Liverpool City Council v Millett & Anor; Liverpool City Council v WadeLiverpool City Council v Millett & Anor

CATCHWORDS : TORTS - Negligence - Duty of care - To road users - Breach of duty - Approaches in determining negligence - Whether different approaches entail different outcomes - Inadvertence - No marked centreline on road - Plaintiff's car partly on incorrect side of road - TORTS - Contributory negligence - Breach of duty - Whether mutually exclusive Law Reform (Miscellaneous Provisions) Act 1965 (NSW) LEGISLATION CITED : Motor Traffic Regulations 1935 Suitor's Fund Act 1951 Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35 Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317 Boroondara City Council v Cattench [2004] VSCA 139 Brito v Fairfield Council (2000) 110 LGERA 44 Brodie v Singleton Shire Council (2001) 206 CLR 512 Byrnes v Burwood Council [2003] HCA Trans 462 Clarke v Coleambally Ski Club Inc [2004] NSWCA 376 Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512 Greater Shepparton City Council v Davis [2004] VSCA 140 Home Office v Dorset Yacht Co Ltd [1970] AC 1004 House v The King (1936) 55 CLR 499 Joslyn v Berryman (2003) 214 CLR 552 CASES CITED : Junkoric v Neindorf [2004] SASC 325 March v E & M H Stramore Pty Ltd (1991) 171 CLR 506 McLean v Todman (1984) 155 CLR 306 Nagle v Rottnest Island Authority (1993) 177 CLR 423 Nambucca Shire Council v Connor [2004] NSWCA 13 Podrebersek v AIS Pty Limited (1985) 59 ALJR 492 Polley v Maitland Benevolent Society [2004] NSWCA 323 Richmond Valley Council v Standing (2002) 127 LGERA 237 Romeo v Conservation Commission (NT) (1998) 192 CLR 431 Smith v The Broken Hill Pty Co Ltd [1957] 97 CLR 337 Sutherland Shire Council v Hayman (1985) 157 CLR 424 Temora Shire Council v Stein [2004] NSWCA 236 Wyong Shire Council v Shirt (1980) 146 CLR 40 Liverpool City Council PARTIES : Richard Gregory Millett Nigel Bruce Wade FILE NUMBER(S) : CA 403130/03; 40129/03 A: D Davies SC / D Villa COUNSEL : 1R: S Norton SC / A Healey 2R: Submitting appearance A: McCabe Terrill Lawyers, Sydney SOLICITORS : 1R: G J Byles & Associates, Liverpool 2R: Brydens Law Office, Liverpool

LOWER COURT District Court JURISDICTION : LOWER COURT DC 776/01; DC6655/01 FILE NUMBER(S) : LOWER COURT Norrish DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 403130/03 CA 40129/03 DC 776/01 DC 6655/02

MASON P SHELLER JA TOBIAS JA

Thursday 9 December 2004 LIVERPOOL CITY COUNCIL v RICHARD GREGORY MILLETT & ANOR LIVERPOOL CITY COUNCIL v NIGEL BRUCE WADE & ANOR

M was injured when his vehicle strayed partly onto the wrong side of the road and collided with an oncoming car. The accident occurred at night as M approached a crest. M did not see the oncoming lights of the other car until a moment before the accident. Both M and the other driver were familiar with the stretch of road, which was in poor condition having no marked centreline and an uneven edge that fell away into loose gravel. M claimed to have been moving toward (and thence across) the centre to avoid the road's frayed edge. M sued the Council for negligence in relation to the road's condition. The primary judge found the Council negligent by failing to mark a centreline on the approaches to the crest. M was found to have contributed to the negligence such that the verdict was reduced by 10%. The Council appealed bringing three arguments. First, that it had not breached its duty by failing to mark a centreline on the approach to the intersection. Secondly, that the accident was solely due to M's failure to keep a proper lookout and remain on the correct side of the road. Thirdly, that M's contributory negligence exceeded 10%.

HELD: (per Tobias JA with Mason P agreeing) (as part of a detailed discussion considering, firstly, whether a finding of breach of duty is likely to change depending upon the approach taken in determining negligence, and concluding that generally there should be no difference in outcome, and secondly, the differences between the duty of care that a local council (or other authority) owes to road users as opposed to pedestrians and the effect of this upon findings of contributory negligence):

(1) A council or other authority cannot always expect a road user to avoid obvious risks or dangers, such as the absence of a centreline on the approach to a blind crest, in the sense that the council need take no steps to remedy such defects. In the present case the risk of a road user such as M straying inadvertently, or as a consequence of misjudgement or carelessness, onto the incorrect side of the road, at night, while attempting to avoid the broken edge of the road without the guidance of a centreline, was an occurrence which was highly probable and likely to result in a head-on collision with potentially catastrophic consequences. Further, it was the very absence of the centreline, combined with the frayed edge and the narrowness of the road that made it difficult for a road user, even a road user exercising reasonable care for their own safety, to remain on the correct side of the road. Accordingly, the Council's duty was breached as it knew (or ought to have known) that a road user approaching the crest, particularly one not keeping a proper lookout or who was travelling too fast, might misjudge the road's centre. Joslyn v Berryman (2003) 214 CLR 552; Clarke v Coleambally Ski Club Inc [2004] NSWCA 376; Brodie v Singleton Shire Council (2001) 206 CLR 512, considered. Greater Shepparton City Council v Davis [2004] VSCA 140; Smith v The Broken Hill Pty Co Ltd [1957] 97 CLR 337; Temora Shire Council v Stein [2004] NSWCA 236; Boroondara City Council v Cattench [2004] VSCA 139; Junkoric v Neindorf [2004] SASC 325; Byrnes v Burwood Council [2003] HCA Trans 462; Home Office v Dorset Yacht Co Ltd [1970] AC 1004; Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; Wyong Shire Council v Shirt (1980) 146 CLR 40; Romeo v Conservation Commission (NT) (1998) 192 CLR 431; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512, referred to.

(2) The above conclusion has been reached by assuming that the Council owed M a general duty of care and then considering whether that duty had been breached in the circumstances. Had the court considered the matter by first determining if the council did in fact owe M a duty of care, the same conclusion would have been reached. This is because M's inadvertence did not move him outside the scope of the Council's duty of care such that the court would have then considered whether the duty had been breached, and the above conclusion would have resulted. Joslyn v Berryman (2003) 214 CLR 552; Clarke v Coleambally Ski Club Inc [2004] NSWCA 376; Brodie v Singleton Shire Council (2001) 206 CLR 512, considered.

(3) The issue of the road user's inadvertence is relevant to both contributory negligence and breach of the Council's duty of care. However, the existence of inadvertence (or a finding of contributory negligence) will not be determinative of whether the Council breached its duty; a finding of breach of duty and contributory negligence are consistent as the two concepts are not mutually exclusive. Joslyn v Berryman (2003) 214 CLR 552; Clarke v Coleambally Ski Club Inc [2004] NSWCA 376; Brodie v Singleton Shire Council (2001) 206 CLR 512, considered.

(4) It follows that the primary judge was correct to find that the Council was in breach of its duty of care notwithstanding that M failed to detect any illumination from the headlights of the oncoming car prior to the collision.

(5) The fact that the Council had not been made aware of any accidents relating to the section of the road, and thus was not obliged to ascertain whether the road presented a problem, is erroneous in that the Council can be in breach by failing to take reasonable steps to inspect for such dangers as might be expected. In this case the road was an accident waiting to happen in that there was a high probability of its occurrence. Joslyn v Berryman (2003) 214 CLR 552; Clarke v Coleambally Ski Club Inc [2004] NSWCA 376; Brodie v Singleton Shire Council (2001) 206 CLR 512, considered.

(6) It was open to the primary judge, as established by the expert evidence, to find that in all probability the accident would have been avoided had there been a marked centreline.

(7) The primary judge erred in finding that M was only 10% responsible for his injuries. It was M's failure to keep as far left as practicable that caused the collision, enhanced by his speed. In the circumstances it is just and equitable to reduce M's verdict by 45%. Podrebersek v AIS Pty Limited (1985) 59 ALJR 492, considered. HELD: (per Sheller JA dissenting) By failing to keep as far left as reasonably practicable, misjudging the imaginary centreline and failing to slow as he approached the crest (which caused him to partially cross the imaginary centreline and hence the accident) M was not taking ordinary or reasonable care for his own safety. Further, there was no unrepaired hidden trap, nor any contribution from the road (besides its poor condition of which M was aware). In the circumstances M, through a failure to exercise reasonable or ordinary care for his own safety, has failed to establish any breach by the Council of any duty owed to him.

Brodie v Singleton Shire Council (2001) 206 CLR 512, applied.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 403130/03 CA 40129/03 DC 776/01 DC 6655/02

