Wells v Council of the City of Orange (No 2)

[2017] NSWSC 510

Supreme Court

New South Wales

Medium Neutral Citation:	Wells v Council of the City of Orange (No 2) [2017] NSWSC 510
Hearing dates:	31 January 2017;1 February 2017;6 February 2017;8 February 2017;
Date of orders:	03 May 2017
Decision date:	03 May 2017
Before:	Hoeben CJ at CL
Decision:	(1)   Judgment for the defendant. (2)   The plaintiff is to pay the defendant’s costs.
Catchwords:	TORTS – negligence – motor vehicle accident – motorcycle colliding with water-filled barrier at night – duty of care – breach of duty – standard of liability – whether using water-filled barrier manifestly unreasonable – expert evidence – whether failure to comply with Australian Standard determinative – Civil Liability Act 2002 ss 5B, 5D, 5R, 43A, 50, 54 – breach of duty and causation not established – s 43A defence established – s 54 defence established – verdict for defendant.
Legislation Cited:	Civil Liability Act 2002 (NSW) – ss 5B, 5C, 43A Evidence Act 1995 (NSW) – s 78 Roads Act 1993 (NSW) – ss 7(4), 71, 87 Road Transport (Driver Licencing) Act 1998 (NSW) –s 25A Road Transport (Safety and Traffic Management) Act 1999 (NSW) – ss 12, 52 Transport Administration Act 1988 (NSW) – P 6
Cases Cited:	Alcan (NT) Alumina Pty Ltd v Commission of Territory Revenue (Northern Territory) [2009] HCA 41; 239 CLR 27 Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512 Certain Lloyds Underwriters v Cross [2012] HCA 56; 248 CLR 378 Curtis v Harden Shire Council [2014] NSWCA 314 Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380 Koehler v Cerebos (Aust) Ltd [2005] HCA 15; 222 CLR 44 Lithgow City Council v Jackson [2011] HCA 36; 244 CLR 352 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 529 Presidential Security Services of Australia Pty Ltd v Brilley [2008] NSWCA 204; 73 NSWLR 241 Rankin v Gosford City Council [2015] NSWCA 249 Roads and Maritime Services v Grant [2015] NSWCA 138 Russell v Edwards & Anor [2006] NSWCA 19; 65 NSWLR 373 Sangha v Baxter [2007] NSWCA 264 Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182 Wells v Council of the City of Orange [2016] NSWSC 589 Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 Wallace v Kam [2013] HCA 19; 250 CLR 375
Texts Cited:	James Goudkamp in “Self-defence and Illegality under the Civil Liability Act 2002 (NSW)” (2010) 18 TLJ 61
Category:	Principal judgment
Parties:	Benjamin John Wells - Plaintiff Council of the City of Orange - Defendant
Representation:	Counsel: D Wheelahan QC/A Johnson - Plaintiff R Sheldon SC/H Chiu - Defendant   Solicitors: Tobias Tancred - Plaintiff Mills Oakley Lawyers - Defendant
File Number(s):	2012/327686

JUDGMENT

1. HIS HONOUR:

Nature of proceedings

As at 16 November 2009 the defendant had the control of public roads within its municipal jurisdiction and in particular Jilba Street and Mirral Way. As of that date, the defendant had placed water-filled barriers across Jilba Street as part of road works which it was carrying out.

2. At approximately 10.30pm on that date the plaintiff was riding a motorcycle north along Jilba Street when he collided with a barrier. As a result of the collision the plaintiff was thrown forward over the barrier and suffered serious injuries particularly to his head. The plaintiff has brought proceedings against the defendant alleging negligence on its part.

3. The particulars of negligence include a failure to provide adequate lighting, delineation and using a Traffic Control Plan (TCP) of which the barrier formed part which failed to comply with the relevant Australian Standard (AS 1742.3 (2009)).

4. On 12 May 2016 in Wells v Council of the City of Orange [2016] NSWSC 589 the Court made an order pursuant to Uniform Civil Procedure Rule 28.2 (UCPR) that there should be a separate hearing as to liability. This is the judgment in respect of liability.

Factual background

5. Unless otherwise stated I find the facts to be as follows.

6. Agreed Facts were put before the Court by the parties.

1. Prior to November 2009 Blackmans Swamp Creek formed a barrier between adjoining residential areas.

2. Prior to November 2009 the defendant was involved in a decision to build a bridge (“Bowen Bridge”) that would cross the creek and intersect Jilba Street.

3. Prior to November 2009 access across Blackmans Swamp Creek was by means of a foot bridge.

4. The Bowen Bridge was:

1. constructed by a specialist bridge building firm; and

2. the excavation and work site associated with it were blocked off on the roadway.

5. On 12 November 2009 the Bowen Bridge was nearing completion or having been completed, the defendant notified residents by letter dated 12 November 2009 that it would be closing the road in order to:

1. carry out road works associated with the bridge; and

2. to connect the new bridge to the existing roads.

6. The letter referred to above advised residents that they would still be able to obtain access to their properties.

7. On 16 November 2009 the defendant erected water-filled barriers across approximately two-thirds of the carriageway of Jilba Street near the “T” intersection with Mirral Way.

8. The defendant prepared a TCP which contemplated that vehicles would enter and pass along Jilba Street in the area between the sets of barriers.

9. The barriers were placed in situ on the morning of the day of the plaintiff’s accident.

10. The defendant did not check or conduct any investigation at night time to ascertain night time conditions prior to:

1. drafting the TCP; and

2. erecting the barriers.

11. The barriers were:

1. manufactured out of dark orange/red plastic; and

2. filled with water.

12. The barriers had two signs attached, one being made of non-reflective material and the other being made of reflective material.

13. A sign was attached to the north facing side of the barrier providing information to residents approaching from the north that there was “access to residents only”.

14. Attached to the north facing side of the barrier was a sign in reflective material announcing “Road Closed”.

15. In Margaret Street the barriers had signs in similar or the same terms as those attached to the north facing side of Jilba Street.

16. Constable Brett Sammut:

1. attended the scene of the plaintiff’s accident on the evening of 16 November 2009; and

2. took photographs of the barriers.

17. The plaintiff initially entered into Jilba Street via the pedestrian bridge across Blackmans Swamp Creek at around 7pm on 16 November 2009.

18. Weather conditions at 7pm through to 10.30pm on 16 November 2009 were fine and dry.

19. In daylight on 16 November 2009 the barriers were visible to the naked eye.

20. The plaintiff successfully negotiated the barrier at Jilba Street at approximately 7pm utilising approximately one-third of the carriageway.

21. The plaintiff was able to successfully negotiate his passage past the barriers when approaching from the northern side.

22. The plaintiff’s motorcycle collided with the southern side of the barriers at approximately 10.30pm.

23. The plaintiff spent time between approximately 7pm to 10.15pm on 16 November 2009 at a friend’s house in Tasha Place. The plaintiff left his friend’s home at approximately 10.15pm and travelled on the motorcycle from there back along Mirral Way and then south on Jilba Street. For reasons which are unexplained, he executed a “U” turn, travelled back north on Jilba Street and collided with the barricade.

7. Three engineers gave evidence and prepared reports for use in the proceedings. They also prepared a Joint Experts’ Report setting out the issues upon which they agreed and disagreed. The engineers were Mr McDonald, retained by the defendant, who had expertise in traffic engineering and accident reconstruction; Mr Lawson, retained by the plaintiff, who had expertise in traffic control and the use of the Australian Standard relating to traffic control; Mr Johnston, retained by the plaintiff, who like Mr McDonald had expertise in traffic engineering and accident reconstruction.

The road works

8. The Joint Experts’ Report was dated 25 January 2017 and was part of Exhibit A being Tab 8, pp 355–368. At p 361 the joint report stated:

“The experts note that the works at the intersection of Margaret and Jilba Street involved changes to the pavement levels across the width of the road and some excavation works, the effect of which is to disrupt or interfere with the passage of traffic through the site and bring the works into conflict with through vehicles. On the basis of the works being undertaken across the width of the through road the experts agree that [t]he most efficient work method was to close the road.”

On the basis of that joint opinion, I make a finding to that effect.

9. The Project Co-ordinator/Site Supervisor on behalf of the defendant was Mr Swain. He left the work site at 3.45pm on 16 November 2009. As at that point in time he had checked that all the barriers and signs were set up in accordance with the TCP (Exhibit A, Tab 1, p 1). He was not the author of the TCP and was not qualified to prepare such a document. Another person not identified in the evidence prepared the TCP and gave it to Mr Swain to implement.

10. Mr Swain gave evidence that generally the defendant did not put lights on barriers in built up areas because residents would complain about the flashing lights in their windows and because flashing lights would also be a magnet for children to come onto the work site at night and throw rocks. He said that following the accident on the morning of 17 November 2009 he did not see any Council officers putting up additional signs or moving the existing signs. He said that he had never had a job where signs were put on both sides of a barrier. It was his experience that signs would face the direction from where the traffic was coming. He was unaware of persons taking motorcycles across the pedestrian foot bridge over Blackmans Swamp Creek.

11. It was common ground that the barriers used were interlocking Triton barriers constructed of a light weight polyethylene plastic shell. Each barrier had a length of 2.1m, 530mm in width and 810mm in height. Each barrier held 550 litres of water. When three barriers were linked together, the combined weight of all three would be 1,650 kilograms. There was no issue that these barriers were designed to provide rigidity during impacts and were resistant to tensile forces generated during high severity impacts.

12. In relation to his decision to use water-filled barriers when implementing the TCP Mr Swain said:

“Q. The question that I'm endeavouring to have you answer Mr Swain is, whether you gave consideration to the use of a barrier board at Jilba Street in November 2009?

A. No, I didn't.

Q. Why not?

A. Because I didn't deem them suitable for the job, they can be dismantled, undone, each component would only weigh a few kilograms, could easily be taken off site where the water-filled barriers, even if they don't contain water, weigh over 50 kilos. They would be linked together so with a pin that each water-filled barriers had three sections on it, the other side has three sections. They are placed together with a pin down through them, it's very hard for and one person to remove them unless they're on a completely flat surface, so, no, I didn't deem them appropriate.

Q. And in your employment with the Council did you have experience of barrier boards being taken from work sites?

A. Many times.” (T.58.14)

13. In his second statement (Exhibit 1, Tab 9, p 54, par 6) Mr Swain said:

‘When we had to work on the road, we both had to employ traffic control every day and try to make the site safe where we were digging out to a metre and a half in depth in some places. This required backfilling every evening, it was not feasible by physically blocking the road off and webbing around the immediate work site, we didn’t have to employ traffic controllers which was going to cost us in excess of $1000 a day.”

This statement by Mr Swain was not challenged. It was not suggested to Mr Swain that he could or should have reopened the road at night after backfilling every evening.

14. I accept that as of 10.30pm on 16 November 2009 the signs and barriers in respect of Margaret Street, Jilba Street and Mirral Way were in position as set out in the TCP. The contrary was not suggested in the proceedings.

The street light

15. It was common ground that shortly before the accident the plaintiff had negotiated a water-filled barrier in Jilba Street to the south of that with which he subsequently collided. That barrier is depicted in Exhibit A, Tab 4, p 178. Further to the south of that barrier can be seen orange mesh surrounding the work site as it was then.

