Commissioner of Main Roads v Jones

Commissioner of Main Roads v Jones - [2005] HCA 27 - HCA 2005 case summary — Zoe

[13]

The difference of opinion between the majority in the Full Court, on the one hand, and Murray J and the trial judge, on the other, was largely concerned with the proper inferences to be drawn from a body of evidence about the comparative risks of straying animals along the Great Northern Highway, and at particular locations.
In this respect, the case provides another example of the danger involved in considering warnings without making due allowance for the distorting effect of litigious hindsight. The matter was discussed in Rosenberg v Percival[2]. When a foreseeable risk has eventuated, and harm has resulted, the particular risk naturally becomes the focus of special attention. Yet, if it was only one risk among many, there may have been no reason, at the time of the allegedly tortious conduct, to single it out. The Great Northern Highway extends, unfenced, for long distances, through cattle stations. The respondent knew that, all along the highway, there was a risk of colliding with animals. His case was not that there should have been a warning sign, or a reduced speed limit, covering the entire length of the road. His case was that there should have been such a sign, and a reduced speed limit, covering the place where the collision occurred. Yet the evidence accepted by the trial judge showed that there was nothing so unusual about that locality as to warrant the measures for which the respondent contended.
In my view the trial judge's conclusion on the issue of breach of duty should not have been disturbed. There was, however, a substantial basis for the difference of opinion. It related to the significance of the evidence of a number of local residents as to their appreciation of the risk in the locality. If the present appeal had turned only upon this first issue, it would have been necessary to deal with that evidence in more detail. However, on the issue of causation, the outcome is more clear-cut, and turns upon facts that can be stated shortly.
The evidence showed that the respondent's average speed, over a distance of more than 200 km before the collision, was between 135 km and 140 km per hour. The road was not entirely straight and clear. There were places where the respondent would have been forced to reduce speed. To achieve that average, his maximum speed must have been significantly greater than 140 km per hour. He drove through Turkey Creek, a settlement only 6 km from the place of the accident, where the speed limit was 90 km per hour, at such a high speed that he attracted local attention. The trial judge accepted the evidence of a witness who estimated the respondent's speed through Turkey Creek at about 140 km per hour.
The trial judge said:

[15]