MASON P SHELLER JA TOBIAS JA

Thursday 9 November 2004 LIVERPOOL CITY COUNCIL v RICHARD GREGORY MILLETT & ANOR LIVERPOOL CITY COUNCIL v NIGEL BRUCE WADE & ANOR Judgment 1 MASON P: I agree with Tobias JA. 2 SHELLER JA: The first respondent, Richard Gregory Millett, by an amended ordinary statement of claim joined the appellant, Liverpool City Council, in proceedings brought against Nigel Bruce Wade, the second respondent, which arose out of a collision between Mr Millett's motor vehicle, which was being driven north, and Mr Wade's motor vehicle, which was being driven south, on Second Avenue, West Hoxton at the intersection of Second Avenue and Sixteenth Avenue on 9 October 1999. Mr Millett sued the Council for negligence and gave the following particulars: "a. Failing to take any or any adequate precautions for the plaintiff's safety; b. Putting the plaintiff in a position of peril in the circumstances; c. Failing to maintain or adequately maintain the roadway; d. Allowing the roadway to become broken up and dangerous; e. Failing to ensure that cars travelling in the direction of the first defendant were notified by means of sign posts that the crest of a hill was imminent; f. Failing to adequately mark or sign post the road; g. Failing to devise, institute and maintain a proper and safe system of road repair; h. Failing to warn or adequately warn road users such as the first defendant that the road was broken up and dangerous; i. Failing to inspect or adequately inspect the said road surface." 3 During the course of the trial before his Honour Judge Norrish QC, the personal injury proceedings between Mr Millett and Mr Wade were settled. Mr Millett's proceedings against the Council continued, as did Mr Wade's proceedings, originally begun in the Local Court and transferred to the District Court, against Mr Millett seeking compensation for damage to Mr Wade's motor vehicle said to have been caused by Mr Millett's negligence. 4 In the proceedings between Mr Millett and the Council, the trial Judge entered a verdict and judgment for Mr Millett against the Council in the sum of $95,485 after reducing the verdict by 10 per cent on account of Mr Millett's contributory negligence. His Honour also found that Mr Wade was not in any way liable for the damage arising from the collision. In the property damage case, the trial Judge entered a verdict and judgment for Mr Wade against Mr Millett and the Council, Mr Millett to pay $2,078 and the Council $18,701. The Council sought and was granted leave to appeal against the decision against it for personal injury damage and for property damage. 5 The trial Judge's conclusion as to liability was expressed as follows: "Having regard to the facts found above and other observations made in the course of the judgment I am satisfied that the [Council] failed to take reasonable care to prevent a source of risk to [Mr Millett] (and other road users) which gave rise to a foreseeable risk of harm which caused damage to [Mr Millett] and [Mr Wade]. The failure primarily caused the collision but there was a lesser contribution by [Mr Millett] to which I refer below. The intersection was potentially dangerous for traffic on Second and Sixteenth Avenue because of the positioning of the intersection on a crest, particularly for traffic heading in a northerly direction. Part of the risk to users had been removed by the placing of Stop signs on the Sixteenth Avenue entries. The failure I have found arose specifically and primarily by reason of the failure of the [Council] to mark separation lines on the southern and northern sides of the intersection on Second Avenue to identify for motorists the centre of the road entering the intersection. The risk of foreseeable harm was increased by the failure of the [Council] to maintain the road surface in such a way as to ensure that Second Avenue remained aligned on both sides of the intersection and such as to maintain the edges of the southern side of the intersection so as not to force or require north bound traffic to move towards the centre of the road to avoid damage or loss of control of the vehicle on an uneven surface. This area of the road was, in my opinion, at the very least in 'very poor' condition (to use Mr Philpott's phrase). Although not decisive in this case the risk of harm (or damage) could have been reduced by signage such as advising motorists to 'slow' or warning of dangers in passing because of the deteriorated edges either side of the intersection. I have taken into account the reasonableness of the [Council's] conduct having regard to its resources and its priorities as at the time of the collision in concluding that it failed in its duty to [Mr Millett]. The cost of marking the road with separation lines, as opposed to resurfacing it, or better still reconstructing it, was minuscule and well within the [Council's] economic capacity. The danger and inadequacies of the intersection and the roadway, given its function as a connector road in an expanding community, ought to have been patently obvious to any person employed by the Council with the responsibility of reporting upon or maintaining the road surfaces in the municipality. A more fundamental failure of the [Council] in the exercise of its duty of care was suggested in the failure of the [Council] to maintain Second Avenue at a width greater than evidenced before me. On the evidence before me I am unable to conclude that issue one way or the other, primarily taking into account the reasonableness of the allocation of resources in the context of competing priority considerations for the Council." 6 Of contributory negligence the trial Judge said: "The [Council] alleges contributory negligence as against [Mr Millett]. The [Council] argues that [Mr Millett] failed to take reasonable care for his own safety by the manner of his driving of the vehicle. Further, it is argued that the damage caused to [Mr Wade] was reasonably foreseeable and contributed to by [Mr Millett's] conduct. If contributory negligence has been made out by the [Council] I am required to reduce compensation which otherwise this Court considers to be fair, by an appropriate percentage having regard to the degree of [Mr Millett's] responsibility for the damage. It requires proof of more than mere inattention or inadvertence. Thoughtlessness will not necessarily amount to contributory negligence (see Commissioner of Railways v Ruprecht (1979) 142 CLR 563). If contributory negligence is made out this Court has a wide discretion to reduce [Mr Millett's] damages to the extent that the Court considers just and reasonable having regard to [Mr Millett's] share of responsibility for the harm suffered. I am required to consider comparison of the degree of culpability of the [Council] with that of [Mr Millett] and the relative causative importance of the conduct of each party. ( Podrebersek v AIS Pty Ltd (1985) 59 ALR 529). Prima facie the movement of [Mr Millett's] car towards and across an imaginary centre line on the road indicates at least some degree of responsibility by [Mr Millett] for the harm to himself and suffered by [Mr Wade] in the character of property damage. Whilst [Mr Millett] held a responsibility to exercise care for the safety of himself and others on the road, in my view such failure by [Mr Millett] was primarily caused by the breach of duty of the [Council] as previously found. In my view, whilst the [Council] has established that [Mr Millett] was contributorily negligent, the conduct of [Mr Millett] was almost entirely due caused by the prevailing road condition for which the [Council] was responsible. I gave consideration to whether the [Council] had failed in its plea of contributory negligence because of the result of a 'sudden emergency' or as a consequence of the 'agony of the moment'. Whilst there is a strong element of the prisoner 'escaping from inconvenience by taking a risk', in determining whether his conduct was unreasonable to any extent I believe I am required to answer that by weighing the degree of convenience to which he may have been subjected against the risk that he took in order to escape it. In this matter the situation is complicated by my finding that the absence of a centre line provided no indication to [Mr Millett] as to where the centre of the road was in a poorly lit intersection. Whilst I believe it was reasonable for [Mr Millett] to move his motor vehicle towards the centre of the road and to cross the centre of the road in circumstances where no oncoming vehicle was anticipated, it seems to me that the extent to which [Mr Millett] crossed the centre line, whilst not precluding a collision, increased the likelihood of it. The breach of duty by the [Council] influenced considerably [Mr Millett's] conduct of his vehicle. Given the other circumstances to which I have referred, the contributory negligence of [Mr Millett] was relatively slight and thus I conclude that there should be a reduction of the verdict payable to [Mr Millett] of 10% of the total amount. In respect of [Mr Wade's] claim for property damage the damages payable ought be likewise apportioned between the two defendants with the Council required to pay the preponderance of damages at 90%." 7 In Brodie v Singleton Shire Council (2001) 206 CLR 512 Gaudron, McHugh and Gummow JJ, who with Kirby J formed the majority, said at 579-580 under the heading "(ii) Repair, maintenance and works": "158 A rejection of the 'immunity' for 'highway authorities' and the recognition of a duty of care in terms expressed above with reference to Wyong Shire Council v Shirt does not necessarily involve the imposition of an obligation in all cases to exercise powers to repair roads or to ensure they are kept in repair. An authority may have various statutory powers invested in it and would be under a duty not to use, misuse or fail to use those powers to create a situation of danger which creates a reasonably foreseeable risk of injury to a user of the road. 159 The discharge of the duty involves the taking by the authority of reasonable steps to prevent there remaining a source of risk which gives rise to a foreseeable risk of harm. Such a risk of harm may arise from a failure to repair a road or its surface, from the creation of conditions during or as a result of repairs or works, from a failure to remove unsafe items in or near a road, or from the placing of items upon a road which create a danger, or the removal of items which protect against danger. 160 In dealing with questions of breach of duty, whilst there is to be taken into account as a 'variable factor' the results of 'inadvertence' and 'thoughtlessness', a proper starting point may be the proposition that the person using the road will themselves take ordinary care; Miller v McKeon (1905) 3 CLR 50 at 60." [Other citations omitted] 8 At 581 under the heading "(iii) Pedestrians", their Honours said: "163 The formulation of the duty in terms which require that a road be safe not in all circumstances but for users exercising reasonable care for their own safety is even more important where, as in Ghantous, the plaintiff was a pedestrian. …" 9 After referring to Callinan J's observation that persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes, their Honours said: "Of course, some allowance must be made for inadvertence. Certain dangers may not readily be perceived because of inadequate lighting or the nature of the danger (as in Webb v South Australia (1982) 56 ALJR 912) or the surrounding area (as in Buckle (1936) 57 CLR 259 at 266, where the hole was concealed by grass). In such circumstances, there may be a foreseeable risk of harm even to persons taking reasonable care for their own safety. … In Romeo (1998) 192 CLR 431 at 455, Toohey and Gummow JJ noted in a different context that the care to be expected of members of the public is related to the obviousness of the danger. Kirby J pointed out in the same case that even an occupier of premises 'is generally entitled to assume that most entrants will take reasonable care for their own safety' (at 478). Each case will, of course, turn on its own facts." 10 In Miller v McKeon, to which their Honours referred, the High Court overturned a decision of the Full Court of the Supreme Court of New South Wales setting aside the non-suit of the plaintiff by Pring J. This was a case where the plaintiff had been injured by travelling upon a highway and sued the Nominal Defendant appointed on behalf of the government of New South Wales for negligence in executing certain works upon a highway and in not maintaining the highway in a condition of safety for persons lawfully using it. The plaintiff, who was being driven along the road by a friend in a buggy on a dark night, got out of the buggy at his friend's request to see whether they had reached the mouth of a cutting and inadvertently fell down a steep bank at the side of the cutting and was injured. The passage referred to in Brodie was in the judgment of Griffith CJ at 60 where his Honour said, in speaking of the reasonable care the government was bound to use: "The analogy is rather to the case of a private owner who invites the public to pass through his land by a track which he has there constructed, and which is reasonably safe for persons using ordinary care. If such an owner, after granting the permission, puts, or allows to be put upon the track which he so offers, a new obstacle or danger by which persons using reasonable care would be liable to be injured, he is liable for the consequences. …" 11 Earlier at 58 Griffith CJ said: "Now, it is important to consider what is the real nature of the action. It is not brought for an interference with an existing highway without lawful excuse, but for negligence in constructing a cutting while forming a practicable road upon the highway - that is, for negligently performing an act which was otherwise perfectly lawful. Now, negligence for which an action will lie has been well defined by Brett MR in the case of Heaven v Pender 11 QBD 503 at 507. He says:- 'Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff, without contributory negligence on his part, has suffered injury to his personal property.' Now, ordinary care or skill is very much the same as reasonable care or skill under the circumstances." 12 At common law contributory negligence was a complete defence in New South Wales until 1965 and the coming into force of the Law Reform (Miscellaneous Provisions) Act of that year. Contributory negligence means a failure on the part of the person injured to take reasonable care of him or herself in his or her own interest. As Professor Fleming pointed out in the Law of Torts, 9th ed, at 302-3: "… the term 'contributory' might misleadingly suggest that the plaintiff's negligence, concurring with the defendant's, must have contributed to the accident in the sense of being instrumental in bringing it about. Actually, it means nothing more than his failure to avoid getting hurt by the defendant, for example by riding in a car without fastening the seatbelt or the driver known to be incompetent or intoxicated; even failing to switch on a back-up power unit in the case of an electricity outage." 13 Even so, the fact that s 9(1) of the 1965 Act provides that, if a person suffers damage as a result partly of that person's failure to take reasonable care and partly of the wrong of any other person, - "(a) a claim in respect of the damage is not defeated by reason of the contributory negligence of the claimant, and (b) the damages recoverable in respect of the wrong are to be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage"

introduces a problem in understanding the formulation of the duty in terms which require that a road be safe, not in all circumstances, but for users exercising reasonable care for their own safety. 14 The critical facts in this case were that Mr Millett was approaching the intersection accelerating up the hill at a speed of between 50 and 60 kilometres per hour with his view of oncoming traffic obscured by the crest of the road at the intersection and at that point moved his vehicle onto the incorrect side of the road. In his defence, he expected that he would see the lights of any oncoming traffic and believed that he was still on the correct side of the road though he had moved towards the centre to avoid a rough stretch of road on the near side of his vehicle at the kerb. The most difficult part of Mr Millett's evidence is that he said that he never saw the lights of Mr Wade's car at any point in the period up to the impact of the two vehicles. The first question to be answered in determining the liability of the Council is whether the Council had taken reasonable steps to prevent there remaining a source of risk for users exercising reasonable care for their own safety. 15 In his reasons for judgment, which I have had the benefit of reading, when dealing with contributory negligence, Tobias JA refers to the trial Judge's conclusion that it was reasonable for Mr Millett to move his vehicle towards the centre of the roadway and to cross the centre of the road in circumstances where no oncoming vehicle was anticipated. In the opinion of Tobias JA, the trial Judge failed to take into account and give proper weight to the fact that Mr Millett recognised that there was a possibility of an oncoming motor vehicle which was obscured by the crest and that, if necessary, he should have slowed down so as to ensure that he was as far to the left of the imaginary centre line as possible without running on to the verge. A reference is made to cl 65 of the Motor Traffic Regulations 1935, which obliges the driver of a motor vehicle to keep the vehicle as close as practicable to the left boundary of the carriageway. 16 In reassessing the proportion to be deducted for contributory negligence Tobias JA observed that it is apparent that the collision would not have occurred had Mr Millett proceeded towards the intersection keeping as far to the left as was practicable. There was no doubt that this would have been an easier task for him to accomplish had he been aware of the precise location of the centre line of the roadway. However, it was his failure to keep as far to the left as practicable and his misjudgement of the location of the imaginary centre line and, in the circumstances, his failure to slow down as he approached the crest of the intersection that caused him partially to cross that line and thereby sustain his injuries in the collision. I agree with what Tobias JA says but this means that the Council has been held liable for breach of a duty of care to a person using the road who suffered injury because he had not taken ordinary or reasonable care for his own safety. The common example of a Council's breach of duty on a footpath arises from a hidden trap which the Council has created or failed, with reasonable notice, to repair. There was no hidden trap in this case nor any contributing feature of the road, beyond its being in very poor condition. It was practicable for Mr Millett safely to traverse the rough part of Second Avenue approaching the intersection by keeping to the left if his speed was appropriately reduced. He was aware of the state of this section of the road. Instead he chose to move to the centre of the road and went too far in the sense that inadvertently he crossed the imaginary centre line. As Tobias JA has said, it was Mr Millett's failure to keep as far to the left as practicable, his misjudgement of the location of the imaginary centre line and his failure to slow down as he approached the crest of the intersection that resulted in his sustaining injuries in the collision. 17 In my opinion, Mr Millett failed to establish any breach by the Council of any duty owed to him. Accordingly, the Council's appeals should be upheld and the orders made by Norrish DCJ set aside, verdicts for the Council substituted and Mr Millett ordered to pay the costs of the Council and Mr Wade of the hearing and of the Council on the appeal. One consequence of this will be that Mr Millett pay the whole of the District Court verdict in favour of Mr Wade.

