Zraika v Walsh

[2015] NSWSC 485

Supreme Court

New South Wales

Medium Neutral Citation:

Zraika v Walsh [2015] NSWSC 485

Hearing dates:

23; 24; 25; 26 & 27 June 2014 & 1 & 2 July 2014

Date of orders:

30 April 2015

Decision date:

30 April 2015

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

See [234]

Catchwords:

TORTS – negligence – liability of motorists for collision on a busy arterial road – where first vehicle crossed intersection controlled by traffic lights from a factory driveway displaying a left turn only sign and collided with the second vehicle travelling through intersection with a green light – whether second vehicle was travelling in a left hand turn lane when entering intersection – evaluation of expert and lay evidence – whether driver of second vehicle owed his unborn child a duty of care – whether he breached his duty of care by colliding with a vehicle already in the intersection in circumstances where he was found to be proceeding straight through the intersection while travelling in a left turning lane

TORTS – negligence – liability of Council – powers and functions exercised by Council as consent authority for the re-development of a factory complex – whether Council owed a duty of care to users of the intersection in exercise of its statutory powers – whether Council breached its duty in discharging its statutory function as to whether conditions should be imposed to avoid risk of traffic conflicts – whether Modbury principles are applicable – s 43A Civil Liability Act 2002

TORTS - negligence – liability of Roads & Maritime Services – whether RMS owed a duty of care to users of intersection in exercise of its statutory powers – power to install traffic control device on land adjacent to a main road – signalisation – s 43A Civil Liability Act 2002 – whether RMS breached duty of care

TRAFFIC LAW – left turn only sign located within factory complex near a driveway exit – whether sign had been installed as a condition of development consent – legal force and effect of sign – lacuna in Australian Road Rules – sign merely directory or advisory not regulatory

Legislation Cited:

Australian Road Rules 2008 (NSW);
Civil Liability Act 2002 (NSW);
Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW);
Environmental Planning and Assessment Act 1979 (NSW);
Interpretation Act 1987 (NSW);
Motor Traffic Regulations 1935 (NSW);
General Traffic Regulations 1916 (NSW);
Roads Act 1993 (NSW);
Road Rules 2014 (NSW);
Road Transport (Safety and Traffic Management Act) 1999 (NSW);
Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999 (NSW);
Road Transport (General) Act 1999 (NSW);
State Environmental Planning Policy No. 11 – Traffic Generating Developments (NSW);
Traffic Act 1909 (NSW);
Transport Administration Act 1988 (NSW);
Traffic Legislation Amendment Act 1997 (NSW)

Cases Cited:

Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420;
Benic v State of New South Wales [2010] NSWSC 1039
Bernie Port Authority v General Jones Pty Ltd [1994] HCA 13; 179 CLR 520;
Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1;
Caledonian Collieries v Speirs [1957] HCA 14; 97 CLR 202;
Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649;
Chapman v Hearse [1961] HCA 46; 160 CLR 112;
Curtis v Harden Shire Council [2014] NSWCA 314; 203 LGERA 354; 68 MVR 1;
Derrick v Cheung [2001] HCA 48; 181 ALR 301;
Gorringe v Calderdale Metropolitan Borough Council [2004] 2 All ER 326; [2004] UK HL 15;
Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151;
Henderson v Hassel (1986) 3 MVR 359;
Henwood v Municipal Tramways Trust (1938) 60 CLR 438;
Janesch v Coffey [1984] HCA 52; 155 CLR 549;
Joseph Eva Limited v Reeves (1938) 2 K.B. 393;
Lee v Carlton Crest Hotel (Sydney) Pty Ltd [2014] NSWSC 1280;
Makawe Pty Ltd v Randwick City Council [2009] NSWCA 412; 171 LGERA 165;
MM Constructions (Aust) v Port Stephens Council [2012] NSWCA 417; 191 LGERA 292;
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254;
Mt Isa Mines Limited v Pusey (1970) 125 CLR 383
Nagle v Rottnest Island Authority [1993] HCA 76; 177 CLR 423;
Neindorf v Junkovic [2005] HCA 75; 80 ALJR 341;
Newcastle City Council v GIO General Ltd [1997] HCA 53; 1997 191 CLR 85;
Port Macquarie Hastings Council v Mooney [2014] NSWCA 156; 201 LGERA 314;
Pyrenees Shire Council v Day [1998] HCA 3; 192 CLR 330;
Roads & Traffic Authority v Dederer [2007] HCA 42; 234 CLR 330;
Rosenberg v Percival [2001] HCA 18; 205 CLR 434;
Sermon v Commissioner of Railways (1907) 5 CLR 239;
Shaw v Thomas [2010] NSWCA 169; Aust Tort Reports 82-065;
Sibley v Kais (1967) 118 CLR 424;
South Australian Ambulance Incorporated Limited v Wahlheim (1948) 77 CLR 215;
Stovin v Wise [1996] AC 923;
Sutherland Shire Council v Heyman [1985] HCA 41; 157 CLR 424;
Tame v New South Wales [2002] HCA 35; 211 CLR 317;
The Mayor of the City of Essendon v McSweeney (1914) 17 CLR 524;
Turkmani v Visvalingam [2009] NSWCA 211; 53 MVR 176;
Turner v Ku-ring-gai Municipal Council (1990)72 LGRA 60; 12 MVR 321;
Tromp v Liddle (1941) 41 SR (NSW) 108;
Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422;
Vincent v Woolworths Limited [2015] NSWSC 435;
Warren Shire Council v Keuhne [2012] NSWCA 81; 188 LGERA 362;
Wallace v Kam [2013] HCA 19; 250 CLR 375;
Wentworth Securities Limited v Jones [1980] A.C. 74;

Category:

Principal judgment

Parties:

Sharif Zraika (by his next friend Halima Zraika (Plaintiff)
Rebecca Jane Walsh (First Defendant);
John Bernard Walsh; (Second Defendant)
Roads & Maritime Services (Third Defendant);
Bankstown City Council (Fourth Defendant);
Ali Zraika (Fifth Defendant)

Representation:

Counsel: Mr D Higgs SC with Mr T Boyd (Plaintiff)
Mr K P Rewell SC (First and Second Defendants)
Mr M Fordham SC with Mr H Chiu (Third Defendant)
Mr R Sheldon SC with Mr P M Knowles (Fourth Defendant)
Mr G J Smith (Fifth Defendant)

Solicitors: Kheir Lawyers (Plaintiff)
McInnes Wilson Lawyers NSW (First, Second and Fifth Defendants)
Hicksons Lawyers (Third Defendant)
Mills Oakley Lawyers (Fourth Defendant)

File Number(s):

2011/00052630

judgment

1. The plaintiff, Sharif Zraika, brings these proceedings by his mother, Halima Zraika claiming damages for injuries allegedly suffered by him in a motor accident on 16th November 2002. Sharif (in using his given name I intend no disrespect) was then en ventre sa mere. His pregnant mother was travelling as a front seat passenger in a Ford Laser driven by his father, Mr Zraika, the fifth defendant. The Laser was involved in a collision with a Holden utility driven by the first defendant, Mrs Walsh, and owned by the second defendant, Mr Walsh, at the intersection of Woodville Rd and Tangerine St, Villawood.

2. The intersection is a T-intersection controlled by traffic lights. Tangerine St is the terminating Rd and enters Woodville Rd from the west. There is a driveway to a factory complex on the eastern side of Woodville Rd, more or less opposite the entry to Tangerine St. Entry and exit to the factory complex via the driveway is not controlled by the traffic lights. In November 2002 there was a sign on the boundary of the factory complex to the left of the driveway, of a familiar type indicating a “left turn only” for exiting vehicles.

3. Mrs Walsh has remarried and is now Mrs Meehan. For clarity I will continue to refer to her by her name at the time. She left the driveway contrary to the sign, which she did not see, by driving straight across the intersection, intending to enter the west bound lane of Tangerine St. Before she got there she collided with the Ford Laser driven by Mr Zraika. Mrs Walsh and Mr Walsh have admitted breach of the duty of care owed by a motorist to other road users. They dispute whether Sharif’s apparent disabilities were acquired in the collision. They argue that his difficulties are congenital in nature.