16. At the time of the collision there was a street light on Jilba Street about 10.6m to the north of the barrier with which the plaintiff collided. It was accepted by the parties that this street light was operating that night. If there were any doubt on that issue, it is resolved by the photographs taken by the police officers who attended the accident (Exhibit A, Tab 4, pp 163,168 and 170). As was pointed out by Mr McDonald the 10.6m distance is from the pole on which the street light was fixed. The photographs show that in fact the street light is suspended some distance from the pole over Jilba Street.

17. I am also satisfied that the other street lights in Jilba Street were operating at the time of the collision. Mr Sammut gave evidence that had a street light not been operating, he would have noted that fact. In addition Mr Thorpe, who was the defendant’s Works Manager at the time of the accident, attended Jilba Street three nights later on 19 November 2009 and noted that all of the street lights in Jilba Street were operating (T.72.9). The location of those other street lights is set out in the report of Professor Dain (Exhibit 1, Tab 16, p 210).

Lighting levels at accident site

18. There was an issue between the parties as to whether the photographs taken by the police officers on the night of the collision and by Mr Thorpe on 19 November 2016 accurately depicted lighting levels at the time when the collision occurred.

19. The plaintiff relied upon the evidence of Mr Sammut. Mr Sammut was a police constable at the time of the accident but in the intervening years had left the Police Force and was working as a school teacher when giving evidence in the trial.

“Q. When you arrived at the scene that night, what did you notice if anything about the level of visibility

A. It was pretty poor in that area

Q. - in the region?

A. It was pretty poor, it was pretty dark, that area is pretty dark.

Q. And when you took such photos as you took, did you have a particular object or purpose in mind?

A. I took photographs to show impact point with the motorbike, well a fault impact point with the water carrier and also to try and show the lighting conditions of the night.

Q. And with regard to the photos, you've had an opportunity of reviewing them recently in that tender bundle, what do you say about the appearance of the ambient light, the visibility on the scene that night as represented in the photos?

A. I say it's a pretty fair indication of how, of the visibility of the light and the visibility of those orange water containers, water carriers.” (T.39.17)

“Q. Now, that photograph, I suggest to you, does not depict how easily you saw the barriers on the night, does it?

A. There was headlights on on various cars in the area, but I believe that depicts how it would have been without any headlights turned on, yes.

Q. You could move around the site without bumping into the barriers when there weren't headlights on them, couldn't you?

A. Of course, yes.

Q. I suggest to you that that suggests greater visibility in the barrier than is depicted in the photograph at 182?

A. A close representation.” (T.48.46-49.10)

“Q. After Mr Wells was taken from the scene, you drove your police vehicle towards the barriers with the headlights illuminated, didn't you?

A. I believe so, yes.

Q. Do you recall the barricades could be seen quite clearly when you did that?

A. With the headlights on, yes.” (T.49.30)

20. The plaintiff also relied upon the evidence of Mr Thorpe:

“Q. The object of the exercise being to display for anyone viewing prints of those photos the scene available at the location at night; correct?

A. Correct.

Q. To approximate as best one could the view available to a motorist travelling through that area at about the time of night that this plaintiff was injured; correct?

A. Correct.

Q. Do you say that the photographs from page 65 through to where they end in the 70s achieve that object? Do they accurately depict what would be available to a person without visual impairment by way of lighting of the scene?

A. Sorry, I'm not sure what - what was the question?

Q. The question was you set out to achieve the object of being able to show someone who saw the photographs what a person without visual impairment could see at the scene at night time at the approximate time that the accident

happened?

A. Yep.

Q. I'm asking you do you say that you achieved that object with the photographs attached to your statement in tab 10?

A. Well, they're the photos I took, so, yeah.

HIS HONOUR: Let's just clarify this.

Q. Do you say that these photographs – listen carefully – accurately depict what the human eye saw that particular night?

A. Well, they depict what – they depict--

Q. No, you say, "they depict what my camera showed", I understand that. That's not what's being put to you. What's being put to you - and I don't want this case to go off on a false basis - what's being put to you is do these accurately indicate what the human eye, that you saw with the A1 eyeball when you were out there taking those photos?

A. Yep.

Q. You say that's what you saw?

A. Intention, yep.

Q. I know that's what - your intention, but is that what you saw, these accurately indicate what your two eyes saw?

A. Yep.” (T.72.33–73.26)

21. The plaintiff relied upon the evidence of the accident reconstruction experts as follows:

“WITNESS JOHNSTON: Right. It's certainly not a flood light. My recollection of it, it was a low pressure sodium. It was downstream - in terms of the plaintiff's approach, it was downstream of the barrier, therefore, the incident light from that light wasn't on the face of the barrier he was facing. So, whilst I heard what was said before about making it look a certain colour, there was minimal incident light downstream.

HIS HONOUR: You're really looking at a silhouette, aren't you?

WITNESS JOHNSTON: That's right, you're looking more at a potential silhouette of either the barrier against the illuminated road behind it, because I measured - the lux right under it was 14. Once you got 8 metres away it was 4. So you're not really providing much light by that light, but there is some light, I accept that. I think that's all I just wanted to refer to that it's been ignored that it's downstream and, therefore, the light on the incident face is not as readily apparent.” (T.134.14)

“HIS HONOUR: And I did raise with Mr Johnston the question in passing that because of the position of the street light and the position of the barrier, that what you're looking at is silhouette; do you agree with that?

WITNESS MCDONALD: I agree, yes, and, in fact, the light readings that Mr Johnston referred to, they would be adequate in my mind to produce quite reasonable silhouette vision of the barrier, particularly, in the area where the road is illuminated to the level of, I think Mr Johnston said 14 lux.

WITNESS JOHNSTON: 14 lux right under the light.

WITNESS MCDONALD: That's quite right. Even 4 lux - the threshold for typical vision for somebody travelling down the road and encountering an unexpected hazard is generally accepted to be around 3.2 lux. It's the same lighting level as civil twilight. So the illumination levels reported by Mr Johnston would certainly light up the interaction environment and, therefore, provide good silhouette lighting of the barriers.” (T.135.8)

“WITNESS MCDONALD: And it's 5 out from the light source, because the light source isn't at the pole, it's suspended out over the carriageway. The distance that I've done is 11.7 metres.

WITNESS JOHNSTON: All right.

WITNESS MCDONALD: Now that's obviously the distance from the light to the barrier and it doesn't represent the distance from the light to the areas of roadway that would be being illuminated behind the barriers to provide silhouette vision.

…

WITNESS JOHNSTON: Yes, perhaps 12 metres, it's about 2 lux at that point, but that's a horizontal reading too and we're looking at the vertical face on the far side which is darker. It really, as we got to it before, the barrier was not going to be and I think we already really answered this, the barrier was not really lit by direct illumination, the barrier, it was going to be seen was more of an outline against the silhouette light behind it.” (T.138.6)

22. It was the plaintiff’s submission that the level of lighting at the collision site was accurately depicted by the photographs taken by the attending police officers and Mr Thorpe. If that submission is accepted, and if the motorbike had no headlamp, the barrier would have been shrouded in darkness and almost impossible to see until the driver was very close to it.

23. The defendant’s submission was that the level of lighting at the location of the barrier was much better than that depicted in the photographs and that the human eye would have been able to see much more than that which is depicted in the photographs.

24. The defendant relied upon the evidence of Mr McDonald and Professor Dain.

25. The Joint Experts’ Report identified the following issue:

“Mr Johnston notes that assuming the Police photographs are accepted as portraying a representative level of the available light before and after this incident then this is the only direct evidence available of the lighting levels and the vision available to the plaintiff at the time of approaching the subject barrier. Mr McDonald notes that photographs, and particularly reproductions of photographs, may not represent the range of vision possible with a human eye (subject to any impairment to typical vision). The images therefore enable identification of light sources and reflective objects, but not lighting levels.” (Exhibit A, Tab 8, p 357)

“Mr McDonald notes that no exposure information is available for the image and it is therefore not possible to comment on illumination levels. Mr McDonald does however note that the orange plastic barriers are visible across the image whereas no other features on or of the roadway are visible, including the pavement in the foreground. This is also evident in other images, such as Figure 2. The barriers are therefore of relatively good contrast given the immediate pavement is not visible yet the barriers are. Mr McDonald accepts that good quality retroreflective signs will be more visible with an adequate light source, however notes that the effectiveness of the plaintiffs light source is not known. In the absence of an effective light source on the plaintiff (and with an effective light), ambient lighting (both direct and silhouette illumination) must be considered to determine if the roadway was otherwise adequately lit. Flash photography of retroreflective signs does not permit this, and typically results in shorter exposure times such that features that are visible to the human eye are not captured. Appendix A provides a discussion of flash photography effects. Appendix B provides a discussion of silhouette illumination.” (Exhibit A, Tab 8, p 358)

“Mr McDonald reiterates that the exposure levels of the images is not known and the images therefore can provide only an indication of retroreflective signs and light sources, and not levels of illumination or adequacy for human vision.” (Exhibit A, Tab 8, p 360, line 9)

26. I accept that the illustrations (Figures 5 and 6) in the Appendix to the Joint Experts’ Report and the discussion by Mr McDonald clearly illustrate the limitations of flash photography when compared with the human eye. There Mr McDonald said:

“The image reproduced in Figure 5 shows the effect of flash photography to reduced detail that would otherwise be discernible in other areas of an image. …

Mr McDonald is familiar with this effect and takes scene images using fixed aperture and ISO setting and ranging the exposure through a limited range to better mimic human vision." …

Mr McDonald is familiar with the adverse effect of retroreflective signs on detail in images from experience capturing sight images, and regular application during close range photogrammetry of vehicles.” (Exhibit A, Tab 8, p366)

27. Additional evidence was given at trial:

“WITNESS MCDONALD: I have had experience through previous matters in seeing images of a scene and in attending the scene and seeing that the images often would appear to depict something quite different in terms of illumination levels and what can be seen with the human eye. I've also undertaken training in human factors which provided instruction as to correct methods of actually capturing the image so that it would best reflect what a human eye could see, even that it doesn't actually reflect what a human eye can see. Now, I think that's essentially my experience and training.

HIS HONOUR: Mr Johnston, you've been in a similar situation, I would imagine. Have you noticed that the human eye - I'm paraphrasing what Mr McDonald said - that the human eye will often pick up much more than what is shown on a photograph, particularly when that photograph has been obtained as a result of flash photography?

WITNESS JOHNSTON: That's correct. Flash photography, particularly, you'll get a shallow depth of fields. You may have a very low floor ground and no background, but even without flash, yes, the camera is not the human eye, but it can work both ways. You can see - you can see a lot less in a photograph than the human eye can see or you could enhance or modify a photograph which I do regularly in DPP evidence looking for evidence, and you can see a lot more in a photograph than the human eye can see. So, a camera is not the human eye and they are methods we can use to try and be as close as possible to try and say that reflects what I saw, but they're not the same.

HIS HONOUR: I want you to assume that the crucial photographs in this case, those taken by the police, within a short period of time following the accident, were taken - and I think I'm describing it correctly, Mr Wheelahan, stop me if I'm not - with basically a rather small hand held camera with a small flash. It wasn't sophisticated photographic equipment. So does that lead either of you would alter your answers?

