then accelerated back up to a speed of 'between 70, 80 kilometres an hour, roughly'.

66 The respondent said that the road was made up of fine and coarse gravel and it was a good surface. He was then asked the following:

You say that you came out of the dip, you increased your speed I think you said to around 80 kilometres an hour. Can you tell his Honour what happened from there?---I went around a right corner, and the, from my memory, along a bit of a straight road and then around a left corner and as I approached the left corner the back end of the vehicle started to veer right.

67 The respondent said he corrected the slide, taking his foot off the accelerator, but the back of the vehicle started to veer left, then right. He thought he had 'got it', but then:

The next minute the left hand side of the vehicle started to go and from then on the memory is there of, yes, it sort of came to a sideways positions

(Page 19)

and then just continued to roll and how many times it rolled, I wasn't counting. I don't know.

68 The respondent was asked whether the corner he negotiated was any different from any of the corners that had gone before. He said:

The angle was probably a bit funny coming off, just from memory. When you came around the corner, as I said, the road surface, because I'd driven on road surfaces previously that had been wet and I'd sat on 70, 80 kilometres an hour, the road surface it was wet previously, the road surface didn't appear to have anything wrong with it as far as that goes, the area before the turn.

69 The respondent had been on the Malcolm-Kookynie Road about 18 months beforehand. He had experienced no problem on any of the corners on that occasion.

70 A video of the approach to the corner and beyond was shown in the course of evidence. I have had the opportunity of viewing this video. Although taken long after the accident, there is nothing to suggest that the layout of that roadway has changed. It shows an area of gravel roadway and it shows the bend around which the respondent travelled. This is a distinct bend, although it could not be described as a sharp bend.

71 When cross-examined by counsel for the appellant, the respondent was taken to a statutory declaration which he had made on 8 August 2002. He identified the document and agreed that it was his. In that document, he had said that he was travelling at 80 - 90 km per hour as he proceeded along the gravel roadway and that he had slowed to about 60 km per hour about 1 km before the accident. He said that he had then built up speed again to between '80 per hour and 90 per hour'. When asked whether he agreed with this statement, the respondent said that he did agree with it 'to an extent'.

72 The respondent was asked whether he considered 80 - 90 km per hour to be a safe speed on the gravel road in the circumstances in which he was travelling:

With the road, with it having been raining, did you consider 80 to 90 a safe speed on a gravel road in those circumstances?---In those circumstances at the time the road was quite capable of that speed. I had no problems with that. I travelled the road from Bronzewing to the turn-off to the main road to Leonora, the highway, I travelled it between 70, 80, 90 K's and found no problem.

(Page 20)

In hindsight wouldn't 50 to 60 been a much safer speed in those circumstances?---That's for the judgment of the person at the time to make.

73 The respondent was asked whether on gravel roads it was necessary to take more care than when driving on a sealed road. The respondent said that he agreed with this proposition. He said that he was taking care. When it was put to him that he was doing 90 km per hour, he said, '80 to 90'.

74 It was suggested to the respondent that he was travelling at a speed more like '90 to 100':

I'm suggesting to you that if that's correct, that description, you were going at a considerable speed, even more than 80, probably more like 90 to 100?---When I came around the corner I was doing, as it says here - I looked down and saw the speedo at roughly 80.

75 The respondent was adamant in further cross-examination that he was doing '80, 90'.

Evidence of Mr Nowotny

76 Stanley Robert Nowotny gave evidence that he was manager of Acquacrete Mining Services in 2002. He visited the goldfields area in January 2002 for the purpose of assessing the respondent's work performance. He went with him to various mine sites with which Acquacrete had been dealing, the purpose being to see how the respondent conducted himself and also for Mr Nowotny to touch base with clients.

77 The vehicle in which Mr Nowotny and the respondent travelled was a four-wheel drive company vehicle. He said that the vehicle was well serviced and was generally inspected by mines mechanics.

78 Mr Nowotny described the weather conditions on the drive from Bronzewing in the following terms:

The weather conditions?---It was raining when we left Bronzewing and rained for a fair bit of the way. The road was pretty wet. I think from memory we got to Leonora, it had stopped raining. It wasn't raining from Leonora onwards, so there was a bit of moisture around.