Orders 18 I propose the following orders: CA 40130/03 1. Appeal allowed; 2. Set aside the orders made by Norrish DCJ on 7 February 2003 and in lieu thereof order: (a) judgment for the second defendant; (b) cross-claims dismissed; (c) plaintiff to pay the second defendant's costs of the District Court proceedings. 3. First respondent to pay the appellant's costs of the appeal, and in respect of those costs to have a certificate under the Suitors' Fund Act 1951 if otherwise entitled. 4. Appellant to pay the second respondent's costs of the application for leave to appeal and the costs of the submitting appearance in the appeal. CA 40129/03 1. Appeal allowed; 2. Set aside the orders made by Norrish DCJ on 7 February 2003 and in lieu thereof order: (a) judgment for the plaintiff against the first defendant in the sum of $20,779; (b) judgment for the second defendant; (c) cross-claims dismissed; (d) first defendant to pay the plaintiff's costs of the District Court proceedings and the Local Court proceedings; (e) first defendant to pay the second defendant's costs of the District Court proceedings. 3. Order the second respondent to pay the appellant the amount of $22,392.93 (plus interest in accordance with Schedule J for the period from 24 December 2003 to the date of judgment. 4. Second respondent to pay the appellant's costs of the appeal, and in respect of those costs to have a certificate under the Suitors' Fund Act 1951 if otherwise entitled. 5. Appellant to pay the first respondent's costs of the application for leave to appeal and the costs of the submitting appearance in the appeal. 19 TOBIAS JA: At about 7.00pm on 9 October 1999 the first respondent, Richard Gregory Millett (Mr Millett), was driving north on Second Avenue, West Hoxton in the area of Liverpool City Council (the Council). At the same time the second respondent, Nigel Bruce Wade (Mr Wade), was driving in a southerly direction on Second Avenue. An offset head-on collision occurred between the vehicles driven by Mr Millett and Mr Wade at the intersection of Second Avenue and Sixteenth Avenue (the intersection). Both Mr Millett and Mr Wade sustained personal injuries in the accident as well as damage to their respective vehicles. 20 Mr Millett instituted proceedings against Mr Wade and the Council alleging negligence against both. Each of the Council and Mr Wade cross-claimed against the other. 21 Mr Wade instituted proceedings against Mr Millett and the Council also claiming that each was negligent. His claim in respect of his personal injuries was settled but his property damage claim remained alive. Mr Millett cross-claimed against Mr Wade and the Council. 22 On 7 February 2003 Norrish DCJ heard the proceedings and found in favour of Mr Millett against the Council but dismissed his claim against Mr Wade. His Honour assessed Mr Millett's damages at $106,094 but found Mr Millett to be guilty of contributory negligence. He reduced the amount of Mr Millett's damages by 10% and entered judgment in his favour against the Council in the amount of $95,485. 23 As far as Mr Wade's claim for property damage against Mr Millett and the Council was concerned, his Honour entered judgment against both in the sum of $20,779 of which 90% was to be payable by the Council and 10% by Mr Millett. Both were ordered to pay Mr Wade's costs in equal proportions.

Leave to appeal 24 The Council sought this Court's leave to appeal against the primary judge's decision in both proceedings. Mason P and Hodgson JA granted leave on 25 November 2004. A condition of the leave was that in the event that the Council displaced the judgment obtained by Mr Wade, it would not seek to recover the amount of that judgment and costs from him. The intent of this condition was that in the event the Council was successful on the appeal, it would recover any amounts paid by it to Mr Wade from Mr Millett. Accordingly, Mr Wade filed a submitting appearance in the appeals and took no further part in the hearing.

The issues on the appeal 25 The Council firstly contested the finding of the primary judge that it had breached its duty of care to Mr Millett (and Mr Wade) in failing to provide, as is common, a "single or double unbroken white centre line" in Second Avenue for a distance of approximately 40 metres north and south of the intersection. It was said that Second Avenue, a semi-rural road, was not less than 6 metres wide for a 40 metre distance to the south of the intersection and not less than 5 metres wide for the same distance to the north of the intersection. Accordingly oncoming vehicles were able to pass each other on their respective correct sides of the road. Thus it was submitted, it was not reasonable to require the Council, in order to fulfil its duty of care, to provide centrelines as his Honour had found. 26 Allied with this first issue, the Council secondly contended that the head-on collision between the vehicles was due solely to Mr Millett's failure to keep a proper lookout and remain on his correct side of Second Avenue as he approached the intersection. 27 The third issue (which only arose if the first issue was decided against the Council) concerned a challenge to the primary judge's finding that Mr Millett was only responsible for 10% of his injuries. It was submitted that not only was he guilty of contributory negligence (as the primary judge had found) but that, in accordance with principle, his responsibility for his injuries should be assessed at not less than 50%.

The primary judge's findings of fact 28 Generally speaking, but with two exceptions referred to below, the Council did not challenge the primary judge's findings (at Red 41-46) as to the layout of the intersection, the features of Second Avenue and the intersection, and the evidence as to the collision. Accordingly, I recite the crucial factual findings in summary form. 29 Second Avenue runs in a north-south direction and is a relatively straight road on either side of the intersection. The relevant part of Second Avenue runs from its intersection with Fifteenth Avenue, across Sixteenth Avenue to its intersection with Seventeenth Avenue - an overall distance of approximately 350 metres. 30 Heading north from Fifteenth Avenue (the direction in which Mr Millett was travelling), Second Avenue dips down to a culvert and then rises for a distance of approximately 80 metres to a crest where it intersects Sixteenth Avenue where the collision occurred (the intersection). On the northbound approach to the intersection the road slopes steeply with a gradient estimated by the experts called on behalf of Messrs. Millett and Wade, of between 11.5% and 12%. According to Mr Schnerring's evidence (the expert retained by Mr Millett), the site distance over the crest was restricted to approximately 20 metres. His Honour accepted the evidence of both drivers that neither had any time to take evasive action. 31 Although the road reserve of Second Avenue was quite wide, the actual bitumen pavement was not. It was common ground that on the approaches to the intersection the roadway (by which I mean the bitumen pavement) was in very poor condition. The primary judge found that for a distance of least 40 metres north and south of the intersection, the Second Avenue roadway varied in width between 4.5 and 6.4 metres. He found that it was predominantly 5 metres or wider to the north of the intersection and no less than 6 metres wide to the south: in each case for a distance of at least 40 metres. 32 There were two critical factors concerning the condition of the roadway. Firstly, there was no marked centreline. Secondly, the western pavement edge immediately before the intersection for a vehicle travelling north and the eastern pavement edge immediately before the intersection for a vehicle travelling south, were extremely ragged and worn requiring a vehicle in both cases to move towards the centre of the roadway in order to avoid those edges and to ensure that the nearside wheels of the vehicle remained on solid pavement. 33 Mr Schnerring, in evidence accepted by the primary judge, described the edges to which I have referred as being broken, in very poor condition and poorly defined and variable. In particular, the pavement edge on the northerly approach to the intersection had a differential in height between it and the gravel verge or shoulder of up to 4 inches. (Black 2/278 B-C; 455 J-L) 34 Both Mr Millett and Mr Wade were familiar with this section of Second Avenue. Mr Millett was driving a vehicle that was 1.857 metres wide, and Mr Wade was driving a vehicle that was 1.675 metres wide. It was dark, being approximately 7.00 pm, and each had their headlights on. The evidence established that Mr Millett had his lights on low beam: there was no evidence whether Mr Wade had his lights on high or low beam, but it is common ground that for present purposes it should be assumed that they were on low beam. 35 After turning from Fifteenth Avenue into Second Avenue, Mr Millett passed a stationary motor vehicle facing in a northerly direction, half on and half off the pavement to the south of the culvert and which had its lights on high beam. He was therefore required to veer around this vehicle after which he crossed the dip at the culvert and commenced the climb to the crest at the intersection. Although there was no centreline to provide guidance to drivers travelling north along Second Avenue towards the intersection, the primary judge was satisfied that Mr Millett was on the correct side of the road as he commenced his climb towards the crest. 36 As Mr Millett approached the crest he moved his vehicle to the right, away from the left hand edge of the road to avoid a section of that edge "which was broken and which dipped away to the gravel verge or shoulder as Second Avenue entered the tarred section of the intersection which also comprised part of Sixteenth Avenue." (Red 44R-T)

As he climbed the hill towards the crest Mr Millett increased his speed to 50-60 km per hour. He estimated, and the primary judge accepted, that he was travelling at close to 60 km per hour at the time of the collision, as was Mr Wade. 37 Critically, the primary judge found (at Red 44Y-45D) that "[b]y moving his motor vehicle to avoid the damaged section of the road the off-side of [Mr Millett's] motor vehicle came on to the incorrect side of the road, either immediately before or as it entered the intersection and was on the incorrect side of the road at the time of impact with Mr Wade's vehicle." 38 Although there was some dispute as to the precise point of impact, the primary judge found (and it is not challenged on the appeal) that the point of impact between the vehicles was close to the southern alignment of Sixteenth Avenue. More critically, his Honour found that, firstly, at the point of impact of Mr Wade's vehicle was wholly on his correct side of the road and, secondly, that Mr Millett's vehicle was partially on the incorrect side of the road to the extent that the front of his vehicle collided with the front of Mr Wade's vehicle, the collision being referred to as an "off-set head on collision". As to the extent to which Mr Millett's vehicle was across an imaginary centre line of the roadway, his Honour said (at Red 51Q-R): "the distance could be from 0.5 metres upwards, but more likely closer to the lowest figure, perhaps a little less." 39 I therefore take this finding to be one which determined that Mr Millett's vehicle had crossed the imaginary centreline of the roadway by up to 500mm or a little less. 40 As I have noted, Mr Wade, like Mr Millett, was also familiar with this section of Second Avenue. Relevantly, the primary judge found (at Red 45 L-O) that "[i]n the absence of any line markings his [Mr Wade's] evidence supports the contention that the course of action taken by [Mr Millett] in the management of his motor vehicle by moving away from the edge of the road towards to the centre of the road was a reasonable response to the road conditions that confronted [Mr Millett] as he drove in a northerly direction." 41 Mr Wade's evidence, as accepted by the primary judge, was that he did not see the headlights of Mr Millett's vehicle until a second or so before the collision. His Honour found that because of the stationary vehicle's high beam, as observed by Mr Wade any illumination from the headlights of Mr Millett's vehicle was absorbed by the effect of the stationary vehicle's high beam. 42 The primary judge also found (at Red 44K-L) that by reason of the character of the crest which Mr Millett was approaching "[Mr Millett] could not see [Mr Wade's] vehicle oncoming even with its headlights on." 43 This was the first finding to be challenged by the Council. It accepted that Mr Millett did not see the headlights of Mr Wade's vehicle but the critical question was "why". According to the primary judge, it was due to the "character of the crest which [Mr Millett] was approaching". According to the Council, it was because Mr Millett was not keeping a proper lookout. After all, so it was submitted, he was not under the same difficulty as Mr Wade who was travelling towards the stationary vehicle: Mr Millett was travelling away from it. Nonetheless it may be, and it was so submitted on behalf of Mr Millett, that his vision was affected by the reflection of the headlights of the stationary vehicle in his rear vision mirror. The problem with this submission was that Mr Millett did not give evidence to support it. In other words, he did not say that his forward vision was affected by the reflection of the stationary vehicle's headlights in his rear vision mirror. 44 The primary judge also found (at Red 46N-P) that neither driver saw the other despite the fact that they both had their headlights on "because of the topography in the relevant area".

The intersection was poorly lit and "at the time both drivers saw one another it was too late to avoid impact."

