Negligence - Collision on wrong side of road for plaintiff driver - Road had veered to left at top of rise - Plaintiff possibly blinded by sun - Could not remember - Went to wrong side of road - Whether proper signage on road - Whether road designed properly - Claim dismissed

First Respondent (First Defendant) : Mr C J L Pullin QC & Mr T G Darge

Second Respondent (Third Defendant) : Freehill Hollingdale & Page

Bendix Mintex v Barnes (1997) 42 NSWLR 307

Birkholz v R J Gilbertson Pty Ltd (1984-85) 38 SASR 121

Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd [1987] FCA 84; (1987) 71 ALR 615

Bradshaw v McEwans Pty Ltd (1951) HCA 480

Chance v Alcoa of Australia Ltd, unreported; FCt SCt of WA; Library No 8070; 15 February 1990

Holloway v McFeeters (1956) 54 CLR 480

Levine v Morris [1970] 1 WLR 71

McIntyre v District Council of Ridley [1991] SASC 3009; (1991) 56 SASR 343

St George Club Ltd v Hines (1961) 35 ALJR 106

Turner v Ku-Ring-Gai Municipal Council (1990) 12 MVR 321

Wilsher v Essex Area Health Authority [1987] UKHL 11; [1988] AC 1074

1 PIDGEON J: I agree with the reasons of Murray J and with the orders he proposes.

3 WALLWORK J: The appellant in this matter was the driver of a motor vehicle proceeding in a westerly direction towards the setting sun in Hester Avenue, Clarkson, Western Australia when he was involved in a collision and injured. The appellant had driven over a crest in the road where the road curved to the left. His vehicle did not follow the left-hand bend of the road, but continued in a straight line to the wrong side of the road and collided with an on-coming vehicle.

4 The appellant sued the Commissioner of Main Roads (MRD) and the designer and builder of the road (the second respondent) for damages. It appears to have been common ground between the parties at the trial that the collision could have been at least partly caused by the fact that the appellant had been blinded due to the sun being in his eyes prior to the collision.

5 The learned trial judge in the District Court dismissed the appellant's claim for negligence on the basis that there had been no negligence on anyone's part but himself. His Honour found that the MRD had been under no duty to erect signs at that place warning of the left hand curve in the road. He also found that the design of the road by the second respondent was not deficient. His Honour found that the appellant was responsible for the accident due to his driving the vehicle at an excessive speed in the circumstances and failing to negotiate "this slight curve".

6 Under the heading of causation the learned Judge said:

"I find, however, that the plaintiff's negligent driving was in reality the cause of the accident. He drove into the sun when he could not properly see the road and approached an intersection and curve at a speed which, under the circumstances, was excessive."

7 On this appeal the appellant's primary contention was that the MRD had failed in its duty of care by not erecting a curve sign or some other sign which would have warned drivers that at the top of the relevant crest the road curved away to the left and downwards at the same time.

8 It had been contended for the appellant at the trial that the curve in the road would not have been apparent to the driver of a vehicle proceeding west into the setting sun in all the circumstances existing at the time of the collision and that there had been a potential hazard created when, at the top of the crest, the road curved away to the left.

9 It was submitted on appeal that even if it had been found that the appellant had been negligent in driving into the sun without maintaining proper visibility, that would have been contributory negligence on his part. It would not relieve the defendants of their responsibility for designing and building a road with proper signs, the lack of which it was said had led the appellant into a collision with an on-coming vehicle due to the fact that he had had no reason to suspect that the road would curve to the left at that place. It was submitted for the appellant that "the minute you have a bend just beyond a rise, it makes sense ... [that] a potential hazard is created". It was submitted that the hazard thus created had been increased due to the setting sun being in the eyes of approaching drivers.

10 It was submitted for the appellant that the defendants had not made a reasonable assessment of the hazard because they had not taken account of the sun in their safety considerations. It was said that after the relevant accident employees of the MRD had placed signs on the left hand side of the road to warn of the curve in the road but that these had later been removed. The evidence as to this last alleged act in my view was insufficient for a finding to be made with respect to it.