79 Mr Nowotny said that it was not raining at the time the vehicle left the sealed portion of the Malcolm-Kookynie Road and went onto the gravel. It had, however, been raining there and the road was wet. Mr Nowotny said that there was no surface water, 'but you could see that
(Page 21)

there had been rain because the road was damp'. There was no dust thrown up as a result of driving on the gravel roadway.

80 Mr Nowotny was not watching the speedometer as the vehicle travelled along the Malcolm-Kookynie Road. He did not know the roadway because he had not been on it before. He described it as having 'the odd curve and cattle grids'. He said that, after negotiating a wash-away, the speed of the vehicle increased to 'normal operating speed in those conditions'. When asked to explain what happened he said:

Can you explain what happened then?---From memory, we came around a bit of a slight bend. We were going basically at that stage straight and all of a sudden the rear of the vehicle swung out to the left and Rob sort of drove into the slide, which we were starting to obviously slide, which is what you do. He's overcorrected, the vehicle has slid back the other way and he's steered into it again; overcorrected, it's gone back the other way; he's steered into it again, he's overcorrected. It's come back the other way. The vehicle has sort of gone down into the windrows on the side of the road that back left hand wheel has dug in. The vehicle then sort of shot out into the middle of the road and then we started to roll. We rolled four times and ended up on our wheels facing the way we'd come.

81 Mr Nowotny was adamant that, at the time the slide commenced, the vehicle had completed the turn. He said that, although guessing, he would put it at 'probably 50 metres, maybe more, maybe a hundred' from the corner when the slide began, or (as he put it) 'the wheel started to come out'.

82 In cross-examination, Mr Nowotny estimated the speed of the vehicle as 80 - 90 km per hour, but probably 90 km per hour. He said:

The estimate of speed by Mr Cooper was anywhere between 70 and 90, with 70 to 80 in one account and 80 to 90 in another. I know you didn't see the speedo but does that sound about the speed you were doing?---I would say 80 to 90, probably on the higher end. 90, if you wanted me to put - - -

90?---Yes.

83 The trial judge regarded the evidence of Mr Nowotny as 'more acute' than that of the respondent. He thought that the videotape, to the extent that it was probative, tended to be more consistent with the description of the roadway given by Mr Nowotny than the description given by the respondent.

84 This conclusion, however, related only to the condition of the roadway itself. It was not the case that the trial judge preferred the

(Page 22)

evidence of Mr Nowotny over the evidence of the respondent in relation to the circumstances of the accident.

85 The trial judge does not appear to have made a finding as to exactly how the accident occurred. His Honour's primary concern was with the question whether the roadway was reasonably safe for road users. That went to the question of negligence on the part of the appellant.

What was the cause of the accident?

86 There are two competing versions of how the accident occurred. The respondent says that the vehicle began to slide as he negotiated a bend. Mr Nowotny says that the vehicle began to slide when it was well out of the bend and 50 to 100 m from it on a straight stretch of roadway.

87 Although the trial judge preferred the evidence of Mr Nowotny in relation to the condition of the road surface, he did not say that he preferred his evidence about the circumstances of the accident. He did say that the location of the broken windscreen of the Toyota Landcruiser (shown on the videotape) was more consistent with the description given by Mr Nowotny [16], but the passage in which this conclusion is reached does not specifically address the issue of when and where the 'slide' began. On one view of it, his Honour's conclusion relates only to the condition of the road.

88 Common sense suggests to me that the slide must have begun whilst the respondent was negotiating the bend. This is what he said happened. He thought he had corrected the slide, but he had not. Mr Nowotny became aware of the fact that the vehicle was sliding at a time which he says was on the straight stretch. However, the driver would be in a better position than the passenger to know when the slide began. There is no reason why the respondent would suggest that the slide began in the corner, if it began on the straight stretch. Again, common sense suggests that the vehicle could only have slid as it was turning. Vehicles do not commonly slide out of control on straight stretches of roadway.

