VicRoads v Seiler
[2006] VSCA 47
•9 March 2006
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 3723 of 2005
| VICROADS |
| v. |
| IAN ROBERT SEILER |
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JUDGES: | CALLAWAY, EAMES and ASHLEY, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 9 February 2006 | |
DATE OF JUDGMENT: | 9 March 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 47 | |
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Tort – Negligence – Personal injuries - Motorist – Highway authority – Jury trial – Whether jury verdict as to breach of duty by defendant, degree of contributory negligence, or quantum of damages impeachable – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr D.E. Curtain, Q.C. with Mr A.D. Clements | Phillips Fox |
| For the Respondent | Mr J.H.L. Forrest, Q.C. with Mr M.A. Nightingale | Saines & Partners |
CALLAWAY, J.A.:
I agree with Ashley, J.A.
EAMES, J.A.:
I agree with Ashley, J.A.
ASHLEY, J.A.:
Statement of the Case
This is an appeal from judgment entered on 10 March 2005 in favour of the respondent following a jury trial in the County Court at Ballarat. The respondent, Ian Seiler, was the plaintiff below. He sued the appellant, VicRoads, (conveniently, “VicRoads” or “the defendant”) for damages for personal injuries suffered in a motor vehicle collision which occurred at about 3.40am on 10 July 1998. His claim was for damages for pain and suffering and loss of enjoyment of life[1]. The jury verdict was for damages of $180,000. Because the jury also found that contributory negligence had been established to the extent of 25%, and presumably because certain payments had been made under the Transport Accident Act 1986 and had to be deducted, the judgment which was entered was for $126,469.35, plus damages in the nature of interest agreed at $3,000, and costs.
[1]In the language of the Transport Accident Act 1986, “pain and suffering damages”.
The collision occurred when a minivan which Mr Seiler (conveniently “the plaintiff”) was driving in a generally northerly direction along the Calder Highway at Harcourt North travelled onto its wrong side of the road and struck an oncoming vehicle. The point of collision was just north of the northern extremity of the Porcupine Hill bridge. The bridge itself was about 75 metres in length. The highway, to the south of the bridge, rose to a crest and then descended towards the bridge, making a sweeping left hand curve, and then straightening, as it did so. The evidence suggested that the crest of the hill was in the order of 200-300 metres south
of the southern extremity of the bridge. The descent, as put by defendant’s counsel to the witness Graeme Johns, and accepted by the witness, was not a steep one.
The plaintiff’s case, in short, was that:
· He lost control of his vehicle when its wheels encountered black ice on the road surface.
· That loss of control was a cause of the collision.
· VicRoads had breached a duty of care which it owed him, either at common law or pursuant to s14B of the Wrongs Act 1958.
· The breach was relevantly causative of the loss of control and thus the collision.
· He had suffered injuries in consequence of the collision.
The breach which the plaintiff alleged by his Statement of Claim was multi-faceted. But at trial the focus was upon two allegations. First, that any warning signs which the defendant had erected were inadequate. Second, that the deck of the bridge had not been sealed in an adequate manner in all the circumstances.
VicRoads admitted, by its Amended Defence, that it had the control, ownership and/or management of the relevant section of the Calder Highway. It was not in issue at trial that it owed the plaintiff a duty of care with respect to the condition of the roadway, and to warn road users of the risk of black ice.
Further by its Amended Defence, VicRoads denied negligence; and alternatively alleged contributory negligence. The latter plea was particularized by allegations that the plaintiff had been driving too fast, had not heeded warning signs pertinent to the condition of the roadway, and had failed to wear a seatbelt.
The plaintiff gave evidence upon the liability issues, and he called four witnesses – the driver of the other vehicle, two police officers, and a construction engineer. The last-mentioned witness had been a VicRoads employee for a period of about 37 years commencing in 1963. The plaintiff also tendered in evidence a considerable number of documents which emanated from VicRoads. Again, he relied upon an inference adverse to the defendant which he contended should be drawn by reason of its failure to call a number of potential witnesses. For its part the defendant called an engineer who had been employed by it for many years until his retirement from permanent employment in December 2004.
The plaintiff alleged that he suffered multiple physical injuries in consequence of the collision, damaging his spleen, left kidney, left lung, ribs, thoracic spine and urethra. He also alleged that he suffered psychiatric injury. He adduced evidence, mainly in the form of reports which were read to the jury, pertaining to his pleaded injuries. The defendant called no medical witnesses. The key issue at trial was not whether the plaintiff had suffered the various injuries which he alleged. It was whether any and which of them, and to what extent, had persistent or potentially permanent consequences.
The issues raised by the appeal
The substance of the issues raised for consideration by this Court is encapsulated by grounds 2, 4 and 6 of the Notice of Appeal. Thus:
“ . . . .
2 That there was no evidence upon which a jury could make a finding that the Appellant (Defendant) was negligent in a way which was a cause of injury, loss and damage to the Respondent (Plaintiff).
. . . .
4 That the jury’s verdict in relation to contributory negligence whereby it reduced the Respondent’s (Plaintiff’s) damages by 25% for his contributory negligence was against the evidence and the weight of the evidence.
. . . .
6 That the jury finding as to damages of $180,000 for pain and suffering and loss of enjoyment of life was excessive or unreasonably high in the circumstances.”
According to the summary prepared by the parties, the first of those issues involved consideration of these questions:
· Was any and what signage present at the time of the accident?
· If signage was present, was it adequate?
· Was the deck of the bridge adequately sealed?
· Was black ice either on or in the vicinity of the bridge a cause of the collision?
It may immediately be noticed that there is no complaint of misdirection or misreception of evidence. Nor is there any complaint that the learned trial judge left the matter to the jury after wrongly rejecting a “no case” submission for VicRoads. No such submission was advanced below. Nor again does any question arise as to the existence and content of the duty of care owed by the defendant to the plaintiff. The liability attack simply focuses upon conclusions as to breach and contributory negligence which were reached by the jury.
Applicable principles
There were some differences in the written submissions of the parties as to the circumstances in which an appeal court is authorised to disturb a jury verdict, specifically a verdict in a personal injuries damages claim laid in negligence. Subject to one matter, differences need not be explored, however, for in oral argument senior counsel for both parties accepted that the synthesis of principles set out by Kirby J in LiftronicPty Ltd v Unver[2] provided a proper framework for determining this appeal. It would be surplusage to set out that passage from his Honour’s judgment.
