Hughes v Van Eyk

Supreme Court of NSW|2007-12-07|Before: Hislop J, Harrison J, Handley JA

Introduction 1 The plaintiff is a single man, born in December 1980. At approximately 10.15 am on 19 January 2002 he was riding a motorcycle north along the Putty Road near Oakey Creek when he lost control of the motorcycle, resulting in him being thrown off and striking an Armco railing. He was then struck by the motorcycle as it slid across the road into the railing. He sustained severe injuries in the accident. 2 The plaintiff has brought these proceedings seeking damages for his injuries from the first defendant, who was the driver of an automatic Commodore station wagon travelling north on the Putty Road, and from the second defendant, the road authority which had the care, control and maintenance of the road. It is alleged each defendant was guilty of negligence which caused the plaintiff's injuries. 3 In essence, the plaintiff's case against the first defendant is that the plaintiff was overtaking the first defendant's car in an overtaking zone when the car increased speed causing the plaintiff to remain on the incorrect side of the road beyond the end of the overtaking zone. This left the plaintiff with inadequate time and distance to return to the correct side of the road and prepare to safely take an approaching bend, with the result he lost control of the motorcycle. 4 The plaintiff's case against the second defendant is essentially that the second defendant had failed to comply with Australian Standard AS 1742.2-1994 and its own guidelines, had provided an overtaking zone in a location where it was unsafe and had failed to provide adequate warning signs. 5 The defendants have denied liability to the plaintiff and, in the alternative, have alleged the plaintiff's injuries were the result of his contributory negligence. 6 Damages have been agreed by the parties in the event the plaintiff is successful in his claim, save for funds management which is to be calculated by the parties in the event the plaintiff receives a verdict. The agreement as to damages was considered by Harrison J who concluded the sum agreed was appropriate and one which he would approve. 7 The second defendant has cross claimed against the first defendant seeking indemnity or contribution from him pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946. The first defendant has not filed a cross claim against the second defendant but relies upon the comments of Handley JA in HIH Casualty and General Insurance Ltd v Pluim Constructions Pty Ltd [2000] NSWCA 281; (2000) 11 ANZ Ins Cas 61-477 at [82] that the absence of formal claims for contribution does not prevent the court from making appropriate orders. 8 The original statement of claim was filed on 15 July 2002. The first defendant was the only defendant named therein. The second defendant was joined by an amended statement of claim filed on 19 May 2003. It was agreed by the parties that the liability provisions of the Civil Liability Act 2002 were applicable to the claim against the second defendant though not applicable to the claim against the first defendant.

Factual findings 9 The following facts, which, together with the background facts in the introduction, I accept, were either common ground or not the subject of significant dispute.

General 10 The plaintiff, his cousin, Aaron Burgess (born 1978), and two friends of Mr Burgess, John and David Clarke, had agreed to go for a ride to Broke and Wollombi. Mr Burgess and John Clarke were very experienced motorcyclists. David Clarke less so. The group set out from Castle Hill that morning. At that stage each was riding his own motorcycle. The plaintiff was riding his Honda CBR 250 and Mr Burgess was riding his Honda CBR 600. The CBR 600 motorcycle had an "incredibly loud" exhaust system. Its engine was twice as big as the CBR250 and it weighed 20 kilograms more. Its top speed was 280-odd km/h. It was very responsive, with a quick acceleration. The route taken was via Colo and the Putty Road. David Clarke rode ahead of the others, meeting up with them at agreed stopping points. 11 The last stopping point before the accident was a service station on the Putty Road known as the Half Way House. It was approximately 13 kms from the accident scene. The plaintiff and Mr Burgess swapped motorcycles at the Half Way House. Thereafter the plaintiff rode Mr Burgess' motorcycle until the accident and Mr Burgess rode the plaintiff's motorcycle. 12 The first defendant was born in 1934 in The Netherlands. He settled in Australia in 1958. He had held a driver's licence in The Netherlands and obtained a licence in Australia in August 1962. He was an experienced driver and had driven the Putty Road on occasions prior to the accident. At the relevant time he was driving from his home to Tamworth. His wife was a front seat passenger in the car. There was no collision between his car and the plaintiff, the motorcycle ridden by the plaintiff or any other object.

The plaintiff's qualifications and experience as a rider 13 Records kept by the second defendant reveal that:

(a) A learner's licence to drive cars was issued to the plaintiff on four occasions between 1997 and 2001. There was no record he obtained a driver's licence at any stage.

(b) On 18 May 2001 a learner's licence to ride a motorcycle was issued to the plaintiff.

(d) On 15 June 2001 the plaintiff incurred a traffic infringement fine for negligent driving, which was paid.

(e) On 10 November 2001 a provisional licence to ride a motorcycle was issued to the plaintiff. 14 The provisional licence issued to the plaintiff was subject, relevantly, to the following conditions:

(a) The motorcycle must have a red P plate on the back clearly visible.

(b) A maximum speed limit of 90 km/h must be observed.

(c) The motorcycle's engine capacity must not be more than 260 ml and must have a power to weight ratio of no more than 150 kilowatts per tonne. The CBR 250 did not exceed those limitations. The CBR 600 did. 15 The plaintiff did not display a P plate on either of the motorcycles he rode on the day of the accident. 16 The plaintiff was a relatively inexperienced rider. He had "had nothing to do" with motorcycles whilst growing up. He had ridden his motorcycle to Port Macquarie from Sydney in December 2001 and had ridden it in Sydney. He had had an accident when he slid off the road whilst riding the motorcycle, probably in June 2001. 17 There was no evidence that the plaintiff had any experience of riding a motorcycle more powerful than 250 cc apart from riding Mr Burgess' motorcycle. His experience of riding Mr Burgess' motorcycle prior to the day of the accident was limited to riding it for about twenty minutes at low speed in the street and in the carpark of an apartment building. This occurred about a week after Mr Burgess purchased his motorcycle.

The location 18 The Putty Road runs generally north-south from Windsor to Singleton. In the section of road between the Half Way House and the accident scene the road is winding and there are a number of steep climbs and descents. There are overtaking zones varying in length from 200 to 800 metres. The adjoining land is generally forest or pastures. 19 The section of the road with which this case is primarily concerned is divided by painted centrelines into a southbound and a northbound lane. The road has a sealed bitumen surface. The lanes are approximately 3.3 metres wide from the centre line to the edge line marking with variable gravel and bitumen shoulders. 20 The relevant section commences at a crest and then descends to Oakey Creek where it describes a right hand bend for vehicles proceeding north. Thereafter the road continues on to the Howes Valley where roadwork was being performed at the time of the accident. 21 The relevant section of the road had been the subject of road works which were completed in July 2001 when a single span bridge at Oakey Creek was replaced by a three cell box culvert structure and the approaches thereto were reconstructed with improvements to the vertical and horizontal alignments and width. Photographs were tendered, taken in about 1999, which showed that before the reconstruction the creek was crossed by a wooden bridge, there was no foliage of note and that northbound there was a broken centreline leading right up to the bridge. 22 Points of reference on that section of the road on the day of the accident and their approximate distance from the crash site were as follows: 820 metres - the crest - traffic lanes divided by an unbroken barrier line for vehicles heading north, then an information board advising bridge construction ahead; at 580 metres - 95 km/h advisory speed sign on western side of road which was followed by a right hand curve; then a "Roadworks Ahead" sign; at 420 metres - broken centre line for northbound traffic commences; then a "Reduce Speed" sign on western side of road; at 230 metres - reverse curve warning sign with 55 km/h advisory speed plate underneath; at 215 metres - southern end of new approaches to Oakey Creek culvert; at 170 metres - recommencement of unbroken barrier line for northbound traffic; at 160 metres - commencement of southern end of Armco fence (guardrail); at 104 metres - northbound Oakey Creek sign; at 95 metres - commencement of bend; at 68 metres - southbound Oakey Creek sign; then the apex of bend. 23 The critical speed (ie the threshold speed at which a curved path can be negotiated in a motor vehicle) for the right hand bend for northbound vehicles as at the date of the accident was 100 km/h. The bend was signposted at 55 km/h by the advisory speed sign. 24 The speed limit was 100 km/h. The weather was fine and sunny and the road dry at the time of the accident. 25 At all relevant times there was no traffic travelling south on that section of the road and the only vehicles travelling north were those of the plaintiff, Messrs Burgess and John Clarke, and the first defendant. The fourth rider in the group, David Clarke, had left the Half Way House before the other riders and was out of sight at the time of the accident.

