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.