Appeal Outcome: Appeal allowed - Roads and Traffic Authority v Royal - [2008] HCA 19 - HCA 2008 case summary

Appeal Outcome: Appeal allowed - Roads and Traffic Authority v Royal - [2008] HCA 19 - HCA 2008 case summary — Zoe

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4 April 2007 Grant ROYAL v George SMURTHWAITE & Anor Judgment 1 SANTOW JA: INTRODUCTION This appeal arises from a two-car motor vehicle collision occurring at an intersection of a busy four-lane highway in a rural area of New South Wales. The appellant, Mr Royal, collided with the first respondent, Mr Smurthwaite's car. Immediately before, Mr Smurthwaite, having first stopped at the stop sign at Bago Road, proceeded to drive across the Pacific Highway in a south-easterly direction at the area designated for such a crossing. Mr Royal was proceeding northwards along that highway, his cruise control set at 105 kph, when the collision occurred. 2 There is an issue on appeal as to whether the Roads and Traffic Authority of New South Wales ("RTA") should have been held liable as a joint tortfeasor, by reason of what the appellant contends was the negligent design of the crossing. 3 Phelan DCJ, the trial judge, concluded that the appellant was two-thirds liable in negligence for the serious injuries suffered by Mr Smurthwaite, whilst Mr Smurthwaite was held to be contributorily negligent to the extent of one-third. It is only Mr Royal who now challenges that apportionment though not that he was negligent, seeking to substitute 20:80 apportionment. 4 However, Mr Royal, in relation to his appeal from the dismissal of his cross-claim against the RTA, challenges the finding by the trial judge that the RTA, the second respondent, was not liable at all as a joint tortfeasor. Mr Royal seeks to substitute an order that the RTA contribute to Mr Royal 80% of the amount ordered to be paid by Mr Royal to Mr Smurthwaite, together with 80% of the costs of Mr Smurthwaite ordered to be paid by Mr Royal with respect to the trial. 5 As Basten JA puts it, whose judgment I have had the advantage of reading in draft, the overall effect of the appellant's challenge to the assessment of contributory negligence and to the RTA's liability would be, if successful "to reduce his liability to 4%, by claiming that the plaintiff should bear 80% of the responsibility for the accident and that the RTA should contribute 80% of his (the defendant's) proportion". 6 Much of the argument on appeal concerned the second matter of liability, namely, whether the RTA should be required to contribute the 80% above mentioned, as having been negligent in the design of the crossing. 7 Mr Royal's appeal against Mr Smurthwaite also extended to damages. The trial judge assessed damage at just over $1.3 million. The judgment in favour of Mr Smurthwaite, after allowing for one-third contributory negligence, became $871,019.50. The appellant contends that the trial judge erred in allowing past out-of-pocket expenses in the amount of $13,902.63, being the costs of a relative visiting the first respondent in hospital, contending that such allowance was prohibited by Chapter 5 and in particular s83 of the Motor Accident Compensation Act, 1999 (NSW) ("MACA"). 8 Mr Royal also contends that the trial judge erred in (a) allowing the wrong amount for economic loss, by basing it not on his actual earnings but on higher "comparable earnings" of tree-fallers employed by the company which took over his employer and who would thus have probably employed him but for his injury, so producing an amount " which was manifestly excessive in the circumstances "; and (b) in ordering Mr Royal to pay to Mr Smurthwaite the costs which Mr Smurthwaite was required to pay to the RTA with respect to the trial, such having been ordered by way of Bullock Order.

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SALIENT FACTS 9 The following outline of the events that happened is essentially undisputed, save where indicated in [14] below. 10 The first respondent was injured on 12 March 2001 in a motor vehicle accident at Herons Creek, a rural area of New South Wales. The first respondent was driving his motor vehicle in an easterly direction across the Pacific Highway from a position guarded by a stop sign at the intersection of Bago Road and the Pacific Highway. There was a "dip" on the Pacific Highway about 210 to 300 metres south of the intersection. The appellant was driving his motor vehicle north on the Pacific Highway. The vehicles collided at the RTA designed and constructed intersection crossing Pacific Highway. The first respondent suffered serious injury as a result of the collision. 11 As north-bound Pacific Highway traffic approached the intersection there were two principal lanes of travel. There was also provision for two south-bound lanes of traffic on the Pacific Highway with the north-and-south-bound traffic separated by a distance of about 250 metres. About 50-100 metres before the intersection a left-hand turn lane commenced to allow north-bound traffic to turn left into Bago Road. About 210 metres south of the intersection and 115 metres south of the point of impact, a right-hand turn lane commenced to allow north-bound traffic to turn right into Boyds Road (see figure 2 at page 10 of the report of Roger Stuart-Smith dated 11 April, 2003 at Blue, 737 and the parties' annotated diagram of the motor vehicle accident added to Blue, 328). Boyds Road was directly opposite Bago Road, joining the north-bound and south-bound carriageways. The impact occurred in the right-hand turn lane near to the mouth of Boyds Road; the point of impact is shown on Blue, 328 (hatched orange). 12 The second respondent RTA had the care, control and management of the roadway upon which the motor vehicle accident occurred. The second respondent had also redesigned the relevant intersection, the construction of the redesigned intersection being completed in about 1993 (Red, 32P). After this accident, some further, but not major adjustments were made to move the "stop" sign a little closer to Boyds Road to improve the vision from that sign of on-coming north-bound traffic. 13 Both drivers, Mr Royal and Mr Smurthwaite, were familiar with the road and intersection. Mr Smurthwaite in his vehicle first stopped at the stop sign before crossing, the stop sign being some 21 metres before the point of impact and at the crest of the hill at the intersection of the Highway with Bago Road. There appear to have been four vehicles on the highway in the vicinity of the intersection when Mr Smurthwaite arrived at it. 14 Mr Smurthwaite then set about crossing the through lanes of the Pacific Highway from Bago Road (intending to enter Boyds Road on the opposite side of the Highway). Visibility was good from the stop sign at Bago Road. However it was possible that certain highway traffic could obscure traffic in the other lanes, given the dip referred to in [10] above. Mr Royal was travelling north on the Highway. There were two north-bound lanes and a turning lane left into Bago Road approached via a long sweeping curve in the road and a right-hand turning lane into Boyds Road. The appellant was driving using cruise control set at 105 kph. There is a dispute as to whether Mr Royal just prior to the collision had been "cutting the corner" by driving into the right-hand turning lane (as the two other drivers Relf and Hubbard suggested), or whether he had swerved to avoid Mr Smurthwaite and then braked. Mr Royal collided head-on with the side of Mr Smurthwaite's vehicle, towards the rear door. 15 Mr Smurthwaite suffered serious injuries, including a profound head injury and major injuries to his right side, and hip, which required repeated surgery. He has restricted mobility and continuing pain in his hip and knee. He had, before the accident, worked as a tree-faller in the forestry industry nearby. 16 Mr Smurthwaite could give no explanation of why he proceeded in front of oncoming traffic from the stop sign in Bago Road. However, he had no recollection of the accident because of the injuries he suffered (Red, 56K). The trial judge speculated that Mr Smurthwaite might have assumed that Mr Royal, in merging into the right turn lane, would have to slow down significantly before he could turn right (Red, 57O), though also observing that this "scenario still posed … a risk of collision". 17 Senior Constable Bentley was the crash investigator for the incident. His photos are Exhibit 6 at Blue, 1220. These identify the appellant's skid marks one of which commenced some 25 metres before the point of impact and the other of which commenced 16 metres before that point.

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The primary judgment 18 There were two other drivers who gave evidence of what they witnessed. Mr Relf was a driver travelling behind Mr Royal along the Pacific Highway. Mr Hubbard was travelling behind Mr Smurthwaite. 19 The trial judge accepted Mr Relf's evidence as to Mr Royal's speed and driving behaviour (Red, 48K). He also accepted Mr Hubbard's account (which was consistent with Mr Relf, essentially to the effect that the appellant had been cutting the corner and braked too late to avoid the collision), noting that it accorded with all experts save for Mr Griffiths. 20 The expert evidence from Mr Hennessy (expert for Mr Smurthwaite), including his analysis of the skid marks on the road, confirmed the views of Mr Relf and Mr Hubbard as to the relevant events (Red, 55H). Only the expert, Mr Griffiths, (for the appellant) supported the appellant's version of events (Red, 55J). The other experts were Mr Keirnan (for the second respondent) and Mr Stewart-Smith (for the appellant) and Mr Johnson (for the first respondent). 21 The trial judge found that the overwhelming evidence was that the appellant was the primary cause of the accident (Red, 55P). The respondent was held to be contributorily negligent to the extent of one-third (Red, 585). 22 The appellant was described by the trial judge as having repeatedly contradicted himself as to when he had first seen the first respondent, which lane he was in and how he had reacted (Red, 55Q). The key variations in the accounts went to whether the appellant had been "cutting the corner" by driving in the right-hand turning lane (as Mr Hubbard and Mr Relf suggested), whether he had swerved into that lane to avoid the first respondent, and when he had first braked. 23 Given these contradictions, the trial judge considered he could place almost no reliance on the appellant's evidence (Red, 55S). 24 The trial judge held that the appellant could have avoided the accident in a number of different ways; in particular he should have deactivated cruise control earlier and applied his brakes (Red, 56C). The appellant also could have either gone behind or in front of the first respondent's car (as suggested by Mr Relf, the driver travelling behind the appellant along the Highway) (Red, 56F). 25 The trial judge observed that it was consistent with the evidence of Mr Hubbard that when the first respondent took off from his stationary position the appellant's car had not come into sight but was about to (Red, 56W). It may have been the case that there was nothing in his vision when the first respondent entered the intersection (Red, 57G). 26 The trial judge found that although the intersection was a known "black-spot" with a number of serious accidents including some fatalities and although the RTA had taken some (limited) steps to deal with the problem (Red, 58N), there was no negligence on its part which was causative of the accident (Red, 59H). 27 Significant issues as to damages were agreed between the parties (Red, 63 H). The trial judge accepted that the first respondent suffered from ongoing depression and required considerable ongoing nursing, as described by his wife (Red, 62H, P). 28 The trial judge made the following awards: · $280,000 damages (out of a maximum of $341,000) reflecting pain and suffering and reduced enjoyment of life (Red, 63K) (not challenged); · past economic loss for 172 weeks from 12 March 2001 as per Red, 63Q-Y; this is challenged as is future economic loss on the ground that the trial judge erred in wrongly allowing an increased amount for compensable earnings, based on the evidence of a Mrs Hoffman (who had acquired the tree falling business Bartletts which had, pre his accident, employed the first respondent); · domestic assistance for 195 weeks at 21 hours per week and continuing in the future at 21 hours per week (see Red, 64K) (not challenged); · past out of pocket expenses of $13,902.63 (Red, 64T) (challenged on the basis that these were wrongly allowed for amounts expended by a relation visiting and attending upon the first respondent when in hospital, on the basis that such an award was prohibited by Ch 5 and s83 of the MACA). 29 In dismissing the case against the RTA, the trial judge gave very limited reasons which I quote in full below: "There remains the case against the second defendant. The evidence I think clearly establishes that this part of the roadway was seen by the RTA as a 'black spot'. There had been a number of serious accidents, including some fatalities, over the period of time that the highway had been upgraded.