Disputed facts 26 Save as above found, there was conflict in the evidence as to most relevant events. Apart from the plaintiff, who was unable to give evidence due to the consequences of his injuries, there were allegedly four witnesses to the accident, Mr Burgess and Mr John Clarke, who were called to give evidence on behalf of the plaintiff, and the first defendant and his wife. The evidence of the lay witnesses was complemented by the evidence of a number of expert engineers. The experts were Mr Stuart Smith (plaintiff), Mr McDonald (plaintiff), Mr Hall (first defendant) and Mr Fishburn (second defendant) Although there was much expert evidence, the crucial question was "what happened?" and that largely was a matter to be determined by weighing the evidence of the lay witnesses. Senior counsel for the plaintiff asserted in his address "This is a lay witness case". 27 The essence of the evidence of each of the lay witnesses and my impressions of the witnesses may be shortly summarised as follows.

Aaron Burgess 28 Mr Burgess gave evidence he had not ridden with the plaintiff prior to the day of the accident. He said that after leaving the Half Way House "Daniel was riding very, very conservatively. Very, very within the law and very, very competently." He also said he "wasn't exceeding the speed limit, he was travelling along at probably 80-90 km/h for most of the trip." He said he had his eye on the plaintiff "like a hawk". He first saw the car when it was on top of the crest. The car was travelling at a speed of between 60 and 70 km/h and the plaintiff would have been half way up the hill approaching the crest. Mr Burgess was 50-60 metres behind the plaintiff. Mr John Clarke was a fair way behind him, more than 150-200 metres. As the plaintiff crested the hill, the car would have, at the most, been probably 20 metres ahead of the plaintiff as the plaintiff was approaching it quite quickly. The plaintiff was on the first defendant's bumper bar and pulled out the moment that he had an opportunity to overtake which was when the broken lines started. As the plaintiff overtook the car, both vehicles increased speed down the hill. As they headed down the hill, the plaintiff was riding at 80-90 km/h. He increased his speed. The car accelerated. It had been going at a slow speed and its speed increased dramatically as it went down the hill. They continued to be alongside each other to the very bottom of the hill. They were both travelling at 110 km/h at the bottom of the hill. The motorcycle at all times until it lost control remained in the southbound lane. At a point where its rear wheel was in line with the driver, the motorcycle appeared to increase speed slightly, then the brakes were applied very heavily at the Oakey Creek sign on the western side of the road. The first defendant's brake lights came on roughly where that sign was. Immediately after the plaintiff applied the brakes, fishtailing occurred. He high-sided at the second Oakey Creek sign. The plaintiff was thrown forward. He and the motorcycle slid in front of the car. The plaintiff slammed into the Armco railing and the motorcycle followed, striking the rail and the plaintiff simultaneously before bouncing back onto the road. Mr Burgess was probably 150 metres behind the plaintiff on impact. He pulled up at the scene. He did not agree he pulled up after the first defendant was out of the car. He said the first defendant pulled up about 80 metres north. "He barely got out of the car, did yell something, then jumped back into the car and sped off." Mr Clarke joined him some one minute after (later revised to 15-20 seconds in cross examination), just as the car drove off. Shortly after the accident a four wheel drive vehicle stopped. The driver had not seen the accident. Mr Burgess asked him to get an ambulance and call the police in regards to the purple Commodore. The driver of the four wheel drive vehicle contacted someone on his two-way radio. 29 Mr Burgess gave a number of statements in respect of the accident. 30 The first of these was a statement which he gave to the police at the scene of the accident. The unsigned statement is in the following terms: "I was riding north on the Putty Road with Daniel and John. We were doing about 80 to 90 Kph, Daniel was in front of me about 50 to 60 metres. He came up behind a VS purple coloured Commodore wagon, he started to overtake it, as they were going down the hill the car seemed to speed up and they were side by side for sometime. He tried to get in before the broken line finished. Then he got out of control at the bottom of the dip, the bike fishtailed, went down and then the bike slid into the Armco railing. Daniel was sliding beside the bike and then Daniel hit the Armco. The guy in the Commodore said, 'He'll get help'." 31 In a statement dated 10 February 2002 he said, inter alia: "At 10:30 we left the half way house Daniel riding ahead, followed by myself about 50 - 60 metres behind. We were riding at approximately 80 - 90 km/h, we approached a main straight section in which the road was clear with the exception of one vehicle. The vehicle in front (Purple Commodore Wagon) was travelling at approximately 50-60Km/h. Daniel crested a hill and at that time the Commodore was about 20 meters ahead and still maintaining his original speed. As I was about 70 meters behind I was to far back to over take and decided I would wait until the next clear section. Daniel indicated and proceeded to overtake the Commodore, at the same time the Commodore also started to accelerate quiet rapidly. Daniels speed increased and at the same time the Commodores speed increased. It looked from where I was like the Commodore was holding Daniel out on the opposite side of the road. Due to the Commodore accelerating Daniel was forced to accelerate faster to get in front of him and get back into the left lane. At this stage the broken lines had ended and the Commodore was tail gating Daniel, both Daniel and the Commodore were travelling at about 110Km/h into a 60Km/h corner. The Commodore then rapidly applied the brakes as he was very close to Daniel and there was a corner approaching. Daniel hit the brakes very late, the Commodore at this stage was no more than 3 meters behind Daniel. The rear of the bike then lost traction and the rear of the bike swerved left, then right, then left, as it swerved to the right for the second time it threw Daniel forward. I actually thought that the Commodore had grazed Daniel as he lost control of the bike. Daniel then hit the metal railing closely followed by the Bike, which then bounced onto the road. The Purple commodore pulled up and a man got out of the vehicle, he looked at me and another bike rider who was with me at the time. He then got back into his vehicle and drove away, we then told a man in a (snowy mountain hydro electric 4X4) to get an ambulance and ring the police about the purple Commodore." 32 Mr Burgess also gave a statement to an insurance investigator dated 23 May 2002. In this statement he said, inter alia: "We were riding at a speed of about 100kph, and we came up onto the Holden Commodore Wagon that was later involved in this accident, pretty quickly. It was purple in colour. Daniel was still in front of me, and John was behind me. Daniel was fifty metres at the most in front of me and John was about twenty metres or so behind me. We were riding up a slight incline and when I first saw the Commodore it was still going up the hill, but near the crest. I saw at this time that Daniel was behind the Commodore, probably about ten to fifteen metres behind it. The Commodore was being driven fairly slowly, at a speed of about 70kph at the most. It was being driven wholly within it's lane of travel in the direction of Singleton. Daniel slowed to the speed of the car. At this time I was about half way up the hill and John who was behind me was at the bottom of the hill." 33 Whilst it may be accepted Mr Burgess was keeping a general eye on the plaintiff, I do not accept the submission by senior counsel for the plaintiff that Mr Burgess was "an excellent witness". In my opinion, there were a number of unsatisfactory aspects to the evidence of Mr Burgess, in particular:

(i) He had a tendency to give non responsive answers where it appeared a responsive answer may be damaging to the plaintiff's case or where a non responsive answer would be helpful to the plaintiff's case; (ii) He exaggerated, favourably to the plaintiff, eg he said he remembered the plaintiff buying his motorcycle "2 years at a minimum, two to three years" before the accident. In fact, the motorcycle had been purchased about eight months before the accident. Similarly he described the plaintiff as riding "very, very conservatively. Very, very within the law" and that he wasn't exceeding the speed limit, whereas the plaintiff was riding a motorcycle which he was not licensed to ride, he was not displaying a P plate and he exceeded the speed limit. He said, in evidence, that he saw the plaintiff after the plaintiff had moved to Sydney in 2000, probably twice a month, whereas he later said in evidence he used to see the plaintiff's motorcycle "all the time" and would see the plaintiff riding the motorcycle "very frequently"; (iii) Mr Burgess had returned to the accident scene a short time after the accident to make observations and notes and to take photographs. There is nothing intrinsically wrong with so acting save that it can result in a witness reconstructing matters such as observing and describing objects which would not have been observed at the time of the accident and thereby seek to "build a case". Mr Burgess' evidence as to his asserted recollection of the physical features of the location was suggestive of a degree of reconstruction; (iv) He denied the accuracy of the contents of the statement contained in the police notebook and said that the police officer had not had a notebook with him when he spoke to him. The police officer said he had a notebook with him, that he wrote Mr Burgess' statement into it contemporaneously and what was recorded was what Mr Burgess had said. I accept the evidence of the police officer; (v) Mr Burgess corrected the typescript of the statement to the investigator dated 23 May 2002 by making and initialling numerous handwritten alterations to the document. One handwritten alteration on the document was in para 22. The paragraph read: "The police came to the accident. I spoke to the policeman and I gave him a statement" to which was added "which was noted on a small pad". The alteration was initialled. Mr Burgess said the added words and the initials were not his, though he accepted all other alterations and initials and signatures on the document were written by him; (vi) The first defendant obtained expert evidence that the disputed initials were those of Mr Burgess and that it was highly probable the handwritten amendments were written by him. Senior counsel for the plaintiff did not seek to cross examine the expert or oppose the tender of her report. He did not submit in address that the handwriting and initials were not made by Mr Burgess. Counsel for the second defendant characterised Mr Burgess' evidence in this regard as a lie. It seems it must be so; (vii) Mr Burgess denied the plaintiff lost control on re-entering the northbound lane contrary to the evidence of other witnesses, contrary to what was recorded by an ambulance officer, and contrary to his statement dated 10 February 2002 in which he said: "Due to the Commodore accelerating Daniel was forced to accelerate faster to get in front of him and get back into the left lane. At this stage the broken lines had ended and the Commodore was tailgating Daniel." In order to explain this comment Mr Burgess was forced to place an unusual and unconvincing meaning on the expression "tailgating"; (viii) He denied the first defendant said "I'll get help", contrary to his statement in the police notebook;

(ix) He asserted the motorcycle had high sided and that as a result there were scrape marks to the nearside of the motorcycle. However, photographs revealed that major scrape marks were to the offside, not the nearside of the motorcycle.

34 These matters give rise to difficulty in accepting Mr Burgess' evidence. Careful assessment is required in determining what evidence should be accepted, see, generally, Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 at [35] per Heydon JA.

John Clarke 35 John Clarke was born in 1944. He said the plaintiff rode first, then Mr Burgess and then himself. They travelled from the Half Way House "doing the limit, 100, round about, give or take a bit". Daniel rode a bit quicker, his (600cc) bike accelerates a bit quicker than the others. He was hard to keep up with on one occasion. He "appeared excited by the prospect of riding the bike". He said he came over the hill and noticed the plaintiff behind a car which the plaintiff proceeded to overtake. The plaintiff commenced his overtake at the beginning of broken centrelines. As the plaintiff overtook over the hill, both vehicles increased speed down the hill and the plaintiff "looked like to me that he held out". Mr Clarke was 100 metres or so behind the plaintiff when the plaintiff commenced to overtake. The plaintiff pulled back in to the northbound lane approximately where the double lines started again - just past the northernmost Oakey Creek sign. The car was just marginally behind him. You could see a bit of smoke coming from the back tyre, and then he fishtailed, high-sided over the top and hit the guardrail next to a post. The bike skidded behind him, hit him and bounced back onto the road…the brakes came on at the same time as he was moving in. He applied his brake and turned the steering at approximately the same time. Mr Clarke pulled up at the accident scene. He noticed the car stop and the driver get out but they did not speak to each other. 36 Mr Clarke said he gave a statement to the police at the scene. However, the police officer gave evidence that Mr Clarke had declined to make a statement to the police at the scene. He made a statement to an investigator in May 2002 in which he said: "5. I remember that the accident happened on the Putty Road at Howes Creek. The Putty Road where the accident happened has one lane for traffic in either direction, with a very wide bitumen shoulder on the left hand side of the road heading towards Singleton. The road is made from bitumen and was in very good condition. There is a centre line and it was definitely broken, but whether there was an unbroken line as well I am not sure. The speed limit is 100kph. The accident was on a corner in the roadway. There was an advisory speed sign of 95kph as you approached the corner, it wasn't a sharp corner. Visibility is fairly open through the corner. Travelling towards Singleton there is a decline towards the corner, the roadway through the corner is flat. I know this area well, I had ridden through the area five or six times before the day of this accident… 14. As we reached the area of the accident, Aaron was riding at a distance of about twenty metres to the rear of Daniel, and I was riding at a distance of about thirty metres to the rear of Aaron. Approximately half a kilometre before where the accident happened we caught up to a Holden Commodore Station Wagon, this was the car that was later involved in this accident. The Holden wasn't being driven fast, probably at a speed of around 70 to 80kph, he wasn't going terribly fast because we caught him fairly quickly. 15. We followed this Holden through a couple of bends. During this time Aaron and Daniel were riding fairly closely together. I stayed perhaps about fifty metres behind Aaron. Aaron and Daniel stayed fairly close to the Holden, getting ready to overtake it I assume when the occasion arose. The Holden I saw appeared to be driven at a constant speed and was staying to it's correct side of the roadway. 16. I lost sight of the Holden and Daniel and Aaron, momentarily as they were going through a bend ahead of me. I then regained my sighting of them and at that time, the Holden and Daniel and Aaron were just going over the crest of a hill, about fifty or so metres ahead of me, although I was probably closing up on them a bit by then. 17. As they were going over the crest, I was travelling up the incline towards the crest. As the Holden, Daniel and Aaron started to go down the hill on the other side of the crest, I reached the crest and I saw Daniel just commencing to move to the right onto the incorrect side of the roadway to overtake the Holden. Aaron was behind the car, still on his correct side of the roadway, waiting for Daniel to finishing [sic] overtaking the Holden. 18. Daniel commenced to overtake the Holden well before the corner, just after the crest in the road. I saw him move over the broken line. There was definitely a broken line for traffic heading towards Singleton, but I am not sure at this time if there was any other line to the right of that broken line. I saw the Holden picking up speed going down the hill, I can't say to what speed, but I could see Daniel accelerating drawing alongside the Holden, trying to get past the Holden. I can't state the speed of either the Holden or Daniel, but certainly the Holden increased speed as Daniel commenced to overtake him. They stayed side by side to the bottom of the hill. There was no traffic coming from the opposite direction during this time. I didn't see the Holden's or Daniels brake lights come on as they travelled down the hill. 19. I could see both the Holden and Daniel approaching the corner in the roadway. This was a right hand corner, a sweeping corner. I could see double unbroken lines marked on the roadway through the corner. I saw Daniel try to get back to his correct side of the roadway before the corner. By that time he was in front of the Holden, but not very far in front. He came back to his left normally, he didn't veer in sharply. I am not sure if he had regained his correct side of the roadway before where the double unbroken lines commenced or not… 23. The driver of the Holden came half way back, and I told him to go to a house and get some help. The driver of the Holden was a male person and I didn't see him again. I think there was a passenger in the Holden as well. 24. Aaron stayed with Daniel. I rode away to find David. I came upon him within three or four minutes, he was returning to see where we were. He hadn't seen the accident at all. He only stayed at the accident scene for a few minutes and then he left. 28. My thoughts are that the driver of the Holden could have allowed Daniel in. I am unable to state if the Holden driver sped up on purpose, or if it was just the decline, but the Holden certainly sped going down the hill." 37 Mr Clarke conceded his recollection was somewhat limited. He said that the whole thing was hazy except the plaintiff losing control and falling off. He was uncertain whether the plaintiff and Mr Burgess swapped motorcycles at Colo or the Half Way House. He said he only saw the car when he came over the hill whereas he had told the investigator he and the plaintiff had followed the car through a series of bends. The evidence as to how far he was from the plaintiff at various times was uncertain. His evidence is inconsistent with Mr Burgess' evidence of him arriving at the accident scene one minute after the accident, just as the first defendant was driving off. It is also inconsistent with the evidence of the first defendant and his wife. These matters give rise to a degree of doubt as to the accuracy of his recollection and whether he was in a position to observe some of the matters of which he gave evidence.

