Smyth v Shire of Murrindindi

[2003] VSCA 75

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 4115 of 2001

GERARD AND VICKI SMYTH
	Appellants
v.
SHIRE OF MURRINDINDI	Respondent

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JUDGES:	CHARLES and VINCENT, JJ.A. and WARREN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 June 2003
DATE OF JUDGMENT:	10 June 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 75

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APPEAL – Adequacy of reasons – Inconsistencies in findings – Lack of adequate findings on negligence, duty of care, breach of duty and contributory negligence.

MISFEASANCE – Extent of contribution to causation.

CAUSATION – Whether one or multiple factors – Contributory negligence.

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr W.T. Houghton Q.C. with Mr D.J. Connell	Battley & Co.
For the Respondent	Mr J. Ruskin, Q.C. with Mr C.J. Blanden	Blake Dawson Waldron

CHARLES, J.A.: 

1. I will invite Warren, A.J.A. to give the first judgment.

WARREN, A.J.A.:

1. The appellants appeal from dismissal of their claim against the respondent in the County Court for damage to a prime mover and trailer.

1. The circumstances of the damage arose from a single vehicle accident.  The first appellant, Gerard Smyth, was driving the vehicle along the Toolangi‑Kinglake Road, Kinglake in wet conditions at about 3.30 p.m. on the afternoon of 18 March 1997.  The speed limit was 100 kph.  It was uncontroverted that Mr Smyth was travelling at about 70 kph at the time.  He encountered a curve in the road and lost control of the vehicle.  It veered off the road, up an embankment and ran into trees.  The appellants issued a writ in the County Court against the respondent, the Shire of Murrindindi.  The appellants alleged that the subject roadway was slippery and dangerous.  They alleged that the accident was caused by the negligence of the shire or alternatively, by breach of the shire of its statutory duty under the Transport Act 1983.[1]  There were 11 specific particulars of negligence and breach alleged against the shire, including the application of unsafe and unsuitable road repairs and failure to have regard to the accident history of the section of roadway.  The appellants claimed damages in the sum of $87,383.61.

   [1]Schedule 5, clause 5(1).

1. The shire denied the allegations, including the owing of any duty of care.  Further, the shire alleged contributory negligence against the appellants including speeding and failing to slow down.  In addition, the shire pleaded the defence of immunity from non‑feasance and denied misfeasance. 

1. During a trial lasting approximately four days, the appellants relied upon the evidence of Mr Smyth concerning the circumstances of the accident and the condition of the roadway.  Evidence was given at trial for the appellants by Mr James

Iddy, a tanker driver, and Ms Anita Wallis and Ms Jan Cook, both motorcyclists.  Each of those witnesses gave evidence of separate, single vehicle accidents in which they were involved during the month of May 1996 at the particular road section.  Subsequently, Mr Iddy made an unsuccessful claim for loss and damage against the shire.  Later, Ms Wallis and Ms Cook complained in writing to the shire about the condition of the roadway.  There was evidence of another vehicle accident very shortly before the incident in question.  There was also evidence at trial that by letter dated 21 March 1997 the director of engineering services for the shire wrote to VicRoads regarding, inter alia, the subject roadway and expressed concern that “a major accident” would occur.  Roadworks including specific repairs were proposed.  The letter was dated three days after the incident involving Mr Smyth.  On 15 April 1997, VicRoads wrote to the shire identifying the need for works including repairs on the road. 

1. Various engineers and others, including persons employed by the shire, gave evidence at trial as to the accident history of the road, the history of maintenance carried out by the shire on the road surface, the condition of the road at the time of the accident, the acknowledgment of the need for road works and the state of knowledge of the shire as to the condition of the road.  Those witnesses included experts, namely, Messrs Marshall, Stamp and Grover.  There was evidence of preventative measures taken by the shire shortly after Mr Smyth’s accident, including the installation of different signage.  The additional signage provided a warning to the effect that the subject road was slippery when wet.  There was also extensive photographic and documentary evidence tendered at trial including expert reports and documents concerned with road management responsibilities under the Transport Act and the demarcation between the responsibilities of the shire and VicRoads.  Essentially, there was evidence that the road condition suffered from “stripping” and had deteriorated despite interim measures by the shire.  The phenomenon of “stripping” was described as the shifting through usage of aggregate to the side of the road thereby exposing bitumen which has less vehicular traction.  Importantly, Mr Marshall, the appellants’ engineer, performed a calculation that a vehicle, such as that of the appellant, could negotiate the curve in a road of the type in question at a speed up to 75 kph.  Conversely, there was other evidence to the contrary given by Mr Stamp.  Yet again, there was different evidence from the shire’s own engineer, Mr Grover, to the effect that the curve could be negotiated at 46 kph, but when wet, at only 40 kph or less.  Ultimately, Mr Grover was hesitant as to whether even that was a safe speed in the circumstances. 