11 Reference was made by counsel for the appellant to par 11.3 of the "1989 Austroads Guide to the Geometrical Design of Rural Roads" under the heading of "The Driver's View" and to the proposition that:

"The driver sees a foreshortened and thus distorted view of the road, and unfavourable combinations of horizontal and vertical curves can result in apparent discontinuities in the alignment ... Only the consideration of the road as a three dimensional entity can reveal such deficiencies, and good design practice requires the elimination of all avoidable hazards, even though some additional expense may be incurred."

"The designer must therefore provide the driver with as many clues as possible as to what lies ahead, but must make sure that the roadside conditions do not convey messages which are ambiguous or misleading ... Again a crest should not obscure a potential hazard such as a narrow bridge, a railway at grade crossing or a horizontal curve which requires a significant reduction of speed. Even small crests can obscure important features. The visual cues presented to the driver by the view of the road service are especially important on sections of sharp curvature."

13 Reference was made to a drawing in the Guide (p 458) showing a road curving to the left after a crest in the road where it is said:

"The summit vertical curve restricts the driver's view of the start of the horizontal curve and can produce a dangerous situation".

It was said that that had been the situation in this case (Ts 56) and that the MRD had not provided a sign showing the curve ahead.

14 It was submitted that so far as the designer of the road, the second respondent, was concerned, the road should have been designed so as to avoid "the crest before the bend situation". It was alleged that the second respondent had constructed a road which had obscured a potential hazard, namely the curve to the left. That the design would probably have been in order if curve warning signs had been placed there. It was contended that the second respondent had failed to care for, manage and control the use of the road by advising, stipulating or erecting adequate road signage (Ts 67). Further, that the second respondent should have drawn the hazardous situation to the attention of the MRD. It was said that Mr Karpinski and Mr Bordbar [query Mr MacPherson 290C] had given evidence that the second respondent could have avoided the dangerous situation.

15 It was contended for the appellant that the MRD was responsible for the management and maintenance of regulatory signing and road marking. At the trial it had been accepted by the MRD that if there was an unexpected hazard which could not be perceived by a driver, there was a requirement that a sign be put up to reflect that situation (Ts 74).

16 Mr MacPherson, an expert in "risk management" whose evidence was accepted by the learned Judge, said that once the shape of the road could be perceived by the driver, there was no need to warn of a curve. His opinion was that the combination of the vertical and the horizontal curve of the road at the relevant place had not been outside recommended road design practice and had not presented a foreseeable risk of danger to road users.

17 The learned Judge found that the curve had started before the crest. The curve had commenced at point 135.847 which was to the east of the crest. The crest was at point 126.823. It was submitted for the MRD that the driver could have seen the curve from 600 metres back when the sun would not have been directly in his eyes.

18 Neither the appellant nor his passenger, later his wife, could remember the circumstances of the accident. The appellant could not remember anything from some way before the scene of the accident. His passenger conceded that she was not able to say anything about the speed at which the appellant had been driving prior to the collision. She was unable to give any detail about what had happened. It was suggested for the defendants that maybe the appellant had been talking to his passenger or perhaps he had been blinded by the sun.

19 With reference to the possible blinding by the sun, reference was made for the respondents to reg 101(4) of the Road Traffic Code which makes it clear that a driver is not permitted to drive at the speed limit where conditions do not make it safe to do so.

20 It was submitted for the MRD that it could not place "1000 signs" to deal with foggy conditions, sun in the eyes, heavy rain and all of those types of conditions. It was submitted that all the MRD could do was to put up signs showing under ordinary conditions what the circumstances were. It was pointed out that at 80 kph the minimum horizontal curve radius recommended was 280. The relevant curve had been designed to 305 and so it was truly within the safety limit. It was submitted that both the vertical curve and the horizontal curve had been in accordance with recognised road standards. Mr MacPherson had said that the road complied with the standards. The learned Judge had accepted his evidence. It was submitted that there had been no need for any signs to be erected because the road was not substandard.