4. Sharif also sues his father. There is evidence that his father drove the Laser through a “left turn only lane” to head north on Woodville Rd overtaking vehicles in lanes 2 and 3 which were stationary at the lights as he approached. He is said to have driven contrary to the traffic lane arrow marked on the roadway directing traffic in the left lane to turn left (r 88(2), Australian Road Rules 2008 (NSW); now repealed and replaced by Road Rules 2014 (NSW)) by entering the intersection from that lane with the intention of proceeding north, and not into Tangerine St. Mr Zraika denies this.

5. The fourth defendant is Bankstown City Council and the third defendant is Roads & Maritime Services. I have dealt with them in this order to reflect the chronology of their involvement.

6. Bankstown City Council (BCC) is the local government authority responsible for town planning in the area. On 16th April 1997 in the exercise of its statutory powers as a consent authority it approved a factory re-development on the land adjacent to the eastern side of Woodville Rd (Exhibit 1D25). This approval included conditions relating to the configuration of the driveway. Other developments on the same site were approved, before the accident, between 23rd February 2000 and 15th October 2001 (Exhibit 1D26). In the broadest, introductory terms the case against it is that the conditions it imposed failed to make adequate provision for the safe control of traffic leaving the factory complex by the driveway.

7. Roads & Maritime Services (RMS) is the statutory successor to the Roads & Traffic Authority which, at all material times, had statutory power over traffic management and control on Woodville Rd. It also had statutory authority over traffic lights generally. The case against it, again in the broadest introductory terms, is that it failed to exercise those powers, when it had the opportunity, to include vehicle movements into and out of the driveway within the phases of the traffic lights which controlled all other traffic movements in the intersection. To put it another way, the case is that it should have signalised, or caused the signalisation of, the driveway as a fourth leg of the intersection. Alternatively, the RMS should have taken steps before the accident to make plain that vehicles leaving the premises by the driveway were to turn left only.

8. Sharif has the benefit, as I have said, of the admission of breach of duty of care by Mrs Walsh and Mr Walsh. Although the other claims are brought on his behalf, they are mainly propounded by Mrs Walsh and Mr Walsh, at least so far as BCC and RMS are concerned, by way of cross-claim. Sharif does not disavow the claims, but has left the carriage of them to Mrs Walsh and Mr Walsh.

Separate questions for decision

9. Given the number of parties, Sharif’s age, and the possible complexity of the medical issues, orders were made for a decision on separate liability questions before any other question in the proceedings. These questions were somewhat refined during the course of the hearing. They are 9 in number in the following terms:

1. Did RMS owe the plaintiff a duty of care?

2. Did BCC owe the plaintiff a duty of care?

3. If RMS owed the plaintiff a duty of care, was it breached?

4. If BCC owed the plaintiff a duty of care, was it breached?

5. Was RMS’s breach (if any) a legal cause of the collision between the vehicles driven by Mrs Walsh and Mr Zraika on 16th November 2002?

6. Was BCC’s breach (if any) a legal cause of the collision between the vehicles driven by Mrs Walsh and Mr Zraika on 16th November 2002?

7. Did Mr Zraika breach the duty of care he owed the plaintiff on 16th November 2002?

8. Was Mr Zraika’s breach (if any) a legal cause of the collision between his vehicle and the vehicle driven by Mrs Walsh on 16th November 2002?

9. If more than one defendant is negligent, in what proportions should legal responsibility be shared?

The issues

10. I will not deal with the questions in the order in which they are posed. It seems more logical to deal first with the primary facts surrounding the accident which will involve the determination of any legal responsibility of Mr Zraika; I will then deal with the legal responsibility, if any, of BCC; and finally I will consider the legal responsibility, if any, of RMS.

The accident

11. The 16th November 2002 was a Saturday. Mrs Walsh attended the factory complex in the course of her work to pick up the uniforms for office staff she had previously ordered from a company which carried on business in the factory complex (28.45T). She had been there only once before when she ordered the uniforms. She approached the premises travelling south on Woodville Rd and entered the driveway, which the evidence disclosed was the southern of two driveways servicing the factory complex. Photographs tendered in evidence (Exhibit 1D1.8) show that that business operated from the building closest to the driveway. Mrs Walsh reverse-parked her utility opposite the entrance to the business. She identified this spot by reference to a silver BMW car shown in photographs (Exhibit 1D2.4 and .5; 27.45 – 28.5T). This must have put her very near the left turn only sign. She left her car and entered the premises.

12. Having made her purchases she left the premises and approached her parked car. As she did so, she was rummaging through her handbag to find her car keys so she was not looking up to see the sign. She entered the vehicle and executed a leftward U-turn to the driveway, halting at the edge of its vehicle crossing and the gutter of Woodville Rd. I infer from her evidence that she was in something of a quandary. Her most direct route back would have been to turn right into Woodville Rd and head north, but she had a sense that this was not permissible. She knew that if she turned left and proceeded south, there was an underpass a short distance away which would have enabled her to cross under Woodville Rd and re-enter its north bound lanes. Instead she decided to cross the intersection into Tangerine St where she would find a place to turn around, and then turn left into Woodville Rd to head north.

13. Apart from missing the left turn only sign, Mrs Walsh could not recall that there was a median strip separating entering from existing traffic in the driveway (Exhibit 1D1.8; 30.30 - .45T). Of course, she knew that the intersection was controlled by lights, but from her position she could see “virtually nothing” of the traffic light colours (31.5T). This may be a little different from what she later told police that she saw the lights for south bound traffic “outside McDonalds…were red.”(Exhibit 1D3.) She knew that there was no traffic light controlling her entry to the intersection. When the traffic in Woodville Rd stopped, she gave way to traffic “coming out of Tangerine St” (31.5T). To the best of her recollection she gave way to five cars. When “the coast was clear” (31.30T) she proceeded into the intersection “very slowly” and “proceeded very cautiously across the intersection, all the time keeping in mind that there are traffic lights that are timed”. From previous experience she knew that the furthest lane (north bound lane 1) from her was a left hand turn lane, but because of the traffic stationary in north bound lanes 2 and 3 she “didn’t have a good view of that lane”. She said at (32.35T):

So I continued extremely cautiously and then I thought well I'll just be ready to brake in case when I do get a view of the left‑hand view lane (sic), I can stop. As to the best of my recollection, I had crossed both of those stop lanes and just ‑ just ‑ had a view of the left‑hand lane, and then I saw the car coming at me and, yeah, it hit me.

She thought she was “well and truly” in alignment with the left hand turn lane. She told Snr Constable Moloney, the police officer who investigated the accident at the scene, (Exhibit 1D3) that she had been “inching” across lanes 2 and 3 and when she got to the gutter lane “this car came flying into me”. She said it collided with the passenger door of her ute.

14. After Snr Constable Moloney had taken her statement, Mrs Walsh saw the police officers cross the intersection and look at the sign. This was the first time she had noticed a sign, and then only the back of it. When they returned, the police officers asked her if she had seen “the left turn only sign”. She replied “no”. She said she “was astonished it was there” (33.20T).

15. Mrs Walsh also told Snr Constable Moloney that she had looked for signs and seen none (Exhibits 1D3 and 19). In her subsequent report (Exhibit 1D19) Snr Constable Moloney recorded that she noticed “that the sign is within the fenced off area of the complex, back of the kerb of Woodville road…[and] it isn’t very clearly erected for drivers to see.”

16. Snr Constable Moloney recorded a rough sketch of the scene of the accident in her notebook “to record the vehicles in situ and any debris” (102.5T). She explained:

The aim of the time for the police officers is we get there, draw a site diagram very quickly, so we don’t lose any positioning. We then move the vehicles from the roadway to clear the traffic (103.5T).

She measured the distance from the outside edge of the eastern unbroken line delineating the pedestrian crossing across the mouth of Tangerine St to the point of impact as 1.5 metres. She recorded debris here.

17. Snr Constable Moloney returned to the scene on Sunday, 17th November 2002 to complete a “proper” site diagram (107.5T; Exhibit 1D4, p 39). The original site diagram and the amplified version depict the vehicles opposite lane 2 for east bound traffic in Tangerine St. Debris is again depicted there.