This finding (at Red 46 Q-R) is not strictly accurate because Mr Millett's evidence was that he never saw Mr Wade's vehicle prior to the impact. However, I do not find this error to be of significance. 45 The primary judge then continued (at Red 47B-I): "[Mr Millett's] vehicle was in a position at the point of collision that by reason of the width of the road, if [he] was to avoid driving over the damaged section of the road on the left kerb side as he entered the intersection without the assistance of guidelines it was reasonable for him to move his vehicle towards the centre assuming he was unaware of another vehicle oncoming. Reasonably he might have expected that an oncoming vehicle would see his vehicle approaching the intersection before he saw it. Reasonably he would have expected to see the illumination of an oncoming vehicle. Unknown to him he could not because of the topography and the effect of the high beam of the parked car facing north. There is no evidence whatsoever that [Mr Millett] was distracted or not paying attention other than the inference available from the collision." 46 The finding in the second sentence of the above citation was the second finding challenged by the Council upon the basis that it was not open to his Honour on the evidence. However, even if this is so, I do not think that it is of significance. Of greater relevance is his Honour's finding that, reasonably, "he [presumably Mr Millett] would have expected to see the illumination of [Mr Wade's] oncoming vehicle". 47 The primary judge then referred to the cross-examination of Mr Millett where he said that immediately prior to the collision, he had sought to avoid what was a dangerous section on the left hand side of the roadway in circumstances where he did not know that another motor vehicle was oncoming and that he did so "without being able to fix a position that did not take the car on to the incorrect side of the road without the assistance of the guidance of centre lines." (Red 48D-E) 48 During cross-examination it had been suggested to Mr Millett that he did not need a centreline to tell him to keep to the left, to which he answered "No". However, later in his cross-examination he responded to questions from his Honour that his simple negative answer, which seemed to express agreement with the proposition in the question, was in fact intended to be a non-adoption of the proposition being put to him. The primary judge considered that even accepting Mr Millett's answer at face value, the proposition begged the question of what he believed at the relevant time and what was reasonable in all the circumstances. His Honour continued (at Red 48 M-Q): "A prudent driver acting reasonably would endeavour to keep to the left but without the aid of a centre line, particularly approaching the crest of a hill, objectively means that such a driver does not have the benefit of the assistance that such a marking provides in assuring that the vehicle remained on the left." 49 There was a deal of evidence with respect to a publication by the Roads & Traffic Authority of New South Wales (the RTA) in 1991 and to Australian Standard 174 2.2 published in 1994 relating to the provision of lines on roadways to separate traffic flow on undivided two-way roads. Essentially, the Australian Standard provided for separation line markings to be used on sealed pavements 5.5 metres or wider if, in the case of rural roads, the traffic volume was in excess of 300 vehicles. The Council submitted before the primary judge, and repeated before this Court, that firstly, Mr Schnerring's evidence was that if such separation lines were to be provided, it was necessary to provide them both north and south of the intersection; and secondly, this was not possible as the section of Second Avenue immediately to the north of the intersection was less than 5.5 metres wide having been measured by Mr Schnerring on 17 February 2002 as varying between 4.5 and 5 metres wide for a distance of approximately 40 metres. However, his Honour accepted the evidence of Mr Schnerring that the Australian Standard was a guideline only and that it was appropriate to depart from it in the present circumstances; in fact Mr Schnerring considered that to be essential. 50 In his site inspection report of 29 February 2000, Mr Schnerring had observed the poor condition of the pavement edge, the slightly staggered roadway through the intersection and the poor sight distances. Consequently he had observed southbound traffic travelling through the intersection over the centre of the road. He said: "Had a double barrier centreline been provided on Second Avenue north and south of Sixteenth Avenue, then both drivers would have had clear on-road guidance about where to place their vehicles so that a head-on conflict would be avoided. Had a double barrier centreline been provided on Second Avenue to the north and south of Sixteenth Avenue, then the crash would probably not have occurred." 51 In his second report dated 12 March 2002, based upon both the photographs taken by Mr Millett not long after the accident and his own photographs taken on 17 February 2000, Mr Schnerring opined that as observed during his inspection, the intersection was badly broken and eroded and that that led southbound drivers to travel away from the edge of the pavement and closer to the centre of the road as they negotiated the intersection. He continued: "With a short sight distance over the crest, southbound traffic could inadvertently travel into conflict with northbound vehicles." 52 Mr Schnerring then referred to the RTA's guidelines and continued: "Although an intersection is not unusual, a road alignment which provides little forward sight distance is, and requires additional 'features' to minimise driver error. At the subject location, driver error is also more likely as the poor edge definition, especially at night, leads drivers to travel away from the edge of the pavement, and close to, or over, the centre of the roadway. … … The effect of barrier lines is to keep, i.e. guide traffic to the left of the barrier line. Movements across and to the right of the barrier line for overtaking is prohibited. … Had a well maintained double barrier line been provided on the approaches, then it is very likely that both drivers would have travelled towards each other to the left of the barrier lines and that collision would have been avoided." 53 Consistent with this evidence and not unsurprisingly, the primary judge considered (at Red 56 L-O) that "[o]ne does not need to be told by Australian Standards that ordinarily barrier lines are generally necessary on roads approaching a crest for safety reasons or are a guide to the centre of the road and may keep traffic apart." 54 The primary judge then referred to the expert evidence of Mr Keramidas (retained by Mr Wade) who concurred with the opinions of Mr Schnerring as to the deficiencies in the roadway "both in terms of its very short available sight distances, the deficiencies in the pavement edge and the lack of any double white longitudinal barrier lines". Mr Keramidas, as his Honour found, was of the opinion that the road geometry at this intersection constituted a "significant hazard" with the application of barrier lines considered a "must". In common with Mr Schnerring, Mr Keramidas was of the view, using his words as quoted by the primary judge (at Red 57 W-Y): "…that a significant contributing factor in this instance is the lack of delineation or guidance provided to both drivers on approach of the area of impact, and in particular the lack of guidance offered to [Mr Millett] as he drove uphill towards the crest at the Sixteenth Avenue intersection." 55 Mr Keramidas, who was not required for cross-examination, also opined (at Blue 1/180-181) that "[t]he combination of the grade, crest, lack of any road markings, and the pavement edge defect noted earlier all combine to create a particularly dangerous road condition…. Based on the circumstances of this incident and the road geometry observed, it is the author's considered opinion that, at a very minimum, double white longitudinal lines should have been placed on both approaches to the intersection. In the absence of those markings, it is also the author's considered opinion that the road geometry and road condition have been significant contributing factors to the cause of this collision." It is to be noted that the Council called no expert evidence in response to that of Mr Schnerring and Mr Keramidas. Nor was there any dispute as to the capacity of the two experts to provide the opinions set out above. However, objection was unsuccessfully taken to the admissibility of, inter alia, those parts of the reports of those experts, which I have extracted above, but there is no appeal by the Council with respect to their admission. The primary judge's conclusions 56 The primary judge noted reliance by both Mr Millett and the Council upon the joint judgment of Gaudron, McHugh and Gummow JJ in Brodie v Singleton Shire Council (2001) 206 CLR 512 at 577-581 [150]-[162] which his Honour set out in extenso. After referring to the only evidence called by the Council, being that of its Pavement Engineer (Mr Philpott) and its Manager of Transport and Traffic Planning (Mr Tolhurst), his Honour found that specific line marking for specific areas would be relatively cheap with a fixed cost of $500 for an RTA crew to attend that particular location and additional cost of "a couple of dollars a metre" for the actual line marking. 57 An attempt was made by the Council in its submissions to the primary judge and on appeal to suggest that it would be unreasonable to require it to spend this sort of money on line marking, given that it had over 700km of roads for which it was responsible and limited access to funds provided by the RTA for the provision of line marking and signs. Accepting, as Hayne J pointed out in Brodie at 629 [313], that the Council was entitled to choose between repairing one section of road rather than another, there was simply no evidence that the line marking required in Second Avenue for a distance of 40m either side of the intersection would have unduly affected the Council's chosen priorities in the years prior to the accident and in respect of which it had, in effect, access to RTA funds. Nor was there evidence that such line marking was required for all or any significant part of the 700 km of the Council's roads. 58 In response to the Council's submissions, the primary judge held that the risk of a head-on collision at the intersection was not only reasonably foreseeable but was preventable by inexpensive measures that did not necessarily require the reconstruction of Second Avenue or any part thereof. Further, his Honour held that not only was the presence of a double or single barrier line to the north of the intersection not precluded by the width of the road for a distance of over 20 metres and for a greater distance on the southern side of the intersection, but also (at Red 70 T-X) "[t]he obvious inherent danger in the intersection, the absence of side lines both heading north and south was at its most critical 20 metres either side of the intersection. Even for a limited distance to the north [sic] of the intersection it would have assisted northbound drivers in ensuring their vehicles were placed on the correct side of the road…" 59 His Honour's conclusions with respect to the issue of liability were expressed in the following terms (at Red 74R-75P): "Having regard to the facts found above and other observations made in the course of the judgment I am satisfied that [the Council] failed to take reasonable care to prevent a source of risk to [Mr Millett] (and other road users) which gave rise to a foreseeable risk of harm which caused damage to [Mr Millett] and [Mr Wade]. The failure primarily caused the collision but there was a lesser contribution by [Mr Millett] to which I refer below. The intersection was potentially dangerous for traffic on Second and Sixteenth Avenue because of the positioning of the intersection on a crest, particularly for traffic heading in a northerly direction. Part of the risk to users had been removed by the placing of Stop signs on the Sixteenth Avenue entries. The failure I have found arose specifically and primarily by reason of the failure of [the Council] to mark separation lines on the southern and northern sides of the intersection on Second Avenue to identify for motorists the centre of the road entering the intersection. The risk of foreseeable harm was increased by the failure of [the Council] to maintain the road surface in such a way as to ensure that Second Avenue remained aligned on both sides of the intersection and such as to maintain the edges of the southern side of the intersection so as not to force or require north bound traffic to move towards the centre of the road to avoid damage or loss of control of the vehicle on an uneven surface. … The cost of marking the road with separation lines, as opposed to resurfacing it, or better still reconstructing it, was miniscule and well within [the Council's] economic capacity. The danger and inadequacies of the intersection and the roadway, given its function as a connector road in an expanding community, ought to have been patently obvious to any person employed by the Council with the responsibility of reporting upon or maintaining the road surfaces in the municipality." 60 The primary judge then turned to the question of Mr Millett's contributory negligence. After referring to the well-known decision of the High Court in Podrebersek v AIS Pty Limited (1985) 59 ALJR 492, the primary judge said (at Red 76P-77K): " Prima facie the movement of [Mr Millett's] car towards and across an imaginary centre line on the road indicates at least some degree of responsibility by [Mr Millett] for the harm to himself and suffered by [Mr Wade] in the character of property damage. Whilst [Mr Millett] held a responsibility to exercise care for the safety of himself and others on the road, in my view such failure by [Mr Millett] was primarily caused by the breach of duty of [the Council] as previously found. In my view, whilst [the Council] has established that [Mr Millett] was contributorily negligent, the conduct of [Mr Millett] was almost entirely … caused by the prevailing road condition for which [the Council] was responsible. … In this matter the situation is complicated by my finding that the absence of a centre line provided no indication to [Mr Millett] as to where the centre of the road was in a poorly lit intersection. Whilst I believe it was reasonable for [Mr Millett] to move his motor vehicle towards to the centre of the road and to cross the centre of the road in circumstances where no oncoming vehicle was anticipated, it seems to me that the extent to which [Mr Millett] crossed the centre line, whilst not precluding a collision, increased the likelihood of it. The breach of duty by [the Council] influenced considerably [Mr Millett's] conduct of his vehicle. Given the other circumstances to which I have referred, the contributory negligence of [Mr Millett] was relatively slight and thus I conclude that there should be a reduction of the verdict payable to [Mr Millett] of 10% of the total amount."

