Liverpool City Council v Estephan Estephan

CATCHWORDS: TORTS - negligence - motor vehicle accident at intersection - modified T intersection - V1 had right of way turning right from leg of T over V2 passing along top of T - V2 did not see modified T interesection sign - drove straight ahead - V2 negligent - council did not install the appropriate warning signs and line markings - council negligent - whether V1 also negligent because did not slow down or stop despite having right of way - having right of way was part of circumstances in assessing reasonableness of V1's conduct - on facts, V1 not negligent - APPORTIONMENT - whether apportionment between V2 and council erroneous - (by majority) trial judge's apportionment was open to him - COSTS - orders having effect that council pay all plaintiffs' costs on indemnity basis - whether went beyond compensatory orders - preferable question whether reason to depart from costs on ordinary basis - delinquency found causing prolongation of hearing - reason to depart only to extent costs increased - trial judge's discretion miscarried - orders in nature of Bullock or Sanderson orders - no proper basis - discretion again miscarried.

Adelaide Congregation Jehovah's Witnesses Incorporated v Pegasus Leasing Ltd (Olsson J, SASC, 24 December 1996, unreported); Astley v Austrust Ltd [1999] HCA 6; (1999) 197 CLR 1; Baillieu Knight Frank (NSW) Pty Ltd v Ted Manny Real Estate Pty Ltd (1992) 10 ACSR 537; Barrett Property Group Ltd v Metricon Homes Pty Ltd (No 2) [2007] FCA 1823; Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2006] NSWCA 583; Bullock v London General Omnibus Co [1907] 1 KB 264; Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; Coombes v Roads and Traffic Authority (No 2) [2007] NSWCA 70; Degmam Pty Ltd (in liq) v Wright (No 2) (1983) 21 NSWLR 354; Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301; Dos Santos v Morris Painting and Decorating [2006] NSWCA 54; FAI General Insurance Co Ltd v Burns (1997) 9 ANZ Ins Cas 61-384; Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397; Gould v Vaggellas (1985) 157 CLR 215; CASES CITED: Hawthorne v Hillcoat [2008] NSWCA 340; [2008] 51 MVR 523; Knight v Maclean [2002] NSWCA 314; Manley v Alexander [2005] HCA 79; (2005) 223 ALR 228; McIntyre v Ridley District Council (1991) 56 SASR 343; Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72; Ragata Developments Pty Ltd v Westpac Banking Corporation (Davies J, Fed C of A, 5 March 1993, unreported); Redpath v Hadid [2004] NSWCA 295; Sanderson v Blyth Theatre Co [1903] 2 KB 533; Sibley v Kais (1967) 118 CLR 424; Tarabay v Leite [2008] NSWCA 259; Thors v Weeks (1980) 92 ALR 131; Trompp v Liddle (1941) 412 SR 108; Turner v Ku-ring-gai Municipal Council (1990) 72 LGRA 60; re Wilcox; ex parte Venture Industries Pty Ltd (1996) 141 ALR 727; Wentworth v Rogers (No 5) (1986) 6 NSWLR 534; Wynbergen v Hoyts Corporation Pty Ltd (1992) 72 ALJR 65.

PARTIES: Liverpool City Council - Appellant Estephan Estephan (Executor and Administrator of the Estate of the late Jocelyn Estephan & Ors)

FILE NUMBER(S): CA 40518/07; 40519/07; 40115/09; 40116/09; 40117/09

P Menzies QC & G Gemmell - Appellants COUNSEL: DJ Russell SC & N E Chen - First Respondent G Miller QC & C Thompson - Second to Sixth Respondents R Stitt QC & R Stitt - Seventh and Eighth Respondents

McCabe Terrill Lawyers - Appellant SOLICITORS: TL Lawyers, Newcastle - First Respondent Carroll & O'Dea Lawyers - Second to Sixth Respondents Sparke Helmore Lawyers - Seventh and Eighth Respondents

LOWER COURT JURISDICTION: District Court

LOWER COURT DATE OF DECISION: 10 February 2007 & 26 October 2007 (Costs)

LOWER COURT MEDIUM NEUTRAL CITATION: Estephan Estephan v Lynsey Finch & Ors, District Court, unreported

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40518/07 CA 40519/07 CA 40115/09 CA 40116/09 CA 40117/09

DC 2124/04 DC 2125/04 DC 2126/04 DC 1042/04 DC 2127/04

GILES JA McCOLL JA BASTEN JA

Friday 3 July 2009 LIVERPOOL CITY COUNCIL v ESTEPHAN & ORS Judgment 1 GILES JA: On 25 May 2001 a truck and trailer combination driven by Mr Lynsey Finch and owned by Rock Excavations & Plant Hire Pty Ltd ("Rock") collided with a Ford Falcon station wagon driven by Mrs Jocelyn Estephan. The collision was at the intersection of King Street and Devonshire Road, Rossmore. The roads were in the local government area of Liverpool City Council ("the Council"). Mrs Estephan and her son Steven were killed. Her daughters Charlene, aged 12, and Joanne, age 4, were critically injured but survived. 2 Five proceedings were brought in the District Court by members of the extended Estephan family, each alleging negligence against Mr Finch, Rock and the Council. The liability of Rock was vicarious, and references hereafter to Mr Finch should be taken to include Rock. In proceedings 1042/04 Mr Estephan Estephan, the widower of Mrs Estephan, claimed damages for nervous shock and damages on his own behalf and on behalf of Charlene and Joanne under the Compensation to Relatives Act 1897. In proceedings 2124/04 and 2125/04 each of Charlene and Joanne, by Mr Estephan as her tutor, claimed damages for personal injury. In proceedings 2126/04 and 2127/04 Mr Joseph Azzi and Mrs Mary Azzi, the parents of Mrs Estephan, claimed damages for nervous shock. 3 In each of the proceedings there were second and third cross-claims for contribution between Mr Finch and the Council. The Council as first cross-claimant also cross-claimed for contribution against Mr Estephan as executor of the estate of Mrs Estephan ("the estate") on the basis that Mrs Estephan had been negligent. In proceedings 1042/047, 2126/04 and 2127/04 the Council had pleaded in its defences that Mrs Estephan had been contributorily negligent, see Civil Liability Act 2002 s 5T (regard to contributory negligence in a claim under the Compensation to Relatives Act) and s 30 (reduction of damages for nervous shock in the same proportion as any reduction in damages that may be recovered by or through the victim). It may be that the first cross-claims in those proceedings were not necessary, but that need not be considered. 4 The proceedings were heard together by Nielson DCJ, as to liability only, over twelve days in March 2006. 5 His Honour gave judgment on 10 July 2007. He held that Mr Finch had been negligent in driving the truck and that the Council as the responsible road authority had been negligent in failing to have appropriate warning signs and line markings at the intersection. These are general statements, and it will be necessary to refer in more detail to the negligence. He held that Mrs Estephan had not been negligent. He apportioned liability 20:80 between Mr Finch and the Council. 6 In each of the proceedings there were a verdict for the plaintiff for damages to be assessed, verdicts as between Mr Finch and the Council for 80 or 20 per cent of the damages so assessed, judgment for the estate on the Council's cross-claim and costs orders in relation to the cross-claims. The trial judge gave liberty to apply for special costs orders. 7 Applications were made, and there was a hearing as to costs on 2 October 2007. On 19 October 2007 his Honour gave judgment and made costs orders, including orders which left the Council bearing the plaintiffs' and Mr Finch's costs on an indemnity basis and the costs payable by Mr Finch to the plaintiffs on the ordinary basis. 8 The Council appealed as of right against the judgments for the estate on its cross-claims in proceedings 2124/04 and 2125/04, but did not seek leave otherwise to appeal from those proceedings or to appeal from the other proceedings. It later applied for leave to appeal against the apportionment between Mr Finch and itself in the proceedings 2124/04 and 2125/04. The application was stood over to the hearing of the appeals. At the hearing it applied for leave to amend the notices of appeal to challenge the costs orders in the two proceedings so far as leaving it with the burden abovementioned. When the Court pointed out that there could be inconsistent judicial findings and results in the other three proceedings, it applied for leave to appeal from the decisions in those proceedings in relation to negligence of Mrs Estephan, apportionment and costs. 9 This was not a procedural history to be proud of, and there was some discontent on the respondents' side of the record. In the end, however, there were no objections to grants of extensions of time, grants of leave and ancillary orders. Thus the hearing was concerned with appeals from all five proceedings on the three issues - whether the finding that Mrs Estephan was not negligent was erroneous; (assuming that Mrs Estephan was not negligent) whether the apportionment as between Mr Finch and the Council was erroneous; and whether the particular costs orders were erroneous exercises of the trial judge's discretion. 10 For the reasons which follow, in my opinion the appeals on the first two issues fail but the appeals on the third issue succeed.

The intersection 11 King Street ran north/south. Devonshire Road ran east/west, intersecting with King Street from the west and forming a T intersection with Devonshire Road as the upright of the T. 12 King Street north of Devonshire Road was unsealed, and was a dead end road. Devonshire Road and King Street south of the intersection were sealed, and the dominant traffic flow was north along King Street turning left into Devonshire Road and east along Devonshire Road turning right into King Street. The roads carried not inconsiderable traffic: on surveys in mid-1994, the average traffic on Devonshire Road was 4461 vehicles per day including over 700 heavy vehicles. 13 Initially the intersection was not controlled by signs or line markings. That a vehicle travelling north along King Street but not turning left into Devonshire Road might collide with a vehicle in the flow of traffic turning right from Devonshire Road into King Street was given point when such an accident occurred in May 1992. The mother of one of the drivers, Mrs Nicholls, wrote to the Council asking that "a give way sign be erected on this corner … to perhaps help prevent further such incidents". 14 The intersection remained uncontrolled by signs or line markings. In late 1996 Mrs Vincenza Camilleri, who lived in King Street north of the intersection, wrote to the Council - "I am writing with regard to the T intersection on the corner of King Street and Devonshire Road, Rossmore. There is no 'Give Way' or 'Stop' signs at this Point, and even though road rules exist, it appears drivers who proceed to turn right from Devonshire Road onto King Street are 'assuming' that there is no traffic alighting to and from the 'No Through Road" end of King Street. Although there are approximately 5 properties on this dirt road Section, traffic flows constantly through this area, and I believe there is great cause for concern. I, and the residents of 'King Street No Through Road section' would be pleased if your Department could install 'Give Way' signs at this intersection before an horrific accident occurs." 15 This led to the Council causing to be installed in 1997 a give way sign at the intersection facing traffic travelling south along King Street and a holding line across King Street at the northern alignment of Devonshire Road. In a note of the Council's decision that this should be done it was said that this was "required to formalise the intersection priority", with the comment that "[m]ajor arms of this T intersection are King Street and Devonshire Road where most traffic flows". This signage and line marking dealt with priority between a vehicle turning from Devonshire Road right into King Street and a vehicle travelling south along King Street from north of the intersection. It did not deal with priority between a vehicle turning right from Devonshire Road into King Street and a vehicle travelling north along King Street but not turning left into Devonshire Road. 16 In April 1998 Councillor Harrington asked at an ordinary meeting of the Council - " …can a 'Give Way' sign be placed at the intersection of King Street and Devonshire Road, Rossmore as there has been a lot of near misses caused by cars going straight through towards the unsealed end of King Street, travelling north." 17 The question was referred to the Council's staff. In a memorandum responding to the question it was noted that motorists travelling north along King Street towards Devonshire Road "are not advised which movements have priority" and that "[t]he potential for collision at this intersection is apparent". Measures proposed "to assist motorists in determining which movements have priority" were described. 18 The measures were installed in 1998. A double unbroken white line, with cat's eyes at six metre intervals, commenced 30 metres south of the intersection on King Street and 30 metres west of the intersection on Devonshire Road, curving around at the intersection with a break in the middle of the curve for a notional right hand turn (see Australian Road Rules reg 73) into King Street north of the intersection (but in fact a vehicle would go straight ahead). Warning signs, described as modified T intersections signs and showing thicker limbs of the T for Devonshire Road and King Street south of the intersection, were placed on the western side of King Street 80 metres south of the intersection and on the northern side of Devonshire Road 80 metres west of the intersection. A sign with chevron markings on the eastern side of King Street opposite the east-bound lane of Devonshire Road indicated that traffic should turn south into King Street. 19 This remained the position at the time of the accident in May 2001. As well as the cumulative signage and line marking, at the time of the accident and it would appear for some time beforehand there was a "No Through Road" sign on a post on the western side of King Street about 6 metres north of the intersection. The trial judge found that it would become legible from about 40 metres away, and that at a greater distance it would mean nothing to a driver; and further, that it was erected at such height that it would be obscured by a vehicle such as the Ford coming out of Devonshire Road. A pole at the north-western corner of the intersection bore a luminaire on an outreach arm extending over King Street a little north of the holding line and as far as the western edge of King Street. This was not central to the intersection, and more generally his Honour found that the roads were poorly illuminated and that the street lighting in King Street north of the intersection was "a visual cue" that King Street was the through road. 20 At the time of the accident the double unbroken white lines were in places obscured by skid marks, and the cat's eyes had been abraded from the road surface or otherwise lost.