[2](2001) 75 ALJR 867 at 877, 878, [64].
There is a gloss to what I have thus far said. A distinction exists between a contention that there was no evidence supporting a jury’s verdict, and a contention that the verdict was against the weight of evidence. In a particular case, the distinction may be of significance in New South Wales, having regard to s.108(3) of the Supreme Court Act 1970 (NSW). Swain v. Waverley Municipal Council[3] involved application of the ‘no evidence’ concept in that statutory context[4]. The predecessor legislation was considered in Hocking v. Bell[5]. The ‘no evidence’ issue did not arise in Liftronic. So the principles mentioned by Kirby, J. did not advert to it.
[3](2005) 220 C.L.R. 517.
[4]As to the proper approach, see per Kirby, J. at 580-581, [203] – [205], per McHugh, J. (dissenting in the result) at 530 – 531 [33].
[5](1947) 75 C.L.R. 125.
In Victoria, there is no statutory equivalent of s.108(3). But the Court’s powers are quite broad enough to deal with contentions of the ‘no evidence’ and ‘weight of evidence’ kinds. To the extent, then, that the defendant’s submissions raised issues of one or the other kind, I have approached the matter in accordance with what was said by Kirby, J. in Liftronic, but supplemented by the ‘no evidence’ principle as explained in Swain.
The key question vis a vis liability
If it was not open to the jury to conclude, on consideration of all the evidence, that a cause of the collision, more probably than not, was that the plaintiff lost control of his vehicle when it encountered black ice, then, subject to one gloss which I shall mention later, the plaintiff’s claim must have failed. But if such a conclusion was open, then in my opinion there was a plethora of evidence, to which I shall later refer, enabling the jury to conclude that the defendant’s negligence was a cause of the collision; and that the extent of the plaintiff’s contributory negligence – plaintiff’s counsel conceded at trial that his client had been guilty of contributory negligence - was quite small, certainly no more than 25%.
Implicitly recognizing that the key question was that which I have just identified, counsel for the defendant, before this Court, sought to establish that no reasonable jury could have concluded that the plaintiff’s loss of control of his vehicle had anything to do with its encountering black ice. The submission was a simple one. It relied upon two aspects of the plaintiff’s evidence.
The first of them was the plaintiff’s evidence that he had lost full control of his vehicle when some 200-225 metres south of the bridge, and had not regained control before the collision. There was, counsel for the defendant contended, no evidence of the presence of black ice on the road so far back from the bridge. Any black ice on the bridge deck was irrelevant. Even if the plaintiff’s vehicle had only travelled onto its wrong side of the road once it got onto the bridge deck, the collision could not be ascribed in any way to the presence of such ice. It was no more than the inevitable consequence of the vehicle having been out of control long before it reached the bridge. No evidence supported a conclusion that the plaintiff could have regained control of the vehicle but for black ice on the bridge deck.
The second aspect of the plaintiff’s evidence upon which the defendant focussed was evidence given by the plaintiff that the windscreen wipers of his vehicle had been on intermittent cycle preceding the collision. That implied, according to the defendant’s argument, rain; and when rain is falling, black ice will not form. So it could not be the case that the plaintiff had lost control of his vehicle when it encountered black ice.
In my opinion each aspect of the submission should be rejected. That is so for a number of reasons.
Dealing first with the second aspect of the submission, I consider that the evidence did not merely enable the jury to conclude that there was black ice on the bridge deck – a site of key importance - at the critical time; it told strongly in favour of a conclusion that ice was then present along the full length of the deck.
It was submitted for the defendant that the evidence of Sergeant Kekich, the attending police officer, did not establish the situation as at the time of the collision. For although his evidence plainly showed that ice was present on the bridge deck to the south of the point of collision, he had not arrived at the scene until twenty minutes or so after the incident.
No such argument was available in the case of the driver of the other vehicle involved in the accident, Mr Johns. His evidence of observations which he made – what he saw, and what he experienced when he got out of his truck – in my view would in itself have enabled the jury to sensibly conclude that there had been ice along the length of the bridge deck at the critical time. Given that evidence, the evidence of Sergeant Kekich, although describing the situation a little later, could have been used by the jury to confirm the likely reliability of what Mr Johns had seen and experienced. Again, the jury was not disentitled to rely upon evidence given by the plaintiff that he had experienced complete loss of control of his vehicle when it travelled onto the bridge deck. The jury was well entitled to conclude from the evidence which he gave about that matter, taking into account the evidence of Mr Johns and Sergeant Kekich, that a likely cause of such loss of control was black ice on the bridge deck. Again, Senior Constable Petrusma gave evidence – I will refer to it later - which relevantly assisted the plaintiff’s case.
There was some evidence – given by the plaintiff and Senior Constable Petrusma - which could have led the jury to a contrary conclusion. The highpoint of the plaintiff’s evidence, from the standpoint of the defendant, lay in his agreement in cross-examination that light rain was making the road slippery – although that was “as [he] drove from home”; that as his vehicle was ascending Porcupine Hill its wipers were “on intermittent”; and that – implicitly when he began to lose control of his vehicle when well south of the bridge – he knew the road was wet.
Then, as to the impact of rain on the prospect of black ice forming, Senior Constable Petrusma said that “if it was raining you wouldn’t have black ice”; that if it was “raining constantly you won’t have black ice”. He also “suggested” that black ice would not form if there was rain such that the driver was required to put the vehicle wipers “on intermittent”. But he also said that “if you’ve talking about moisture in the air”, “merely mist”, then black ice could definitely form. It all depended on what the questions meant by “misty rain”; and he said that it “would depend on the heaviness of the rain.”
There was, then, some evidence which might have led the jury to conclude that light rain was falling immediately before the collision, that the conditions were such as to require use of the windscreen wipers of the plaintiff’s vehicle on intermittent cycle, that the road was wet, and that the circumstances described contraindicated a conclusion that black ice was present on or in the vicinity of the bridge deck at the critical time. But the intractable problem faced by the defendant, at trial and on this appeal, is that there was other evidence – particularly of Mr Johns, but also adduced from each of Sergeant Kekich, the plaintiff and Senior Constable Petrusma, which favoured, I would say overwhelmingly, a contrary conclusion.
