Causation - on appeal
107 A plaintiff has the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation: CL Act, s 5E. As cross-claimants, Allianz and Woolworths were in the position of plaintiffs. It was necessary that the appellants prove the facts relevant to determining causation in accordance with s 5D of the CL Act.
108 At least on appeal, only factual causation (para (a) of s 5D(1)) was in issue. It was not contended that, if factual causation was established, scope of liability (para (b) in s 5D(1)) was not satisfied. Nor was it contended that, if factual causation was not established, this was "an exceptional case" within the meaning of s 5D(2).
109 "The harm" in factual causation in para (a) refers back to "particular harm" at the commencement of s 5D(1). Ordinarily the particular harm is the injury to the plaintiff, such as the injuries to Mr Rickard and Mr Wheeler. For present purposes the particular harm extended to the deaths of Mr Kelly and Mr Dennison; in practical terms, the happening of the accident.
110 The "necessary condition" test in s 5D(1)(a) takes up the "but for" test developed in the common law, there operating as a "negative criterion of causation" whereby if it could not be concluded on the balance of probabilities that the harm would not have happened but for the negligence, then it could not be concluded that the harm was caused by the negligence: March v E & M H Stramare Pty Ltd at 515-6; CAL (No 14) Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; (2009) 239 CLR 390 at [14]. As was said in Adeels Palace Pty Ltd v Moubarak at [55] -
" … as s 5D(1) shows, the 'but for' test is now to be (and has hitherto been seen to be) a necessary test of causation in all but the undefined group of exceptional cases contemplated by s 5D(2)."
111 Accordingly, the appellants had the onus of establishing that it was more probable than not that, but for the failure to place a "Water Over Road" sign 150 to 300 metres to the east of "Lyntods", the accident would not have happened.
112 Allianz and Woolworths submitted the trial judge should have found that Mr Kelly had observed the water over the road in time appropriately to reduce speed, and should not have left as an alternative that he had not observed the water over the road in time. They submitted that this finding should have been made, on the probabilities, from the trial judge's conclusions in relation to Mr Kelly's negligence that visibility was good and the water flowing across the road at "Lyntods" would have been obvious to Mr Kelly from a distance of 150 metres and certainly from 125 metres if he were keeping a proper lookout.
113 From there, Allianz and Woolworths submitted that the accident came about because Mr Kelly failed to appreciate that the water across the road constituted a hazard requiring that he slow his vehicle. They submitted that, on the probabilities, a "Water Over Road" sign at a point 150 to 300 metres to the east of "Lyntods" would have alerted Mr Kelly to the fact that the water across the road was a hazard, since that was the purpose of putting such a sign at the roadside, and that he would have slowed his vehicle. That his driving would have been changed by a sign at that location was said to be supported by -
evidence of Mr Wheeler to the effect that, although he was ordinarily a nervous passenger, he felt "comfortable" with Mr Kelly's driving, having experienced it for some time after they had first set out;
the fact that the accident occurred on the sweeping bend, from which it was suggested that Mr Kelly was alert because he took the bend; and
the fact that the bus was coming in the opposite directions, which it was said would have focussed Mr Kelly's attention on the road ahead and the water.
114 It was at this point that the submissions of Allianz and Woolworths and the submissions of Ms Kelly diverged. Ms Kelly submitted that the two alternatives were open, and that Mr Kelly's negligence could have been either in failing to see the water flowing across the road in time or in failing to appreciate that it constituted a hazard. She submitted that on either alternative a "Water Over Road" sign properly positioned would have alerted Mr Kelly, and would have changed his driving so that he slowed his vehicle at least to a speed at which aquaplaning would not have occurred. She adopted the suggested support for change in his driving.
115 While I do not think that it greatly affects what follows, I do not think that the trial judge should have found that Mr Kelly saw the water over the road in time appropriately to slow his vehicle. The submission of Allianz and Woolworths took up the trial judge's finding of obviousness to Mr Kelly if he were keeping a proper lookout but, other than by the suggested support, ignored whether he was in fact keeping a proper lookout. Mr Wheeler's comfort does not assist when Mr Kelly undoubtedly drove negligently at the particular time. Taking a sweeping bend is consistent with failure to see the water over the road, and the oncoming bus, if a focus of attention, may actually have diverted Mr Kelly's attention from the water over the road.
116 The submission also passed over the trial judge's finding (at [94]) that "a reasonable driver observing water flowing across the road, as has been described, would have recognised this as a hazard and reduced speed accordingly". Mr Kelly did not appropriately reduce speed. There is no proper basis for finding that he saw the water but did not recognise it as a hazard, in preference to finding that he did not see the water at all.
117 The appellants referred to evidence supporting the traffic engineers' agreement that a warning sign such as the "Water Over Road" sign had to be sufficiently far away from the hazard to enable an approaching driver appropriately to react, but close enough so that the driver would recognise the hazard when he or she came to it". At that level of generality, there was no dispute from the RTA. However, it was necessary for the appellants to go further and challenge the trial judge's view, expressed at [135] in relation to seeing the water but misjudging the situation, that a warning sign would not have made any difference. They submitted that it would have made a difference because it would have alerted Mr Kelly to the presence of the water over the road (Ms Kelly) or to the hazard it presented (all appellants), and he would have appropriately slowed his vehicle.