1. At the completion of the evidence the learned trial judge heard oral submissions on behalf of the shire.  Those submissions were concerned with the appropriate findings of fact as to the existing signage at the time of the accident, the issues of law being negligence, duty of care, causation and the statutory duty of public authorities such as the shire.  In essence, it was the case for the shire that the accident was not caused by the condition of the road but by the failure of Mr Smyth to adhere to an advisory sign speed limit of 40 kph.  It was the further case of the shire that it did not owe a duty of care or statutory duty to the appellants.

1. The trial judge then received oral and written submissions for the appellants.  The oral submissions traversed the evidence.  The written submissions were very detailed and devoted to the issues of non‑feasance and misfeasance.  The submissions cited many of the established authorities, as prevailed at that time, including Gorringe v. The Transport Commission (Tas.)[2] and two judgments of this court, City of Melbourne v. Barnett[3] and Indigo Shire Council v. Pritchard.[4]  The written submissions also referred to Singleton Shire Council v. Brodie and Anor,[5] a judgment of the New South Wales Court of Appeal concerned with non‑feasance.[6]  Next at trial, there were then short oral submissions in reply for the shire.  We were informed that at the end of the submissions the trial judge adjourned for a short time and then returned and delivered ex tempore reasons.  His Honour found for the shire and ordered judgment in its favour against which the appellants appeal. 

   [2](1950) 80 C.L.R. 357.

   [3][1999] VSCA 171.

   [4][1999] VSCA 77.

   [5][1999] NSWCA 37.

   [6]After the present case was determined, the High Court overturned the decision of the New South Wales Court of Appeal in Brodie & Anor v. Singleton Shire (2001) 206 C.L.R. 512.

1. The reasons for judgment ran to some 35 lines and covered a little over one page.  They referred very briefly to the appellant, Mr Smyth, and the accident.  In his reasons, the trial judge did not summarise or analyse the evidence.  Significantly, the evidence of the witnesses as to the condition of the road, the history of accidents at the road section, the works performed by the shire, both before and after the event, and their adequacy or otherwise and the state of knowledge of the shire as to the road were all largely ignored.  The trial judge found that the vehicle “was travelling too fast for the road surface as it then was”.  Curiously, he found that the speed at which the vehicle could traverse the road was 75 kph when in fact Mr Smyth accepted, as put to him on behalf of the shire, that he was travelling at 70 kph.  His Honour found further: “The speed at which the road surface as it then was could be traversed before a truck loaded such as this lost sideways traction was 75 kph for wet asphalt.”  There was no analysis of findings upon the differences in evidence between the experts or, in particular, the evidence of the shire officer Mr Grover.  His Honour found that there was an advisory speed sign of 40 kph present at the time, however, he made no mention of Mr Smyth’s evidence that he did not see such a sign.  His Honour found that the 40 kph advisory speed sign was not observed and that if Mr Smyth had “done so” he would have slowed the vehicle to less than 40 kph.

1. Notwithstanding these findings, the trial judge considered the condition of the road at the time and, also, at the time of some of the earlier accidents, and concluded that the works performed by the shire were inadequate and unsuitable.  His Honour found: “What the council did increased the risk of accidents.  It made the road worse.”  Hence, the trial judge found misfeasance.  Despite this finding his Honour went on to conclude that the actions of the shire did not cause the accident, rather, as he had already found: “Excessive speed was the only cause”.  The reasons for judgment did not countenance the matter of negligence on the part of the shire despite the finding that the shire’s actions exacerbated the condition of the road.  Furthermore, the reasons did not address the matter of breach of duty of care or breach of statutory duty notwithstanding the findings as to the consequences of the road works performed by the shire.  His Honour did not consider the matter of contributory negligence. 