I turn to the first aspect of the defendant’s submission concerning black ice. It proposed that no reasonable jury could have concluded that black ice had played any role in the plaintiff losing control of his vehicle, this leading on to the collision.
Whilst the evidence did not altogether exclude the possibility that black ice had been present on the roadway well south of the bridge at the critical time, the evidence of Sergeant Kekich suggested that this had been improbable. That improbability was highlighted by a body of evidence which suggested that bridge decks were particularly prone to black ice formation; and by evidence that the road seal south of the bridge was of a kind which the plaintiff’s expert witness, Mr Holmes, had found was effective in combating the development of black ice.
Next, whilst it was no doubt possible that the plaintiff might have lost control of his vehicle for a reason or reasons dissociated from its contacting black ice, and then just happened to encounter black ice on a bridge deck in the immediate vicinity, there was evidence, I consider, which told in favour of black ice on the bridge deck having been a cause of the loss of control and the happening of the collision. Mr Johns was asked these questions and gave these answers:
“You’re approaching the Porcupine Hill bridge from the north heading towards Melbourne?---That is correct.
You’re on an upwards slope?---Yes.
What did you see take place, sir?---Well, I was just coming up the hill, changed – changing down gears like we normally have to do and I seen this vehicle coming towards me with his lights on high beam and I flicked my lights and he – he responded straight away and went to the side of the road but soon as he hit the edge of the bridge he come sliding towards me, I could---
If I just take that bit by bit, if I can. When you first saw him where was he in relation to the bridge, the deck of the bridge?---I’d say he’d be 50 yards before the bridge.
Heading towards you?---Yes.
He is heading towards the north or to Bendigo?---Towards Bendigo yes.
What position on the roadway was he on then?---He was coming – on his right side.
You are coming up the hill, are you, from the other side?---Yes.
What did you see actually happen with that other vehicle from then on?---As soon as it hit the deck of the bridge it seemed to come sideways, it sort of straightened up and then it come sideways again and just – it all happened so quick, it---
Yes; I understand that?---And---
Towards you?---Yes, it just come straight towards me.
It’s come on to its wrong side of the road?---Yes.”
In cross-examination of Mr Johns, there were these question and answers:
“So, you would not have a view when you are below the bridge travelling south, you would not have a view clear to the top of the hill?---Not of the van but of his headlights, of the lights, yeah.
What you saw was two headlights coming in your direction on high beam, that’s the first thing you notice?---That’s the first thing I notice, yes.
You flashed your headlights and he put them onto low beam?---That’s right.
Then you saw the vehicle coming towards you?---Coming onto the bridge, yes.
You thought that he was sliding – was he going sideways then, when you first realised the position he was in?---Not when he first come onto the bridge, the vehicle was coming, sort of to me but – but straight.
The plaintiff, the driver of the other vehicle has said that he was out of control from about 225 metres back from the bridge, did you observe that?---I didn’t observe that. No.
Is it fair to say you do not disagree with that, you really do not know?---I don’t really know, no. I didn’t see him until he come on to the bridge.”
In my opinion it was well open to the jury to conclude from that evidence that Mr Johns first saw the head lights of the plaintiff’s vehicle when it was some distance back from the bridge. The headlights were on high beam. The position of the lights allowed him to conclude that the plaintiff’s vehicle was then on its correct side of the road. He, Mr Johns, then flicked the headlights of his truck so as to indicate that the plaintiff should dip the headlights of his vehicle. The headlights of the plaintiff’s vehicle then dipped in apparent response, and the vehicle moved further to its left. Only on the bridge deck did the vehicle, which the witness was then able to see, go out of control.
It was submitted for the defendant, however, that Mr Johns’ evidence did not controvert the plaintiff’s evidence that he had lost control of his vehicle when more than 200 metres south of the bridge. That was said to be the gravamen of the last question and answer which I set out above.
I do not agree with that submission. It seems to me well open to the jury to have concluded that all Mr Johns was re-affirming was that he had not seen the plaintiff’s vehicle, as distinct from its headlights, until it was on the bridge. Moreover, the jury might well have reasoned that the actions of the plaintiff in dipping the headlights of his vehicle, and moving it further to its left in apparent response to Mr Johns flicking the headlights of his truck, bespoke a person in control of his vehicle. Still further, on the plaintiff’s account his vehicle had been partly side-on to its direction of travel as it slid down the highway towards the bridge. The jury might have thought, I consider with justification, that Mr Johns’ evidence did not bespeak an approaching vehicle so orientated on the road.
I go to another consideration. There was unequivocal evidence that the effect of black ice on the bridge deck that morning was apt to cause a vehicle to go out of control. I have in mind the evidence given by Mr Johns as to the slipperiness of the surface; and the evidence of Sergeant Kekich as to the difficulty in stopping his vehicle even when it was travelling at 20 kms per hour or less. Moreover, the evidence of Senior Constable Petrusma as to observations which he had made on an earlier occasion of a vehicle becoming uncontrollable on black ice on that bridge deck – there being nothing to suggest that conditions or the surface of the deck had then been relevantly different – emphasized the danger of a vehicle encountering black ice at that location.
Again, the jury might well have thought it improbable that the plaintiff had lost control of his vehicle several hundred metres south of the bridge, and yet that it had apparently continued on for that quite long distance, apparently on its correct side of the road, and without other mishap, until it happened to strike black ice on the bridge deck.
It seems to me, having regard to matters such as I have mentioned – I do not suggest that the jury must have had account of all of them – that the jury was entitled to find, on consideration of all the evidence, that, contrary to the plaintiff’s evidence, he probably lost control of his motor vehicle when it encountered black ice on the bridge deck. Given that its verdict was inscrutable, I think it likely that the jury so approached the matter.
I should add three matters. First, it can be concluded that the jury substantially accepted the plaintiff’s evidence concerning his injuries and their effects upon him. But that does not mean, of course, that the jury was bound to accept, or did accept, his evidence on all issues. It was entitled to conclude, if it chose to do so, that the plaintiff’s account of an incident which must have taken place within a very short period of time – the recollection of which incident was likely to have caused him great stress because his wife and child had been killed in the collision – was truthful but inaccurate. It is trite but true that the jury was entitled to accept part, but not all, of the plaintiff’s evidence.