The respondent, by reason of his injuries, was unable to give evidence. In reversing the finding of the trial judge on the causation issue, the majority of the Full Court relied upon evidence of the respondent's wife, who was not in the car when the collision occurred, and of a passenger, who was asleep. They both said that it was the respondent's usual practice, when driving, to adapt his speed to warning signs.
The finding of the trial judge was not based on the respondent's credibility. It was based on objective evidence of the conduct of the respondent in the course of the journey in question and, in particular, over the period immediately before the collision. The trial judge was satisfied, on the evidence, that the respondent was aware of the danger constituted by animals, both wild and domestic, along the whole length of the road on which he travelled at very high (and legally excessive) speed. He did not slow down on account of the danger to people at Turkey Creek. He ignored a sign reducing the speed limit. In fact, he appears to have ignored speed limits altogether. The likelihood that he would have responded to another sign reached a few minutes after he passed through Turkey Creek seems remote. The trial judge heard the evidence of the respondent's wife, and the passenger, and did not regard it as of sufficient weight or cogency to displace the inference clearly available from the objective evidence of the respondent's behaviour on the occasion in question. The Full Court was not justified in substituting its own view for that of the trial judge on the point. The reversal of the finding on causation was unwarranted.
I agree with what is said by Callinan J concerning the new evidence.
I would allow the appeal, set aside orders 1 to 4 of the orders of the Full Court, and order that the appeal to the Full Court be dismissed. In accordance with the undertakings given at the time of the grant of Special Leave to Appeal, the appellant must pay the costs of the appeal to this Court.
McHUGH J. In my opinion this appeal should be allowed. The respondent, Lloyd Russell Jones, suffered serious injuries on the night of 11 May 1992 when his car collided with a horse that had strayed onto the Great Northern Highway in the Kimberley district of Western Australia. The accident occurred between Mabel Spring Creek and Rocky Creek, two creeks over which the Highway passes. The accident site was 5.8km south of the town of Turkey Creek, situated 194km south of Kununurra.
Mr Jones sued the appellant, the Commissioner of Main Roads, for damages for negligence in the District Court of Western Australia alleging that the Commissioner had breached the duty of care that he admittedly owed to Mr Jones. Mr Jones' Further Re‑Amended Statement of Claim alleged that, within 500 metres of the accident site - at Rocky Creek and at the junction of Rocky Creek and Turkey Creek - were watering holes and that about 1.5 to 2km from that site was a water bore. It also alleged that the watering holes and bore were likely to attract wild animals including horses. Mr Jones claimed that the Commissioner had breached his duty by failing to exercise his power to reduce the speed limit applicable "in the area where the collision occurred" to 80km/h. The speed limit that applied in that area was 110km/h. Mr Jones also alleged that the Commissioner had breached his duty by failing to erect signs warning motorists of the hazards created by animals in that area of the Great Northern Highway. The trial judge, Charters DCJ, rejected Mr Jones' claim for damages[3], but, by majority, the Full Court of the Supreme Court of Western Australia allowed Mr Jones' appeal against that decision[4]. The Full Court found that the Commissioner had been negligent and that Mr Jones' contributory negligence was 50 per cent responsible for his injuries.
The trial judge found that there was "a significant danger of encountering animals at night on the road throughout the station or cattle country in the Kimberley region". His Honour said that there was always a prospect of encountering wild animals, such as horses, donkeys and kangaroos. His Honour found that Mr Jones was aware of the danger posed to motorists by animals straying onto the Highway in the area where the accident occurred. The learned trial judge also found that the speed at which Mr Jones was travelling had averaged between 135 and 140km/h and that he had driven through Turkey Creek at a speed of about 140km/h. His Honour also held that the evidence did not establish the risk of injury from straying animals was greater upon the section of the highway between Kununurra and Halls Creek, which was 358km south of Kununurra, than upon other parts of the Highway. His Honour said that there was no particular propensity for animals to approach the section of the Highway in question. Accordingly, his Honour found:

[21]

Steytler J found it "to be probable that, had there been a warning sign as to the particular danger presented by straying animals in the area around Mabel Spring Creek and Rocky Creek, [Mr Jones] would have slowed down, to some extent at least."[8]
It is unnecessary for me to determine whether the Full Court was justified in overturning the trial judge's findings concerning the dangers arising from animals straying onto the Highway in the area between Mabel Spring Creek and Rocky Creek. That is because, in my opinion, even if warning signs were needed in that area and even if the speed limit should have been reduced to about 80km/h, Mr Jones failed to prove that their presence would have prevented his accident or reduced his injuries.
The evidence established a high probability that, for much of the 200 kilometres that Mr Jones travelled before the accident, his speed significantly exceeded the speed limit of 110km/h. Indeed, the evidence did more than indicate that his average speed was somewhere between 135 and 140km/h. Given the winding nature of parts of the Highway, to have achieved an average speed of 135‑140km/h over that distance, he must have travelled at times at speeds in excess of 140km/h. Moreover, the evidence established that he was travelling at a high speed - 50km/h in excess of the speed limit - shortly before the accident. Turkey Creek is 5.8km from the accident site. The speed limit at Turkey Creek was 90km/h. Yet Mr Jones went through Turkey Creek at a speed of about 140km/h according to a witness whose evidence the trial judge accepted.
With great respect to the majority judges in the Full Court, it seems fanciful to suppose that a speed sign of 80km/h in the area before the accident site would have caused Mr Jones to reduce his speed to any significant extent. He had probably disregarded the speed limits for the whole or almost the whole of his journey and he had travelled at a speed more than 50 per cent in excess of a 90km/h sign less than three minutes before the accident. Nothing in the evidence accepted by the trial judge suggests that Mr Jones would have reduced his speed because of an 80km/h sign in the Mabel Spring Creek-Rocky Creek area. The trial judge made his finding concerning causation despite the evidence of Mr Jones' wife and his passenger that he was a careful driver who took notice of road signs. Given the evidence of Mr Jones' speed through Turkey Creek and the entire journey, rejection of their evidence was inevitable, assuming that it was admissible as evidence of habit.
A more difficult question is whether the accident could have been avoided if, as the Full Court found, the Commissioner breached his duty by not erecting signs between Kununurra and Halls Creek warning of the danger of straying animals. Mr Jones' case on this aspect of causation depends on whether it is reasonable to draw the inference that the presence of such signs would have reinforced the need to obey the speed limits or alternatively would have caused him to keep a better lookout.
The view that a warning sign would have induced Mr Jones to keep a better lookout is easily dismissed. There was no evidence that he was not keeping a proper lookout. It would be speculation - not inference - to conclude that the presence of signs would have induced him to keep a better lookout than he did.
The majority judges in the Full Court thought that warning signs would have caused Mr Jones to slow down with the result that he would have had a better chance of avoiding the collision and of suffering less severe injuries. Steytler J said[9]:

[23]

The reinforcement claim, however, faced formidable difficulties. First, the evidence did not reveal the circumstances in which the accident occurred. Whether the collision with the horse would have been avoided if Mr Jones had been travelling at 80km/h can only be a matter of speculation. Secondly, the trial judge accepted the evidence of an expert on road planning and traffic control that the effectiveness of warning signs can be maintained only "where the road environment is likely to present a hazard which is outside the probable driver expectation." The Australian Standards concerning road signs also accepts that a multiplicity of such signs undermines their influence on drivers. A proliferation of warning signs between Kununurra and Halls Creek would probably have had little effect on drivers generally and Mr Jones in particular, given his disregard of speed limit signs for 200km between Kununurra and the accident site. Thirdly, Mr Jones knew that, in driving along this Highway, he ran the risk of colliding with domestic and feral animals straying onto the Highway. That risk was present, to his knowledge, throughout the entire section of the journey from Kununurra to Halls Creek. Yet his average speed throughout the journey was between 135 and 140km/h, well in excess of the speed limit.
Once the trial judge declined to accept the evidence of Mr Jones' wife and his passenger concerning his response to road signs, nothing in the evidence justified the Full Court in refusing to accept the inferences flowing from his cavalier disregard of the speed limits governing his journey. It may or may not have been open to the trial judge to make a positive finding that Mr Jones would not have been influenced by a straying animal warning sign or obeyed an 80km/h sign. But however that may be, it was not open to the Full Court to find that he would have acted in accordance with either of such signs.
This was not a case where the only evidence concerning causation was that the defendant had breached his duty of care and that the injury that occurred was within the scope of the risk of injury arising from the breach of duty[10]. In such cases, it is always open to the tribunal of fact to find a causal connection between the breach and the injury even though the exact cause of the injury or conduct of the plaintiff is unknown[11]. In this case, however, the evidence showed that Mr Jones travelled at speeds throughout his journey that were well above the speed limit of 110km/h even though he was aware of the danger of animals straying onto the Highway. It also showed that less than three minutes before the collision he had travelled through Turkey Creek at 140km/h although a sign erected on the outskirts of the town proclaimed a 90km/h speed limit. Far from the accepted evidence proving that Mr Jones would have slowed down if he had seen 80km/h speed limits and straying animal warning signs, it tends to suggests that they would not have influenced his conduct. What he did in relation to traffic signs during his journey was the best evidence of what he might have done if additional or different signs were present during the journey. And his flagrant and persistent breaches of the traffic speed signs that did exist indicate that an 80km/h speed sign and an animal warning sign would have made no difference to his driving as he approached the accident site. Even if the accident would have been avoided or the severity of Mr Jones' injuries reduced by erecting an 80km/h sign in the accident area, the evidence does not support a finding that he would have driven at 80km/h or at a lesser speed than he did. With great respect to the majority judges in the Full Court, they were not entitled to reverse the findings of the learned trial judge concerning the causation issue.
Mr Jones also relied on new evidence that was tendered in the Full Court. However, once the finding of the trial judge on the causation issue is accepted, the new evidence on which Mr Jones relied could make no difference to the result of the case. It goes to the issue of breach, not the issue of causation.