The accident 21 The truck and trailer combination driven by Mr Finch was unladen. He was not familiar with the roads in the area. He came to be driving north along King Street looking (mistakenly) for an intersection at which he would have to turn right. It was a little before 6 pm and just on dark, and the headlights of the truck were on low beam. 22 South of the Devonshire Road intersection Mr Finch passed an intersection where Wynyard Avenue joined King Street on its western side. He saw a car in Wynyard Avenue approaching the intersection and stopping to give way. He slowed, and then accelerated again. He was travelling at about 70 kilometres per hour as he approached the Devonshire Road intersection. 23 Mr Finch did not see the modified T intersection sign 80 metres south of the intersection. As he came closer to the intersection he saw headlights from a car, in fact the Ford, approaching the intersection on Devonshire Road. He thought that his route was straight ahead, and that he had priority over a car approaching from a street on his left. He said, and the trial judge appeared to accept, that the street lights "way up ahead" indicated to him that the road went straight ahead. 24 When he saw the headlights Mr Finch was more than 30 metres from the intersection. The distance is not entirely certain: the trial judge found only that it was likely he saw them "a shorter distance" rather than "the longer distance" (it is not clear what was the longer distance) before 30 metres away. He took his foot off the accelerator, which engaged the truck's compression brake and on the trial judge's finding caused the truck to slow to about 58 kilometres per hour. Mr Finch did not recollect seeing the double unbroken white line. He realised that the Ford was not going to stop, and applied his brakes as hard as he could and "tried to turn to my right to get away from the vehicle". 25 The trial judge found that Mrs Estephan was familiar with the intersection; she lived about three kilometres away and travelled regularly on the roads. His Honour found that she "knew" that she had priority over a vehicle travelling north along King Street. Under reg 73, she did have priority. 26 Mr Adam Zadro was driving about 70 metres behind the Ford. He was travelling at 70-75 kilometres per hour and was not gaining on it, so Mrs Estephan must have been travelling at about the same speed. He had a clear view over a paddock between Devonshire Road and King Street, and saw Mr Finch's truck, which was well illuminated by lights along its side and the side of the trailer, as it approached the intersection. He saw the brake lights go on on the Ford, indicating that it was slowing, but to his observation Mr Finch's truck did not appear to be slowing down. He thought he saw the truck "make an attempt to stop in the last moments". 27 The trial judge found that Mrs Estephan "braked, reducing her speed". But she did not stop, and commenced the right turn into King Street. The Ford was on its correct side of the road, and passed completely into the southbound lane of King Street prior to the collision: the trial judge found that, had Mr Finch not tried to turn or veer right to avoid the Ford, but continued straight ahead or attempted to drive to the left, the collision would not have occurred. 28 The truck hit the Ford just forward of the driver's door. It pushed it some distance north and east of the holding line before the vehicles came to rest, with the truck at approximately 90 degrees across King Street north of the holding line and the trailer in the intersection.

Mrs Estephan's negligence 29 Mrs Estephan was travelling below the 80 kilometres per hour speed limit for Devonshire Road. The trial judge inferred that, from the headlights and clearance lights seen by Mr Zadro, she also saw Mr Finch's truck, but in his findings next mentioned accepted that it was difficult for her to judge its speed. 30 The trial judge expressed his findings as follows - "133 It was submitted that on any objective assessment, this was a dangerous intersection and was recognised as such by 'the locals' eg the Zajacs, Mr Zadro, and other local residents who had made complaints about it from time to time. Mrs Estephan was a 'local' and therefore she ought to have been more vigilant than she might otherwise be. However, as a regular user of the intersection, Mrs Estephan must have known the correct priority at it. She was entitled to believe and proceed on the basis that the truck would yield way to her. There is no evidence that either Mrs Estephan or Mr Finch made any signal at the intersection. Under the Road Rules (see Exhibit R) Mrs Estephan was not required to indicate that she was turning right. However, if Mr Finch was proceeding straight ahead, he was required to indicate that he was making a right hand turn - but his right hand blinker was not activated. That may well have misled Mrs Estephan. Furthermore, one must consider this evidence of Mr Jamieson, to which I have already adverted: 'Q. Do you have an opinion as to how easy or difficult it would have been for Mrs Estephan travelling east along Devonshire Road to assess the speed of the truck driven by Mr Finch, assuming that she had seen it? A. Well, my understanding was that it was night time. My understanding, was that the truck had its headlights on. There was no bright street lighting to the south, and despite the presence of the orange sidelights it is normally considered difficult to precisely judge the speed of an oncoming vehicle with its headlights on.' 134. On the question of assessing the speed of the truck, it must be remembered that this collision occurred at night, in a semi-rural area, on roads which were, on any objective standard, poorly lit and there were few, if any, stationary reference points against which Mrs Estephan could gauge the speed of the truck. If she were able to gauge its speed, what would she have assessed? It is obvious from my finding of fact as to the speed of the truck that it was not proceeding along King Street at some thunderous rate between 90-100 kph. It was proceeding at a speed which a local, Mr Zadro would consider to be 'normal', 70 kph when he perceived the speed limit to be 80 kph, 'around about the speed limit'. Although Mr Zadro did not see the effects of the application of the compression brake (reducing the truck's initial speed of 70 kph to 58 kph) Mrs Estephan may have seen the commencement of it and that may have led her to believe that the truck was slowing either to turn left or to yield way to her. Accordingly, there could have been 3 stimuli affecting her assessments: (i) her knowledge of the priority, (ii) the lack of a signal by the truck for the theoretical right hand turn, and (iii) the commencement of braking by the truck. Weighing all these considerations, I am not persuaded on the balance of probabilities that Mrs Estephan was negligent. 135. Furthermore, this, in my view, is a classic case of the 'agony of the moment' to which I have referred in discussing Mr Finch's negligence. Even if she perceived at the last moment that there might be a collision, she might have assessed it impossible to come fully to a stop in Devonshire Road and assessed that there was sufficient time for her to make the right hand turn prior to the collision. She in fact achieved that result: the collision occurred because Mr Finch made the error of steering to the right, a decision which, from his evidence, which I have already quoted, haunts him to this day." 31 The Council's submissions on appeal had a number of strands, but it was essentially submitted that Mrs Estephan had been negligent in that, having seen Mr Finch's truck, she should have slowed down so as to be able to avoid a collision if the truck went straight ahead along King Street and did not turn left into Devonshire Road. Strands in the submission were - Mrs Estephan was not entitled to assert her priority over a vehicle making a notional right hand turn into King Street north of the intersection; the intersection was recognised as dangerous by "the locals", Mrs Estephan was a local, and so she should have recognised it as dangerous and been particularly alert to the truck she saw travelling north along King Street; it was no more than speculation that the fact that Mr Finch's right hand blinker was not activated may have misled Mrs Estephan; when Mr Zadro had not perceived a reduction in the truck's speed, it should be inferred that Mrs Estephan was aware that the truck was not reducing its speed; alternatively, when (on the evidence of Mr Jamieson) it would have been difficult for her to judge the speed of the truck she should have slowed down because she did not know whether she would pass through the intersection before or after the truck arrived; it was no more than speculation that Mrs Estephan may have seen the commencement of braking by the truck; rather, from Mr Zadro's evidence it should have been found that she did not; from the absence of a significant change in the speed of the truck and the absence of blinkers showing that it was turning left or right, Mrs Estephan should have perceived and reacted to an intention of the truck's driver to go straight ahead through the intersection; and it was not a case of agony of the moment, because Mrs Estephan had a clear view of the truck and her negligence lay in not slowing down in the circumstances found in the preceding dot points. 32 The Council submitted that the trial judge had found, inconsistently with absence of negligence, that Mrs Estephan "ought to have been more vigilant than she might otherwise be": at [133] set out above. In my view his Honour was reciting a submission, not making a finding. 33 The Council's submission was expressly that Mrs Estephan should have slowed down. It was not taken further, to how much slowing down or to stopping or taking any particular evasive action, and consequently causation questions were not addressed. On the trial judge's findings, if the Ford had entered the intersection a little later than it did the truck would still probably have collided with it. The failure to address causation is unsatisfactory, but does not matter since I do not accept that Mrs Estephan was negligent. 34 It is correct that Mrs Estephan was not entitled to assert her priority at the intersection, but that did not take out of consideration the knowledge as found by the trial judge that she had priority. It remained as part of the circumstances in which the reasonableness of her conduct must be assessed. 35 In Sibley v Kais (1967) 118 CLR 424 at 427 Barwick CJ and McTiernan, Kitto, Taylor and Owen JJ said, in relation to the give way to the right rule - "The failure to take reasonable care in given circumstances is not necessarily answered by reliance upon the expected performance by the driver of the give way vehicle of his obligations under the regulations; for there is no general rule that in all circumstances a driver can rely upon the performance by others of their duties, whether derived from statutory sources or from the common law. Whether or not in particular circumstances it is reasonable to act upon the assumption that another will act in some particular way, as for example by performing his duty under a regulation, must remain a question of fact to be judged in all the particular circumstances of the case." 36 The general obligation was stated by their Honours, also at 427 - "The obligation of each driver of two vehicles approaching an intersection is to take reasonable care. What amounts to "reasonable care" is, of course, a question of fact but to our mind, generally speaking, reasonable care requires each driver as he approaches the intersection to have his vehicle so far in hand that he can bring his vehicle to a halt or otherwise avoid an impact, should he find another vehicle approaching from his right or from his left in such a fashion that, if both vehicles continue, a collision may reasonably be expected ." (emphasis added) 37 The emphasised words do not mean that failing to slow down or stop is negligent if there is any possibility of the other vehicle continuing. If it did, intersections would become static. It must reasonably be expected that continuance will bring collision. Reasonable expectation depends on the facts, and the facts include that drivers generally obey the road rules. In Sibley v Kais their Honours regarded as consistent with their statement of the general obligation the "expressions of opinion" in other cases. The cases included Trompp v Liddle (1941) 412 SR 108, in which Jordan CJ delivering the judgment of the Court said at 109-110 - "A driver is entitled to assume that other drivers will observe the rules of the road. This does not mean that he may drive at any pace he chooses so far as roads coming in on his left are concerned, or with complete indifference to the possibility of a car suddenly emerging from the side road as the result of accident, miscalculation, ignorance or recklessness. It means that it is not unreasonable for him to act on the assumption that other drivers are obeying the rules unless there is something which should make him realise that they are not. Thus, the mere fact that he sees the bonnet of a car appear from a side street on his left does not make it imperative for him to stop. Drivers in such a position normally advance far enough to see whether cars are approaching on their right; and a driver so approaching may reasonably assume that the driver on his left is advancing to serve this purpose unless he gets some indication to the contrary. Again, it is not unreasonable for a driver to act on the assumption that other drivers are driving at reasonable speeds, in the absence of some indication to the contrary. It is negligent to drive at a higher speed than is reasonably safe in the particular locality; and it is evidence of negligence to drive at a higher speed than is allowed by any regulation in force in the locality. A driver approaching a street which comes in on his right may not unreasonably assume that drivers approaching on his right are not driving at excessive speeds, unless he receives some indication that they are in fact so doing. If he is in this way misled into under-estimating the speed of an unreasonably fast car, and a collision occurs through his moving forward in a way that would be safe if the other car were proceeding at a reasonable pace, it is not he but the driver of the other car who has been guilty of negligence." 38 In Astley v Austrust Ltd [1999] HCA 6; (1999) 197 CLR 1 at [30] Gleeson CJ and McHugh, Gummow and Hayne JJ said, with a footnoted reference to these pages of Trompp v Liddle, that in many cases it may be proper for a plaintiff to rely on the defendant to perform its duty, but that there is no absolute rule. Jordan CJ's statement, and the consistency with Sibley v Kais, was accepted in Redpath v Hadid [2004] NSWCA 295 at [47] (Sheller JA, with whom Hodgson JA "substantially" agreed and Ipp JA relevantly agreed), and by McColl JA in Dos Santos v Morris Painting and Decorating [2006] NSWCA 54; her Honour dissented in the result, but the reasons of Mason P, with whom I agreed, do not cast doubt on the principle. 39 On the related question of a driver's anticipation of a pedestrian's behaviour, in Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301 the High Court declined to find negligence despite reasonable foreseeability of the appearance of the child, and in his analysis of that case in Knight v Maclean [2002] NSWCA 314 Heydon JA said at [68] that "[i]t is not the law that a driver complying with the minimum requirements of the law of negligence must drive in such a way as to anticipate everything that a pedestrian might do at all stages of every journey, or to be in a position to reduce speed to levels which will avoid any risk of a collision at all stages of any journey." 40 In Manley v Alexander [2005] HCA 79; (2005) 223 ALR 228 the defendant kept his eyes on a pedestrian and while doing so ran over the plaintiff who was drunk and lying on the road. In holding that it was open to find the defendant negligent, Gummow, Kirby and Hayne JJ said at [12] that, although the possibility of someone lying on the road was remote - " … the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events." 41 In Hawthorne v Hillcoat [2008] NSWCA 340; (2008) 51 MVR 523 Hodgson JA, with whom Ipp JA and Gyles AJA agreed, said of this passage - "47 In my opinion, in the second sentence of par [12] of the majority judgment, it is noteworthy that their Honours used the words "may know" and not "knows" or "will know". I do not suggest that, in their context, the words "may know" mean merely "might possibly know". However, the words certainly do not mean "knows" or "will know". In my opinion, the best understanding of the words can be expressed as "is in a reasonable position to know". The standard in respect of the position a driver should be in so as to be able to take reasonable steps to react to events is itself a standard of reasonable skill and care; and although the standard of reasonable skill and care required of drivers is a high standard (because cars are so dangerous, and can so easily cause serious injuries), it is not a standard measured by success or perfection assessed with the wisdom of hindsight." 42 What is unreasonable is a question of fact in all the circumstances. In the present case the circumstances included Mrs Estephan's knowledge as to priority at the intersection and any indicia to her that Mr Finch's truck was going to go straight ahead across the intersection. While expressed by the trial judge as Mrs Estephan's knowledge of the correct priority at the intersection, from the reasons as a whole it was not just a belief held by Mrs Estephan. What his Honour said extended to her knowledge of the modified T intersection signs and the double white unbroken lines, for the indications they gave to the driver of the truck that she would be turning right into King Street. So the trial judge also expressed himself that she was "entitled to believe and proceed on the basis that the truck would yield to her"; this was not only as an entitlement according to the road rules, but also as a factual forecast. 43 The circumstances would also include knowledge that the intersection was dangerous. The trial judge did not find that Mrs Estephan shared "the locals'" recognition that it was dangerous, and his finding that she was entitled to believe and proceed on the basis that the truck would yield way to her is not consistent with such a finding. With the exception of Mr Zadro, those who on the evidence thought the intersection dangerous lived close by, and so had occasion to see and hear the accidents or near accidents. Mr Zadro used the roads regularly to travel to and from work, but Mrs Estephan's experience of the intersection was not shown to be equivalent to his experience. Her familiarity with the intersection does not mean experience of accidents or near accidents. To label Mrs Estephan a local is uninformative, and does not bring an inference that she had a close-by resident's recognition of dangerousness. In my opinion the trial judge declined so to infer, and was correct in that respect. 44 The Council accepted that, if the right hand blinker of the truck had been activated, it would have been visible to Mrs Estephan. I do not think there was error in the trial judge having regard to the fact that it was not activated. The words "[t]hat may well have misled Mrs Estephan" should not be understood as speculation, but as noting a material circumstance. The materiality is not so much that it may positively have misled Mrs Estephan. It is that there was no indication, from the activation of the right hand blinker, to the contrary of a reasonable expectation that the truck would turn left into Devonshire Road; an expectation which, because of the road rules and the general flow of traffic turning left into Devonshire Road, was not denied by the absence of a blinker showing that it was turning left. 45 The speed of the truck is an important circumstance, for the indication it could give that the truck was not going to turn left into Devonshire Road. Remembering that the Ford was about 70 metres ahead of Mr Zadro's vehicle, Mr Zadro's perception of the speed of the truck from a different angle is not a sound guide to Mrs Estephan's perception. The trial judge was entitled to act upon the evidence of Mr Jamieson to the effect that it would have been difficult for her for her to estimate its speed, and the Council did not establish that a driver in her position on Devonshire Road would reasonably have perceived that the truck was travelling fast and not slowing down. The trial judge's suggestion that she may have seen the commencement of the slowing from 70 kilometres per hour to 58 kilometres per hour is not readily reconcilable with this, and is in a different position from what his Honour said about the right hand blinker because the non-activation of the blinker could have been seen by Mrs Estephan. I have difficulty with the third of the "stimuli" to which the trial judge referred, but if it be put aside the fact that Mrs Estephan could not readily have judged the speed of the truck remains material to the circumstances in which the reasonableness of her conduct must be assessed. 46 Mrs Estephan was driving along Devonshire Road within the speed limit, to turn right into King Street at an intersection which she knew had the modified T intersection signs and double white unbroken lines, indicating to a driver travelling north along King Street not just her priority in doing so but the likelihood that she would do so. As a driver familiar with the intersection, she was familiar with the general traffic flow. Although she saw Mr Finch's truck approaching, I understand the trial judge to have found that it was not evident to her that he was travelling at a speed inconsistent with turning left into Devonshire Road. The truck was not indicating by the right hand blinker that it was intended to go straight ahead. Mrs Estephan did apply the brakes, although the evidence was imprecise and does not permit inference of the reason beyond that she slowed to a speed appropriate for turning right into King Street. I do not think that taking reasonable care called for Mrs Estephan more radically to slow down as she approached the intersection, against the possibility that the truck did not turn left into Devonshire Road. 47 It is unnecessary to consider agony of the moment. I have some difficulty in seeing how it arises, since any negligence in failing to slow down would have occurred before the "last moment" and before any attempt to make the right hand turn prior to the collision.