18. I interpolate that there is no issue that when Mr Zraika entered the intersection he had a green light (Exhibit 3D1[5]).

19. Mr Zraika was adamant that he approached the intersection travelling north in the middle lane, or lane 2. He was adamant that he was not in the left hand turn lane, or lane 1. He approached the intersection at around 65 kilometres per hour (70.5 - .15T) (the speed limit is 70) and the traffic lights were green from about when he was 20 to 30 metres short of the lights. No one challenged him about his speed or the green light. He did not see Mrs Walsh’s car until it was directly in front of him and he had no time to stop or avoid the collision. He described the impact as a “T-bone” (69.45T). The cars came to rest in the middle of Tangerine St in a location which was “between lanes 1 and 2” for northbound traffic on Woodville Rd (70.20T).

20. A statement he made to the police was admitted as Exhibit 5D1. Mr Zraika was adamant again that that statement was made on 16th November 2002 when he was at the hospital with his wife. However, it is dated 9th December 2002. He accepted that what he told the police officer was “probably” accurate (76.10T).

21. Mr Zraika’s police statement is broadly consistent with his evidence. He said that he was travelling in lane 2 as he approached the lights. The lights had just turned green as a truck which had been stationary in lane 3 was just starting to move off. He did not see Mrs Walsh’s ute until it was too late to do anything to avoid the collision.

22. To the extent to which there were discrepancies, he was prepared to accept, as I have said, the accuracy of what he told the police officer. I accept that the statement was made more than 3 weeks later as dated. It follows that Mr Zraika is mistaken about the date.

23. Mrs Zraika gave evidence of being a front seat passenger in the motor vehicle being driven by her husband as it approached the intersection. I formed the impression that her recollection of the details, understandably, was very hazy. She frequently could not recall matters she was asked about. She was and remained adamant that they approached the intersection in lane 2 and were not at any time during that approach in lane 1. She specifically denied that her husband entered lane 1 for the purpose of overtaking vehicles in front that were stationary at the lights (98.40 - .45T). There were some inconsistencies between her and her husband’s account. For instance, she remembered the truck in lane 3 as being a furniture removalists van, rather than the large semi- trailer described her husband. She also had that vehicle slowing down rather than moving off (93.5T; 98.5T). She did not remember the details of the collision, only the fact of the “impact” (93.35T).

17. Two other lay witnesses gave evidence. Mr Giuseppe Natale was the driver of the third or fourth car in a stationary line of traffic south bound in lane 3 of Woodville Rd, waiting to turn right onto Tangerine St. He first noticed what must be Mrs Walsh’s utility after it had crossed the midway point of Woodville Rd and onto the northbound side of the carriage way (he was shown to have been wrong about the colour of the utility and of the Laser.) He said the utility was travelling straight across the intersection towards Tangerine St. It was “just crawling” (126.35 - .40T). His evidence was that a “red” Laser came through the lights from the left-hand lane (lane 1 northbound) and “T-boned” the utility. The impact took place “in the middle of the intersection, virtually between the left-hand lane which is turn left only and the second lane” (127.15T). He estimated the Laser’s pre-impact speed at 50 or 60 kilometres per hour and said that when the Laser emerged, there was stationary traffic in lanes 2 and 3 of Woodville Rd northbound. In cross-examination, he strongly denied that the Laser was in lane 2 northbound. He accepted that “some part of the Laser was in the middle lane” at the point of impact (130.15 - .35T).

18. After the best part of 12 years, Mr Scott Bernard had no recollection about “the circumstances of [the] accident” (79.20T). A statement made by him on 29th January 2004 was tendered (Exhibit 3D1). He was stationary in lane 1 in Tangerine St at the stop line, waiting to turn left. The light facing him, it goes without saying, was red. He described stationary traffic in lanes 2 and 3 of Woodville Rd northbound. He saw a white Laser in the northbound left hand turn only lane of Woodville Rd approaching the intersection. The Laser was not showing a left indicator, and he formed the impression that it was going to pass the stationary vehicles and continue northbound.

19. After he had seen the Laser he saw a silver Holden utility come into view. He wrongly assumed that it must have been turning right southbound from Woodville Rd into Tangerine St. He estimated the utility was travelling at about 15 kilometres per hour and was crossing the northbound lanes of Woodville Rd heading for Tangerine St.

20. When “it started to cross into the left hand turn lane only … the front driver’s side of the ute smashed into the front right wheel area of the Laser” (Exhibit 3D1[7]). He had not heard any screeching of brakes. He rendered assistance to Mrs Walsh who appeared unconscious initially. He erroneously formed the view that Mrs Zraika was the driver of the Laser. His statement included a diagram broadly consistent with Snr Constable Moloney’s site diagram. He did not make the measurements shown on his diagram (82.35T), presumably an investigator did. In cross-examination, he confirmed that he had no recollection of any of the details surrounding the accident. Specifically he was unable to say from his own recollection whether the Laser was travelling in the middle lane of the traffic when it came into collision with the utility (83.30T). I accept he now has no memory of these events.

21. Snr Constable Moloney recorded in her notebook (Exhibit 1D4, p 31) that Mr Barnard told her that the Laser was travelling in the northbound “left lane” on Woodville Rd.

Expert evidence concerning the crash

29. Two consultant traffic engineers, Mr John Jamieson and Mr Grant Johnston, gave evidence about crash dynamics. Mr Jamieson’s report of 14th May 2014 is Exhibit 3D3 and Mr Johnston’s report of 7th April 2014 is Exhibit 1D20. There are two important expressions of opinion by Mr Jamieson: first, the forensic evidence (such as it may be) supports no conclusion other than that the point of impact was in alignment with the kerb side lane on Woodville Rd (Exhibit 3D3, p 17); and secondly, the speed of Mr Zraika’s car “appeared to be less than 35 kilometres per hour”.

30. In oral testimony, it emerged that the forensic evidence referred to was the police evidence about the resting position of the vehicles, 1.5 metres from the outside line marking the pedestrian crossing in alignment with westbound lane 2 in Tangerine St; the location of debris around the rest position of the vehicles; the absence of any record of any gouge or other marks on the surface of the roadway suggesting movement of the vehicles after impact in a north-westerly direction; and the degree of intrusion on the nearside passenger door of the utility that could be estimated from a poor-resolution photograph of the utility.

31. But it also became apparent that the two opinions were interconnected. In effect Mr Jamieson’s evidence was that “had the utility been travelling at 20 kilometres an hour, for example, and the Laser been at 60, the vehicles would have vectored off and probably ended up on the footpath on the north western corner” (218.15T).

32. Mr Jamieson also explained that “the sensitive variable … in all physics is velocity”. Kinetic energy is calculated by multiplying half mass by half velocity squared. Accordingly small changes in speed attract “the squared effect”. At 60 kilometres per hour, the Laser “would have had much more energy … and would have pushed [the utility] to the north” (218.10T).

33. Mr Jamieson thought that “the way the vehicles are plotted” on Snr Constable Moloney’s site diagram “suggests a lower speed event” (219.5T). However, he accepted that the forensic evidence he described was “not [completely] inconsistent” with an impact in the alignment of northbound lane 2 on Woodville Rd with the Laser travelling at about “50 kilometres per hour” (221.35T).

34. Figure 1 in Mr Jamieson’s report is an aerial photograph of the crash site from 2012 with some images superadded by Mr Jamieson to illustrate his opinion. It is interesting to note that if the utility travelled from the driveway towards Tangerine St in a more or less straight line, it would cross the alignment of the northbound left turn lane some distance north of the stop line for northbound traffic in Woodville Rd. I interpolate that Mr Johnston measured the distance from the stop line to his probable point of impact as 15 metres.

35. At (pp 25 - 27) Mr Johnston recorded his assumptions as follows:

….The vehicles came to rest a distance of 1.5 metres away from the marked crossing across Tangerine Street, approximately perpendicular to each other and each angle at approximately 45 degrees to the alignment of Woodville Road. I have also assumed that they have come to rest in contact at a point approximately opposite the middle of eastbound lane 2 within Tangerine Street (p 25 [7.6]).