Did the Council breach its duty of care to Mr Millett by failing to mark a centre line on Second Avenue on its approach to the Sixteenth Avenue intersection? 61 Before this Court the case was argued only in terms of breach of duty: did the Council breach its duty of care by failing to mark the centreline of the road? It was thus assumed that the Council owed Mr Millett at least a generalised duty of care. However, as will appear, it would have made no difference to the outcome had the matter proceeded upon the basis of whether a particular duty of care existed as opposed to whether a generalised duty had been breached. 62 During argument and in the written submissions both parties relied heavily upon to the High Court's decision in Brodie. Relevantly, the joint judgment at 557-558 stated that a council, having statutory powers to design, construct, maintain and repair public roads within its area (see vis a vis this appeal Roads Act, 1993 ss 7(4), 7(5) and 71) was "[150] … obliged to take reasonable care that their exercise of or failure to exercise those powers does not create a foreseeable risk of harm to a class of persons (road users) which includes the plaintiff. Where the state of the roadway, whether from design, construction, works or non-repair, poses a risk to that class of persons, then, to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk. If the risk be unknown to the authority or latent and only discoverable by inspection, then to discharge this duty of care an authority having power to inspect is obliged to take reasonable steps to ascertain the existence of latent dangers which might reasonably be suspected to exist…. [151] The perception of the response by the authority calls for, to adapt the statement of Mason J in Wyong Shire Council v Shirt , a consideration of various matters; in particular, the magnitude of the risk and the degree of probability that it will occur, the expense, difficulty and inconvenience to the authority in taking the steps described above to alleviate the danger, and any other competing or conflicting responsibility or commitments of the authority. The duty does not extend to ensuring the safety of road users in all circumstances. In the application of principle, much thus will turn upon the facts and circumstances disclosed by the evidence in each particular case." 63 Having differentiated between the design and construction of the roadway on the one hand and its repair and maintenance on the other, with respect to the latter the joint judgment continued (at 579-580): "158 …An authority may have various statutory powers vested in it and would be under a duty not to … fail to use those powers to create a situation of danger which creates a reasonably foreseeable risk of injury to a user of the road. 159 The discharge of the duty involves the taking by the authority of reasonable steps to prevent there remaining a source of risk which gives rise to a foreseeable risk of harm. Such a risk of harm may arise from a failure to repair a road or its surface, from the creation of conditions during or as a result of repairs or works, from a failure to remove unsafe items in or near a road, or from the placing of items upon a road which create a danger, or the removal of items which protect against danger."

I do not understand the examples referred to in [159] above to be exhaustive. 64 The joint judgment then turned its attention to the issue of breach of duty and, in particular, focused (at 580 [160]) upon what a council was, as it were, entitled to reasonably expect from a road user to whom it owed a duty of care: "In dealing with questions of breach of duty, whilst there is to be taken into account as a 'variable factor' the results of 'inadvertence' and 'thoughtlessness', a proper starting point may be the proposition that the persons using the road will themselves take ordinary care." 65 Accordingly, when dealing with breach of duty, the court must not only weigh up the factors referred to in the Shirt calculus but also must consider such variable factors as thoughtlessness or inadvertence on the part of the plaintiff: these expressions have their source in Smith v The Broken Hill Pty Co Ltd [1957] 97 CLR 337 at 343 where Taylor J in effect equated them with what he regarded as the stronger word, "carelessness". The court may be further assisted by starting from the proposition that a road user will exercise ordinary care for his or her own safety. 66 At this point, it may assist to briefly discuss the two alternative approaches that have been adopted by the courts in determining liability for negligent conduct and whether the adoption of one approach rather than the other may lead to different outcomes. The first approach involves defining the duty of care in precise terms by reference to its scope. On this approach the duty of care of a road authority to users of the highway (drivers and passengers of motor vehicles as well as pedestrians) is said to be confined to those road users who are exercising reasonable care for their own safety to, at least, perceive and avoid obvious hazards. In reliance upon the opening sentence at 581 [163] in the joint judgment, some have assumed this to be a consequence of the decision in Brodie, at least with respect to pedestrians. 67 The second, alternative, approach is to establish whether a generalised duty of care has been breached such as, in the present context, a duty of the Council to exercise reasonable care for the safety of road users per se. In determining whether that duty has been breached, regard is had to the factors, which according to the first approach are relevant to the scope of the duty. In the present context, the question then becomes: what in the particular circumstances did reasonable care require of the Council in its response to road users (such as Mr Millett) who fail to exercise reasonable care for their own safety by perceiving and avoiding obvious dangers or risks? 68 There is disagreement in the authorities as to which is the correct approach: see, for example, Temora Shire Council v Stein [2004] NSWCA 236 at [38]; Greater Shepparton City Council v Davis [2004] VSCA 140 at [27] ff, and esp. fn 8; Boroondara City Council v Cattench [2004] VSCA 139 at [15] ff; Junkoric v Neindorf [2004] SASC 325 at [3], [17], [22] cf [43]; Byrnes v Burwood Council [2003] HCA Trans 462 where, in dismissing an application for special leave, McHugh J, with Kirby J's apparent concurrence, disagreed with the applicant's contention that a court should "exclude entirely from consideration of the existence of the duty of care owed by a highway authority the postulate of a plaintiff's obligation to take reasonable care for his or her own safety."

It is to be noted that these authorities were concerned only with a claim for damages by an injured pedestrian. As will appear, this fact is of some significance in the present case. 69 However, to require a choice between these competing approaches runs counter to a long line of authority which advocates that it would be wrong in principle to attach too much importance to the individual elements of duty of care, breach of duty and damage in the tort of negligence. In particular, it would be wrong to treat each element in isolation as if each was entirely different and independent of the others: see Home Office v Dorset Yacht Co Ltd [1970] AC 1004 at 1052; Sutherland Shire Council v Hayman (1985) 157 CLR 424 at 487; and, in particular, the detailed discussion by Ipp J, with whom Malcolm CJ and Pidgeon J agreed, in Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35 at 49-51 [52]-[65]; on appeal (2002) 211 CLR 317 at 349 [90] per McHugh J. 70 The critical question, however, is whether the adoption of one approach rather than the other is capable of resulting in different outcomes. It should be noted that in Brodie at 628 [309], Hayne J suggested that shifting the focus to breach rather than duty will inevitably shift the balance in favour of plaintiffs and against defendants.

71 Ignoring for the moment that [160] of Brodie addresses road users without distinction whereas the well-known passage in [163] speaks only to pedestrians, it ought to be, and generally will be, immaterial to the outcome of a given case whether the court approaches the matter in terms of the scope of the road authority's duty as opposed to whether a duty has been breached: Temora at [38]. What will, however, change depending upon the adopted method, is the formulation of the duty. Where the court focuses upon whether a duty has been breached, the duty needs to be stated more generally or inclusively than where the focus is upon the existence of the duty, wherein the duty will be stated more exclusively or as being more particularised. 72 Thus in the case of a pedestrian, a duty expressed in general terms would be that a road authority must take reasonable care for the safety of those who walk upon the pavements of which it has the care, control and management. Expressed at this level of generality the duty is owed to each and every pedestrian. It is broad and inclusive. In each circumstance the live issue will not be the existence of the duty, but its breach. When determining whether the road authority is in breach (that is, when the somewhat artificially compartmentalised breach stage of the enquiry is reached), the authority will be able to rely upon the expectation that a pedestrian will take reasonable care for his or her own safety and thereby perceive and avoid obvious hazards. If the hazard proves to be obvious, then the duty (whose existence is not doubted) generally, but inevitably, will not be breached. Thus as Giles JA observed in Temora at [41] "[i]n the balancing required in accordance with Wyong Shire Council v Shirt the obviousness of the risk to the careful pedestrian will not be the only consideration, although it is likely to be dominant." 73 However, this same conclusion - that there is no negligence - should also be reached if the court focuses upon whether a duty exists in the first place. Under this approach the duty will be expressed more narrowly: a duty to take reasonable care with respect only to those pedestrians who take reasonable care for their own safety by perceiving and avoiding obvious hazards. Since a failure to perceive and avoid such a hazard is a failure to take reasonable care for one's own safety by not keeping a proper lookout, the road authority will not owe a relevant duty of care to that pedestrian.

74 On both approaches the outcome should be the same in any particular case. The reason for this is that when the court approaches the issue in terms of the existence of a duty of care as opposed to its breach, the very factors which would, on the breach approach, negate a breach of duty, become the very grounds for limiting the scope of the duty such that it only applies to a particular class of pedestrians. This observation applies vice versa. In my opinion this is because, as noted in [69] above, in negligence law the alleged duty of care cannot be considered in isolation from those factors or elements which would breach the duty. Accordingly, so long as the court, whether by generalising the duty and then considering its breach, or by limiting the scope of the duty by means of at least some of the factors that would constitute its breach, is testing the alleged negligent conduct against both the supposed duty and what would constitute a breach of that duty, the same result should always follow. 75 Before returning to the facts of the present case, some further comment ought to be made concerning Brodie and Ghantous. The only common link between the cases is the abolition of the highway immunity rule. Brodie concerned the duty of a council to a road user, that is, the driver of a motor vehicle on a council road. Ghantous concerned its duty to a pedestrian on a council pavement. Of particular relevance to this appeal are paragraphs [160] and [163] in the joint judgment.

76 Paragraph 163 in the joint judgment in Brodie concerned the duty owed by a council to a pedestrian. For convenience I will discuss the paragraph in terms of breach of duty even though it is expressed, at least in the first sentence of [163], in terms of the existence and scope of the duty. When considering breach of the duty owed by a council to a pedestrian, the council is entitled to assume that the pedestrian will take reasonable care for his or her own safety by doing such things as keeping a proper lookout. As such, there will (other factors depending) be no breach where a pedestrian becomes unstuck due to an obvious hazard such as a difference in the height of abutting concrete pavement slabs: the council can assume that the pedestrian will perceive and avoid such a hazard.

77 In Clarke v Coleambally Ski Club Inc [2004] NSWCA 376 at [26] -[31] Ipp JA, with whom Beazley JA agreed, explained the reason for the law's insistence that a pedestrian avoid such dangers. His Honour noted that it was reasonable to place this burden on a pedestrian who is to be regarded as being in a good position to avoid such dangers. Policy reasons such as economic expense and aesthetic disruption were also said to have a role to play. Accordingly, in the case of a pedestrian the law of negligence, for reasons including those stated above, deems it reasonable for a pedestrian to pay due regard to obvious dangers. And reasonableness, after all, is the touchstone of the law of negligence.

78 On the other hand, [160] of Brodie, and those paragraphs leading up to it, concerned the duty a council owes to road users. They established that a council cannot always expect a road user to avoid obvious risks or dangers in the sense that it need take no steps to remedy the defects which give rise to those risks or dangers. For instance, the council in Joslyn v Berryman (2003) 214 CLR 552 was found negligent in its failure to indicate by adequate warning signs the upcoming curve in a road which had been constructed otherwise than in accordance with proper standards. Accordingly, what the law requires of a council to avoid a breach of its duty to a road user will, depending on the particular circumstances, often be stricter than what it requires of a council to avoid a breach of its duty to a pedestrian in the same circumstances. 79 In Clarke, Ipp JA expressed the juristic basis for the difference by stating that in some situations the law considers it reasonable for a potential defendant to pay due regard to the fact that a plaintiff will often take, negligently, obvious risks. He said: "26. The duty of care [of road users] to [other] road users extends to exercising care in respect of careless and inattentive drivers and pedestrians; even those whose faculties are impaired by alcohol: March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 (at 520 per Deane J). Road users are expected to have regard to the fact that other road users often, negligently, take obvious risks to their own detriment. 27. The law also holds that employers must take reasonable care for workers and, in doing so, must expect that some workers may be careless of their own safety even by taking obvious risks. 28. These are illustrations of the general proposition that in some circumstances the law of negligence considers it to be reasonable to pay due regard to the possible negligent conduct of others, even in respect of obvious risks. There are other similar examples. 29. As a general rule, however, walking along footpaths in the open air and participating in recreational activities in large areas of open land and water (such as national parks or reserves) fall into a different factual category. Two reasons for this are the following. 30. Firstly, while it is by no means unknown for participants in such activities to take obvious risks, it is common knowledge that such behaviour does not occur with anything like the frequency as does the lack of care for their own safety that is displayed by persons such as road users and workers in the employment context. 31. Secondly, there are usually serious practical difficulties (that may involve the incurring of considerable expense - often required to be borne, at least indirectly, by the general community) and environmental and aesthetic problems in taking effective steps to make areas such as footpaths, national parks, reserves and other areas of open space safe for persons who do not take proper care for themselves." 80 As I have noted, the fundamental element underpinning any curial determination of negligence is that of reasonableness. In some circumstances the law of negligence considers it to be reasonable for a defendant to pay due regard to the possible negligent conduct of others, even in respect of obvious risks. This translates into a duty to exercise due care for the safety of others even when they act without due regard for their own safety and, therefore, negligently in regard to such risks. As observed by Ipp JA in the passages from Clarke which I have recorded above, well-known examples of this category of circumstances are drivers of motor vehicles (in regard to other road users) and employers (in regard to workers). 81 The explanation for this is that, for economic and social (policy) reasons, the law requires drivers of motor vehicles and employers to take heed of the fact that on a daily basis, other road users and workers fail to exercise care for their own safety (including with regard to obvious risks). The law considers that it is reasonable for a duty of care to be imposed on motor vehicle drivers and employers notwithstanding the negligent conduct of those persons. 82 There is also another category of circumstances where, as noted by Ipp JA in [29] of Clarke, the law recognises that it is reasonable for a defendant to assume that its conduct may be governed by the assumption that the plaintiff will take reasonable care for his or her own safety. Cases that fall under this category include those involving adult persons who walk along footpaths in broad daylight in fine weather or who participate in risky recreational activities in large areas of open land and water (such as national parks or reserves or the ocean): Romeo v Conservation Commission (NT) (1998) 192 CLR 431 would be an example of such a case. 83 As Ipp JA observed in Clarke at [33], the foregoing considerations explain "the view taken of the limited scope of the duty of care owed by a local authority to a person walking along a footpath (see Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council ) and to visitors to national parks (see Secretary to the Department of Natural Resources and Energy v Harper (2000) 1 VR 133). It also explains the limited scope of the duty of care that is the basis of the diving cases such as Prast v Town of Cottesloe (2000) 22 WAR 474 and Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council ."