WITNESS MCDONALD: I would consider the smaller images such as captured with mobile phones, as an example of a device, in my experience to be generally poor at reproducing what can be seen at night, fairly low, what they call dynamic range, that it doesn't pick up either end of the lighting spectrum very well and I should actually also comment that another compounding factor beyond that is the later reproduction of an image, that an image can be printed to appear darker or lighter, just as Mr Johnston has indicated that you can adjust an image on a screen for example to appear darker or lighter.” (T.90.18-91.8)

“HIS HONOUR: Now you've given some illustrations at the end of the, some examples I'm sorry, at the end of the joint experts report, do you want to just explain perhaps in somewhat simpler terms, the, what you were trying to achieve if you like by giving those examples, that is the person in the hoodie and then subsequently, I think I understand the other one, it's a question of direct light on a person and then a profile, so we can understand that, but, just

explain if you could in perhaps simpler terms what you're trying to achieve with your illustration on page 12 of the joint report.

WITNESS MCDONALD: Certainly, the intent of the image on page 12 is to show that use of flash photography does not necessarily enhance all of the detail that can be seen and it can actually have the opposite effect or adverse effect on seeing things. That if it produces one area of an image to be particularly bright and in the subject case that would be the reflective signs for example, then the camera exposure will actually reduce so that you can't see detail that you would otherwise see with the human eye, so that's the thrust of page 12. The images on page 13 and 14 are to show that to see something on a roadway at night with artificial illumination, in particular street lighting, that it does not need to be directly illuminated, that we can actually see many things on the road by silhouette illumination and in fact that's actually the intended purpose in one of the design approaches for street lighting, that it's not to directly illuminate the entire road in alignment, but it is to provide sufficient background illumination to see an object on the road.” (T.91.45-92.17)

28. The evidence of Mr Sammut as to the camera used by him and his colleague on the night of the accident was:

“Q. Mr Sammut, it goes without saying, but lest there be any argument down the track, I take it that all of these photographs taken on the night were taken with a camera to which was attached a flash?

A. Just one of those little - what do you call them - little pocket camera type things. It wasn't like a bit SLR, it was a small little pocket camera.” (T.41.42)

29. Professor Dain was an expert on optometry and vision science. He had frequently given evidence on vision related matters arising from occupational and road accidents. In his report of 30 March 2016 Professor Dain said in relation to the photographs in his report:

“This is intended to show the disposition of street lighting but not the visibility of any objects. Digital cameras do not render the scene as seen by the human eye and introduce deliberate and accidental distortions to the scene to produce the final photograph. Such images may be further altered by printing processes and different computer displays.” (Exhibit 1, Tab 16, p 212)

30. In relation to the visibility of the barrier, Professor Dain said in his report:

“”Photograph 3 was provided to me. It shows the colour of and signs on the barrier. I am advised that the signs are not retroreflective. The colour appears to be that typical of the plastic water-filled barriers and is typically referred to as “high visibility orange”. Such a colour reflects highly in the orange to red region of the visible spectrum. By day it displays a large colour difference with its background. By night the visibility will depend on the colour of the streetlights. Under the high pressure sodium lights of Jilba Street it will appear especially bright because that light source is rich in the yellow, orange to red wavelengths. The Orange City Council labels will also be visible as bright against a darker background. Headlights would also add to the visual contrast of barrier against roadway.” (Exhibit 1, Tab 16, p 216).

31. Professor Dain set out a summary of the conclusions in his report as follows:

“There is every indication that at the time of my inspection Jilba Street is appropriately lit for pedestrians and that there is no necessity placed by AS/NZS 1158 to light the area for vehicles. Vehicle headlighting is a method by which obstacles are highlighted for the drivers, aided by the use of retroreflective signs and, where appropriate, raised pavement markers, road lines and post mounted markers.

I am satisfied that the lighting system that I viewed provided a suitable visual environment for pedestrians but also for vehicles at slow speed even without headlighting.

On the assumption that the lighting at the time of my inspection was unchanged from that at the time of the accident, then the street was appropriately lit at the time of the accident.” (Exhibit 1, Tab 16, p 218)

32. In evidence at trial Professor Dain said:

“A. Photographs are notoriously bad at reproducing a scene. There are deliberate distortions which take place in the photographic process. You have to be able to contract the whole range of lighting levels in a real scene down to the lighting levels that are - that can be reproduced in a photograph. So there is a contraction. The range of brightnesses in the photograph itself are quite different from in the original scene. Secondly - secondly, when you come to - you may view that - you may view that photograph digitally on a screen and depending on which computer you use, you will get different views and it very well appear of different - different visibilities. You may choose to print that by a printer and, again, you will get a different rendition depending on the printer you choose and the printer settings that you use, so that photographs, even the first generation and I have put a .. (not transcribable)… on my first photograph, is to say, you cannot, I do not claim that what I've got represents what was in the scene, it's an impossible task. In image terms they talk about the term, wiziwig which is what you see is what you get and that's the ideal, so what you see on the print is what you get. I have to say that what the printing people usually say is it's wigiwig, it's what you get is what you get, it's not a representation, it is, there are well known colour distortions and lighting distortions that take place in photographs, so even in the first generation, if you go to several generations which is where I received them, you can't do that and I would never really [rely] on photographs to replicate a scene.

…

Q. So what about the photographer, a responsible member of the community who takes a photograph, has a print prepared by whatever means and says, well looking at that print, that is what I saw, do you say we can't accept it?

A. Well I can say that colour memory is also unreliable, so that, yes, if you replicate what you think, what in fact the, certainly in the old days of film photography what you got was the result of research by a person called Robert Hunt, who happened to be one of my PhD supervisors and what you get in those photographs and what you get on a television is what you think you saw and what you, what is pleasing to you, so it's based on the colour of grass, you see the colour of grass that you expect to see, you see the flesh tones that you expect to see and you see the sky colours that you expect to, you think you saw. So taking those distortions and applying them to a photograph that was taken at night, anything can happen.

Q. But doesn't it depend upon the reliability of the observer?

A. So, it depends on the reliability of the observer, yes, but also of the lighting conditions, so that we view a print, the photographer viewed that print in the street say and looked at the street scene and says yes, this looks the same, but we then view that print under quite different conditions and again it's an unreliable clue and so I never rely on them.

Q. Never?

A. Never.

Q. Well, you say that your photographs, photograph 2 and 3 and your comment is at page 16 of your report at line 4, you say that, well in respect of both of the photographs, that it's not intended to show the disposition of street lighting, I'm sorry, I withdraw that. This is intended to show the disposition of street lighting but not the visibility of any objects. Digital cameras do not refer or render the scene as seen by the human eye and it introduced deliberate and accidental distortions to the scene. Well what I'm putting to you is that the scene as seen by the human eye, surely can be the subject of a photographic representation, surely?

A. Not reliably, I note, I said that's why I got that disclaimer in there, I'm not trying to, I'm not trying to replicate what was there, because I know I cannot and I don't know how many generations the report is that you're looking at .

Q. What I'm asking you to do professor, I assume for the purposes of this debate, that the people that took the sets of photographs provided to you say that they accurately represent the scene on the night of the accident?

A. They have.

Q. Both of it?

A. They have not seen the photographs that I would, was given, which are generations down from the ones that they originally made that, so I think they're mistaken in the first place, but I think by the time they get to me, I don't know what's happened to these on their way from the original photographer to me.

Q. I'm not asking you -

A. That's why I don't rely on them.

Q. I'm not asking you to assume anything about what's got to you, I'm asking you to assume that they have said with regard to the exhibits in this case, that the photographs, the sets of them of which you have some representation, accurately recorded what they saw on the night?

HIS HONOUR

Q. He had answered it though, he says they're mistaken, when they say that, that's what he said, there's a qualification before he got on with the answer. That's correct isn't it professor?

A. I think that yes, I think that they don't understand, I wonder if they understand the, what's going, the issues here.

WHEELAHAN

Q. So the --

A. And they, I mean, it physically, it cannot do it, physically, if you go, so, if you're suggesting that I could go and measure the light levels in the scene and those would be exactly the same light levels in the photograph, absolutely not, it's impossible.

Q. Well, does that mean that the scene could have been less luminous or more luminous that is shown in the photographs?

A. It could go either way, yes, because the digitally, it depends on, people take these things with automatic exposures and the camera makes kind of compensations and sometimes, depending on how much light is there, it can enhance the view of a scene and sometimes it can detract from the view of the scene.” (T.145.3-147.9)

“Q. I see. So you have got no idea what the illuminance would be on the other side of the barrier had it been there?

A. On the vertical side of the barrier, did you mean?

Q. No, I mean on the other side, on the approach side, if I may put it that way.

HIS HONOUR

Q. The dark side, the side that would be in silhouette?

A. Well, there are light fittings either side of it.

WHEELAHAN

Q. You're not suggesting that a light to the south of where you assumed the barriers were had any part to play in this matter, are you?

A. It would illuminate the vertical surface of the barrier.

Q. Really?

A. Yes.

Q. But you did all of this without reference to, or having the benefit of, any barriers set up for your experiment; correct?

A. That's correct.

Q. And without any regard at all to the photographs taken by witnesses contemporaneously with the event?

A. I had seen them, but I did not rely on them.” (T.148.33–149.7)

33. I have concluded on the basis of the evidence of Mr McDonald and Professor Dain that the photographs taken by the attending police officers and by Mr Thorpe do not accurately depict the level of lighting at the time of the accident. Because flash photography was used, I am not satisfied that the photographs can even be said to approximate lighting levels and to indicate what was capable of being seen by the human eye. In reaching that conclusion, I am mindful of the evidence of Mr Sammut to contrary effect. In that regard, the scientific evidence needs to be taken into account as well as the fact that the observations made by Mr Sammut occurred over seven years ago. Having had his recollection assisted by being shown the photographs, it is natural that he would regard them as being accurate as to light levels. The photographs may also have caused a degree of contamination of his recollection. I have concluded that despite Mr Sammut doing his best to assist the Court, he was simply mistaken in that evidence. I am also satisfied that Mr Thorpe was mistaken in his evidence. In addition, it is not clear that Mr Thorpe understood the question.

34. I am, however, satisfied that Mr Sammut and his colleague had no difficulty observing the presence of the barrier on the night of the accident when they approached it with the headlights of their vehicle operating. That evidence is consistent with the opinions of Messrs Johnston and McDonald. I find that the barrier with which the plaintiff collided would have been adequately visible to an approaching car or motorcycle with its headlights or head lamp operating.

33. Given that state of the evidence, it is simply not possible to be satisfied as to the level of lighting which prevailed at the time of the accident. What I am prepared to find is that the human eye would have been able to observe more than is depicted in those photographs. How much more cannot now be accurately established. This creates a significant problem for the plaintiff because he is not able to establish that lighting levels in respect of this barrier were inadequate and that more should have been done in that regard. This is particularly so when regard is had to what was originally said by Mr Johnston in his report of 5 May 2014:

“Direct lighting of the barriers by a sufficiently powered adjacent street light could have provided this level of illumination independent of any lighting provided by the motorcycle or rider.

Therefore a correctly functioning street light could have eliminated reliance on any form of lighting provided by the motorcycle rider. This appears to be the scheme designed by the Council with the adjacent street light being the mechanism intended for the illumination of these barriers.” (Exhibit A, Tab 6, p 323)

36. I am, however, satisfied by the evidence of Professor Dain and Mr McDonald based on their examination of the accident site at night, that the ambient light at the accident site was sufficient to reveal the presence of the water-filled barrier to an approaching motorcycle rider who was keeping a proper look out. The presence of a functioning street light above the roadway where the barrier was located and its effect by way of creating a silhouette in relation to the barrier is an important factor in reaching that conclusion.