Second, counsel for the plaintiff pointed, on this appeal, to what he claimed was the contradiction in the defendant’s case at trial. He submitted that the plaintiff’s credibility, and the reliability of his evidence, had been challenged on many fronts. Only in respect of the plaintiff’s account of events leading up to the collision had the defendant urged acceptance of the plaintiff’s evidence. The jury might have thought, counsel submitted, that the defendant had sought to make use of what helped it in the plaintiff’s evidence, whilst inviting the jury to disregard the balance; and had invited it to make use of what was likely to have been the least reliable aspect of the plaintiff’s evidence.
There was, in my opinion, definite force to that submission. The plaintiff was vigorously cross-examined. His credibility was assailed in a number of ways. But it is not to be forgotten that his counsel went to the jury on the footing that his evidence should be accepted - save for his evidence as to when he lost control of his vehicle. So there was an element of “accept and reject” in the submissions advanced both for the plaintiff and the defendant.
Third – this is the gloss to which I earlier referred[6] - whilst it is not necessary to finally decide the matter, I consider that the jury was probably entitled to find, on all the evidence, that if the plaintiff did lose full control of his vehicle at a point well back from the bridge, it was only when it struck ice on the bridge deck that the loss of control became such that the plaintiff was unable to prevent it travelling onto its wrong side of the road; or, a variation on that approach, that the probability was that the plaintiff could have regained full control of his motor vehicle had it not encountered black ice on the bridge deck. The plaintiff gave evidence which distinctly supported a conclusion that he lost all control of the vehicle when it moved onto the bridge deck. His evidence opened up the prospect that, one way or the other, the collision might otherwise have been avoided. Thus:
[6]At [17].
“You say there was black ice on the bridge, don’t you?---Yes.
Are you suggesting to this jury if there hadn’t been black ice on the bridge perhaps you might have regained control of your vehicle in that time?---Yes.
How long was the bridge?---I believe it was about 75 metres.
You are out of control when you hit the bridge?---Yes.
Travelling at least 100 kilometres an hour?---I don’t know the exact speed but approximately, yes.
Approximately 100 kilometres an hour?---Yes.
Do you know how metres you travel in a second at 100 kilometres an hour?---About 27-and-a-half metres per second.
Per second, is that right?---Yes.
That would give you a maximum of three seconds before you actually hit the front of the truck to regain control of your vehicle and steer on to the correct side of the road?---Well, I’m not saying I would have regained control before I got to the end of the bridge. I would have regained it without hitting that truck.
You mean you might have?---I most likely would have. Yes”
It might be said, further, that the evidence of Mr Johns to which I have earlier referred gave support for a conclusion that, even if there had been some loss of control before the bridge was reached, it was the effect of the ice on the bridge deck which was decisive. Remember also the plaintiff’s evidence that his vehicle did not move onto its wrong side of the road in the more than 200 metres leading up to its entering onto the bridge deck.
Counsel for the defendant submitted that the jury could not have reached a conclusion favourable to the plaintiff upon this alternative approach in the absence of expert evidence. Provisionally, I do not agree with that submission.[7] Whether or not this country jury, sitting in an area where formation of black ice was a recognized danger, was entitled to use its own experience in resolving disputed question of fact – we were told that counsel urged it to do so – there was evidence which, objectively considered, probably enabled the conclusion now under consideration.
[7]See [41].
Negligence and Contributory Negligence
I earlier expressed the opinion that if it was open to the jury to conclude that a cause of the collision, probably, was that the plaintiff lost control of the vehicle when it encountered black ice, then there was a plethora of evidence which enabled the jury to conclude that the defendant’s negligence was a cause of the collision; and that the extent of the plaintiff’s contributory negligence was quite small, certainly no more than 25%. I turn to evidence which entitled those conclusions .
Negligence
The plaintiff claimed that, if signage had been present which warned of the danger of black ice in the vicinity, then it was inadequate. Had there been adequate signage he would have seen and acted upon it. The plaintiff also claimed that the defendant should have sealed the bridge deck with a type of surface which conduced against the formation of black ice.
The defendant relied upon evidence that at the time of the collision there were two signs south of the bridge which gave a relevant warning to north bound traffic, that they complied with the relevant Australian Standard, that they were respectively about 350 metres and 140 metres south of the bridge, and that the plaintiff had not observed either of them. The set-up of the signs was described and a photograph of such a sign went into evidence.
Shortly put, the oral description and the photograph described a sign which contained two elements. First, a predominantly yellow square, its sides being 75 centimetres in length, set on a post so that one of its corners was at the top and another at the bottom, depicting in black a vehicle with squiggly lines underneath it. Second, set below that square, an oblong sign, predominantly yellow, bearing the words in black “When Frosty”.
There was some evidence which suggested that one or other of the signs was not in situ at the relevant time. But let it be supposed, on the best view of the evidence available to the defendant – which is the converse of the correct approach, but which has regard to something approaching a concession made by the plaintiff’s counsel in his final address - that the signs were present.
The defendant’s case implied that it knew that there was some danger to vehicles on or in the vicinity of the bridge deck when conditions were frosty; otherwise there could not have been any need for it to erect the signs which it had erected. Its case was, in effect, that the response constituted by erection of the signs was reasonable having regard to the magnitude of the risk and the degree of probability of the risk eventuating of which it knew or reasonably should have known.
In my opinion, however, the jury was entitled to conclude that the defendant knew, or reasonably ought to have known, that the risk of a vehicle encountering black ice on the bridge deck was sufficiently substantial and the potential consequences of a vehicle doing so – in terms of personal injury or property damage – were sufficiently serious, to oblige the defendant at least to install a warning regime which was more extensive than that provided by the signs; and further, to lay on the bridge deck a surface appropriate to counteract black ice formation.
The magnitude of the risk, if a vehicle did encounter black ice whilst travelling at speed on an open highway – particularly, it might be said, on a bridge deck with guard rails running along both sides – was not an issue at trial. The learned judge referred in his charge to “potentially life-threatening situations”. Nothing suggests that such a characterization of the magnitude of the risk was inappropriate.
I turn to the degree of probability of the risk eventuating. There was much evidence which suggested that bridge decks were particularly susceptible to the formation of black ice, the risk arising when the temperature descended to, or about, zero degrees. The problem had been considerably discussed by officers of the defendant over a period of years well-preceding 1998. The susceptibility, with focus upon the Calder Highway, had been noted over a protracted period, particularly in respect of the Black Forest area. But the formation of black ice was known to have occurred on other bridge decks along the highway, in particular the deck of this bridge, well before July 1998.
