Yarrabee Coal Co Pty Ltd v Lujans - [2009] NSWCA 85

No judgment structure available for this case.

Appeal Outcome: Special leave dismissed with costs by the High Court, 12 February 2010 s201/2009

New South Wales

Court of Appeal

CITATION: Yarrabee Coal Company Pty Ltd & Anor v Lujans [2009] NSWCA 85

HEARING DATE(S): 23, 24,25 & 26 February 2009

JUDGMENT DATE:
27 July 2009

JUDGMENT OF: Allsop P at 1; Beazley JA at 7; Giles JA at 78

DECISION: (1) Appeal allowed; (2) Set aside the judgment for the respondent and in lieu thereof judgment for the appellants; (3) Respondent to pay the appellants' costs of the trial and of the rehearing of the appeal; (4) Respondent to have a certificate under the Suitors Fund Act if otherwise qualified in respect of the rehearing of the appeal; (5) Subject to order (6), respondent to pay the appellants' costs of the previous appeal to this Court; (6) Liberty to the respondent to file written submissions within 14 days in relation to the costs of the previous appeal and a certificate under the Suitors Fund Act in respect of the appeal to the High Court; appellants to file responsive written submissions within a further 7 days.

CATCHWORDS: TORTS - negligence - motor vehicle accident - unsealed road - plaintiff's vehicle went onto shoulder - approaching guide post - loose material on shoulder - plaintiff corrected and lost control - vehicle went off road and plaintiff injured - road under defendants' control - used as haul road for coal trucks - regularly graded - issue of perception of boundary between shoulder and hard running surface - degree of uniformity of colour - whether road surface deceptive - if deceptive whether causation of accident because of deceptiveness proved - use of photographs as evidence - evidence given by reference to photographs - departure from trial judge's findings - need for inference of greater probability than other available inferences.

CASES CITED: Angel v Hawkesbury City Council [2008] NSWCA 130;
Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 243;
Beaton v McDivitt (1985) 13 NSWLR 134;
Blacktown City Council v Hocking [2008] NSWCA 144;
Blatch v Archer (1774) 1 Cowp 63; 98 ER 969;
Bradshaw v McEwans Pty Ltd (High Court of Australia, 27 April 1951);
Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FAC 1833; 117 FCR 424;
C Van der Lely NV v Bamfords Ltd [1963] RPC 61;
CSR Ltd v Della Maddalena [2007] HCA 1; (2006) 224 ALR ;
Costa v The Public Trustee of New South Wales [2008] NSWCA 223;
Flounders v Mitlar [2007] NSWCA 238; (2007) 49 MVR 53;
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118;
Gett v Tabet [2009] NSWCA 76; 254 ALR 504;
Holloway v McFeeters [1956] HCA 25; (1956) 94 CLR 470;
Jackson v Lithgow City Council [2008] NSWCA 312;
Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352;
Lujans v Yarrabee Coal Co Pty Ltd [2008] HCA 51; (2008) 249 ALR 663;
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506;
Reg v Travers (1958) 58 SR (NSW) 85;
Roads and Traffic Authority v Royal [2008] HCA 19; (2008) 245 ALR 653;
Schmidt v Schmidt [1969] QWN 3;
Short v Barrett [1990] NSWCA 164;`
Stillwell Trucks v McKay; Stillwell Trucks v TNT [2002] NSWCA 292;
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; 73 ALJR 306;
Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531;
Warren v Gittoes [2009] NSWCA 24;
Yarrabee Coal Co Pty Ltd v Lujans [2007] NSWCA 342; (2007) 49 MVR 178.

PARTIES: Yarrabee Coal Company Pty Ltd - First Appellant
Jalgrid Pty Ltd - Second Appellant
Matina Luise Lujans - Respondent

FILE NUMBER(S): CA 40089/07

COUNSEL: C T Barry QC & J Davidson - Appellants
B Toomey QC & S Longhurst - Respondent

SOLICITORS: McCabe Terrill - Appellants
Russell McLelland Brown - Respondent

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): 20785/01

LOWER COURT JUDICIAL OFFICER: Cooper AJ

LOWER COURT DATE OF DECISION: 6 October 2006

CA 40089/07
SC 20785/01

ALLSOP P
BEAZLEY JA
GILES JA
Monday 27 July 2009

YARRABEE COAL CO PTY LTD & ANOR v LUJANS

Judgment

1 ALLSOP P: The reasons of Beazley JA and Giles JA relieve me of the need to express my reasons other than shortly and substantially by reference to what they have written. I agree with Giles JA.

2 I would only wish to add a number of comments which are to be read and understood by reference to the detailed evidential discussions in the reasons of my colleagues.

3 First, for the reasons expressed by both Beazley JA and Giles JA the primary judge had no relevant advantage over this Court in the resolution of the issues. I accept that the primary judge had an opportunity to absorb over the time of the trial the totality of the evidence and can be seen to have been in the position discussed by Kirby J in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; 73 ALJR 306 at 330 [90] and as discussed in the other cases set out in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FAC 1833; 117 FCR 424 at 435-436 [24]. This Court, however, was exhaustively and meticulously taken through the relevant evidence over four days. The Court was assisted in this regard by, if I may say so, the considered, organised and thoughtful submissions of highly experienced senior counsel, aided by full and carefully drawn written submissions. The Court was able to evaluate the evidence assisted by not only the submissions, but also by the debate between Bench and Bar. This degree of assistance to, and perspective of, an appellate court fortunate enough to receive it and the opportunity then for reserving judgment and analysing the evidence with the advantage of discussion and debate among the appellate court are to be recognised as a species of appellate advantage not often available to a primary judge. This capacity for appellate synthesis and perspective is especially relevant in a case such as this where, as Giles JA’s reasons show, the evidence of various witnesses was not always terminologically consistent or entirely lacking in confusion.

4 Secondly, the embedded requirement for the demonstration of error (see the discussion in Gett v Tabet [2009] NSWCA 76; 254 ALR 504 at 508-511 [10]-[23], Costa v The Public Trustee of New South Wales [2008] NSWCA 223 and Branir at 435-440 [21]-[39]) must be understood by reference to the nature and framework of the issues for debate. Where there is no ultimate advantage of the trial judge, that error can be embodied in the reaching of a conclusion different to that reached by the trial judge about a matter in respect of which there can be but one answer. For the reasons expressed by both Beazley JA and Giles JA that is the position here.

5 Thirdly, as to the question of the deceptiveness of the road as found by the primary judge, with respect, I have considerable difficulty in understanding it as a meaningful conclusion in terms of causal connection in this case. If one accepts, contrary to the conclusion of Giles JA, that the road was uniformly coloured so as to make it difficult to see while driving the border of the hard roadway and the shoulder, that is not deceptive. No deception was involved, such as by making the driver think that the hard roadway was somewhere where it was not. On the hypothesis of uniformity of appearance, the driver would know from what he or she could not see that he or she did not know precisely where the border lay. With a road of this width and a car of this size that would not present any inherent danger. One would merely drive safely well within the range of the likely position of the border. There was no suggestion in the evidence that in the vicinity of where the accident occurred the border cut in unexpectedly well within the usual width of the hard roadway. This was an unsealed road over which the respondent had driven some 300 times. Further, the clear arc of the road, the rill and the guideposts made the necessary direction to take to keep the car on the hard roadway tolerably clear.