Apportionment 48 The Council accepted the trial judge's factual findings in relation to its and Mr Finch's negligence. The other parties did not seek to add to them by notices of contention. There was some indeterminate discussion of possible application of the provisions of the Civil Liability Act relating to liability of public authorities, but the Council had not relied on them at trial and disclaimed any reliance on them on appeal. 49 The trial judge found negligence of Mr Finch in failing to see the modified T intersection sign and in steering the truck to the right at the last moment. He considered whether there was negligence in the speed at which Mr Finch was travelling along King Street, or in failure to see or react to the back of the give way sign facing traffic travelling south on King Street, to the "No Through Road" sign, to the street sign "Devonshire Road", to the luminaire at the intersection or to the curved section of the double white unbroken line, and found that there was not negligence in any of these respects. 50 In relation to seeing the modified T intersection sign, the trial judge found that Mr Finch would have been able to see it at the least when 100 metres away, and to read it when 50 to 60 metres away. Mr Finch simply did not see it. The trial judge said that even if it would not have conveyed to him that he had to turn left into Devonshire Road, it would have warned him that he would have to give way to traffic turning right out of Devonshire Road. (In fact it did not mean that he had to turn left into Devonshire Road.) At one point in his reasons the trial judge said, although clearly not excluding the Council's negligence, that "[t]he effective cause of this collision is … Mr Finch's lack of awareness of the altered priority at the intersection." 51 In relation to steering to the right at the last moment the trial judge found that, if Mr Finch had not done so but had "maintained a straight direction", the accident would not have occurred because the Ford would have passed in front of the truck. Although it was not challenged on appeal, the finding of negligence in this respect is a little difficult to understand. As I have noted, Mr Finch said that he "tried to turn to my right to get away from the vehicle". The trial judge did not find why Mr Finch did so other than in the comment at [128], "Why he did this so [sic] is understandable in human terms: the natural human reaction to avoid the path of an oncoming projectile". His Honour followed the comment with rejection of what he described as the submission "that this was an 'agony of the moment' situation", apparently on the basis that a wrong-doer's negligence could not be excused by the "agony of the moment" in an emergency if the emergency was created by the wrong-doer's antecedent negligence. If correctly stated, that was a legal principle, and not an answer to the factual question of why Mr Finch steered to the right and the associated question of whether in doing so he acted unreasonably in the circumstances. Steering to the right can, of course, be seen as a consequence of the situation created by the negligence in failing to observe the modified T intersection sign, with its causal contribution taken into account accordingly, but it may not have been correct to find independent negligence. Since there was no challenge to it, I act upon the trial judge's finding; I do not think the manner in which account is taken of steering to the right materially affects the appropriate apportionment. 52 I go to the Council's negligence. As I have said, the intersection was in the Council's local government area. It was the relevant road authority. It was represented on a Traffic Committee for the local government area, the other members of the Committee including representatives of the Police, the Department of Transport and the RTA. Under procedures of the Committee adopted by the Council, some of its functions as road authority required approval of the Police and RTA members of the Committee. Its functions relating to stop and give way signs, regulatory line marking and street lighting, however, were exercised by the Traffic and Parking Department of the Council without the need for outside approval. 53 The finding of the Council's negligence came after a detailed consideration of the state, and the communications concerning the state, of the intersection, as known to the Council, and of expert evidence of deficiencies in its signage and line marking. The following takes up sufficient of the consideration for an understanding of the finding. 54 The trial judge described a history of accidents at the intersection, commencing with the accident in May 1992, and the signage and line marking over the ensuing period. I have referred to some of this; the measures taken did not include a give way sign or other more stringent resolution of priority between traffic turning from Devonshire Road into King Street over traffic travelling north along King Street. After 1998 there were further accidents at the intersection. Mr Zajac, who lived in King Street a little north of Devonshire Street, raised with a Council officer, Mr Von Seca (the spelling is uncertain), that other motorists did not appreciate that when notionally turning into the King Street dead end they had to give priority to vehicles turning right into King Street from Devonshire Road, and braked behind him and sounded their horns. On another occasion Mrs Zajac told Mr Von Seca that the intersection was dangerous and someone was going to get hurt, and that they often heard the screeching of brakes and sometimes saw trucks and once a bus going "straight through the intersection" into King Street north of the intersection. 55 A road safety audit initiated by the then Sergeant Le Merton within days of the accident in May 2001 identified a number of deficiencies. It included that street lighting along the eastern side of King Street gave the impression of a straight, continuing road, and that the predominant traffic flow was for northbound traffic in King Street to turn into Devonshire Road and vice versa and that no sign faced northbound traffic in King Street to indicate that those vehicles must give way to traffic coming from the left out of Devonshire Road. It was recommended, amongst other things, that two over-size give way signs be erected in King Street facing north-bound traffic at the intersection with Devonshire Road and that a give way line be painted on the road, and also that the "No Through Road" sign be re-located to an adjacent power pole and raised in height and that the give way lines in King Street facing south-bound traffic and the small intermediate section of double line be re-painted to an appropriate standard. At the trial the then Chief Inspector Le Merton gave evidence that he had serious concerns about the intersection, including - " … that there was nothing obvious to a driver travelling in a northerly direction on King Street that the driver would be required to give way to any vehicle that was coming from his left out of Devonshire Road. There was no give way line or give way sign erected facing the driver travelling north requiring him to give way to a vehicle that was coming from his left." 56 Within a short time after the accident the Council caused to be installed a "give way sign ahead" advisory sign in King Street 100 metres south of the intersection with Devonshire Road, extensions of the double white unbroken lines and cat's eyes to 60 metres from the intersection, a holding line across the western lane of King Street at the alignment with the southern edge of the pavement of Devonshire Road, and two give way signs on either side of King Street a short distance south of the intersection. It also caused a 35 kilometre per hour advisory speed sign to be attached to the existing modified T intersection sign in Devonshire Road and a turning line to be painted from the north-western corner of the intersection in an arc to the eastern side of King Street. The "No Through Road" sign was moved to a power pole on the western side of King Street further to the north of the intersection and was mounted higher. A new and much more powerful luminaire was installed over the intersection by arrangement with Integral Energy. 57 Expert evidence was given by Mr John Jamieson, Mr Roger Stuart-Smith and Mr William Bailey. Each was critical of the intersection as at the time of the accident. 58 In his reports Mr Jamieson said that "[t]he combination of the low level of signposting at the site at the time of the crash, combined with minimal street lighting, would have made the site (from a traffic engineering viewpoint) at best, ambiguous and at worse potentially dangerous". He explained that this was because the intersection was in almost total darkness but the street lights towards the north meant that a north-bound driver unfamiliar with the road would foreseeably assume that it went straight ahead; because the single modified T intersection sign would not by itself give sufficient warning or information to a north-bound driver that the through road veered to the left; and that the give way sign for south-bound traffic on King Street and the holding line for that traffic would not indicate to traffic turning right from Devonshire Road the need to stop, slow down or give way to traffic approaching from the south. He said that the Council was alerted to the problem in 1996, but only responded in a partial way "not addressing the specific problem of the ambiguous intersection priority". It breached "the Australian Standards and Austroads guidelines with respect to the provision of unambiguous traffic and lighting guidance at this intersection". 59 In his oral evidence, which the trial judge canvassed in some detail, Mr Jamieson agreed that what was done by the Council in 1996 was itself capable of creating much confusion, because traffic coming out of Devonshire Road could expect vehicles on the left to give way but still have to give way to vehicles on the right. He said that he would expect a reasonably prudent traffic engineer to pick up what he described as "the ambiguities associated with the change of priority". As to the measures taken in 1998, he said that they had "what I would have thought to be the obvious risk of exposing the right turning traffic from Devonshire Road to continuing north-bound traffic in King Street without any control". He agreed that the modified T intersection sign was ambiguous and capable of being positively misleading. His report had included that the modification of priority required additional visual reinforcement, and he thought the modified T intersection sign was insufficient. 60 Mr Jamieson could see no reason why a give way sign facing north-bound traffic on King Street, and a holding line, could not have been installed in 1998. He said, and the trial judge found, that the cost would have been trivial. 61 Mr Stuart-Smith was no less critical of the intersection. He said in his report that the combination of road traffic geometry, traffic control devices and street lighting "combined to create an inadequate and ambiguous intersection environment, particularly at night for drivers using low beam". In his oral evidence he explained that what was ambiguous was determining priority when there was the gap in the double white unbroken line. I do not go further because the trial judge rested his finding particularly on the opinion of Mr Jamieson. 62 Mr Bailey, to whose opinion the trial judge also referred in stating his finding, was also critical of the use of the modified T intersection sign because of the risk that the variation from an ordinary T intersection sign would not readily be perceived, and said that the risk would be substantially increased when the sign was used in isolation and without other indicators of "a critical change to traffic rules" and when lighting conditions were poor. He said in his report that when the Council modified the traffic priority at the intersection it "introduced a substantial hazard if northbound drivers did not recognise and comply with the change". With the modified traffic priority, there should have been traffic control devices which commanded attention and conveyed the changed priority with the minimum number of messages to obtain the desired driver response. He thought that as a minimum the changed priority intended to be conveyed by the modified T intersection sign should have been reinforced by using an oversize sign, preferably lit by an existing street lamp, and installing chevron signs to indicate the left turn into Devonshire Road. 63 After his detailed consideration, which the foregoing does not fully recount, the trial judge expressed his finding of the Council's negligence - "168. I have no hesitation in concluding that LCC, through its various traffic engineers, was negligent in failing to do in 1996 and 1998 what it did immediately after the collision in 2001. That is the opinion of Mr Jamieson. An alternative arrangement was that proposed by Mr Bailey. The minimum requirement, in light of the possible ambiguity of the modified T intersection sign, the possibility of its being misinterpreted, was the erection of give way signs at the intersection facing traffic facing north and the painting of a holding line at the intersection across the northbound lane of King Street. It is noteworthy that Mrs Nicholls requested a give way sign on 26 May 1992, Mrs Camilleri requested it on 31 October 1996 and Councillor Harrington requested it on 14 April 1998. This is not a benefit of hindsight finding, it was at least since 1994 proper road traffic engineering practice. Furthermore, a tribunal of fact is entitled to look at what was done after an accident to eliminate or minimise a risk, to see if that risk was foreseeable prior to the accident: Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201 at 214. The street lighting north of the intersection increased the need to adopt additional measures to reinforce in a motorist's mind that priority at this T intersection had been modified. Merely adjusting the line marking to comply with the diagram for Australian Road Rule 73(5) or painting the line over the gap left in it, as suggested by Mr Bailey, would be insufficient because of problems with lighting of the intersection at night and cars travelling with headlights on low beam with, effectively, on 50m forward vision would not see the line marking in adequate time, as the experts suggest. Signs were called for and, the cost of those was minimal. The problem with the intersection is highlighted in two illustrations in Mr Bailey's report, Figures 5 and 6. Figure 5 is a view northwards towards the intersection taken before the 'Give Way Sign Ahead' sign taken after the works of 2001 were completed. The photograph was taken at night from a sedan travelling with headlights on low beam. Mr Bailey acknowledges in his report that there were limitations with such a photograph, but it is indicative. Figure 6 is the same photograph with some visual stimuli removed, to seek to replicate the view that Mr Finch would have had on the evening of the collision. However, Figure 6 still shows the extra large 'No Through Road' sign erected after the collision and the yellow high-pressure sodium luminaire installed after the collision. Accepting the limitations of the photographs and noting that it has visual stimuli in it different to those confronted by Mr Finch, Figure 6 is in itself telling evidence of very poor traffic engineering." 64 No point was taken that s 5C(c) of the Civil Liability Act may have applied and may have negated the entitlement to look at what was done after the accident; in any event, the trial judge did not come to his finding from what was done after the accident "of itself". 65 Although the trial judge did not reduce it to these terms, his Honour found that, as the road authority with responsibility for relevant signage and line marking, with regard also to street lighting, the Council ought to have been aware of the need according to proper traffic engineering considerations for (at the least) give way signs facing traffic travelling north on King Street and a holding line across the north-bound lane at the intersection; and it was negligent in that it contributed to the hazard by modifying the traffic priority but failed to install the signs and line marking. It failed to do so despite the prompting for attention to the intersection in 1992, 1996 and 1998, and from the reasons as a whole despite what was said to Mr Von Seca. There is some infelicity in the expression of the finding as one of negligence in 1996 and 1998, first because the question was one of negligence as at May 2001 and secondly because the "possible ambiguity of the modified T intersection sign" arose only when it was installed in 1998. His Honour clearly enough meant that there was negligence as at May 2001, although historically explained, and again from the reasons as a whole I understand his Honour to have meant that the failure to install the signage and line marking dated at least from 1996. It will be recalled that the note in 1997 stated that the major arms of the intersection were King Street and Devonshire Road and recognised a need to "formalise the intersection priority", but the need was not met by the modified T intersection sign or by the other measures thereafter put in place. 66 I go then to apportionment. The trial judge noted in another connection, but clearly had in mind when arriving at his apportionment, that s 5(2) of the Law Reform (Miscellaneous Provisions) Act 1946 required him to arrive at apportionment in accordance with responsibility for the damage, saying - "174. … This is made clear in the judgment of Hayne J (with whom Gaudron, McHugh, Gummow and Kirby JJ concurred) in Wynbergen v Hoyts Corporation Pty Ltd (1977) 72 ALJR 65 at 68 when discussing the latter provision: 'No doubt the marking of the apportionment which the legislation requires involves comparison of culpability of the parties, ie, the degree to which each has departed from the standard of what is reasonable, but that is not the only element to be considered. Regard must be had to the "relative importance of the acts of the parties in causing the damage" and it is "the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination" (italics added)' His Honour was quoting from Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492. The same point is clear from [124] to [128] of the judgment of Kirby J in Josyln v Berryman [2003] HCA 34." 67 The trial judge then said - "176. I turn now to apportionment. Mr Jamieson commented on this in his second report (22 October 2004) in which he said: 'In summary, all crashes are the outcome of a combination of: road elements vehicle elements and driver elements.