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Grounds of Appeal 32 As to the first respondent's claim against the appellant: (1) The trial judge erred in not finding that the first respondent was the principal cause of the subject motor vehicle accident. (2) The trial judge erred in finding that despite the first respondent entering onto a divided highway into the path of high-speed traffic including the appellant that he was only one third to blame for the subject motor vehicle accident. (3) The trial judge erred in wrongly concluding that the expert Mr Griffiths was the "lone piper" with regard to the interpretation of skid marks on the highway and their significance and ignored the evidence given by other witnesses including the experts in the case. (4) The trial judge erred in relying on the statements of witnesses Mr Rolf and Mr Hubbard which had been admitted for a limited purpose only and the trial judge failed to address in any way the difference between those statements and the witnesses' oral evidence. (5) The trial judge erred in allowing past out of pocket expenses in the amount of $13,902.63 (being the costs of a relative visiting the first respondent in hospital) which were prohibited by s83, MACA. (6) The trial judge erred in allowing the wrong amount for comparable earnings in his calculation for past and future economic loss which produced an amount which was manifestly excessive in the circumstances. (7) The trial judge erred in ordering the appellant to pay to the first respondent those costs which the first respondent was required to pay to the second respondent with respect to the trial. 33 As to the appellant's cross-claim against the second respondent the trial judge erred in failing to find the second respondent liable: (1) The trial judge failed to find that when the second respondent redesigned the subject intersection as a cross-intersection to enable traffic (including the first respondent) to directly cross the highway, that this made it foreseeably dangerous. (2) The trial judge failed to find that the second respondent knew that such an intersection was dangerous and failed to act to remedy it. (3) The trial judge failed to find that in view of the configuration of the subject intersection the second respondent should have redesigned the intersection to prevent persons such as the first respondent from attempting to directly cross the highway in the path of oncoming high speed traffic. (4) The trial judge failed to find that the physical layout of the intersection designed and maintained by the second respondent led the first respondent and/or the appellant to misjudge their situations and caused or contributed to the subject collision. 34 Further, the trial judge erred in failing to give adequate reasons for dismissing the appellant's cross claim against the first respondent. 35 In summary, the appellant also challenges the addition of $13,902.63 awarded for out of pocket expenses, seeks reduced earnings figures for the calculation of economic loss (with superannuation reduced accordingly), seeks a reassessment of contributory negligence by increasing it to 80%, seeks to render the RTA a joint tortfeasor to 80% and seeks modified costs orders.

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DISPOSITION Appellant's appeal relating to contributory negligence 36 I consider that the principal issue in this appeal is not whether there is any basis for reapportioning liability as between Mr Royal and Mr Smurthwaite from the two-thirds/one-third determined by the trial judge. There is as I will explain, no basis for doing so as the evidence clearly enough reveals. I refer here first to the admissions of Mr Royal under cross-examination carefully recorded by the trial judge. These, coupled with the evidence of Mr Relf and Mr Hubbard, leave no basis for reapportionment in terms of the causal potency of the contributions of each of Messrs Royal and Smurthwaite to the accident. But in so concluding, I put to one side the RTA. It must be remembered that Mr Smurthwaite does not seek to challenge the attribution to him of one-third responsibility in contributory negligence. It is the appellant that seeks to do so, by increasing it to 80%. But because the appellant concentrates much of his attack upon the exoneration of the RTA from any causal responsibility for the accident, that issue must be squarely faced. However, before doing so, I need to consider more closely the role of Mr Royal in the accident. 37 I do so, bearing in mind the deference required to findings on apportionment (see, for example, Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529) though a lesser deference is required to a finding of contributory negligence (Ghunaim v Bart [2004] NSWCA 28). The only real basis put forward by Mr Royal as appellant for disturbing the apportionment against him was his reliance on the submission that the maximum available time for him to act or react was only 2.8 to 3.5 seconds. Mr Royal relies on this to mitigate if not remove any criticism of his driving behaviour. 38 That submission was based upon Senior Constable Bentley timing vehicles crossing the intersection and obtaining a range of 2.8 to 3.5 seconds. The expert Mr Griffiths similarly timed the vehicles crossing the intersection and obtained a range of 3.0 to 3.5 seconds. From this, Mr Royal argues that with Mr Smurthwaite's vehicle travelling much slower than his, the opportunity and ability to either stop, slow or swerve available to Mr Smurthwaite was much greater than to him. The appellant complains that the trial judge "did not seem to address that in his judgment either but simply concluded, on the basis of the Appellant's inconsistencies in his evidence, his insistence of his right of way and his failure to de-activate cruise control earlier (within the time frame) that this driving behaviour meant that he was largely responsible for the accident". It is said that "this with respect ignores the grossly negligent behaviour of the First Respondent which was the immediate source of the potential collision" (Orange, 26). 39 Based upon this time dimension, the appellant then seeks to refute the trial judge's conclusions set out below, namely that the appellant: (a) should have deactivated cruise control long before he did; (b) should have applied the brakes; (c) could have gone round behind Mr Smurthwaite; and (d) could probably have gone round in front of Mr Smurthwaite if he had continued on. 40 The conclusion, quoted below, then introduces the RTA as the source of "the real culprit", being "the road geometry", though interestingly the focus seems to be on Mr Smurthwaite being misled by the road geometry; that hardly exculpates Mr Royal. No doubt this reflected the appellant's forensic dilemma. Challenging the appellant's responsibility at all suggested inconsistency. For how then could the appellant establish in the alternative a shared liability or responsibility between himself on the one hand and the RTA on the other? 41 I set out the relevant part of the submission below: "The real culprit is the road geometry. The intersection being at a crest or gradient, with approaching highway traffic rounding a curve and also travelling through a dip, meant that the intersection's physical layout created a real potential for misjudgement to occur. Misjudgement is consistent with and explanatory of the First Respondent being an experienced driver but making the gross elementary mistake of driving across the face of high speed oncoming traffic. Causatively, some deception must have been in play and the road geometry is the culprit." 42 The appellant's challenge has to somehow overcome the concessions in cross-examination elicited from Mr Royal and the findings which result from those concessions. The appellant attempted to do so by hypothesising the timeframe limited to 2.8 to 3.5 seconds to which I have referred. The fundamental problem for the appellant is two-fold. First the findings against him were based upon what he conceded in cross-examination. Second, the timeframe was never reliably established to be no more than 3.5 seconds. 43 I shall start with the concessions made by Mr Royal after a lengthy cross-examination, parts of which are quoted by the trial judge; Red, 37-47. That cross-examination concedes that "had you not insisted upon your right of way and had you accepted that cruise control ought to be deactivated you could simply have pulled up before you got to the intersection" (Black T, 355N-P). That concession was preceded by Mr Royal accepting that doing the best he could, he saw Mr Smurthwaite's vehicle move off (from the stop sign) when Mr Royal was about 150 metres back from the intersection (Black T, 355J-M). 44 He then concedes that he was at the critical time in the right-hand turn lane (Black T, 356I-J), being the turning lane for turning right into Boyds Road. That was in breach of the road rules since his intention was to cut the corner trying to straighten the curve in the road. This Mr Relf's evidence confirmed, based upon his observation from his car just behind Mr Royal; Red, 50T and Mr Relf's examination in chief Black T, 100U-Y, 101X-102V and 102Q-T ("I'd describe it as straightening the road, like I mean there's bends in the road and to straighten the road out"). Mr Royal was all the time maintaining his speed at around 105 to 110 kph in an area where the speed limit was 100 kph and the recommended speed given the presence of the dangerous intersection was 80 kph. Mr Relf was some three to four seconds behind Mr Royal and had a clear view of him (Black T, 102C-E). Mr Relf estimated Mr Royal's speed at around 110 kph; Red, 49M. As the trial judge observes, Mr Royal conceded he knew that to use the right-hand turn lane as if he was going to travel straight ahead was something he was not entitled to do (Red, 47L-N). 45 The earlier stated concession bore out his capacity to have pulled up before he arrived at the intersection and thus to have obviated the collision. This, coupled with his insistence on maintaining cruise control for fuel economy and insisting on his right-of-way, were at odds with any inference one might draw that the time available to him to avoid the accident precluded the very thing that he considered he could have done, namely pulling up before the intersection and before the collision. 46 But in any event, as the written submissions of the first respondent demonstrate, there was evidence in support of a longer period than 2.8 to 3.5 seconds to take avoidance action. Although there was some dispute about the expert Mr Johnson's calculation of 4.6 seconds, based on the acceleration factor assumed by him, there was also evidence of the other driver Mr Hubbard who had observed Mr Smurthwaite and Mr Royal. Mr Hubbard, from his vehicle behind Mr Smurthwaite, gave evidence that Mr Royal travelled virtually the full length of the right-hand turning lane in the time it took Mr Smurthwaite to cross to where he was hit (Black T, 132D-F). Given that (i) the right-hand turning lane was some 180-200 metres in length, and (ii) Mr Royal was travelling at approximately 29 metres per second, this would result in a longer time of some 5 to 6.5 seconds. 47 Indeed Mr Royal agreed in cross-examination that if he assumed, as would be the case, that at 105 kph he would take 6.8 seconds to travel 200 metres at the time Mr Smurthwaite moved off it would have taken about 4.6 seconds "may be a little more" for him to reach the point of impact (Black T, 346U-W). The 200 metres was derived from the fact that approximately 200 metres south of the intersection the roadway widened to form the dedicated turn bay for right-turning traffic and 150 metres for the left-turning traffic. Mr Royal conceded that he overtook some vehicles some distance short of that left-turning point using up around 50 metres (Black T, 345U-346S). The upshot of that evidence was that he conceded that he was about 150 metres back from the intersection when he first saw Mr Smurthwaite's vehicle (Black T, 355J-M). 48 The result is that there was evidence available to permit an inference that the appellant had 4.6 to 6.5 seconds to take action to avoid the collision, this being as the first respondent points out, implicit in the trial judge's reasons that he accepted that period of time. 49 This combination of Mr Royal's concessions and Mr Relf's evidence, accepted as reliable, from his observations of Mr Royal, made inevitable a finding that Mr Royal was primarily at fault for the accident. 50 Then there was the evidence from Mr Hubbard, also described by the trial judge as a careful and accurate witness and one, moreover, familiar with the area. He was able to add his observations of Mr Smurthwaite from his position behind Mr Smurthwaite coming to the stop sign in Bago Road. He observed the following: (a) As he was approaching the intersection he saw a green station-wagon (Mr Smurthwaite's) stopped at the stop sign waiting to cross the Highway (Black T, 119R-S); (b) Just after he could first see Mr Smurthwaite's green station-wagon starting to move off (Black, T, 119T-U), he observed what he described as a "second white car", identified as Mr Royal's, in the right-hand turning lane (Black T, 120U-W); (c) He then noticed the vehicle described as "a white vehicle", being Mr Royal's, "braking" and "the bonnet dipped under brakes", which "then … locked up" (Black T, 121H-K); (d) He observed the bonnet "dipped under brakes and it virtually immediately locked up and skidded virtually in a straight line and hit the green station-wagon" (Black T, 121P-R); (e) That vehicle (Mr Royal's) was not observed at any time to swerve or move to the left or right (Black T, 121R-T); 51 Against this, it was admitted that the trial judge quoted from Mr Hubbard's statement (Red, 53V-54S), in circumstances where the statement was only admitted on a limited basis, namely insofar as it coincided with evidence given in court (Black T, 475H-476E). However, it will be apparent that, as in the case of Mr Relf, that Mr Hubbard's oral evidence in court did coincide in the relevant respects with the parts of the statement relied upon against the appellant. 52 Mr Relf's evidence on the absence of swerve or steer by Mr Royal's car so far as relied upon by the trial judge (Red, 51L-Q, 51P, 51X and 52E), was first described in the statement of Mr Relf. But then it was elaborated in both his evidence in chief and in cross-examination (see in particular Black T, 104R). It was not disputed that Mr Relf was three to four seconds behind Mr Royal. Insofar as the trial judge at Red, 52M-53K gave a further synthesis of what was said by Mr Relf, this was not relevantly material since it dealt with what happened after the collision. Moreover there was independent evidence supporting Mr Relf's opinion that the intersection was "bad" while Mr Royal asserted that the intersection was "dangerous". Moreover Constable Bentley gave evidence to the effect that there was ample opportunity to cross the Highway from west to east if one observed the traffic properly (Black T, 84H-T). 53 I should refer here to the observations of the trial judge at Red, 57K-T: "If a driver proceeding north was in the dip, the plaintiff said it was safe to move across. That is consistent with what took place and the explanation that I am examining.