6 Fourthly, as the reasons of both Beazley JA and Giles JA reveal, it is not possible to conclude that the accident happened because of one reason or another. The respondent, in my view, failed to demonstrate on the balance of probabilities that she swerved and crashed because of somehow being misled by some aspect of the surface of the road. For the reasons given by both Beazley JA and Giles JA that inference is simply not open to be drawn as more probable than not.

7 BEAZLEY JA: I have had the advantage of reading in draft the reasons of Giles JA in this matter. I have come to a different conclusion from his Honour in respect of certain factual findings of the trial judge. However, I have concluded, in agreement with the reasons of Giles JA, that the respondent has not established that any negligence on the part of the appellant caused her injury.

8 For my purposes, the starting point in this appeal is to recognise that it is an appeal from a trial judge in a circumstantial case where the findings as to how the accident occurred depended upon inferential fact-finding. The findings of the trial judge were based on the oral evidence of the witnesses called at trial, photographic evidence, engineering plans and a survey, the latter being of limited assistance.

9 The function of this Court on an appeal is governed by the Supreme Court Act 1970, s 75A. That section provides that an appeal is to be by way of re-hearing. The manner in which the Court is to undertake that task was examined in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118. There, Gleeson CJ, Gummow and Kirby JJ stated at [25]:

Dearman v Dearman

The Glannibanta

Warren v Coombes

Taylor v Johnson

Jovanovic v Rossi

Moran v McMahon

10 Their Honours further remarked, at [27]:

“Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.”

11 The meaning of “error” in the preceding paragraph is illustrated by what their Honours next said, at [28]-[29]:

Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.

12 This Court recently reviewed the principles governing an appeal by way of rehearing in Gett v Tabet [2009] NSWCA 76. Importantly for present purposes is the comment at [20], where, after having referred to Fox v Percy and other authorities, including Costa v The Public Trustee of New South Wales [2008] NSWCA 223, the Court said, “[e]mbedded within the approach required by all these authorities is the demonstration of error”.

13 As I have said, this case was a circumstantial one and depended upon inferences being drawn from the evidence of witnesses, none of whom saw the accident, and who were being asked to recall events which had taken place nearly a decade previously. In Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531, Gibbs ACJ, Jacobs and Murphy JJ said, at [18] 551:

“… in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.”

Issues on the appeal

14 Giles JA has identified two essential questions requiring resolution on the appeal: first, whether the appearance of the road surface was deceptive and, secondly, whether the respondent’s accident was contributed to by the deceptive appearance: see Giles JA at [51]-52]. I agree that these are the essential considerations for determination.

The findings of the trial judge

15 The detailed findings of the trial judge are set out in the judgment of Giles JA. For my purposes, it is sufficient to refer to what I will characterise as the core findings that led to his Honour’s conclusion that the appellant had breached its duty of care. Those findings are at [266]-[268], as follows:

“Accordingly I am satisfied on the balance of probabilities that [the respondent] did allow the left wheels of her vehicle to enter onto the shoulder because she was paying attention but was misled by the deceptive nature of the road surface.

I am further satisfied on the balance of probabilities that once her right hand wheels were on the hard compacted section of the road way and her left hand wheels were on the softer shoulders she experienced a different ‘feel’ in the passage of her vehicle as well as in the steering. It was this different feel which caused her to feel unsafe and to slacken off her speed. At the same time she had to get to her right to avoid the guidepost which was within about 1.5 seconds away. She turned her steering wheel to the right but, due to the difference between the adhesion of her right wheel to the road and those of her left wheels to the softer shoulder the vehicle slid out of control ending up on the wrong side of the road in the manner already described.

16 His Honour concluded that it was reasonably foreseeable that the surface of the road would develop such a deceptive appearance: see [269]-[272]; and further held that there was a reasonably practicable means available to the appellant to obviate the deceptive appearance in the road’s surface: [273]-[275]. His Honour held, at [290], that the appellant was in breach of its duty because:

“Nothing was done to check whether the known presence of coal dust on the road was creating the deceptive appearance of the road surface and, consequently, nothing was done by way of further grading to eliminate it.”

17 Giles JA has examined the evidence of the various witnesses in relation to the appearance of the road surface and, in particular, whether the “colour” of the road on the morning of the accident was uniform from rill to rill. As his Honour explains, most of the evidence in respect of this was undertaken by reference to the photographic evidence in Exh 3 (and to some extent, Exh 4), being photographs taken on the day of the accident, and Exh K (and to a lesser extent, Exh L), taken a week after the accident.

18 Giles JA has concluded that the evidence of the various witnesses as to the uniformity of colour of the road surface on the day of the accident was mixed. This is correct, but is also to be expected. The witnesses were giving evidence nearly nine years after the accident and witnesses’ recollection of such matters are notoriously variable. It was in this context that Exh 3, a photograph taken, three to six hours after the accident but at least within a few hours of the accident, was given such emphasis. Therefore, the proper evidential use of that photograph in particular had some criticality in the case.

19 Giles JA has also concluded that the evidence most supportive of the trial judge’s finding that the road had a uniform appearance from rill to rill on the morning of the accident did not have the force and effect given to it by his Honour. As I understand the reasons of Giles JA, these two matters, that is, the proper use of the photographs and the force and effect of the evidence upon which his Honour relied, are, in part at least, interrelated. Accordingly, both need to be considered.

Principles relating to use of photographic evidence

20 In Blacktown City Council v Hocking [2008] NSWCA 144 Tobias JA dealt with the use of photographic evidence at [167]-[170]. As his Honour noted, at [167], the admissibility of photographs as a visual reproduction is without doubt: Reg v Travers (1958) 58 SR (NSW) 85. However, as Lord Reid said in C Van der Lely NV v Bamfords Ltd [1963] RPC 61 at 71:

“Lawyers are expected to be experts in the use of the English language, but we are not experts in the reading or interpretation of photographs. The question is what the eye of the man with appropriate engineering skill and experience would see in the photograph, and that appears to me to be a matter for evidence. Where the evidence is contradictory the judge must decide. But the judge ought not, in my opinion, to attempt to read or construe the photograph himself; he looks at the photograph in determining which of the explanations given by the witnesses appears to be most worthy of acceptance.”

21 This passage was approved and applied in Short v Barrett [1990] NSWCA 164; and Stillwell Trucks v McKay; Stillwell Trucks v TNT [2002] NSWCA 292.

22 In Blacktown v Hocking, Tobias JA stated, at [169]:

Schmidt v Schmidt

Beaton v McDivitt

“This is not to say that photographs can have no probative value of themselves even in the absence of an oral description of what is depicted; only that care must be taken to ensure that they are not used as the sole source from which a primary fact is to be inferred where that fact is not revealed on the face of the photographs such as the condition of a structure at a time significantly removed from that when the photographs were taken.”

