Breach of duty
5 It is not in dispute that the speed at which the respondent's vehicle was able to travel required some warning to following vehicles. The warning sign stating that it was a "towed vehicle" undoubtedly provided a driver approaching from behind with information suggesting that the vehicle would be travelling more slowly than might be expected. The warning that the vehicle was "oversize" no doubt indicated that it would take longer to pass the vehicle than might otherwise be anticipated. That was consistent with an expectation that most other road users would need to consider overtaking the towed vehicle because of its slow speed.
6 Although the vehicle was travelling at approximately 35km/h at the time of the collision, the driver's evidence was that he had achieved that speed slowly, after leaving the Pheasant's Nest service area and travelling for 4.3 kilometres south. The slow rate of acceleration was due in part to the weight of the vehicle being towed and to the gradual incline of the freeway to the south of the service area. Significantly, over that distance of 4.3 kilometres, the towed vehicle did not exceed 35km/h and, when it entered the freeway was travelling at between 10 and 15km/h. The only available inference is that a large vehicle travelling at such a low speed constituted a hazard on a freeway where the speed was 110km/h for ordinary vehicles and 100km/h for other heavy vehicles including the appellant's vehicle.
7 It is trite to say that hazardous conditions on a freeway require advance warning to drivers. If the hazard is fixed, the warning may be given by signs when the hazard is quite a distance ahead. When the hazard constitutes a slow moving vehicle, use of hazard lights or a yellow flashing beacon are common. Road maintenance vehicles, road construction vehicles, mowers on grass verges, graders on gravel roads and break down vehicles provide well-known examples. Such lights, whether or not they can be seen at a greater distance than a sign, provide unequivocal notice of a hazard on or near the carriageway. They are often used in conjunction with a sign; they signal a warning to an inadvertent driver.
8 As Bell JA notes at [57]-[59], the appellant gave evidence that he had seen tow trucks displaying flashing lights; Sergeant Kane, who attended the accident, also gave evidence that he had seen vehicles under tow with hazard lights activated. Sergeant Kane stated that the unusually slow speed of the towed vehicle was a contributing factor and, at least by implication, suggested that hazard lights or a flashing yellow light might have been an appropriate warning device.
9 As explained by Bell JA at [64], the Road Transport (Vehicle Registration) Regulation 1998 (NSW) ("the Vehicle Registration Regulation"), Schedule 4, expressly envisages that tow trucks and vehicles exceeding regulation length "may be fitted with a light or lights, at least one of which must be mounted on top of the vehicle, capable of displaying a flashing or rotating light": cl 123(4). Other vehicles dealt with in sub-cl (4) include emergency vehicles, including ambulances and motor breakdown service vehicles, milk delivery vehicles and school buses which stop frequently. Sub-regulation (7) further states:
"The light from any such light mounted on the top of the vehicle must be visible in normal sunlight from a distance of at least 200 m to a driver approaching that vehicle from any direction."
10 Regulation 55 in the Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999 (NSW) ("the Road Rules Regulation") is formulated as a prohibition which requires that such flashing lights or hazard lights be used only where the vehicle is "standing in a hazardous position" or "moving in hazardous circumstances": reg 55(d)(i) at [62] below. The implication that they should be used in such circumstances no doubt leaves an assessment of need to the discretion of the driver.
11 In relation to hazard lights, the same regulation requires that they not be used unless the vehicle is standing in a hazardous position or "moving in hazardous conditions". The change in language is unlikely to be significant, but the trial judge took the view that "hazardous conditions" was a phrase which referred to factors such as "road surface (condition), weather, and climatic conditions affecting visibility, or external features that affect the control of vehicles, such as a concealed gaps [sic], or obstacles, or hazards; or factors that restrict manoeuvrability, such as narrow, steep or treacherous carriageway": Judgment, p 32. Her Honour took the view that "circumstances" referred "more to factors related to traffic such as congestion; speed and volume of passing or involved traffic; and features of the vehicles involved, such as weight or defect". In any event, her Honour was prepared to consider the question on the basis that the terms were interchangeable, but held that neither phrase embraced "a very large, and obviously slow moving, vehicle": Judgment, p 33.
12 With respect, I cannot accept that conclusion. Regulation 55, read with the standards set out in Sch 4, cl 123 of the Vehicle Registration Regulation, is concerned with the circumstances in which a hazard light or flashing beacon may be used. It is clear from the other parts of reg 55 that the hazard with respect to which warning should be given arises from the use of the vehicle. Thus, flashing lights may be displayed by an ambulance, police vehicle and other emergency or rescue vehicles when "being used for urgent purposes", or when a vehicle is being used "to escort" an oversized vehicle or when a vehicle is being used "for law enforcement purposes". A vehicle which is in a "hazardous position" may use a flashing light because of that position, without regard to circumstances or conditions. Flashing lights may be used on a bus which is moving in hazardous conditions, or while stopped for passengers. School buses which stop frequently may be seen daily with flashing yellow lights. Garbage trucks which stop frequently may carry flashing yellow lights. There is no reason to read the regulation in a restrictive fashion. If a vehicle is creating a hazardous situation, because it is moving slowly (or stopping frequently) it may, and in some cases it would seem must, display a flashing or rotating light visible from 200 metres. Other vehicles, including emergency vehicles and law enforcement vehicles, use flashing lights when travelling at high speed.
13 The purpose of the prohibition in the regulations is to ensure that flashing lights are not used in inappropriate circumstances. However, the prohibition should not be read so as to prevent the appropriate use of flashing lights in situations where a vehicle creates a hazard on the roadway.
14 Further, the Vehicle Registration and Road Rules Regulations provide support for the view that flashing yellow lights are widely recognised as a primary means of warning road users as to hazards. They thus provide support for the proposition that a large vehicle travelling at an unexpectedly slow speed on a freeway should reasonably use flashing hazard lights or a rotating yellow beacon, to warn other road users of the hazardous situation.
15 Once it is accepted, as it should be, that some form of flashing warning light was a reasonable response to the hazard created by the large truck under tow, it is necessary to consider whether such a response was in any sense disproportionate to the circumstances, either by way of inconvenience or cost. However, there was nothing in the evidence to suggest that that was so. Accordingly, I would conclude that the respondent was in breach of his duty to other road users, including the appellant, in driving the vehicle at low speed on a moderately busy freeway, without flashing warning lights.