Supreme Court of SA|1991-09-06|Before: King CJ

McINTYRE v. DISTRICT COUNCIL OF RIDLEY No. 3934 of 1985 Judgment No. 3009 Number of pages - 18 Negligence (1991) 56 SASR 343 [1991] SASC 3009 (6 September 1991)

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(1), OLSSON(2) J AND ZELLING(3) AJ

CWDS Negligence - appellant's vehicle leaving road and overturning on bend - contour of road altered by reconstruction of bend by respondent Council - camber not in accord with sound engineering principles - no advisory speed sign - whether negligence amounting to misfeasance

whether negligence causation of accident - finding of no negligence reversed on appeal and finding that respondent 60 per cent responsible substituted therefor.

HRNG ADELAIDE, 9 August 1991 #DATE 6:9:1991 Counsel for Appellant: Mr. S.W. Tilmouth QC with Mr. A.M. Kent Solicitors for Appellant: Moody Rossi and Co. Counsel for Respondent: Mr. D.J. Bleby QC with Mr. S.J.M. Manuel Solicitors for Respondent: Piper Alderman

ORDER Appeal allowed, judgment entered for the plaintiff for 60 per cent of her damages and the matter remitted to the trial judge for assessment.

JUDGE1 KING CJ The appellant sued the respondent for damages for very serious injuries sustained by her when a Galant sedan motor car driven by her left the road and overturned near Sedan on the 29th July 1978. The appellant was then 17 years of age. Her action against the respondent was based upon allegations of negligence in the construction of the bend in the road at which the accident occurred and failure to erect an advisory speed sign at the approach to the bend. There was a trial in the Supreme Court and the trial judge rejected the allegations of negligence and dismissed the appellant's claim. She has appealed to this Court against that decision. 2. The circumstances surrounding the accident are set out in a passage in the reasons for judgment of the trial judge which I now quote: "The bend on which the accident took place is located on Halfway House Road between Sedan and the point at which Halfway House Road joins the Truro-Blanchetown road. The road is unsealed, but over a period of approximately ten years prior to the accident it had been upgraded in keeping with its status as one of the more important unsealed roads in the district. The evidence discloses that the defendant council was formed by the amalgamation of the District Councils of Sedan and Marne on 28th January, 1976 and a major reconstruction of the bend took place prior to the amalgamation and while the bend was the responsibility of the District Council of Sedan. However, it was not in dispute that at the time of the accident the defendant council was deemed to be 'one and the same body corporate as the council of each of the areas by the union of which it was formed' (s.13, Local Government Act, 1934-75) and was liable for the legal consequences of any negligent conduct on the part of either of the two former councils. The accident occurred on a Saturday afternoon when the plaintiff was driving two young women to a shop in Sedan. The plaintiff and her passengers had been spending the weekend on a property not far from the scene of the accident and during the afternoon they decided to drive into Sedan to get some supplies for the evening meal. The car in which they were travelling was a 1973 Chrysler Galant sedan which belonged to the plaintiff's then boyfriend. She had driven this vehicle on no more than a dozen times in the city and had not driven it on an unsealed road prior to the occasion of the accident. Indeed, she could not recall having driven on an unsealed road in any vehicle in the six months she had been licensed to drive. She had not driven over this particular road with anyone else before this occasion. One of the plaintiff's companions, Sandra Kennedy, was seated in the front passenger seat and the other, Karen Vartzokas, was seated in the rear and probably behind Sandra Kennedy. The plaintiff drove

the vehicle in a southerly direction along a straight stretch of road which preceded the bend. The final stage of this stretch of road inclines upwards to a crest and the road begins to curve to the right approximately 15 metres from the centre of the cutting which forms the crest. The commencement of the curve cannot be seen by a driver travelling in the direction of the plaintiff until a short distance back from the crest. The long sweeping bend can then be seen. The arc length (length of the curved area) is approximately 200 metres. The plaintiff lost control of the vehicle in the latter portion of

the curved area. Skid marks from the vehicle's tyres commenced at a point approximately 30 metres north of the point where the road straightened again and they continued for another 24 metres beyond that point to the edge of the road at the point where the vehicle left it and rolled into the paddock." 3. There was, unknown to the appellant, a quantity of tiles in the boot of the car. They would have weighed approximately 526 kilograms and would have tended to destabilise the car. The speed of the appellant's car as it rounded the bend was found to be between 80 and 100 kilometres per hour. The appellant's evidence was that as she was negotiating the bend, the rear of the car began to zigzag and she lost control. She used her brakes and regained control temporarily. The car again went out of control. She applied the brakes and the car veered to the left and left the road. The account of the zigzagging was supported by the passenger Sandra Kennedy. 