23 In the same case, Spigelman CJ, after noting that Tobias JA had set out the relevant authorities, commented, at [7]:

“It is not entirely clear in what circumstances photographs can be used as direct evidence, as distinct from explicating the evidence otherwise given.”

Beaton v McDivitt

Schmidt v Schmidt

Beaton

R v Lobendahn

Schmidt v Schmidt

R v Ames

‘… the photographs … did have some probative value, as distinct from an oral description of what they depicted … They depict the direction of the flow of blood on to the clothing and establish the presence of blood on the mouth …’

R v Ames

24 In Schmidt, Douglas J, with whom Hart and Lucas JJ agreed, said, at 6:

“[The primary judge] based a large part of his judgment on what he saw in [the photographs]. He was not entitled to use them in the way he did. He proceeded to make deductions of fact which on the evidence it was not competent for him to make. The greater part of his deductions made from the photographs can be described as conjectural, and to the extent that he used them as a basis for his findings they must be rejected.”

25 Spigelman CJ noted that Douglas J had relied on the following passage from Wigmore on Evidence (3rd ed, 1940) vol 3 at 174-175:

“… whenever such document is offered as proving a thing to be as therein represented, then it is offered testimonially, and it must be associated with a testifier.

26 However, the Chief Justice noted that in the subsequent edition of Wigmore, the following passage appears:

“This theory which has been aptly dubbed the ‘pictorial testimony theory of photographs’ was advanced in prior editions of this work as the only theoretical basis which could justify the receipt of photographs in evidence. With later advancements in the art of photography, however, and with increasing awareness of the manifold evidentiary uses of the products of the art, it has become clear that an additional theory of admissibility of photographs is entitled to recognition. Thus, even though no human is capable of swearing that he personally perceived what a photograph purports to portray … there may nevertheless be good warrant for receiving the photograph in evidence. Given an adequate foundation assuring the accuracy of the process producing it, the photograph should then be received as a so-called silent witness or as a witness which ‘speaks for itself’.”

27 Spigelman CJ said, at [13], that given this commentary, the comments of Douglas J in Schmidt may need revision, as suggested in Beaton.

28 It is apparent from the comment of Tobias JA in Blacktown v Hocking at [170], to which I have referred, that his Honour accepted there was a wider basis for the admissibility of photographs than that stated in Schmidt. However, much will depend upon the photograph in question, the circumstances in which it was taken and what the evidence, if any, is in relation to the photograph. Thus, in Angel v Hawkesbury City Council [2008] NSWCA 130 the Court rejected that the photographs should have trumped the eyewitness evidence which, the Court held, was compelling: see at [69]-[70].

29 Against that background, the evidence of the witnesses in this case, the photographs and the trial judge’s reasons need to be assessed. That assessment itself needs to be considered in the context of this Court’s function as governed by s 75A, discussed above.

Trial judge’s findings as to the colour of the road

30 At [259], the trial judge said:

“Exhibit 3, the photograph looking south from the guidepost taken by Mr Rawlins between about three and six hours after the accident shows some, but not complete, uniformity of colour of the road surface from rill to rill. The strip of roadway extending about 1.5 metres to the east of the western rill is a slightly darker colour than the central part of that road. However, the contrast in colours is nowhere near as marked as appears in the photographs taken a week later, exhibits K and L.”

31 His Honour also said, at [260]:

“The tyre marks on the roadway depicted in the photographs exhibits 3 and 4 show that the surface of the shoulder on the western side was sufficiently dusty to allow the marks of tyres to remain but not sufficiently soft to permit a tyre to penetrate the road surface.”

32 It is apparent, however, that his Honour did not rely solely on the photographs to reach his conclusion, as he said at [261], under the general heading, “Consideration”:

could

33 His Honour then posed the question, namely, whether the lack of distinction between the hard compacted surface of the roadway and the relatively soft shoulder materially contributed to the respondent manoeuvring her vehicle so that the passenger side wheels entered onto the shoulder (at [262]). His Honour posed two possibilities as having caused that situation:

(1) that the respondent was not paying attention to her driving; and

34 The essential reason his Honour was satisfied that the second possibility was the probable reason was that up to that point, the respondent had been exercising care in relation to her driving. He instanced the manner in which she had overtaken a road train driven by Mr Routledge. His Honour also appears to have accepted the respondent’s evidence that she was not changing stations on the car radio just prior to the accident. That finding negatived the suggestion that as the radio in the respondent’s vehicle was blaring and between two stations when the first person arrived on the scene of the accident, that she had been occupied in changing radio stations immediately before the accident.

35 His Honour then made the following findings, at [266]-[267]:

“Accordingly I am satisfied on the balance of probabilities that [the respondent] did allow the left wheels of her vehicle to enter onto the shoulder because she was paying attention but was misled by the deceptive nature of the road surface.

36 Before considering whether his Honour erred in finding the road had a deceptive appearance, it is convenient to deal with the appellant’s contention that his Honour also erred in finding that the respondent experienced that “different feel” just before this collision, and that this had occurred just after the respondent had overtaken Mr Routledge’s truck. In my opinion, his Honour was entitled to accept that the “different feel” the respondent felt in the manner in which her vehicle was travelling occurred at the point where the passenger side tyre marks were first seen about 33 m from the guidepost. However, to justify that conclusion, it is necessary to have regard to the respondent’s evidence.

37 The respondent said, in evidence in chief:

“Q. Do you recall what happened with your speed after you had finished overtaking?
A. I remember lowering my speed as I was feeling unsafe for whatever reason I don’t recall. I just recall feeling unsafe and dropping my speed back down to between 80 and 90.

38 The respondent recalled the road was wet, although she said that the road was not wet where she commenced overtaking the road train. She said she had a memory of being well clear of the truck. In cross-examination, there was some confusion in one answer about when she felt unsafe, but the respondent was given the opportunity to confirm her evidence in chief and she did so.

39 The respondent was no more specific in her evidence as to when or where she “felt unsafe” and reduced her speed than that it was after she had passed the truck. It is apparent that her recollection, whilst chronological, was episodic. The appellant sought to place reliance upon the respondent’s answer above as identifying that she “felt unsafe” immediately after overtaking the truck. However, given the respondent’s evidence, particularly as identified during the course of cross-examination, his Honour was entitled to make the finding that he did.

40 That leaves as the critical finding, his Honour’s finding that the respondent was misled by the deceptive nature of the road.

41 Before deciding whether his Honour erred in finding that the road was “deceptive”, it is necessary to understand what he meant by that term. It is apparent from his Honour’s reasons that there was no clear delineation between the road pavement proper and the shoulder. There was evidence, independent of the photographic evidence, that supported that finding. It appears that his Honour then inferred that the surface was “deceptive” because there was thereby no means of knowing whether one’s vehicle was close to the “softer shoulder”. Accepting that the road was substantially the same colour all the way across, that inference was available to his Honour on the evidence that I discuss below. It appears that his Honour then deduced that as there was no clear distinction between the road pavement proper and the shoulder, the respondent was misled.