These assumptions accord with Snr Constable Moloney’s evidence about what she observed of the post-impact rest position of the vehicles. From this admittedly scant material, Mr Johnston calculated the post-impact speed based on distance to rest by applying the principle of conservation of momentum.

36. Admittedly, working backwards, Mr Johnston assumed a point of impact in alignment with the northbound left turn lane in Woodville Rd and the westbound side of the carriageway in Tangerine St, just to the south of the dividing line (Figure 7.2, p 27). His diagram shows the vehicles in a T-bone configuration at impact. This point of impact accords with what is shown on Mr Jamieson’s Figure 1, as discussed at [34] above. Mr Johnston then calculates that to reach the point of rest as documented by Snr Constable Moloney “the centre of mass of each vehicle has moved approximately 8 metres post impact at an angle of approximately 35 degrees to the northwest.” This indicated a pre-impact speed of around 68 kilometres per hour for the Laser (Exhibit 1D20 [7.11], p 28). At that speed the Laser would have covered the distance between the holding line and the point of impact (15 metres), in 0.8 seconds, too quick for either party to have reacted to the imminent collision by braking.

37. In cross-examination, Mr Johnston accepted that his calculations did not “rule out the possibility that the Ford Laser was in [alignment with] the middle lane at the point of impact” (my emphasis) (376.30T).

38. In answer to questions which I asked, Mr Johnston said that even if Mr Zraika had been turning left into Tangerine St “a collision was potentially still imminent” (377.20T). If turning left, the Laser would have been approaching at a speed diminishing to something in the order of 20 to 25 kilometres an hour at the intersection “to make the left turn” (376.45T). Then, the stopping distance would have been much less. At 68 kilometres per hour, the Laser would need 20 metres to stop; at around 20 kilometres per hour, 3 metres. This would provide more opportunity to “respond and avoid” (377.5T). Factoring in the consideration that neither driver appears to have seen the other until immediately prior to impact, Mr Johnston said: “[i]t’s therefore improbable that there would have been sufficient time even at the lower speed to still respond – perceive and react and then stop prior to impact.” It was these considerations which led him to express the view that “a collision was potentially still imminent” (376.35 – 377.20T).

Traffic movement evidence

39. Mr Lysaught, a senior employee of RMS gave evidence relevant to the question of Mr Zraika’s legal responsibility. In the late nineteen-nineties Mr Lysaught worked out of RMS’s Blacktown regional office as the “State Network Leader”. He had been with RMS and its predecessors for 35 years when he gave evidence. Evidence of recorded crashes (Exhibit 3D2) and a traffic count (Exhibit 1D17), both relating to the intersection, were introduced through Mr Lysaught. The 5 pages of Exhibit 1D17 suggest the count was taken over two days, 2nd and 3rd April 2002, but more likely it was carried out on a single day (196.20 - .40T).

40. Exhibit 3D2 showed a total of 18 crashes, 7 involving injury, in the intersection between 1st July 1998 and 30th June 2002. One of those crashes probably involved a vehicle exiting the driveway, turning right into Woodville Rd to head north (167.15 - .45T). Subsequent crash information (Exhibit 1D16) covering the three years from 1st January 2002 to 30th September 2005 showed 16 crashes, 9 of which involved injury. These “injury crashes” includes the case at hand (accident number 024764796), although it is somewhat misdescribed, and two subsequent collisions each involving a car exiting the driveway, heading across the intersection colliding with a car travelling north on Woodville Rd. These crashes occurred in 2003 and 2005 respectively. It was not suggested that the crash history made the intersection a “black spot”.

41. The traffic count, in broad terms, demonstrates that slightly more than one-quarter of all vehicles exiting the driveway, cross the intersection to either enter Tangerine St or turn right into Woodville Rd to head north. Most drivers in this group turn right into Woodville Rd. Mr Lysaught was not unduly concerned by these numbers which represent a very small proportion of all vehicles using the intersection. But because traffic exiting the driveway uncontrolled by lights was entering a controlled environment he agreed that there was a “potential for crashes” (191.40T; 192.40T; 207.35T).

42. Mr Lysaught made it clear that he was not very concerned by that potentiality. His expectation was that the motorists exiting the driveway to enter Tangerine St or head north on Woodville Rd would be doing so during a “gap” when all lights were red. He said at (207.15 - .25T):

Motorists, from my observation, are very good at picking gaps in that dead time because of motorists that will be sitting in the driveway would have vision to the traffic signal lanterns and the fact that it would be stopping traffic on Woodville Road. So, there is a 4‑second opportunity for those people to select a gap where traffic at the intersection stopped, to go straight across or to turn right. So, the low numbers, and why I'm saying from a traffic network management point of view, is that these people are selecting those gaps within that all red period of time within the traffic signal operation. [sic]

I reiterate, in passing, that Mrs Walsh said she couldn’t see “the lanterns”. However the contrary contemporaneous statement to police is probably more reliable.

43. The traffic count also counted “illegal” movements for vehicles travelling north on Woodville Rd. There was some discussion in the evidence that these might represent motorists running the red light (212.5 – 20T). However, this appears to be a wrong assumption. The traffic count report makes clear what this refers to: “vehicles travelling straight through in the left lane northbound on Woodville Rd are shown separately”. This is what is shown as “illegal”. I disregard the designation “illegal”, but the manoeuvre of “travelling straight through in the left lane” is a reference to the left turn lane which Mrs Walsh, Mr Bernard and Mr Natale say Mr Zraika came from. The traffic count showed, for example, that between 3 pm and 7 pm on the day of the count, 33 drivers proceeded north from the left turn lane. This needs to be kept in perspective, there was a total of 14,858 movements through the intersection. In this context, 33 is a tiny number.

Factual findings relevant to the legal responsibility of Mr Zraika

44. The judgment called for in this case, depends upon an evaluation of the lay and expert evidence. Neither is unblemished. The quality of the recollection of all lay witnesses suffered by reason of the effluxion of time, nearly 12 years, between the accident and the hearing. As I have pointed out Mr Bernard had no useful recollection whatsoever; Mr Natalie was demonstrably wrong about some details; and Mrs Walsh struck me as hesitant and lacking in confidence in giving her evidence, which I thought may be due to this. Mrs Walsh’s evidence about not being able to see the lights was inconsistent with her police statement, which contemporaneous version I prefer. As I have pointed out, Mrs Zraika could remember few details at all, but was adamant that her husband was driving in lane 2 and the traffic light was green. Mr Zraika was equally adamantine about those details. But there were demonstrable inconsistencies in detail between his oral evidence and his statement to police made on 9th December 2002, which may be understandable given the lapse of time.

45. I think there were also other forces playing upon the recollection of Mrs Zraika and Mr Zraika. They have the firm belief that their then unborn son acquired serious injury in the collision. The nature and extent of any injuries and disabilities caused by the collision is a matter for another day. However, their parental concern is a possible factor which may subtly influence their powers of recall, erasing from their mind anything which may suggest that Mr Zraika had even the slightest responsibility for the collision. I think this a perfectly understandable psychological phenomenon. I am not suggesting everyone would react in the same way; others might be wracked by guilt by the thought of any possibility, that they may be involved.

46. The experts had precious little objective material to work with. Essentially it comes down to the reliability of Snr Constable Moloney’s record of the rest position of the vehicles, the post-impact debris, and intersection geometry. I accept Snr Constable Moloney’s evidence. At the same time, both experts accepted that it was possible that Mr Zraika approached the point of impact from northbound lane 2 on Woodville Rd.

47. Evaluating evidence is not about counting heads. But I am impressed that each of Mrs Walsh, Mr Bernard and Mr Natalie say that Mr Zraika approached from the left hand turn lane. Of the lay witnesses, then, only Mrs Zraika and Mr Zraika disagree.

48. This evidence, that Mr Zraika was in the left hand turn lane, also seems to accord with the probabilities, such as they are. There is no question that Woodville Rd is, and was, a busy, major arterial road in Sydney’s west. In the way of things, I would expect that it would have been busy around the middle of a Saturday. Accepting this, the evidence of the other lay witnesses that as Mrs Walsh crossed the intersection there was stationary traffic in lanes 2 and 3 ready to move off once the lights changed to green better accords with the probabilities than Mr Zraika’s account that there were a few vehicles in the left hand turn lane, none in front of him in lane 2, and only a semi-trailer in lane 3 starting to move off as the lights changed.