21 Mr Kimberley, a signage expert with the MRD gave evidence that he had formed the view that there was no need to erect signs (247), (249B). He had said that it was only in "the little dip" that the sun was in the driver's eyes and that an attentive driver coming over a hill back from the crest could see the whole road laid out ahead of him. He was referring to a hill before the dip. The hill was approximately 600 yards back from the crest. At that time a driver could see in front of him, the dip in the road, then an intersection, the high point beyond it (the crest) and the commencement of the curve.

22 The appellant had said in evidence that from visits he had made to the scene after the accident:

"You come down the hill [some distance before the crest] and just on the last bit where it kicks up, that is where the sun hits you." (My words in brackets)

"And that is as far as I can figure. Because you come down and back up that last bit before the crest. The sun hits you at the same time as that bend is there."

24 It was submitted for the MRD that having regard to all the evidence, there was no evidence that the accident had been caused by the sun other than Mr Bomford's reconstruction of what could have happened. No-one could say what had happened just prior to the accident:

"Whether he turned to look at her and forgot to look at the road for a moment; ... all that is conjecture. It has to be conjecture. All we know is, that instead of following the road around, he kept going straight on."

25 It was submitted that the learned trial Judge had been entitled to accept the evidence of Mr MacPherson and Mr Kimberley. If their evidence was accepted, there was no hazard and there had been no need to erect a sign.

"I would find however, that the plaintiff's negligent driving was in reality the cause of the accident: he drove into the sun when he could not properly see the road and approached an intersection and curve at a speed which, under the circumstances, was excessive."

27 In my view however, it is significant that Mr Pitman, who lived in the area, had given evidence concerning the relevant curve that:

"On a few occasions you come down there, especially, the sun often hits you in the eyes and - only I know the area and I know where I've got to go. I could turn but if I was in a situation, I would just keep going. It is a blind spot as far as I am concerned."

28 Mr Pitman said that the area had changed since the time of the accident due to the planting of trees and things like that. He said there had been a sign warning of a curve there for a while but: "... then they took it down again. I don't know why."

29 In my view it is a fair conclusion from all the evidence, that apart from the sun factor, the speed limit of 80 kph was not excessive. The expert evidence which the learned Judge accepted, was to that effect.

30 The case for the appellant at the trial had been primarily based on the fact that there had been no warnings of the left-hand curve on the crest of the hill. It had been contended that the curve had created a hazardous situation when the sun was in a driver's eyes.

31 There are a number of matters which support the learned trial Judge's reasoning that the sun contributed to the accident:

1. the accident took place at a time when it could be expected that the sun would have been in the driver's eyes;

2. only the first 9 metres of the 300 metre curve was before the crest.

3. the appellant's passenger had said in evidence that the appellant had been complaining about the sun and had said that he wished he had had his sunglasses.

32 In my opinion it was obviously negligent for the appellant to continue to drive when he was blinded by the sun. Further, in my view his Honour correctly drew the inference that the appellant had driven into the sun when he could not properly see the road. However, it is also apparent from the appellant's direct line of travel that it is most probable that the appellant presumed that the road was proceeding in a straight line.

33 In my opinion it should have been held that the MRD should have known or found out that at certain times on many days the sun would be in a driver's eyes as the driver came up to the crest or as the driver reached the crest. Having ascertained that fact the MRD should have placed a sign some distance back from the crest warning of the road's curve to the left at the top of the crest. The curve situation is depicted to in the drawing which is mentioned earlier in these reasons.

34 This was a different situation to that of a driver proceeding into a curve with the sun in his eyes and he knowing he was on a curve. It was a situation where coming up to the crest or on the crest a driver could be temporarily blinded just where the road curved to the left.

35 In Romeo v Conservation Commission (NT) (1998) 192 CLR 431; (1998) 72 ALJR 208 at 235 (par 126) Kirby J said:

"In Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, Mason J expressed the test which is accepted in Australia for ascertaining whether a breach of a duty of care of the defined scope has occurred. He said that the tribunal of fact must ask whether a reasonable person in the defendant's position would have foreseen that the conduct complained of involved a risk of injury to the plaintiff or to a person in a similar position: Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47-48:

'If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position'."