4. Prior to 1962, Halfway House Road at this point turned sharply to the right, the bend being opposite a junction with a side road. The then council undertook extensive redesigning and reconstruction of the bend in 1962. Further roadwork took place between 1974 and 1976 and some refinements were made to the bend and the surface of Halfway House Road on either side was upgraded and widened. The effect of the roadwork overall was to convert the bend into a long sweeping curve and provide a road surface throughout the bend constructed to a standard which would enable it to be bituminised if funds became available. The width of the roadway forming the bend was widened to approximately 12 metres. 5. The expert evidence proved that good engineering practice requires that a bend of this kind on a north-south curve be so constructed that the camber throughout the bend and for the full width of the road slope from east to west thereby providing the maximum assistance to vehicles negotiating the bend in either direction. That accepted engineering practice was well understood in 1962. Construction of this bend conflicted with that practice. A considerable portion of the eastern half of the roadway did not slope towards the west but on the contrary sloped towards the east and thus constituted an unfavourable camber for southbound traffic. The proportion of the road which was unfavourably cambered varied at different points on the bend. Of an approximately 6 foot width of roadway on the eastern half, the unfavourably cambered width was 1.35 metres at the commencement of the bend, 3 metres somewhat further on, 2.35 metres further on still, 2.15 metres as the bend progressed, 2.8 metres at a point close to where the brake marks of the appellant's vehicle began and 2.95 metres towards the end of the bend. At critical points of the bend, therefore, the uncambered proportion was 50 per cent or near to 50 per cent of the eastern half. 6. The hazardous nature of this unfavourable camber can be gleaned from the expert evidence. If the two nearside wheels of a southbound vehicle got sufficiently onto the unfavourable camber to be lower than the offside wheels, the vehicle would tend to veer to the edge of the road. An idea of the extent of the hazard thus created can be gathered from the fact that, although the experts varied in their estimate of the speed at which the bend could be safely negotiated by a vehicle keeping on the favourable camber, between 65 kilometres an hour and 89 kilometres an hour, the respondent's expert Mr. Aust considered that if a vehicle travelling at 80-100 kilometres per hour got onto the unfavourable camber there would be an early loss of control and the vehicle would run off the side of the road. An expert called by the appellant, Mr. Read, considered that it could negotiate only 50 per cent of the bend before getting into trouble. An expert called by the respondent, Mr. Beames, expressed the opinion that the unfavourable camber was unimportant because the favourably cambered section of the eastern half of the road was sufficiently wide to accommodate southbound vehicles. It is unlikely, however, that the change in camber would be obvious to a driver and there appears to be no reason why a driver would not seek to make maximum use of the width of road available to him on his correct side and drive with at least his nearside wheels upon the unfavourably cambered portion of the road. If he did so, the evidence shows that he would be at considerable risk. 7. There can be no doubt that the respondent's predecessor for whose defaults the respondent is legally liable, was negligent in its construction of the bend. The learned judge found that if the shortcomings in design had contributed to the appellant's accident, he "would have been prepared to find that there was an actionable breach of duty to take care". Mr. Bleby QC who appeared for the respondent before us did not dispute that there would be an actionable breach of duty in those circumstances. 8. Skid marks, observed by a police officer who went to the scene of the accident the following morning, the accident having occurred late on the previous afternoon, extended for a distance of approximately 54 metres from near the centre of the road to the edge of the road. They commenced approximately 30 metres from the end of the curved section that is some 80 per cent of the distance through the bend. The learned judge concluded that the vehicle was not in serious difficulty until it reached that point. He then took the further step of stating that "the fact that the plaintiff successfully negotiated the greater portion of this long sweeping bend convinces me that she had up to that point driven on a portion of the road which had a favourable camber". I doubt whether these findings are sustainable. The commencement of the skid marks no doubt fixes the point at which the brakes took effect, but the car could well have been out of control for some distance prior to that. Indeed it is unlikely that the appellant would have applied the brakes unless she was already in difficulty and she would have travelled some distance while reacting to the situation. Her own evidence was to the effect that the rear of the car zigzagged for some distance prior to the final application of brakes. The learned judge thought that although the appellant's evidence contained some element of reconstruction, she was an honest witness. She is unlikely to have been mistaken about the zigzagging prior to the application of the brakes. There is no solid basis, in my opinion, for the finding that the appellant had successfully negotiated the greater portion of the bend before losing control and therefore no solid basis for the finding that she had up to the time of losing control driven on a portion of the road which had a favourable camber. Nevertheless, although those findings cannot be sustained, in my opinion, neither is there any solid basis, as indeed Mr. Tilmouth QC for the appellant conceded, for a positive finding that the vehicle was travelling on the unfavourable camber when control was lost