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Appellant's appeal against the dismissal of his cross-claim against the RTA 55 This aspect of the case concerns only Mr Royal and the RTA, as Mr Smurthwaite has not sought to disturb the trial judge's decision in relation to the lack of liability on the RTA's part. That affects the consequences of any finding against the RTA, being limited to so much of the liability as is ultimately to be apportioned to Mr Royal. I have earlier concluded that, as between Mr Royal and Mr Smurthwaite, the two thirds/one third liability attributed by the trial judge should not be disturbed. Thus the effect of any determination that the RTA must contribute as a joint tortfeasor has implications only as to the two-third's liability earlier found against Mr Royal. It may also bear upon the making of the Bullock Order. 56 I have earlier quoted the only part of the judgment which deals with the RTA's position. At a high level of generality, the evidence was to the effect that the RTA saw this area as a "black spot" and could be taken to be aware that there had been a number of serious accidents including some fatalities, over the period of time that the Highway had been upgraded (presumably from 1993). The RTA had taken some steps to deal with the problem based upon its perception of the problem being the difficulty of a driver stopped in Bago Road facing east at the intersection being aware of traffic to his or her right behind other cars proceeding north along the Highway, particularly in the left-hand lane. The trial judge concluded, presumably based upon what he saw as a failure to demonstrate causation, that he "was not satisfied that the accident represented a failure by the RTA in the circumstances of this case". The reasons were thus conclusionary and extremely brief, leading to the appellant's contention that they were inadequate. For reasons which I develop below, I conclude that the appellant's submissions on this aspect should be accepted. This has a consequential effect so far as the two-thirds liability attributed to the appellant is concerned but does not affect the one-third liability attributed to Mr Smurthwaite. 57 I consider that the first proposition, though stated in conclusionary terms by the trial judge, was amply made out by the evidence, namely that this part of the roadway was seen by the RTA as a "black spot". The accident statistics bore that out and include a number of serious accidents. The primary evidence for this can be found in the RTA's own expert's report, that by Mr Keirnan under the heading "Crash History" at para 6 of his report of 23 November 2003. That crash history deals with crashes recorded as occurring at the intersection of Pacific Highway and Bago Road between December 1993 and March 2001; that is, from the time of the dual carriageway construction to the date of the present accident. Drawing upon an RTA document included as appendix 9 to the report, that crash history is characterised as follows: "Details of crashes recorded as occurring at the intersection of Pacific Highway and Bago Road between December 1993 and March 2001, ie, since dual carriageway construction and this crash, are tabulated on an RTA document included as Appendix 9.

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Because of the significant number of casualty crashes over a period of 10 years, the RTA have examined possible improvements, and modifications to traffic control devices have been carried out at the intersection." (Blue, 1117-8) 58 Under factors contributing to the crash, the analysis from the statistics was to the effect that "driver causes were most likely the dominating contributing factors to the crash", with "driver error" being subdivided into "direct causes" and "indirect causes". Under "direct causes" appears "improper lookout and/or inattention (unaware of the defendant's vehicle)", with also "improper driving technique (allegedly cutting the corner)" and "improper evasive action" and "speed above the 85 kph advisory speed". This derives from a publication called "Aust Roads Publications" Part 4 'road crashes' 1988. It describes casualty accident rates on rural roads as being a result of higher speeds and intersections in rural areas, exceeding those in urban areas. The resultant statistic was a casualty accident rate of 5.1 per 10 million entering vehicles (Blue, 1119-1120). This reflected some 20 crashes over 8 years, as borne out by the crash history in the separate report by Mr Griffiths (Blue, 1123). 59 Under the heading "Improvements at the Intersection" (Blue, 1121) reference is made to improvements falling short of any radical redesign, directed more to maximising the sight distance for eastbound drivers before they entered the intersection, recognising that eastbound drivers were most frequently at fault. The improvements included "to place the stop sign holding line closer to the Pacific Highway travel lanes, and thereby reduce the Highway crossing travel distance and exposure"; that step was however taken only after the date of this accident. 60 Mr Keirnan nevertheless concluded that, "irrespective of the circumstances of this accident, there was ample time for eastbound Bago Road drivers to view vehicles approaching from the right, wait for a suitable gap, and move the vehicle from the Bago Road Stop Sign and cross the north-bound lanes of the Pacific Highway with safety" (Blue, 1121O). 61 Under the heading "Intersection Design Assessment" Mr Keirnan notes that he was not provided with an accident history between 1981 and 1993 before the dual carriageway was completed. However, I would interpolate that making a dual carriageway out of a single carriageway must have increased the volume of traffic along Pacific Highway and thus have accentuated the risk of accidents. This is more especially so when you have, as here, a T-intersection between a rural road and a two-lane divided carriageway, with no significant improvements between 1993 and 2001 in the "high number of similar 'crossing' crashes because of highway speed 'fatalities'" (Blue, 1122J-K). 62 Instead of constructing what Mr Keirnan described as "intersection design options" consisting of the much safer "left-right staggered 'T' treatment", as described below, lesser improvements left the two-stage crossing as built and could be described as minor. A prime feature of these lesser improvements was a warning to "Bago Road traffic not to accidentally turn into oncoming traffic on each carriageway", given "the long distance between the dual carriageways" (Blue, 1123F). 63 So far as the "staggered 'T' intersection" was concerned, this was recommended in the event there should be a "a relatively high volume of traffic at the intersection and/or … of the physical constraints to safe entry". Under that option "eastbound traffic would make a left turn on to the north-bound carriageway and then merge across the travelling lanes to a right-turn lane some distance to the north" (Blue, 1123J-L). 64 No cost estimates are given in relation to the staggered "T" treatment. Mr Keirnan states as his conclusion, "On the information available to me it would appear that the two-stage crossing would have been adequate at the time when the design was carried out"; being 1993 (Blue, 1123K). 65 Importantly, Mr Keirnan in commenting on the report of Road Safety Solutions made by Mr Griffiths, cites the following from that report: "Michael Griffiths concluded that there were no obvious road environment reasons for these crashes. But he formed a view that eastbound drivers who do not carefully observe highway and traffic for a sufficient length of time, may not see vehicles that are obscured by vehicles in the adjoining lane because of the curved approach. I agree the curved approach is probably a factor." (Blue, 1123P-S) [emphasis added] 66 Mr Griffiths also considered that a further warning was required for eastbound drivers to spell out that they are "about to cross a divided freeway where vehicles may be travelling at high speed" (Blue, 1124C). 67 He then refers to Mr Griffith's recommendation of a modification of the intersection by stepping (staggered 'T') and then to provide slip lanes at highway speed for exit at a 'T' intersection. He states "this option was discussed earlier in the report and it is agreed that it is safer than a direct cross intersection" (Blue, 1124G-H). I consider that assessment of some importance, given the known character of that crossing to the RTA as a "black spot". 68 While Mr Johnston's report is then referred to, more relevant is the traffic engineering report of Mr Stuart-Smith, referred to at Blue, 1125. He too quotes the crash statistics and records as his conclusion "such a crash history is indicative of endemic problems at the site." He then adds, "From a road safety perspective, this rate [of accidents] should be considered to be unacceptable for an intersection constructed in late 1993." 69 In referring to visibility, Mr Stuart-Smith is quoted as setting out in his report "the published Austroads & RTA road design guidelines and records departures from these guidelines". Relevantly this included "approach sight distance (ASD) and entry sight distance (ESD), but he agreed that safe intersection sight distance (SISD) satisfies the guidelines" (Blue, 1126N-O). 70 Mr Keirnan then refers to Mr Stuart-Smith's conclusion that "the road alignment is not in accordance with current high speed design", and states as Mr Keirnan's own opinion that "these departures were not relevant to the crash". Insofar as there was a suppressed premise, in the trial judge's brief reasons I suspect that was it. However, as I later explain, that conclusion has to be re-assessed in light of the concessions Mr Keirnan later made in cross-examination. 71 In stating his observation of the scene at the site inspection, he made the following observation: "And if you 'stop' and 'look' there is a clear view of approaching vehicles. A four second gap was all that was required to cross safely. I do not agree that any additional signs were required particularly when vehicles are required to 'stop' and the plaintiff is said to have stopped". 72 Mr Keirnan's overall opinion is stated at Blue, 1127O as follows: "The RTA have upgraded the Pacific Highway and the intersection with Bago Road as traffic has increased over the past twenty years. With the information available to me, I consider that the upgrade process of road design, construction and traffic management has been sound, and in accordance with accepted practice." He then states that "Analysis of the crash indicates it was driver inattention that was the most significant factor contributing to the crash. No typical road environment factor could be identified. But the curved highway approach may have reduced eastbound driver's ability to anticipate safe gaps in the traffic." (Blue, 1128F-G) 73 He then adds this, somewhat inconsistently with his earlier conclusion. "I consider that the most recent easterly movement of the stop sign holding line at Bago Road will reduce the crossing exposure time and probably reduce accidents". This was because that most recent movement of the stop sign was an improvement albeit limited. It was an improvement readily capable of being made and had not been made before the accident. What was thereby recognised is that there was a visibility problem. It was not one that made any particular accident inevitable; rather it made accidents of the driver inattention type inevitable as a statistical probability, with the rate estimated at five in 10 million. 74 In Mr Keirnan's earlier report of 7 April 2004 there is a concession that there were visual difficulties associated with the judgment of positions and speeds of north-bound vehicles on the Highway as they pass around the curve and approach the crest on which the intersection was situated. Mr Keirnan acknowledged that moving the stop signs and holding line in Bago Road to the east after the accident did improve visibility aspects for Bago Road east-bound drivers such as Mr Smurthwaite (Blue, 610-617). That bears directly on causation as does his evidence below in cross-examination. 75 The relevant cross-examination of Mr Kiernan appears at Black, 589E-640K. 76 That cross-examination culminates in these concessions finally made by Mr Keirnan: Q. Well you say on page 18, in paragraph 1, 'Similarly it is desirable to avoid cross intersections.' That's what you say? A. Yes, well that's an accepted fact.