49. The better view of the expert evidence also accords with the version of Mrs Walsh, Mr Bernard, and Mr Natalie, especially Mr Johnston’s evidence. His estimate of an approach speed of 68 kilometres per hour for the Laser accords with the evidence of all of the lay witnesses including Mrs Walsh who had the perception that the Laser was “flying”. I should not be taken as suggesting that the Laser was exceeding the speed limit of 70 kilometres per hour. Moreover, Mr Johnston’s estimate of a post impact movement of the vehicles of about 8 metres to the northwest, coming to rest in the position described by Snr Constable Moloney, also accommodates Mr Jamieson’s expressed view that, at a speed of around 60 kilometres per hour he would have expected a movement to the north of about 8 metres (215.15T). This provided Mr Jamieson with a reason for adopting a lower estimate, but only if he underestimated the area of the intersection. Mr Johnston’s measurements demonstrate the intersection is large enough to accommodate a collision at around 65 kilometres per hour for the Laser and a rest position of the vehicles as recorded by Snr Constable Moloney.

50. I find that most of Mrs Walsh’s movement across the intersection occurred during “that all red period of time within the traffic signal operation” referred to by Mr Lysaught (207.20T). She told police that the lights for southbound traffic on Woodville Rd were red, and she waited for the cars turning right from Tangerine St to clear. She probably: started when the lights facing Tangerine St were still green; continued her slow and hesitant progress through the intersection during the all red period; and was still not across when the lights changed to green for northbound traffic on Woodville Rd. Indeed, then, she had not yet reached a point in line with the left turn lane.

51. Mr Jamieson (Exhibit 3D3, p 8, Figure 5) reproduces the signal design plan showing the phase arrangements for the operation of the traffic lights at the time of the crash. If Mrs Walsh waited until traffic turning right from Tangerine St cleared and she was struck by Mr Zraika when the lights for northbound traffic were green, her movement across the intersection straddled the end of “C” phase, the all red period, and the start of “A” phase. Moreover, during “C” phase northbound traffic in the left hand turn lane has a green arrow (Exhibit 1D1.9). This makes it more likely that the left turn lane was clear as Mr Zraika approached the intersection towards the end of “C” phase.

52. For these reasons, I accept the evidence of Mrs Walsh, Mr Bernard, and Mr Natalie, and I find that Mr Zraika approached the point of impact from the northbound left hand turn lane of Woodville Rd. I find also that he was travelling at a speed around 65 kilometres per hour and was favoured with the green light as he entered the intersection.

Force and effect of the left turn only sign

53. The left turn only sign at the driveway assumed significance for a number of different issues to be decided in this case. This is partly because there is no direct evidence of who erected it, or when it was erected. The only thing that can be said with certainty is that it was present on 16th November 2002 when Mrs Walsh left the driveway.

54. It is said by Mr Zraika, BCC and RMS that in driving contrary to the direction provided by the sign Mrs Walsh committed “an illegal” act, or was on the intersection “illegally”. The Walsh parties say that in the absence of evidence that the sign was lawfully erected by an authority having the requisite statutory power, the sign was of no force and effect and Mrs Walsh was not negligent in failing to observe it, or drive in contrary to it, notwithstanding other ways in which she breached her duty of care.

53. As I will later explain, the questions of who installed the sign, when it was installed, and its legal effect, if any, may be important questions in deciding whether BCC and RMS have any legal responsibility. The question of the legal force and effect of the sign has relevance also to the question of Mr Zraika’s legal responsibility so it is convenient to consider that question now.

54. The legal regime relating to traffic signs as at November 2002 starts with the provisions of the Road Transport (Safety and Traffic Management Act) 1999 (NSW). Signs, signals and markings to direct or warn traffic on a road or road related area are referred to as “prescribed traffic control devices” (s 50). Only RMS or others directed by it may install a prescribed traffic control device (s 51). It is an offence for an unauthorised person to install one (s 52). By s 55, in proceedings for an offence for contravening a direction by a prescribed traffic control device, the device “is conclusively presumed to have been lawfully installed”.

55. Under s 50, the regulations prescribe the traffic control devices for the purpose of the Act. Clause 131 Road Transport (Safety and TrafficManagement) (Road Rules) Regulation 1999 (NSW) (repealed)) prescribed “any traffic control device of a kind mentioned in the Australia Road Rules that has effect for the Rules and under rule 315 of the Rules”.

56. Rule 315 of the Rules provides “[a] traffic control device of a kind mentioned in the Australian RoadRules has effect for the Rules if” (my emphasis) inter alia, the device is on a road and it complies substantially with the rules. Road in this context includes a road related area. Rule 11 of the Rules provides that a reference to a road includes a reference to a road related area “unless otherwise expressly stated in the Rules”. By Rule 13, a road-related area includes “an area that is not a road and that is open to or used by the public for driving, riding or parking vehicles”. For present purposes, without deciding, I will assume that the parking area inside the factory complex is a road-related area. Clearly the driveway itself where it crosses the footpath is a road-related area.

57. The left turn only sign is within the curtilage of the factory complex. There is no doubt that in form and content it complies substantially with the rules.

58. Rule 88 provides:

88 Left turn signs

(1) If there is a left-turn only sign at an intersection, a driver must turn left at the intersection.

This is said to be an “Offence provision”. By Rule 10, that phrase indicates “that a contravention of the rule (or sub-rule) [bearing it] is an offence”. Clause 37 of the Regulation prescribes a maximum of 20 penalty units.

61. But Rule 88 does not apply to this sign. The dictionary to the Rules defines intersection as meaning “the area where two or more roads meet”. The definition, twice, expressly excludes “any road-related area”. Whether one considers the area within the curtilage to the factory complex or the driveway itself, Rule 88 does not apply because the area where a road-related area and a road meet is not an intersection as defined.

62. Rule 74 is also relevant. I will set it out in full as it appears on the Office of Parliamentary Counsel website (s 45C Interpretation Act 1987 (NSW)):

74 Giving way when entering a road from a road-related area or adjacent land

(1) A driver entering a road from a road-related area, or adjacent land, without traffic lights or a stop sign, stop line, give way sign or give way line must give way to:

(a) any vehicle travelling on the road or turning into the road (except a vehicle turning right into the road from a road-related area or adjacent land), and

(b) any pedestrian on the road, and

(c) any vehicle or pedestrian on any road-related area that the driver crosses to enter the road, and

(d) for a driver entering the road from a road-related area—any pedestrian on the road-related area.

Offence provision.

Note 1. Adjacent land, give way line, stop line and traffic lights are defined in the dictionary, and road-related area is defined in rule 13.

Note 2. Adjacent land or a road-related area can include a driveway, service station or shopping centre—see the definitions of adjacent land and road-related area. Some shopping centres may include roads—see the definition of road in rule 12.

Note 3. Part 6 applies to the driver if there are traffic lights. Rule 68 applies to the driver if there is a stop sign or stop line, and rule 71 applies to the driver if there is a give way sign or give way line.

Note 4. For this rule, give way means the driver must slow down and, if necessary, stop to avoid a collision—see the definition in the dictionary.

(2) In this rule:

road does not include a road-related area.

Note. A road-related area includes any shoulder of a road—see rule 13.

Example.

Driver entering a road from a road-related area giving way to a pedestrian on the footpath and a vehicle on the road

In this example, vehicle B must give way to the pedestrian on the footpath and to vehicle A.

The rule makes no reference to a left-turn only sign. It does not say “without … left turn only sign”. Using the notes as an aid to interpretation, one sees that each traffic control device mentioned after “without” is the subject of another specific rule. If another specific rule covers the circumstance it is to be obeyed. But there is no other specific rule covering a left hand turn only sign when entering a road from a road related area.

63. I interpolate that if the factory complex, its internal carriageways and parking areas do not form a road related area, they are undoubtedly part of “adjacent land” for the purpose of Rule 74.