or that the unfavourable camber contributed to the initial loss of control. On the evidence it is simply impossible to say. 9. The learned trial judge, although finding that the respondent was negligent in the construction of the bend, held that it was not proved that the unfavourable camber contributed to the accident. In his reasons for judgment the learned judge referred to the evidence of Mr. Aust that the overloading of the vehicle produced by the tiles in the boot would seriously affect the handling of the vehicle, making it difficult to negotiate gravel bends, and also to his evidence that the large mass at the rear of the vehicle would tend to move the vehicle away to the east, the left of the road, and that corrective steering would have the tendency to swing it in the opposite direction with likely total loss of control. The learned judge went on: "I accept Mr Aust's unchallenged evidence on these matters and when they are considered along with the fact that the plaintiff was an inexperienced driver who had not previously driven on unsealed roads it is my firm view that they explain why this unfortunate accident occurred. I am of the opinion that while travelling around the curve the plaintiff followed a line which provided a favourable camber, but that the excessive load and the speed at which she was travelling eventually caused her to lose control. Her lack of experience may have prevented her from regaining control, although it would appear that this would have been a difficult task even for an experienced driver. It has not been established that either the design or construction of the bend and in particular the construction of the camber or inadequate maintenance on the road, was a cause which contributed to the accident by leading to a loss of control, exacerbating the effect of a loss of control due to another cause, or in any other way." 10. There can be no doubt about the extent of the problems which faced the appellant negotiating this bend at the speed at which she was travelling and with the load in the boot of which she was unaware. Nevertheless I think that the learned judge's analysis accords less than sufficient weight to the contribution which the unfavourable camber made to her difficulties. The speed and load undoubtedly contributed to the initial loss of control. Whether the unfavourable camber also contributed at that point is unknown. Following the initial loss of control, the appellant was endeavouring to regain control and to keep the vehicle on the road. She applied the brakes, understandably although probably unwisely, as she endeavoured to regain control. The vehicle veered onto the unfavourably cambered portion of the road which, at that point, was virtually one half of the eastern half of the roadway. Once the vehicle was sufficiently on the unfavourably cambered section, the tendency of the camber was to take the vehicle off the road rather than to keep it on the road. If the road had been properly cambered to its eastern edge, the tendency of the camber would have been to keep the vehicle on the road. The evidence which I have previously cited emphasises the gravity of the tendency of this unfavourable camber to direct a vehicle off the road. It must have greatly diminished the appellant's prospects of keeping this vehicle on the road. At the edge of the road there was an embankment with a 1 metre drop and after it left the road the vehicle overturned. If it had remained on the road there would probably have been no overturning and no injury. 11. The problem of causation is difficult. There are a number of elements in the complex of factors which caused the vehicle to leave the road and overturn. These were the speed of the vehicle, the load in the back of which she was unaware, and the hazard created by the unfavourable camber. There is, no doubt, an element of speculation in any judgment that the subtraction of any one of those factors would have prevented the accident. They combined to bring about the final result. It was not proved that the dangerous camber contributed to the initial loss of control but, to my mind, its tendency to take the vehicle off the road rather than to keep it on the road must have materially contributed to the failure of the vehicle to stay on the road after the initial loss of control and the vehicle leaving the road and tumbling down the embankment. However influential the other factors in the complex might have been, I feel unable to treat the unfavourable camber as having no causal connection with the final result. It seems to me that where so significant a hazard forms part of the complex of factors producing the final result, a just and reasonable application of the principle of causation requires that that factor be regarded as a contributing cause. 12. The learned trial judge held that the warning signs which were erected were adequate and that the accident was not due in any way to the lack of appropriate signs. This conclusion was strongly challenged by Mr. Tilmouth QC on the appeal. 13. The warning signs relevant to southbound traffic which were in place at the time of the accident were a curve sign and two hazard warning signs. There was no advisory speed sign. An advisory 55 kilometre per hour speed sign was erected beneath the curve sign some time after the accident. The curve sign indicated a right-hand curve and was located approximately 95 metres north of the commencement of the curve. One of the hazard signs was located about 30 metres into the bend and the other was located a further 86 metres into the bend. These signs gave warning of the existence of a right-hand curve and of the hazard created by the existence of the bend in the road. They gave no indication whatever, however, of the speed at which that bend might be safely negotiated. 