The first defendant 38 The first defendant gave evidence he remembered approaching the crest which commenced the descent to Oakey Creek. He was not aware at that time of any other traffic being on the road. He was travelling at about 80 km/h. When he got to the top of the crest he could see a straight road with a very slight bend. As soon as he came up the crest he put his foot down and sped up to 95 km/h and he put the cruise control on at the same time. His vehicle picked up a couple of kilometres in speed as it descended the hill but he flicked the cruise control to slow it back to 95 km/h. He did not become aware of any other vehicle on the hill as he descended it. He wanted to slow down on reaching the guardrail for the sharp corner further down. He looked in his rear vision mirror and saw the motorcycle very close behind him, a matter of only metres, in the northbound lane. He was about 200 feet away from the beginning of the guardrail at its southern end when he observed the motorcycle. At about 150 feet from the southern end of the guardrail he commenced to gently brake to slow down his speed ready for the sharp corner. He saw the motorcyclist in his side mirror. The motorcyclist was on the wrong side of the road near the first defendant's tail lights and was on the other side of an unbroken line. At that stage the first defendant was travelling at about a speed of 80 km/h. He then saw the motorcycle rider beside his driver's side window with his head bent down and his face pointing forward. They were inside the guardrail. The motorcyclist did not turn his head toward him. The motorcyclist went past him travelling about 15 km/h faster than the first defendant and pulled in in front of him about a car and a half length in front of him. The first defendant still had his foot on the brake and was in the centre of the northbound lane, probably a little bit more to the left than to the right. The motorcyclist pulled in front of him and went away from him. He had no problem with the plaintiff coming in front of him. The first defendant was then travelling at about 78 km/h. The motorcycle went approximately four or four and a half car lengths ahead of the car and started to fishtail. The point where the motorcycle pulled in front of him was at the Oakey Creek sign on the western side. The plaintiff hit the guardrail and the motorcycle slid across the road and then came back toward the first defendant. He turned his steering wheel to the right and went some way over the white line to miss the motorcycle. At no time did the first defendant apply his foot to the accelerator when aware of the motorcyclist being on the other side of the road to him. 39 He stopped his car after the accident. He and his wife got out of the car. He commenced to run to the scene. His wife remained with the vehicle. When the first defendant was approximately 20 metres from the plaintiff's motorcycle, a motorcycle pulled up at the scene. The motorcyclist called out "Get an ambulance". The first defendant acknowledged the request with a hand gesture. He started to turn back and another bike appeared and stopped. He returned to his car, dialled his mobile phone but could not get tone. He drove to the nearest house. No-one answered his knocking on the door. A utility was parked across the road. A man with it said he would ring from the shed in front of which the utility was parked. The first defendant then drove to Bulga Police Station because he wanted to be absolutely sure the ambulance had been called. He knew there was a police station in Bulga but thought it was a lot closer than it was. He did not return to the scene of the accident. He continued on to Tamworth, leaving his contact details with the police at Bulga. Whilst en route to Tamworth, he received a mobile phone call from a police officer with whom he had a very short conversation. 40 The first defendant gave statements. 41 The first statement was by telephone with the police whilst the first defendant was driving to Tamworth. The police notebook contained the following entry: "TELEPHONED Peter Van EIJK Supplied version Travelling north cruise control on and saw one cycle in front and 3 behind, one of the cycles commenced to overtake while he was going down the hill to the curve continued on over unbroken line, lost control when in front of me and fell off, bike and rider into armco." 42 A fuller statement was given to the police on 22 January 2002. That statement contains the following: "I was travelling at 85Kph at the time. In my side mirror I saw a motor bike commencing to overtake me, he was on the wrong side of the road and over unbroken lines approximately 20 metres in front of me he came back to the proper lane. He would have been doing close to 95Kph. When he came back into the left lane approximately 20 metres in front of me he appeared to miscalculate his entry back onto the correct side of the road. He made a reasonably sharp right turn of the motor bike handles as he did the bike slipped out from under him and the bike and the rider continued into the safety rail. It appeared to me that the bike actually hit the upright posts where the guard rail is mounted to it, it turned and bounced back into the centre of the road and the rider remained up against the guard rail. I would say that the impact of the bike and the rider into the rail was very heavy, as the bike continued to the centre of the roadway after impact. I had to steer around the bike and I actually ended up on the side of the roadway, in doing so to avoid the bike. I came back to the correct side of the road and became stationary at roadworks some 60 to 70 metres further up the road. I grabbed my mobile phone and walked back to where the accident happened but I couldn't contact anyone because of the location. Phone contact was made to emergency personnel from nearby road works. Prior to the accident there was no other vehicle travelling in the other direction and no other obstructions on the roadway. I am of the firm opinion that the accident was caused by the rider and the manner in which he re entered the correct lane and attempted to correct his path to the right when he entered that lane." 43 On 17 May 2002 the first defendant gave a statement to an insurance investigator. The statement states, inter alia: "The accident occurred on a right hand bend but not a real sharp bend… The Putty Road is windy all the way and I had driven through numerous bends before I reached the area where this accident happened. I was driving with my cruise control on. I usually set it for about ten kilometres less than the speed limit, and as the speed limit is 100kph, I most likely set it for about 90kph. On any bend that I had to have control of my car, I would re set the cruise control by touching the brake pedal. I was aware that I was approaching another bend in the roadway. This was a right hand bend. It wasn't a sharp bend, it was just an easy bend. I could see a fair distance through the bend. I could see there was no traffic coming from the opposite direction. I can't remember at this time if there were any speed or corner advisory signs approaching the bend. As I approached the bend I was driving at a speed of about 90kph, and I touched the brake pedal, to re set the cruise control. From memory there were double unbroken lines marked in the centre of the roadway through the bend, and those lines started well before the bend. At the same time I touched the brake pedal I looked in the rear vision mirror and I saw one motor cyclist behind my car. The cyclist would have been about twenty metres behind my car, but this is only a guess. This was the first time that I had noticed the cyclist, but I do recall some distance before that, a long way back a 'dot' in my rear vision mirror. I could make out that it was a motor bike and not a car, but this was some distance before this bend. I took no further notice of that 'dot' until I glanced in my mirror as I approached this bend. When I glanced in my rear vision mirror as I approached the bend, the motor bike was in my lane of travel. I didn't see the motor cycles right hand blinker on. I would have noticed it straight away. I can't say if the motor cycles headlight was on. I can't estimate the speed of the motor cycle at that time. I only saw the one motor cycle at this time. I wasn't concerned about the motor bike behind me at that time, it was not doing anything unusual. I glanced away from the mirror, and looked directly ahead of me and commenced to drive into the bend. At this time I was driving at a speed of about 85kph. I was driving on my side of the road. I was wholly on my side of the road. I wasn't over the centre line. I could see the line in my side mirror. I was about a third of way into the bend and in the corner of my eye I noticed the motor bike rider alongside my drivers door. His helmet was near my shoulder. I could only see his upper body. I couldn't see his bike. I was still driving at a speed of about 85kph. The motor cycle continued on past me, perhaps about ten kilometres faster than I was driving. The motor cyclist as he passed me was on the wrong side of the unbroken lines. I remained on my correct side of the road. I didn't increase my speed. I just let him go. The motor cyclist didn't acknowledge me as he went past me. He didn't look at me at all, he was looking straight forwards with his head down a bit. The motor cyclist stayed on the wrong side of the road. I noticed there was no traffic coming from the opposite direction, and I would be guessing, but he would have continued onto a distance of no less than four car lengths in front of me before he turned to move back to his correct side of the road. The rider was in control of his motor bike when he passed me. When he turned to the left to cross back to the correct side of the road he still was in control of his bike. When he commenced to return to his left, we were in the middle of the bend, in the sharpest part of the bend. When the motor cyclist returned to his correct side of the roadway he was veering to the left, but when he returned to his correct side of the roadway, to compensate for the right hand bend he had to make a sharp turn to the right. At this time the motor cycle began to fishtail and he lost control of his bike. At no time had I increased my speed. The bike was fishtailing violently, the rider couldn't keep control of it, and the bike and the rider went down together. The bike and the rider slid across the road to the left and they hit the safety rail on the left hand side of the road. The rider was thrown off when the bike hit the safety rail, and the bike then bounced back in the opposite direction towards my car. I braked lightly, and swung to the right to miss the bike. My drivers side wheels may have gone over the centre line a little bit, maybe a foot or so, but I am not sure. I hadn't seen any other cyclist's at this time. There was never any collision between my car and the motor cycle. I drove onto the nearest place that I could pull up, which was a few hundred metres down the road. I got out of my car and I ran back and when I was about thirty metres from where the bike was, in the middle of the road, a second motor bike appeared, and the rider pulled up at the accident scene. He called out to me 'get an ambulance'. I ran back to my car and got my mobile, but I got no reception. I drove my car further down the road, where there were two houses. I went to the house on the right hand side of the road and there was no answer. A car pulled up heading towards Singleton and the driver asked me if I had rung for an ambulance. I told him that nobody was at the house. He said that he would ring the ambulance from road maintenance workshed. There appeared no reason for me to go back. I knew there was a Police Station further down the road at Bulga. I stopped at the Police Station to make sure that the ambulance had been called. I told the Policeman there about the accident. The Policeman told me that he didn't know anything about it. He then contacted Singleton police Station to go out to the accident. I told the Policeman what had happened and gave him my details. A few hours later I toook a telephone call on my mobile which was the investigating Police Officer from Singleton. He asked me to come in and make a statement. A couple of days later when I was returning to Sydney I went to the Singleton Police Station and made a statement to Police. The Police have never indicated to me that I was at fault in this accident, it was never considered, I was just a witness to the accident. I only ever saw a second rider at the accident scene. I never saw a third rider." 44 The first defendant was cross examined at length with particular emphasis upon alleged inconsistencies between his statements and his oral evidence. He was recalled at the request of senior counsel for the plaintiff on two occasions for further questioning. Senior counsel for the plaintiff submitted the first defendant's statements were inconsistent with his oral evidence, did not contain all relevant details and were consistent with some aspects of the evidence led by the plaintiff. The first defendant had not given evidence before and had not returned to the scene since the accident. There were, undoubtedly, some discrepancies between the content of the various statements and between the statements and his oral evidence. Some difficulties arose in the course of his cross examination. This was in part because the first defendant had used the end of the Armco fence as his point of reference. He was asked to mark the position of various matters on a plan which did not show the end of the fence. He was asked to mark photographs which depicted the road from the opposite direction to which he had been travelling. He was asked to indicate various points on a model which did not encompass the whole of the relevant section of the road from the crest to the point of impact, thus distorting its apparent scale. This, it seemed to me, led to a degree of confusion and misunderstanding. There were also occasions when counsel inadvertently misled the first defendant as to the content of other evidence and there were occasions when counsel was at cross purposes with the first defendant. However, in my opinion, the versions of events which the first defendant had previously given were not inconsistent, so far as the critical issues were concerned, with the evidence given by him at the hearing. The overall impression which I gained of the first defendant was that he was an honest witness who, though probably in error on some matters of detail, nevertheless had a recollection of the critical events which was essentially reliable.