As to the last of those propositions, the evidence which entitled the jury so to conclude was of three kinds. First, evidence showing that VicRoads staff knew of a particular incident which occurred on the bridge deck in July 1997. Second, evidence that the formation of black ice on this bridge deck was a notorious fact - and had been so for years before July 1998. Third, evidence adduced for the defendant which invited more questions than it provided answers.
I go to the first of those kinds of evidence. Senior Constable Petrusma gave evidence of having been called out to attend a collision on the bridge in mid July 1997. He said this:
“We’d been to a previous collision in the – in exactly the same spot. We had just cleared that collision and because we’d called VicRoads to come and put something on the ice, sand on the ice to make it safe, we went towards the other side of the bridge to – because the worst ice was south-bound at that particular point of time – to drive down to the other side of the bridge, put our lights on so that any oncoming traffic knew that it was dangerous. We had just pulled up when another vehicle came through and we actually watched it run out of control, spin around and hit the guard rail, which is the one this accident refers to.
The accident that had occurred prior to that on that day, the cause of that?---Exactly the same. It was – probably some – occurred some – half an hour beforehand. Exactly the same circumstances, hit the ice and – and spun and hit the rail. The guard rail.”
The witness gave evidence that VicRoads staff had attended the scene. In a report which he compiled following his attendance, he said that –
“We remained at the scene until the removal of the vehicle and the attendance of VicRoads to spread sand on the roadway to avoid further accidents.”
Viva voce, he said –
“I believe VicRoads maintenance crew, I believe it was, came out with a truck and sand”.
and
“We waited for them to arrive, we wouldn’t leave the scene because it was simply too dangerous…”
and
“It was that dangerous you couldn’t – it was difficult to even stand up, so whilst they spread the sand we remained in attendance until they put enough down to make it safe and then we left.”
Some of that evidence was given in examination in chief, and some in re-examination. So far as I can see, the evidence which he gave in examination in chief was not the subject of cross-examination.
There was, in the event, unequivocal evidence that VicRoads’ staff knew in July 1997 that black ice had been a cause of accidents(s) on the bridge. Either the staff reported the incidents to their superiors, or they did not. Either way, it did not help the defendant. Circumstances known to the defendant bore on the particular risk that in suitable conditions black ice formed on the bridge deck, and that there was demonstrated potential for vehicles to go out of control in consequence thereof.
I pause to mention something of a sideshow concerning Senior Constable Petrusma’s attendance at the bridge in July 1997. In a report that he prepared and forwarded to a superior officer, in which he recommended that no police action be taken against the drivers of the cars involved in the collisions, he expressed concern about the dangers of black ice at the site, and the inadequacy of warning signage. He requested that a copy of his report be forwarded to VicRoads “for consideration of warning signs and for lights”. He warned of “the potential for serious or fatal collisions should similar weather conditions occur again”.
The witness gave evidence that in the ordinary course a copy of such a report would have been forwarded to VicRoads. No direct evidence was led for the plaintiff, however, that a copy had been forwarded. Evidence led from the VicRoads witness at least implied that searches of records had not located any copy of the report.
It was submitted for the defendant that it had not been open to the jury to conclude that a copy of the report had been forwarded to VicRoads. I doubt that this submission was correct. But even were it the case, it little advanced the defendant’s position in light of the unequivocal evidence that VicRoads staff had attended the bridge following the July 1997 accidents. All that could be said is, absent receipt of a copy of the report, that VicRoads had not then been given the benefit of Senior Constable Petrusma’s firm views about the inadequacy of signage – views which, when he gave them in evidence, VicRoads contended he was unqualified to express.
Senior Constable Petrusma also gave evidence which bore upon the improbability that VicRoads did not know or should not reasonably have known, well before July 1998, that black ice was likely to form on this particular bridge deck in suitable conditions. That is what I have called the second kind of evidence pertinent to assessment of the probability of the risk eventuating. The witness gave evidence, inter alia, that –
“…there’s two particular bridges in our area, and both were notorious for forming black ice for around about a five to six week period of the year. There would probably be at least two to three nights every year that were going to be really severe – and both bridges had exactly the same problem. There – there was going to be accidents. There actually were fatals on the [other] bridge, I believe, previous to this.”
He also said –
“Generally speaking, it’s fairly known that probably from about the last week in June to the first week in August there’s about a six week period where if you get these conditions…you’re going to have black ice up there…”.
It is the fact that Sergeant Kekich gave evidence that he had not noticed black ice on the bridge before. But he also gave evidence that he had not previously driven over the bridge at three or four o’clock on a July morning.
Mr Johns also gave evidence as to the notoriety of black ice forming on the particular bridge. For years before July 1998 he had driven very regularly along the highway. I note these questions and answers:
“From the years that you’d done the trip, Mr Johns, how did you find the Porcupine Hill area with respect to ice?---Well, when the conditions was around zero or around about that you had to take caution, there was always ice or frost there; so you know we always drove accordingly.”
and
“How did that bridge compare with other bridges in the area?---Yes, there was a couple of other ones that you had to be careful on.
Which were they?---The one at Elphinstone was on a slight curve and you had to be cautious there and there was a little one down near Carlsruhe that was always iced up.
Always iced up?---Yes.
These are all before you get to the Woodend, Black Forest area?---Yes.
So they’re all north of there?---Yes.”
That evidence was not the subject of cross-examination.
No doubt Mr Johns and Senior Constable Petrusma, in different ways, had particular reason to be familiar with the risk of black ice as it applied to the bridge in question. But VicRoads also had good reason to be alert to the existence and extent of such a risk. The evidence that its staff had attended at the bridge in July 1997 enabled the jury to conclude that it was equipped with particular knowledge; whilst the evidence of Mr Johns and Senior Constable Petrusma, as to the notoriety of the bridge as one of a few sites north of the Black Forest area where black ice formed, enabled the jury to conclude that the defendant ought reasonably to have known and appreciated the extent of the risk.