14. I am unable to agree that the respondent was not under a duty to erect an advisory speed sign. The council undertook the reconstruction of the road in a manner designed to facilitate the flow of traffic. The reconstruction was calculated to enable traffic to negotiate the bend at some speed. The newly created bend, like all road bends, was designed for vehicles travelling at certain speeds. The design speed of this bend, even on the favourable camber, was considerably less than the speed limit of 110 kilometres per hour applying to the approach section of the road. Moreover the bend was so constructed that a substantial portion of the eastern half of the roadway, being at certain points on the bend as much as one half or almost one half of the eastern half of the road, had an adverse camber which presented a serious hazard to vehicles travelling at speeds at which the favourably cambered portion might be safely negotiated. There were no visual clues to this change in camber and no reason why prudent motorists, being unaware of the danger, would not use the unfavourably cambered section. A relatively low speed was necessary to negotiate the bend safely on or partly on the adversely cambered section. The bend was deceptive in that respect. I think that a clear warning to approaching motorists was required by way of a sign advising as to the speed at which it could be safely negotiated having regard to the possibility that they would use portion of the adversely cambered section. Quite apart, however, from the additional hazard created by the adverse camber, I think that a road construction authority which creates a section of road which can be safely negotiated only at certain restricted speeds is under a duty to warn the motoring public of the advisory speed for that section of the road. I think that signs that indicate no more than that there is a curve in the road and that there is a hazard created by the existence of a bend, do not adequately warn the motoring public of the extent to which the speed must be reduced in order to negotiate the bend safely. In my opinion the council was negligent in failing to erect an advisory speed sign. 15. Mr. Bleby QC argued that if the respondent was at fault with respect to the omission of an advisory speed sign, that fault was in the nature of nonfeasance rather than misfeasance and that the respondent was therefore not liable for it. The basic principle is set out in a passage in the judgment of Dixon J in Buckle v. Bayswater Road Board [1936] HCA 65; (1937) 57 CLR 259 at p 283:- "But while a road authority owes to the members of the public using a highway no duty to undertake active measures whether of maintenance, repair, construction or lighting in order to safeguard them from its condition, on the other hand it possesses no immunity from liability for civil wrong. It is, of course, a civil wrong to cause particular damage by obstructing a highway, or by making it unsafe or dangerous. Interferences with a highway which in themselves would be unlawful in a stranger are as a rule authorized acts when done by a road authority. But a road authority in doing them must take due care for the safety of those using the highway and is not protected if it creates dangers which reasonable care and skill could avoid. Because the road is under its control, it necessarily has an opportunity denied to others for causing obstructions and dangers in highways. But when it does so, the road authority is liable, not, I think, under any special measure of duty which belongs to it, but upon ordinary principles. These principles include the rule that to render the highway unsafe is to commit a

nuisance, and that to execute authorized works without due care and skill for the safety of others leaves an action to anyone who suffers a consequential injury. It is evident that even if what otherwise might be obstruction or danger is created on the highway, it may be made relatively harmless by the use of some additional precaution, such as guarding or lighting. If the precaution is discontinued, consequences may ensue which up to that time had been intercepted. For these consequences the road authority will be liable in damages. But it will be liable not on the ground that it failed to exercise its powers so as to prevent them, but on the ground that it was the active agent in causing an unnecessary danger in the highway." 16. It follows from the principles set out in the above passage that where a road authority undertakes road work which produces a risk to the motorist unless certain precautions are taken, it is the duty of the authority to provide the necessary warnings to the public. Failure to do so is not nonfeasance but is misfeasance because the authority has caused the danger by its execution of the road work. Examples of misfeasance occurring in this way are to be found in McDonogh v. Commonwealth of Australia (1987) 73 ALR 148 and Flynn v. Commonwealth of Australia (1987) 6 MVR 186. The Council altered the contour of the road so as to create a bend which could be negotiated safely only at a restricted speed. Failure to notify the public of that speed by appropriate sign posting amounted, in my opinion, to misfeasance. 