If one or more of the elements was eliminated or rectified, then the crash would probably not have occurred.

In this instance, the crash almost certainly occurred as a combination of the poorly designed and ambiguous intersection warning and signposting, with the excessive speed of the truck driver.

It should be noted however, that had the intersection been signposted and delineated as it is now, then the truck driver would not have been approaching at such an excessive speed in any case.' 177. In this matter there is no relevant 'vehicle element'. I have already excluded 'speed' as a relevant factor in this collision but I have found two 'driver elements', Mr Finch's failure to observe the modified T intersection sign and his steering his truck onto the incorrect side of the carriageway. It is those two culpable elements that must be weighed with the 'road elements', the culpability of LCC. Mr Stitt QC submitted that the risk caused by the acts and omissions of LCC was 'serious, obvious and manifest'. I adopt that submission. LCC had a duty to consider all users of this intersection, both 'locals' and complete strangers to it, both light and heavy vehicle drivers, both by day and at night. Here the evidence establishes that the Council failed to properly exercise that duty to strangers to the intersection by day, and, more acutely, at night. As Mr Russell SC so pithily observed the Council had 9 years to 'get this intersection right', Mr Finch had but a few seconds in which to do so. In my view, the culpability of the Council far exceeds that of Mr Finch. Mr Stitt QC submitted that the level of culpability of Mr Finch was 'less than 10 per cent'. Mr Semmler QC submitted that an appropriate apportionment was 20 per cent to Mr Finch and 80 per cent to LCC. The apportionment suggested by Mr Semmler QC is, in my view, appropriate and adequately reflects a just, equitable and reasonable weighing of the relevant culpabilities. I therefore apportion liability 20 per cent to Mr Finch and 80 per cent to LCC." 68 It is well established that, in an appeal from a trial judge's apportionment - "A finding on a question of apportionment is a finding upon a 'question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds': British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 201. Such a finding, if made by a judge, is not lightly reviewed.": Podrebersek v Australian Iron and Steel Pty Ltd [1985] 59 ALJR 492 at 493-4. 69 In Tarabay v Leite [2008] NSWCA 259 Basten JA, with whom Allsop P and Bell JA agreed, said after reference to The 'British Fame' - " [31] Questions of apportionment, like the exercise of a discretionary power, such as sentencing, give rise not merely to evaluative judgments, but to a finding which cannot readily be characterised as right or wrong. They involve identifying a point on a range, not a finding of A or not-A, in a binary system: see In re B (Children) [2008] UKHL 35 ; [2008] 2 WLR 1 at [2] (Lord Hoffmann). In that respect they differ from a finding of negligence, which, although the result of an evaluative judgment, must be reached without degrees of correctness: see Costa v The Public Trustee of New South Wales [2008] NSWCA 223 at [40]-[41] (Ipp JA) and [103]. Thus, a finding in respect of apportionment of culpability is to be reviewed on the basis of the constraints identified in House v R [1936] HCA 40 ; 55 CLR 499 at 505.

[32] As Kirby J pointed out in Liftronic Pty Ltd v Unver ; [2001] HCA 24; 75 ALJR 867 (an appeal from an apportionment of responsibility by a jury), it is important to identify the correct approach as a 'principle' of restraint and not a 'rule of restraint': at [65(3)] and [66]. There can be no inflexible approach. Nevertheless, matters of emphasis are important. It is clear that in The 'British Fame' their Lordships considered that a review of a finding of apportionment would only be interfered with in rare cases, much as it was once thought that Crown appeals against sentence should be rare occurrences. Frequent demands for intervention may diminish the strength of the principle, thus giving rise to further demands. What might be considered 'proper conditions' for intervention (Lord Wright at 200) or a finding that reasons for an apportionment were not 'valid' (Viscount Simon LC at 199) may have changed over time. It may be that intervention has become too common, as suggested by the reference in the judgment of Hayne J in Joslyn v Berryman ; 214 CLR 552 at [158] to the 'regrettably large number of decisions' involving (by inference) appellate review of apportionment and contributory negligence determinations.

[33] The opinions of the various members of the House of Lords in The 'British Fame' , and the brief quotations from members of the Court of Appeal set out in those opinions, place different degrees of emphasis on the need for restraint. It is not profitable to analyse those differences. Nevertheless, two comments seem opportune. The first is that Lord Wright, immediately prior to characterising the nature of a finding of apportionment, as set out above, noted that 'under proper conditions', the Court of Appeal might interfere but also stated that 'it would require a very strong case to justify any such review of or interference with this matter of apportionment where the same view is taken of the law and the facts': at 200-201. Secondly, the alternative approach, which had been adopted by the Court of Appeal in The 'British Fame' , was to equate a finding as to apportionment with any other finding of fact, in accordance with 'The Testbank' [1942] P 75. It was that view which their Lordships were anxious to disavow. … " 70 The Council drew attention to the trial judge's observation at [177] that it "had 9 years to 'get this intersection right'", and to other references in the judgment to that period of nine years: at [13.3], that the collision on 25 May 2001 was nine years after the first advice of an accident at the intersection in 1992, and at [137], that the Council "had drawn to its attention the problems that gave rise to this fatal collision "9 years before that collision [13.3]" (emphasis in original). It said, and I accept, that the trial judge took into account in comparing the culpability of the parties the Council's failure properly to respond to the risk of accidents at the intersection although on notice of it from at least 1992. The Council submitted that this was erroneous. In its submission, its culpability lay in its breach of duty, according to the degree of departure from the standard of what was reasonable, and the fact that it had had nine years to get the intersection right did not make it any more negligent or any more culpable. It said that the trial judge had confused culpability for the purposes of apportionment with "some concept of moral culpability". 71 I do not accept the submission. As the Council acknowledged, and see the passage from Wynbergen v Hoyts Corporation Pty Ltd (1992) 72 ALJR 65 cited by the trial judge, there can be degrees of departure from the standard of what is reasonable; further, the whole conduct of the party must be taken into account. Departure is not measured simply by comparing what was done or omitted to be done with what should have been done. The whole conduct of the Council included its knowledge of the risk of accidents at the intersection and the occasions on which it inadequately gave attention to the priority ambiguity of which the experts spoke, and it is of some importance that the Council contributed to the hazard by modifying the traffic priority. The Council had a department which may be taken to have had traffic engineering expertise. Failure over a long period to put in place the signage and line marking required for reasonable care increased the degree of departure from the standard of what was reasonable, and the Council's culpability was thereby greater. The trial judge may have been seduced into adopting a perhaps emotively expressed submission, but he did not err in so concluding. 72 The Council's submissions otherwise paid little heed to the principle of restraint of which Basten JA spoke in Tarabay v Leite. They amounted to emphasising Mr Finch's failure to see the modified T intersection sign, adding to it his veering to the right at the last moment, and comparing with that more immediate negligence what was called the Council's "static contribution". It was even said that any ambiguity as to priority at the intersection was not causative because Mr Finch simply did not see the sign, although that misunderstands the deficiencies found in the Council's negligence. No doubt opinions of comparative culpability and importance of the negligence to the occurrence of the collision can differ, but the apportionment at which the trial judge arrived was open to him and I do not think that this Court should intervene.

Costs orders 73 In proceedings 1042/04 brought by Mr Estephan and proceedings 2124/04 and 2125/04 brought by Charlene and Joanne the trial judge made orders which included -

(a) that the Council pay the plaintiff's costs on an indemnity basis;

(b) that the Council pay the costs of Mr Finch (I continue to include Rock in the references to Mr Finch) of the trial on an indemnity basis;

(c) that the costs of Mr Finch include any costs payable by him to the plaintiff;

(d) that the Council as cross-claimant pay the costs of the estate on an indemnity basis from 3 February 2006;

(e) that the Council pay its own costs of the first cross-claim; and

(f) that the Council as second cross-defendant pay the costs of Mr Finch on the ordinary basis. 74 These orders are taken from his Honour's reasons for judgment on the costs applications. The appeal papers have only the formal orders in proceedings 2124/04 and 2125/05. When the formal orders were taken out in December 2007, the later judgment and orders appear to have been overlooked. 75 A positive order that the Council pay its own costs of the first cross-claim was inappropriate. Would it be in contempt if it failed to pay its solicitors? Could its solicitors levy execution? The intention is clear enough, that no other party should have to pay the costs, but orders in those terms should not be made. 76 The trial judge did not make the same costs orders in proceedings 2126/04 and 2127/04 brought by Mrs and Mrs Azzi. He ordered only that the Council as first cross-claimant pay the estate's costs on an indemnity basis from 3 February 2006. From the trial judge's opening recital of the applications before him, it seems that Mr and Mrs Azzi did not apply for orders in their favour. It is less clear that Mr Finch confined his application to the other proceedings, but perhaps he took the view that orders in the other proceedings would in practice carry all relevant costs. 77 Further orders were made whereby the plaintiffs' costs were exempted from the cap under Div 5B of Pt 11 of the Legal Profession Act 1987, and could be assessed and were payable forthwith. The trial judge ordered that the Council pay the other parties' costs of the costs applications "[s]ince each of the parties seeking costs orders against [the Council] has been successful." 78 The Council appealed against -

(i) the orders in (a) that it pay the plaintiffs' costs on an indemnity basis;

(ii) the orders in (b) that it pay the costs of Mr Finch of the trial on an indemnity basis; and

(iii) the orders in (c) having the effect that it pay the costs payable by Mr Finch to the plaintiffs. 79 It will be noted that the orders that the Council pay the plaintiffs' costs did not say that the costs were the costs of the trial, but the orders that it pay the costs of Mr Finch were limited to the costs of the trial. The trial was the hearing on liability, and in his opening recital of the applications his Honour referred to the costs of the trial as "the costs between 6 and 24 March 2006". His Honour can not have intended that the orders as to the plaintiffs' costs should extend to costs of a future hearing on quantum, and the orders should be understood as confined to the costs to that date. It is less clear that they should be understood as meaning the costs of the trial, rather than all costs of the proceedings to that date; the reference to the costs of the trial in the orders in (b) suggests that they should not.