84 In Ghantous and Brodie the joint judgment does not always clearly distinguish between the determination of a duty of care and the breach of a duty. At 579-580 [159] and [160], the discussion focuses on breach of duty. At [163] the discussion, at least initially, focuses on the recognition of the existence of a duty. But, I respectfully suggest, whether the approach adopted focuses on the breach of a duty does not matter, for generally speaking, the result will always be the same. 85 The foregoing appears to be accepted in the joint judgment and is illustrated by the opening sentence of [163] where their Honours say: "The formulation of the duty in terms which require that a road be safe not in all circumstances but for users exercising reasonable care for their own safety is even more important where, as in Ghantous , the plaintiff was a pedestrian." 86 The above passage is to be constructed with the formulation of the duty in [150] (extracted in [62] above) and its breach as discussed by their Honours in [151]. There is nothing in that formulation which suggests that it only extends to road users exercising reasonable care for their own safety. That such a concept is relevant only to breach is made clear by what their Honours say in [160]: see [64] above. This is further confirmed by their Honours' apparent adoption (at 539 [54]) of the approach of Mason, Brennan and Deane JJ, in Webb v South Australia (1982) 56 ALJR 912 at 913. It is thus apparent that the reference in the joint judgment in Brodie at 540 [54] to "that treatment" (in Webb) of "the content of the duty of care", being consistent with what is known as the Shirt calculus, related to their Honours' use of the expression "context of the duty" in the sense of the standard of care which the duty reasonably required of the defendant in order to avoid its breach

87 However, in the case of pedestrians who walk along footpaths that are uneven, the joint judgment in Ghantous holds that the road authority or controller of the footpath may accept that the person using the footpath will take ordinary care for his or her own safety. Thus, if one accepts that there is a generalised duty on a road authority to take reasonable care for the safety of persons who walk upon its footpath, that duty will not be breached where a pedestrian ignores the obvious risk of a difference in levels in the footpath and falls. That is because it will be reasonable for the road authority to assume that the pedestrian will perceive and avoid such a risk and it will not be necessary for the road authority to remove the unevenness. As Heydon JA, with whom Handley and Sheller JJA agreed, pointed out in Richmond Valley Council v Standing (2002) 127 LGERA 237 at 256-257 [59], such a condition of the footpath is "typical of those commonly to be encountered in daily life "

and, therefore, do not require inspection by the road authority to identify them.

88 On the other hand, if one accepts that the duty is not a generalised duty but only a duty to take care in regard to those persons who themselves take care for their own safety, no duty of care in regard to the particular pedestrian will be recognised. The result will be the same. 89 In the present case the distinction between Brodie and Ghantous is critical. Ghantous was a case involving a pedestrian and is covered by what is said in [163] of that case. Brodie involved a truck driven over a wooden bridge which collapsed as the truck crossed it. Brodie (and not Ghantous) explains the decision in Joslyn to which I referred in [78) above. Neither was a case of a pedestrian. In Joslyn, a duty of care was imposed on the road authority. That duty fell under the category of circumstances referred to in [80] above. It embraces the obligation to exercise reasonable care notwithstanding the careless conduct of others.

90 There is thus a fundamental difference between the case of a pedestrian who falls on obviously uneven ground and an intoxicated driver who drives too fast and is injured partly by reason of too sharp a curve in the road, coupled with the absence of warning signs. As has been explained, in the first case, all things being equal, the road authority can expect the pedestrian to exercise reasonable care for him or herself to perceive and avoid obvious hazards. In the second case, the road authority must take reasonable care for the safety of persons who drive too fast along the road constructed by it, even though those drivers are not taking care for their own safety. The difference is based on what is reasonable in the circumstances. 91 The fact that the road authorities may, in some circumstances such where the road user is drunk or speeding, be liable raises the issue of contributory negligence. In the first category of case (the pedestrian who falls on the uneven sidewalk) there will never be an issue of contributory negligence, irrespective of whether one deals with the case by reference to the existence of a duty of care or by reference to the breach of a duty of care. If the case is approached on the limited scope of duty basis, the answer will be: no duty and, therefore, no negligence. If the case is approached on the generalised duty of care basis, the duty will be recognised but there will be no breach, hence no negligence. Thus on neither approach does the issue of contributing negligence arise.

92 In the second category of case, (the driver who drives too fast negotiating a curve constructed so that it is dangerous to traffic in the absence of a warning sign), there will inevitably be an issue of contributory negligence. Accordingly, in the case where the road authority fails adequately to maintain a roadway, allows it to become broken up and dangerous, and fails to provide adequate warning signs or, as in the present case, a marked centreline approaching a blind crest at an intersection, and the driver of a vehicle upon that road is injured by reason of the condition of the road, if the driver was careless of his own safety, contributory negligence must inevitably be found. On the other hand, that finding does not and cannot of itself negate a finding of breach of the road authority's duty of care to that driver. They are not mutually exclusive. There is nothing in Brodie (the road user case) that prevents this. Ghantous (the pedestrian case) is not relevant. 93 I return now to the facts of the present case. Second Avenue upon which Mr Millett was travelling was narrow. The edge of it crumbled away into rubble. There was no marked centreline on the approach to what was a blind crest. In determining whether the Council's duty of care has been breached, in my opinion it would be proper to conclude that the risk of a road user such as Mr Millett straying inadvertently or as a consequence of misjudgement or even carelessly at night onto his incorrect side of a six metre wide roadway in the absence, and therefore without the guidance of, a marked centreline when reasonably attempting to avoid the broken western edge of the roadway, was an occurrence which was highly probable and likely to result in a head-on collision with potentially catastrophic consequences. 94 Even if one adopted the scope of duty approach, the outcome would be the same. Mr Millett's inadvertence or carelessness in crossing the imaginary centreline would not have moved him outside the scope of the duty of care of a road authority to a road user. As such the court would have had to consider whether the duty had been breached and would have come to the same result. 95 It is appropriate at this point to refer to the judgment of Sheller JA which I have had the benefit of reading in draft. The "problem" to which his Honour draws attention in [13] above relates to a perceived tension between the concept of breach of duty on the one hand and that of contributory negligence on the other and their possible mutual exclusivity. Thus, it might be argued, and his Honour appears to have accepted, that where a plaintiff is guilty of contributory negligence in the sense that, as a road user, he or she has failed to exercise reasonable care for his or her own safety, the defendant road authority will not be in breach of its duty of care to that plaintiff as that duty only extends to making the roadway safe for users who do exercise such care. 96 The inevitable result of Sheller JA's conclusion at [16] above is that where a plaintiff in the position of Mr Millett in the present case is guilty of contributory negligence, in that he has not taken ordinary and reasonable care for his own safety, the defendant in the position of the Council cannot be found to have breached its duty of care to him. The reason for this is that if the position were otherwise, the Council would be held liable for a breach of duty to a person who sustained injury because, in failing to exercise reasonable care for his own safety, he has failed to avoid that injury. The foregoing is the effect of what Brett M R said in Heaven v Pender cited by Griffith CJ in Miller v McKeon and extracted by Sheller JA in [11] above. But as his Honour notes, this statement of the law was made at a time when, at common law, contributory negligence was a complete defence to an action for negligence, a position which continued until 1945 in England and 1965 in New South Wales. 97 With unfeigned respect, I am unable to agree with his Honour's conclusion. I shall attempt to state my reasons for so opining. This will require some expansion upon the remarks of Ipp JA in Clarke referred to in [79] above. 98 As already observed, the often perceived effect of [163] of the joint judgment in Ghantous is that a council only has a duty to make a footpath safe for pedestrians exercising reasonable care for their own safety by perceiving and avoiding obvious hazards. (I do not stay to consider whether that perception is justified - it probably is not if it is being understood as providing a limit upon the application of the Shirt calculus to the determination of whether the duty has been breached). 99 On the other hand in Brodie at 580 [160], their Honour's reference to the proposition that "persons using the road will themselves take ordinary care" was stated in terms of a possible "starting point" in the determination of breach - not as an end point as it may be with respect to pedestrians. There is no inconsistency, in my opinion, between that reference in Brodie and, for instance, the observation of Mason P, with whom Hodgson JA and myself agreed, in Francis v Lewis [2003] NSWCA 152 at [40] that: "[t]he duty [of care] is not confined to one owed to those who are careful for their own safety, but it is relevant to take into account that plaintiffs are themselves expected to act reasonably and take care for their own safety when determining what is reasonable." 100 Ipp JA referred in [26] of Clarke to March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 at 520, where Deane J observed (omitting citations): "It is clear that the second respondent was in a relationship of proximity with other users of the road on which he left the truck. That relationship gave rise to a duty to take reasonable care to avoid foreseeable injury to such other road users. That relationship and that duty of care were not confined to persons who were careful and sober but extended to all foreseeable users of the road, including bad and inattentive drivers and those whose faculties were impaired either naturally or by reason of the effect of alcohol. In that regard, as was pointed out in Bus v Sydney County Council 'the law has progressed' in recent years 'by placing an increased emphasis upon the relevance of the possibility of negligence or inadvertence on the part of the person to whom a duty of care is owed'. The progression of the law in that regard can, to a significant extent, be traced to the effect of apportionment legislation which precludes the approach that causative negligence on the part of a plaintiff forecloses the answer to any question of liability on the part of the defendant. Thus, for example, an inattentive driver of a slowly travelling car has been held to be liable in damages, under apportionment legislation, for breach of a duty of care owed to a pedestrian who, dressed in a dark overcoat on a rainy night, sought to cross the road at a 'highly unlikely' spot without any real lookout for oncoming traffic (see Teubner v Humble )." 101 At 521 his Honour continued: "Once it is accepted that the relevant duty of care in the present case was to all users of the road, including the inattentive and those whose faculties were impaired by alcohol, it seems to me to be apparent that the appeal must succeed. In the context of apportionment legislation, the appellant's own contributory negligence did not preclude him from recovering damages for the respondents' negligence. Nor did the appellant's own negligence take him outside the classes of person to whom the respondents owed a duty of care which the second respondent breached when he parked and left the truck in the centre of the road. To the contrary, the appellant's intoxication and associated carelessness took him within the class of inattentive drivers to whom the truck represented the greatest hazard. It is true that the situation which resulted from the leaving of the truck in the middle of the roadway was a static one and that the accident would not have occurred were it not for the negligent driving of the appellant. The case is not, however, one in which an injured plaintiff became aware of the danger created by a static situation and consciously decided to take the risk. 102 I interpolate that the present case is one where the absence of a marked centreline created a static situation and that the expert evidence accepted by the primary judge was that the accident would not have occurred were it not for Mr Millett straying onto his incorrect side of the roadway by failing to exercise reasonable care for his own safety. Clearly it is not a case where he consciously did so notwithstanding the submission of the appellant to the contrary: see [132] below.