That takes me to the third kind of evidence pertinent to assessment of the probability of the risk eventuating. Mr Adams, an engineer, gave evidence for the defendant that the two signs to which I have earlier referred had been erected some time before July 1998. He could not say when they had been erected, or at whose instance, or why. He had not been able to find records about any of those matters. He identified various people who may have been able to cast light on the matters. None of them, I interpolate, were called. He agreed that the signs were to warn people of possible danger. He said, in effect, that the danger was not significant because, over a long period, few accidents had been reported to VicRoads which had any connection with the bridge or the roadway in its near vicinity; and because work done by some university students over a three year period had found few instances of conditions favourable to the development of black ice on the bridge deck. But the VicRoads system for recording accidents, he said, only pertained to accidents which had resulted in injury, serious injury, or death. It followed that the July 1997 incident, though known to VicRoads staff, would not have been logged.
The evidence given by Mr Adams, the jury might well have thought, showed that VicRoads’ system for recording incidents, as bearing upon the dangers posed by particular stretches of what was agreed to be a major Victorian rural highway, was inexplicably incomplete; that its knowledge of the dangers posed by the particular bridge deck was evidently incomplete; and that the circumstances in which, and reason for which, the signs had been installed were in essence unexplained. Conclusions to such effect were likely to have assisted the plaintiff’s positive case.
In my opinion, the jury was entitled to conclude, having regard to the evidence to which I have referred, that it was probable that black ice would form on the bridge deck in suitable conditions. There was no debate but that formation of black ice would create a risk of personal injury or property damage which was of great magnitude. There was then a body of evidence which was apt to show that more effective warning signs were available and in use by VicRoads well before July 1998; and that a road surface conducing against the formation of black ice was in use by VicRoads well before that time. Further, as the learned judge pointed out in his charge – no exception being taken – the defendant adduced no evidence that the remedial action which the plaintiff contended should have been taken had been outside its financial or other resources. Further again, there was evidence which permitted a conclusion that implementation of one or both measures, as a matter of probability, would have prevented the occurrence of the collision in which the plaintiff suffered injury. I should mention a little of the pertinent evidence.
Mr Holmes, the consulting civil engineer called by the plaintiff, was asked these questions and gave these answers in cross-examination:
“Is there a problem when signs are put up that people might get used to signs and take no notice of them?...I personally believe a lot of signs have very limited value.
If the jury during the running of this case are driving up and down the street, they might start paying particular attention to the existence of signs on roads, and particularly on highways. Is there a philosophy about that, from an engineering perspective, in terms of trying to provide information in a sign that is sufficient to warn a motorist taking reasonable care of unusual conditions?---Yes, yes. They are, in fact, and the signs to which you refer, the skidding car symbol and slippery when frosty sign, is a yellow sign, which is a warning sign, which is intended to give some form of warning to the motorist of the likely existence. My own personal view is that if you’re driving down the road in the dark, I don’t know how the hell you know whether it’s frosty or not, particularly if you’ve got the heater on in the car.
So a sign is important to tell you?---It’s there, yes, it warns you, but it can’t tell you whether the ice is there or whether the frost is there or not. It can only say that if there are frosty conditions, there’s a possibility that you might have a slippery road ahead.”
and
“To your knowledge the skidding car and the words “When frosty” have (a) met the Australian standards?---Yes.
And (b) been effective in bringing potentially dangerous situations to the attention of a normal road user?---I’m not sure that we could argue that they’ve been effective. The reason why I say that is because in certain circumstances we’ve put the sign up but however if people haven’t taken heed of the warning, we know that accidents have continued to happen at that spot”.
In re-examination, the witness was asked these questions and gave these answers:
“Are you aware whether if near the Gordon area on the Western Highway there are any signs in relation to black ice or ice that have flashing lights?---Yes.
What’s the purpose of the flashing lights?---The – I wasn’t responsible for the installation. I know the engineer that was and I’m aware of the process. There are sensors mounted on the top of the hill at Gordon, which are the same as the similar ones I spoke about in the Black Forest from years ago, which measure temperature, the moisture in the air and the prevailing wind, and other conditions that are likely to produce either frost or ice conditions, and when those conditions are met, they trigger a series of flashing lights which give the emphasis, if you like, to the static warning signs that are mounted on the bridge.
The purpose of the emphasis of the flashing light?---It’s to warn the motorists that at least there is a more likely incidence of frost or ice in that location at that time.
To your knowledge, how long has – such signs exist in the Black Forest, you mentioned in part of that answer?---Crikey, now, I’ve got to think back. It’d be in the 80s, I would guess.”
I next refer to evidence given by Senior Constable Petrusma. In evidence in chief there was the following exchange:
“Subsequent to [July 1997] were there signs installed, different signs installed?---I – I believe – I’m not sure of the signage but I believe some time after the fatal accident that some indicator lights were put into the roadway, similar to a cat’s eye but – light up when it gets to a certain temperature – but I couldn’t tell you exactly when they were installed but some time after the fatality in ’98.”
In cross-examination the witness gave this evidence:
“I would’ve preferred flashing lights that actually came on when a certain temperature was reached to indicate that – that conditions were such that there would possibly be black ice.”
and
“Your report seems to indicate that there was not signage, you say: I believe the lack of signage?---Well, that – that to me is a lack of signage. I don’t believe that sign’s anywhere near sufficient to warn people of black ice. The fact that it says frosty, travelling in a warm car, you might have come from Melbourne where the temperature was different, people would have absolutely no idea of the temperature or the frost conditions on that road. The fact that the sign says – I take your word for it – “slippery when frosty”, you’d have no idea whether it was frosty or not. And – black ice you cannot see, so you wouldn’t know. The only real sufficient is – is warning lights, in my opinion.”
and
“…there may well have been the sign you refer to north-bound but whether it was there or not, I don’t believe would have been any assistance.”
In re-examination he was asked these questions and gave these answers:
“You were asked about the purpose of that report or document that you prepared dated 16 July 1997. What were the purposes of it?--- The purpose of the report on the night was that I believe that the signage was inadequate, totally inadequate and needed to be addressed urgently and that if it wasn’t addressed with some degree of urgency – I mean, I understand that painting the bridge would be a little bit over the top, but at least warning signs or lights on conditions where it was cold, if they’d been erected it may prevent in the future a serious or fatal collision and that’s the words I used in the report.
Why your desire for lights or flashing lights?---Sorry?
Why the desire for flashing lights with the warning sign?---Well, that the area – I’m aware of the circumstances of Black Forrest where just warning signs alone [with] just slippery when cold or whatever really weren’t sufficient down there and in the end they put lights in to actually flash to tell people that there was in fact ice there because outwardly you can’t see it, you can’t tell until you hit it, you’ve got no idea it’s there unless you’re very familiar with the area and the temperatures.”