(i) The plaintiffs' costs on an indemnity basis 80 The trial judge observed at [6] that the Council, as an emanation of the Crown, was "under a duty to behave as a model litigant". He recorded with regret that the Council's conduct in the litigation "was the antithesis of that obligation". 81 His Honour described in some detail that conduct, in summary that the Council maintained until the morning of the seventh day of hearing a denial that it was the responsible road authority for the two roads; that even after conceding that it was, it still conducted its case in such a way as to suggest that the RTA was in some way responsible for the signs and line markings at the intersection; and that prior to the trial it produced few documents in answer to subpoenas and during the trial produced documents gradually and piecemeal and even at the end of the trial could not say that all relevant documents had been located and produced. His Honour said - "17. Just from what I have said it can be seen, therefore, that the council put in issue a matter which was unarguable. It maintained, even after it admitted that it was the responsible road authority, that somehow it was absolved of responsibility because of the greater expertise of the RTA which may or may not have approved the works conducted at the accident site in 1998. Furthermore it failed in its obligation to comply with subpoenas and notices to produce and ultimately calls which had to be made because the subpoenas and notices to produce had not been answered properly." 82 The trial judge described the Council's conduct as unreasonable and dilatory, and said at [18] that it "undoubtedly prolonged the hearing". Referring to s 56(3) of the Civil Procedure Act, which states a party's duty to assist the Court to further the overriding purpose of the just, quick and cheap resolution of the real issues in the proceedings, his Honour said that the Council's conduct did not facilitate a speedy and inexpensive completion of the proceedings "and its actions amounted … in many respects to obfuscation, seeking to avoid a just decision-making process." 83 The relevant dispositive paragraphs of the reasons then were - "19. An award of indemnity costs presupposes either a party's special entitlement to costs or some relevant unreasonable action, including relevant misconduct in connection with the conduct of proceedings by the person against whom the order is made. In Oshlack v Richmond River Council (1998) 193 CLR 72, Gaudron and Gummow JJ said at 89: 'It may be true in a general sense that costs orders are not made to punish an unsuccessful party. However, in the particular circumstances of a case involving some relevant delinquency on the part of the unsuccessful party, an order is made not for party and party costs but for costs on a "solicitor and client" basis or an indemnity basis. The result is to more fully or adequately compensate the successful party for the disadvantage that it would otherwise be in the position of the unsuccessful party in the absence of such delinquency.' 20. The circumstances in which orders for indemnity costs have been made include those in which the conduct of proceedings by a party has caused unreasonable delay and expense: Wentworth v Rogers [1999] NSWCA 403; In Priest v State of New South Wales [2007] NSWSC 41, Johnson J said: 'Section 56 [of the Civil Procedure Act 2005] gives effect to Mahoney P's observation that litigation is not a game. The section requires litigants at the risk of costs orders to concentrate on the real issues. A party may no longer put another to the proof of a fact which the first know to be true without a cost penalty where the party put to proof establishes the fact.' I have no hesitation in finding in those circumstances that the plaintiffs in the first three actions are entitled to indemnity costs." 84 The Council took limited issue with the trial judge's view of its conduct. 85 First, the description of the Council's conduct included that on 13 April 2004 the Council's solicitors "delivered a defence in which it denied that it was the relevant road authority". The Council said that this was incorrect, because the allegation which it denied was not that it was the relevant road authority but that the plaintiffs' injuries arose out of its negligence in the design, construction and maintenance of the intersection: this, it said, was properly denied. The trial judge was not accurate in his reference to the defence, but the reference was accompanied by references to correspondence and the response to a request for particulars and a notice to admit facts. The trial judge said that the notice to admit facts requested four admissions "each directed to the council as being the responsible road authority", and that the facts were denied and each was eventually proved at the hearing. His Honour said, in terms, that until the seventh day of the hearing the Council maintained that it was not the responsible road authority. The Council did not suggest on appeal that this was incorrect. The inaccuracy in the reference to the defence is of no consequence. 86 Secondly, the Council said that the plaintiffs "were not impeded by the Council's failure to admit that it was the roads authority", and that the only reasonable conclusion to be drawn was that the plaintiffs called two witnesses who also established other matters and some court time was taken up in discussing compliance with subpoenas. It did not descend to demonstration of why this was the only reasonable conclusion. It is not for this Court to determine the extent to which the Council's conduct increased costs, but the trial judge's description of the conduct went much further than the Council's submission accepted and his Honour found that it undoubtedly prolonged the hearing. No reason has been shown to depart from his Honour's conclusions. 87 The Council's principal submission was (fortunately) of more substance. It submitted that costs orders were compensatory, not punitive, and that the proper order was not an order for indemnity costs for the entire proceedings. It submitted that the proper order was that it should pay on an indemnity basis the costs incurred in proving the matters in the notice to admit facts and as a result of any delay in complying with the subpoenas. In making an order for the costs of the entire proceedings (at least to date, see earlier), it was said, the trial judge had acted on a wrong principle. 88 The trial judge was exercising the power in s 98(1) of the Civil Procedure Act - " 98 Courts powers as to costs

(1) Subject to rules of court and to this or any other Act: (a) costs are in the discretion of the court, and

(b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and

(c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis." 89 The discretion conferred by s 98 is general, in its terms subject only to rules of court. Part 42.2 of the Rules provides that unless the court otherwise orderes or the rules otherwise provide costs are to be assessed on the ordinary basis. No rule relevantly otherwise provided. Again the discretion is general, in that no criteria for its exercise are stated, but the starting-point of the ordinary basis carries with it that there has to be reason to depart from that basis. The trial judge's discretion to order otherwise had to be exercised judicially, not from whim or idiosyncratically, with its exercise guided by the general purpose of costs orders and whether there were circumstances which warranted departure from the assessment of costs on the ordinary basis. 90 Costs on the ordinary basis are those assessed as fair and reasonable having regard to all the circumstances, see Pt 11 of the Legal Profession Act 1987 and now Div 11 of Pt 3.2 of the Legal Profession Act 2004. Under the rules indemnity costs are all costs other than those that appear to have been unreasonably incurred or appear to be of an unreasonable amount (Pt 42.5(b)). This is not the occasion to explore the difference, but it lies in the level of reimbursement obtained by the party in whose favour the order is made. 91 The general purpose of a costs order is to provide compensation to a party, usually the successful party, for the expense incurred in the proceedings, and not to punish the party against whom the order is made. However, Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 makes clear that compensation is not an absolute principle fettering the discretion, see per Gaudron and Gummow JJ at [43] and per Kirby J at [134]. Where an order is made for solicitor and client costs or indemnity costs because of "some relevant delinquency" as referred to by Gaudron and Gummow JJ in the passage cited by the trial judge, there can be seen to be an element of punishment. There is no punishment in that there is still no more than reimbursement of costs incurred, but because of the delinquency the reimbursement is at a higher level, and that can be seen as punishment: is it not intended to have a deterrent effect? 92 However, it does not seem to me particularly useful in a case such as the present to speak of punishment in comparison with compensation. The question is whether there was reason to depart from assessment of costs on the ordinary basis, and in the present case more particularly to depart to the extent of all the costs of the proceedings. The Council was properly ordered to pay compensatory costs to the plaintiffs. Its conduct as described by the trial judge entitled his Honour to order costs on an indemnity basis, with a punitive element if one cares to speak in those terms. Was there discretionary error in the extent to which the higher level of reimbursement was imposed, because it was not limited to the increased costs incurred by the plaintiffs by reason of the conduct? 93 Emphasising that the circumstances in which the discretion may be exercised are not closed, Sheppard J in Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 233 said of ordering indemnity costs - "I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v Weekes ; evidence of particular misconduct that causes loss of time to the court and to other parties (French J in Tetijo ); the fact that the proceedings were commenced or continued for some ulterior motive (Davies J in Ragata) or in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J-Corp ); the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata ); an imprudent refusal of an offer to compromise (eg Messiter v Hutchinson ; Maitland Hospital v Fisher (No 2) ; Crisp v Kent (SC(NSW)(CA), 27 Sept 1993, unreported) and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C in EMI Records ). Other categories of cases are to be found in the reports. Yet others to arise in the future will have different features about them which may justify an order for costs on the indemnity basis. The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis." (citations omitted) 94 Instances could be multiplied, but in the present case it is necessary to focus on the extent to which costs have been ordered other than on the ordinary basis. Where the proceedings were brought or continued for an ulterior motive or as an abuse of process, as in cases such as Baillieu Knight Frank (NSW) Pty Ltd v Ted Manny Real Estate Pty Ltd (1992) 10 ACSR 537, Ragata Developments Pty Ltd v Westpac Banking Corporation (Davies J, Fed C of A, 5 March 1993, unreported) and re Wilcox; ex parte Venture Industries Pty Ltd (1996) 141 ALR 727, or were brought when doomed to fail, as envisaged in Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 and found in many cases, the order can be expected to be as to the whole of the costs. That is not necessarily so where there has been misconduct causing costs by prolongation of the proceedings or in some other way. Will the increased level of reimbursement go beyond the costs incurred by reason of the misconduct? 95 In principle, in my view, where the "relevant delinquency" (to take the phrase used by Gaudron and Gummow JJ) is in the conduct of the proceedings, the order can be expected to be as to the costs incurred by reason of that conduct. Depending on the conduct, there may be prolongation of the proceedings and consequently the incurring of additional costs; additional costs, however, are not necessarily time-related, and may be otherwise brought about by the impugned conduct of the proceedings. Limiting the order to the costs incurred by reason of the impugned conduct is not because the label "punishment" could be attached to a wider order. It is because, in determining the extent of departure as part of whether there is reason to depart from assessment of costs on the ordinary basis, there should be a rational connection between the reason as found and the extent of the departure. The connection goes only as far as the reason. If an unreasonable failure to admit certain facts, for example, means that costs were incurred in proof of those facts, but costs were also incurred in genuine contest over many other factual and legal issues, there is unlikely to be a rational connection between the failure to admit facts and an order that the delinquent party pay on an indemnity basis the costs incurred in the genuine contest. 96 The parties were unable to refer the Court to treatment of this matter in the cases. They referred to Degmam Pty Ltd (in liq) v Wright (No 2) (1983) 2l NSWLR 354, in which the costs of the proceedings were payable at a higher level. One reason given was that the party had so conducted the proceedings as grossly to prolong the litigation, but it was also held that her allegations as the basis of her defences and causes of action were false and deliberately concocted and the delinquency went beyond the conduct of the proceedings. The Council referred to Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, in which Kirby P at 542 mentioned only the prolongation of the trial as the basis for the order in Degmam Pty Ltd (in liq) v Wright (No 2), but that is too fragile a basis for disregarding the delinquency beyond the conduct of the proceedings. 97 There are illustrations in the cases of the approach in principle to which I have referred. In Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd the indemnity costs were only those incurred after a particular date, because (at 400) it was only from that date that the proceedings had no possibility of success. In Colgate Palmolive Co v Cussons Pty Ltd the indemnity costs were confined to those of one issue, the issue concerning the use of inverted jars in testing flowability, being (at 261) the issue which unduly prolonged the proceedings and made them more complex. In Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2006] NSWCA 583 Einstein J found unreasonableness in litigation of issues relating to compaction and made an order for 20 per cent of the costs on an indemnity basis, the percentage being "assessed by reference to the whole spectrum of the evidence considered against the compaction issues litigated" (at [63]). As a recent illustration, in Barrett Property Group Ltd v Metricon Homes Pty Ltd (No 2) [2007] FCA 1823 Gilmour J ordered indemnity costs "in respect to preparation for and the conduct of the trial, going to the issue of derivation of the accused plans and homes and whether or not there was actual copying of the Copyright Works" (at [18]), and assessed the extent of the costs going to that issue at 50 per cent of the preparation for trial and for the trial itself. 98 In FAI General Insurance Co Ltd v Burns (1997) 9 ANZ Ins Cas 61-384 this Court upheld a general award of indemnity costs where proceedings had to be adjourned because, in the trial judge's view, the party had not identified in case management the issues arising for determination. Mahoney P, with whom Priestley JA and Rolfe AJA agreed, appears to have accepted tailoring the indemnity costs to the delinquency: his Honour said at 77,221 - "Mr Gee QC submitted that, if costs or indemnity costs, were to be awarded against the defendant, the order should be limited. He submitted that not all of the costs incurred between 24 July 1992 and 2 February 1993 had been incurred without beneficial result. But beyond a general claim to this effect, he did not, I think, point to particular benefits derived in the litigation from that expenditure and, giving full consideration to his written submissions, I am satisfied that a dissection of the costs in this way is not warranted. Upon the material before this Court, I am not satisfied that relevant benefit was obtained such as would warrant such a dissection." 99 A possible illustration to the contrary is Thors v Weeks (1980) 92 ALR 131. The first applicant was ordered to pay the costs of the first to sixth respondents on a solicitor-client basis. It was found that he had brought the proceedings against the first to sixth respondents knowing that he would make out the Trade Practices Act claim only if his knowingly false account of various conversations was accepted. The proceedings included a contract claim against the same respondents, but there was no dissection in the order. The contract claim seems to have been of little moment, see at 141-2, and there is no consideration of dissection. I do not think this is a firm illustration of a special costs order going beyond the reason for making it. 100 Section 56 of the Civil Procedure Act now adds emphasis to occasion to depart from costs on the ordinary basis where failure properly to conduct the proceedings had caused costs to be incurred unnecessarily. But it does not override the need for a rational connection between the reason for departure and the extent of the departure. 101 There may no doubt be cases in which the effect of the misconduct is so pervasive that, in a proper exercise of the general discretion, the higher level of reimbursement can extend to the entire costs of the proceedings. That is perhaps the explanation for Adelaide Congregation Jehovah's Witnesses Incorporated v Pegasus Leasing Ltd (Olsson J, SASC, 24 December 1996, unreported), where the defence was described as unrealistic and uncompromising as to all issues and leading to a very protracted trial. It is necessary to remember that the trial judge was exercising a discretion, and a discretion in relation to costs as to which this Court is particularly cautious in its intervention; a trial judge is in an advantageous position in arriving at the just disposition of costs. However, the trial judge did not express a pervasive effect of the Council's conduct of which he was critical, or say that the Council acted unreasonably in defending at all. His Honour specifically observed that the conduct of which he was critical prolonged the hearing, and by implication but for the conduct there would properly have been time spent in the Council defending the claims against it. 102 There is no indication in his reasons that the trial judge gave attention to the relationship between the Council's particular unreasonable and dilatory conduct as found and the extent of costs to be paid on an indemnity basis. His Honour moved from the unreasonable and dilatory conduct which prolonged the hearing to entitlement, without limitation, to indemnity costs. I respectfully consider that he departed from principle, and that the orders should have been limited to the costs incurred by reason of the unreasonable and dilatory conduct. 103 That does not mean an order in the terms suggested by the Council, which the Council did not satisfactorily show would catch the additional costs which the trial judge should have had in mind. It is unfortunate that, because of what I consider to have been error in making the indemnity costs orders without appropriate limitation, the trial judge did not make a broad-brush estimation of the extent to which additional costs had been incurred by reason of what he found to be the Council's unreasonable and dilatory conduct. This Court is not in a position to do so, and the orders should be that the Council pay on an indemnity basis the costs incurred by the plaintiffs by reason of the matters identified in [17] of the trial judge's reasons. A costs assessor must undertake what will not be an easy task. It is to be hoped that the relevant parties will be able to agree without the expenditure of further costs in a difficult assessment.