64. There appears to be a lacuna in the Rules which applied as at 16th November 2002 (the lacuna may have been filled in the Road Rules 2014 by the current version of Rule 26). The lacuna is surprising given the interplay between Rule 43(1) and Rule 29 requiring a driver turning left from a road related area onto a road to comply with any road markings, which are defined as being “on the surface of the road”. It seems strange that road markings apply, but left turn only signs do not. However, the Australian Road Rules and indeed the legislative system of traffic regulation generally as in force in 2002 were highly prescriptive and detailed, making it difficult to adopt any remedial mode of construction: compare Wentworth Securities Limited v Jones [1980] A.C. 74; Newcastle City Council v GIO General Ltd [1997] HCA 53; 1997 191 CLR 85 at 116; especially as this would require the adoption of a construction which imposes a penalty not clearly expressed in the statutory language.

65. I am driven to the conclusion that the left turn only sign within the curtilage of the factory complex was merely directory or advisory, rather than mandatory. Entering the intersection contrary to its “advice” did not expose Mrs Walsh to any penalty for contravention of any of the Australian Road Rules. It was not unlawful for her to cross the intersection to Tangerine St, as she attempted to do, by reason of the presence of the left turn only sign. Whether the factory complex is a road related area, and the sign installed by either BCC or RMS would make no difference to this conclusion.

Decision on Mr Zraika’s legal responsibility

66. Every driver on a public road owes a duty to exercise reasonable care in the control and management of her or his vehicle to avoid unnecessary risks of injury to other road users. In common with other well established categories of duty, the duty of the driver is owed not only to other road users as a class, but to each member of that class individually. It is important to bear in mind that the particular duty in question in the present case, is not a duty owed to Mrs Walsh, but rather a duty owed to Sharif, Mr Zraika’s then unborn son.

67. In assessing the question of breach of duty, Divisions 1 – 4 of Pt 1A Civil Liability Act 2002 (NSW) (“CLA”) apply: s 3B(2)(a) CLA. (Division 8 dealing with contributory negligence has no application in the circumstances of the present case).

68. As with all cases of negligence, the starting point for the purpose of s 5B must be the correct identification of the risk of harm against which the plaintiff says precautions ought to have been taken: Roads & Traffic Authority v Dederer [2007] HCA 42; 234 CLR 330 at 337[18] and 351[59]. It is a mistake to over define the risk of harm with considerations of great specificity drawn from the particular circumstances of the case at hand: Chapman v Hearse [1961] HCA 46; 106 CLR 112 at 120 – 121; Rosenberg v Percival [2001] HCA 18; 205 CLR 434 at [64]; Shaw v Thomas [2010] NSWCA 169; Aust Tort Reports 82-065 at [43]. In Vincent v Woolworths Limited [2015] NSWSC 435 I said at [26] – [27]:

It is difficult, however, to correctly identify the risk of injury without knowing something of what in fact happened. Gummow J spoke of the need to “accurately identify the actual risk of injury” faced by a plaintiff: Dederer at [59]. As I have said, correct identification of the risk seeks to elucidate “the true source of potential injury” (Dederer at [60]). In my judgment, these objects cannot be achieved without knowing what happened to the plaintiff. Indeed, every court always knows from the time the pleading is filed what the plaintiff said happened and what specific act or omission (failure to take precautions) she or he relies upon as constituting negligence.

It should be recognised that there is an implicit degree of artificiality in assessing breach, after the event, prospectively. But the air of artificiality becomes overwhelming if one eschews all hindsight when correctly, or accurately, identifying the risk of injury at the outset. In putting it this way I am not attempting to defy authority binding on me rather, I am attempting to apply it in the ordinary, everyday business of the trial court. It seems to me, reading Gummow J’s judgment in Dederer, especially from p 351 to 355, as a whole, the question of the proper identification of the risk is a precursor to the assessment of breach. That is to say it is a question logically anterior to, and separate from, the assessment of breach. At that preliminary point it is permissible, indeed necessary, to know what happened and what act or omission the plaintiff says constitutes negligence. These matters involve hindsight. When these things are known, one then embarks upon (returns to, as Gummow J put it: Dederer at [65]) “to the inquiry into the assessment of breach”. From this point on, all hindsight reasoning is impermissible because hindsight diverts attention from what reasonable care required in foresight, to whether in hindsight the defendant could have prevented the accident which befell the plaintiff: Dederer at [65]; Vairy at [128]; Neindorf at [97].

The requirement to have some regard to what happened to the plaintiff for the purpose of correctly identifying the risk of harm arises because the relevant risk is that which materialised: Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 at [7]; Port MacquarieHastings Council v Mooney [2014] NSWCA 156; 201 LGERA 314 at [53]. Applying this approach, I identify the risk of harm as a risk of Sharif being injured in a collision with a vehicle already in the intersection. The relevant acts or omissions said to constitute negligence, that is to say the failure to take precautions relied upon, are: overtaking the vehicles stationary at the stop line in lanes 2 and 3 by travelling through the left turn lane; failing to keep a proper lookout; failing to give way to Mrs Walsh’s utility; failing to take evasive action; and failing to apply his brakes to avoid the collision.

69. In assessing breach prospectively it is important to bear in mind that a driver is, generally speaking, entitled to expect that other road users will exercise ordinary care. At the same time, the inattention, inadvertence and even carelessness of others is almost always within reasonable prospect: Nagle v Rottnest Island Authority [1993] HCA 76; 177 CLR 423 at 431. The interaction of these competing considerations has received the frequent attention of the courts, perhaps, in this field of discourse, starting with Joseph Eva Limited v Reeves (1938) 2 K.B. 393.

70. There, the Court of Appeal for England and Wales held that a driver entering an intersection with the green light owed no duty of care to a driver present in the intersection in disobedience to a red light even if the former drove in breach of traffic regulations by overtaking “at cross-roads”. Their Lordships were of the view, however, that the former would owe a duty “to anyone lawfully on the crossing” (p 404).

71. In Trompp v Liddle (1941) 41 SR (NSW) 108, Sir Frederick Jordan CJ giving the judgment of the Court said (at p 109):

A driver is entitled to assume that other drivers will observe the rules of the road. This does not mean that he may drive at any pace he chooses so far as roads coming in on his left are concerned, or with complete indifference to the possibility of a car suddenly emerging from a side road as a result of accident, miscalculation, ignorance or recklessness. It means that it is not unreasonable for him to act on the assumption that other drivers are obeying the rules, unless there is something which should make him realise that they are not.

72. In Henderson v Hassel (1986) 3 MVR 359 Wood J (as the Chief Judge then was) said:

While it may be accepted that a defendant who enters an intersection with a green light in his favour will not always be blameless if he collides with another vehicle in the intersection, the traffic control signal is a powerful factor in his favour.

His Honour’s judgment provides a full, but succinct review of the relevant authorities including Sibley v Kais (1967) 118 CLR 424 at 427 where a unanimous Court said:

What amounts to "reasonable care" is, of course, a question of fact but to our mind, generally speaking, reasonable care requires each driver as he approaches the intersection to have his vehicle so far in hand that he can bring his vehicle to a halt or otherwise avoid an impact, should he find another vehicle approaching from his right or from his left in such a fashion that, if both vehicles continue, a collision may reasonably be expected.

Sibley did not involve an intersection controlled by traffic lights.

73. In another uncontrolled intersection case, South Australian Ambulance Transport Incorporated v Wahlheim [1948] HCA 32; 77 CLR 215 at p 228, Dixon J (as the Chief Justice then was) said:

… it does not follow that the driver of what may be called the right-hand vehicle always behaves reasonably in assuming without looking that in view of the common behaviour of motorists in consequence of this provision he may safely drive over the intersection. In any given case that must depend upon the circumstances. Whether a particular act or omission is unreasonable and amounts to contributory negligence will doubtless often depend upon the rules, conventional or statutory, which other traffic may safely be expected to observe. What traffic uniformly does may be dictated by statute; but whether conduct arising from reliance on the expectation that all traffic will so behave is reasonable must depend less upon the state of the law than upon the practice which is in fact set up by the law. For laws may speak in vain.