The first of the questions and answers in re-examination was directed to the situation for south-bound traffic. But the point which the witness sought to make, the jury was entitled to think, applied equally to north-bound traffic.
Senior Constable Petrusma’s qualification to offer the opinions which he did was challenged in cross-examination. But it does not appear to have been submitted that his pertinent evidence was inadmissible. The learned judge said in his charge that the witness was not “an expert in relation to signage”; but that he had given evidence “that the signs …seem[ed] to be ineffective to him because accidents happened notwithstanding that the signs were there.” That gave the evidence a more restricted significance than it was arguably capable of bearing. But be that as may, it was only part of a body of evidence which bore on the inadequacy of the signage then present.
Oral evidence apart, there was material in the defendant’s files, tendered for the plaintiff, which described the kind of signs to which Mr Holmes and Senior Constable Petrusma referred in their evidence, and which indicated for what period before July 1998 such signs had been in use by VicRoads. There was also a photograph of a type of sign which was in use in 1992.
The evidence of the defendant’s witness, Mr Adams, did not debate the availability, before and at July 1998, of what may be called “better” signage. It was rather directed to the proposition that such signage was not reasonably required.
Concerning signage, this should be added. The plaintiff gave evidence of not seeing the signs which were in situ. He said that if he had seen such a sign he would have responded by slowing down. It does not follow that the want of better signage was not a cause of the plaintiff’s loss of control of his vehicle, and of the collision. The jury was entitled to conclude that plaintiff had failed to notice the signs because they were inadequate; and that probably he would have noticed and reacted to better signage, this resulting in him not losing control of his vehicle.
I turn to the issue concerning road surface. Mr Holmes gave evidence of having laid open graded friction coarse asphalt at a particular site in the Western Region which was notorious for the formation of black ice. After that surface was laid, black ice did not form. Those events took place years before July 1998.
There was also evidence before the jury that, with respect to the site here in question, Mr Holmes’ experience was availed of after, but not before, the July 1998 collision; and that, in the first half of 1999, the particular seal was laid on the bridge deck.
Again, there was evidence that in December 1995 this type of seal had been laid over a distance of some five hundred metres leading up to, but stopping at, the southern extremity of the bridge deck. No explanation was offered by the defendant as to why that seal had not extended onto the deck. No paperwork had been located, said Mr Adams; and no other witness was called to shed light on the matter.
Finally, as the learned judge correctly observed in his charge, the defendant’s witness had not been prepared to criticise Mr Holmes’ approach; and the defendant had not called any expert from whom it had commissioned a report to challenge Mr Holmes’ view that the bridge deck should have been surfaced with open-graded friction coarse asphalt.
The high-water mark of the defendant’s case, upon this matter, was Mr Holmes’ agreement, in cross-examination, that not everyone within VicRoads would agree with his point of view about the utility of applying the particular seal. But who, if anyone, had an opposing view, and how such person sought to justify it, was not the subject of any evidence adduced by VicRoads at the trial.
In all, in my opinion, the jury was well entitled to conclude that the seal referred to by Mr Holmes, had it been laid on the bridge deck, was likely to have prevented the formation of black ice on 10 July 1998, and so prevented the collision in which the plaintiff was injured. The seal was evidently available, and had been used in the very near vicinity of the bridge. There was no explanation why it had not been continued onto the bridge deck.
Contributory negligence
I have already noted the gist of the allegations of contributory negligence[8]. At trial the defendant did not rely upon the plaintiff’s failure to wear a seat belt[9]. On this appeal, there was no mention of that matter. In the event, the allegations of contributory negligence relied upon by the defendant were the speed of the plaintiff’s vehicle and the plaintiff’s alleged failure to keep a proper lookout for signs. According to the defendant’s submission, the jury’s conclusion –
“ . . . that the [defendant’s] negligence was three times more responsible for the accident than the [plaintiff’s] negligence was so unreasonable that this is one of those rare cases in which an appellate court should set aside the apportionment.”
[8]At [8].
[9]This is shown by the judge’s charge, to which no relevant exception was taken.
The defendant’s formulation reflected the difficult problem which confronts an attack on apportionment, particularly one made by a jury. The principles are well known and need not be repeated. I mention, for completeness’ sake, Zoukra v. Lowenstern[10] and Podrebersek v Australian Iron & Steel Pty Ltd[11].
[10][1958] VR 594 at 595-6.
[11](1985) 59 ALJR 492 at 493-4.
In my opinion the defendant has not shown that the jury, subjecting to comparative examination the whole conduct of the negligent defendant and plaintiff in relation to the circumstances of the accident – as bearing upon their respective culpability and the relative importance of the acts of each of them in causing the damage – reached an untenable conclusion. Far from it.
As to the respective degrees of culpability, the jury was entitled to conclude that the defendant knew, or had reason to know, of a significant and potentially life-threatening risk at the place where the collision occurred. It had several means at its disposal of addressing the risk. By laying the appropriate seal, the defendant could have eliminated the danger. By erecting better signage, it could have effectively warned motorists that the danger may be present. Neither remedy was said to be outside the scope of its resources. I turn to the plaintiff. He admitted that as he drove towards the bridge, it being night time, he was travelling at something approaching the speed limit, and that the road surface was wet. He also gave evidence that he had not seen any warning sign. But the jury was not obliged to conclude that for the plaintiff to drive his vehicle at such a speed, in all the circumstances, was negligent – or at least negligent beyond a small extent. The plaintiff gave evidence, in that connection, denying that his vehicle was unstable by reason of its type and loading. Further, the jury was entitled to conclude that the likely reason why the plaintiff did not see the signs was because of their inadequacy. More generally, pertaining to culpability, the jury was entitled to think that the defendant had enjoyed a protracted period within which to become informed about, assess and respond to the risk; a luxury which the plaintiff did not have. In all, I consider that the jury was entitled to assess the comparative degrees of culpability strongly against the defendant.
I turn to the relative importance of the acts of the parties in causing the damage. In my opinion it was well open to the jury to conclude that the defaults of the defendant which I have identified were far and away the principal cause of the happening of the accident. Of the two suggested defaults of the plaintiff, the jury was entitled to conclude that one – speed – was not operative, or scarcely so; and that the other – the plaintiff’s failure to see the signs – was really the consequence of the defendant’s default – that is, in not providing suitable signage.