1. The amended grounds of appeal challenged various aspects of the judgment.  The first ground was that the trial judge failed to give any or any adequate reasons.  The other principal grounds were to the effect that the reasons for judgment were against the evidence; that they failed to examine whether the shire owed a duty of care and whether such duty, if owed, was breached; that the reasons failed, in light of a finding that the shire made the road worse and increased the risk of accidents, to not make a finding of negligence and proceed to consider the matter of contributory negligence, if any.  There were some remaining grounds that I put to one side for the moment as they were not seriously pursued in submissions or argument.  Summarily, the grounds of appeal as argued were devoted to the adequacy or otherwise of the reasons and the approach of the trial judge to the matter of causation.

1. Faced with the brief reasons of the trial judge I find it impossible to ascertain or identify the intellectual processes he pursued to reach his findings.  His Honour merely stated his conclusions and, even then, in a manner indicative of error or at least an overlooking of evidence that potentially contradicted his findings and which in some respects was non-contentious between the parties.  The trial judge considered that the findings as to speed and failure to comply with the advisory speed sign were sufficient to dispose of liability and support judgment for the defendant.  It is impossible from an appellate perspective to ascertain or identify the basis upon which the trial judge reached the primary conclusions as to causation and misfeasance.  In addition, the findings, on their face, are inconsistent and incompatible.  Furthermore, aside from not revealing the necessary analytical processes, the reasons paid no heed, even by cursory mention, of the applicable legal principles relating to negligence, duty of care, causation, non-feasance and misfeasance. 

1. Concise reasons for judgment, generally speaking, are a judicial virtue.  It is not the brevity of his Honour’s reasons with which I have difficulty.  Rather, the difficulty is caused by the inconsistencies on the face of the findings and the absence of demonstration of the intellectual processes applied such as to enable the identification of correctness or appellable error in the reasons.  The judicial obligation in providing reasons for judgment is well‑established:  see Roy Morgan Research Centre v. Commissioner of State Revenue;[7] Fletcher Construction Australia Ltd v. Lines McFarlane & Marshall Pty Ltd (No. 2);[8] also Government Insurance Office of New South Wales.[9] 

   [7](2001) 207 C.L.R. 72, 83-84, 85-87.

   [8][2002] VSCA 189 [99]-[106].

   [9](1997) 48 N.S.W.L.R. 430, 441-42.

1. Mr Ruskin, who appeared with Mr Blanden for the respondent, endeavoured to defend the judgment below.  He admitted that the reasons were exiguous but nevertheless extracted four core findings: first, that there was an advisory sign of 40 kph; secondly, that Mr Smyth failed to observe it; thirdly, that he would have slowed if he had observed it; and fourthly, that the cause of the accident was speed.  Mr Ruskin accepted that the finding as to speed did not sit easily with the evidence.  He invited us to conclude that 70 kph, the actual speed of Mr Smyth, was so close to the 75 kph calculation of the expert Mr Marshall that speed, and only speed, was the cause of the accident.  Mr Ruskin referred to the finding of misfeasance also and urged us to find that his Honour, in effect, concluded that misfeasance did not contribute to the accident because the difference between 70 kph and the proper speed (less than 40 kph on Mr Grover’s evidence) was sufficiently great as to constitute the sole cause of the accident.  Such analysis might well be correct but the difficulty at an appellate level is that, in my view, a court cannot say whether there is an appellable error or not.  For my part, to accept the respondent’s submissions would require this court embarking on speculation and drawing inferences.  I add I could not do so with any confidence. 