17. Mr. Bleby argued that the non erection of an advisory speed sign was not causative of the present accident. He relied upon the learned trial judge's reasoning that as the appellant had failed to see the curve sign and the first of the hazard signs, although she did see the second of them, it was unlikely that she would have seen the speed sign if it were there. I am unable to agree. The appellant's evidence was that she did not see the curve sign or the first of the hazard signs and indeed she was convinced that they were not there. She was, however, an inexperienced driver and those signs may have had little significance for her. After all they indicated no more than that there was a bend in the road. Because of their lack of significance to her, they may not have registered in her mind and that may account for her evidence that she did not see them, although they were plainly there to be seen. A speed sign, however, may well have a much more direct impact upon the consciousness of a driver. It is a direct warning that he must reduce his speed if he is to negotiate the road ahead with safety. Such a sign is much more likely to register in the consciousness of the driver and hence to be "seen". The advisory speed sign was a necessary precaution which was omitted by the Council. The very purpose of such a sign is to make an impact upon the consciousness of approaching drivers and to cause them to reduce their speed. The natural and reasonable inference is that the appellant's failure to reduce speed and consequently the accident, was caused in part by the failure to erect the sign. 18. It follows from what I have said that I am of the opinion that the respondent was negligent in its construction of the road with a substantial section of adverse camber on the eastern half and that it was negligent in failing to erect an advisory speed sign. Both those defaults amounted to actionable misfeasance on the part of the Council. Contrary to the view of the learned trial judge, I am of the opinion that both those defaults contributed to the accident which occurred. 19. There was a plea of contributory negligence which did not fall to be considered by the learned trial judge because he exonerated the respondent. It is now necessary to consider it. There can be no doubt that the appellant was substantially at fault. She was not aware, and there is no evidence from which it could be concluded that she ought to have been aware, that there was a load of tiles in the boot of the car. Nevertheless, a prudent driver would have reduced speed in negotiating this bend. The road beyond the crest was not visible to her and that alone dictated caution. She ought to have seen the curve sign and the first hazard sign and they should also have alerted her for the need to reduce speed. Nevertheless, the speed at which she attempted to negotiate the bend, if it had not been for the adverse camber which she would not be expected to detect, does not appear to have been greatly in excess of the speed at which the bend could be safely negotiated. There was variance in the expert opinion as to the safe speed if a vehicle remained on the favourable camber between 65 kilometres per hour and 89 kilometres per hour. The speed at which the appellant was found to be travelling was 80-100 kilometres per hour. Having regard to the curve sign and the first hazard sign which she failed to observe, and to the fact that the road ahead was concealed by the crest, the appellant ought to have reduced her speed significantly, but, bearing in mind that she did not have the advantage of an advisory speed sign, the degree of her fault ought not to be exaggerated. 20. I think that the misfeasance for which the respondent is responsible is substantial. When a road authority alters the contour of a country road it undertakes a serious responsibility to make it as safe as it reasonably can, to motorists using it, both by the design of the road and the erection of appropriate warning signs. No reason at all was advanced to excuse the failure of the Council in this case to observe sound road construction principles. The unnecessary adverse camber on the eastern half of the road was a significant hazard to motorists. The purpose of having a favourable camber on a road is to assist drivers to control, or if necessary regain control, of their vehicles as they negotiate the bend. A sign advising motorists of the speed at which a reconstructed bend can be negotiated safely, is an important aid to drivers and its omission a serious fault. It is necessary therefore to apportion responsibility and for that purpose to compare the respective degrees of fault. An important factor in assessing the respective degrees of fault of the appellant and the respondent is the difference in the circumstances in which their respective faults were committed. The appellant's fault was a failure of observation and prudence in a driving situation. There was no opportunity for reflection and little for correcting the driving errors. The respondent's fault was of quite a different nature. The Council, for whose actions the respondent is responsible, undertook a substantial road works. It had ample opportunity and leisure to make observations and judgments as to what was required to produce a safe road surface and proper warning to the public. It had ample opportunity to take the advice of and to employ the services of experts in the area of road safety. Not only did it produce an unsafe road surface due to the adverse camber and fail to give warning of the appropriate speed for the bend, but it allowed those omissions to continue for a period of years. I think that the degree of responsibility of the respondent for this accident and its consequences must be regarded as considerably greater than that of the appellant. 21. I would apportion the responsibility 60 per cent against the respondent and 40 per cent against the appellant. 22. In my opinion this appeal should be allowed, the judgment appealed from should be set aside and there should be substituted therefor a finding of negligence and misfeasance against the defendant District Council of Ridley and a finding of contributory negligence against the plaintiff. Liability should be apportioned 60 per cent against the defendant and 40 per cent against the plaintiff. The action should be remitted to the trial judge for damages to be assessed and judgment to be entered accordingly.