Damages
According to the defendant’s submission, the jury’s assessment was so high that it was outside the range of what could reasonably be regarded as appropriate in the circumstances of the case[12]. The general principle implicit in that submission is not in doubt. The appeal court must, of course, approach its consideration of the jury verdict by assuming that the jury took the view of the evidence most favourable to the plaintiff. Further, particularly in a case where only pain and suffering damages are the subject of the jury’s award, this observation by Ormiston, JA. In Siniakis[13] should be borne in mind:
“Of course the appellant again faces a formidable task in challenging the jury’s award of damages for it is likewise a question, on the whole of the evidence, whether it was a finding which no jury could reasonably make. It is unnecessary to canvass the authorities on this issue and I have had occasion in the past to comment on the difficulty of showing that a jury’s evaluation in monetary terms of a plaintiff’s non-economic loss was erroneous unless it is shown that it clearly went beyond that which was permissible. One must take account of the fact that a jury, by its nature, is especially well-equipped to assess damages for loss of this kind. There are, however, occasions when, by reason of the jury’s excessive zeal or sympathy, it makes a manifestly excessive award which an appellate court is entitled to review and set aside.”
[12]Counsel cited Triggell v Pheeney (1951) 82 CLR 497 at 516, Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 61, and Electrolux Pty Ltd v Siniakis [1998] 1 VR 29 at 38.
[13]At 38.
In support of VicRoads’ general contention, counsel submitted that –
· The plaintiff had suffered multiple broken ribs, a fracture of the T5 vertebra, damage to his spleen requiring its removal, and damage to his urethra requiring three operations on his penis.
· There was a low prospect of him requiring further surgery because of urethral damage.
· The plaintiff’s main ongoing problem was thoracic spinal pain of varying degree. But before the accident he had experienced long-standing low back pain which prevented him from working.
· The plaintiff had need for periodic, though infrequent, injections by reason of the removal of his spleen.
· Counsel for the plaintiff had suggested $125,000 for pain and suffering damages in his closing address to the jury.
Counsel for the plaintiff submitted that the defendant’s account of the plaintiff’s injuries and their sequelae was incomplete. Once the true situation was understood, the jury’s verdict was plainly not outside the range.
In my opinion, there was force to the submission made by plaintiff’s counsel. Consideration of the evidence reveals the following:
· In addition to the injuries described by the defendant, the plaintiff suffered a ruptured and contused left kidney, left perinephric haematoma, a lacerated left lung and haemopneumothorax, peroneal bruising, urethral injury requiring repeated self-dilatation, and emotional shock.
· The plaintiff was taken by ambulance to the Bendigo Base Hospital. He remained there for three weeks and three days. Whilst an inpatient he underwent splenectomy and an operation at which some of his left lung tissue was stapled. He had tubes in his stomach, chest and back. He was on life support after the second operation. Subsequently, he was catheterized, and had to self-catheterize at times.
· After his discharge, the plaintiff was in a lot of pain. He required a full time carer for four to five months. His sister had to shower him.
· The plaintiff’s upper back had been and continued to be a major problem. It was the site of persisting pain, inhibited his domestic activity, and limited his ability to work.
· The opinion of Mr Hadj, General Surgeon, was that with increasing age the plaintiff was more likely to develop degenerative changes in his back in consequence of the collision. Intermittent treatment would be required.
· Because of the splenectomy, the plaintiff was at risk of bacterial infections, and had a life-long need for pneumococal vaccinations[14].
[14]This was the opinion of Professor Michael Pain, Respiratory Physician.
· The plaintiff’s complaint of pain on his left side on deep breathing was probably due to pleural adhesions, which would subside in time[15], or else entrapment of an intercostal nerve which would probably resolve with time[16].
[15]This was Professor Pain’s opinion.
[16]This was the opinion of Mr Alex Rollo, General Surgeon.
· The plaintiff was at risk of possible development of hypertension because of kidney damage caused by the collision[17].
[17]Opinion about this risk was given by Mr Rollo and Dr Donald Moss.
· The plaintiff had undergone surgery on three occasions because of damage to his urethra caused by prolonged post-accident urethral catheterization. The damage had caused strictures to develop. These had to be released. On each occasion, the plaintiff had been hospitalized for two to three days. The most recent surgery had been a urethroplasty in August 1999. According to the treating urologist, Dr Donald Moss, the urethra would never be normal, and there remained a risk of further scarring. If there was scarring, and stricture, then surgery would again be required. The doctor did not anticipate that further surgery was “likely to be necessary” for a stricture. But the plaintiff was at greater risk of urethral problems than the ordinary patient if he ever required catheterization.
· Subjectively, the plaintiff had a persisting problem when urinating. He “sprayed” urine, and was unable to control this phenomenon, which could be very embarrassing. At times, he needed to sit down to urinate. Further, his flow of urine was reduced.
· According to Dr John Weinrich, the plaintiff’s general practitioner, the plaintiff had suffered severe physical and emotional injuries. Overall he had made a very good recovery. But there was significant potential for further problems relating to the accident.
· As subjectively assessed by the plaintiff, the situation was generally stable at the time of trial; and had been so for a few years past.
Consideration of the plaintiff’s evidence, the evidence of Dr Moss, and the medical reports of Professor Pain, Mr Rollo, Mr Hadj, Mr William Hanna[18], Dr John Ferguson and Dr Weinrich shows that the jury was entitled, by recourse to credible evidence, to find the situation was as I have just summarized it. Although a number of initially very serious injuries had been treated successfully, the plaintiff had been left with significant and ongoing disabilities, the prospect of deterioration of his upper back condition, and some risk of later urethral and kidney complications.
[18]A treating surgeon.
In my opinion , in the circumstances described, the jury verdict was certainly not outside the available range. The fact that the plaintiff had suffered prior low back pain for a number of years did not deny the significance of the compensable injuries in terms of pain and suffering and loss of enjoyment of life. The suggestion by the plaintiff’s counsel at trial that $125,000 would be an appropriate sum in damages was modified by his remark that the jury might well go higher or lower depending on its view of the permanency of the plaintiff’s symptoms; and, in any event, what he said did not confine the jury in its task.
Conclusion
In my opinion, the appeal should be dismissed.
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