42 Giles JA has reviewed the evidence of the various witnesses which relate to these central questions. Nonetheless, it is necessary to give a brief overview of the evidence myself to explain the conclusions at which I have arrived.

43 Mr Rawlins was the managing director of the appellant from 1988 until June 2005. He attended at the scene of the accident at approximately 8.30 am. The respondent had been conveyed away from the accident site by that time. Mr Rawlins inspected the site, including the western side of the road, that is, the side of the road on which the respondent was originally travelling.

44 As Giles JA has explained, the witnesses used terminology differently when explaining various features of the road. For my purposes, it is convenient to use Mr Rawlins’ evidence to understand the relevant features of the scene. Mr Rawlins referred to the “the crown”, of the road as being the pavement of the road upon which vehicles normally travelled. He did not confine his use of that term to the slightly elevated portion in the middle of the road. The “rill” was the rounding of dirt and gravel which was pushed by the grader towards the outer edge of the shoulder. Rills ran along the full length of each side of the road. Mr Rawlins described “the shoulder” as being that part of the road that was on a slight incline. He described the shoulder as normally being outside the line of the guideposts. As he described it:

“Part of the shoulder is … on the pavement side of the guidepost, in my definition of pavement and shoulder.”

45 Mr Rawlins agreed that the graded portion of the road, that is, the distance of the road from rill to rill, exceeded 10 m.

46 Mr Rawlins said that on the morning of the accident, he carefully inspected the car tracks on the western side of the road and observed that:

“… [t]he car tracks drifted to the left hand side of the road, the western side of the road, from the crown of the road onto the shoulder, and then suddenly changed direction and veered across the road.”

47 He said that he tracked the passenger’s side tyre marks for about 30 m before they commenced the swerve to the right just before the guidepost. He described the tyre marks as “parallel to the road but on the shoulder”.

48 Mr Rawlins agreed that, generally speaking, he regarded the guideposts as delineating the margin of the road out to where it was safe to drive on. He qualified this answer in response to the next question, in which it was suggested that so long as a driver was within the line of the guideposts, it was safe. He said:

“No, I can’t make that statement. This was a dirt road. It depended on the conditions of the road and the speed that you were going. That road there is perfectly safe, in inverted commas, at 120 kilometres an hour in those conditions. In rain, it would be totally dangerous at that. So I can’t say that you were perfectly safe to be within the guideposts. Depended on the conditions of the road.”

49 Mr Rawlins said that on the morning of the accident, it would have been safe to drive at 120 km per hour on the road. As I understand it, his evidence was that on the day of the accident, the guideposts provided a safe line of travel, as, on the trial judge’s finding, it had not been raining. That answer, however, was qualified as follows:

“You don’t drive on the edge of the road for the fun of it. You would drive off to that edge of the road if you were passing a big truck or there was a lot of traffic, but you wouldn’t do it at full speed.”

50 Mr Rawlins also refuted the suggestion that it was safe to drive at any line as long as the vehicle stayed within of the rills, because:

“Once you go over the shoulder of the road you are at an incline on the side of the road.”

51 Mr Rawlins described both the pavement and the shoulder as being very hard although he referred to gravel being “on the shoulder” of the road. He said that “[v]ery little” would happen if one drove on the gravel, “if you’re going at a safe speed”. He said there was nothing that morning he considered unsafe about the normal surface of the road. When he was asked whether in that regard he was referring to the pavement, he responded, “[a]nd most of the shoulder”.

52 Mr Rawlins was asked about the uniformity of colour of the road surface as follows:

53 In my opinion, when Mr Rawlins agreed that, from what was apparent from Exh 3, there was a uniformity of the colour of the road surface, his agreement was not an answer to what the photograph depicted, but, rather, he was agreeing that Exh 3 depicted the substantial uniformity of the road surface. This is apparent from Mr Rawlins’ evidence overall, namely, that when a photograph suggested something with which he was not in agreement, he made his disagreement apparent. One example is to be found in his evidence relating to Exh 33. The relevant questions and answers are as follows:

“Q. And in Exhibit 33 where you have recreated the tyre marks, do you suggest that there is a fall away at that point?
A. Yes, I do.

54 Mr O’Loughlin is a mining engineer and had been working at the Jellinbah Mine for just over two years at the time of the accident. He was already at the mine and logged a call that the accident had occurred. He then drove the mine ambulance to the scene of the accident, arriving there at about 6.45 am. He described the road surface as being hard and dry. He examined the road to see if he could find any indication as to what caused the accident. He said he observed tyre marks on the shoulder. He said he saw tyre marks for about 20 m along the shoulder, describing them as having “veered off to the left and then back to the right”.

55 Mr O’Loughlin later prepared the incident report in respect of the accident which contained a description of the accident in the following terms:

“Hi Lux was travelling to work in a northerly direction. For as yet an unexplained reason the vehicle found itself too far on the left hand side of the road between rill and shoulder (the left side wheels were on the soft ground – the right hand wheels were still on the haul road). The tyre tracks on the road indicate that the vehicle was attempted to be steered back onto the haul road causing the vehicle to slide across the road somewhat sideways.”

56 He confirmed in his cross-examination that was what he observed. He said that he could tell the right hand wheels were still on the road because the left hand wheels were close enough to the road to mean that the right hand wheels must have been on the road. He also agreed that the shoulder at that point was about 1.5 m wide. He then gave the following evidence:

“Q. … on that day, the appearance of the road from rill to rill, the appearance of the surface was uniform?
A. The hard surface would be, yes.

…

Q. And what I am getting at is this: That the appearance of the road from rill to rill, that is, soft part, hard part, soft part, looked uniform?
A. I believe it would, yes.

Q. So you couldn’t tell where the hard part ended and the soft part began could you?
A. I believe you could, yes.

57 Mr O’Loughlin was asked further questions in cross-examination about whether, on the morning of the accident there was any differentiation between where the road ended and the soft shoulder began. He said there was, because:

“… the main travel road is hard. It has been compacted and the softer area is the off-shoots from the grading material, so you can see small pebbles of different size.”

58 He was then asked questions as to what he observed about the tyre marks once they ran off the road and his evidence was as follows:

“Q. … The tyre tracks as they started to become visible in the soft shoulder would have been only at a very slight angle to the edge of the road?
A. That’s correct, yes.

…

Q. Let me suggest to you that the first part of the tyre track that you could see in the soft shoulder was only about one tyre width off the road?
A. Yes.

Q. And it ran along like that, parallel with the edge of the road and only about a tyre’s width off the road for some of that 20 metres, didn’t it?
A. Yes. If I could explain it, with the road bending round to the right, I could see the tyre tracks veering slightly off to the left and then I saw the tyre tracks turn back in towards the road, if that answers your question.

…

Q. And for a short distance it seemed as if she was able to control the vehicle because the tyre tracks continued to run parallel with the edge of the road?
A. Yes.

Q. Then you saw the tyre tracks go further towards the rill, is that right? That is, further away from the road?
A. Yes, yes.