[38]

Q. So my previous question was in circumstances where on its face it appears that the cost of the staggered intersection would be less and there was a statistical certainty of high speed crossing crashes it would have been more prudent to choose the staggered t-intersection? A. Well it may have been shall we say an option but here are other things to consider, one of them possibly is the inconvenience to residents being having to travel distances and then turn back. I don't know. There's acquisition costs and those sort of things." 80 He then attempts to retreat from that concession at Black, 631D-F where he says, "I'm saying that if I was there in 1993 or 1990 when the design was done I wouldn't have thought that a staggered t-intersection was appropriate here". He makes the further assertion that the "intersection was built in accordance with normal requirements". He conceded though that "a stop sign just isn't going to always work". Later, he concedes that in 1993 a decision was taken to retain the existing alignment. He is then pressed about what he says in his report to the effect that "the curved highway approach may have reduced eastbound drivers' ability to anticipate safe gaps in traffic". Here he concedes "yes, the curved roadway is, seems to be a factor which I didn't consider it to be when I first went to the site" (Black, 637M). 81 He then concedes that judging the speed of approaching vehicles always has some difficulty and specifically at the subject intersection, a fact that existed prior to reconstruction in 1993 (Black, 637T-638B) when there was only one northbound lane and which, as a matter of common sense, would in my view have been exacerbated when there were two lanes carrying an increase in traffic volumes at high speed. 82 At Black, 638M-P he concedes in relation to Mr Stuart-Smith's report, that the staggered T-intersections are a safer form of intersection, having earlier acknowledged the visual difficulties. He adds that making the traffic one-way rather than two-way would also have improved matters (Black, 638D-F). 83 Finally, at Black, 640E, he first states that he would not have considered it foreseeable in 1993 that the reconstruction of Bago Road intersection from a rural two-lane road would have been a safety problem and that he himself wouldn't have picked it up. But then there is the following highly significant exchange (Black, 640I-K): "Q. Is this the case that you think that there was this massive project and along the way little intersections such as Bago Road was simply ignored in the process? A. No, they weren't ignored. It was just a case of a design was required for duplication. There was an opportunity to retain the existing carriageway and they took it." 84 I need now to turn to look more closely at the history of the construction of this intersection. Prior to 1993, Bago Road met the Pacific Highway at a T-intersection. Traffic could turn left from Bago Road and head north in the left-bound lane of the Pacific Highway which was then a two-lane highway with one lane of travel in each direction. Traffic could also turn right from Bago Road and head south after having crossed only one lane of traffic. In 1993 as I have said, the RTA re-designed that intersection. It did not, however, change the geometry of the intersection. Bago Road met the Pacific Highway at a crest. For approaching Pacific Highway traffic travelling north, there was a right-hand curve and a dip in the highway south of the intersection. I would accept that this configuration, as the appellant contends, created a foreseeable problem for the observation of traffic travelling north by those vehicles exiting Bago Road. It can be taken too that those physical features must have been known to the RTA before the reconfiguration of the intersection in 1993, but neither the crest nor the curve were changed at all in the reconstruction. 85 The 1993 reconstruction saw the RTA, instead of choosing the staggered T-intersection, requiring traffic wishing to travel south from Bago Road to proceed across two fast moving lanes of traffic and then travelling 250 metres on the newly constructed Boyds Road to turn right onto the newly constructed south-bound carriageway. This required vehicles travelling east from Bago Road to cross the path of two lanes of high-speed through traffic. It gave rise to a statistical inevitability of a proportion of cross vehicle crashes, as demonstrated by the statistics to which I have earlier referred. While it does not make the present accident inevitable it did materially contribute to its occurrence, by creating a heightened risk of such an accident. 86 As to cost, further north from the Bago Road intersection, the distance between the north-bound carriageway and the new south-bound carriageway was considerably less. It is therefore reasonable to infer that the cost of the connecting roadway would likely have been correspondingly less; that is to say it is at least plausible that constructing the safer staggered T-intersection would have cost less than what was constructed. Concededly this conclusion remains contestable. But the evidentiary onus as to lesser cost had shifted to the RTA, who provided no evidence to the contrary. Nor was there any evidence from the RTA to establish that, even were it to cost less for this intersection to set up a staggered T-intersection, there would be other crossings of similar kind scattered throughout the state that would have made the cost much more expensive cumulatively. Absent such evidence, it is not a proposition that is self-evident. Clearly, in 1993 the RTA had the two options to which Mr Keirnan referred. There is no suggestion to substantiate in any way that the cost would have been significantly greater to have chosen the staggered T-intersection as against the less safe option that was adopted. 87 The adverse traffic history started to manifest itself almost immediately after 1993 in accidents. These by 2003 amounted to 20 vehicle crashes or more. Yet response by the RTA was minimal. "Stop ahead" and "Stop" signs had been installed in or after 1997 as also painted transfer pavement bars. These were installed in 1997 in Bago Road. They were to slow and warn traffic coming up the rise in Bago Road heading towards the intersection. But those changes did not really grapple with the danger of vehicles exiting Bago Road and crossing the path of several lanes of fast moving oncoming traffic to get to Boyds Road on the other side. 88 In addition, in February 1999 the north-bound right-hand turn lane had been constructed and some trees cleared on the eastern side of the north-bound carriageway. This again did little if anything to alleviate the safety problems faced by vehicles exiting Bago Road to cross the Highway in the face of oncoming traffic. Indeed it made it, on one view, more dangerous. This is because once the north-bound right-hand turn lane was constructed, the Bago Road vehicles had to cross that lane as well to reach the other side of the Pacific Highway. So despite the RTA being alive to the problem with sight distances in 1997, nothing further was done until after the present accident and then only to move the stop sign further forward. 89 The relevant principles applicable to authorities such as the RTA in relation to the design and construction of roads are set out by Gaudron, McHugh and Gummow JJ in Brodie v Singleton Shire Council (2001) 106 CLR 512 in the paragraphs below: "[150] Authorities having statutory powers of the nature of those conferred... upon the present respondents to design or construct roads, or carry out works or repairs upon them, are obliged to take reasonable care that their exercise of or failure to exercise those powers does not create a foreseeable risk of harm to a class of persons (road users) which includes the plaintiff. Where the state of a roadway, whether from design, construction, works or non-repair, poses a risk to that class of persons, then, to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk. If the risk be unknown to the authority or latent and only discoverable by inspection, then to discharge its duty of care an authority having power to inspect is obliged to take reasonable steps to ascertain the existence of latent dangers which might reasonably be suspected to exist."

[40]

[162] The formulation of the duty of care includes consideration of competing or conflicting responsibilities of the authorities. In the circumstances of a given case, it may be shown that it was reasonable for an authority to deal in a particular priority with repairs in various locations. The resources available to a road authority, including the availability of material and skilled labour, may dictate the pace at which repairs may be made and affect the order of priority in which they are to be made. It may be reasonable in the circumstances not to perform repairs at a certain site until a certain date, or to perform them after more pressing dangers are first addressed. Even so, it may well be reasonable for the authority to exercise other powers including, for example, by erecting warning signs, by restricting road usage or, in extreme cases, by closing the road in question." 90 In Commissioner of Main Roads v Jones (2005) 215 ALR 418 at [40] the High Court confirmed that where the state of a highway or main road created a foreseeable risk of harm to road users, the Commissioner was obliged to take reasonable steps to alleviate the danger. On the question of reasonableness their Honours referred to Brodie at [151]. Particular emphasis had been placed during argument by the Commissioner in Jones on the concluding part of [151] in Brodie, which articulated that the duty of entities responsible for highways did not extend to ensuring the safety of road users in all circumstances, but rather depended upon the circumstances of each case. The High Court, in looking to the circumstances in Jones, held ultimately that the Commissioner was not required to take the steps of erecting signage and reducing speed limits in an effort to prevent the high-speed collision between Mr Jones' vehicle and a wild horse crossing the highway in question. Certainly, the dangers of stray animals along that highway were known to the Commissioner, yet the risk was also an obvious one to motorists and nothing distinguished that part of the highway where the accident occurred as being especially attended by such risk. As Callinan J observed at [78]-[79]: [78] The truth is that the risk that animals would stray onto the highway, the types of animals that would do so, where they would stray, and their behaviour when they did, depended upon the weather, the time of year, the time of day, and any propensities peculiar to them. These variables would necessarily complicate the making of decisions where signs should be placed, and the contents of them. Logically, the fact that these variables existed would require the appellant to shift the signs from time to time, a requirement that in the circumstances of the length and location of this long highway, and the terrain through which it passed, would be unreasonable. The alternative, that more signs should have been erected and kept in place at all times, overlooks, as did the majority in the Full Court, that a multiplicity of warning signs would detract from their effectiveness.

[41]

[79] An allied problem is that the majority did not say what any warning sign should contain or depict. Having regard again to the variables to which I have referred, the contents of the signs might themselves have to vary, as otherwise they might be irrelevant, or indeed perhaps even misleading on different occasions and in different places. 91 The situation here is different. Applying the principles from Jones and Brodie, the RTA was obliged to take reasonable steps to alleviate what was a known danger at a specific location and with specific options available for seeking to remedy it. That duty was owed to users of the road including, relevantly here, Mr Royal and Mr Smurthwaite. It was stated in Brodie at [153] that road design was a relevant factor when considering discharge of duty: "[153] Issues may arise as to whether there was a foreseeable risk of harm arising from the design or the method of construction employed and whether, in choosing or performing the design and construction or in failing to take preventative measures or to put into place warning signs, the authority responsible failed to exercise reasonable care." 92 In my view, the RTA failed to take the steps that would have been reasonable in this case, not just to move the stop sign as it did only after the accident but more fundamentally to have constructed a staggered T-intersection and not a cross-intersection which was pregnant with avoidable risk. It thus breached its duty of care in that regard. The remaining question is whether the supervening conduct of Mr Royal represented an intervening cause that could be said to have broken the chain of causation from the RTA's original negligent design of the crossing so as to obviate any liability on its part in causal terms. For reasons I explain, I consider that it does not have that supervening effect. 93 The RTA contended that the actions of the appellant constituted an intervening cause being "the free deliberate and informed act or omission of a human being, intended to exploit the situation created by the defendant" so negativing causal connection, citing Hart and Honoré "Causation in the Law" (Oxford, 1985) at 136. 94 Here, however, the party A (the RTA) could readily foresee that accidents of the very kind that here occurred were highly probable. The accidents statistics at cross intersections in rural areas should have brought home to the RTA that inattention, even negligence, of the kind manifested by Mr Royal, as well as the contributory negligence of Mr Smurthwaite were features of a crossing of this kind, avoidable by the adoption of a different design which would have been reasonable in the circumstances. There is considerable authority for the proposition that where an act was reasonably foreseeable by the initial tortfeasor, the chain is not broken when that action brings about injury, so that the initial tortfeasor remains responsible for the consequences of the intervening act (see, for example, Watts v Turpin (1999) 21 WAR 402). It follows that the initial tortfeasor remains responsible for the consequences to the extent it has materially contributed to them. See also Chapman v Hearse (1961) 106 CLR 112 at 122, 124-5 and Haber v Walker [1963] VR 339 at 356 and the discussion in "The Law of Torts in Australia" by Trindade, Cane and Lunney (Oxford, 2006) at 559-563. 95 Moreover, where an intervening intentional act is the very type of act against which the defendant, being the RTA here, was obliged to take precautions, such an act does not break the chain of causation for that reason also; Reeves v Metropolitan Police Commissioner [1999] 3 All ER 897 in relation to the suiciding prisoner under care of prison authorities. 96 However, in Bennett v Minister of Community Welfare (1992) 176 CLR 408 Gaudron J at 421 observed that "the question whether some supervening event broke a chain of causation which began with or which relates back to an omission or a failure to perform a positive duty, is one that can only be answered by having regard to what would or would not have happened if the duty had been performed. It is only by undertaking that exercise that it is possible to say whether the breach was 'still operating' or continued to be causally significant when the harm was suffered." 97 Applying that test here and assuming the duty was performed, one is required to hypothesise that a staggered T-intersection had been designed rather than the cross intersection. This is in order to answer the question, what would have or would not have happened in that event? If the accident would have happened anyway, the appellant must lose. When one relates that here to the very different circumstances so hypothesised, it is impossible to answer with an affirmative the question, would the accident have occurred in any event. We may start again by assuming the existence of a driver like Mr Royal, his cruise control engaged at a speed of around 105 kph who insists on his right-of-way while cutting the corner by placing himself in the right-hand lane. But then the facts to be hypothesised are of a staggered T-intersection with Mr Smurthwaite gradually entering the left-hand lane, doing so well to the left of Mr Royal whose supervening conduct is in question. It is not possible to assume that the vehicles so positioned would then have collided. In a "but for" sense, the defective design therefore materially contributed to the accident. 98 I consider that the supervening conduct of Mr Royal so understood did not render the antecedent breach of duty of the RTA as no longer operative. Nor did it cause that breach to cease to be causally significant so as to break the chain of causation. 99 The remaining question is, what proportionate responsibility should the RTA bear in relation to the 66-2/3 per cent liability attributable to Mr Royal as between Mr Royal and Mr Smurthwaite. While these matters are intrinsically not susceptible of any mathematical precision but are rather matters of impression, I would attribute a one-third responsibility to the RTA for the 66-2/3 per cent liability earlier apportioned as between Mr Royal and Mr Smurthwaite to Mr Royal. I should add that while the trial judge dealt comprehensively and clearly with the factors leading to his apportionment of damage as between Mr Royal and Mr Smurthwaite, I would respectfully conclude that he did not sufficiently engage with the issue of the RTA's liability in terms of the sufficiency of his reasons.