The circumstances of the accident

37. The plaintiff was born in January 1977. He was diagnosed with epilepsy when he was 14 and left high school in year 8. He engaged in a number of labouring occupations but by the date of the accident had been in receipt of a disability support pension for many years. He was working sporadically at the time of the accident mainly in the motor industry. The main inhibitor to employment for the plaintiff was the onset of crippling gout which he developed quite early in life. This precluded him from manual work which is the work for which he was suited.

38. At the time of the accident the plaintiff did not hold a driver’s licence having previously been disqualified from driving until November 2021. The motorcycle which he was riding at the time of the accident was an unregistered Suzuki 250 cc vehicle described as “a motor cross style of motorcycle”. The motorcycle did not have a head lamp fitted to the front. Illumination was provided for the plaintiff by what the police described as a “small ‘camp style’ light which was normally affixed to the head by a strap”. There was no evidence as to the illuminatory capacity of this small ‘camp light’. All that we know is that the ‘camp light’ was powered by three AAA batteries. Messrs Johnston and McDonald agreed that such a device was “highly unlikely to have been as effective as a normal motorcycle head lamp. This applies in terms of direct illumination of objects and illumination from retro reflective signs”.

39. Messrs Johnston and McDonald agreed that the motorcycle speed was in the order of 50 – 60 km/h. The speed limit in the area was 50 km/h. There was no evidence that the motorcycle had braked before striking the barrier. The distance between the position of the barrier and the position of the plaintiff after the accident was 19.3m. At a speed of 50 km/h the motorcycle would have covered 13.8m in one second. At a speed of 60 km/h it would have covered a distance of 16.6m in one second.

40. To travel from the pedestrian bridge to his friend’s residence at Tasha Place at about 7pm, the plaintiff must have passed from the south of the two barriers on Jilba Street, including the one with which he collided. When returning from his friend’s place at approximately 10.15pm he must have again passed from the north of the barrier with which he collided before making the U-turn. It is not known how far he had progressed past that barrier before making the U-turn.

41. It follows, and I have concluded, that the plaintiff had successfully negotiated this barrier in darkness when approaching from the northern side before making the U-turn. He must therefore have been well aware of its presence and precise location. This is because he had negotiated this barrier from the northern side, not long before he made the U-turn. It was the U-turn which caused him to approach it from the southern side on the occasion of the collision.

42. At the time of the collision, the plaintiff was not wearing a helmet having loaned it to a friend some days previously. In evidence he accepted that he was aware that he might suffer serious injury if he did not wear a helmet and hit his head (T.32.15) and that the purpose of a helmet was to protect him from getting a head injury (T.32.21). Dr McIntosh, an expert retained by the defendant, said in his report that “had the plaintiff been wearing a standard motorcycle helmet at the time of the collision (but all the other circumstances of the collision remained) he would have suffered fewer and considerably less severe head injuries” (Exhibit 1, Tab 17, p 249 para 48). Dr McIntosh also opined “he would not have suffered any skull fractures and related local intra-cranial injuries” (Exhibit 1, Tab 17, p 250 par 51).

Was the plaintiff’s ability to control the motorcycle impaired

43. A blood sample was taken from the plaintiff at the Orange Base Hospital at 11.15pm on 16 November 2009. The sample was found to contain not less than .059 grams of alcohol in 100 millilitres of blood, i.e. a reading of .059 (Exhibit 1, Tab 30, p 546-47). The evidence of Dr Ogden, an expert medical practitioner and pharmacologist, retained by the defendant was that the plaintiff’s alcohol concentration would not have been materially different at the time of the collision (Exhibit 1, Tab 18, p 315). The plaintiff’s evidence was that he had consumed part of a bottle of tawny wine on the afternoon/evening before the collision. He gave evidence that it was “common sense” that drinking the amount that he drank and then trying to ride a motorcycle would make him less able to control the motorcycle (T.33.19). No challenge was made by the plaintiff either to the blood alcohol reading or to the opinion of Dr Ogden.

44. There was an issue between the parties as to whether the plaintiff had consumed an amount of marijuana and an amount of sleeping pills on the afternoon of the collision. The defendant submitted that he had.

45. In support of that submission the defendant relied upon what was recorded in the medical records of the Orange Base Hospital and the Nepean Hospital. The record in the Orange Base Hospital was “ETOH/marijuana/sleeping tablets this pm”. The defendant submitted that this information likely came from the plaintiff given that the medical records showed that he was initially alert and conscious with a Glasgow Coma Scale (GCS) of 14 before a subsequent deterioration (Exhibit 1, Tab 29, p 520 and 525).

46. The defendant submitted that such a finding would be consistent with the plaintiff’s evidence that he would smoke marijuana with his friend at Tasha Place from time to time and that he took sleeping pills “sometimes, every afternoon, night” including on the previous evening (T.31.11). The defendant submitted that such a finding would also be consistent with police records which referred to alcohol and sleeping tablets as a factor contributing to the crash (Exhibit A, Tab 4, p 156).

47. The defendant submitted that there was no evidence to the contrary. The defendant submitted that because the plaintiff’s friend was with him that afternoon but was not called by the plaintiff to provide contrary evidence, the Court should draw a Jones v Dunkel inference that the friend’s evidence would not have assisted the plaintiff on this issue and that as a result, the Court could be more confident in drawing an inference as to the accuracy of these records. The defendant noted that the plaintiff’s evidence was that he was aware that mixing alcohol with sleeping pills would enhance the effect of the alcohol and make him more drunk than he would be otherwise (T.31.27).

48. The plaintiff submitted that it was not clear where that information had come from and that it could not necessarily be inferred that it had come from him. On that issue the plaintiff relied upon Lithgow City Council v Jackson [2011] HCA 36; 244 CLR 352 where the High Court held that an ambulance record was so ambiguous as to have no probative value. Alternatively, the plaintiff argued that s 78 of the Evidence Act1995 (NSW) did not apply in the absence of a clear identification of the person who held the relevant opinion.

49. The decision in Lithgow City Council v Jackson is readily distinguishable from the facts under consideration. The specific reference to “this pm”, when taken with the plaintiff’s own evidence, allows me to draw an inference that the likely source of the information was the plaintiff (there being no evidence of anyone else having witnessed the accident or having accompanied the plaintiff to hospital). Accordingly, I accept the defendant’s submission that the plaintiff had consumed some marijuana and sleeping pills on the afternoon of the day on which the accident occurred.

50. That having been said, the finding does not significantly assist the defendant. In the absence of any information as to the quantity of marijuana or sleeping pills consumed, little use can be made of that finding. It cannot be safely inferred that the consumption of these substances contributed to or explained how the collision occurred. It does no more than form part of the general background to the incident.

51. The finding as to the level of alcohol consumption, however, is in a different category. Dr Ogden in his report said:

“There is no evidence of a threshold effect for alcohol because some impairment of performance occurs at the lowest blood alcohol concentration that can be measured. There is no level at which a sudden transition from unimpaired to impaired can be expected: Whatever the level of blood alcohol concentration examined, at least some skills can be demonstrated to be significantly impaired. The National Health and Medical Research Council advises:

“Very low levels of alcohol can affect judgment and performance, and even a very small effect may be relevant where a high degree of skill is needed, where the risk is already high, or where the safety of others is involved.” …

Tests of divided attention and actual driving exhibit impairment by 0.01%. The majority of tests of drowsiness exhibit impairment by .02%. The majority of tests of vigilance exhibit impairment by 0.04% ...” Clearly, even the lowest possible doses of alcohol should carry a penalty when consumed in conjunction with the complex task of automobile driving.” …

There are fewer studies of motorcycle collisions than of collisions involving motor cars. One study of collisions in Victoria, suggested that any alcohol in the blood stream increased the risk of fatal motorcycle collision about fivefold and that a blood alcohol concentration of over .05% increased the risk about 40 times.” (Exhibit 1, Tab 18, p 301)

52. Later in that report Dr Ogden said:

“Mr Wells had a blood alcohol concentration of 0.059% half an hour after the collision so it is most likely his blood alcohol concentration was not very different at the time of the collision. Many people have gained the impression that because 0.05% is the legal limit for fully licensed drivers in this country and 0.08% is accepted in other countries that it is an unimportant level and not associated with impairment.

In reality there is significant impairment at 0.05%. This level was chosen by many jurisdictions because the overall collision risk was about doubled and that was deemed politically acceptable. Some impairment of performance is measurable at any blood alcohol concentration.” (Exhibit 1, Tab 18, p 306)

53. That opinion by Dr Ogden was not challenged at trial. Accordingly, I have concluded that the plaintiff’s ability to control the motorcycle was impaired by the alcohol which he had consumed. I am, however, unable to assess the level of impairment.

The evidence of the engineers and the traffic control plan

54. The experts agreed that the normal or prescribed process for traffic control of worksites was to prepare a TCP. A TCP was intended to protect workers and provide for the safe passage of road users, either through, past or around road work. Australian Standard 1742.3 (2009) provides guidance for the development of TCPs. A copy of that standard was before the court (Exhibit A, Tab 2, pp 2-134). The TCP prepared by the defendant was Exhibit A, Tab 1, p1. A more sophisticated version of that TCP can be seen in the report of Mr McDonald of 5 April 2016 (Exhibit 1, Tab 14, p123).

55. The experts accepted that the TCP prepared by the defendant (dated 16 November 2009) was based on figure 4.14 of AS 1742.3 and TCP 54 of Traffic Control at Work Sites and the relevant associated provisions or clauses within each document. Traffic Control at Work Sites was a document prepared by the Roads and Traffic Authority, which provided guidance on the development of TCPs and included a number of standard TCPs.

56. The experts agreed that AS 1742.3 and Traffic Control at Work Sites allowed for modification of standard TCPs to accommodate specific site conditions. They noted that the subject TCP differed from a standard layout, such as TCP 54, in that barrier boards (or other portable barricades) had been substituted with plastic Triton water-filled barriers as the device placed partially across the roadway.

57. The experts agreed that the primary function of a safety barrier was to absorb the energy of impact and in doing so, re-direct an errant vehicle without penetration of the barrier or unacceptable deceleration levels or intrusion risk to the vehicle occupants. They noted that the selected barriers could be used as an approved safety barrier when interconnected and filled with water. Alternatively, when not filled with water or interconnected, the barrier modules could not be used as a safety barrier but could be used for other purposes such as delineation or containment fencing (AS 1742.3, cl 3.10.2).

58. The experts were of the opinion that in this instance the relevant barriers were not placed to act as a safety barrier system, as there was no hazard being protected beyond the line of the barrier. The devices were, in the experts’ opinion, installed to act as a physical impediment in support of the road closure, in place of the devices specified by the Australian Standard, being a row of barrier boards or other portable barricade devices.

59. Messrs Lawson and Johnston were of the opinion that the subject barriers could have been placed across the road if they were not interconnected, not filled with water and appropriately identified by a line of delineating devices (AS 1742.3, cl 3.9.2) either in front of or attached to the face of the barriers. Mr Lawson noted that clause 3.8.3(b) identified “an absolute requirement” in that the word “shall” was used with regard to the placement of delineating devices in front of stand alone non-interconnected lightweight modules (i.e. the subject barriers if they were not interconnected and were not filled with water). He also noted that clause 3.9 identified a range of delineating devices – cones, bollards, road work delineators and temporary hazard markers – none of which were installed.

60. Mr McDonald was of the opinion that the subject barriers could be used because they were obvious during the day and at night adequate illumination of them made further delineation of limited benefit and need. He was of the opinion (report 23 December 2016, Exhibit 1, Tab 15, p 173, 177-181) that Triton barriers without water in them and barrier boards would have caused the rider of a motorcycle to be flung forward in any event if a collision occurred.