59 He said that the maximum distance from the road that he observed the tyre tracks was 75 cm. He confirmed that he observed that the wheels of the respondent’s vehicle had gone into soft ground.

60 He was then asked about the colour of the road surface extending back some 50 or 100 m prior to the collision. Mr O’Loughlin described it as being “a dark colour, similar to our road surface but sort of just dirt”. He agreed that the road could be uniform in colour from rill to rill and that he believed it would have been so on the morning of the accident:

“Q. And the dark colour comes about because of the inevitable spillage of some amount of coal which then gets crushed by the trucks as they drive along?
A. That’s correct, yes.

Q. Did you see the grader working from time to time on this roadway?
A. Yes from time to time, yes.

Q. And as the grading would take from rill to rill, then that dark colour would be spread right across the road?
A. Yes.

61 Mr O’Loughlin was then asked a series of questions about the colour of the road surface, based first on Exh K and Exh L, which were photographs taken a week after the accident, and then on Exh 3, taken by Mr Rawlins on the day of the accident. By reference to Exh L, Mr O’Loughlin said that there were variations in the colour of the road surface, in that there appeared to be areas of mud, some areas of black and a light area in the middle of the road. He was asked to compare that with Exh 3, which he had not previously seen, and was asked the following question:

62 He was asked to confirm his earlier evidence that the colour of the road was “sort of brown colour, from the coal dust”. Those answers did not depend upon anything derived from Exh 3. He was asked the following question:

63 Mr Ross is a licensed surveyor and between 1992 and 1996, in the course of his employment, travelled along the road at least twice a week and between 1996 and the time of the accident, about five times a week. He described the road as being “a good dirt road”. He arrived at the scene of the accident some time after the police had arrived. He drew a survey plan of the accident scene and measured the road from rill to rill at the point just before the guidepost as being 11.2 m wide. The road was slightly narrower further south, being about 10.8 m wide from rill to rill.

64 Mr Ross agreed the graded area stopped at the rill on each side, but he could not recall whether there was an area that could be called a shoulder. He said that the tyre tracks were able to be seen quite clearly. He considered the tracks touched the rill at one point. He said that the first section of tyre track, which was 33.3 m, was generally in a straight line. He was asked whether Exh 3 represented the colour of the road as he recalled it and responded, “[n]o, I am not going to say”.

65 Mr Ross was generally resistant to describing a section of the road as being “an area of a shoulder”, stating that he was “not an expert in the area”. He agreed, however, that the road was graded, so that it looked the same from rill to rill. He was then asked:

“Q. And if it was soft for the last 1.5 metres at the point where this accident happened, you certainly couldn’t tell it visually, could you?”

“A. I am no expert.”

66 Mr Comiskey is a coal miner and earth moving contractor, having been in the mining and earth moving industry for 36 years. Between 1994 and 1998 he travelled along the road every day between Jellinbah Mine and Yarrabee Mine. At that time, he was a mine superintendent. He considered that the road was “very good”. He was called on the two-way radio almost immediately after the accident occurred and went straight to the scene of the accident because he had a first aid certificate. When he arrived at the scene, there were one or two other people already there. The respondent was still trapped inside the vehicle. After the respondent was transported away by ambulance, Mr Comiskey walked back along the road, looking at the tracks, trying to work out what could have happened. He said he walked back to where “the vehicle had started to go into a drift and went across the road”.

67 Mr Comiskey said that he only walked a little bit further south from the guidepost, but he could clearly see the tyre marks leading up to the post. He said the tyre marks were along the edge of the rill. He agreed that the respondent “didn’t disturb the rill” “on the left hand side” and that it was only the passenger wheel marks that could be extending in the shoulder from the guidepost. He described the colour of the road surface as being “of a dark browny colour”.

68 Mr Comiskey was shown Exh 3 and said he had not seen the photograph before. He was asked:

69 Mr Routledge was also shown Exh 3 and agreed with a question put in cross-examination by the respondent’s counsel that “the photograph [was] a true representation of the colour of the surface after coal dust [had] been ground into it”. He agreed that on the morning of the accident, the road was graded, so that it had the appearance as shown in Exh 3. He then gave the following evidence:

“Q. It’s uniform in colour from rill to rill, is that right?
A. Yes.

70 Later in his cross-examination, he gave the following evidence:

“Q. …. If it is graded the way it is graded in Exhibit 3, it would be hard to tell in the early hours of the morning, where the heavily compacted part ended and the softer part began, wouldn’t it?

…

A. … Yes, it would be.

…

Q. Sometimes it would be more apparent, as it was in Exhibit K?
A. Yes.

71 These witnesses were frequent users of the road. In my opinion, their evidence, although given by reference to Exh 3, was evidence based on their own observations. The cross-examiner was not seeking to gain a concession that Exh 3 demonstrated that the road was relatively uniform in colour. Rather, it was used to ascertain whether the witnesses agreed that the uniform appearance of the road as it appeared in Exh 3 was the actual condition of the road on the day of the accident. The position was different in the case of Mr Stewart-Smith, who was an expert witness, and who was not at the scene on the day of the accident or otherwise familiar with the road. His evidence related to the appearance of the road as shown in a number of photographs, including Exh 3. Apart from his evidence, and that of Mr Ross, who was non-committal on this issue, overall the witnesses said that the colour of the road was relatively uniform on the day of the accident. As I have indicated, to the extent that reliance was placed on the photographic evidence, and in particular Exh 3, I am of the opinion that the photographic evidence was used as an aide to confirm or explain the recollections of the witnesses. Accordingly, to that extent I disagree with by Giles JA.

72 However, the fact that the colour of the road was of a mostly uniform colour does not of itself establish that the respondent was thereby misled so as to cause her to drive onto the shoulder.

73 Giles JA sets out the principles that apply in determining whether the respondent has established that the appellant’s negligence, if any, caused the accident. I have also read the evidence that relates to this issue. Again, I am not always ad idem with his Honour in relation to his factual findings. For example, I consider that on the evidence, it was likely that the respondent felt unsafe sometime after overtaking Mr Routledge’s vehicle and not immediately after doing so. I also would not draw the inference that she slowed down to 80 to 90 km per hour immediately after overtaking Mr Routledge, although she would have slowed down to some extent.

74 In the end result, these differences do not matter, as I consider that his Honour’s conclusion in respect of causation is correct. In considering causation, Giles JA has made a number of assumptions, all favourable to the respondent. Those assumptions reflect the factual findings at which I would arrive, namely that the respondent was travelling at 80 to 90 km per hour as she was approaching the guidepost and immediately before swerving to the right and that the road surface was mostly of a uniform appearance. However, even assuming these factual matters in favour of the respondent, they do not lead to “a reasonable and definite inference”: see Holloway v McFeeters [1956] HCA 25; (1956) 94 CLR 470 per Williams, Webb and Taylor JJ citing Bradshaw v McEwans Pty Ltd (High Court of Australia, 27 April 1951, unreported), that the onside wheels of the respondent’s vehicle moved off the pavement proper and onto the shoulder because the appellant was misled by the appearance of the road.