[44]

OVERALL CONCLUSION 102 The appellant has been entirely unsuccessful in his appeal as against the first respondent but successful in his appeal against the rejection of his cross-claim for contribution against the RTA, though to the extent only of reducing his proportionate liability by one-third of the 66-2/3 per cent attributable to the appellant vis-à-vis Mr Smurthwaite. The first respondent has been wholly successful in regard to the appellant's challenge as to the apportionment of liability between he and the appellant and first respondent and as regards the two items of damages earlier referred to. Therefore the first respondent should have his costs of the appeal paid for by the unsuccessful appellant vis-à-vis the first respondent and by the RTA, proportionate to their respective liability for the first respondent's damages. 103 I would therefore propose the following orders: (1) Appeal allowed in part. (2) (a) Set aside the order of the trial judge dismissing the appellant's cross-claim against the RTA, and (b) In lieu thereof, order that the RTA pay the appellant one-third of the judgment entered against him in favour of the first respondent. (3) Set aside the costs order made in the District Court and in lieu thereof order that: (a) the appellant pay the first respondent's costs of the trial and of the appeal; (b) the RTA pay to the appellant: (i) one-third of the costs payable by the appellant under para (a) above; (ii) the appellant's costs of the trial relating to his cross-claim against the RTA. (4) Order that - (a) the appellant pay two-thirds of the first respondent's costs of the appeal, and (b) the RTA pay one-third of the first respondent's costs of the appeal. 104 TOBIAS JA: I agree with Santow JA. 105 BASTEN JA: On the morning of 12 March 2001, Mr George Smurthwaite ("the plaintiff") was driving in a south-easterly direction on Bago Road, between Wauchope and Laurieton on the north coast of the State. Bago Road intersected with the northbound lanes of the Pacific Highway. For the plaintiff, crossing from west to east, the intersection was controlled by a Stop sign. At that point, the highway had two lanes for through traffic proceeding north, a left turn lane for traffic turning into Bago Road, and a right turn lane for traffic turning off the highway to the east down Boyd Road, which was the extension of Bago Road on the east side of the highway. 106 The plaintiff stopped his vehicle on Bago Road, then proceeded to cross. There appear to have been four vehicles on the highway in the vicinity of the intersection when Mr Smurthwaite arrived at it. Two were in the left-hand turn lane and turned into Bago Road; a third was a vehicle driven by Mr Grant Royal ("the defendant") and the fourth a Telstra van, which was a little distance behind the defendant. The plaintiff crossed the through lanes, but was then hit by the defendant's vehicle which collided head on with the right-hand centre of the plaintiff's vehicle. The plaintiff suffered serious injuries. 107 On 3 May 2002 he commenced proceedings against the defendant in the District Court. On 15 August 2002, the defendant filed a defence denying that it was negligent and alleging contributory negligence on the part of the plaintiff. On 25 October 2002 the defendant cross-claimed against the Roads and Traffic Authority of New South Wales ("the RTA") claiming contribution in relation to the plaintiff's claim. On 10 December 2002, the plaintiff amended his claim so as to join the RTA as a second defendant, making similar allegations of breach of duty as those contained in the cross-claim. 108 The trial was conducted by Phelan DCJ and ran for a period of 12 days. His Honour found that the defendant was negligent, a conclusion which is not challenged on this appeal. He also found that the plaintiff was contributorily negligent to an extent of one-third. He assessed the plaintiff's damages at a fraction over $1.3 million. The judgment in favour of the plaintiff, after allowing for contributory negligence, was $871,019.50. His Honour found that the RTA was not liable and ordered the defendant to bear the costs payable by the plaintiff to the RTA.

[46]

Issues of liability 111 In order to assess the complaints in relation to the assessment of liability of the respective parties, it is necessary to consider some further aspects of the circumstances in which the accident occurred. The first aspect concerns the physical features of the roadways in the vicinity of the intersection; the second concerns the behaviour of the plaintiff and the third the behaviour of the defendant. 112 In relation to the first matter, the intersection was set in a State forest, on what has been described as a crest of a hill. For drivers coming from the direction of Wauchope on Bago Road, there was a reasonably steep inclination, approaching the Stop sign at the highway. For drivers going north on the Pacific Highway, the inclination was gentle and although the dip in the highway to the south of the intersection meant that a driver at the Bago Road Stop sign could not see the road surface at all points, there was no interference with vision of traffic approaching along the highway. 113 Of greater relevance was the fact that the Pacific Highway curved to the east on either side of the intersection. As Bago Road approached from the west, as the plaintiff looked to his right, the highway curved away from his side of the road and he was required to look across a grassy shoulder in order to see traffic approaching from a distance of more than about 200 metres. He would have had a reasonably unrestricted sightline of traffic which was no more than 280 metres or so from the intersection. On the other hand, because of the curvature of the highway, there may have been some difficulty in determining in which lane an approaching vehicle was situated, until it was within 150 metres. 114 The speed limit on the highway was 100 kilometres per hour, but there was an advisory speed sign some 300 metres before the intersection which showed 85 kilometres per hour as the appropriate speed for negotiating the bend. 115 As already mentioned, there was a right turn lane on the highway for traffic wishing to take Boyd Road in an easterly direction. That lane commenced some 210 metres before the intersection with Bago and Boyd Roads. The left turn lane for traffic leaving the highway and travelling to the west along Bago Road commenced approximately 150 metres before the intersection. 116 Each of the lanes on the highway was marked with arrows. Thus each of the turn lanes had arrows indicating that they were for turning traffic only and the two through lanes had arrows indicating that they were through lanes only. 117 Prior to 1993, the Pacific Highway had been one lane in each direction at this point, but, with the construction in that year of a separate southbound carriageway to the east, the two lanes had become northbound lanes only. Further, prior to 1993, the Bago Road point of entry to the highway from the west had been a T-intersection, with no cross-traffic. The Boyd Road extension had been built at the same time as the separate southbound carriageway, primarily, one would infer, to allow traffic coming out of Bago Road to reach the southbound carriageway. It therefore became a cross-intersection at that time. 118 It was the creation of a cross-intersection which lay at the heart of the defendant's case against the RTA. He asserted that it would have been considerably safer to adopt a "staggered T-intersection" configuration rather than a direct cross-intersection. This would have required traffic coming out of Bago Road which wished to go south rather than north to turn into the left-hand of the northbound lanes, cross to the right-hand lane and then turn right at some distance north of the point of entry to the highway so as to reach a new connecting road to the southbound carriageway. 119 The particulars of breach of duty on the part of the RTA, as first provided in the cross-claim, and adopted by the plaintiff, were as follows: (a) Provision of an intersection of unsafe design. (b) Failure to provide an intersection that was safe for use by motorists such as the Plaintiff. (c) Provision of inadequate signage warning of the potentially dangerous nature of the intersection. (d) Failure to take appropriate steps for the safety of motorists such as the Plaintiff following previous collisions at the said intersection. (e) Failure to warn the Plaintiff and Defendant of the dangers to which they were exposed.

[47]

A final particular alleged breach of statutory duty, which had been separately pleaded by reference generally to "the provisions of" the Transport Administration Act 1988 (NSW) and of the Roads Act 1993 (NSW). These matters were not pursued on appeal. 120 Particulars (c) and (e) complained of inadequate signage and failure to warn of dangers, presumably by signs, rumble strips or other measures (not identified) which might be taken by a road authority. In substance, these particulars were not pursued on the appeal. Particular (d) was concerned with steps which might have been taken after construction of the intersection, following previous accidents, but which had not been taken prior to the accident in March 2001. Again, these steps were not identified in the evidence and may be put to one side for present purposes. It was certainly not suggested that significant additional expense would not have been incurred had it been considered necessary to change the configuration after the construction work was undertaken in 1993. No evidence was led to that effect and the course of argument on the appeal assumed that the relevant breach of duty occurred whenever the design was adopted by the RTA at some unknown date prior to construction in 1993. 121 That leaves the first two particulars which may each be treated as a complaint in relation to unsafe design. They were supported by evidence that a staggered T-intersection would have been safer. Although no one gave evidence as to the particular circumstances of the present topography and land ownership, there was evidence of a general kind which might have supported the view that a staggered T-intersection would have been cheaper, or at least no more expensive, than the cross-intersection adopted by the RTA at some date prior to construction in 1993. That evidence assumed that the same turn lanes would have been required, but that the cross-road to the southbound carriageway, would have been further to the north and would actually have been shorter and therefore cheaper, because the carriageways converged towards the north. 122 Reference will be made to this evidence below, but it was not entirely persuasive. Thus, no consideration was given in any evidence to which the Court was taken as to how a staggered T-intersection would have been mirrored on the southbound carriageway, nor was there consideration to the specific topography of the land to the north, nor as to the possible confusion which might have been caused in the minds of motorists approaching along Bago Road who were required to go north before turning south into the southbound carriageway. Other questions might have been identified by appropriately briefed professionals. The defendant criticised the lack of evidence provided by the RTA, either by way of officers to explain the choice, or documents revealing the decision-making process undertaken prior to 1993. It will be necessary to return to these criticisms shortly. 123 The defendant obtained two expert reports from consulting engineers in relation to the cause of the accident. The first, dated 11 April 2003 was prepared by Mr Stuart-Smith, a consulting traffic engineer. With respect to the type of intersection, he expressed the following view (Report, 11 April 2003, p 23): "In this case, the minor road traffic (from Bago Road) was limited by a Stop sign; nonetheless, the characteristics of this type of intersection make it less desirable, in general, than alternative designs. The specific alternative treatment that would have been applicable at Bago Road would have been a 'staggered T' treatment (the Guide, section 5.5.2). This type of intersection does not involve traffic crossing directly across the carriageway, but requires a merge into the left lane of the major road, followed by a merge into lane 2 and a subsequent right turn. This sequence of events exposes vehicles from both approaches to substantially lower risks of serious crashes."