(ii) The costs of Mr Finch on an indemnity basis 104 The trial judge dealt briefly with these costs, but took up what he had earlier said critical of the Council's conduct - "21. Indemnity costs are also sought, as I said, by the first and second defendants. However, the first and second defendants seek only indemnity costs in respect of the actual hearing, that is, between 6 March and 24 March 2006. On 17 March 2006, the solicitors for the first and second defendants wrote to the solicitors for the council a letter without prejudice as to interest or costs. The letter was essentially a Calderbank letter. The first and second defendants offered to resolve the question of liability as between themselves and the third defendant, the Liverpool City Council, by their accepting 25% of the fault for the occurrence of the collision, and by the third defendant's accepting 75% of fault for the occurrence of the accident. The end result, as I said at the commencement of these reasons, was that the first and second defendants became liable for 20% of the damages to be assessed and the Liverpool City Council became liable for 80% of the damages to be assessed. On an ordinary basis, the first and second defendants are entitled to costs to 17 March 2006. That day was a Friday, so that the first and second defendants are certainly entitled to indemnity costs from 20 March 2006. 22. The question is whether the first and second defendants should have indemnity costs as well between 6 March and 17 March 2006. Not only were the plaintiffs impeded during those two weeks by the failure of the council to admit that it was the relevant road authority, but so also were the first and second defendants. Not only were the plaintiffs impeded by the piecemeal production of documents that ought to have been produced two years previously, but so also were the first and second defendants. Indeed, it was Mr Stitt QC, leading counsel for the first and second defendants and the most senior member of the Bar at the Bar table during the hearing, who first raised the question of documents and maintained pressure throughout for the production by the council of all relevant documents. In my view, the first and second defendants are entitled to indemnity costs against the council in respect of the whole of the trial." 105 I go first to the order that the first and second defendants are entitled to indemnity costs from 20 March 2006. We were not referred to the Calderbank letter, which is not in the appeal papers, and I take its content from the trial judge's description. The Council submitted that the offer in the letter was made on the tenth day of the trial when Mr Finch was already in his case, and that the trial judge made no allowance for a reasonable time for acceptance by the Council; and further, that the letter did not refer to any liability of the estate. There is nothing in these submissions. At that stage of the trial the Council should have been able to assess the merits of the offer without delay, and it had the weekend and 20 March 2006 (the order was "from" 20 March 2006). That the offer omitted any sharing of liability by the estate was vindicated in the result. I see no appealable error in the exercise of the trial judge's discretion in this respect. 106 As to the costs between 6 and 17 March 2006, the departure from principle to which I have earlier referred underlies the order. The higher level of reimbursement should have been limited to the extent to which Mr Finch were "impeded", in the trial judge's language, by the Council's failure to admit that it was the relevant road authority and by the piecemeal production of documents, meaning the extent to which he thereby incurred additional costs. 107 The Council submitted that Mr Finch was not impeded by the Council's failure to admit that it was the relevant roads authority, because that made no difference to the way he presented his case. Again there is nothing in the submission, which still leaves impedance in the piecemeal production of documents, an area important to Mr Finch in demonstrating the Council's culpability. Mr Finch had a keen interest in the Council's liability and the basis for it, but in any event he would have incurred additional costs even if a spectator to the presentation of the plaintiffs' case through prolongation of the trial. The trial judge's references to impedance should not be confined to presentation of Mr Finch's case, and should be understood as encompassing the incurring of unnecessary costs because the trial was prolonged. 108 Accordingly, the order should be that the Council pay on an indemnity basis the costs of the trial incurred by Mr Finch from 6 to 20 March 2006 inclusive by reason of the matters identified in [17] of the trial judge's reasons.

(iii) Inclusion of the costs payable by Mr Finch to the plaintiffs 109 The orders made by the trial judge were also briefly explained - "26. The first and second defendants have a liability to pay 20% of the costs of the plaintiffs. I have already found that the plaintiffs are entitled to indemnity costs. To order the first and second defendants to pay 20% of the plaintiffs' indemnity costs would be unjust because the reason the plaintiffs had obtained indemnity costs is because of the actions and inactions of the Liverpool City Council. In those circumstances, I believe it appropriate to make a Sanderson order in respect of costs payable by the first and second defendants to the plaintiff." 110 The orders made were that the costs of Mr Finch payable by the Council "include any costs payable by the first and second defendants [Mr Finch and Rock] to the plaintiffs". This was not in the form of a Sanderson order (Sanderson v Blyth Theatre Co [1903] 2 KB 533), but in that of a Bullock order (Bullock v London General Omnibus Co [1907] 1 KB 264). 111 The trial judge's reasoning, with respect, was astray. 112 The trial judge seems to have intended that Mr Finch should pay 20 per cent of the plaintiffs' costs because he had found in the apportionment that he bore a 20 per cent responsibility for the accident. However he had not made any such orders; the costs orders made when he gave the substantive judgment were only as to costs of the cross-claims. And he never made any such orders. Accordingly, orders having the effect of Bullock orders in the terms that the costs of Mr Finch payable by the Council "include any costs payable by the first and second defendants to the plaintiffs", had nothing on which to bite. No doubt this slip can be corrected, or the parties will proceed as if it had been. 113 Putting that aside, there was no basis in the finding that the plaintiffs were entitled to indemnity costs for ordering Mr Finch to pay 20 per cent, or any percentage, of the plaintiffs' indemnity costs. Imposing a higher level of reimbursement on Mr Finch depended on his conduct of the proceedings, not the Council's conduct of the proceedings, and his conduct of the proceedings was not impugned. The trial judge in effect so stated. But he appears to have reasoned that, because it would be unjust to order Mr Finch to pay 20 per cent of the plaintiffs' indemnity costs, it would be "appropriate" to make the Bullock orders. That there would have been injustice to Mr Finch if the trial judge had made different (and inappropriate orders) was not a reason for making the Council pay the costs payable by him to the plaintiffs. 114 By a typical Bullock order the costs which an unsuccessful defendant is ordered to pay the plaintiff are to include the costs payable by the plaintiff to a successful defendant. By a typical Sanderson order an unsuccessful defendant is ordered to pay directly to the successful defendant the costs of the successful defendant otherwise payable by the plaintiff. The orders made by the trial judge were in the form of a Bullock order, but the costs the unsuccessful defendant (the Council) was ordered to pay the plaintiff (the plaintiffs) were to include the costs payable by an unsuccessful defendant (Mr Finch) to the plaintiff. The exercise of the general discretion as to costs is not limited to the typical or any particular orders, but how could this be justified? 115 No reasoned argument on this point was put on behalf of Mr Finch. It was simply said that the orders on the basis stated by the trial judge were within his Honour's discretion. A Bullock order may be made, for example, because the conduct of the unsuccessful defendant has led the plaintiff to maintain its proceedings against the successful defendant (Gould v Vaggellas (1985) 157 CLR 215), including where the conduct was refusing to admit that the unsuccessful defendant was wholly responsible for the wrong (Coombes v Roads and Traffic Authority (No 2) [2007] NSWCA 70). The Council's defence of the plaintiffs' claims may have contributed to maintenance of the claims also against Mr Finch, but it was entitled to defend and the plaintiffs' success against Mr Finch shows that it was not obliged, under pain of a costs burden, to admit sole responsibility for the accident: and on the apportionment, Mr Finch had a 20 per cent responsibility. Nor was the trial judge's reasoning anything to do with the Council's conduct having contributed to maintenance of the claims against Mr Finch. 116 Mr Finch defended the claims against him, unsuccessfully. He may have done so more with an eye to establishing contribution from the Council than with hope of escaping liability, but he defended the claims nonetheless. In my opinion, there was no basis for imposing on the Council liability for the costs payable by Mr Finch to the plaintiffs. 117 It may be that, in the exercise of the general discretion as to costs, it could have been ordered that the costs of Mr Finch payable by the Council include such of the costs payable by him to the plaintiffs as were incurred by reason of the unreasonable and dilatory conduct of the Council found by the trial judge. Mr Finch did not submit that an order to that effect should be substituted for the order made by the trial judge. 118 Generally in relation to the costs orders, Mr Finch's written submissions included reference to ss 151-153 of the Motor Accidents Compensation Act 1999. Section 151 applies if a claims assessment has been made, but none had been made. Section 152 applies if a claims assessment has not been made. It imports the rules of court relating to offers of compromise and provides that, subject to the rules of court, costs follow the event. Section 153 permits departure from "the relevant provisions of or made under this Act" in relation to costs in an exceptional case and for the avoidance of substantial injustice. As I understand it, Mr Finch's purpose was to contend so far as necessary that the trial judge's findings as to the Council's conduct made this an exceptional case and the trial judge's orders were made for the avoidance of substantial injustice. The Council had not submitted at trial and did not submit on appeal that the orders made by the trial judge were contrary to the provisions of the Motor Accidents Compensation Act, and no more need be said.

Costs 119 The order that the Council pay the other parties' costs of the costs applications should be modified, since the parties seeking costs orders against the Council have now not been entirely successful. The Council should pay 75 per cent of the costs of Mr Estephan, Charlene and Joanne of their costs applications and 70 per cent of the costs of Mr Finch of his costs applications. The costs orders below should otherwise be changed in accordance with these reasons, but not further. 120 The respondents' representation on appeal was in three groups: the estate; Mr Estephan, Charlene, Joanne and Mr and Mrs Azzi; and Mr Finch. The estate has been wholly successful in the appeals, and should have its costs. The second group, the plaintiffs below, have been successful save for some cutting down of the costs payable by the Council; since there was joint representation, I propose to ignore that Mr and Mrs Azzi did not have orders for indemnity costs, and the Council should pay 75 per cent of the costs of the group. Mr Finch has also been largely successful, again save for some cutting down of the costs payable by the Council, and the Council should pay 75 per cent of his costs. The appeals were heard together, and these costs orders should be made in each of them. The costs include the costs of the various applications for extension of time, leave and associated matters.

Orders 121 I propose the following orders. 122 In each of proceedings 40518/07, 40519/07 and 40116/09 -

2. Set aside the orders made on 26 October 2007 that the third defendant pay the plaintiff's costs on an indemnity basis and in lieu thereof order that the third defendant pay on an indemnity basis the costs incurred by the plaintiff by reason of the matters identified in [17] of the reasons published on that day.

3. Set aside the orders made on 26 October 2007 that the third defendant pay the first and second defendants' costs of the trial on an indemnity basis and in lieu thereof order that the third defendant pay on an indemnity basis the first and second defendants' costs of the trial incurred from 6 to 20 March 2006 inclusive by reason of the matters identified in [17] of the reasons published on that day and their costs of the trial incurred from 20 March 2006.

4. Set aside the orders made on 26 October 2007 that the costs of the first and second defendants payable by the third defendant include any costs payable by the first and second defendants to the plaintiffs.

5. Set aside the orders made on 26 October 2007 that the Council pay the costs of each other party to the costs applications and in lieu thereof order - (a) as between the third defendant and the plaintiff the third defendant pay 75 per cent of the costs of the costs application; and

(b) as between the third defendant and the first and second defendants that the third defendant pay 70 per cent of the costs of the costs application.

8. Appellant pay the costs of the first respondent.

9. Appellant pay 75 per cent of the costs of the second to sixth respondents.

10. Appellant pay 75 per cent of the costs of the seventh and eighth respondents. 123 McCOLL JA: I agree with Giles JA. 124 BASTEN JA: Giles JA has identified the four broad issues in dispute in these appeals by Liverpool City Council ("the Council") as challenges to the findings that:

(a) there was no negligence on the part of Mrs Estephan (deceased); (b) liability as between the Council and the driver of the truck (Mr Finch) and his employer Rock Excavations and Plant Hire Pty Ltd be apportioned 80:20, (c) the Council pay costs on an indemnity basis, and (d) the Council pay such of the plaintiffs' costs as were to be paid by the truck driver. 125 In respect of the first issue I agree that the appeal should be dismissed for the reasons given by Giles JA. 126 In respect of the second issue, I would uphold the appeal and apportion liability as to one-third against the driver of the truck and two-thirds against the Council. This conclusion has consequences for the costs orders, but I otherwise agree with Giles JA in respect of the third and fourth issues.

How issues addressed below 127 Most civil disputes are resolved far from the doors of any court and on bases which need not pay any attention to legal principles. However, civil litigation engages the powers conferred on a court to quell disputes according to law. The parties can define the issues to be resolved so as not to raise a particular claim or defence. But the issues they present to the court for determination must be resolved by the application of law to the established facts. The function of the court is to administer justice, as defined by the applicable law. 128 Within this statement of principle is an element of tension, namely that which arises between the autonomy of the disputants and the limited role of the court. Thus, a court has no power to apply foreign law if it is not applicable to a dispute according to local choice of law rules. But a court can resolve a dispute validly by reference to an erroneous view of the local law. If the parties fail to remind the court of a binding applicable precedent, the judgment will nevertheless be valid. If reference to the correct authority would have led to a different factual inquiry, the error may not be open to correction on appeal. The finality of litigation in quelling disputes must also be considered. 129 Nor can the court decide issues not brought before it by the parties. That conclusion flows, not only from the principle of party autonomy, but also from the fundamental principle of procedural fairness, so that one party should not lose on a point it has not had an opportunity to address. There is a question, however, as to the manner in which the court should deal with a legal principle relevant to the issues identified by the parties and raised by the court for the parties' consideration, but not embraced or addressed by other parties, although apparently material to the resolution of the issue tendered to the court. In such circumstances, is the court obliged to decide the case on what it understands to be a wrong legal basis, having drawn the parties' attention to the matter and provided each with an opportunity to address it? 130 On one view, the answer may depend on how the problem affects the proceedings. Thus, if the moving party presses its case on a false view of the law on which it will lose, the answer may not be the same as where the moving party presses a case on a false basis on which it would succeed, but the other party eschews reliance on an alternative view of the law. 131 Usually, of course, a party offered a favourable approach by the court will embrace it, but that is not always so. Further, often authority proffered will not provide a clear-cut answer. That is so even with statutes. But if an applicable statute, not relied on by either party, varies the general law in a material way, to forbid the court to apply it is to require the court to determine the case otherwise than according to law. Serious doubt must attend the correctness of such a conclusion. 132 The problem arose in the present case in the following ways. Although the Council did not challenge the finding of negligence against it, it did challenge the apportionment between it and the negligent truck driver. That matter can only be addressed by understanding the legal and factual bases on which the Council was held liable. Despite invitations from the Court, the legal basis of liability was not explored. To understand how it arose requires reference to the manner in which the case was pleaded, the evidence tendered, and the statutory provisions which should have been addressed. 133 Further, as noted by Giles JA, the Council also eschewed reliance on Pt 5 of the Civil Liability Act 2002 (NSW). It appears to have been common ground below that the Civil Liability Act applied to the award of damages made against the Council. It must therefore have been accepted that the award did not relate to an injury caused by the fault of a driver of a motor vehicle, for the purposes of s 122 of the Motor Accident Compensation Act 1999 (NSW) and the operation of the Civil Liability Act was not excluded by s 3B(1)(e). However, Pt 5 of the Civil Liability Act limited or excluded the liability of public authorities, including a local council in defined circumstances: s 41. Whether or not provisions such as ss 43A, 44 or 46 operate as defences, each affects liability, which was not put in issue in this Court. Accordingly, these provisions can properly be put to one side. A different approach may need to be taken in relation to statutory provisions defining the nature and scope of the powers found to have been negligently exercised by the Council.