75 Dixon, Fullagar and Kitto JJ, in Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352, at [8] 358, cited the following passage from Bradshaw v McEwans:

Richard Evans & Co. Ltd. v. Astley

76 In this regard, I agree with the reasoning and findings of Giles JA at [245]-[252].

77 I also agree with his Honour’s conclusion, at [257] in respect of breach of duty. The evidence established that the road was in good condition and was graded regularly by a competent driver.

78 GILES JA: The respondent was severely injured when the vehicle she was driving left the road and rolled over. The road was controlled by the first appellant and maintained under contract by the second appellant. Cooper AJ held that the appellants were liable in negligence to the respondent. His Honour assessed the respondent’s damages at $8,759,510.55 after a reduction of 20 per cent for contributory negligence.

79 An appeal on liability, but not on damages or contributory negligence, was heard by this Court differently constituted, and was allowed (Yarrabee Coal Co Pty Ltd v Lujans [2007] NSWCA 342; (2007) 49 MVR 178). On further appeal the High Court held that while the conclusions in this Court’s reasons were not necessarily wrong, “important steps in the Court’s reasoning are not shown to be valid” and “[i]n that sense the Court of Appeal has not reheard the matter as it should” (Lujans v Yarrabee Coal Co Pty Ltd [2008] HCA 51; (2008) 249 ALR 663 at [31]). The appeal to the High Court was allowed. The matter was remitted to this Court for re-hearing of the appeal.

80 For the reasons which follow, in my opinion the appeal should be allowed.

Introduction

81 The first appellant operated the Yarrabee and Jellinbah South collieries in central Queensland. The coal mines were some distance to the north of the Capricorn Highway and of the railway line which there ran adjacent to the highway. A haul road had been constructed for the carriage of coal from the mines to the highway, then to be taken to a railway siding at Boonal for loading onto railway trucks.

82 The respondent worked in a clerical capacity at the site of the Jellinbah South mine. She lived at Blackwater, a town on the highway about ten kilometres west of the Boonal siding. Her employer provided a vehicle, a Toyota Hilux twin cab four wheel drive utility, to drive between Blackwater and the mine.

83 At about 6.20 am on 18 September 1998, when driving on the road about 5.9 kilometres north of the junction with the highway, the respondent lost control of the vehicle, which left the road and rolled over. The respondent’s injuries resulted in quadriplegia.

84 The road was held by the first appellant under lease. It was used by employees and others working at the mines and by local graziers, but the main users were large road trains carrying coal from the mines to the Boonal siding. The road trains were a prime mover and two or three trailers, each carrying up to 200 tonnes of coal. There were up to 500 road train movements each day.

85 At the time of the respondent’s accident the road was unsealed. The maintenance by the second appellant included grading the road surface, of which more later.

86 The first appellant and the second appellant were treated as having the same liability, if any, to the respondent, and no distinction was drawn between them in the appeal. I will refer to them together as the appellants.

The road

87 The road was constructed in or shortly after 1981. The engineering drawings provided for a width of 10.4 metres between the batters, with a slight crown and a slight super-elevation on curves. They provided that the central 7.4 metres should have a gravel sub-base topped with a gravel base, each of a stated depth and stated CBR, and that the outer 1.5 metres on each side should be shoulder gravel of a stated depth and CBR. The acronym CBR denotes an accepted measure of the strength of the material.

88 According to Mr Roger Stuart-Smith, a road engineer, the central 7.4 metres was correctly called the travelled way, being the lanes where movement was expected; the two outer 1.5 metres were the shoulders; the travelled way and the shoulders were the carriageway; and the entirety including the batters was the formation. This was not necessarily the way in which parts of the road surface was described by the witnesses at the trial. Mr Stuart-Smith said that the drawings showed that the road “was constructed to carry traffic over its full width of the two nominal lanes as well as the two shoulders”.

89 Parts of the road were rebuilt and resurfaced from time to time. According to Mr Alistair McKellar, the managing director of the second appellant, in his time since about 1991 work of that kind had not been done in the location of the respondent’s accident and it was “still the original surface that I believe was done by Thiess”.

90 The road ran approximately north-south. The Jellinbah South mine was about 22 kilometres from the junction with the Capricorn Highway, and the Yarrabee mine was about 16 kilometres further north. The road was largely straight, but in the location of the respondent’s accident it made a sweeping right-hand curve with a radius of about 2,000 metres passing through a deflection of about 22 degrees; the curve was about 680 metres long including transitions. This was known as the Yellow Corner, from the colour of the road material or of the land in that location (both explanations were given).

91 The maintenance by grading was carried out in association with a water truck. From 1992 onwards the grader operator was Mr Barry Jellick, and around the time of the respondent’s accident the water truck driver was his uncle Mr John Jellick.

92 Mr Barry Jellick worked from Monday to Friday between about 8 pm and 5 or 6 am, each night grading a length of six or seven kilometres and the next night a similar length so that the whole road was graded over a period of a week. This did not mean that the same length of the road was graded on the same night of each week. The sequence could be interrupted by wet weather or occasion to carry out particular work on the road, and the sequence would be taken up after any interruption.

93 The water truck would heavily water the length of road on which the grader was to work, for dust suppression and to aid in the grading. The grader towed a multi-wheeled seven tonne roller. Mr Barry Jellick would pick up material from one side of the road with the grader blade and cut it across the road, and the roller would roll it into the road and pack it into any depressions. He would then do a second cut across the road, a procedure called a “double grade”, to make sure that he was filling the pot holes and bringing the surface up to a good condition. The water truck would then put a fine spray over the road which had been graded.

242 There remains a matter which in my view is of significance. The respondent recollected feeling herself slow down and looking at the speedometer. The reduction in speed was by taking her foot off the accelerator. She observed the speed to which she had slowed down. Her vehicle travelled 33.3 metres with the near-side wheels on the shoulder, before the sharp deviation to the right. Assuming for calculation purposes a speed of 90 kilometres per hour, there was about 1.2 seconds for the feeling to register with the respondent, for her to take her foot off the accelerator and slow down, and for her to glance at the speedometer and observe the speed to which she had slowed down; and then she must have reacted to the guidepost 10 to 12 metres or less in front of her at the time she steered sharply to the right. Even if, as the respondent suggested in argument, there was a transition time and some forewarning as the near side wheels began to go onto the shoulder, it is highly unlikely that all this could have occurred in the available time. There had to be an element of reaction time to the feeling, then time for slowing by 10 to 20 kilometres per hour without application of the brakes, then further reaction time. All this must have taken more than a few seconds.

243 In my view, this favours the initial understanding of the respondent’s recollection of feeling unsafe and reducing speed, and is against feeling unsafe and reducing speed when the near side wheels went onto the softer shoulder. Having regard to all the matters to which I have referred, in my opinion on the probabilities the feeling unsafe and reducing speed was immediately after overtaking the road train; and, from the evidence Messrs Routledge and Smith, on the probabilities the respondent thereafter increased her speed and was driving at about 100 kilometres per hour at the time of the accident.