61. The experts agreed that the standard was silent on the use of interconnected water ballasted barriers in the manner applied at the location of this incident, i.e. installed across a roadway as a means of road closure. They agreed that because of this, their use necessitated that a written risk assessment of the device as a specific deviation from the standard should have been undertaken before its implementation. This was the requirement of clause 2.1(ii) of the standard.

62. Mr Johnston and Mr Lawson were of the opinion that it was likely that such a risk assessment would have identified the increased risk of placing the subject water-filled barriers across the roadway without any supplementary delineation. The risk assessment would have recommended a suitable solution to eliminate the additional risk or would have identified an alternative solution where the risk was eliminated by choosing not to use the water-filled barriers in the first place. It was Mr Lawson’s opinion that the standard was silent on the use of interconnected water ballasted barriers installed across a road because they were not intended to be used in that manner. This was because to do so created a serious hazard.

63. Mr McDonald was of the opinion that the subject barriers were appropriately delineated by their appearance in contrast with their surrounds, preceding sign posting and because the barriers were lit (by direct illumination on the northern approach and predominantly by silhouette illumination on the southern approach). This was despite the fact that no formal risk assessment had been made. Mr McDonald considered that the barriers were substantial enough to create a collision hazard to a motorcyclist, regardless of whether water-filled or interconnected, as would any other type of barrier placed across the road. He considered that use of the subject barriers was in accordance with the provisions of the standard which allowed for modification and adaptation of TCPs.

64. Mr Johnston was of the opinion that the available photographs suggested that the barriers were not appropriately delineated as they were barely discernible in the photographs. He further noted that even if the street light was present and working, it provided no direct illumination of the inside face of the barrier, i.e. the southern side, (which was also devoid of any retroreflective devices) and no discernible silhouette illumination of the barriers themselves. He agreed that the prescribed alternative devices, if impacted, would still constitute a potential collision hazard but that such a hazard would not be as severe as that created by the water-filled barriers. Mr Lawson agreed with Mr Johnson on that issue.

65. Messrs Lawson and Johnston were of the opinion that interlinking and/or water filling the barriers created a hazard that did not otherwise exist and in circumstances where it was not needed to protect road users or workers from a greater hazard. All three experts agreed that the barriers in place were not marked with any retroreflective markings, except for the “road closed” sign on the outside face, i.e. northern face. Mr Lawson was of the opinion that the subject barriers should have been delineated with temporary hazard markers in accordance with cl 3.9.3 of the Standard. An example of such a marker was at p 9 of the Joint Experts’ Report of 25 January 2017 (Exhibit A, Tab 8, p 363).

66. Mr Johnston was of the opinion that the standard did not anticipate the use of such devices in this specific manner. Accordingly, there was no prescriptive methodology to adequately identify the presence of the barriers as a potential hazard to road users. As a result he considered that it was a fundamental requirement under cl 2.1(ii) of the standard that a formal risk assessment of the scheme and specifically this variation, be undertaken. This was because it created an additional risk for road users in that it became itself a potential impact hazard and because it did not provide the level of inherent retro reflective delineation which was afforded by the use of standard barrier boards.

54. Mr Johnston opined that the primary issue which should have been identified by a proper risk assessment was the need to appropriately delineate the barriers. Since there was no prescriptive method set out in the standard, any method that adequately identified the presence of the barriers and the actions required by a road user in sufficient time to respond to the presence of the barriers, would be a suitable method.

55. Mr Johnston noted that the requirement to conduct a risk assessment was a prospective requirement to identify future potential risks before formulating an appropriate TCP. It was not a retrospective requirement to be checked after an incident. It was agreed at trial that there was no evidence of any written or formal risk assessment having been made by the defendant in relation to the use of the subject barriers. I am satisfied that no written risk assessment of the use of the subject barriers was carried out by the defendant.

56. Mr McDonald accepted that cl 3.8 of the standard specified the use of a “Road Closed” sign together with barriers boards to bar access. He noted that rather than barrier boards, the water-filled barriers were used to bar access and that the subject barriers were delineated by lighting and contrast.

57. The experts agreed that the use of the subject barriers was a potentially acceptable application of professional judgment noting that the alternative barricades (barrier boards or lightweight modules) might have been subject to interference and relocation (vandalism). Mr Lawson believed that a risk assessment process should have considered alternatives to using the subject barriers such as opening the road to traffic overnight. Once a decision was made to utilise the subject barriers, the experts agreed that an appropriate risk assessment was required to ensure adequate delineation of the barriers.

58. The above opinions were set out in the joint experts’ report of 25 January 2017. Those opinions were tested in cross-examination at the trial.

59. Despite his agreement to the proposition in [69] hereof, it was clear from Mr Lawson’s evidence that he did not regard the use of the subject barriers as involving an acceptable application of professional judgment (T.89.32-90.10, T.95.48-96.11).

60. Mr Lawson said that even if the subject barriers were not filled with water, they would still have required delineation and he recommended the yellow and black barriers such as were set out at p 9 of the joint experts’ report (see [64] hereof). He also suggested the use of traffic cones and temporary bollards (T.96.32-97.6). He disagreed with Mr McDonald’s opinion that adequate illumination was already provided for the barriers by the street light. Mr McDonald’s response was that while the standard did talk about delineating barriers at night, providing adequate illumination so that the barriers could be seen achieved the necessary level of delineation (T.98.18).

61. Mr McDonald made the following general observation in relation to the standard:

“MCDONALD: No, but I am suggesting that the standard does allow for professional judgment. It accommodates modifications to traffic control plans, for example, and along that same line does allow for professional consideration of what the standards are trying to achieve, by providing something such as delineation, which is of course that road users can see any obstruction on the road or see where they should be travelling on the road.” (T.98.44)

Mr McDonald was of the opinion that even if the standard stated that something was mandatory, professional judgment needed to be applied in order to decide whether that requirement was appropriate (T.99.40).

75. There was no issue between the experts that the standard required that where signs and other delineation aids were to be used at night, their night time effectiveness would be best assessed by viewing the signs by vehicle headlights in dark conditions. I am satisfied that this did not occur in relation to these road works before the accident.

76. It was common ground between the experts that it was not practicable to drain and refill the water-filled barriers so they could be moved off the roadway at night. This was because a substantial amount of water was involved and at the time when the accident occurred, drought conditions prevailed. The experts agreed that it was not a “trivial exercise filling and emptying these barriers”. It was also agreed that if the purpose of filling the barriers was so that they were not displaced or removed by unknown persons, or otherwise vandalised, it would be pointless to empty the water out of them.

77. Mr McDonald gave evidence that before preparing his first report (5 April 2016) he went to the accident site at approximately 10.30pm and observed that there was sufficient lighting on Jilba Street at the intersection with Mirral Way for a motorcyclist to be able to identify the subject barriers and avoid a collision independent of the lighting available from the motorcycle. Mr McDonald accepted under cross-examination that there were no barriers set up at the time of his inspection. He did, however, place traffic cones on the roadway in a similar location and he was able to see those without any difficulty as a result of the ambient light. He did not take any photographs at the time because of the difficulty of reproducing by photographic means, the lighting levels prevalent at the time.

78. Mr McDonald accepted that in a formal risk assessment of the barriers erected at the intersection of Jilba Street and Mirral Way, consideration would have to be given to persons moving from inside the area where barriers had been erected, i.e. local residents and persons visiting local residents, such as the plaintiff, and service vehicles, including the police, pizza delivery persons etc. Mr McDonald’s position was effectively set out in his first report at paragraph 6.20 (Exhibit 1, Tab 14, p 148) as follows:

“I disagree with Mr Johnston that the barriers should have been identified with signs and/or reflectors for vehicles departing the works from the closed road. I do however agree that a night inspection of the devices was appropriate and could have been used to confirm whether or not such devices were warranted. That is not to say that a night inspection would have identified any additional treatment would have been necessary – noting the barrier in question was positioned under a functioning street light and I do not consider reflectors or similar were warranted based on my review of the material – just that it would have been prudent to conduct a night inspection as a check.”

79. In evidence Mr McDonald expressed an opinion to similar effect when he said:

“MCDONALD: Yes, that's based on what I believe to be the objective of the standard in providing adequate guidance to motorists and that if they can see something as they would in daylight for example, by being artificially lit, then it would make sense that the guidance you provide in daylight would be appropriate.” (T.111.34)

80. Mr Lawson agreed that the standard did not provide for the placement of reflective signs inside a work site or on the internal side of a barrier located at the site. Mr Lawson was unable to give any direct evidence as to his observations of the accident site at night since he had not visited the site.

81. When answering questions about his report Mr Lawson said that if the subject barriers were to be used, i.e. that there was a good reason for them to be used, then flood lighting should have been provided to make sure that their presence was known. This opinion was based on his understanding that the photographs taken on the night of the accident accurately depicted light levels at that time. His principal position was, however, that it would have been better not to put the subject barriers into position in the first place.

82. Mr Lawson accepted that the standard assumed that vehicles approaching a barrier would be using headlights otherwise there was no point in having retro reflective strips or other material to indicate the presence of barriers. Mr Johnston agreed with that proposition (T.115.17).

83. Mr Lawson (Exhibit A, Tab 7, p 351) was of the opinion that the placing of water-filled barriers at the intersection of Jilba Street and Mirral Way was so unreasonable that no authority, having the special statutory power to do so, could properly consider them a reasonable exercise of the power. He based that opinion on the following analysis “The use of these water-filled barricades in this situation introduced a serious hazard”. He considered that the subject barricades were “unwarranted” in that they were not installed in order to protect something. Residents were permitted access to the other side of them. If the defendant had a reason for using such barriers, it could have installed them but not filled them with water. This would have made them easier to move and far less of a hazard. Another reason was that the water-filled barriers were not used in accordance with the standard because no risk assessment had been made of the consequences of their use. His final reason was that having created an additional hazard by using the subject barriers, the defendant had failed to install signs, devices and/or reflectors to make the barriers visible to road users.

84. Under cross-examination Mr Lawson accepted that movable barricades and other objects used for delineation gave rise to a risk of them being moved or taken. He accepted that this particular area was notorious for vandalism of that kind. He also accepted that in assessing how to best protect the site and to protect members of the public driving to and from the site, it would be appropriate to take steps to prevent such vandalism. Mr Lawson agreed that using the subject barriers was the most efficient way of ensuring that work could start the next morning in that there was much less chance of signs and the barriers themselves being moved, damaged or taken.

85. Mr Lawson agreed that if the work was going to take a number of weeks, it would be necessary to have the barricades in position during the whole of that time. This would be seriously frustrated if the barricades were of a portable kind and were being moved, damaged or taken on a regular basis. Despite that agreement, Mr Lawson was not prepared to go the further step and accept that in those circumstances there was a good reason for using water-filled barriers as occurred. He maintained his position that there had been a failure to comply with the standard in that a written risk assessment in relation to the water-filled barriers had not been carried out. He was of the opinion that as an alternative, the road could have been opened each night until work was being carried out at that actual location, even though this would require the road work being backfilled each afternoon. Mr Lawson accepted that this would be less efficient and would significantly lengthen the time during which the work would be carried out. He maintained this opinion despite the fact that he had agreed in the joint experts’ report that the most efficient method of carrying out these works was to close the road.