1. The difficulty that is presented to this court is well demonstrated when consideration is given to the appellants’ second principal ground of appeal, that the trial judge failed to correctly approach the matter of causation by not looking at whether there was more than one cause of the accident (pursuant to the principles in

March v. Stramare[10] and the other relevant authorities.[11])  It is difficult to see how his Honour approached possible concurrent and sequential causes as described in the evidence at trial.  He simply did not deal with the evidence as to the state of the road and the status of signage.  Mr Ruskin endeavoured to explain the approach of the trial judge as tantamount to a conclusion by his Honour that 75 kph was the maximum speed, that Mr Smyth travelled close enough to that speed and that it was unproven at trial as to whether the condition of the road contributed to the accident.  Again, I find that to apply such approach to the reasons amounts to speculation and the drawing of inferences.  It remains that his Honour was silent as to the subject of contributory negligence. 

[10](1991) 171 C.L.R. 506, 513-516, 524, 525.

[11]See Medlin v. State Government Insurance Commission (1995) 182 C.L.R. 1, 6-7; Henville v. Walker (2001) 206 C.L.R. 459, 480.

1. The present case involved a civil claim where there was a four day trial, a number of witnesses, including experts, extensive exhibits and oral and written submissions.  In my view, it was in the category where proper reasons were necessary as to do less, in the words of Buchanan, J.A. in Perkins v. County Court of Victoria & Ors, “would frustrate a right of appeal”; [12] see also, Cropp v. Transport Accident Commission.[13] 

   [12](2000) 2 V.R. 246, 270.

   [13][1998] 3 V.R. 357, 376 per Charles, J.A.

1. The judicial obligation with respect to reasons is threefold: first, to enable an appellate court to determine whether there is appellable error; secondly, to provide the foundation for the acceptability of the outcome, namely, to do and to seem to do

justice; and thirdly, to promote judicial accountability so as to guard against an unconsidered or impulsive decision: see Fletcher Construction.[14]  With regret, I find myself unable to be satisfied that the trial judge fulfilled the aforesaid obligations.  Properly construed, the purported reasons did not constitute reasons.  They were merely conclusions and, even then, barely perfunctory conclusions.  In my view the first ground of appeal is made out. 

[14]Ibid at [100].

1. The principal remaining grounds were concerned, as I summarised already, with legal error and the failure of the trial judge to address the evidence.  In the event, I consider it is unnecessary to determine any of the remaining grounds of appeal.  I consider that the appeal should be allowed, the judgment set aside and the proceeding remitted for re-trial. 

CHARLES, J.A.: 

1. The trial judge found that the respondent had, as Mr Ruskin conceded, been guilty of negligence, in that the cause of the deterioration in the road surface was the application of a faulty 7-millimetre reseal, saying that what the council did increased the risk of accidents and made the road worse.  His Honour, however, then stated that excessive speed was the only cause of the accident which happened.  Earlier in his Honour’s very brief reasons, it was said that the first appellant was travelling too fast and that he had failed to observe a 40 kilometre per hour advisory speed sign before the corner where his vehicle ran off the road.  But his Honour had also said that the speed at which the road surface could be traversed when wet, before losing sideways traction, was 75 kilometres per hour.  And, as Mr Ruskin again conceded, on all the evidence, it was possible that this accident could have occurred even if the first appellant had slowed his vehicle to 40 kilometres per hour.

1. As Warren, A.J.A. has pointed out, the judge’s reasons do not refer to any of the relevant evidence.  Nor is there any explanation for his Honour’s conclusion that the state of the road, and the respondent’s admitted negligence, did not materially

contribute to the happening of the accident, or even an indication that his Honour considered this critical question.

1. I entirely agree with Warren, A.J.A. that this appeal must be allowed, the judgment below set aside, and a new trial ordered, for the reasons her Honour has given.

VINCENT, J.A.: 

1. I agree that this appeal should be allowed, the judgment in the court below set aside and a new trial ordered.  I do so for the reasons advanced by Warren, A.J.A.

CHARLES, J.A.: 

1. The orders of the Court are that the appeal is allowed.  The judgment below is set aside and the Court orders that the action be remitted to the County Court for retrial.

(Discussion ensued.)

CHARLES, J.A.: 

1. As to costs, the Court orders that the respondent pay the appellant’s costs of the appeal.  The costs of the first trial should be in the discretion of the judge hearing the retrial.

1. There will be a certificate for the respondent under the Appeal Costs Act.

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