[48]

The reference to "the Guide" was a reference to a document identified as "Guide to Traffic Engineering Practice", (Austroads, 1988). Although Mr Stuart-Smith thought that the essential design elements were only just complied with, he did not suggest that the Guide was breached by the characteristics of the Bago Road intersection. 124 A second expert called by the defendant was Mr Michael Griffiths, a consultant with degrees in bio-medical and mechanical engineering. Mr Griffiths restricted his comments to the issues which arose from the configuration of the intersection, as relevant to the actual accident which occurred. As will be noted below, the significant features of the accident in this respect were that the plaintiff stopped at the Stop sign, before starting across the highway; there was no traffic which was likely to have obscured his view of the defendant's vehicle and the intersection was well-known to both drivers. Mr Griffiths noted (Report, 20 September 2002, p 17): "In terms of sight distances, there was good visibility at the intersection for eastbound motorists undertaking the task of crossing the northbound lanes of the Pacific Highway, provided they gave more than a quick appraisal, and continued observing approach vehicles until those in the foreground had passed the intersection. Approaching vehicles could be seen from a distance of 250 metres. A vehicle travelling at a speed of 105 kilometres per hour, that is 29.17 metres/second, would have taken 8.57 seconds to reach the intersection from when they first became visible. The Police observed that it took typical vehicles in the range of 2.8 to 3.5 seconds to cross the northbound lanes from a stationery position at the 'Stop' in Bago Road. At my site visit, I made observations which confirm that it took typical vehicles in the order of 3 to 3 1/2 seconds to cross the northbound lanes from the holding line at the 'Stop' sign in Bago Road. From the above, it is obvious that there was plenty of time for eastbound motorists to safely cross." 125 Although Mr Griffiths considered that various warnings might have been given to eastbound motorists on Bago Road, given that the plaintiff was an experienced driver, who had used the road frequently, it seems unlikely that these would have had any causative relevance to the accident in question. 126 A third expert was called by the plaintiff. He was Mr Grant Johnston, a chartered professional engineer. His first report was dated 9 September 2002, before the plaintiff joined the RTA, and it suggested no defect in the design of the intersection. A second report, dated September 2003, filed well after the amendment to the statement of claim, again made no comment on the design of the intersection. 127 The fourth expert called was Mr Kiernan, a consulting civil engineer instructed by the RTA. Mr Kiernan expressly commented on the possibility of the cross-intersection as built and the possible alternative of a staggered T-intersection. His conclusion, in his first report of 24 November 2003 was as follows (p 22): " Two Stage Crossing - this option was chosen by the RTA, and it is typical of many intersections with low local road traffic on this and other dual carriageway highways. I would not have expected a 'cross-intersection' safety problem at this location. But because of the long distance between the dual carriageways, a prime consideration with this option would have been to warn Bago Road traffic not to accidentally turn into oncoming traffic on each carriageway. I understand this has happened, but accidents have not occurred. Given that similar intersections with dual carriageway roads are common through the road system, its choice by RTA seems reasonable. Staggered 'T' Intersection - If there is relatively high volume of traffic at the intersection and/or there are obvious physical constraints to safe entry, the staggered 'T' intersection is an alternative treatment. In this option, eastbound traffic would make a left turn onto the northbound carriageway and then merge across the travelling lanes to a right turn lane some distance to the north. A detailed analysis of these options would be required including costs estimates to decide if the usually more costly staggered 'T' treatment was warranted. On the information available to me it would appear that the two stage crossing would have been adequate at the time when the design was carried out." 128 Mr Kiernan noted Mr Stuart-Smith's view that a staggered T-intersection should have been built and agreed that it was "an option": p 26. He continued: "There is no information available to critically examine the basis for the decision to retain Bago Road intersection rather than construct a staggered 'T'. And it cannot be fairly assessed in hindsight." 129 The defendant sought to turn this last comment to his advantage, noting that the RTA had apparently failed to supply either the Court or its own expert with the necessary information to assess the decision to adopt a cross-intersection rather than the alternative safer model before the construction was undertaken in 1993. There was further evidence, which it will be necessary to consider, in relation to this question, but it is convenient at this stage to refer to the basis of this complaint. Thus, the defendant appears to have issued a Freedom of Information request and two subpoenas to the RTA. The Freedom of Information request, which was contained in the material supplied by the RTA, sought information relating to "any roadworks carried out in the 5 years prior to the accident" and, relevantly, all information regarding "design considerations in relation to the intersection of the Pacific Highway and Bago Road ('the intersection') including but not limited to all information regarding the compliance of the intersection with normal freeway guidelines". Other matters sought related to reviews, apparently subsequent to the construction of the intersection. As this was not a "freeway" reference to freeway guidelines was somewhat misconceived; further, the request for information "regarding" design considerations, may not have been understood as requiring reference to any decision-making process undertaken prior to 1993. 130 A subpoena for early production, dated 22 January 2004, contained a schedule seeking information, including information regarding design considerations in relation to the intersection, in similar terms to the Freedom of Information request, but limited to the period from 1 January 2003 to the date of the subpoena. A second subpoena apparently issued on 24 January 2005, related to documents with respect to the occupation, ownership, purchase or resumption of land in the vicinity of the intersection, together with certain other documents created in 1996 and later. No reference was made to documents with respect to the planning and design of the intersection, and related areas of the Pacific Highway, prior to its construction in 1993. In my view, neither the request nor the subpoenas specifically sought material directly relevant to the decision-making of the RTA in designing the intersection prior to its construction in 1993. 131 The one item which was known to exist and was provided as an attachment to Mr Kiernan's report was a survey of casualty accident rates per million vehicles entering various kinds of intersection, apparently produced by the Road Construction Authority of Victoria and quoted in the 1991 RTA Road Design Guide. The figures were broken down according the type of intersection, but the two specific figures relied upon by the defendant were the casualty rate for rural cross-intersections without signals, which was 5.2, as compared with staggered T rural intersections, the figure for was 2.9. (The figure for rural T-intersections without signals was 3.3). The comment in the Guide accompanying the table was that "on rural roads staggered 'T' intersections are preferred over cross intersections". 132 The "crash history", at least in relation to accidents involving casualties, was provided with respect to this intersection, since its construction in 1993. According to calculations based on estimates of vehicle movements on both roads, a casualty rate of 5.1 was established. This was almost identical with the figures quoted above and apparently available to the RTA before construction commenced. One inference which may be drawn from this information is that the casualty accident rate at this intersection was precisely what was to be expected. This suggests that the intersection in question was no more dangerous than others of a similar design and, as Mr Kiernan suggested, there are many such intersections on similar roads around the State and it is therefore difficult to draw the inference that the construction of a particular intersection on this design involved a breach of the RTA's duty of care, without more information as to the views of relevant experts in, say, 1992; specific considerations relevant to this intersection, and the broader consequences of such a conclusion in relation to the cost of road construction across rural New South Wales. 133 Beyond this material, it is necessary to give consideration to the cross-examination of Mr Kiernan at trial. Mr Kiernan was cross-examined, for example, in relation to his evidence that the intersection did not comply with guidelines concerning a measurement identified as "entering sight distance" but did comply with the guidelines in relation to a measurement known as "safe intersection sight distance". In relation to the thinking of the designer of the intersection, it was put to him that that person had reasoned as follows (Tcpt, 5 May 2005, p 23): Q. … I know we'll comply with the minimum and will comply with the SISD and not only that, we'll now make it a crossing of the highway, is that what you're suggesting the designer did? A. That's right, that would have been my decision. … Q. So what you're saying is look, so long as we scrape in to some part of the guidelines, that's OK? A. Well before the guidelines were written we probably had sight distances that refer to visibility between vehicles and as long as you can see a vehicle at the intersection and vice versa and there is sufficient time for either driver to take action, depending on the circumstance, then that's acceptable. Q. There's a lot of variables in that before you get to acceptable aren't there? A. Well I think putting it another way, the ASD and entry sight distance are not relevant to this incident. Q. The ASD and the entry sight distance certainly affect visual perception of the site? A. Not relevant to this incident.

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That view was consistent with a view he had expressed in his first report (p 19) in following terms: "Irrespective of the circumstances of this accident, there was ample time for eastbound Bago Road drivers to view vehicles approaching from the right, wait for a suitable gap, and move the vehicle from the Bago Road Stop sign and cross the northbound lanes of the Pacific Highway with safety." 134 He was then cross-examined at some length to achieve agreement that accidents at intersections were inevitable and that there was a higher rate of accidents at cross-intersections than at T-intersections. He was cross-examined as to the possibility of a staggered T-intersection, declined to comment on the cost (Tcpt, p 42) but agreed that the cost of a paved link road of 30 or 40 metres would have been less than the cost for 250 metres. While accepting that there were alternatives, he remained of the view that he would not change the Bago Road alignment: p 42(48). After the interposition of another witness, counsel for the defendant returned to the cross-examination, and sought a number of concessions (Tcpt, p 57-58): Q. So my previous question was in circumstances where on its face it appears that the cost of the staggered intersection would be less and there was a statistical certainty of high speed crossing crashes it would have been more prudent to choose the staggered T-intersection? A. Well it may have been shall we say an option but there are other things to consider, one of them possibly is the inconvenience to resident being having to travel distances and then turn back. I don't know. There's acquisition costs and those sort of things. Q. So the benefit cost analysis would say 'Well we might have to divert them 300 metres up the road and bring them 300 metres back. We can't do that. We'll opt for the statistical certainty of the crashes.' You're not suggesting that are you? A. No, the statistical certainty is a very difficult to sort of put into context with this intersection and a staggered T. I'm saying that if I was there in 1993 or 1990 when the design was done I wouldn't have thought that a staggered T intersection was appropriate here. … Q. Mr Kiernan my question was if you regard the modifications since as appropriate from a safety perspective are you seriously suggesting that you, if you were the designer at the time prior to 1993 wouldn't have thought of those? A. Wouldn't have thought of those. I think the intersection was built in accordance with normal requirements. 135 The plaintiff's expert, Mr Johnston, was also cross-examined by counsel for the defendant. He gave evidence in the following terms (Tcpt, 28 April 2005, pp 24-25): Q. … In terms of accessing highways, would you agree with the proposition that it's not really acceptable to have an incoming road such as Bago Road completely crossing the highway as it did in this circumstance? A. I wouldn't say that it's not acceptable, there's nothing in the design standards that says you can't do it. If it's a freeway you can't do it, and this is a divided carriageway, but it's not a freeway, it does have graded intersections. We don't have many where we do that in New South Wales as many, Victoria do it quite a bit. It's not a great intersection - the best way of doing it at an intersection, and if you have significant exit volumes, then often you need just to allow them to turn left and provide a further U-turn facility upstream. But I wouldn't say it's not acceptable, there's nothing that says you can't do it. Q. Well when you say 'not acceptable' you mean within the guidelines … A. Correct. Q. … that are applicable for example to the RTA? A. That's right, there's nothing that says they can't build an intersection of that type. So I wouldn't say it's not acceptable.

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The phrase "less than half" is somewhat imprecise, but presumably means that a significant number of vehicles, perhaps approaching 50%, failed to comply with the Stop sign. That conduct, whether deliberate or accidental, must have materially increased the risk of accidents at the intersection, but it was a risk which was irrelevant to the present case. In addition, there was file note in the RTA papers (Exhibit X) dated 31 October 2002 which reported: "Whilst performing roadwork at the intersection of Bago Road [and] Pacific Highway, I have seen on numerous occasion vehicles exiting Bago turn south into the northbound traffic lane. The vehicles travel until they get to the Wrong Way Go Back sign by which time they have travelled 150 metres against the northbound traffic flow. … As a separate issue I have observed cars turning left from Bago Road into the northbound lane and travelling along this for some distance before realising they are headed in the wrong direction. Some drivers perform a U-turn manoeuvre others reverse their vehicles and travel south in the northbound lane to return to the Bago intersection and cross to the southbound lanes. I have serious safety concerns as these incidents occur on a regular basis and it is only a matter of time before a major accident occurs with loss of life." 139 Again, the dangers identified in this memorandum were not relevant to the accident which occurred in the present case. They do, however, illustrate the point that there may be numerous risks associated with the particular intersection, which may in turn affect the statistics as to accidents, but which are irrelevant in the present case. 140 Whether there was a breach of duty on the part of the RTA in the design of the intersection can only be answered by identifying, as best one can, the cause of the accident in the present case. To argue that the intersection involved avoidable risks and, in some other respects, breaches of duty of care in its design, which could reasonably have been rectified by adopting a different design, is not to the point. To say that, for reasons irrelevant to the present circumstances, there should have been no cross-intersection and that if there had been no cross-intersection the accident would not have occurred, is not a permissible means of demonstrating that the conduct of the RTA materially contributed to the accident, in the sense that rendered it a joint tortfeasor. Causation will only be satisfied if a risk negligently created by the RTA materially contributed to the collision. Whether that was so can only be answered after identifying particular causal features of this accident. As the trial judge appears to have concluded, identified inadequacies in the design of the intersection did not contribute to the accident in a causative sense.