[24]

The appeal must be allowed. Orders 1 to 4 of the orders of the Full Court of the Supreme Court of Western Australia allowing the appeal to that Court must be set aside and in their place order that the appeal to that Court be dismissed. In accordance with the undertakings that were given at the time of the grant of special leave to appeal, the appellant is to pay the respondent's costs of this appeal.
GUMMOW AND HAYNE JJ. At about 5.30 pm on 11 May 1992, the respondent, Mr Jones, with a passenger, Mr Stewart, left Kununurra in the Kimberley district of Western Australia to travel south to Halls Creek along the Great Northern Highway ("the Highway"). The respondent was driving a hired sedan motor vehicle. At about 7.00 pm, while the passenger was asleep, the car collided with a wild horse which had strayed onto the Highway. The respondent was 57 years old. He suffered severe head injuries and never recovered total consciousness.
The respondent's claim for damages in negligence was brought by his wife as his next friend. The action was tried in the District Court of Western Australia (Charters DCJ sitting without a jury)[12]. His Honour dismissed the action. However, an appeal to the Full Court of the Supreme Court of Western Australia (Malcolm CJ and Steytler J; Murray J dissenting) was successful[13]. By majority, the decision of the District Court was set aside and an order was made that the appellant was liable to the respondent for 50 per cent of the damages he sustained; in the absence of agreement as to the quantum of damages, the matter was to be returned to the District Court for assessment[14].
Against that decision, the defendant in the action, the Commissioner of Main Roads ("the Commissioner") appeals to this Court seeking reinstatement of the outcome in the District Court. It is convenient first to say something respecting the statutory powers and functions of the Commissioner.
The Commissioner is constituted as a body corporate by s 9 of the Main Roads Act 1930 (WA) ("the Roads Act"). At the relevant time, the Roads Act (s 15(2)) conferred upon the Commissioner the care, control and management of land over which a highway or main road was declared. Further, s 16(1) empowered the Commissioner to do all things necessary for or incidental to the proper management of all highways and main roads in Western Australia.
Further provision was made by regulations titled the Road Traffic Code 1975 (WA) ("the Code"). This authorised the Commissioner to erect, establish or display traffic signs and traffic control signs (reg 301(1)). Persons contravening the direction of the inscription on a traffic sign committed an offence (reg 304). The Code also prescribed a general speed limit throughout Western Australia of 110 kms per hour (reg 1001).
The Highway began as a dirt track constructed in the 1880s by station owners running bullock teams and was used by those participating in the gold rush in the Halls Creek area in about 1885. With financial assistance under the Western Australia Grant (Beef Cattle Roads) Act 1961 (Cth), the Highway was graded and gravelled and, in 1972, it was sealed. At the time of the accident, the Highway was a dual sealed carriageway.
Halls Creek is 358 kms south of Kununurra. Turkey Creek, where there is a roadhouse and a signed speed restriction of 90 kms per hour, is 194 kms south of Kununurra. The accident site was 5.8 kms south of Turkey Creek. A speed derestriction sign appeared at the southern exit of Turkey Creek. The result was to restore the general State limit of 110 kms per hour.
The accident site was between Mabel Spring Creek and Rocky Creek. The Highway is carried over these creeks (or creek beds) by one‑lane bridges; there are signs before each bridge indicating "Narrow bridge, one lane" and "No overtaking or passing". There were signs warning of stock crossing or straying onto the Highway at Rosie's Yard and Tikalara Bore, respectively well north and south of the accident site.
Given the starting time of the trip, the time of the accident and the distance travelled, the trial judge, whilst not confident that the times could be said with great accuracy, found that the speed at which the vehicle was travelling was somewhere between 135 and 140 kms per hour as an average. His Honour also found that the respondent had driven through Turkey Creek at a very high speed, probably about 140 kms per hour, despite the signed speed restriction of 90 kms per hour.
This was not a case which turned upon the state of the Highway. The accident occurred because the vehicle came into collision with a wild horse which appears to have run onto the road coincidentally at the time when the vehicle was passing. The collision caused the respondent to lose control of the vehicle so that it left the road and struck a tree 20 to 30 metres south on the left side of the road. The relevant duty imposed by the law upon the Commissioner was one to take reasonable care for the safety of the respondent as a user of the Highway. The relevant powers of the Commissioner were those dealing not with the construction and maintenance of the Highway but with the creation and maintenance of appropriate signs where necessary for the guidance and protection of road users, including the imposition of particular speed limits.
Consistently with the decision in Brodie v Singleton Shire Council[15], it is not an issue that a statutory body, such as the Commissioner, may come under a common law duty of care in relation to the exercise or failure to exercise its powers and functions. In submissions to this Court, the Commissioner did not dispute the existence of a duty of care. This obliged the Commissioner to take reasonable care that its exercise or failure to exercise its powers and functions did not create a foreseeable risk of harm to road users, including the respondent.
Where the state of a highway or main road created such a risk, the Commissioner was obliged to take reasonable steps to alleviate the danger. But what was reasonable in this case? On that subject, the following was said in the joint judgment in Brodie[16]:

[27]

The statement of claim in its final form alleged the presence of watering holes in Rocky Creek and at the junction of Rocky Creek and Turkey Creek, being located within 500 metres from the accident site, and the existence of a bore known as Six Mile Bore, located some 1.5 to 2 kms south-east from the site. The respondent pleaded that the Commissioner should have been aware of the attraction of wild animals, including horses, to the watering holes and bore.
The respondent did not complain of a failure to take measures to stop animals straying onto the Highway, for example by fencing off the road from the surrounding countryside. Rather, the contention was that the hazard was such as to call for the exercise by the Commissioner of its powers to reduce the speed limit and require some form of warning sign or signs to warn motorists of the nature of the hazard; the wording of those signs was not specified. The respondent pleaded that the Commissioner had failed to take any measures to reduce the speed limit "in the area where the collision occurred" below the general State limit of 110 kms per hour, and that the Commissioner had failed to erect and to display warning signs "in the area where the collision occurred" so as to warn motorists of the hazard created by animals on the Highway.
The trial judge made findings that (i) throughout the Kununurra region there was a significant danger of encountering wild animals, including wild horses, donkeys and kangaroos, on the road at night; (ii) this was true of the whole stretch of the Highway between Kununurra and Halls Creek; (iii) but in 1992 there was no unusual concentration of animals at any particular section of the Highway between Kununurra and Halls Creek; (iv) the reported accident statistics for the Highway from Kunuurra to the accident site did not show a greater rate of accidents in the area of the two creeks, Mabel Spring Creek and Rocky Creek, than encountered in any other area; for the area of the two creeks, there were two reported accidents with horses in the years 1985 to 1992, in 1987 and 1992; (v) pictorial signs for straying stock on the Highway between Mabel Spring Creek and Rocky Creek were not warranted given the presence of the risk of straying animals along the whole of the Highway; and (vi) the introduction of local speed limits in areas of perceived concentration of animals with a propensity to stray onto the Highway would have been impractical.
His Honour also found that, in May 1992, the creeks in the Kununurra region, of which there were hundreds, contained water and there was no logical reason why the Turkey Creek area should have attracted more animals than elsewhere on the Highway. In 1992, an average of 252 vehicles per day travelled the Highway between Kununurra and Halls Creek. In a period of more than seven years before 11 May 1992, 50 accidents were reported along that length of the Highway as having involved animals; 14 of these required admission of persons to hospital or other provision of medical treatment.
From the judgment of the District Court, an appeal lay to the Full Court of the Supreme Court, as from the Supreme Court itself[18]. The Rules of the Supreme Court (WA) provide (O 63 r 10(2)):