118 The RTA submitted that it was not known why Mr Kelly had failed appropriately to slow his vehicle. If he was attentive to the road, he must have seen the water and appreciated that it was a hazard; so either he was inattentive to the road, or he did see the water and appreciate the hazard but nonetheless drove at the speed he did. If he was inattentive to the road, he probably would not have seen a "Water Over Road" sign placed 150 to 300 metres from "Lyntods", and his driving would not have been altered by the presence of a sign. If he was attentive to the road and did see the water and appreciate that it was a hazard, but drove nonetheless at the speed he did, again his driving would not have been altered by the presence of a sign which told him no more than what he already knew. In either event, the RTA submitted, causation was not established. It submitted that there could be many reasons why Mr Kelly had either not seen the water across the road or not appreciated that it was a hazard, such as his attention being distracted by momentary sleepiness, or diverted to something in the paddocks beside the road or to adjustment of the vehicle's sound system.
119 The RTA's submissions differed from the trial judge's reasoning, and no appellant undertook a submission of increased risk and the risk coming home: it is not necessary to comment on the trial judge's approach in this respect. The RTA's submissions were not that there were conjectures of equal possibility, on one of which failure to have a properly positioned warning sign may have contributed to the accident (not seeing the water over the road in time: [133]) but on the other of which there was no causation (misjudging the situation: [135]). On the RTA's submissions, a finding of causation could not be made when it was not known why Mr Kelly had failed appropriately to slow his vehicle, but on either of the speculative alternatives causation could not be found.
120 The RTA's submissions are not persuasive, and the impediment to their acceptance seems also to present a difficulty for the trial judge's reasoning. The submissions leave out of account that a "Water Over Road" sign 150 to 300 metres to the east of "Lyntods" may have caught the attention of Mr Kelly, when otherwise he was not attentive to what lay ahead, or may have alerted him to the water over the road being a hazard. That was the purpose of such a sign, and the RTA did not contend that placing a "Water Over Road" sign 150 to 300 metres east of "Lyntods" would have been an empty exercise. That is not to say that, on the facts of this case, causation should be found. But the submissions are not an answer to those of Allianz and Woolworths and Ms Kelly, which sought to carry the intended effect of placement of a warning sign to an actual effect, on the probabilities, had a "Water Over Road" sign been in place 150 to 300 metres east of "Lyntods".
121 However, there is also an impediment to acceptance of the appellants' submissions. They failed to take account of the "Water Over Road" sign further to the east, some 624 to 774 metres further from "Lyntods" than where the judge found the sign should have been placed. Whether Mr Kelly's driving would have been changed by a sign 150 to 300 metres to the east of "Lyntods" called for regard to the fact that it was not changed by the sign 924 metres away. The water over the road at "Lyntods" was obvious to and recognisable as a hazard by a reasonable driver, who would reduce speed accordingly, and it was not a case of no warning sign at all.
122 At 100 kph it would have taken approximately 33 seconds for Mr Kelly to travel from where the sign was placed to where the water was over the road. It would have taken approximately 22 to 28 seconds to travel from where the sign was placed to where, on the judge's finding, it should have been placed.
123 The RTA submitted that, when Mr Kelly had not slowed his vehicle despite the warning sign, it could not be found on the balance of probabilities that he would have slowed his vehicle had the sign been some 624 to 774 metres and 22 to 28 seconds travelling time closer to "Lyntods". Rather, the RTA submitted, if Mr Kelly saw and took note of the "Water Over Road" sign 924 metres distant from "Lyntods", and did not encounter significant water over the road immediately thereafter, he would have remained alert to water over the road and the hazard it presented at least until less than 30 seconds later, he saw the obvious water across the road. The reasoning in its submissions earlier described then applied. Either Mr Kelly did not see and take note of the "Water Over Road" sign, or he saw it but it did not change his driving. The correct inference was that the same would have occurred in relation to a "Water Over Road" sign placed 150 to 300 metres from "Lyntods"; at the least, it could not be inferred that the differently placed sign would have changed Mr Kelly's driving.
124 The appellants sought to meet this by submitting that, beyond the proposition that a warning sign had to be close enough to the hazard that the driver would recognise the hazard when he or she came to it, expert evidence supported that 924 metres was too far away for that recognition. They referred to the trial judge's observations at [124], part of coming to the conclusion that placing the "Water Over Road" sign 924 metres to the east of "Lyntods" was so unreasonable that no road authority could properly consider it to be a reasonable exercise of its power to do so, that "[a] warning sign approximately a kilometre away from the specific hazard is unlikely to alert a driver to that hazard"; and to the trial judge's observation at [101], part of rejecting Mr Stuart-Smith's evidence concerning placement of the sign that a sign 924 metres to the east of "Lyntods" that "[f]ar from having a beneficial effect, such a sign was likely to mislead a motorist who would be looking for water across the road in proximity to the sign and might well think that no such hazard existed".