JUDGE2 OLSSON J This is an appeal against a judgment entered by Duggan J dismissing a plaintiff's action for damages in negligence. 2. The proceedings arose from a road accident which occurred in the late afternoon of 29 July, 1978. 3. The plaintiff, then a young woman aged about seventeen years, was driving a small 1973 model Chrysler Galant sedan motor car around a bend in what is known as Halfway House Road, which runs between Sedan and the main Truro-Blanchetown Road. That road was unsealed, but, as the learned trial judge found, it had, over a period of approximately ten years prior to the accident, been upgraded in keeping with its status as one of the more important unsealed roads in the district. Since that upgrading, there has been a consolidation of the relevant local government bodies. However, it was common ground that the present respondent is responsible in law for any misfeasance on the part of its predecessors. For the sake of simplicity, I will refer to "the respondent" as meaning the relevant responsible body at given points in time. 4. The vehicle in question belonged to the plaintiff's then boyfriend. She had possessed a licence to drive for about six months and had never before driven on an unsealed road. Halfway House Road was not known to her. She had driven the Galant about a dozen times in the city. 5. The evidence indicated that the plaintiff and the two young women, who were passengers in the vehicle with her, had been spending the weekend on a property not far from the scene of the accident. They had decided to drive into Sedan to get some supplies for the evening meal. 6. Prior to the accident, the plaintiff drove the Galant in a southerly direction along a lengthy, straight stretch of road which preceded the relevant bend. The general approach along it is clearly depicted in photographs 1 and 2 of exhibit P2 and the photographs comprising exhibit D20. 7. As appears from these photographs the final stage of that stretch of road inclines upwards to a crest and the road begins to curve to the right just over the crest, which runs through a cutting. 8. The photographs comprising exhibit P2 render it apparent that, as the learned trial judge recorded, the commencement of the curve cannot be seen by a driver travelling in the direction pursued by the plaintiff until a short distance back from the crest. A long sweeping bend eventually comes into view, the curved length of which is about 200 metres. 9. Duggan J found that, at the time of the accident, a standard type, diamond-shaped, yellow and black curve right sign had been erected at a point approximately 95 metres north of the commencement of the curve. However, as the various photographs clearly indicate, the incline of the road at that point prevents road users from actually seeing the curved section. The learned trial judge recorded that it had been noted on the view of the locus held by him that the curvature of the road could not be seen from a standing position until the court party had advanced from the location of the curve right sign in a southerly direction for a distance of approximately 28 metres from it i.e. at a point only some 67 metres prior to the actual commencement of the curve, or, at a speed of (say) 90 kilometres per hour (25 metres per second), less than three seconds prior to entry upon it. 10. In giving evidence, the plaintiff said that she had no recollection of seeing that sign. At the time its standard did not have affixed to it the second advisory speed sign "55 km/h" now appearing; as seen in photograph 2 of exhibit P2. 11. It should also be said that, near the commencement of the curve and, again, part way along it, there were what have been described as two successive "zebra board" hazard warning signs erected on the left verge of the road. These were standing on posts at a height which does not readily appear, but which seems to be about a metre or thereabouts above ground level. Such signs are the familiar rectangular black and white "chevron" signs indicating the changing direction of travel for drivers approaching from the north. 12. The first of these was at a point 128 metres south of the "curve right" sign above referred to i.e. about 33 metres into the bend. The second was a further 86 metres into the bend, near a point where other roads joined the left verge of the Halfway House Road. A good appreciation of this can be gleaned from photographs 3 and 5 of exhibit P2. 13. The plaintiff professed to no recollection of seeing the first "zebra board" sign, but did recall noting the presence of the second. 14. Photograph 2 of exhibit P2 reveals that the top of the first hazard sign is just visible above the crest of the road at about the location of the "curve right" sign. 15. Not unexpectedly in the circumstances, having regard to the short time lapse, the trauma of what transpired and her very serious injuries, the plaintiff was to some extent non-definitive as to the precise sequence of events immediately prior to the accident. 16. Because, so far as her memory now extends, she did not register the presence of the "curve right" nor the first "zebra board" sign, the plaintiff initially assumed that the road continued straight on from a point near the crest of the hill. That is, perhaps, not surprising in view of the fact that, prior to its reconstruction by the predecessor of the respondent in 1962 the main road had turned sharp right but another road had continued on, forming almost a type of cross roads complex on the reverse slope of the crest. In absence of signs a driver proceeding up to the crest might well, for a moment, see the original apparent prolongation of the road bordered by trees (to be seen in photograph 3 of exhibit P2) before achieving a full realisation of the presence and extent of the curve to the right. 