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Conduct of plaintiff and defendant 141 Given the severity of his injuries, the defendant was, unsurprisingly, unable to recall what had happened immediately prior to the collision. However, it is clear from other evidence that he had stopped at the Stop sign and, being familiar with the intersection, one would infer that he looked to the south, in which case he would have seen the defendant's vehicle. The defendant gave evidence that he saw the plaintiff's vehicle stationary at the Stop sign. If the plaintiff had accelerated across the intersection in a normal manner, he would have taken no more than 3.5 seconds to cross the highway. He had actually crossed the two through lanes and was in the right-hand turn lane for traffic coming north on the highway when the collision occurred. 142 Evidence of what did happen was provided by the defendant, two other drivers, and an analysis of the defendant's skid-marks. One of the witnesses was a Telstra technician, Mr Relf, who was driving north on the Pacific Highway a little behind the defendant's vehicle when it reached the intersection. Mr Relf gave evidence as to the conduct of the defendant's vehicle referred to as "the VL" as it approached the right-hand curve at the Bago Road intersection. Mr Relf noted that the curve was preceded by a short left-hand curve. In his statement of 20 March 2001, he described the behaviour as follows (par 14 ff): "14. I saw the VL in the left hand lane on the left hand corner. It stayed in that lane until the start the right hand curve. As the VL approached the right hand curve, it started to move from the left hand lane and into the right hand lane. The VL indicated to move right and because there was no traffic in front of it, it looked like the VL was cutting the corner trying to straighten the curve. 15. It kept travelling in the right hand lane. There's a turning lane on the right and a turning lane on the left approaching Bago Road. The VL didn't indicate, but it moved over into the right hand turning lane. I was about three or four seconds, at that speed, behind the VL. … 16. I watched the VL wondering what it was doing in the right hand turning lane and not slowing down. … Halfway between when I could first see the intersection and where the intersection is, I saw a green coloured station wagon coming from my left on Bago Road across the highway. 17. The VL was still in the right hand turning lane." 143 A second witness to the accident was Mr George Hubbard, a forest supervisor, who was travelling along Bago Road and approached the intersection behind the plaintiff. In his statement of 31 March 2001 he described the circumstances as follows (at par 7 ff): "7. As I was coming to the intersection, I saw a green station wagon stopped at the stop sign waiting to cross the Highway. Just after I could first see the green car, it started to move off. I started to pull up at the stop sign where it had been stopped. As I was pulling up, I was looking to the right along the Highway. … 8. I saw there was one car that had turned left off the Highway into Bago Road and there were another two in the turning lane with their blinkers on, moving up to Bago Road to turn off the Highway. I came to a complete stop at the stop sign. I saw a Telecom vehicle and another vehicle, both of them were white. … 9. The second white car was in the right hand turning lane cutting the corner. I couldn't tell what speed either of the cars were doing because of the curve on the highway, the second white car was going faster than the white Telecom vehicle. While I was watching the two cars on my right, I saw the front of the car cutting the corner dip under brakes and start to lock-up. … The white car hadn't swerved at all - it was cutting the corner, then instantly started braking. … When it was braking, it made me look back to the green station wagon. I saw that the back half of it was still in the right hand overtaking lane. 10. The green car didn't speed up or slow down - to me it looked like there was no reaction by the driver to the fact that the white car was under brakes and coming straight for him." 144 Mr Relf gave evidence on 21 April 2005, in similar terms to his statement: Tcpt, 21 April 2005. Mr Hubbard also gave evidence in similar terms, on the same day. 145 The defendant declined to give a statement to police, but his conduct, as revealed in his oral evidence to the trial judge, was remarkable. He agreed with the proposition that he had travelled the road on many occasions and drove with the vehicle on cruise control set at 105 kilometres per hour (Tcpt, 29 April 2005, p 2). At the beginning of his cross-examination, the following exchange occurred (p 8): Q. You've told us … that your system involved essentially travelling this road on cruise control? A. Yes it did. Q. That's what you did invariably? A. Yes. Q. In dry weather and in wet? A. Yes. Q. Bald tyres and all? A. Pardon me. Q. You see your vehicle had bald tyres didn't it? A. No it didn't. … Q. Were you present in court when the court was told that your front tyres … were devoid of legal tread? … A. I didn't hear him say anything about the legal tread. Q. Do you suggest your front tyres were not devoid of legal tread? A. Yes I do. … Q. … So if the officer suggests they did, he were wrong? A. Yes. Q. And if various experts have suggested to this court they did they were wrong as well? A. Yes. 146 In a statement given to the investigator, quoted by his Honour (Judgment, p 10) the defendant, on 2 August 2001, said: "As I approached the Bago Road intersection I was doing 105 kph, dead on. I had the cruise control set. As I came up I was in the left lane, there were two cars in front of me and I moved out to the right to overtake them. … I used my blinker. … By the time I overtook the two cars I was just at the start of the corner immediately before the Bago Road intersection. … As I came up the hill I saw Mr Smurthwaite's car at the intersection on the left. When I first saw him he was rolling up to the stop sign. I saw him actually stop and then kept coming through. When I saw him coming through I thought I might have an accident with him. I looked in my mirrors and didn't see anything all, I then hit my brakes and steered to my right. I thought that by doing that I would miss his car. When I first saw his car I was in the right hand traffic lane, there was a right turn lane still on my right. My car skidded and moved to the right, I consciously steered the car to the right to avoid him." 147 The aspect of this statement which concerned the time at which he entered the right-hand turn lane was challenged in cross-examination. The skid marks left by the defendant, the right-hand mark being some 25 metres long, indicated that he was already wholly within the right-hand turn lane prior to "hitting the brakes". 148 He was cross-examined as to his speed and said that he would have gone through a known speed camera near Heron's Creek at 105 kilometres per hour, even though the speed limit was 100 kilometres per hour. He was asked (Tcpt, 29 April 2005, p 13): Q. I suppose you would do that because you reckon you'd be able to get away with it? A. Yes. Q. You think that is responsible driving, do you? A. Yes. … Q. I take it from that that you regard the 100 kilometre per hour speed limit as a token? A. As a token, sorry? Q. Just a token, a guide is that correct? A. As long as you're within a certain distance of that, yes. 149 He was asked if he totally ignored the advisory 85 kilometre per hour speed sign and he denied that but said that he would slow down "if the conditions call for it". The following exchange then occurred (Tcpt, p 15): Q. There's a reluctance to come off cruise control isn't there? A. Yes. Q. Why is that? A. Because I don't like coming off cruise control. Q. What is that? A. I prefer to drive on cruise control. That way you get better fuel economy and you - your speed's not fluctuating. Q. It's important to stay on cruise control as long you can? A. Yes. Q. Yes. So you know a fair bit about that? A. Yes. Q. Are there some inherent dangers associated with cruise control? A. Yes. Q. What are they? A. Just braking distances, things like that. … Q. It comprises the braking distances doesn't it? A. It does because if you don't touch the brakes to turn it off it keeps going at the speed you're going. Q. Yes. So it comprises reaction time? A. I wouldn't say reaction time. I'd say braking distances. If you don't turn it off when you see something. 150 He was cross-examined at some length about the point at which he had commenced to brake and his position on the road when he first saw the plaintiff move off. At p 28, the following evidence was given: Q. Mr Royal, … I want you to accept as fact that the left hand turning lane is 150 metres south of the intersection, and you have told us that you proceeded to overtaken those vehicles that were going to turn left some distance south of the left hand turning lane? A. Yes. Q. So given that, those facts, doing the best you can you saw Smurthwaite's vehicle move off when you were about 150 metres back from the intersection. That's correct isn't it? A. I still can't be certain on how far back I was. Q. Doing the best you can about that distance? A. Give or take, yeah. Q. On reflection now, the plain simple fact is that, had you not insisted on your right of way and had you accepted that cruise control ought to be deactivated you could simply have pulled up before you got to the intersection couldn't you? A. Yes. 151 The cross-examination continued: Q. By the way, of course you had some form if you understand that description, for utilising a right hand turn bay, yet travelling straight ahead? A. Pardon me? Q. You see, a little earlier on this morning you simply used a right hand turn bay in a setting where you were going straight ahead along the Pacific Highway, didn't you? A. That section's actually the overtaking lane. Q. I beg yours? A. That's actually an overtaking lane. It's marked as a right hand turning lane as well but it is an overtaking lane. … Q. And in that lane so created there were right hand turn arrows? A. Yes. Q. Are you suggesting that that was nevertheless to be utilised for a driver travelling and continuing to travel north? A. Yes. When it was first built, yes. … Q. So that you accept that there were right hand turn arrows there? A. Yes. Q. There was no arrow indicating one straight ahead was there? A. No. Q. And yet your understanding of the rules of the road was such that you could use that lane where right hand turn arrows existed, you're entitled to use it go straight ahead? A. Yes. 152 He then sought to distinguish his view of the right-hand turn lane at the Bago Road intersection, but on the basis that it did not continue far through the intersection. 153 Accepting the defendant's evidence that he was travelling at 105 kilometres per hour when he saw the plaintiff move off from the Stop sign, that speed equated with 29.2 metres per second so that, even if the plaintiff had taken 4 seconds to reach the right-hand turn lane across the highway, which seems generous, and assuming that the defendant had remained in the through lanes, he would have been able to travel 116 metres before colliding with the plaintiff. Two inferences can be drawn from this fact. The first is that if, as the trial judge accepted, he was 150 metres back when he saw the plaintiff move off, he had ample time to slow down sufficiently to avoid the plaintiff's vehicle. The other inference is that he was well within view of the plaintiff when the plaintiff commenced to cross the highway, but was really too close for the plaintiff to safely undertake the crossing at that stage. If the defendant was in the right-hand lane, there is no reasonable explanation for the failure of the plaintiff to see him, if that had occurred. In my view the probable explanation for the plaintiff's conduct is that he observed the defendant in the right-hand turn lane and, without realising his speed, or that he was not slowing down, assumed that he intended to turn right. To do that he would have had to dramatically reduce his speed before reaching the Boyd Road turning and the plaintiff would no doubt have crossed the highway comfortably in front of him. It is possible that the plaintiff had seen him indicate when he moved into the right-hand lane, and thought he was indicating an intention to turn right. 154 The inference that he went into the right-hand turn lane near its commencement is consistent with the evidence of Mr Relf, is consistent with his view that he could use a right-hand lane as an overtaking lane even though he was travelling through the intersection and was consistent with his intention to keep on cruise control at 105 kilometres per hour through a curve which had an 85 kilometre per hour advisory speed sign. In other words, his action in seeking 'to cut the corner' probably mislead the plaintiff. The plaintiff was undoubtedly partly responsible for the accident, in failing to keep a better lookout and observing that the defendant was not reducing his speed. On the other hand, the defendant had every opportunity to avoid the plaintiff, but took no evasive action until it was far too late. As the trial judge found, he must bear the bulk of the responsibility for the accident. The trial judge assessed their respective responsibilities at one-third and two-thirds, which are figures with which I would not interfere. 155 However, an understanding of the circumstances within which the accident occurred demonstrates, in my view, that whatever the faults of the design of the intersection, they did not materially contribute to the accident in any relevant sense. Both parties knew the intersection well; each knew it was a cross-intersection and that it had turn lanes; indeed, the only mistakes which were made related to the conduct of the other driver, based on common knowledge of the design features of the intersection. 156 The trial judge was criticised for dealing with the liability of the RTA in cursory terms, without giving due consideration to the evidence of the experts. For the reasons set out above, in my view his Honour came to the correct conclusion. The opinions of the experts were of little relevance in making that assessment. The conclusion was primarily based upon the particular circumstances of the accident and the errors on the part of the plaintiff and the defendant. Even if I held doubts as to his Honour's assessment of these matters (which I do not) I would have been reluctant to interfere given that his Honour had a view of the intersection, and was able to make an assessment of the defendant, in particular in the witness box, which may have allowed him to form a view as to his explanations of his own conduct which may not be readily inferred from the somewhat surprising attitudes revealed by parts of the cross-examination. The appeal with respect to issues of liability should be dismissed.