103 The nature of the duty of care owed to the person who fails to exercise reasonable care for his or her own safety was referred to in the joint judgment in Nagle v Rottnest Island Authority (1993) 177 CLR 423, the facts of which are well known. After deferring to the probability that persons intending to swim in the Basin might dive into the water without ascertaining whether it was safe to do so, their Honours observed (at [31]): "It is now well established that a person who owes a duty of care to others must take account of the possibility that one or more of the persons to whom the duty is owed might fail to take proper care for his or her own safety." 104 Their Honours then proceeded to consider whether there was a breach of that duty and held that there was. It is to be noted that the action was then remitted to the court below to determine the outstanding issues of contributory negligence.

105 Although in the context of the relationship between employer and employee, as Mason P, with whom Beazley and Santow JJA agreed, noted in Polley v Maitland Benevolent Society [2004] NSWCA 323 at [15], it "is well established that in discharging its duty to take reasonable care to avoid injury to its employee, an employer is bound to have regard to any risk of injury that may occur by reason of an employee's inadvertence, inattention or misjudgement in performing allotted tasks." 106 As the President in effect observed by way of reference to the joint judgment in McLean v Tedman (1984) 155 CLR 306 at 315, that inattention or risk taking by the employee becomes relevant when considering the issue of contributory negligence. 107 As the present case is a road user (or Brodie) case and not a pedestrian (or Ghantous) case, the Council might reasonably have foreseen that road users such as Mr Millett, when approaching the blind crest on Second Avenue to the intersection, might, whilst avoiding the left hand edge of the roadway, nevertheless cross the imaginary centre line onto their incorrect side of the roadway. Furthermore, it was reasonably foreseeable that without the guidance of a marked centreline, there was a substantially greater risk that that imaginary line would be crossed as a consequence of some misjudgement or inattention or even carelessness on Mr Millett's part. This risk was foreseeable whether or not the road user was exercising reasonable care for his own safety. 108 In other words, it may be accepted for present purposes that it was obvious that the absence of a marked centreline was hazardous in that a road user, unless he or she exercised reasonable care, might misjudge the position of the centre of the roadway and thus stray onto his or her incorrect side of the road. But it was that very absence of a marked centre line combined with a relatively narrow carriageway with a severely broken edge which it was reasonable to avoid, that made it more problematic and difficult for a road user such as Mr Millett to keep to his correct side of the roadway irrespective of whether or not he exercised reasonable care for his own safety. 109 Thus the Council's duty was in my opinion breached because it knew or ought to have known that a road user approaching the crest and particularly one who was not keeping a proper lookout or who was travelling too fast in the circumstances, might misjudge the position of the imaginary centreline. If the position be otherwise then the Council would never be liable to the driver of a motor vehicle approaching the crest in Second Avenue at the intersection who strayed over the imaginary centreline although it may be liable to a passenger including one who is guilty of contributory negligence by, for instance, failing to wear his or her seatbelt. 110 In my respectful opinion, the difference between Sheller JA and myself is this. His Honour has in [16] above applied to what is a road user (driver) case the principles formulated in the joint judgment in Ghantous at 581 [163] with respect to pedestrians. Accordingly, as Mr Millett was guilty of contributory negligence in that he failed to take reasonable care for his own safety, the Council could not be held in breach of a duty of care to him. 111 But as I have attempted to demonstrate, there is a difference at least at the breach of duty stage of the inquiry between what the law requires of a road authority in exercising reasonable care with respect to a pedestrian and what it requires in exercising such care with respect to a road user/driver. The law regards it as reasonable in the former case for the authority to expect an adult pedestrian in broad daylight to exercise ordinary care for his or her own safety to perceive and avoid obvious hazards. The law regards it as reasonable in the latter case for the authority to remedy a defective roadway even where the road user fails to exercise ordinary care for his or her own safety. This is because the law recognises that drivers of motor vehicles, like employers, fail on a daily basis to exercise care for their own safety. For economic and social (policy) reasons, the law therefore requires road authorities, like employers, to take heed of the conduct of road users and, therefore, to exercise reasonable care to provide a roadway which will at worst reduce, and at best eliminate, the injurious consequences of that conduct. 112 In the present case, the exercise of that care required, as being effective to avoid the accident that occurred, the provision by the Council (at little cost) of a marked centreline on Second Avenue on its approach to what the Council knew to be a blind crest. Its failure to do so constituted a breach of its duty of care. 113 In the foregoing circumstances, unlike Sheller JA, I do not consider that Brodie or Ghantous dictates that a finding of contributory negligence on the part of Mr Millett negatives a breach of duty on the part of the Council. Accordingly, I am unable to agree with Sheller JA that my finding of contributory negligence on the part of Mr Millett in the present case of itself dictates that the Council cannot be held liable for breach of its duty of care to him. As I observed in [92] above, the two are not mutually exclusive at least in the case of road users other than pedestrians. 114 I return now to the Council's further submissions. It was contended by the Council that it either owed no duty of care to Mr Millett or was not in breach of such a duty because the collision was due solely to Mr Millett's failure to exercise reasonable care for his own safety in that he veered too far to the right and crossed over an imaginary centre line of the roadway. Furthermore, it was submitted that contrary to the finding of the primary judge, Mr Millett, had he been keeping a proper lookout, should have seen the lights of Mr Wade's vehicle in time to enable him to take evasive action. 115 The primary judge found, and it is not disputed, that as Mr Millett approached the crest he moved his vehicle to the right away from the left hand broken edge of the roadway to avoid that section which stood proud of the gravel verge or shoulder by some inches. There was nothing unreasonable in Mr Millett, in these circumstances, wishing to ensure that the nearside wheels of his vehicle were clear of the broken edge of the pavement of the roadway. However, it is apparent that he misjudged the imaginary centreline of the roadway and strayed approximately 500 mm across that line. 116 In response, the Council submitted firstly, that there was no reason for Mr Millett to stray to the right as far as he did given that at or about the location in question his half of the roadway was not less than 3 metres wide whereas his vehicle was only 1.9 metres wide. Therefore, so it was asserted, he had at least 1 metre within which to manoeuvre his vehicle without straying over the imaginary centre line. 117 It is true that Mr Millett was aware of the fact that there was no marked centre line and that he was approaching a blind crest. I can also accept that he had at least a rough idea of the width of his vehicle. Nonetheless, I do not consider that it is appropriate to approach the question of whether Mr Millett exercised reasonable care for his own safety upon the basis of mathematical calculations relating to the width of the roadway and the width of his vehicle in the manner contended for by the Council. This approach may have been more appropriate had the centre line of the roadway been marked. But it was dark and Mr Millett was required to assess the imaginary centre line as best he could. It is apparent that he misjudged it. 118 Secondly, it was submitted that the fact that Mr Millett never saw Mr Wade's vehicle before the collision and, in particular, never even saw the glare from its headlights, could only be explained by a finding that Mr Millett was not keeping a proper lookout. The primary judge explained Mr Millett's lack of observation of Mr Wade's headlights by reference to "the character of the crest which [Mr Millett] was approaching". I do not find this explanation entirely satisfactory. No doubt the existence of the crest and, more particularly, the relatively steep incline approaching it (a gradient of some 12%), was a significantly contributing factor to Mr Millett's failure to observe Mr Wade's headlights. One is tempted by virtue of one's own perceptions and experience to conclude that at least immediately prior to the collision Mr Millett must have seen, had he been looking, Mr Wade's headlights. He said that he did not and the primary judge accepted that evidence. However, as a matter of one's common experience, it is difficult to accept. 119 Nonetheless, in my opinion there are dangers in declining to accept the primary judge's findings on this issue based on one's perceived experience. In the absence of evidence, perhaps of an expert nature, which sought to re-enact what occurred on the night in question in order to establish the precise point when a vehicle travelling north towards the crest would be able to observe the headlights on low beam of an oncoming vehicle, it would be indulging in speculation to reject the primary judge's finding on this issue. The particular topography, road geometry, height of the headlights of Mr Wade's vehicle above the roadway and the precise angle of those lights when on low beam, would all play a part in determining the point on Mr Millett's approach to the crest at which he ought to have realised that there was an oncoming vehicle. 120 Even if Mr Millett ought to have observed Mr Wade's headlights, it is apparent that firstly, at the time he ought to have initially observed them, he was in all probability partially on the incorrect side of the road and, secondly, he would have observed them suddenly coming out of the darkness a split second before the collision and in circumstances in which, in all probability, he would have been unable to react in time to avoid the collision. 121 Furthermore, the primary judge found that Mr Wade only saw Mr Millett's headlights immediately before the collision but was unable to avoid it. It is true that his Honour found that at least one reason for that was because the headlights of Mr Millett's vehicle were absorbed in the illumination from the high beam of the stationary vehicle, but it should be remembered that that vehicle was over 100 metres from the crest. Accordingly, even if Mr Millett had been keeping a proper lookout, in my opinion he would not have observed the illumination from the headlights of Mr Wade's vehicle in time to enable him to take evasive action to avoid the collision. 122 The primary judge found (at Red 47 H) that there was no evidence whatsoever that Mr Millett was not paying attention other than the inference available from the collision itself. As I have indicated, apart from the undoubted fact that he strayed onto his incorrect side of the roadway, the only other basis upon which it could be suggested that he was not paying attention was his failure immediately prior to the collision to observe the illumination from the headlights of Mr Wade's vehicle. In my opinion, the probabilities are that in the split second when, according to the Council's submissions, he ought to have observed those headlights, he was distracted in circumstances which could only fairly be described as a moment of inadvertence. 123 I therefore detect no error in the primary judge's finding that the Council was in breach of its duty of care to Mr Millett notwithstanding that he did not observe any illumination from the headlights of Mr Wade's vehicle immediately prior to the collision. 124 As I have endeavoured to explain in some detail above, a road user's failure to take reasonable care for his or her own safety generally or by perceiving and avoiding obvious hazards is particularly relevant to the issue of contributory negligence and although relevant, is not, as it generally is in the case of a pedestrian, determinative on the issue of breach of the road authority's duty of care. In the present case, and contrary to the Council's submission, it cannot be said that the collision was solely due to the fault of Mr Millett. The Council's failure to provide a marked centreline on Second Avenue on its approach to the blind crest at the intersection was a materially contributing cause to Mr Millett straying across the imaginary centreline onto his incorrect side of the road. With that in mind, I now turn to the other submissions advanced by the Council in denial of any breach of duty on its part. 125 The Council submitted that in view of the accident history of the intersection as known to the Council (being confined to the RTA's statistics which did not reveal any head-on collisions similar to the present case), there was therefore no evidence that the Council knew of the risk of head-on collisions at or near the intersection and consequently it had no obligation to ascertain whether such a risk existed. Reliance was placed upon the following passage from the joint judgment in Brodie (at 582 [165]): "Where the danger could not reasonably be suspected to exist, or could not be found except by taking unreasonable measures, generally there will be no breach of duty by the authority. On the other hand, there will be a breach of duty where an authority fails to take reasonable steps to inspect for such dangers as reasonably might be expected or known to arise, or of which the authority has been informed or made aware, and, if they are found, fails to take reasonable steps to correct them." 126 It was thus submitted that as the Council had not been informed or made aware of any relevant accidents relating to the intersection (it had erected "Stop" signs at the intersection in 1991 but only on Sixteenth Avenue), there was no breach of duty by the Council in failing to take reasonable steps to inspect the intersection for the purpose of determining whether it was dangerous to road users in the absence of a marked centre line to the north and south of the intersection on Second Avenue. 127 In my opinion, this submission should be rejected. One can accept for present purposes that the Council had not been informed or made aware of any complaints with respect to the intersection in terms of its potential for a head-on collision because of the crest on Second Avenue. However, the passage from the joint judgment in Brodie states that it is a breach of duty for a road authority to fail to take reasonable steps to inspect for "such dangers as reasonably might be expected … to arise". In fact the primary judge found that the Council had maintenance staff who had repaired the western edge of Second Avenue immediately to the south side of the intersection and there was evidence from local residents, including Mr Wade, of numerous repairs carried out to this section of Second Avenue which did not last for an extended period of time (Black 2/279-280). 128 Furthermore, as his Honour found, and Mr Philpott acknowledged, the Council's maintenance staff had responsibility for notifying safety matters to the Council if they constituted a danger. However, and more importantly, Mr Schnerring and Mr Keramidas were of the opinion that the road geometry at the intersection constituted a "significant hazard" and, as his Honour pointedly observed (at Red 66 O): "Even the untrained eye could detect some deficiencies of this intersection". 129 Finally, his Honour in my opinion quite reasonably observed (at Red 56 M-O) that: "[o]ne does not need to be told by Australian Standards that ordinarily barrier lines are generally necessary on roads approaching a crest for safety reasons or are a guide to the centre of the road and may keep traffic apart". 130 In my opinion, this observation applies a fortiori in respect of traffic approaching the intersection in a northerly direction where the crest is blind. Although in some cases a history of few or no accidents might justify a council in reasonably declining to take measures to avoid the foreseeable risk of injury to road users (cf Brito v Fairfield Council (2000) 110 LGERA 44 at 51([34]-[35]), the lack of RTA statistics regarding head on collisions at the intersection did not render reasonable the failure of the Council in the present case to take the obvious step of marking the centre line of the roadway for some 40 metres or so on either side of the intersection to provide specific guidance to road users in order to avoid the very thing that happened in the present case, namely, what I regard as a misjudgement on the part of Mr Millett concerning the imaginary centre line which he was attempting to comply with and which he believed he had successfully observed. In other words, the geometry of the roadway without a marked centreline on Second Avenue on either side of the intersection was such that the present collision was an "accident waiting to happen". 131 It follows that in terms of the Shirt calculus, the magnitude of the risk of serious injury from a head on collision was high as was the degree of probability that such a collision would occur. 132 It was further submitted by the Council that, given Mr Millett's knowledge of the intersection and that it was a blind crest, he had deliberately manoeuvred his motor vehicle so as to cross onto his incorrect side of the roadway and thus the collision occurred because of his reckless conduct in so doing: cf Brito at 48 [17]. Furthermore, it was contended that Mr Millett was travelling at too great a speed and should have slowed down as he approached the crest. 133 In my opinion there is no substance in the first of these submissions. Firstly, unlike the situation in Brito who was found to have acted recklessly, there is no evidentiary basis to suggest that of Mr Millett. Secondly, his Honour properly rejected the submission that Mr Millett had deliberately manoeuvred his motor vehicle so as to cross onto his incorrect side of the imaginary centre line. Mr Millett's evidence was that he always believed that he was on his correct side of the roadway and his Honour accepted that evidence. Accordingly, it is apparent that Mr Millett inadvertently drifted onto his wrong side of the roadway but not as a consequence of any deliberate conduct on his part. 134 So far as his speed was concerned, his Honour specifically found that Mr Millett was not exceeding the speed limit nor otherwise driving at an unsafe speed in the circumstances. Although he was approaching a blind crest he was aware that he was in no potential danger from traffic in Sixteenth Avenue due the "Stop" signs. Furthermore, he did not see Mr Wade's vehicle at any time. As far as he was concerned, there was no oncoming vehicle. But, most importantly, and as I have already observed, he at all times held the bona fide belief that he was on his correct side of the imaginary centre line. However, as he repeated on a number of occasions in his cross-examination, there was no centre line on the roadway to guide him so that he (Black 160 U-W) "drove up that hill to the best of what I thought was slightly west of the edge of the bitumen on the left-hand side of the road" 135 Again, at Black 1/112 X-Z, when asked to agree with the proposition that because it was dangerous for him to keep to the left as he approached the crest due to the broken nature of the left hand side of the roadway, Mr Millett responded: "No, I do not. I believe that I drove up that bitumen on the edge of the new seal of the road, slightly to the right of the broken bitumen from the top part of the new section of bitumen still being on the left hand side of possibly an imaginary centre line." 136 Accordingly, in my opinion it was inherent in the geometry of this section of Second Avenue that, in the absence of a marked centre line to the north and south of the intersection, the danger of a full or offset head-on collision at the crest of the roadway was one that reasonably might be expected to arise. 137 Nevertheless, on the question of Mr Millett's speed, it seems to me that in the circumstances he ought to have slowed down as he approached the crest. But his failure to do so, although relevant to his contributory negligence, does not relevantly bear upon the issue with respect to the Council's breach of its duty of care in failing to provide a marked centreline upon the roadway. 138 It follows from the foregoing discussion that the primary judge was correct to hold that the Council was in breach of its duty of care to Mr Millett by failing to mark a centre line on Second Avenue on its approach to the intersection.