36 In Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 74 ALJR 1 at 13 (par 62) McHugh J said:

"There is one settled category which I would have thought covered this case: it is the well-known category 'that when statutory powers are conferred they must be exercised with reasonable care, so that if those who exercise them could by reasonable precaution have prevented an injury which has been occasioned, and was likely to be occasioned, by their exercise, damages for negligence may be recovered' (Caledonian Collieries Ltd v Speirs [1957] HCA 14; (1957) 97 CLR 202 at 220 per Dixon CJ, McTiernan, Kitto and Taylor JJ). Similarly, in Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424 at 458 Mason J, citing Caledonian Collieries Ltd v Speirs at 219-220 said that '[i]t is now well settled that a public authority may be subject to a common law duty of care when it exercises a statutory power or performs a statutory duty'."

37 Applying the above principles, in my view, it should be held to be negligence on the part of the MRD for not adequately warning of a dangerous situation when it accepted that it had a duty to take reasonable care concerning signage on roads. Concerning the proposition referred to earlier in these reasons, that signs only warn of ordinary conditions, it is common knowledge that "flooding" signs and kangaroo warning signs etc are erected on some roads to warn drivers of unusual dangers.

38 It is appreciated that there are many road situations where the sun can blind on-coming drivers. But this in my view was an unusual situation in that the road curved left and down at the top of a crest. It is a fair inference from all the facts that the appellant was trapped.

39 I would find that while the MRD was negligent in not putting a warning sign some distance back from the crest which would have alerted the appellant to the situation, the appellant was 50 per cent responsible for the collision due to his contributory negligence in continuing to drive when he was blinded by the sun.

40 With respect to the second respondent, there is no evidence in my view which would lead to the conclusion that it was negligent in its designing of the road which met all the recognised safety requirements. In my view the learned trial Judge was correct to hold that the design of the road was not negligent. On the Austroads' standards there was a curve of 305 metres when the standard was 175 metres. Mr MacPherson and Mr Smith were both of the view that the design was not negligent and did not pose a hazard.

41 I would allow the appeal against the MRD to the extent of 50 per cent liability and dismiss the appeal against the second respondent.

42 MURRAY J: In my opinion this appeal turns entirely upon the facts of the case. It was an action for damages for personal injuries sustained by the appellant in a motor vehicle accident which occurred at about 7.50 pm on 15 January 1992 when the appellant drove a motor vehicle owned by a female friend, who was a passenger in the car, through a relatively gradual left hand bend onto the incorrect side of the road where it collided head on with a vehicle being driven in the opposite direction. The accident occurred on Hester Avenue, Clarkson, a road which at the point of the collision, had a generally east-west alignment. The car being driven by the appellant was travelling west. The official time of sunset on the day in question was just over half an hour after the accident.

43 The trial Judge found that the appellant's friend was wearing her sunglasses. She could remember nothing about the circumstances of the accident or immediately preceding it, except that she found the sun to be very bright and at some time before the accident the appellant had complained about the brightness of the sun and said that he wished he had brought his sunglasses.

44 The appellant could remember nothing of the circumstances of the accident and no person connected with the other vehicle involved appears to have been called to give evidence. There were no marks on the road which would assist to explain the accident and the trial Judge concluded that the appellant had not applied the brakes of the car prior to the collision. It was not apparently suggested that the appellant was intoxicated to any degree and so all that was established was, as I have said, that the appellant drove the car through, rather than around, the gradual left hand bend until he collided with a vehicle travelling in the opposite direction while on his incorrect side of the road. What brought him to that position was not established. There was no evidence of speed, mechanical failure of his vehicle, whether the appellant was talking to his friend and simply not watching the road, or whether he was for some other reason distracted from doing so by something otherwise occurring in, or in the vicinity of the vehicle. There was evidence that the speed limit in the area was 80 kph as advised by signs erected by the road, but there was no evidence of the speed at which the appellant's vehicle was travelling.