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Damages: 157 The first issue in relation to damages concerns the allowance by his Honour of expenses incurred by the plaintiff's wife in travelling to Sydney and for accommodation in Sydney, whilst her husband was in hospital. As the trial judge noted, after the accident the plaintiff was airlifted to Port Macquarie Base Hospital and then transferred to St George Hospital where he remained from 12 March until 15 May 2001: Judgment, p 35. 158 The defendant's complaint in relation to this amount is not that it was an illegitimate item of damage in accordance with general law principles, but that its recovery was precluded by s 83 of the Motor Accidents Compensation Act 1999 (NSW) ("the MAC Act"). It was said to constitute expenses for attendant care services, for the purposes of s 83(1)(d). 159 The relevance of s 83 in this regard is somewhat obscure. Chapter 5 of the MAC Act applies to awards of damages and s 123 states that a court cannot award damages to a person in respect of a motor accident "contrary to this Chapter". Section 83 is not to be found in Chapter 5: it appears in Part 4.3 of Chapter 4. It is headed "Duty of insurer to make hospital, medical and other payments". Chapter 4 generally deals with motor accident claims and how they are to be made, assessed and otherwise considered, prior to court proceedings. Section 83(1) reads as follows: 83 Duty of insurer to make hospital, medical and other payments (1) Once liability has been admitted (wholly or in part) or determined (wholly or in part) against the person against whom the claim is made, it is the duty of an insurer to make payments to or on behalf of the claimant in respect of: (a) hospital, medical and pharmaceutical expenses, and (b) rehabilitation expenses, and (c) respite care expenses in respect of a claimant who is seriously injured and in need of constant care over a long term, and (d) attendant care services expenses in respect of a claimant who is seriously injured and in need of constant care over a long term (being services provided by a person with appropriate training to provide those services, but not including services provided by a person who is related to the claimant or any services for which the claimant has not paid and is not liable to pay), as incurred. 160 The purpose and intent of this provision is reasonably clear: it imposes a duty on an insurer, in a case where liability has been admitted or determined, to meet certain expenses of a claimant, "as incurred". It is in similar terms to s 45(2) of the Motor Accidents Act 1988 (NSW). Section 45(1) of the latter Act imposes a duty on an insurer to endeavour to resolve a claim as expeditiously as possible: the equivalent provision in the MAC Act is to be found in s 80(1). A payment made pursuant to s 83 "before the claimant obtains judgment for damages against the defendant", is a defence to the proceedings to the extent of the amount so paid: see s 83(5). 161 If this provision is to operate in the sense contended for by the defendant, it must, by implication, impose a limit on the matters with respect to which damages can be awarded by a court. However, the structure of the Act is inconsistent with any such implication. Furthermore, Chapter 5 makes separate and different provision in relation to recovery of amounts for attendant care services. Thus, s 128 provides, in part: 128 Damages for economic loss - maximum amount for provision of certain attendant care services (1) Compensation, included in an award of damages, for the value of attendant care services: (a) which have been or are to be provided by another person to the person in whose favour the award is made, and (b) for which the person in whose favour the award is made has not paid and is not liable to pay, must not exceed the amount determined in accordance with this section. … (3) No compensation is to be awarded if the services are provided, or are to be provided: (a) for less than 6 hours per week, and (b) for less than 6 months. … (7) Except as provided by this section, nothing in this section affects any other law relating to the value of attendant care services. 162 The differences in language between this provision and s 83(1)(d) make it unlikely that the terms found in the latter provision are intended as an additional constraint on the award of such damages. On the other hand, s 129, dealing with respite care, is in very similar terms to s 83(1)(c), taken together with 83(2)(a), but the fact that the provision is repeated in Chapter 5 is again an indication that the constraints on awards of damages by courts are to be found solely in Chapter 5, and not by implication to be derived from other parts of the Act. 163 In these circumstances, it is not necessary to inquire whether the expenses incurred by the plaintiff's wife were expenses for attendant care services, although the plaintiff argued that they were not. The term "attendant care services" is defined in s 3 of the MAC Act to mean "services that aim to provide assistance to people with everyday tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services". The precise scope of this definition should remain for a case in which it needs to be determined. 164 Similarly, it is not necessary for present purposes to consider the scope and operation of Wilson v McLeay (1961) 106 CLR 523 (in which Taylor J allowed for the expenses of visits by parents to a daughter seriously ill in hospital, as an element of general damages) in the light of more recent cases, including Griffiths v Kerkemeyer (1977) 139 CLR 161 at 173-178 (Stephen J). This ground of appeal should be rejected. 165 The second question in relation to damages concerned the calculation of economic loss based, not on the plaintiff's pre-accident earnings, but on evidence of earnings of two comparable workers operating as tree fallers. 166 His Honour's calculation of economic loss was based on the average weekly earnings of the comparable workers, being $893 per week net. This figure was adopted for the period from the date of the accident, 12 March 2001, until 30 June 2004. The agreed figure for the plaintiff's income at the date of the accident was $798 per week net. 167 Prior to the accident, the plaintiff was working for Bartlett Haulage Co Pty Ltd on a piecework basis. He was employed as a log faller felling timber with a chainsaw. Various payment records indicated that the plaintiff was paid in accordance with a federal timber industry award and that the amounts calculated by reference to the timber cut varied quite significantly, as it would appear, between $3.15 and $4 per tonne. An item entitled "Koppers" was at a different rate of $9 but that may have been a rate per metre rather than a rate per tonne. There may have been some variation dependent upon the forest in which timber was being felled. A second variable was no doubt the hours worked, but the plaintiff's wife gave evidence that he worked from early morning until dark. 168 Although the evidence is not precise, it appears that Bartlett Haulage went out of operation during 2002 and that its business and employees were taken over by a company known as Haulers and Fallers Pty Ltd, of which Ms Christine Hoffman was a director. She knew the plaintiff, and described him as "a very experienced and very good worker in the timber industry. He was a really good manual faller": Tcpt, 5 May 2005, p 45. She gave evidence that someone with his experience was highly sought after in the industry and that her company would have taken him on when they took over the timber falling aspect of Bartlett Haulage in 2002. It was her view that the plaintiff would have been earning the same money as the two comparable fallers whose group certificates for the financial year ending 30 June 2004 she produced and which were relied on by the trial judge. 169 No date was given for the changeover from Bartlett Haulage to Ms Hoffman's business, but in broad terms it may be reasonable to assume that the plaintiff would have continued to work for Bartlett Haulage for a year after the accident. The difference in earnings may also have been partly accounted for by inflation over the ensuing two years. 170 Accepting that the figures adopted in calculating loss of earning capacity cannot be refined with too much precision, it would nevertheless have been appropriate, in my view, for the trial judge to have adopted the earning rate disclosed for the plaintiff immediately prior to the accident as the rate which would have continued until his change of employment. This would involve a reduction of the award of approximately $5,000. Given that total damages were in excess of $1.3 million, this is a trivial variation of less than 0.5%. To interfere on this basis would imply that the calculation of damages has a degree of precision which, speaking generally, is not remotely approached. I would not interfere with the assessment undertaken by the trial judge.

[62]

(5) there was a reasonable case of neglect of duty on the part of the RTA, which ultimately failed because it was not causative of the accident. 175 In addition to these considerations, the plaintiff sought to rely on correspondence in the course of which, shortly prior to the hearing, it had sought to withdraw its claim against the RTA on the basis that each party bore his or its own costs, an offer which fell through, because the RTA was not willing to accept unless the defendant also withdrew his claim against the RTA. Accordingly, the plaintiff argued, it was the defendant's conduct, not only in commencing proceedings against the RTA, but in refusing to settle them, which led to the plaintiff continuing against the RTA. 176 The relevant principles to be applied in determining this question may be derived from the well-known statement in the judgment of Gibbs CJ in Gould v Vaggelas (1983-85) 157 CLR 215 at 229-230, referring in turn to Sanderson v Blyth Theatre Co [1903] 2 KB 533 at 539; see also Sved v Council of the Municipality of Woollahra (1998) NSW Conv R 55-842 at 56, 605 (Giles J) relied on in Almeida v Universal Dye Works Pty Ltd (No. 2) [2001] NSWCA 156 at [7]-[8] (Priestley JA) and at [32]-[39] (Santow AJA) and see Herning v GWS Machinery Pty Ltd [2005] NSWCA 263 at [40]-[41] and Herning v GWS Machinery Pty Ltd [No. 2] [2005] NSWCA 375 at [2]. 177 Because the defendant must bear the costs of the unsuccessful cross-claim, the question is in reality whether it should bear the whole of the costs of the RTA, or only part thereof. As noted above, the primary expert evidence in support of the view that the RTA bore at least part of the responsibility for the accident was that led from Mr Stuart-Smith, a consulting traffic engineer called by the defendant. The defendant also obtained the report from Mr Michael Griffiths of Road Safety Solutions. It is clear from the supplementary report of Mr Kiernan for the RTA, dated 7 April 2004, that the RTA was primarily concerned to rebut the evidence of Mr Stuart-Smith. Although Mr Kiernan provided a second supplementary report addressed to the report of Mr Johnston, called on behalf of the plaintiff, as noted above, Mr Johnston did not sheet home responsibility for the accident to the RTA. Accordingly, the substance of the case against the RTA was provided by the defendant and the primary issue addressed by Mr Kiernan was the road design faults identified by Mr Stuart-Smith for the defendant. The cross-examination of Mr Kiernan by counsel for the plaintiff covered 1.5 pages of transcript, whereas the cross-examination on behalf of the defendant covered almost 50 pages. 178 The bulk of the costs incurred by the RTA were therefore in response to the defendant and he should bear those costs as a result of failing in his cross-claim. As between it and the plaintiff, it is fair that, because of the other factors noted above, it should bear the remaining small proportion of the RTA's costs which would otherwise have fallen to be paid by the plaintiff, because of the failure of his claim against the RTA. To avoid complexity in accounting, it would be preferable to make an order that the defendant pay directly the RTA's costs of the trial.

Appeal Outcome: Appeal allowed - Roads and Traffic Authority v Royal

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Judgment (67 paragraphs)

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Cases Cited (15)