Mrs Van Eyk 45 Mrs Van Eyk, in her evidence in chief, described the accident in the following terms: A. Well, I was sitting next to my husband. He was driving normal speed, came bit down the hill and then Peter slowed down and then - then I hear a noise next to the car and then the motorbike just flew past us, you know, very fast, and then when he went past, then about, say, three and a half, four cars in front of us, the motorbike went back and then, well, he couldn't - you know, he went zigzagging and then I saw him flew over the - from the motorbike into the rail and then the motorbike came back over the road and then - and then I said to Peter, 'Oh, we going to'--" 46 She gave evidence she had seen a 55 km/h advisory speed sign and had felt the car slow down before the sign though she was unable to say how far before the sign the first defendant may have slowed. The car was travelling at about 80 km/h before she felt it slow down. She turned her head and looked to the right when she heard the motorcycle. She saw the motorcycle coming past very fast. It took a split second for the motorcycle to pass the car from the time she looked for the motorcycle. 47 After the accident her husband had brought the car to a halt and had run half way back to the scene when another motorcyclist stopped at the scene. The rider called out something, she did not hear what was said, and the first defendant returned to his vehicle. She described the events thereafter generally as the first defendant had done. 48 In cross examination, Mrs Van Eyk exhibited some confusion as to whether the motorcycle had moved back onto its correct side of the road before it commenced to fishtail or whether the zigzagging had occurred as the motorcycle commenced to move back in approximately four car lengths ahead. She confirmed that she could feel the vehicle slowing down. She was not able to be precise as to the speed to which it slowed. She had difficulty recognising the scene from photographs and exhibited considerable difficulty when invited by senior counsel for the plaintiff to draw a plan of the accident scene. She could not recall the presence of various signs apart from the 55 km/h advisory speed sign. She was asked if the accident occurred as they were driving through a right hand bend in the roadway to which she replied: "No the bend was like this, left", at the same time indicating right. She stated the first defendant always puts cruise control on. 49 Senior counsel for the plaintiff submitted that Mrs Van Eyk was making no bona fide effort to assist the Court in giving her evidence and that her evidence should be rejected. However, Mrs Van Eyk was 75 years of age when she gave evidence. Although she said she had travelled the Putty Road three or four times before the accident, she had not since then returned to the scene. In those circumstances, and particularly as she was not the driver, it is not surprising she had difficulty in recollecting details of the scene. I did not get the impression she was not being frank with the Court but by reason of the matters previously referred to, it is necessary to consider her evidence closely.