86. It was clear that Mr Lawson appreciated the problem when he said:

“LAWSON: It is more efficient, it's just, it's not, I guess there's a couple of things, it's not just about putting stuff up and pulling it down, it's how quick you can do the work through the day, so, the issue with having a road open through the day is that you can only sort of work on half of it and you've got the traffic going around the other half, but, so there's two aspects to it, there's the putting up and taking it down and then there's the working on it through the day.” (T.121.38)

87. The following exchange between Senior Counsel for the defendant and Mr Lawson is instructive. The background to the question was the suggestion by the defendant of an available line of reasoning leading up to the use of the subject barriers.

“SHELDON: You see, what I'm ultimately putting to you is that it would be a legitimate process to say: barrier boards are no use because they'll be stolen every night, or nearly every night, or whenever; we can use water-filled barriers because they will be difficult to remove, they will be semi-permanent and we won't have to worry about people taking them; they'll have a sign on the approach side of them to indicate that the road is closed, and anybody coming from inside the site at night is likely to have their headlights on, which will illuminate the outline at least of the barriers. That would be a legitimate reasoning process, wouldn't it?

LAWSON: No, because you've missed a step. In between - the people - I don't disagree that people will move without the barricades. I think that's - that's quite - quite likely, but then the first step you've got to ask and the standard says it is that can I open this road up at night and the only reason it's been closed is to provide a detour as a matter of convenience, but the step in between, going barrier boards and water-filled barriers is that you say, well, okay, well, it's going to be tampered with at night, so may have we've just got to leave the road open at night and you need to make a road safe, anyway, because people might - they could still get around these barriers and, so, you still need to make the road safe at night. So I think - I get what you mean about that logical step, but I think there's one in the middle that would send you in a different direction.

SHELDON: This reopening of the road, as I understand it, you envisage that over the course of the project that the surface of the road would be in some way be backfilled so it would be trafficable; is that right?

LAWSON: Yes.” (T.125.1)

88. The proposition was put to Mr Lawson that if warning signs and movable barricades were taken or tampered with by members of the public this would also create a danger every bit as serious as having immovable water-filled barriers in position. If the warning signs were removed, serious injuries could occur. Mr Lawson’s response was that even with the water-filled barriers, you could still have signs being taken by members of the public.

89. Mr Lawson said that the start point for any TCP had to be the standard and it was only if that was unsuitable that you would look for an alternative (T.130.43). That opinion was significantly qualified by Messrs Johnston and McDonald as follows:

“HIS HONOUR: … You Mr Johnston first. Do you take the standard as a start point or would you take as a start point actually looking at the location and deciding which of the available TCPs, keeping in mind there are a number of standard TCPs set out by the RTA and people like that. What would you do, go straight to the standard or look at your location first?

JOHNSTON: It's kind of both, the standard used to have a work flow sheet that we used to go through, so you've got to start with your location because your location, sorry, the standard is sort of the starting point, but, you've got to start with what sort of work you're doing, what sort of closure you need, how many lanes you have, urban environment, long term, short term. You then need to find the most appropriate TCP and then apply it to the location, and I've got another case now that's exactly that. If it prescribes a sign X metres away, you must look at that in terms of the location. That can't be over a crest; it can't be where you've got another entry point. So you've got to apply that TCP to the specifics of the location. Then when you make variations to that, some of which may be absolutely essential, you have to consider those in the context of do you create other risks, have you got holes in the TCP, et cetera.

HIS HONOUR: That's the risk assessment?

JOHNSTON: So it's a bit of a circular process with that, making - any TCP must fit the location. You must take it - physically almost take it there and say, okay, these are where my signs will be, are they the best locations, and you may move them a little bit to get a fastening point, you may want to put them on a pole so your risk of loss is reduced, or you may have slight interruptions with trees or something else and you want to move them a bit, so you maximise sight lines. If it's supposed to be 70 metres but you put it at 90 but you get a much better sight line, then that's a better outcome than prescribing it to where it is, so that's the process.

HIS HONOUR: Mr McDonald, do you want to say anything about that?

MCDONALD: I essentially agree with Mr Johnston. I'd just comment that in terms of whether you go to the standard first or the TCP first, the TCPs are based on an assumed simplified application of the standard. So I would go to the TCPs first. If your environment is not a simplified environment as the TCPs are developed for, then of course you go through the iterative adjustment by reference back to the standard, as described by Mr Johnston.

JOHNSTON: Sorry, by the standard I really meant the TCP. I didn't mean you start reading the words and start from scratch. You would start from a TCP.” (T.130.50 131.44)

90. Later, on this same issue, the following evidence was given by Messrs Johnston and McDonald.

“JOHNSTON: … The barrier boards and that are a more visible - they're a physically more visible option. They're not a physically more permanent, robust option, but they are a more physically visible option. So when you've gone to this option, you have not quite met the minimum standard in terms of what the minimum standard set at the visibility level, and that's where we're talking about additional delineation is needed to bring this alternative back up to at least the level of minimum visibility that was provided by the default standard approach.

…

MCDONALD: Yes, just to add to that, Mr Johnston has stated, I believe, that the barriers with a road closed sign are less visible than a barrier board. I don't necessarily agree with that given the road closed sign can be a very similar size to the actual board on a barrier board, so placing a road closed sign on the water ballasted barriers can provide just as much visual warning as a barrier board itself.” (T.133.13)

Negligence

91. In his Amended Statement of Claim, the plaintiff’s particulars of negligence were essentially as follows:

1. placing a large barrier across the public roadway without adequate lighting or adequate warning;

2. placing a barrier across the roadway, rather than a lightweight or collapsible barrier which if struck by a light machine, such as a motorcycle, would collapse, give way, fall over or otherwise cease to be an impediment to traffic.

92. The defendant accepted that it owed a duty of care to the plaintiff and articulated the duty of care as follows:

“That as a road authority it owed a duty to users of its roads who were themselves taking reasonable care for their own safety to exercise reasonable care to avoid the risk of foreseeable injury due to the changed road conditions at Jilba Street and Mirral Way Orange.”

The plaintiff did not articulate the content of the duty of care on which he relied.

93. While that is an appropriate statement of the duty of care and the plaintiff did not dispute it as a statement of the duty of care, regard should also be had to the statement of duty in Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512:

“Authorities having statutory power of the nature of those conferred by the Local Government 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 powers within a reasonable time to address the risk.” (Gaudron, McHugh and Gummow JJ at [150])

148. For those reasons, whether by way of “carry out road work” or “carry out traffic control work”, the defendant’s power to close Jilba Street and deploy barriers and signs for that purpose was a “special statutory power” as that expression is defined under s 43A(2) CLA. Accordingly, I accept that the provisions of s 43A CLA apply to the facts of this case.

149. The plaintiff’s submission was that the defendant both created the hazard and failed to engage in mandatory risk management designed to identify hazards, assess them and take steps to avoid them. He submitted that the defendant’s failure caused the collision. The plaintiff’s case was that the exercise of power under s 43A was so unreasonable that no reasonable authority would have acted as the defendant did or failed to do.

150. The plaintiff relied on the following observation of Bathurst CJ in Curtis v Harden Shire Council as follows:

“5   As Basten JA has pointed out, the standard of care required by the section derives from the judgment of Lord Greene in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223. The principle enunciated by Lord Greene in that case has caused difficulty in the field of administrative law and these difficulties are compounded when it falls for consideration in the context of tort liability. In one sense if any authority, having the powers in question and acting properly, could reasonably consider that an act or omission was appropriate, it is difficult to see how any liability in negligence could arise with respect to that act or omission, even if the relevant standard was that contained in s 5B of the Act. However, it is evident that the legislature was intending to set a different and lower standard.

6 It does not, in these circumstances, seem to be necessary to paraphrase the section by reference to cases derived from the administrative law area, although the manner in which courts have approached the question in these cases may inform consideration of the application of s 43A of the Act. It is sufficient to say that what is important is that the standard is set by what a holder of the statutory power could properly consider reasonable. The Court must look at the matter having regard to what the authority in question could properly consider a reasonable exercise of the power. If the authority could properly consider what was done was a reasonable exercise of the power then there will be no liability. This is so even if the Court considering the matter independently of the section would have concluded there was a failure to fulfil the duty. …”

151. The process followed by the plaintiff was to identify what the defendant did and then test it against the standard set out in [6] of what the Chief Justice said in Curtis. The matters relied upon by the plaintiff were:

1. the decision to use water-filled barriers when the Australian Standard mandated “barrier boards”;

2. using water-filled barriers which weighed 1,600kgs when filled thereby constituting an immovable barrier;

3. placing those barriers across Jilba Street;

4. deciding not to place reflective material on the southern side of the barriers when it was placed on the northern side;

5. departing from the standard TCP without conducting a written risk management analysis;

6. leaving the checking of the TCP to an unqualified person, i.e. Mr Swain.

152. In summary, the main points made by the plaintiff were that the defendant had created a hazard where there was none previously and before doing so, had failed to carry out a risk management assessment which would have resulted in an outcome which did not involve the placing of water-filled Triton barriers across Jilba Street. The plaintiff identified the specific breach of s 43A as the creation of the hazard by the defendant without taking any steps to minimise or eliminate the adverse effect of the hazard which it had created. The plaintiff submitted that this was an act so unreasonable that no authority could consider it a reasonable exercise of power.

153. The plaintiff particularised the reasons why the defendant’s exercise of its special statutory power was so unreasonable as follows:

1. It had created the hazard where there was none previously.

2. It had not thereafter made a risk management assessment.

3. The result was a needlessly dangerous situation.

4. The TCP should have been prepared by a properly qualified person.

5. There should have been a check at night by Mr Swain to assess the adequacy of the lighting and delineation of the hazard.

6. There was a failure to properly delineate the hazard by reflective materials.

7. There was a failure to properly consider or apply the Australian Standard.

154. The plaintiff submitted that the combination of those matters meant that the defendant had created a very dangerous situation in circumstances where no reasonable council, having the powers of the defendant, would have done so.

Consideration

155. I have already determined that the plaintiff has failed to establish negligence on the part of the defendant. That, of course, disposes of this issue. In case I am found to have erred in that assessment, it is necessary to consider s 43A as though negligence had been found against the defendant. Because s 43A is applicable, the question of breach turns on whether the plaintiff has established negligence by the defendant to the requisite standard under s 43A(3).

156. The leading case on this issue remains Curtis v Harden Shire Council. The following observations of the Chief Justice provide the context in which his Honour stated the principle relied upon by the plaintiff (stated at [149]).

157. In Curtin v Harden Shire Council the Chief Justice said:

“7   In the present case, in my opinion, the appellant has satisfied the onus that the standard laid down was not met. The Traffic Control at Work Sites manual (the manual) prepared by the Roads and Traffic Authority (RTA) from which the Traffic Control Plan (TCP) was derived, stated that the manual must be used on all RTA road sites by all local bodies undertaking work on behalf of the RTA. The manual sets out a number of TCPs. It states that the selection of the appropriate TCP must only be undertaken by qualified persons. Mr Stephenson, who prepared the TCP for the site in question, was so qualified.

…

10   Critically, TCP 56 contained a "slippery road" sign with a direction it was to remain in place until loose aggregate was removed. The reason for this direction was clear from the evidence of Mr Coffey. Beazley P has summarised his evidence and I will not repeat it. However, the importance of a "slippery road" sign is self-evident from his comment that driving on loose gravel is like walking on marbles.