[41]

Mr Holdsworth also had agreed that "there is a high probability that a motorist could encounter an animal anywhere on the highway between Kununurra and Halls Creek" and that "the dangers associated with large animals and the road would be obvious".
Steytler J's view also depended upon what was said to be the evidence of local residents that the standard speed limit was far too high in the area between Mabel Spring Creek and Rocky Creek, a matter, however, both contentious and expressive of opinions not always fully reasoned. Likewise the reference in par 105 of Steytler J's reasons to those parts of the Highway in which animals were more frequently to be found and to the areas of highest risk could be turned to account in the respondent's case only by attributing to the particular locality of the accident site the characteristic of a high risk area. That can be done only by overturning the findings of the trial judge.
The Commissioner has made out the case in this Court that there was no occasion for the Full Court to interfere with the conclusions reached by the trial judge[24].
In the interval between the adjudication at the trial and the hearing by the Full Court, the Commissioner gave discovery of documents which ought to have been, but which had not been, discovered at trial. The majority of the Full Court did not have to consider the matter, but Murray J did so and concluded that the material did not support an application for a new trial[25]. The respondent reagitated the question in this Court. We agree with what has been said in the reasons of Callinan J upon this question.
The appeal should be allowed. Consequential orders should be made as stated by Callinan J.
CALLINAN J. Western Australia is a vast and sparsely populated State. The provision and maintenance of roads to service remote communities must be an onerous and expensive task. One such road is the Great Northern Highway which extends for more than 1,430 kilometres. The stretch of it with which this appeal is concerned lies between Kununurra and Halls Creek, and consists, for the most part, of an unfenced, sealed dual carriageway, generally level and fairly straight. It passes through country in which there are waterholes that attract wild horses and other animals. On 11 May 1992 the respondent approached and drove through the area at an average speed of 135 kilometres per hour despite that the maximum speed permitted anywhere in Western Australia[26] was 110 kilometres per hour The appellant, who has responsibility for the highway[27], had not erected signs warning that wild animals might stray onto it. A horse did, at about 7:00 pm. The respondent's vehicle collided with it. He suffered serious injuries in consequence. Is the appellant liable to the respondent for damages for negligence? A District Court judge thought not. An intermediate appeal Court, the Full Court of the Supreme Court of Western Australia thought that it was. The question which this Court has to decide is, who was correct?

[90]