Additional evidence 50 The ambulance report contained, inter alia, the following information: "19/01/2002 10:17:22 KG Response Motor bike went off rd Male pt injured… Police Services notified 19/01/2002 10:30:01 … Companions stated rider overtaking car which ? sped up - rider lost control on re entering lane - rider slammed into guard rail at speed > 90 km/hr." 51 The accident was notified to the ambulance by the person who told the first defendant he would contact the ambulance. The ambulance officer who made the latter entry gave evidence in respect of his use of the question mark. The overall effect of that evidence, in my opinion, was that the question mark would have been used to either mean "allegedly" or "query". It is notable the plaintiff's speed was said to be in excess of 90 km/h per hour (after he had braked hard) and that the loss of control occurred on re-entering the lane. 52 The COPS report contained, inter alia, the following: "Date Time reported: 19/01/2002 10:30… M/cyc acco Rider injured Alleg forced off rd by purple Commodore wag nfd L/S >>> SL (Veh not actually involved in acco) 11:01-9334182-info from Jeff Burnes MU - received call from lockup keeper Bulga - male otw to Tam stopped in to report acco - stated it was a fatal - Bulga has taken POI's details as witness… Cyclist run off road into bush - in Howes Valley, south of Howes Valley Creek bridge."

The plaintiff relied upon the allegation of "forced off rd by purple Commodore". The source of that allegation is unclear. It was not repeated in later police entries or other police documents. The ambulance records indicate that the police were notified by the ambulance authority of the accident. The ambulance records do not contain such a history. It is not alleged by either party. In my opinion, significant weight cannot be attached to that comment.

Factual conclusions 53 The determination of the factual issues joined between the parties is one of difficulty. However, on the evidence before me, I find that essentially the scenario advanced by the first defendant and outlined in [38] and [39] hereof is to be preferred. I do so for the following reasons:

(a) I have made a favourable demeanour finding in respect of the first defendant. This is of assistance in advancing the case for the first defendant. I have also taken into account my impression of the other lay witnesses. However, I am mindful that demeanour can be misleading, and I do not rely upon that alone to reach my conclusion.

(b) The first defendant's description of how he drove after reaching the crest until he stopped after the accident was consistent with what might be expected of an ordinary reasonable motorist.

(c) The first defendant's evidence in respect of the area of overtaking, the car reducing speed and the events after the accident was corroborated in general outline by the evidence of his wife.

(d) There was objective support for the proposition that the motorcycle had returned to the northbound lane by reason of the presence of scrape marks and broken glass in the northbound lane. This accorded with the evidence of all witnesses except Mr Burgess. In respect of Mr Burgess it was consistent with his statement dated 10 February 2002 but later denied.

(e) The motorcycle did not collide with the car when control was lost which suggests it is unlikely the motorcycle was braking in the southbound lane when control was lost.

(f) The first defendant's ability to avoid the motorcycle as it rebounded across the road and to take the bend safely indicates the car was not travelling at 110 km/h, as suggested by Mr Burgess, but, as the first defendant said, was reducing speed and he had his foot on the brake. There were no skid marks to confirm the rapid braking of the car, as asserted by Mr Burgess.

(g) Senior counsel for the plaintiff submitted the first defendant and his wife "slipped away" from the scene, something a reasonable person would not have done, the suggestion being the first defendant and his wife fled the scene by reason of feelings of guilt because he had caused the accident. However, the first defendant initially headed back to the accident scene to see what he could do but before he reached that scene Mr Burgess was there and he then went to seek to contact an ambulance. He then proceeded to report the accident at the nearest police station. In my opinion, the actions of the first defendant and his wife were not unreasonable. No adverse inference is open to be drawn from this behaviour. I note there was evidence (in the statement by John Clarke) that David Clarke rode back to the accident scene but departed after a few minutes at the scene.

(h) It is improbable the first defendant would have driven down from near the top of the hill oblivious to the presence of this particular noisy motorcycle beside him in the southbound lane. Thus, if the overtake commenced near the crest and the first defendant had increased speed keeping the plaintiff out, the likely inference is that the first defendant did so deliberately.

(i) It would make no sense for the first defendant to increase speed half way down the hill as he could see what lay ahead. It would however be consistent with deliberately keeping the plaintiff out.

(j) When it was suggested to the first defendant that he had speeded up so he would not let the plaintiff in, he replied "That's absolute lie. I wouldn't - I don't do that." Q. Don't you? A. I don't worry - I don't - I never in me life would do that."

(k) It is inherently improbable that a person of mature years, accompanied by his wife, would deliberately drive at or about 110 km/h approaching a signposted 55 km/h bend in order to prevent a motorcyclist returning to his correct side of the road and thus exposing not only the motorcyclist but himself and his wife to the risk of serious injury, particularly when there was no evidence of other than conservative earlier driving by the first defendant and no evidence of any altercation between him and the plaintiff.

(l) It is far more likely that the plaintiff, riding at or about 100 km/h per hour came up on the car near the end of the broken lines and the plaintiff at that time decided to overtake. 54 I find that the plaintiff was riding, probably for the first time, a powerful motorcycle on a challenging country road. He and his companions were "doing the limit, 100, round about, give or take a bit". The plaintiff rode a bit quicker, his bike accelerated a bit quicker than the others and he was hard to keep up with, at least on one occasion. The plaintiff caught up to the car. The motorcycle was then in the northbound lane and just before the broken centreline came to an end. The plaintiff moved into the southbound lane and commenced to overtake the car at or near the end of the marked overtaking zone. He succeeded in completing the overtaking manoeuvre and returned to the northbound lane and, in attempting to reduce speed and/or straighten up the motorcycle to take the bend, he lost control of it and injury resulted.

Liability - the first defendant 55 A person using the highway as a driver has a duty to exercise reasonable care not to cause injury to persons on the highway. The ordinary standard of care is "measured objectively by the care to be expected of an experienced, skilled and careful driver" - see Cook v Cook (1986) 162 CLR 376 at 381. The onus of proving breach is upon the plaintiff.

56 The obligation to exercise reasonable care must be contrasted with an obligation to prevent harm occurring to others. As observed by Gummow J in Roads and Traffic Authority of NSW v Dederer [2007] HCA 42, (2007) 81 ALJR 1773 at [51]:

"The former, not the latter, is the requirement of the law. In Modbury Triangle Shopping Centre Pty Ltd v Anzil , Gleeson CJ pointed to the remarks of Brennan J in Sutherland Shire Council v Heyman and observed that 'the common law distinguishes between an act affecting another person, and an omission to prevent harm to another. If people were under a legal duty to prevent foreseeable harm to others, the burden imposed would be intolerable.' In Heyman , Brennan J had emphasised that the common law recognises 'a duty to take reasonable care to avoid doing what might cause injury to another, not a duty to act to prevent injury being done to another by that other, by a third person, or by circumstances for which nobody is responsible.'" 57 The plaintiff submitted the first defendant, by his actions, created a situation of danger for the plaintiff and the plaintiff, in seeking to deal with that situation, lost control of his motorcycle and suffered injury. I am unable to accept this submission. 58 The first defendant was driving within the speed limit, wholly within his lane. At no stage did he increase the speed at which he was driving after the plaintiff commenced to overtake him so as to enliven reg 145 of the Australian road rules nor did he create a situation of danger for the plaintiff.