11   Beazley P has also summarised the expert evidence. Ultimately each expert agreed that a "slippery road" sign was necessary with either a "reduce speed" sign or a lower speed limit. Mr Stephenson was not called to give evidence of why he modified TCP 56 to exclude the "slippery road" sign or a "reduce speed" sign, a decision which his superior, Mr Coffey, said made no sense.

12   Having regard to this evidence, particularly the mandate in the manual and the statement by Mr Coffey that the decision to omit the signs made no sense, I am of the view that a failure to provide a speed warning sign and a "slippery road" sign was a decision nobody having the special statutory powers in question could reasonably have made in the circumstances.”

158. For completeness, I should set out some relevant observations of the other Judges in Curtis v Harden Shire Council. There Beazley P said:

“224 I agree with Basten JA, at [277]-[279], that for the purposes of s 43A, the relevant test is not whether the court considers that the decision had the requisite character of unreasonableness specified in the section, but whether “no authority” could “properly consider the act or omission” to be a reasonable exercise of, or failure to exercise, its power. In this regard, I consider that her Honour applied the correct test.

225   On the evidence, however, I do not accept that it could be said that the failure to install the "Slippery Road" signs and either reduction of speed signs or signs imposing a lower speed limit, were matters about which reasonable minds could differ. Mr Coffey was not only the Director of Technical Services and the person to whom the RTA certified Works Manager reported to, he was also the person designated by the respondent after the accident to investigate the suitability of the use of the Traffic Control Plan.

226   His evidence was that the "Slippery Road" sign was the most important sign to use. It was essential to warn of the risk of a loss of traction, irrespective of a driver being alerted to the presence of road works. He said it made "no sense" to him that it was not used. This was because driving on the newly sealed portions of the roadway was like "walking on marbles". His evidence was totally supported by the appellant's expert, Mr Johnston and was ultimately supported by the respondent's expert, Mr Stewart-Smith.

…

228   In my opinion, the omission to include that signage was, to quote Lord Diplock, conduct which no sensible authority acting with due appreciation of its responsibilities would have decided to adopt.”

159. Basten JA said as to the relevant test:

“234 Where s 43A applies, an act or omission involving the exercise of a special statutory power "does not give rise to civil liability" unless it was so unreasonable an exercise of the relevant power that no authority could properly consider it to be a reasonable exercise of the power: s 43A(3). The section thus assumes the existence of a duty of care and identifies the standard to be applied in determining whether there has been a breach. It was common ground that, in carrying out road maintenance works, the Council owed a duty of care to road users, including the deceased. That duty included placing appropriate warning signs near the works. It was necessary to consider the application of s 43A, prior to determining breach, because, if applicable, the section prescribed the relevant standard of care.

…

236   The maintenance work being undertaken by the Council widened the sealed surface, removed the uneven border between the tarmac and the dirt shoulder of the road and no doubt removed potholes or other defects in the sealed area. In the short term, it created two potential hazards for motorists. First, there was no marked centreline; secondly, there was loose gravel on the resealed surface.”

160. What emerges clearly from those quotations is that the factual issue being considered by the Court of Appeal in Curtis v Harden Shire Council was significantly different to that under consideration here. In Curtis, the most important sign of those required by the TCP had not been used, there was no explanation for why it had not been used and the failure to use it was described by the senior RTA person who gave evidence as “making no sense”. In this case, Mr Swain gave evidence and explained why it was that he had used water-filled Triton barriers, i.e. to prevent interference with the barriers by them being moved or taken. In the Joint Experts’ Report, far from being described as making “no sense”, it was accepted that such a decision was a “potentially acceptable application of professional judgment noting that the alternative barricades (barrier boards or lightweight modules) may have been subject to interference and relocation (vandalism)”. (Joint Experts’ Report, Exhibit A, Tab 8, p 364)

161. While it is true that Mr Lawson, both in his report and in evidence, resiled from his apparent agreement to that proposition, both Messrs McDonald and Johnston adhered to it.

162. It was accepted by the experts that the danger of interference and vandalism of the barriers was real. Not only was there the evidence of Mr Swain to that effect but in Exhibit 1, Tab 23, p 339 it was recorded that signs were vandalised and needed to be replaced on 21 November 2009.

163. The other matters dealing with the reasonableness of using the water-filled Triton barriers have already been set out and referred to in the analysis of whether negligence against the defendant has been established. In essence, the evidence made clear that barriers were required to be in place for some time while construction proceeded. In those circumstances the lack of permanency and robustness of the barriers had the real prospect of becoming a continuous problem affecting the completion of the project. No doubt on each occasion that barriers were removed or interfered with, it would be necessary to replace them which would result in a direct cost but would also potentially stall work on the project until the barriers were replaced. It might also give rise to a further hazard if the signs became confusing or unclear, or a particular barrier or sign were missing, which would most likely occur at night until its removal was discovered.

164. I found Mr Lawson’s evidence on this issue to be unpersuasive. Apart from the fact that his agreement in the Joint Experts’ Report was in clear conflict with that part of his report, his justification for resiling from that agreement in evidence was at best unconvincing. Mr Lawson was simply not prepared to entertain the use of water-filled barriers under any circumstances. This included the scenario where there was adequate lighting provided at the accident site which revealed their presence. As indicated earlier in this judgment, the failure on the part of the defendant to comply with the Australian Standard while potentially giving rise to a claim in negligence, was not determinative of that proposition. Such a finding depended upon the whole of the evidence, not just the question of whether the Australian Standard was complied with.

165. Even on that issue, there were a number of grey areas. The Standard was silent as to the use of barriers of this kind, it was silent as to the use of signs and reflective material on the internal sides of any barriers and it was clear from the evidence of Mr McDonald that portable barriers had the potential to be as dangerous as fixed immovable barriers, depending upon the circumstances of any collision with them. In relation to the Standard, I prefer the approach of Mr McDonald, i.e. that one should look at the purpose of the requirements of the standard to see whether they had been met rather than requiring a strict compliance with the Standard regardless of the particular circumstances of the site. The latter approach was that favoured by Mr Lawson.

166. Finally, the presence or otherwise of retroreflective signs or strips became largely academic because of the absence of any appropriate light source on either the plaintiff or his bike which would utilise those reflective qualities.

167. I am satisfied that the defendant has made out the defence under s 43A so that even if I am found to have erred in my assessment of negligence, the plaintiff’s claim would still fail as a result of the application of s 43A. The plaintiff has failed to establish that the use of the Triton water-filled barriers was not a reasonable exercise of its special statutory power by the defendant.

Section 50 CLA

168. Section 50 relevantly provides:

“50   No recovery where person intoxicated

(1)    This section applies when it is established that the person whose death, injury or damage is the subject of proceedings for the recovery of damages was at the time of the act or omission that caused the death, injury or damage intoxicated to the extent that the person’s capacity to exercise reasonable care and skill was impaired.

(2)   A court is not to award damages in respect of liability to which this Part applies unless satisfied that the death, injury or damage to property (or some other injury or damage to property) is likely to have occurred even if the person had not been intoxicated.

(3)    If the court is satisfied that the death, injury or damage to property (or some other injury or damage to property) is likely to have occurred even if the person had not been intoxicated, it is to be presumed that the person was contributorily negligent unless the court is satisfied that the person’s intoxication did not contribute in any way to the cause of the death, injury or damage.

(4)    When there is a presumption of contributory negligence, the court must assess damages on the basis that the damages to which the person would be entitled in the absence of contributory negligence are to be reduced on account of contributory negligence by 25% or a greater percentage determined by the court to be appropriate in the circumstances of the case.

(5)    This section does not apply in a case where the court is satisfied that the intoxication was not self-induced.”

169. Section 48 defines “intoxication” as follows:

“48    Definition of “intoxication”

A reference in this Part to a person being intoxicated is a reference to a person being under the influence of alcohol or a drug (whether or not taken for a medicinal purpose and whether or not lawfully taken).”

170. The defendant submitted that the Court would be satisfied that the plaintiff was intoxicated within the meaning of s 50 CLA and that the provisions of s 50(2) would apply so as to prevent him being awarded any damages.

171. The defendant submitted that the unchallenged opinion of Dr Ogden was that the plaintiff’s ability to control the motorcycle would have been adversely affected by the alcohol which he had consumed. This is despite the comparatively low alcohol reading of .059 (see [50] – [51] hereof). On the basis of that evidence, the defendant submitted that an impairment of driving skills of this kind was sufficient to establish the notion of “intoxication” as used in s 50 CLA.

172. The defendant submitted that in those circumstances the plaintiff’s capacity to exercise reasonable care and skill in the control of the motorcycle was impaired so that the provisions of s 50(2) CLA applied to disentitle him to an award of damages. The act or omission relied upon by the defendant was the plaintiff’s collision with the water-filled Triton barrier.

173. The identification of the collision with the subject barrier as the relevant “act or omission” as distinct from the placing of a water-filled barrier partially across Jilba Street, is supported by Russell v Edwards & Anor [2006] NSWCA 19; 65 NSWLR 373 where Ipp JA (with whom Beazley JA and Hunt AJA agreed) said in relation to the causation element in s 50(1):

“40 In the light of the need to determine a single cause of loss in determining “the act or omission that caused the death, injury or damage” for the purposes of s 50(1), and taking account of the difficulties in finding a single cause that would otherwise be inevitable, I am of the opinion that that section must be construed as referring to “the act or omission that directly caused the death, injury or damage”. In my opinion, “directly”, in this sense is to be equated with “proximate”.

41    A direct (or proximate) cause in this sense is not the first, or the last or the sole cause of the loss; it is the effective or dominant or operative cause: Lasermax Engineering Pty Limited v QBE Insurance (Australia) Limited [2005] NSWCA 66 at [5]; See also the review of the authorities conducted in State Government Insurance Commission v Sinfein Pty Limited (1996) 15 WAR 434. On this basis, the Court may determine a single cause of the death, injury or damage in accordance with principles that have long been understood, including notions of common sense: March v E & M H Stramare Pty Ltd (1991) 171 CLR 506.”

174. There are a number of difficulties with the defendant’s submission on this issue. Although on the basis of Dr Ogden’s unchallenged opinion, I have found that the plaintiff’s capacity to control the motorcycle was impaired by the consumption of alcohol, I am not able to say to what extent. There are a number of unknown matters, including the plaintiff’s experience with alcohol. It is well known that persons who habitually consume large quantities of alcohol are better able to function after the consumption of alcohol than those who do not often consume it.

174. In this case, although the plaintiff’s capacity to control the motorcycle was impaired, I am unable to say whether that level of impairment was such as to prevent him from “exercising reasonable care and skill” in doing so.

175. There is also a difficulty in relation to s 50(2). There were so many failures on the part of the plaintiff to take reasonable care for his own safety, apart from the ingestion of alcohol, that the strong likelihood is that the accident was likely to have occurred even if he had not consumed any alcohol.

176. It follows that I am not satisfied that the defendant’s defence pursuant to s 50 CLA has been made out.

Illegality under s 54 CLA

178. Section 54 CLA provides as follows:

“54    Criminals not to be awarded damages

(1)    A court is not to award damages in respect of liability to which this Part applies if the court is satisfied that:

(a)    the death of, or the injury or damage to, the person that is the subject of the proceedings occurred at the time of, or following, conduct of that person that, on the balance of probabilities, constitutes a serious offence, and

(b)    that conduct contributed materially to the death, injury or damage or to the risk of death, injury or damage.