17. Prior to and on attaining the crest the plaintiff had been driving at a speed of what she estimated to be about 56-64 kph. However, on the evidence of the expert witnesses, Duggan J was disposed to conclude that it was more likely that the Galant was travelling at between 80-100 kph. 18. The plaintiff testified that, upon realizing that the road did, in fact, veer to the right, she turned the steering wheel to follow the curve, but the car started sliding all over the road. She said that she then applied the brake and regained control momentarily, but that, almost immediately, the car again commenced sliding and she lost control for a second time. She applied more brake and the car eventually rolled over to its left off the road into a paddock just beyond the far end of the curve. As a consequence the plaintiff suffered very serious personal injuries resulting in quadriplegia. 19. The plaintiff's passenger Sandra Kennedy gave a graphic description of the vehicle "zig zagging" along in a gravel surface on the left side of the road and then, eventually, overturning. Manifestly that must have preceded the final straight line of skidding. 20. Unfortunately, the police did not attend the scene until early the next morning and it is a matter of conjecture as to what marks made by the Galant on the road surface still remained undisturbed. The Galant had, by then, been removed. Constable McKnight prepared a plan of the locus and recorded on it the presence of then still clearly visible dual skid marks commencing towards the centre of the carriageway and curving around to the left over a distance of 54 paces (on the shortest arc) to the commencement of roll over marks at the left verge at a point some 105 paces from the southern edge of the road junction near the second hazard sign. Put another way, the skid marks commenced at a point approximately 170 metres into the bed or 30 metres north of the point where the road straightened again at the conclusion of the curve and they continued for an additional 24 metres beyond the end of the bend. Unfortunately, no note was made as to where the skid marks commenced laterally in relation to the verge and centre line of the carriageway and Constable McKnight had no independent memory as to that aspect. 21. I digress at this juncture to comment that, apart from reciting the evidence of the plaintiff, the learned trial judge did not make a truly definitive finding as to when loss of control commenced other than to say that "The plaintiff lost control of the vehicle in the latter portion of the curved area". Later he referred to the vehicle commencing "to skid out of control" approximately 30 metres from the end of the curved section. 22. With respect, it seems questionable to me as to whether such a recital fully and fairly reflects the obvious inferences arising on the evidence. 23. As a matter of plain common sense control was, more probably than not, lost well before the commencement of the skid marks. Whilst it is true that the learned trial judge considered the plaintiff as being, to some extent, non-definitive, he does not appear to have rejected her general description, which he noted, without adverse comment, on two occasions. On that description the skid marks were presumably the product of final hard braking associated with the second period of loss of control. It would seem to me probable that the initial skidding and loss of control must, in fact, have occurred close to the commencement of the curve, and came as the product of the initial turning of the steering wheel. Not only does this accord with her description, but it reflects that fact that the initial vehicle entry speed into the curve was, on the findings of the learned trial judge, of the order of 25 metres per second. 24. The evidence revealed that, apparently unknown to the plaintiff, the boot of the Galant was almost three quarters filled with heavy clay tiles. It was thus overloaded and the expert witnesses opined that, once loss of control occurred, the overloading would have rendered it difficult to regain control, even by a reasonably skilled driver. 25. A considerable amount of evidence was led before Duggan J as to the history and general condition of the road in the vicinity of the curve, as well as the presence of signs. 26. Oddly, Constable McKnight asserted that no curve right sign was to be seen prior to the crest and that he actually looked for one. On the other hand, a considerable volume of other evidence persuaded Duggan J that it was, in fact, present in the location earlier described. 27. On the material before him, the learned trial judge was satisfied that the original "cross roads" type configuration with a sharp bend to the right near the crest had been eliminated by major road words executed as early as 1962, when the present road route, with its sweeping curve, had been created. Further major upgrading works had been carried out at the site between 1974 and 1976, at which time some refinements were made to the bend and the surface on either side was upgraded and widened. It appeared that, since then, the road had, from time to time, been utilised for the transport of "over-dimensional loads", such as transportable buildings. 28. In general, Duggan J spoke of the road in the vicinity of the accident in these terms:- "I am quite satisfied on the extensive evidence led on the topic that the road, including that part of it which constituted the bend, was regularly and well maintained at the time of the accident. A central feature of this maintenance consisted of grading the road every six or eight weeks and it is clear from the Council records

which I accept, that the road surface at the bend was graded on 20th, 21st or 24th July, 1978 and more likely than not on the 21st July, only eight days before the accident. This would mean that there was likely to be less of an accumulation of gravel in particular parts of the bend than would be the case at a time further removed from the last grading." 29. Bearing this in mind the various photographs tendered in evidence must be viewed with some care as to their indication of the state of loose gravel on the road surface; they were taken at times which differed from that of the accident date and the then previous grade of the road surface. Given such a caveat they do at least give some general impression of the surface, and the likely portions of the surface, naturally used by the contemporary traffic in negotiating the areas in question, as well as the likely pattern of gradual build up of loose gravel. 