59 On the contrary, the situation of danger in which the plaintiff found himself was the consequence of his own actions. The plaintiff was aware of his relative lack of experience and that he was riding a motorcycle which was more powerful than that which he was permitted by law to ride and which he had had little experience in riding. On the findings of fact which I have made, the plaintiff deliberately commenced to overtake the car at or near the end of the overtaking zone in circumstances where it was apparent that completion of the overtaking manoeuvre would require him to ride the motorcycle at a high speed and that completion of the overtaking manoeuvre would occur well beyond the end of the overtaking zone and near to the apex of a reasonably tight bend, giving rise to a need to adjust his speed and direction when he re-entered the northbound lane in order to take the bend safely. He, in effect, commenced to overtake when he should have been reducing speed in response to the signs and nature of the road ahead. He should not have attempted to overtake in that location. His injuries were caused solely by his actions and either his failure to safely deal with the situation he had created or due to some other deficiency in his riding. 60 In these circumstances, applying the principles from Dederer quoted above [57], the first defendant owed no duty to prevent harm being done to the plaintiff due to his own actions. 61 Even if such a duty was owed, there was no breach of it by the first defendant. The first defendant was entitled to assume the plaintiff was an experienced rider. This was seemingly confirmed by virtue of the type of motorcycle and the absence of any P plate. The plaintiff was in control of the motorcycle until it had passed the first defendant. It was appropriate for the first defendant to assume the plaintiff had factored in the position and speed of the car and that it was appropriate that the first defendant continue to proceed as he did and not to slow to enable the plaintiff to more quickly regain the northbound lane. Furthermore, it has not been established that if the first defendant had slowed the plaintiff would not have lost control of the motorcycle in any event. 62 As senior counsel for the plaintiff conceded: "If Mr Van Eyk is to be believed, that the bike was behind him and he applies the brakes and this boy commences to overtake, if that occurred, then the case against Mr Van Eyk is difficult to see." 63 In my opinion, there was no negligence on the part of the first defendant. The plaintiff's injuries were not caused or contributed to by the first defendant. The plaintiff's action against the first defendant fails.

Liability - the second defendant 64 A transitory sight restriction for northbound vehicles was created by foliage growing on the eastern side of the Putty Road. 65 Australian Standard AS 1742.2-1994 provided a table applicable to situations of sight restriction. 66 It was submitted for the plaintiff that, properly applied, the Standard required a minimum overtaking zone of 250 metres and a barrier line (ie an unbroken centreline) of 215 metres calculated to the centre of the bend. 67 As the distance of the barrier line from the end of the overtaking zone to the centre of the bend was 119 metres it was submitted no overtaking zone should have been permitted in that location, with the consequence that if there had been no overtaking zone the plaintiff would not have overtaken the first defendant and no injury would have occurred. 68 The second defendant submitted that the Standard did not require there be no overtaking zone at that point. It submitted, correctly, that the Standard was merely a guideline, it had no legally binding effect (Chicco v The Corporation of the City of Woodville (1990) Aust Torts Reps 81-028). It also submitted the terms of the Standard admitted of exceptions which were applicable in this case, and that a lesser figure for the V85 (the speed at or below which 85 percent of vehicles were observed to travel under free flowing conditions past a nominated point) of 91-100 km/h chosen by the plaintiff could legitimately be applied, the V85 being determinative of the selection of the relevant distances from the table in the Standard. It also submitted that even if there had been no overtaking lane, the evidence of the plaintiff's riding enabled an inference to be drawn that he would have overtaken regardless of the absence of an overtaking zone. 69 I do not consider it necessary to determine the proper application of the Standard in this case. The purpose of the Standard was primarily (Mr Stuart Smith) or solely (Mr Fishburn) to determine the distance required to avoid a risk of collision between two vehicles approaching each other at speed in the same traffic lane when there was a sight restriction. That risk did not materialise. The distance required for that purpose would ordinarily be considerably greater than the distance required to avoid collision with a stationary object or to avoid losing control of a vehicle on a bend. In my opinion, different considerations arise in the latter case. 70 A road authority is obliged to exercise reasonable care so that the road is safe for users exercising reasonable care for their own safety - Roads and Traffic Authority of NSW v Dederer at [45]. A road authority is not obliged to ensure that a road be safe in all the circumstances (Dederer at [46]). 71 Where use is made of an overtaking zone on a country road where the speed limit is high and there is but a single lane in each direction, reasonable care on the part of the road user requires not only that the overtaking motorist ensure that there are no approaching vehicles with which there is a risk of collision, but that there will be sufficient time and space to overtake and pull back safely in front of the vehicle being overtaken, and that he or she will complete the overtaking manoeuvre within the overtaking zone and will have sufficient time to prepare for any hazard ahead and will respond appropriately to any change of circumstances occurring during the course of the overtaking manoeuvre. 72 The plaintiff submitted the second defendant failed to take reasonable care to adequately warn of the bend and provided an overtaking zone where it was not safe to do so. 73 Photographs tendered in evidence make it clear that in daylight, not only were the reduced speed sign and the reverse curve warning sign with a 55 km/h advisory speed plate underneath it clearly visible to motorists coming down the hill, but so too was the existence of the curve, the direction of the curve and the Armco fence demonstrating the curvature. The view of the bend increased the nearer one got to it. Mr Stuart Smith agreed that in daylight the curve and signage were there to be observed and assessed by an approaching motorist, in this case, by the plaintiff. 74 Subsequent to the accident, chevron hazard markers (a series of markers like arrowheads pointing sideways) were located by the second defendant around the western guardrail. Mr Stuart Smith considered the presence of such markers was consistent with good engineering practice. He said their earlier absence was excusable as the bend was otherwise satisfactorily signposted. In cross examination by the first defendant, Mr Stuart Smith said, in answer to a leading question, that chevron alignment markers were "very much indicated in this case". However, in cross examination by the second defendant, he conceded that chevron markers were intended to assist drivers as to the existence or direction of a curve, their importance increased in respect of night time driving and that in daylight the curvature and direction of the curve was observable to drivers as they came down the hill and that the curvature was demonstrated by the Armco fence. 75 Ultimately, there was little, if any, support for this allegation of negligence. Mr Fishburn confirmed that the signage was satisfactory. I accept that evidence. In my opinion, the second defendant did not fail to take reasonable care to adequately warn of the bend. 76 There was expert evidence that the bend, although subject to an advisory 55 km/h sign, could be taken comfortably in good conditions at speeds of 65-75 km/h in the case of average motorcyclists and up to 90 or 95 km/h in the case of expert motorcyclists. As Mr Hall said, 75 km/h would certainly be a comfortable speed for a rider of moderate capabilities. A road user, consistently with the road rules, could overtake in the overtaking zone at a speed of 100 km/h per hour, returning to the northbound lane at the end of the overtaking zone. This would be a "worse case scenario" in terms of reducing speed and preparing for the bend, short of the road rules being disobeyed. 77 The distance from the end of the overtaking zone to the commencement of the bend was 79 metres. Mr Stuart Smith did not dispute that a motorist could reasonably reduce speed from 100 to 60 or 65 km/h in 79 metres if in the northbound lane. He agreed the distance was adequate and that people could achieve higher deceleration rates than that. He agreed most motorists would go around the bend above 55, maybe at 65 km/h. 78 Mr Hall considered if the plaintiff was travelling at 95-100 km/h when he passed the first defendant, he would require 40-50 metres of moderate braking to reduce speed to 75 km/h and, allowing for a set up period, would have needed to apply moderate braking for 60-70 metres prior to the bend for it to be taken comfortably. 79 In a joint expert report (Exhibit B) it was stated the northbound line marking consisted of a dashed separation line of approximately 252 m in length, followed by a solid single barrier line approximately 119 m in length before the commencement of the double barrier lines at the start of the curve at Oakey Creek. The "start of the curve" here referred to (unlike earlier references) was to the start of the apex of the bend, which the report stated was 10 m after the Oakey Creek signs. In another joint expert report (Exhibit S), it was stated: "The experts define the start of the true curve to be 25 metres north of the southern most Oakey Creek sign." The photographs exhibited make it clear that the road remains near straight from the end of the overtaking zone to near the apex of the bend. Thus there is approximately 119-134 metres from the end of the overtaking zone to the apex of the bend. 80 As senior counsel for the plaintiff observed "One could readily decelerate from 95 ks per hour to the 50 or 60 - to a much lesser speed - to accommodate the bend." 81 In my opinion, the second defendant owed a duty to take reasonable care to provide an adequate distance for motorists using the overtaking zone and exercising reasonable care for their own safety to reduce speed and prepare to safely proceed through the bend. Reasonable care did not require the second defendant to guard against the risk of a motorcyclist commencing to overtake at speed at or near the end of the overtaking zone. Having regard to the available distance and to the likely infrequency of vehicles overtaking in the overtaking zone at 100 km/h and returning to the northbound lane at the end of the overtaking zone and the improbability of injury being sustained thereby, I do not consider that there was any breach of the second defendant's duty of care following the completion of the roadworks at Oakey Creek. 82 However, the plaintiff contends the second defendant subsequently was put on notice of incidents of vehicles losing control at the bend and should have taken appropriate action to remove the risk that was then apparent. 83 The evidence in support of this submission consisted of documentary evidence (Exhibit P) produced by the second defendant as follows:

(a) on 25 October 2001 an email was sent from Mr McTackett, the second defendant's project manager in the construction of the Oakey Creek bridge, in the following terms: "As discussed, I am concerned with a safety issue at Oakey Creek 55.9km south of Singleton on MR503. By way of background, replacement of the single span bridge at Oakey Creek, was completed in July 2001. The new structure is a three cell box culvert and the approaches have also been reconstructed with improvements to the vertical and horizontal alignments and improved width. Work is currently underway on the replacement of the bridge over Howes Valley Creek, 55.5 km south of Singleton and this work will include some realignment of the road, ultimately tying in to the new Oakey Creek approaches. Since the work at Oakey Creek has been completed, there have been some reported incidents of northbound vehicles losing control on the first curve north of Oakey Creek. The curve has a posted advisory speed of 55kph, which was the same prior to the upgrade. I don't know if the incidents are related to the temporary tie in to the roadworks at Howes Valley Creek, if it is due to traffic travelling faster on the improved alignment at Oakey Creek or if it is a combination of the two. Will you please arrange for a general inspection of this site, preferably at an early date, to assess the problem and recommend a solution. I am happy to attend the site if necessary to discuss this. The work should be charged to Subjob PP00195 and I would appreciate if it you or Shane could first contact me to discuss the approximate costs involved."

(b) The message was responded to as follows on 21 November 2001 by Shane Kerr, a senior technical officer of the second defendant: "I met Brian Griffiths on site early in November. I have made several recommendations which are contained on a 385 work request (sent out today). The recommendations are: Provide additional RRPM's around the Oakey Creek curve. Provide 10 x CAMs on the Oakey Creek bend for northbound traffic. Provide supplementary C size 55 kph curve warning sign. Relocate Reduce Speed sign further south and increase to B size and provide B size supplementary. Extend existing double unbroken centre line 100m south from the curve."

(c) An installation authority which indicated the material would be supplied from stock at Waratah sub depot and a plan which stated: "Extend existing BB line south 800 m (to past crest). 84 Exhibit 8 (2D) consists of documents which are apparently the order form for the upgraded signposting and linemarking referred to in Exhibit P. These documents disclose that the work was completed on 11 February 2002. The work involved was the upgraded signposting and linemarking as detailed. The unbroken centreline was extended to the crest rather than 100 metres south from the curve. The reason for this is not apparent. 85 The second defendant called no witnesses other than Mr Fishburn. The other parties therefore had the benefit of the principle in Jones v Dunkel, at least insofar as the second defendant's continuing employee, Mr McTackett, was concerned. However, that principle cannot be used to fill gaps in the evidence, or to convert conjecture and suspicion to inference. 86 The second defendant made the following submissions in respect of the plaintiff's contention:

(a) Section 5C(c) of the Civil Liability Act , 2002 provides that the taking of action which would have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.

(b) The significance to this case of the reported incidents of northbound vehicles losing control depends upon the occurrence and causes of the reported incidents ( Roads and Traffic Authority v Royal [2008] HCA 19 at [28]). The causes were not established by the evidence. Mr Fishburn gave evidence that on the crash history he obtained there were no reported incidents of northbound vehicles losing control on the first curve. He could not exclude the possibility there had been some minor incidents not included in the database. There was no evidence any incidents were due to persons using the overtaking zone. Any incidents may have been due to a temporary tie-in in the roadworks, as Mr McTackett hypothesised, or simply a driver choosing to travel at excessive speed wholly within the northbound lane. The relevance of these incidents, if they occurred, to the duty to the plaintiff was not established. The removal of the overtaking zone would appear to be an excessive response to the situation.

(c) The obligation of the second defendant, if there was a relevant risk, was to take reasonable steps within a reasonable time to address that risk. Regard must be had to competing and conflicting responsibilities of the second defendant, the availability of materials and skilled labour - Brodie v Singleton Shire Council [2001] HCA 29; (2001) 106 CLR 512 at [150]-[151], [162]. There was nothing about the information which indicated any particular urgency. The time taken by the second defendant implementing those changes was not overlong, particularly as it extended over the vacation period. The fact that the proposed work was not implemented until after the injury to the plaintiff did not, in the absence of impermissible hindsight reasoning, show a lack of reasonable care in all the circumstances.

(d) It was necessary for the plaintiff to establish that had the second defendant extended the barrier line so as to remove or reduce the overtaking zone, he would not have attempted to overtake the car and thus would not have sustained injury. The plaintiff's mother described the plaintiff as "very careful, very cautious and probably quiet". She was not however in a position to comment on the plaintiff's attitude as a motorcyclist. Mr Burgess described the plaintiff as, on the relevant occasion, riding "very, very conservatively, very, very within the law". That was not an accurate description. The plaintiff was riding, contrary to the conditions of his licence, on a very powerful motorcycle, exceeding the speed he was permitted to travel at and without displaying a P plate. The question to be addressed has regard to the particular circumstances which might affect the plaintiff's conduct - Hoyts Pty Ltd v Burns [2003] HCA 61; (2003) 77 ALJR 1934 at [25]. The evidence before the Court was that the plaintiff had been prepared to overtake at speed at the end of or beyond the end of the broken centreline when approaching a bend which was signposted 55 km/h. In these circumstances, the plaintiff has not established, and the onus is upon him, that he would not have attempted to overtake the first defendant if the overtaking zone in the relevant section had been reduced in length or removed. 87 I accept those submissions for the reasons set out in [86] above. 88 The second defendant also submitted that the plaintiff's claim against it would fail by reason of the absence of proof of the necessary causative link. I agree with that submission for the reasons set out in para [59] hereof. 89 I therefore conclude there was no negligence on the part of the second defendant and the plaintiff's injuries were not caused or contributed to by the second defendant. Accordingly, the plaintiff's action against the second defendant fails.

Verdict and judgment for the first defendant on the cross claim by the second defendant.

The second defendant pay the first defendant's costs of the cross claim. **********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : Hughes v Van Eyk [2008] NSWSC 525

HIH Casualty and General Insurance Ltd v Pluim Constructions Pty Ltd [2000] NSWCA 281; (2000) 11 ANZ Ins Cas 61-477 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 Cook v Cook (1986) 162 CLR 376 CASES CITED : Roads and Traffic Authority of NSW v Dederer [2007] HCA 42, (2007) 81 ALJR 1773 Chicco v The Corporation of the City of Woodville (1990) Aust Torts Reps 81-028 Roads and Traffic Authority v Royal [2008] HCA 19 Brodie v Singleton Shire Council [2001] HCA 29; (2001) 106 CLR 512 Hoyts Pty Ltd v Burns [2003] HCA 61, (2003) 77 ALJR 1934

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Judgment (51 paragraphs)

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