Traffic signage: role of the Council 134 The alleged negligence of the Council was identified in some 35 particulars. In substance, the trial judge found that the Council was negligent in failing to do, prior to the collision, that which it did shortly thereafter being those steps identified by Giles JA at [56] above. It is sufficient for present purposes to note that they related to the inadequacy of the road signs and line markings in respect of northbound traffic on Devonshire Road, in the vicinity of the accident. 135 In setting out the history of accidents and complaints in relation to the intersection prior to the collision, the trial judge started with a report of a serious accident which occurred on 26 May 1992. In apportioning liability as between the truck driver and the Council, his Honour referred to the submission that the Council had had "9 years" to "get this intersection right": at [177]. His Honour's finding in relation to the negligence of the Council was that the negligence related to the period "at least since 1994" when evidence of proper road traffic engineering practice suggested that a course should have been taken which was not taken: at [167]. 136 The relevant legislative scheme required reference to the Local Government Act 1993 (NSW) and the Roads Act 1993 (NSW), to each of which the trial judge referred. In a departure from an earlier statutory regime, the Local Government Act no longer conferred powers on local councils with respect to roads or traffic: cf Turner v Ku-ring-gai Municipal Council (1990) 72 LGRA 60 (Kirby P, Priestley and Handley JJA). At least from 1999, s 633C of the Local Government Act relevantly provided: " 633C Part not to affect roads and traffic functions under other Acts The provisions of this Part: (a) do not limit or restrict the operation of the road transport legislation with respect to roads or road related areas within the meaning of the Road Transport (General) Act 1999 or the Roads Acts 1993 with respect to public roads, and (b) do not authorise the erection of any device if the erection of any such device is inconsistent with a function exercisable under the Road Transport (Safety and Traffic Management) Act 1999 with respect to roads or road related areas within the meaning of that Act or under the Roads Act 1993 with respect to public roads." 137 The Council was criticised for being slow to concede that it was the "roads authority" responsible for Devonshire Road, pursuant to s 7(4) of the Roads Act. In a second judgment, dealing with costs, and handed down on 26 October 2007, his Honour noted that its concession that it was "the responsible road authority" was made on the morning of the seventh day of the hearing: at [6]. It also conceded, in accordance with s 146, that it had care, control and management of the road. Nevertheless, the pleading, filed on 21 March 2006, stated that the Council: "(b) admits that it prepared designs for the modifications to the intersection of which [sic] were effected in 1996 and 1998 but that those design works were the subject of the approval by and were performed by the RTA of NSW by itself, its servants or agents; (c) it does not admit that it was responsible for the regulatory line marking and regulatory signs in and on the approaches to the intersection; (d) does not admit that it constructed the intersection; (e) admits it was responsible for the maintenance of the road surface of the intersection but says the responsibility for regulatory line marking and regulatory signs was exercised by the RTA of NSW; (f) it denies it owed any common law duty of care or that it breached any common law duty of care and otherwise does not admit paragraph 9." 138 The trial judge appears to have treated the fact that the Council was the relevant roads authority as conclusive of its responsibility for traffic signs. His Honour referred to its concession as "an extremely belated admission": Principal judgment at [8]. He then referred to the request made in May 2004 by the solicitors for the first five plaintiffs, in a letter to the Roads and Traffic Authority, seeking advice as to whether it was responsible for various matters, including the installation of and changes to the signage, the line markings, street lighting and traffic signals on the relevant section of road. His Honour then noted the reply from the general manager of the legal branch of the RTA, denying responsibility otherwise than for the maintenance of traffic signals, of which it noted there were none. 139 His Honour stated that senior counsel for the plaintiffs had "made arrangements to call witnesses from the RTA to establish" the fact that the Council had responsibility for the care, control and management of the roads in question. However, any attempt to call such evidence may have been misconceived, the question being primarily one of law, not fact. The opinion of the RTA was not merely irrelevant, but, for reasons which will be noted below, arguably legally erroneous. 140 His Honour continued by noting that if the relevant powers and obligations had not been imposed on the Council "as the roads authority by the Roads Act 1993 or other Act of Parliament, they have been delegated by the RTA", referring to a letter received by the Council on 5 July 1994, to which it will be necessary to return. 141 His Honour referred to the "relevant relationships between RTA and LCC": at [12]. The matters considered included funding to manage and maintain regional roads, including traffic facilities; the performance of work on regional roads by the RTA, as contractor to the Council and the existence in each local government area of a "Traffic Committee". In that respect, his Honour referred to a report of the Council's Traffic Planning Engineer written in December 1992, adopted by the Traffic Committee, addressing the division of responsibility between that Committee and the Traffic and Parking Department of the Council. The report referred to items which included traffic signs and "the appeal mechanism inherent in Council's delegated authority to approve certain traffic facilities on non-classified roads": Exhibit 12, p 3. 142 In seeking to ascertain responsibility for signage and traffic regulation, his Honour noted that each local government area had a "Traffic Committee": [12(c)]. His Honour continued: "The evidence suggests that this may have been adopted at the instigation of the RTA but that is only of historical interest." 143 That view appears to have been adopted because evidence in that regard was obtained orally from a Mr Gill, who had worked for some years as a contractor to the RTA attending various traffic committee meetings: Tcpt, 14/03/06, p 414. Mr Gill was not a lawyer. He gave the following evidence (at p 415): "Q. Is the chairperson of the traffic committees always a council representative? A. Always either a councillor or a member of council staff. Q. The council is responsible for the getting together of the committee members? A. The traffic committee is an instrument of the RTA managed by the council. So they prepare minutes and agendas, and that sort of thing." 144 His Honour referred to the report prepared for the Council in 1992, which commenced with the following explanation: "This matter arose as a result of the Liverpool Traffic Committee Meeting on 5 August 1992 during which it became obvious that some items on the agenda could easily have been dealt with by the Traffic and Parking Department under delegated authority and/or subject to concurrence from formal members such as the Police or the Roads and Traffic Authority representatives. This arrangement would streamline the procedures and functions of the Committee and allow some clear-cut and non-controversial traffic related matters to be processed more efficiently than the present format." 145 His Honour noted that the document sought to divide functions between the traffic and parking manager and the committee. The manager was to be granted delegated authority to approve items which included stop signs, give way signs, regulatory line marking and street lighting. 146 His Honour recorded that this material was relevant to an attempt by Council to attribute responsibility for the intersection to the RTA, but that the Council's arguments were "eventually abandoned when it became clear that the relevant decision was made by a Council employee under delegated authority and no evidence was adduced that the relevant decision had been referred to either the RTA or the Police": at [12]. 147 There are a number of issues arising out of this material. First, it is not clear precisely what decision is being referred to in the last passage. In an earlier paragraph his Honour noted that the Council had not pursued the suggestion that it had neither the power nor responsibility "to do what the other parties suggested it ought to have done": at [11]. Secondly, the circumstances in 1992 pre-dated the only delegation which appears to have been in evidence. 148 On 20 May 1994, the RTA delegated certain functions to local councils, pursuant to s 50 of the Transport Administration Act 1988 (NSW). The powers delegated included those in the Traffic Act 1909 (NSW), s 4D, under which traffic control signs could be erected. That Act was repealed, however, on 1 December 1999 by the Road Transport Legislation Amendment Act 1999 (NSW). The arrangements subsequent to that repeal do not appear to have been in evidence. 149 Importantly, that delegation contained a limitation in Schedule 3 in the following terms: "5. A council or its sub-delegate must not exercise a function until they have notified the Commissioner of Police and the Authority of any decision taken to exercise a function except where: (1) the advice of the Local Traffic Committee is unanimous; and (2) the council or its sub-delegate propose to follow such advice." 150 In other words, in 1994 both the Commissioner of Police and the RTA retained an effective power of veto over the exercise of powers by a local council, either directly, or through their respective representatives on the local traffic committee. There may also have been an issue as to whether the functions conferred on the local council in respect of traffic control signs, under s 4D of the Traffic Act, extended to variation of the road rules with respect to rights of way and priority traffic. However, that question appears not to have been agitated and may be put to one side for present purposes. 151 The 1994 delegation concerned functions (relevantly) under s 4D of the Traffic Act. The functions were conferred on the Council. On 1 December 1999 that delegation must have ceased with the repeal of the Traffic Act. 152 That difficulty aside, after the commencement of the Transport Administration Act on 16 January 1989, the power of delegation of functions of the RTA, when not involving an officer of the RTA, required delegation to a person of a class prescribed by the regulations. The source of power prior to May 1994 is unclear, but need not be pursued. The Transport Administration (General) Regulation 1995 (NSW) provided for delegation under s 50 as follows: " 13.(1) The following classes of persons are prescribed for the purposes of section 50 of the Act: (a) chairpersons of regional traffic committees; (b) councils, councillors of councils and the staff of councils, … (2) In this clause: "council" has the same meaning as it has in the Local Government Act 1993 …; "councillor" has the same meaning as it has in the Local Government Act 1993 ; "regional traffic committee" means a committee established by the RTA to provide advice on traffic and associated matters." 153 The Roads Act which commenced on 1 July 1993, prior to both the delegation and the repeal of the Traffic Act, provided in s 87: " 87 Traffic control facilities (1) The RTA may carry out traffic control work on all public roads …. (2) The appropriate roads authority may carry out traffic control work on any classified road, but only with the consent of the RTA. (3) The appropriate roads authority may carry out traffic control work on any unclassified road …. (4) However, the construction, erection, installation, maintenance, repair, removal or replacement of a traffic control light may not be carried out otherwise than by or with the consent of the RTA." 154 The precise scope of this provision was not addressed, either in the judgment, or on the appeal. It is not clear whether Devonshire Road was an unclassified road, but it may well have been. The term "carry out traffic control work" was a defined term and included "carry out any activity in connection with the construction, erection, installation, maintenance, repair, removal or replacement of a traffic control facility". The last concept bore the same meaning as in Pt 6 of the Transport Administration Act: Roads Act, Dictionary, traffic control facility. The Transport Administration Act included the following definition: " traffic control facility means: (a) traffic control lights on roads or road related areas, and equipment used in connection with traffic control lights, or (b) any sign, marking, structure or device containing or relating to a requirement or direction, contravention of which is an offence …, or (c) any other sign, marking, structure or device that is intended to promote safe or orderly traffic movement on roads or road related areas or to warn, advise or inform the drivers of vehicles, or pedestrians, of any matter or thing in relation to vehicular or pedestrian traffic or road conditions or hazards …." 155 The next step in the legislative scheme requires reference to the Road Transport (Safety and Traffic Management) Act 1999 (NSW), Pt 4, which is headed "Traffic control devices". It contains a prohibition against any person without appropriate authority installing, displaying, interfering with, altering or removing any prescribed traffic control device: s 52(1). It contains the following definition in s 50: " prescribed traffic control device means a sign, signal, marking, structure or other device to direct or warn traffic on a road or road related area (or part of a road or road related area) that is prescribed by the regulations for the purposes of this definition." 156 Pursuant to s 51, a public authority has appropriate authority to install or display a prescribed traffic control device only if it has been directed by the RTA to take such steps pursuant to Pt 6, Div 1C of the Transport Administration Act. Where such a direction is given, it is not merely the power but the obligation of the authority to act in accordance with such a direction: Transport Administration Act, s 53A, introduced in 1999. 157 The Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999, as originally promulgated, prescribed, for the purposes of s 50 of the Act, in cl 131(1): "(a) any traffic control device of a kind mentioned in the Australian Road Rules that has effect for the Rules under rule 315 of the Rules, Note. See also rules 316-318 of the Australian Road Rules . (b) any word, figure, symbol or anything else used on or with a traffic control device referred to in paragraph (a), …." 158 It seems not to be in dispute that the kinds of signage in issue in the present case fell within the scope of the regulation. 159 The interrelationship of the powers conferred under the Roads Act and the constraints imposed by the Traffic Management Act appear not to have been addressed. However, the statutory scheme would appear to give support to the defence of the Council which was, in effect, to assert that primary responsibility for relevant traffic signs lay with the RTA. 160 There was no inconsistency between the statutory regime (to parts of which the trial judge referred), and the Council's pleading.