74. Wood J was clearly of the view that intersections controlled by traffic lights were covered by a particular rule derived from Reeves. Whilst acknowledging the many cases which had distinguished Reeves case his Honour concluded:

Whether there is a breach of the duty of care by the party with the right of passage will depend on all the other circumstances and prevailing conditions. This will include whether or not the other vehicle should have been seen by the driver with the green light, whether he ought reasonably to have anticipated that it would carry on, and whether once it was seen he could have done anything useful to avoid the accident.

Wood J observed that it is for the plaintiff to prove negligence in the defendant not seeing the other car.

75. Finally, the questions posed by s 5B for the assessment of breach of a duty of care are questions of fact “but they are questions of impression and degree which cannot be directly proved by evidence of what is too remote and what is not, or what is reasonably foreseeable and what is not”: Janesch v Coffey [1984] HCA 52; 155 CLR 549 at 571. These matters of impression and degree are informed by the normative standards embodied in the law of negligence, including the statutory purposes of the Civil Liability Act: compare Neindorf v Junkovic [2005] HCA 75; 80 ALJR 341 at [8] – [10]. Of these normative standards, in a case involving an intersection controlled by traffic lights, Hodgson JA said:

One relevant effect of those [normative standards] is that a person driving a motor vehicle on a public road should, as a reasonable person, appreciate that there is a significant risk of causing serious and perhaps catastrophic injury to other persons; and for that reason should, as a reasonable person, exercise quite a high degree of vigilance, especially in the presence of other traffic and in the vicinity of intersections.

(see Turkmani v Visvalingam [2009] NSWCA 211; 53 MVR 176 at [28]). I do not understand his Honour’s reference to “a quite high degree of vigilance” as applying any standard different from the standard of the reasonable person in the circumstances. What reasonable care requires may vary according to the magnitude of the risk: Bernie Port Authority v General Jones Pty Ltd [1994] HCA 13; 179 CLR 520 at 554.

76. Returning then to the assessment of the breach of duty, I reiterate that the relevant duty in question was not the duty that may have been owed to Mrs Walsh rather; it was the duty that was owed to the other occupants of the car Mr Zraika was driving. In deciding whether the risk was foreseeable, and incorporating the risk of harm I have identified at [68] above, the question becomes was there a reasonably foreseeable risk of Sharif being injured in a collision with a vehicle already in the intersection. I am satisfied that the risk was foreseeable in the sense discussed by Mason J (as his Honour then was) in Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 at 47 – 8.

77. The evidence establishes that Mr Zraika was familiar with this stretch of roadway. On the day of the accident, he and his wife were on their way to visit his parents (92.35T). His description of the topography of the roadway shows Mr Zraika’s familiarity with it (74.50 – 75.15T). In “A” phase northbound traffic on Woodville Rd receive a green light after the completion of “C” phase favouring traffic exiting Tangerine St. Although the numbers were small, a person familiar with the road ought to have known that vehicles exiting the driveway sometimes crossed to the westbound lane of Tangerine St or, more frequently, turned right into the northbound lanes of Woodville Rd. Moreover, Mr Zraika ought to have known that those movements out of the driveway tended to occur during the gap provided by Mr Lysaught’s “all red period of time within the traffic signal operation” (207.20T), that is, in the seconds before the re-ignition of the green light for northbound traffic. When he crossed into the left-hand lane to overtake the stationary vehicles ahead in lanes 2 and 3, he ought to have had in mind that any vehicle exiting the driveway could still be in the intersection at the moment the lights facing him turned green and may have been unsighted to him because of the larger vehicles ahead. I am satisfied the risk of collision was foreseeable to Mr Zraika when he crossed into the left hand lane to overtake the stationary traffic.

78. Section 5B(1)(b) requires me to consider whether the risk I have identified is “not insignificant”. With respect, I agree with Garling J that this primarily involves an assessment of the probability of the occurrence of the risk: Benic v State of New South Wales [2010] NSWSC 1039 at [101]. At the same time, the well-nigh inevitability of the materialisation of a trivial, transient injury may fall short of the statutory requirement of “not insignificant”: a risk of catastrophic injury having a very low probability of occurring may be not insignificant. However in general terms, a risk that is extremely unlikely to occur is insignificant; a risk that is very unlikely to occur may well be “not insignificant”. As with all matters going to the assessment of breach, matters of degree and impression, indeed judgment, will be important.

216. I am not persuaded that RMS breached its duty in about the middle of 1999 when it inspected the intersection.

Did the April 2002 traffic count make any difference?

217. The April 2002 traffic count was arranged in response to complaints made to RMS by a member of the public (Exhibit 3D(6)). Mrs Mills raised her concerns with RMS by letter dated 25th September 2001. They were threefold: first, the traffic turning right into Woodville Rd from the left eastbound lane of Tangerine St; secondly, traffic northbound on Woodville Rd making U-turns at the lights; and thirdly, traffic northbound on Woodville Rd turning right into the factory complex. She received no immediate response and followed up with a further letter on 16th April 2002. It was in response to her complaint however that the April 2002 traffic count was commissioned.

218. As I have already pointed out, the traffic count was carried out by external contractors on 3rd April 2002. As I said at [41] above, the traffic count demonstrates slightly more than one-quarter of all vehicles exiting the driveway across the intersection to either Tangerine St or turn right into Woodville Rd to head north. In the context in which the traffic count was organised, this must be regarded as an incidental finding. I reiterate, Mr Lysaught, who was the RMS officer who dealt with this matter said he was not concerned by the numbers because they represented a very small proportion of all vehicles using the intersection. But he acknowledged a “potential for crashes”.

219. Mr Lysaught replied to Ms Mills by letter dated 4th July 2002 (Exhibit 3D6). He informed her that RMS was “proposing to make changes to enhance safety at the intersection”. These included designating the left lane eastbound on Tangerine St, left turn only and installing no right turn signs for northbound vehicles in Woodville Rd, preventing them turning into the factory complex. The previous legal concerns having been overcome. It was decided not to install any No U-turn signs because such a manoeuvre was prohibited in any event and the installation of signs may engender confusion.

220. I infer that this work might have taken some time because Mr Lysaught wrote that RMS “is currently preparing to notify the owner/tenants of [the factory complex] of the proposed right turn ban”.

221. It is not apparent from this whether any express consideration was then given to the potentiality for crashes because of the relatively high proportion of vehicles exiting the driveway in disregard of the advisory sign of which RMS aware. True enough, Mr Lysaught, in common with Mr Hallan and Mr Hollyoak thought the numbers were small. But the proportion of drivers exiting that way, I have already found, was higher than one would expect if they were simply disobeying an obvious sign.

222. It is important to highlight this evidence of Mr Lysaught (192.35 – 193.5T):

Q. Now, given that the appropriate traffic management arrangement in your view was left out of this site, that is left turn only from this site, it would be a matter of concern, wouldn't it, that more than one quarter of vehicles observed to exit the site over a four hour period, which included the peak hours, did not do so?

A. It presents that potential for crashes, yes.

Q. And given that this is an observation of traffic made during the afternoon and evening peak hour, it would be likely that the traffic proceeding in both directions along Woodville Road would be heavy?

A. That's correct.

Q. And therefore the potential for crashes greater than at other times of the day?

A. I suppose it would be greater.

Mr Lysaught accepted that one explanation was that a proportion of the motorists did not see the sign (192.25 - .30T). Mr Lysaught also said there were discussions about this matter arising out of the traffic counts (198.5T). When asked if anything was done “rather than there being talk” Mr Lysaught replied (198.35T):

A. Well, the driveway access changed.

Q. When?

A. I don't know

223. When pressed about what might have been done between April and November 2002, it became very apparent that Mr Lysaught was talking about the work that was done in December as depicted in Exhibit 1D1.4. At 200.10T he said:

What I am saying is that as part of my role within RMS, as part of the background to the issues being raised, that intersection was under surveillance, we were monitoring it, and that there was an arrangement within the driveway which showed a raised concrete island with a supplementary sign‑posting, at the front of that island or the leading edge of that island, which supplemented the sign for all the traffic arrow to the left only. (sic)

He made it clear he was not talking about the painted road marking that was added later (200.35T).