244 I repeat that I do not think it greatly matters. But so far as the trial judge rested his finding of causation on a reaction to feeling unsafe when the near side wheels went onto the shoulder, I consider that he was in error.

245 Although the respondent did not refer to it, in determining whether the respondent established that she was misled by the deceptive nature of the road surface it should be remembered that “all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted”: Blatch v Archer (1774) 1 Cowp 63 at 65; 98 ER 969 at 970. The respondent was not able to give direct evidence of how the accident came about. While recognising that the appellants were in a like position, the Court should be prepared to draw inferences in the respondent’s favour if the circumstantial evidence warrants them.

246 But it remains that the Court must be “satisfied that the case has been proved on the balance of probabilities” (Evidence Act 1955, s 140(1)). The relevant principles were summarised by Allsop P, Basten JA and Grove J agreeing, in Jackson v Lithgow City Council [2008] NSWCA 312 -

Holloway v McFeeters

Bradshaw v McEwans Pty Limited

Jones v Dunkel

Holloway v McFeeters

Bradshaw v McEwans

Though Dixon CJ was in dissent, this passage can be taken to reflect the essential content of Holloway v McFeeters , and of the views of the justices in Jones v Dunkel . See also Flounders v Millar [2007] NSWCA 238 at [4]-[35] (Ipp JA, with whom Handley AJA agreed) and in particular [32]-[35].

11 On the basis of these authorities, Mr Morrison SC, leading Mr Elliott on behalf of the appellant, submitted that the appellant did not have to prove on the balance of probabilities what occurred, rather he said, ‘ all the appellant has to do is to show that the appellant’s scenario was in the smallest degree more likely than either of the other eventualities.’

Rhesa Shipping Co SA v Edmunds (The ‘Popi M’)

247 The respondent did not submit to the effect that breach of duty in permitting a deceptive road surface, followed by an accident within the area of foreseeable risk thereby created, was sufficient for causation. On the analyses of High Court authority undertaken in this Court in Flounders v Mitlar [2007] NSWCA 238; (2007) 49 MVR 53 (and see subsequently Roads and Traffic Authority v Royal [2008] HCA 19; (2008) 245 ALR 653 at [31], Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 243 at [240]; Gett v Tabet [2009] NSWCA 76 at [250]-[256]; and Warren v Gittoes at [45]-[52]), it is still necessary for the respondent to establish causation on the facts. The respondent relied on March v E & M H Stramare Pty Ltd (1991) 171 CLR 506, referring in particular to a passage in the judgment of Deane J at 521, for a submission to the effect that any negligence on her part did not preclude recovery if the appellants’ negligence had created the risk of the accident occurring. However, as was pointed out in Roads and Traffic Authority v Royal at [32] in relation to a similar argument from March v E & M H Stramare Pty Ltd, it must first be established that the appellants’ negligence (at this point assumed) has been causative.

248 To return to the facts, that there was no evidence to suggest that the respondent’s manner of driving prior to the accident was erratic or abnormal did not enable an inference that she was misled. As I have said, that the respondent was driving appropriately prior to the accident proved little about what caused the accident. Other matters must be considered. Much more than uniformity in colour of the road went to how the respondent’s vehicle came to have the near-side wheels on the shoulder.

249 The respondent had driven over the road in the order of 300 times. In an affidavit she said that she was quite familiar with the road, having travelled the route two or three times per day. She described it as made out of hard dirt which had been well compacted, although it had “soft patches”, and as a typical dirt road. While she referred to difficulty in seeing “where the compacted road ended and where the soft verge started”, the verges seem to have been the rills or at least the very edges of the road, and she was aware of their softness -

“With respect to the dirt verges on the side of the road, these would often become raised when the grader pushed all the soft, loose dirt to the sides. It would build up and in places the verge would become raised like a ramp. It was also difficult to see where the compacted road ended and where the soft verge started.”

250 The respondent must have experienced the road in all conditions, from recently graded to a week or more since grading, and the Yellow Corner was no more or less affected by coal and coal dust from the road trains than other parts of the road. She must have experienced the hard compacted surface of the running track, free from loose material, and must have come to know that, depending on the recency of grading, there would be loose material on the shoulders and a difference in that respect between the running track and the shoulders. The rill provided a prominent border to the carriageway and a guide to the lateral location of the respondent’s vehicle. There were guideposts, including the guidepost towards which the respondent’s vehicle was heading at the time the near-side wheels went onto the shoulder. Their principal purpose was not to tell the course of the road in daylight, but they did so.

251 The lastmentioned guidepost is of some importance. At the time the near side wheels of the respondent’s vehicle went onto the shoulder she was about 45 metres or less from the guidepost, travelling at at least 80 kilometres per hour: a little over 1.5 seconds until hitting the guidepost. The guidepost would have told the respondent that her vehicle should not be heading where it was. That she was so close to it when the near side wheels went onto the shoulder, and had to steer sharply to the right, is a reasonable indication that coming to have the near side wheels on the shoulder was not because of the appearance of the road surface.

252 When there were these guides to the respondent’s driving, but the nearside wheels of her vehicle went onto the shoulder and to within about 75 centremetres of the rill so close to the guidepost and heading for it, it is difficult to accept that she was misled in her driving by uniformity in colour across the road. The uniformity in colour, also, was not complete, and there remained what I have called the different texture from the loose material on the shoulder, which must have been within the respondent’s experience from driving on the road. In my opinion, that the respondent was misled by the nature of the road surface is not a conclusion which can affirmatively be reached, as an inference more probable than other possibilities. Again respectfully differing from the trial judge, I am not satisfied that her case in this respect has been proved on the balance of probabilities.

Departing from the trial judge’s findings

253 I do not overlook the respondent’s submission that the trial judge had the advantage of hearing and seeing the many witnesses, and arrived at a “synthesis” of competing evidence which must have involved regard amongst other things to their demeanour and his assessment of their credibility. In the respondent’s submission, the appellate restraint considered in cases such as Fox v Percy [2003] HCA 22; (2003) 214 CLR 336 and CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 224 ALR 1 applied, such that this Court should depart from the trial judge’s conclusions as to soft shoulder, uniformity in colour “and so on” (it was left rather open-ended) only if there was no evidence to support them, they were contrary to incontrovertible evidence or the result was glaringly improbable.

254 The appeal to this Court is by way of rehearing (Supreme Court Act 1970, s 75A(5)), and subject to the aforementioned appellate restraint should be “a real review of the trial … and of [the trial judge’s] reasons” (Fox v Percy at [25] per Gleeson CJ and Gummow and Kirby J). Save in relation to Mr Wilson, the trial judge’s reasons did not express views on the reliability or credibility of witnesses. Nor were his Honour’s conclusions evidently founded on preference for one witness over another or others; there was a deal of evidence with shades of consistency and inconsistency, and in the “synthesis” the photographs, equally able to be understood by this Court, were important. Further, causation in particular was scarcely a matter of preference for one witness over another or others. While (as I have accepted) respect should be afforded to the trial judge’s conclusions, I do not think that the respondent’s submission should be accepted.