(2)    This section does not apply to an award of damages against a defendant if the conduct of the defendant that caused the death, injury or damage concerned constitutes an offence (whether or not a serious offence).

(3)    A serious offence is an offence punishable by imprisonment for 6 months or more.

(4) This section does not affect the operation of the Felons (Civil Proceedings) Act 1981.

(5)    This section operates whether or not a person whose conduct is alleged to constitute an offence has been, will be or is capable of being proceeded against or convicted of any offence concerned.”

179. The defendant submitted that at the time when the plaintiff was injured, he was riding his motorcycle on a public road and was therefore guilty of:

1. riding while disqualified;

2. riding while intoxicated by alcohol and/or another drug.

180. The evidence of intoxication came from Dr Ogden and from the blood alcohol reading taken at the hospital which was not disputed by the plaintiff. The evidence as to disqualification came from the plaintiff, who made that admission when giving evidence, and also from the plaintiff’s record of convictions provided by the Police Service which showed that as of the date of this accident, he was disqualified from holding a driver’s licence.

181. In relation to whether these matters amounted to a serious offence, the Court was referred to s 12 of the Road Transport (Safety and Traffic Management) Act which relevantly provided:

“(1)    A person must not, while under the influence of alcohol or any other drug:

(a)    drive a vehicle, or

(b)    occupy the driving seat of a vehicle and attempt to put the vehicle in motion, or

(c)    being the holder of a driver licence (other than a provisional licence or a learner licence), occupy the seat in or on a motor vehicle next to a holder of a learner licence who is driving the motor vehicle.

Maximum penalty:

(a)    in the case of a first offence to which paragraph (a) or (b) relates – 20 penalty units or imprisonment for 9 months, or both, or

…”

182. Section 25A of the Road Transport (Driver Licencing) Act 1998 (NSW) relevantly provided:

“(1)   A person who is disqualified by or under any Act from holding or obtaining a driver licence must not:

(a)    drive a motor vehicle on a road or road related area during the period of disqualification, or

(b)    make an application for a driver licence during the period of disqualification and in respect of the application state his or her name falsely or incorrectly or omit to mention the disqualification.

Maximum penalty: 30 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence).”

183. There was no issue that should s 54 be found to apply, the conduct identified by the defendant constituted a serious offence.

184. I am not persuaded that the defendant has made out that part of the s 54 CLA defence which relies upon the plaintiff riding the motorcycle while intoxicated by alcohol. This is because I am not satisfied that firstly it could be said that the plaintiff was “under the influence of alcohol” for the purposes of s 12 of the Road Transport (Safety and Traffic Management) Act at the time of the accident. Secondly, and most importantly, I am not satisfied that this conduct “contributed materially” to his injuries. The relevant conduct would have to be not only the driving of the motorcycle, but the combination of the two – i.e. driving while intoxicated. There is no evidence that in fact the plaintiff’s ingestion of alcohol “materially” contributed to the accident.

185. The other serious offence relied upon by the defendant is in a different category. The elements of that offence are riding the motorcycle while being disqualified from holding a licence. The crucial issue is whether it can be said that this conduct “contributed materially” to the plaintiff’s injury.

186. There are two ways of looking at this question. The first (which is relied upon by the defendant) is that the serious offence was made up of two components – the fact of the disqualification from holding a driver’s licence and the riding of the motorcycle while that circumstance existed. On that interpretation, it was not necessary for the fact of the disqualification to have materially contributed to the injury. It was sufficient if the riding of the motorcycle while in that state of disqualification did so.

187. The alternative interpretation is that it was not sufficient for the riding of the motorcycle to have materially contributed to the plaintiff’s injury but both factors, i.e. the riding and the disqualification from holding a licence had to do so.

188. There is no authority directly on point, either in New South Wales or in other States. To the extent that s 54 CLA has been considered by the courts, it has been in relation to matters not directly relevant to the “material contribution” point.

189. In Presidential Security Services of Australia Pty Ltd v Clinton Joseph Brilley [2008] NSWCA 204; 73 NSWLR 241 Ipp JA at [124] (with whom Allsop P and Beazley JA agreed on this point) said that it was for the defendant to establish the matters in (a) and (b) of s 54(1). Otherwise the decision does not assist on this issue.

190. Sangha v Baxter [2007] NSWCA 264 concerned an assault which occurred in and around a taxi. Ipp JA (with whom Campbell JA agreed) remitted the matter for retrial on the basis of inadequate reasons having been given by the trial judge. Young CJ in Eq disagreed on the issue of the adequacy of the trial judge’s reasons and went on to discuss joint illegal enterprise at common law. His Honour was concerned to identify the type of action by a plaintiff after commission of an offence that would be sufficiently closely connected with the criminal conduct as to invoke the section. Ultimately his Honour took the view that the injury did not relevantly occur “following the commission of a serious offence”. The reasoning in that case is not of assistance on this issue.

191. The defendant’s position is relatively simple. It submits that the offence is constituted by driving while disqualified. The plaintiff was driving while disqualified when the accident occurred. The accident would not have occurred, except for the driving by the plaintiff, i.e. the “but for” test of causation has been established. The defendant also submitted that in this case the nature of the driving, i.e. at an excessive speed in the circumstances, and inferentially not keeping a proper lookout, directly caused or in the words of the section “materially contributed to” the occurrence of the accident. The manner of driving of the plaintiff was an indispensable element in the occurrence of the accident. In those circumstances, the defendant submitted that the plaintiff was precluded from receiving an award of damages.

192. The plaintiff relied upon the analysis by James Goudkamp in “Self-defence and Illegality under the Civil Liability Act 2002 (NSW)” (2010) 18 TLJ 61 as providing the background to the enactment of s 54 CLA. There, the author says:

“An important catalyst in the enactment of sections 52 – 54 was the decision of the NSW District Court in Fox v Peakhurst Inn Pty Ltd. The plaintiff in this case wanted to gain entry to a night club to which he had been refused admission because he was sixteen years old and intoxicated. To this end, he entered premises adjoining the club in the hope of finding an alternative point of access. These premises were occupied by the defendant’s licensee. The licensee spotted the plaintiff through a window, cornered him and beat him around the head with a metal bar. The plaintiff sued the defendant and obtained judgment for nearly $50,000. The court awarded the plaintiff’s mother almost $20,000 in respect of psychiatric disorder that she suffered as a result of seeing the plaintiff in his injured state. Predictably the decision was condemned by the press.” [Footnotes omitted]

193. When introducing the Civil Liability Amendment (Personal Responsibility) Bill the then Premier, the Honourable Mr Robert Carr said:

“Very importantly, the bill will limit people claiming damages for injuries received while committing a crime. The general rule under the Bill will be that no damages are payable if the injured person was engaged in conduct constituting a serious offence. Serious offences include a very wide range of crimes: entering a dwelling house, breaking and entering, and escaping lawful custody. People who engage in such criminal conduct should not sue for slipping over while they do so.”

194. The plaintiff relied on the line of cases which allowed the use of extrinsic parliamentary material when seeking to interpret a statute. The particular cases to which the plaintiff referred were Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380. In particular the observations of Spigelman CJ at [13] – [14], and Alcan (NT) Alumina Pty Ltd v Commission of Territory Revenue(Northern Territory) [2009] HCA 41; 239 CLR 27. The plaintiff relied upon the observations of the plurality (Hayne, Heydon, Crennan and Kiefel JJ) at [46] – [47]. The plaintiff also relied upon Certain Lloyds Underwriters v Cross [2012] HCA 56; 248 CLR 378 and on what Kiefel J said at [88] – [89].

195. The plaintiff submitted that a very significant number of offences in New South Wales would be “serious offences” as defined in s 54(3) so that a large number of relatively trivial offences would be capable of activating s 54. The plaintiff gave an example of stealing a dog for which the maximum penalty is a term of imprisonment of six months and stealing a shrub which has the same penalty. The plaintiff referred to stealing a book from a public library and possession of a very small quantity of cannabis, both of which have maximum penalties of imprisonment for 12 months. That being so, the plaintiff submitted that the requirement in s 54(1)(b) that the conduct constituting the serious offence “contributed materially” to the death, injury or damage of a plaintiff was an important limitation on the otherwise very broad operation of s 54(1)(a).

196. The plaintiff submitted that in circumstances where s 54 effects a very significant diminution of common law rights, the legislation should be construed carefully so as to not unreasonably reduce common law rights.

197. The plaintiff submitted that the words in a statute are to be given their ordinary meaning so that the word “material” should be given full force and effect as defined in the Macquarie Dictionary, i.e. “of substantial import or much consequence”. In this case, he submitted, questions of legal causation necessarily involved normative considerations of the kind identified in cases such as Wallace v Kam [2013] HCA 19; 250 CLR 375. The plaintiff submitted that the requirement of “materiality” in s 54(1)(b) required something more than “but for” causation to be established. The concept of “materiality” imported normative considerations into the question of causation and thus, it was not sufficient for the conduct constituting the serious offence to be “an indispensable element in the occurrence of the accident”. The conduct must contribute in a way that was “substantial” or “of much consequence”.

198. The plaintiff set out examples illustrating why Parliament could not have intended that s 54(1)(b) involve no more than “but for” causation. These examples demonstrated situations where if the defendant’s submissions were accepted, there would be no damages awarded.

1. A plaintiff who is searched by police while carrying a small amount of cannabis, and is then severely assaulted by the officers.

2. A plaintiff who, while stealing a book, is catastrophically injured as a consequence of a ceiling collapse.

3. A plaintiff who, in breach of bail conditions, is out and about at night and while lawfully and carefully crossing a road at a pedestrian crossing, is struck by a motor vehicle being driven by a drunk driver who is speeding.

199. The plaintiff submitted that it could not have been Parliament’s intention that s 54(1)(b) would preclude recovery to plaintiffs in these scenarios. In that regard, the plaintiff accepted that in the present case the damage would not have been suffered “but for” the “serious offence”, i.e. if it had not been for the commission of the offence (driving whilst disqualified) there would not have been any driving at all. The plaintiff submitted that the concept of “materiality” required satisfaction of a standard more demanding than the bare factual “but for” causation.

200. The plaintiff submitted that the commission of the serious offence made no contribution to the damage other than to place the plaintiff at the scene of the accident. The real cause of the accident was the absence of adequate ambient lighting and the fact that the defendant had created a hazard and egregiously failed to conduct any sort of relevant risk assessment before doing so.

201. There is considerable force in the plaintiff’s submissions. What they fail to come to grips with, however, is that even if one gave particular weight to the requirement for “materiality”, that additional test over and above the “but for” test is satisfied by the driving in this case. Whereas the fact of disqualification made no direct contribution to the occurrence of the accident, the driving itself did so.

202. As already indicated, the speed of between 50 and 60km/h in the circumstances prevailing on the night of the accident, i.e. having passed from the northern side of the subject barrier shortly before the accident was a significant factor. Added to that was the absence of any appropriate headlamp on the motorcycle, rendering any driving at night dangerous. Finally, the absence of any braking before impact inferentially suggested that the plaintiff was not keeping a proper lookout. Taking those matters into account, the fact that the plaintiff was “driving while disqualified” did make a material contribution to the injury and in my opinion, the defence under s 54 CLA has been made out by the defendant.

Conclusion

203. It follows from the above findings that there must be a judgment for the defendant. Accordingly, the orders which I make are:

1. Judgment for the defendant.

2. The plaintiff is to pay the defendant’s costs.

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Decision last updated: 03 May 2017