224. Mr Lysaught identified the sign from Exhibit 1D1.4 (201.5T). He could not remember when the work was done (202.25T). I regard this as important evidence.

Assessment of breach after April 2002

225. A number of significant things changed after April 2002. The first is that the foreseeability of the risk of harm was clearer. Clear evidence is provided of the risk of crashes by the traffic count. Given the numbers the risk went from the theoretical to the real notwithstanding Mr Lysaught’s views about the adeptness of drivers at picking the “all red period”. Accepting that the numbers were low, the risk in my judgment had become, to the knowledge of RMS, not insignificant.

226. The balance required by s 5B(1)(c) has to be determined in the light of the lower standard fixed by s 43A(3). Moreover it is fundamental that this stage of the assessment of breach be undertaken looking forward as though the accident had not happened. Looking at the matter through the eyes of a responsible authority, having the traffic control powers conferred upon RMS, it was clear that there was an actual risk that the apparent traffic control measure of the single sign on the left was ineffective; that the numbers involved as a proportion of total users of the driveway suggested that it was not through sheer disobedience of what might have appeared to the drivers to be a traffic control device; that the risk was such that discussions were undertaken with other interested parties in relation to the matter; and a decision was made to take the steps that were not then taken until 16th December 2002.

227. Bearing in mind the lower standard, it is clear that RMS had made a decision to act to avert the risk by exercising its special statutory powers. Notwithstanding the s 42 considerations, it is clear that the decision must have been made around July 2002 when this matter was “on Mr Lysaught’s desk”.

228. Notwithstanding the persuasiveness of Mr Bastable’s evidence, given the apparent modest amount involved, and the some capacity to do smaller jobs quickly, I am satisfied that no authority having RMS’s traffic control powers could properly consider the omission to implement its decision over a period of 7 months, a reasonable exercise of the power. As I have said the decision was probably made in July 2002. Given the potential for what were in fact further crashes which could have involved serious injury no authority having RMS’s powers could regard waiting months rather than weeks to implement its decision a reasonable exercise of its powers.

229. To the extent they remain relevant, the s 5B(2) considerations favour a finding of “negligence”. The degree of probability of the risk occurring was not great, but the consequences may have been serious or catastrophic injury. The difficulty, inconvenience and expense of implementing its decision to act were even with its limited resources, modest. The social utility of RMS’s governmental functions does not serve, in the balancing exercise to displace these conclusions. I find that RMS was “negligent” in not erecting the additional sign within a few weeks of making its decision in July 2002 to exercise its powers.

Causation

230. I am satisfied on the balance of probabilities that RMS’s failure to implement its decision to erect the additional sign on the median strip was a necessary condition of the harm suffered by Sharif. As I have said, I am satisfied that Mrs Walsh looked for a sign. Had the second sign been in place she would have seen it and in my judgment she would have followed it (see [185] above).

231. There is no reason why the scope of RMS’s liability should not extend to the harm suffered by Sharif. The purpose of the exercise of its statutory powers it had decided upon was to obviate the risk of traffic conflicts resulting in collisions in the intersection. Mrs Walsh was negligent, but her negligence was not of a degree capable of severing the chain of causation between RMS’s breach and the harm suffered by Sharif. The statutory purpose for which the powers were conferred upon RMS are furthered by holding it liable in damages in circumstances where its breach of its common law duty to exercise reasonable care in the exercise of the powers in a necessary condition of the plaintiff’s personal injury.

Signalisation

232. For the reasons I have already given, I am not persuaded that RMS was “negligent” in failing to signalise the driveway leg of the intersection. This was always a proposal promoted by the developer for its own perceived commercial advantage. When it lost interest, it was never going to happen. It was a reasonable exercise of its powers for RMS to insist in the circumstances that the developer pay for any additional signalisation. The evidence of Mr Bastable in Exhibit 3D(4) and orally, which I have already referred to, persuade me that the s 43A(3) test for liability in relation to the failure to exercise its special statutory powers in relation to the installation of traffic signals cannot be satisfied in this case.

233. I should add that there is no doubt that this is a special statutory power within the meaning of s 43A; no traffic control light can be installed, otherwise than by or with the consent of RMS: s 87(4) Roads Act.

234. There is a final point in relation to the liability of BCC and RMS which should be mentioned again. At some stage after the accident the median strip, including the signs erected in December was removed. In place of the signs in December 2002, as I have said, a clear left turn only road marking was “installed” on the southern aspect of the driveway. There is no evidence about when this occurred or who authorised it. The inference is clear that it was done, as I have already said, to permit easier entry of 12.5 metre vehicles. I would infer that these changes were made with the consent of BCC as the consent authority. In drawing this inference, I rely upon the presumption of regularity. That this occurred does not detract from my decision on liability. The original left hand turn advisory sign is reinforced by the road marking on the driveway, which from the photographs, is obvious. This is to the same effect as the additional measures taken by RMS in December 2002.

Apportionment for contribution purposes

235. The principles informing the decision about apportionment for contribution purposes are well known. The relevant considerations relate to the respective culpability of each defendant liable and the causative potency in the circumstances of their respective act or omission constituting negligence.

236. It seems to me that the proper apportionment in this case should be as follows:

1. The Walsh parties, as to 50 per cent;

2. BCC, as to 25 per cent;

3. RMS, as to 25 per cent.

Mrs Walsh’s act in driving across the intersection was always fraught with risk. As an experienced driver she must have known she had a limited time to complete such a manoeuvre. If it was to be undertaken, it could not be undertaken hesitantly by inching across the intersection. This was the very type of manoeuvre that would bring her into conflict with any unsighted vehicle in the left turn lane northbound on Woodville Rd. Even if it was understandable that she missed the sign, as so many others apparently did, given her hesitancy about crossing the intersection, a reasonable driver in her position would have taken the easier and safer option of turning left, especially knowing that the underpass was only a short distance to the south.

237. The statutory powers of each of BCC and RMS were to be exercised, in part for the promotion of road safety, especially on main roads. But the part of each of them was less than the part of Mrs Walsh. They did not have the same degree of control over the circumstances of the collision as Mrs Walsh had. However, I have found that each of them fell short even of the attenuated s 43A(3) standard. This amounts to a finding that their negligence was of a very high degree. The causal of potency of Mrs Walsh’s negligence was much greater than that of either BCC or RMS, but their conduct evinces a greater degree of culpability.

Orders

1. Under Rule 28.3 Uniform Civil Procedure Rules 2005 (NSW) I order that the questions ordered to be decided separately be answered as follows:

Question 1: Did the third defendant owe the plaintiff a duty of care?

Answer:   Yes.

Question 2:   Did the fourth defendant owe the plaintiff a duty of care?

Answer:   Yes.

Question 3:   If the third defendant owed the plaintiff a duty of care was it breached?

Answer:   Yes.

Question 4:   If the fourth defendant owed the plaintiff a duty of care was it breached?

Answer:   Yes.

Question 5:   Was the third defendant’s breach a legal cause of the collision between the vehicle driven by Mrs Walsh and Mr Zraika on 16th November 2002.

Answer:   Yes.

Question 6:   Was the fourth defendant’s breach a legal cause of the collision between the vehicle driven by Mrs Walsh and Mr Zraika on 16th November 2002.

Answer:   Yes.

Question 7:   Did the fifth defendant breach of duty of care he owed to the plaintiff on 16th November 2002?

Answer:   No.

Question 8:   Was the fifth defendant’s breach a legal cause of the collision between his vehicle and the vehicle driven by Ms Walsh on 16th November 2002.

Answer:   Question does not arise.

Question 9:   If more than one defendant is negligent, in what proportions should legal responsibility be shared?

Answer:   The first and second defendants together as to 50 per cent;

The third defendant as to 25 per cent;

The fourth defendant as to 25 per cent.

2. Under Rule 28.4 Uniform Civil Procedure Rules, judgment for the fifth defendant.

3. Direct the parties to confer to agree upon what order as to costs should be made. Liberty to apply in respect of costs in the event they are unable to reach agreement about what order should follow.

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Decision last updated: 30 April 2015