255 There is further reason to decline to accept the submission. The trial judge came to his findings and conclusions on a limited consideration of the evidence in the course of his judgment. I have sought to explain, in relation to uniformity of colour, that the evidence of Mr O’Loughlin to which the trial judge referred was qualified, and was not the whole of his evidence on the subject, and that there was much other evidence to which his Honour did not refer. In relation to ability to distinguish between the hard compacted surface and the relatively softer shoulder, I have sought to explain that the evidence to which the trial judge referred did not readily support the trial judge’s finding, and again there was other evidence going to the matter. No judgment can take up every detail of the evidence, but there was much relevant evidence left without mention. The judge’s conclusions were in these respects flawed, and for that reason did not command acceptance unless contrary to incontrovertible evidence or glaringly improbable.

256 We have had the benefit of extensive attention to the evidence through counsel’s written and oral submissions, and if in our real review conclusions are reached differing from those of the trial judge they should be given effect. If error on the part of the trial judge needs to be found (see the discussion in Costa v Public Trustee [2008] NSWCA 223), it may sufficiently be found in what I have said in the preceding paragraph. In my opinion, it is open to this Court to depart from the trial judge’s findings in the manner appearing in these reasons.

The result

257 Since the appearance of the road surface was not relevantly deceptive, there was no relevant breach of duty by the appellants in failing by further grading to eliminate uniformity of colour across the road. Nor was any such breach of duty shown to be causative of the accident. The appeal should be upheld.

258 No reason was proffered against the ordinary order that the respondent pay the appellants’ costs of the re-hearing of the appeal. The High Court ordered that the costs of the previous appeal to this Court be in the discretion of the Court on the rehearing. Subject to any further submissions, the respondent should also pay those costs.

259 The success of the appeal can entitle the respondent to a certificate under the Suitors Fund Act 1951 in respect of the rehearing of the appeal. Her entitlement in respect of the previous appeal and the appeal to the High Court is less clear.

260 The respondent should have the opportunity to file written submissions within 14 days in relation to the costs of the previous appeal and a certificate under the Suitors Fund Act in respect of the appeal to the High Court. If she takes up the opportunity, the appellants should have a further 7 days to file responsive written submissions, and the matter will be decided on the written submissions.

261 I propose the orders -

1. Appeal allowed.

2. Set aside the judgment for the respondent and in lieu thereof judgment for the appellants.

3. Respondent to pay the appellants’ costs of the trial and of the rehearing of the appeal.

4. Respondent to have a certificate under the Suitors Fund Act if otherwise qualified in respect of the rehearing of the appeal.

5. Subject to order 6, respondent to pay the appellants’ costs of the previous appeal to this Court.

Suitors Fund Act

******

Citations

Yarrabee Coal Co Pty Ltd v Lujans [2009] NSWCA 85

Most Recent Citation

Cases Citing This Decision

37

Lujans v Yarrabee Coal Company Pty Ltd [2008] HCA 51

Council of the Law Society of New South Wales v Zhukovska [2020] NSWCA 163

Goode v Angland [2017] NSWCA 311

Cases Cited

31

Statutory Material Cited

0

State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3

Gett v Tabet [2009] NSWCA 76

Costa v The Public Trustee of NSW [2008] NSWCA 223

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CITATION:	Yarrabee Coal Company Pty Ltd & Anor v Lujans [2009] NSWCA 85
HEARING DATE(S):	23, 24,25 & 26 February 2009
JUDGMENT DATE:	27 July 2009
JUDGMENT OF:	Allsop P at 1; Beazley JA at 7; Giles JA at 78
DECISION:	(1) Appeal allowed; (2) Set aside the judgment for the respondent and in lieu thereof judgment for the appellants; (3) Respondent to pay the appellants' costs of the trial and of the rehearing of the appeal; (4) Respondent to have a certificate under the Suitors Fund Act if otherwise qualified in respect of the rehearing of the appeal; (5) Subject to order (6), respondent to pay the appellants' costs of the previous appeal to this Court; (6) Liberty to the respondent to file written submissions within 14 days in relation to the costs of the previous appeal and a certificate under the Suitors Fund Act in respect of the appeal to the High Court; appellants to file responsive written submissions within a further 7 days.
CATCHWORDS:	TORTS - negligence - motor vehicle accident - unsealed road - plaintiff's vehicle went onto shoulder - approaching guide post - loose material on shoulder - plaintiff corrected and lost control - vehicle went off road and plaintiff injured - road under defendants' control - used as haul road for coal trucks - regularly graded - issue of perception of boundary between shoulder and hard running surface - degree of uniformity of colour - whether road surface deceptive - if deceptive whether causation of accident because of deceptiveness proved - use of photographs as evidence - evidence given by reference to photographs - departure from trial judge's findings - need for inference of greater probability than other available inferences.
CASES CITED:	Angel v Hawkesbury City Council [2008] NSWCA 130; Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 243; Beaton v McDivitt (1985) 13 NSWLR 134; Blacktown City Council v Hocking [2008] NSWCA 144; Blatch v Archer (1774) 1 Cowp 63; 98 ER 969; Bradshaw v McEwans Pty Ltd (High Court of Australia, 27 April 1951); Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FAC 1833; 117 FCR 424; C Van der Lely NV v Bamfords Ltd [1963] RPC 61; CSR Ltd v Della Maddalena [2007] HCA 1; (2006) 224 ALR ; Costa v The Public Trustee of New South Wales [2008] NSWCA 223; Flounders v Mitlar [2007] NSWCA 238; (2007) 49 MVR 53; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; Gett v Tabet [2009] NSWCA 76; 254 ALR 504; Holloway v McFeeters [1956] HCA 25; (1956) 94 CLR 470; Jackson v Lithgow City Council [2008] NSWCA 312; Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352; Lujans v Yarrabee Coal Co Pty Ltd [2008] HCA 51; (2008) 249 ALR 663; March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; Reg v Travers (1958) 58 SR (NSW) 85; Roads and Traffic Authority v Royal [2008] HCA 19; (2008) 245 ALR 653; Schmidt v Schmidt [1969] QWN 3; Short v Barrett [1990] NSWCA 164;` Stillwell Trucks v McKay; Stillwell Trucks v TNT [2002] NSWCA 292; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; 73 ALJR 306; Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531; Warren v Gittoes [2009] NSWCA 24; Yarrabee Coal Co Pty Ltd v Lujans [2007] NSWCA 342; (2007) 49 MVR 178.
PARTIES:	Yarrabee Coal Company Pty Ltd - First Appellant Jalgrid Pty Ltd - Second Appellant Matina Luise Lujans - Respondent
FILE NUMBER(S):	CA 40089/07
COUNSEL:	C T Barry QC & J Davidson - Appellants B Toomey QC & S Longhurst - Respondent
SOLICITORS:	McCabe Terrill - Appellants Russell McLelland Brown - Respondent
LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	20785/01
LOWER COURT JUDICIAL OFFICER:	Cooper AJ
LOWER COURT DATE OF DECISION:	6 October 2006