Causation 139 Finally, the Council submitted that the evidence did not support a finding that Mr Millett's driving would not have been altered by the presence of a single or double centre line marking the roadway leading up to the crest at the intersection. In this respect, it was correctly submitted that Mr Millett had not been asked whether, had a separation line been marked on the road, he would have observed it. Accordingly, so it was contended, Mr Millett had failed to establish causation. Reliance was placed upon what I said in Nambucca Shire Council v Connor [2004] NSWCA 13 at [20]. 140 Nambucca was a failure to warn case. It is true that the evidence must be such that there is a sufficient closeness between the breach of duty and the damage suffered to raise a prima facie case of causal connection. In the present case, it is clear in my opinion that such evidence is available. Firstly, as Mr Millett submitted, there was Mr Schnerring's evidence to which I have referred that at least with respect to the drivers of motor vehicles proceeding through the intersection in a southerly direction, there was a tendency for them to stray over the imaginary centre line. Secondly, there was the evidence of Mr Millett to which I have referred in which he said on a number of occasions that he believed that at all times he was on his correct side of the roadway but that there was no marked centre line: clearly a reference to the fact that there was no marked line to guide him as to the precise location of the centre of the road. Thirdly, if there had been a marked unbroken centre line, it would be an offence to cross it. There is no suggestion that Mr Millett was a person who did not observe his legal obligations when driving his motor vehicle. Fourthly, and this perhaps overlaps with the second point above, Mr Millett made it clear that he believed that he was on his correct side of the roadway and, inferentially, that it was always his intent to remain on his correct side of the roadway. 141 In light of the foregoing factors, there is no reason why it was not open to his Honour to infer that, had the centre line been marked, Mr Millett would have observed it. In these circumstances, the expert evidence clearly establishes (and it was unchallenged) that in all probability the collision would have been avoided had there been a marked centre line on the roadway to the south of the intersection. 142 Finally, it may be noted that in answer to a question suggesting that it is up to the particular motorist as to whether a marked centre line will be served and so be effective in keeping the traffic apart, Mr Schnerring responded (at Black 2/405 G-F): "Well the driver could voluntarily choose to drive contrary to the line marking but from studies it shows that drivers at least if the line marking is good then they know where on the road they should place their vehicles so the effect generally follows the intention." 143 Accordingly, in my opinion the Council's challenge to the primary judge's finding on causation fails.

Contributory negligence 144 The primary judge found that Mr Millett was guilty of contributory negligence and reduced the amount of his damages by 10%. The relevant principles applicable to an apportionment of responsibility as between plaintiff and defendant are well known: see Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492 at 494. What is required is the comparison of both culpability, i.e. the degree of departure from the standard for care of the reasonable person, and of the relevant importance of the acts or omissions of the parties in causing the damage. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. 145 The relevant principles with respect to the interference by this Court in a primary judge's apportionment of responsibility were recently restated by this Court in Berryman v Joslyn; Wentworth Shire Council v Joslyn [2004] NSWCA 121 at [20]-[25]. Those passages emphasised that the findings of the trial judge with respect to apportionment of responsibility were not lightly to be disturbed on appeal. However, if error be shown, whether of law or fact, an appellate court is authorised to intervene. Furthermore, it can be inferred that, upon the facts, if the result reached by the trial judge is unreasonable or plainly unjust in the sense in which those expressions are used in House v The King (1936) 55 CLR 499, then intervention is justified. 146 In the present case the primary judge considered that it was reasonable for Mr Millett to move his vehicle towards the centre of the roadway and to cross the centre of the road in circumstances where no oncoming vehicle was anticipated. Further, his Honour considered that his negligence was "relatively slight" upon the basis that the reason why he moved to the right was due to the poor condition of the edge of the roadway and that he crossed the imaginary centre line due to the failure of the Council to mark that line. 147 However, in my opinion, his Honour failed to take into account and give proper weight to the fact that Mr Millett recognised (at Black 1/167 R-F) that there was a possibility of an oncoming motor vehicle which was obscured by the crest and that, if necessary, he should have slowed down so as to ensure that he was as far to the left of the imaginary centre line as possible without running onto the verge: cf clause 65 of the Motor Traffic Regulations 1935, which obliges the driver of a motor vehicle to keep the vehicle as close as practicable to the left boundary of the carriageway. 148 In the foregoing circumstances, to find that Mr Millett was only 10% responsible for his injuries was, with respect, unreasonable. Accordingly, error has been shown. 149 It thus becomes necessary to reassess the extent of Mr Millett's responsibility for his inquiries. That exercise requires consideration of what is "just and equitable" between the parties. As I have said, the principles stated by the High Court in Podrebersek require a comparison both of culpability and the relative importance of the acts of the parties in causing the relevant injuries. 150 At the end of the day, it is apparent that the collision would not have occurred had Mr Millett proceeded towards the intersection keeping as far to the left as was practicable. There is no doubt that this would have been an easier task for him to accomplish had he been aware of the precise location of the centre line of the roadway. However, it was his failure to keep as far to the left as practicable, his misjudgement of the location of the imaginary centreline and, in the circumstances, his failure to slow down as approached the crest of the intersection that caused him to partially cross that line and thereby sustain his injuries in the collision. In all the circumstances, I consider that it would be just and equitable to reduce Mr Millett's verdict against the Council by 45% as a consequence of his contributory negligence.

A question of costs 151 The Council submitted that if it succeeded on the issue of contributory negligence but failed on the issue of liability, it should receive the costs of the appeal. Although Mr Millett somewhat faintly contested this submission, in my opinion it is clearly correct. Mr Millett will, if otherwise qualified, be entitled to a certificate under the Suitor's Fund Act 1951. 152 Somewhat more controversially, the Council further submitted that if it was found that Mr Millett was guilty of contributory negligence up to 50%, he should be deprived of at least part of his costs of the trial. I see no merit in this submission and I reject it.

Conclusion 153 The parties agreed on the form of orders which should be made in the event of the appeal being upheld on the issue of contributory negligence. In accordance with that agreement I would propose the following orders:

a) Appeal allowed in part. b) Set aside the orders made by Norrish DCJ on 7 February 2003 and in lieu thereof order that: (i) there be judgment for the plaintiff as against the second defendant in the amount of $58,351.70; (ii) the cross-claims be dismissed; (iii) the second defendant pay the plaintiff's costs of the District Court proceedings. c) Order that the first respondent pay the appellant's costs of the appeal, and in respect of those costs to have a certificate under the Suitor's Fund Act, 1951 if otherwise entitled. d) Order that the appellant pay the second respondent's costs of the application for leave to appeal and the costs of his submitting appearance in the appeal. e) Liberty to apply within 7 days of the date of this judgment to amend these orders if they fail to accurately reflect the findings with respect to the first respondent's contributory negligence.

In CA 40129/03 : a) Appeal allowed in part. b) Set aside the orders made by Norrish DCJ on 7 February 2003 and in lieu thereof order that: (i) there be judgment for the plaintiff against the first defendant and the second defendant in the sum of $20,779; (ii) as between the first and second defendants:

· the first defendant to pay the plaintiff the amount of $9,350.55; · the second defendant to pay the plaintiff the amount of $11,428.45; (iii) first cross-claim be dismissed; (iv) there be judgment for the second cross-claimant as against the second cross-defendant in the sum of $12,870; (v) the first defendant pay the plaintiff's costs of the Local Court proceedings and of the District Court proceedings prior to the joinder of the second defendant;

(vi) the first defendant pay 45% of the plaintiff's costs of the District Court subsequent to the joinder of the second defendant; (vii) the second defendant pay 55% of the plaintiff's costs of the District Court proceedings subsequent to the joinder of the second defendant. c) Order that the second respondent pay the appellant the amount of $10,964.48 plus interest in accordance with Schedule J for the period from 24 December 2003 to the date of this judgment. d) Order that the second respondent pay the appellant's costs of the appeal and, in respect of those costs, to have a certificate under the Suitor's Fund Act 1951, if otherwise entitled. e) Order that the appellant pay the first respondent's costs of the application for leave to appeal and the costs of his submitting appearance in the appeal. f) Liberty to apply within 7 days of the date of this judgment to amend these orders if they fail to accurately reflect the findings with respect to the second respondent's contributory negligence. **********

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