45 It should be said that in circumstances which are not clear to me, so much of the police accident investigation file as had been obtained by the appellant's solicitors pursuant to a freedom of information application, was admitted in evidence. It contains a statement obtained from the driver of the other vehicle, who was apparently its sole occupant. The document records that person, whose identity is not revealed, as having stated that he or she had no memory of the collision or of any occurrence after he or she drove the vehicle from home, a place about 2 minutes from where the accident occurred.

46 There was a conflict of expert evidence in relation to the design and construction of the road. It was resolved by the trial Judge who, for reasons which I need not repeat here, preferred one body of evidence to another. The appellant challenges that process on appeal, but in my view the challenge is unsustainable. A vehicle travelling in a westerly direction approaches the curve upon which the accident occurred along a gentle down gradient. The gradient increases very slightly just before the curve and then rises again gradually. There is a minor crest about 10 metres after the commencement of the curve and then the road commences to fall away again in a gradual fashion, the point of collision being about 40 metres further on. The horizontal curve is also of a gradual sweeping nature to the left. It is visible from a point about 600 metres to the east. The gradient and degree of the curve are well within safety limits to sustain the speed limit of 80 kph.

47 The conditions at the time were very good; the road surface was excellent and there was a divided line marking the centre of the carriageway. The trial Judge said:

"The evidence leads to the compelling conclusion that the vertical curve was indeed slight and the horizontal curve gradual. A driver on that road travelling at 80 km/h should experience no loss of vision of the direction of the road and his vision of oncoming traffic would not be impeded by the crest."

In those circumstances I respectfully agree with Wallwork J that the appeal against the dismissal of the appellant's claim against the second respondent, who was responsible for the design and construction of the road, cannot succeed.

48 I turn then to the appeal against the dismissal of the claim against the first respondent, who is the authority responsible for road signs in respect of this road, and who is alleged by the appellant in the statement of claim to have been negligent by reason of the failure to place an appropriate road sign or signs "warning of a sudden sharp left hand curve in the road and [giving] an indication to road users to slow down". It will be noticed that there was no pleaded assertion that a sign indicating that a road user travelling west in the afternoon might at some time, and at certain times of the year, encounter difficulties with visibility by reason of the sun shining into the driver's eyes.

49 The trial Judge dismissed the claim as it was pleaded and in my respectful opinion he was bound to do so. The nature of the curve was found to be gradual, there was no impediment to visibility and there was ample evidence to sustain the conclusion that a speed limit of 80 kph was not too fast to be able to negotiate the curve with safety.

50 I have mentioned that it is not really known upon the evidence how or why the accident happened. The trial Judge accepted the likely explanation, in view of the fact that the appellant simply failed to cause his car to follow the curve around, to be the negligent driving of the appellant, who "drove into the sun, when he could not properly see the road and approached an intersection and curve at a speed which, under the circumstances was excessive." Of course it was unnecessary to make any such finding and to my mind, whilst that is a likely explanation, the evidence does not enable one to exclude an explanation such as driver inattention or distraction for some reason and it is simply not known at what speed the car was travelling.

51 If the appellant simply drove on while blinded by the sun, he did so in circumstances when his vehicle was in close proximity to the commencement of the curve. Had he been paying any attention to the road, he must have seen the curve well before this point. Perhaps he forgot how close he was to it. All is speculation, but the point is that it is basic to safe driving that one does not drive on when one cannot see the road ahead by reason of sun, smoke, fog, rain or any other cause. A driver simply cannot assume that the way ahead, although hidden, is clear of obstruction or danger and that the road continues in a straight line.

52 It was not in dispute that the first respondent owed the appellant a duty of care as the sign erecting authority, but in this case it was not established that it breached that duty in any way which was causally related to the appellant's damage. To my mind the case fell squarely within the observation made by Kirby J in Romeo v Conservation Commission (NT) (1998) 192 CLR 431 at 478:

"Where a risk is obvious to a person exercising reasonable care for his or her own safety, the notion that the [defendant] must warn the [plaintiff] about that risk is neither reasonable nor just."

With respect for the contrary view, I would dismiss the appeal and uphold the judgments in favour of both respondents.