History of concerns about intersection 161 The negligence of the Council was said to flow from two sources: first, there was a history of accidents and near misses at the intersection, of which the Council was aware. Secondly, there was an analysis undertaken by various expert witnesses as to the safety defects identified after the event. 162 The first incident referred to by the trial judge was an accident in May 1992, when a driver going north on King Street collided with a car on his left that was attempting a right hand turn into King Street, having failed to give way. His Honour noted at [13.3]: "The mechanism of this collision is the same mechanism as that of the collision with which I am dealing. It occurred nine years later ." (Emphasis in original.) 163 The commentary included by the trial judge was inapposite in two respects. First, it suggested that no changes had been made to the traffic arrangements at the intersection in the intervening years. Secondly, as his Honour had identified at [13.1] the intersection was at that stage "a classic T intersection, with traffic in King Street having right of way over traffic turning out of Devonshire Road". In other words, at that time it was the vehicle travelling east along Devonshire Road (being in an analogous situation to the Estephan vehicle in the present case) which was in the wrong. 164 The second matter referred to by his Honour involved a letter written in October 1996 by a resident of King Street, north of the intersection. Her concern was that traffic proceeding along Devonshire Road and turning south into King Street was not aware of traffic entering or leaving the "no-through road" (northern) extremity of King Street. This concern led Mr Kumar, the Council's traffic engineer, to approve the installation of a "Give Way" sign and holding line at the south end of the northern extremity of King Street, thus warning traffic driving south out of King Street to give way to traffic travelling east on Devonshire Road and turning south into King Street. As the trial judge correctly noted, this "failed to solve priority for traffic travelling north along King Street … which … still had priority over traffic turning right out of Devonshire Road": at [13.7]. 165 This problem was raised at a Council meeting on 14 April 1998 by Councillor Harrington. Councillor Harrington asked that a "Give Way" sign be placed on the southern portion of King Street to warn traffic driving north along King Street that to continue straight ahead involved a notional right hand turn and such vehicles did not have priority over vehicles coming out of Devonshire Road. A Council officer responded with a proposal for a change in priority, new centre lines with pavement markers and advanced warning signs to be installed on the southern section of King Street. The trial judge described the proposal in the following terms at [13.8]: "The 'advanced warning signs' proposed were modified T intersection signs, showing a T intersection but with the limbs of the route having priority marked more widely than the limb without priority. These signs are only warning signs, not regulatory signs. To regulate traffic a double unbroken centre line, going from King Street left into Devonshire Road was proposed, but with a large opening in it, allowing traffic into the dead end section of King Street to make a theoretical but fictional right hand turn. No regulatory sign was proposed, such as the give way sign suggested by Councillor Harrington in his question." 166 The work proposed was sent to the RTA for execution on 22 October 1998. The work was completed on 4 December 1998. 167 In describing these changes, his Honour was critical of aspects of the diagram prepared by the traffic engineer which were inaccurate and of the delay in responding to Councillor Harrington's request. These factors had no causative connection with the accident. 168 There were two further collisions recorded by police in May and September 1999. Each involved a vehicle travelling north on King Street seeking to continue straight ahead without giving way to a car coming from Devonshire Road into King Street. The records contained no reference to the priority road sign or the advance warning sign. The evidence revealed, however, that police who attended the accidents were uncertain as to which vehicle had right of way. His Honour did not find that the uncertainty was conveyed to the Council or the RTA. 169 In approximately May 2000, a resident of the north end of King Street (Mr Zajac) had a conversation with an officer from the Council in relation to a number of matters, including the intersection with Devonshire Road. Mr Zajac's complaint was basically that he understood that a vehicle driving north along King Street (as he regularly did), needed to give way to traffic coming out of Devonshire Road on the left, before proceeding into the "no through road" extension of King Street. He said that he was often required to stop in King Street and wait for Devonshire Road traffic, causing cars behind him to brake and beep their horns. He inferred that they did not know that he was required to give way because, after the accident, a give-way sign was placed on King Street and the beeping ceased. Mr Zajac also noted that the double lines on King Street were apparently faded although they had only been completed in December 1998. 170 As a matter of inference, the cause of the irritation might have been due, at least in part, to the presence of a car blocking the priority traffic in order to turn into a dead end from a busy one-lane road. 171 His Honour referred also to a further collision in August 2000, although in that case the vehicle travelling north on King Street was in fact turning into Devonshire Road when it collided with a vehicle turning right out of Devonshire Road, the driver of which admitted that he was "probably in the middle". The police entry noted that the dividing lines were faded, but the nature of the accident bore little relationship to the Estephan collision. 172 Mr Zajac gave evidence of a further conversation with the Council officer in November 2000 when he complained that the intersection had not been attended to and that there were frequent screeches of brakes and apparently minor accidents. However, in cross-examination he admitted he had seen no actual accident, but only 'close calls": at [136]. 173 In respect of the expert evidence as to the unsatisfactory nature of the signage at the intersection, I adopt the summary provided by Giles JA at [55]-[62] and his Honour's conclusions at [65], without giving any weight to the use of the term "road authority"].

Culpability of Council: findings of trial judge 174 There is now no challenge to the finding that the Council should, in the exercise of reasonable care, have taken steps to render the intersection safer for road users. In discussing the negligence of the Council, the trial judge noted that "there was only one party that did not accept that LCC was negligent - the Council itself": at [136]. That might not have been thought to be an entirely surprising position in litigation. 175 In assessing the negligence of the Council, the trial judge repeated his earlier comment that it had had "drawn to its attention the problem that gave rise to this fatal collision 9 years before that collision": at [137]. His Honour noted attempts to address the problems in 1996 and 1998 but described each as "wholly inadequate". He concluded: "If what was done immediately after the accident had been done immediately prior to it, it is more probable [than] not, that this accident would not have occurred. Faced with clear regulatory signs requiring Mr Finch to give way and with lights approaching the intersection it is likely that Mr Finch would [have] yielded way to the Ford." 176 In dealing with apportionment, his Honour was required to weigh the negligence of the driver, Mr Finch, against the negligence of the Council in providing inadequate signage at the intersection. He adopted a submission that "the risk caused by the acts and omissions of [the Council] was 'serious, obvious and manifest'": at [177]. He further placed weight upon the fact that the Council "knew about the problems with the intersection, Mr Finch did not". Finally, he referred again to the observation of counsel that "the Council had 9 years to 'get this intersection right', Mr Finch had but a few seconds in which to do so".

Challenge to apportionment 177 I accept the statement of the relevant principles in relation to the appeal with respect to apportionment set out by Giles JA at [68] and [69]. However, in my view this is a case which warrants intervention because the trial judge erred in matters of principle in his approach to the exercise of apportionment. 178 First, his Honour was in error in treating the relevant negligence of the Council as extending over a period of nine years. 179 That is not to say that it was inappropriate to take account of conduct continuing over an extended period, nor that the degree of culpability was not affected by the length of the delay in rectifying the regulation of traffic and signage at the intersection: see, eg, McIntyre v Ridley District Council (1991) 56 SASR 343 at 353 (King CJ); Turner v Ku-ring-gai Municipal Council at 62-63 (Kirby P, Priestley and Handley JJA). Rather, the material circumstance, with respect to the cause of the accident, was the arrangement put in place in December 1998. Although it is said that the priority road sign was advisory and not regulatory, there was no suggestion that such a distinction affected the understanding of road users as to priorities at the intersection (although it may have accounted for confusion on the part of the police who attended the accidents which occurred during 1999). 180 The period during which the unsafe state of the intersection, as relevant to the accident in May 2001, continued was not insignificant: it covered a period of some 18 months. Nevertheless, his Honour clearly treated the existence of the unsafe intersection over a period of nine years as a material factor, as he referred to the period on no less than three occasions with emphasis on each occasion. His Honour also appears to have placed reliance upon the delay on the part of the Council in responding to earlier complaints about the intersection. Such delay was not irrelevant to the question of culpability, in so far as it suggested inadequate systems on the part of the Council or its officers for dealing with such matters. However, in the circumstances which occurred after December 1998, the earlier events were of marginal significance. 181 The second error in respect of the apportionment was related to the first: it concerned the mechanism by which Council was responsible for traffic regulation at the intersection after December 1998. 182 Assuming that the delegation to Council following the repeal of the Traffic Act remained in substantially similar form to that which had preceded the repeal, the significant factor for the purposes of apportionment was not that the Council did not have the power to take the necessary steps with respect to traffic control works, but that it could only do so with the agreement of representatives of the police and the RTA on the local traffic committee. Accordingly, on the evidence tendered at trial, the arrangements made in 1998 must have had the approval of the representatives of the Commissioner and the RTA. If those persons, who presumably had expertise in matters of traffic regulation and traffic control signs, thought the proposals presented by the Council traffic engineer were appropriate, that tends to lessen the culpability of Council in adopting the relevant proposal. 183 A third factor affecting apportionment arises from the difficulty in assessing the comparable culpability of a driver who did not see a relevant sign and the authority responsible for erecting adequate signage. No doubt the temporal factor referred to by his Honour was a material consideration, but the language used in the judgment suggests that it was given quite disproportionate weight: see [175]-[176] above. 184 In McIntyre v Ridley District Council, the Full Court of the Supreme Court in South Australia found serious fault on the part of the local council in constructing a curve on a country road with an inappropriate camber and in failing to provide advisory signs to motorists as to the speed at which the bend could be safely negotiated. King CJ stated (at 352-353): "It is necessary therefore to apportion responsibility and for that purpose to compare the respective degrees of fault. An important factor in assessing the respective degrees of fault of the appellant [the driver] and the respondent is the difference in the circumstances in which their respective faults were committed. The appellant's fault was a failure of observation and prudence in a driving situation. There was no opportunity for reflection and little for correcting the driving errors. The respondent's fault was of quite a different nature. The Council, for whose actions the respondent is responsible, undertook substantial road works. It had ample opportunity and leisure to make observations and judgments as to what was required to produce a safe road surface and proper warning to the public. It had ample opportunity to take the advice of and to employ the services of experts in the area of road safety. Not only did it produce an unsafe road surface due to the adverse camber and fail to give warning of the appropriate speed for the bend, but it allowed those omissions to continue for a period of years. I think that the degree of responsibility of the respondent for this accident and its consequences must be regarded as considerably greater than that of the appellant. I would apportion the responsibility 60 per cent against the respondent and 40 per cent against the appellant." 185 There were other factors which needed to be considered in the present case. One factor which was not expressly considered by his Honour in this context was the level of road usage discovered by a traffic survey undertaken in June 1994. According to that survey, the north bound traffic in Devonshire Road was 2,222 vehicles per day, as measured on a Thursday and a Sunday. (It was not clear from the evidence where the survey was undertaken.) On one view, those figures, known to the Council, indicated the importance of clear signage at the intersection with King Street. On the other hand, the figures suggest that there were over 800,000 north-bound trips alone per year, if those figures applied to the southern end of Devonshire Road. Over seven years, there may have been more than 5 million trips, a factor which would tend to put in a different light the relatively small number of known collisions. 186 The trial judge was undoubtedly entitled to take a similar view in the present case to that described by King CJ in McIntyre. However, in my view the factors noted above caused his Honour to adopt an unduly disparate apportionment against the Council and to undervalue the responsibility of the driver of the truck. While these matters must be dealt with impressionistically, in my view the apportionment should have been one-third against the driver and two-thirds against the Council. Accordingly I would vary the orders made by the trial judge to reflect those proportions.

Costs 187 In awarding costs against the Council on an indemnity basis, his Honour took into account three factors (at [17] in his Honour's second judgment) namely that:

(a) it put in issue a matter which was "unarguable", namely that it was the responsible roads authority; (b) after admitting that it was the responsible roads authority, it still contended that it was absolved of responsibility because of the greater expertise of the RTA, and (c) it failed to comply with its obligation to produce documents under subpoenas and notices to produce. 188 With respect to the third matter, no error has been shown in his Honour's approach, for the reasons given by Giles JA. With respect to the first two matters, for the reasons set out above, I do not accept the level of criticism directed against the Council. First, as senior counsel explained, there was no specific pleading that the Council was a "roads authority" so that it was not strictly accurate to say that "it denied that it was the relevant road authority": Judgment of 26 October 2007, at [2]. Nor was it correct to say that its failure to make such an admission "impeded" the plaintiffs: at [22]. Its role as a roads authority appears to have been directed to a claim that it was responsible for "the design, construction and maintenance of the intersection": fourth amended statement of claim, par 9(b). That complaint was not upheld by the trial judge. Indeed, out of some 35 particulars of negligence pleaded against the Council, only a handful might, and then ambivalently, be treated as complaints about the design and construction of the roadway. Virtually all of the complaints related to the inadequate signage and lighting. It was entirely arguable that these were not matters which constituted the responsibility of a roads authority, but were the responsibility of a traffic authority. The source of the Council's powers as a traffic authority, as noted above, was separate from that of its powers as a roads authority. It was the plaintiffs who appear not to have appreciated the distinction and its statutory relevance. 189 In respect of the second matter, the role of the RTA (and the police) in the statutory scheme of traffic regulation and signage was significant. The Council may not have been absolved from responsibility for that reason, but its culpability was materially affected. A proper understanding of the statutory regime would have demonstrated that the Council's contentions in that regard were not without merit. Further, its pleading appeared to raise an issue as to whether it did in fact have responsibility for changing traffic rules (the regulatory function) as opposed to the installation and maintenance of appropriate signs, marks, and similar measures. This defence, which may also have had merit, was not addressed. In my view, his Honour's castigation of the Council for raising such issues was inappropriate. 190 Accordingly, I would vary the orders proposed by Giles JA in the following respects:

(1) In lieu of proposed orders 2 and 3: 2. Set aside the orders made on 26 October 2007 that the third defendant (Liverpool City Council) pay the plaintiffs' costs on an indemnity basis and in lieu thereof order that the third defendant pay on an indemnity basis the additional costs incurred by the plaintiff by reason of the failure of the third defendant to comply in a timely manner with its obligation to produce documents in response to subpoenas and notices to produce. 3. Set aside the orders made on 26 October 2007 that the third defendant pay the first and second defendants' costs of the trial on an indemnity basis and in lieu thereof order that the third defendant pay on an indemnity basis the additional costs incurred by the first and second defendants by reason of the failure of the third defendant to comply in a timely manner with its obligation to produce documents in response to subpoenas and notices to produce.

(2) In proposed orders 5(a) and (b), substitute 50% and 40% for 75% and 70%.

(4) In lieu of proposed order 10: 10. Order that the seventh and eighth respondents pay 50% of the appellant's costs of the appeal (not including costs it must pay to other parties). **********

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