125 Before going to expert evidence, the appellants' reliance on the trial judge's observations last mentioned has difficulties. At those points in his reasons the trial judge was considering breach of duty. Likelihood or unlikelihood that a warning sign approximately a kilometre away from the specific hazard would alert a driver to that hazard went to reasonableness of placing the "Water Over Road" sign where it was placed. The question is different when addressing causation and taking account of the sign in fact in place. As was said in Adeels Palace Pty Ltd v Moubarak at [51], speaking of whether the presence of a security guard would have deterred a wrongdoer -
"[51] Nor was 'but for' causation established in these cases by observing that the relevant duty was to take reasonable care to prevent injury to patrons from the violent, quarrelsome or disorderly conduct of other persons. That is, the question of factual causation was not answered in these cases by pointing out that the relevant duty of care was to take reasonable steps to prevent violent assault, that each plaintiff was the victim of a violent assault, and that the damage sustained by the plaintiffs was "the very kind of thing" which the relevant duty obliged Adeels Palace to take reasonable steps to prevent. That observation may bear upon questions about scope of liability. Describing the injury as 'the very kind of thing' which was the subject of the duty must not be permitted to obscure the need to prove factual causation."
126 The appellants submitted that expert evidence denied the effectiveness of a "Water Over Road" sign 924 metres distant from the water over the road. They referred to evidence of the traffic engineers and of Mr McLellan, although Mr McLellan could not be regarded as an expert.
127 According to the Australian Standard, a "Water Over Road" sign should be used "to indicate that the road is trafficable with care although there is water over the road". The standard does not state where in relation to the water the sign should be placed. I have referred to the acceptance that it should be sufficiently close to the hazard that the driver would recognise the hazard when he or she came to it.
128 In a supplementary report Mr Keramidas said -
"The placement of hazard signs follows the general principles of traffic guidance, in that they should be placed far enough in advance of the hazard to allow for reaction by the driver, but not that far that the message is lost. In this particular case, given the road geometry and likely approach speeds a distance of 150 to 200 metres would be appropriate."
129 Mr Keramidas did not amplify his reference to the risk that the message might be lost.
130 Mr Stuart-Smith said something of longevity of the message in his report. His opinions included (the culvert is the dip) -
"20. Based on the evidence available to the author, having passed an earlier Water Over Road sign and having passed through water flowing over the road about 700 m east of the driveway and at other locations, Mr Kelly should have been forewarned about the possibility of water on the road. Notwithstanding this factor, even for an un-alerted river [sic: driver], there should have been ample time and distance to slow for the speed limit to a speed at which negotiation of the water was possible."
"Whilst the location at the culvert and the driveway were separated by a distance of about 700 m, the distance is only 25 seconds in travel time at the prevailing speed limit. It could be expected that a driver passing through water at the culvert would still have some alertness to the possibility of water on the road for the next 20 seconds, at which time the second flow would have been visible."
"The presence of Water Over Road sign about 900 m before the Lyntods driveway should have increased Mr Kelly's perception response time. The fact of having just passed over water flowing across the road about 20 seconds before observing the water at Lyntods should also have been sufficient to increase the alertness of Mr Kelly and reduce his likely perception response time."
131 Mr Keramidas provided a further supplementary report in which, commenting on Mr Stuart-Smith's opinions of proper location of a sign, he said -
"For westbound traffic however, the placement of an undersized hazard sign well in excess of 800 metres (probably closer to 900 metres) from the water flowing across the driveway would hardly fall within the principles of the Australian Standards, as the distance is up to five times the accepted distance for the placement of such hazard signs. In addition, it would be clear to a westbound driver that the hazard sign relates to water over the road at a point about 800 metres east of the driveway (which would not be visible from this location), and therefore having traversed the section of water 800 metres east of the driveway, there would be no indication that the sign actually is supposed to relate to a further hazard some 20 to 30 seconds down the road. In other words, if the second area of water flow over the roadway was visible from the point where the driver passes the hazard sign, then although not technically in accordance with the Standards, it could be accepted as a practical solution to placing multiple signs in close proximity. In this case however, given that the two water hazards across the roadway were not visible from the same point on the roadway, separate signs should be applied to each."
132 These statements were in connection with where a sign should be placed, and involved some different assumptions of distance and water over the road at the dip. It may be noted that Mr Keramidas (who accepted as a practical solution one sign in relation to two hazards if both hazards were visible) assumed that the driver traversed a section of water 800 metres away from the further hazard.
133 In the joint expert evidence the trial judge drew attention to Mr Stuart-Smith's opinion to the effect that the placement of the sign was reasonable in the circumstances, and the evidence continued -
"HIS HONOUR: As I understand the opinion of Mr Keramidas and Mr Jamieson, if a sign of that kind was to be effective it should have been positioned between about 150 to 200 metres away from the hazard identified, that is, "water over road". Is that right, Mr Keramidas?