89 In all the circumstances, I am of the opinion that the respondent's account of how the accident occurred was clearly the correct one. Mr Nowotny's opinion is consistent with him becoming aware of the fact that the vehicle was sliding after the bend had been negotiated.

90 The question, then, is whether the respondent failed to take care for his own safety in driving into the bend at a speed which he, himself, estimated at 80 - 90 km per hour and which Mr Nowotny estimated as

(Page 23)

being within the same range, but possibly on the higher end, or '90' if he was pressed.

An assessment of contributory negligence

91 Contributory negligence is a plaintiff's failure to meet the standard of care to which he is required to conform for his own protection and which is a legally contributing cause, together with the defendant's default, in bringing about his injury: The Law of Torts, John G Fleming (9th ed page 203).

92 In my opinion, the present case is one in which the respondent failed to meet the standard of care to which he was required to conform for his own protection. His contributory negligence was a legally contributing cause to the accident that occurred.

93 The respondent failed to meet the standard of care to which he was required to conform for his own protection because, in my opinion, he was driving at an excessive speed in the circumstances. The evidence established that he was on a gravel road which was damp from earlier rain. He was travelling at 80 - 90 km per hour and possibly as high as 90 km per hour as he negotiated a left-hand bend on a gravel road. He had been on that gravel road only once before. He knew that he was required to drive according to the conditions and he considered that he was driving according to those conditions.

94 Accepting the limitations of the videotape of the scene taken long after the accident occurred and accepting also that the evidence of the relevant witnesses is of critical importance (see Lujans v Yarrabee Coal Co Pty Ltd [2008] HCA 52 at [15]), the videotape is still of importance in this case, as it shows the general layout of the roadway at the relevant location, there being nothing to suggest that this has changed.

95 The video depiction of the bend in the roadway indicates to me that driving at a speed of 80 - 90 km per hour into that bend was dangerous. Gravel roads are notoriously slippery when wet and the respondent was aware of the need to take care on a gravel road. He had earlier decelerated to a very modest speed to negotiate a wash-away. In my opinion, he should have decelerated from a speed of 80 - 90 km per hour to a lesser speed as he drove into the left-hand bend where the vehicle began to slide. Had he been travelling at a slower speed, the vehicle may not have slid at all. Alternatively, if it had slid, it would have been easier to correct.

(Page 24)

96 The trial judge's conclusion that, because the maximum speed limit on country roads in Western Australia is 110 km per hour, a speed of 80 km per hour (more accurately described as 80-90 km per hour) was a reasonable speed in the circumstances cannot be accepted. The reasonable speed in the circumstances is that which is safe for the conditions. It is not governed by the maximum speed limit applicable in the State. In my opinion, the trial judge was wrong to conclude that the respondent was travelling at a reasonable speed in circumstances.

97 Like assessments of negligence, assessments of contributory negligence are essentially value judgments upon ascertained facts (Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 per Windeyer J at 399). The value judgment that I make in this case is that there was contributory negligence on the part of the respondent.

Apportionment of liability

98 It is necessary to apportion liability in this case (Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 s 4). An apportionment of liability in a case such as this requires a comparison of culpability. In Pennington v Norris (1956) 96 CLR 10, Dixon CJ, Webb, Fullagar and Kitto JJ at 16 said:

What has to be done is to arrive at a 'just and equitable' apportionment as between the plaintiff and the defendant of the 'responsibility' for the damage. It seems clear that this must of necessity involve a comparison of culpability. By 'culpability' we do not mean moral blameworthiness but degree of departure from the standard of care of the reasonable man.

99 In the present case, I consider a just and equitable apportionment as between the appellant and the respondent to be to attribute 80% of the responsibility for the accident to the appellant and 20% to the respondent.

100 I would therefore allow the appeal on ground 4, allow the cross-appeal and order that the respondent recover 80% of his entitlement to damages.

101 LE MIERE AJA: For the reasons stated by Wheeler JA I would dismiss the appeal and allow the cross-appeal and make an award of $25,000 in respect of loss of earning capacity.