I do not discern the majority in the Full Court or Murray J, to have attempted to do otherwise than conduct an appropriate review on the appeal to that Court. The majority in several ways however erred in that undertaking.
Their review of the facts was incomplete in some highly relevant respects. Some inferences which they drew were not reasonably open. And their reasoning from effect or result to cause, was simplistic and flawed. The burden that they held that the appellant should have assumed, but did not discharge, of conducting an "audit" of accidents was not a burden which the appellant was obliged to assume either under the Main Roads Act 1930 (WA) regulating its powers and duties or otherwise. In any event, the inference that the majority drew, that an audit would have demonstrated such a number of accidents of the same or a similar kind as to oblige the appellant to erect signs, was not reasonably open.
The majority in the Full Court approached the matter as if the appellant were the creator of the danger that caused the respondent's injury[37]. A duty of care may of course, indeed often does, arise even in cases in which a defendant has not been the author of a hazard, but different considerations will apply if that is not the case. Ordinarily, and absent particular circumstances, for example, the existence of a statutory duty[38], an allurement to children[39], the existence of a special relationship such as employer and employee[40], or occupier and entrant[41], a court will be less ready to find a defendant who has not created the danger liable for it[42]. The construction and maintenance of the highway along the great length that it extends, did not create the danger presented by straying animals.
The majority did prefer imprecise anecdotal evidence of witnesses called by the respondent to statistical evidence to which the respondent was privy. In this respect I do not overlook the material, including the manual in the belated discovery of which the appellant was delinquent. Its proposals and recommendations were not adopted, nor indeed could they, as a practical matter, have been, along the length of the highway. It was apparent in the approach of the majority that they thought that even if the appellant was not obliged to conduct an audit, he should at least have inquired of local users of the highway of the number and kinds of accidents that they believed to have occurred, and to have acted on their estimations rather than on the official information in his possession. That was not something that the appellant was bound to do.
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.
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.
This was not a case in which cause could be inferred from the result, that is the collision. In the dictum of Gaudron J in Bennett[43], upon which Steytler J relied, there is reference to a statement by Dixon J in Betts v Whittingslowe[44], a case of breach of statutory duty, to the effect that the breach coupled with the fact of an accident of the kind that might thereby be caused, is enough to justify an inference that in fact the accident occurred owing to the breach. But contained within that statement is the important qualification of an "absence of any sufficient reason to the contrary."
In my opinion in this case there were sufficient, indeed overwhelming reasons to the contrary. The most important is that the appellant's speed averaged at least 135 kilometres per hour throughout his journey. Self evidently he must have either ignored or overlooked speed limit signs which were in place, and the overall State speed limit in order to achieve that average speed. As an experienced traveller in the area, a matter to which the majority in the Full Court accorded no relevant and sufficient weight, he chose to maintain that average speed through country and on a highway over which he must have known animals both domestic and feral strayed.
The majority made a further error: in preferring and giving almost conclusive weight to the evidence of the respondent's wife, and his passenger who was asleep at the time of the accident, that the respondent was a careful driver responsive to road signs, in the teeth of the inexorable arithmetic of the distance that he travelled over the time elapsed. The admissibility of the wife's and passenger's evidence was not the subject of any objection, but assuming it to be admissible little probative value could possibly be attached to it in the circumstances.
In Rosenberg v Percival[45] I counselled against too ready an acceptance of a plaintiff's evidence, given after the event, that had she been informed of a risk, even a slight one, subsequently realized, she would have elected not to take it[46]. Unfortunately the respondent in this case could give no useful evidence of any kind as to what he would have done in relation to signage because of the serious and disabling injuries that he suffered. But his inability to do so could provide no warrant for the drawing of an inference that he would have heeded a warning sign or signs in the light of the other, compelling evidence and inferences to the contrary to which I have referred.

[91]

The appellant submits that the view of Murray J in the Full Court that the "fresh evidence" could not justify a new trial is correct. It is surprising that an arm of a State government should have failed, as the appellant here did, to make proper discovery. Governments and their emanations should be model litigants. The failure to discover does not mean however that the respondent is entitled to succeed but it does mean that the material in question should be carefully scrutinized to see whether its availability at trial could have made a difference. Unfortunately for the respondent I do not think it would have for these reasons. The relevant parts of it are principally concerned with the dangers presented by straying stock and the potential for liability of their owners on that account, rather than the straying of feral creatures. A manual compiled within the appellant's department - it is not clear whether it is a draft only - recommends the erection of signs to warn of the presence of stock, "where straying stock [are] known to present a significantly greater hazard than is normal for remote areas or where subsequent to an application from the owner of a pastoral property a thorough investigation ... shows that any particular section of road nominated by the owner does present a significantly greater hazard than normal." The materials suggested the erection of signs where warranted at intervals of 20 to 30 kilometres. The material did not disclose that the relevant stretch of road was one on which the percentage of accidents involving straying animals was high. Signs warning of stock crossings can be misleading by implying that the stock are being controlled. A sign of such a type would be inappropriate in the relevant region. Signs depicting the possible presence of wild animals are almost unknown in Western Australia. "Locals know to be careful". The appellant was alive to the need to maintain the credibility of warning signs. The responsible minister reported to a local progress association in May 1987 in these terms:

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