30. Considerable expert evidence was called before Duggan J as to the technical aspects of the construction of the curve and its practical implications. The following extracts from his reasons highlight those aspects which are of significance for present purposes:- "The survey ordered by Mr Read commenced on 31st January, 1985. Survey plans drawn to scale were prepared and Mr Read and other expert witnesses referred to them in the course of evidence. One of the central aims of the survey was to examine the 'super elevation', of the curve. This term describes the camber or cross-fall of the road which enables the driver to negotiate the bend more effectively. It was explained that a slope downwards from the outer to the inner part of the bend was referred to as 'negative super elevation' and that if the road towards the outer part of the curve sloped the other way so as to form a reverse camber this was termed 'positive super elevation'. For my purposes it will be convenient to refer to negative super elevation as a favourable camber and positive super elevation as a reverse camber. Constant use of the roadway after each grading of the surface by council workers defined that part of the road surface most commonly used by both north and south bound traffic and it was beyond dispute that the section of the road which contained these carriageways had a favourable camber. However, the shoulder of the road around the outer part of the curve had a reverse camber. Of course, the two carriageways were not marked and they are only described as such in the sense that the cross-section of road which possessed a favourable camber was wide enough to allow two vehicles to pass each other and, as I have said, constant use defined that part of the road by giving it a smooth appearance. The width of the two carriageways divided by a notional centre line and the width of the shoulder were measured at different locations throughout the curve and the following measurements were accepted by both parties. LOCATION CARRIAGEWAY FOR WIDTH OF SHOULDER SOUTH BOUND TRAFFIC (Favourable Camber) (Reverse Camber) A 5 m 1.35 m C 3 m 3 m E 3.4 m 2.35 m G
4.6 m 2.15 m J 2.5 m 2.8 m L
3 m 2.95 m The width between the front tyres of the plaintiff's vehicle measured from the outside of the tyres is 1.455 metres and the corresponding measurement for the rear tyres is 1.289 metres. Mr Read stated that the purpose of the super elevation was to provide a physical condition which would assist in directing vehicles around the bend. None of the expert witnesses disputed the view that a reverse camber would have the opposite effect in that it would tend

to take the vehicle away from the road. The further the vehicle moved onto the section with the reverse camber the more pronounced that effect would be. I accept that the presence of loose gravel would contribute to the decrease in the vehicle's road holding capacity. Furthermore, I accept the evidence that it is good engineering practice to have a constant favourable camber throughout the curve. However, Mr Beames stressed that in this case the south bound carriageway was of sufficient width to accommodate vehicles and he queried whether the fact that the shoulder had a reverse camber was a matter of particular significance. There is some risk that a driver might drive onto the shoulder of the road immediately after passing over the crest of the hill and before becoming aware of the precise shape of the bend. Furthermore, it is conceivable that the reverse camber on the shoulder of the road could then contribute to a loss of control of the vehicle causing it to leave

the road. I am satisfied on the evidence that the contour of the road might have been better designed so as to eliminate this risk and if this shortcoming in design had contributed to the plaintiff's accident I would have been prepared to find that there was an actionable breach of duty to take care. ... Mr Beams (sic ? Aust) was of the view that if the vehicle was driven on the shoulder as soon as it entered the bend and while it was travelling at a speed of between 80 and 100 kilometres per hour, there would be an early loss of control and the vehicle would run off the side of the road. Mr Read considered that if the vehicle was driven in this way it could negotiate the first 50 per cent of the bend before it got into trouble." 31. In reviewing the expert evidence in the above terms, the learned trial judge expressed the inferences which he was prepared to draw from the established facts. For present purposes the critical conclusions came to by him were as under:- "... The fact that the plaintiff successfully negotiated the greater portion of this long sweeping bend convinces me that she had up to that point driven on the portion of the road which had a favourable camber. This is not surprising because the evidence supports the view that this section was the most frequently used part of the road and it would have been clearly defined although not by the conventional markings which would be used on a bitumanised road. This view of the facts is also supported by Constable McKnight's plan. Although lacking precision it would seem that the skid marks which he observed commenced more in the vicinity of the southern carriageway than on the shoulder of the curve. ... I am quite satisfied that the reverse camber on the shoulder of the road was not causative of the plaintiff's accident. The plaintiff's vehicle was approximately 30 metres from the end of the curved section when it commenced to skid out of control. In her evidence the plaintiff said that the vehicle started sliding; she braked and got control and then it started to slide once more. She then applied the brakes again. But the investigating police officer did not observe any skid marks on the road other than those to which I have referred and it is reasonable to assume that the vehicle was not in serious difficulty until approximately 30 metres from the end of the curved section or, as Mr Worthington QC counsel for the defendant put it, more than 80 per cent of the distance through the bend." 32. Whilst I am conscious of the advantage enjoyed by the trial judge created by the overall "atmosphere" of the trial, I nevertheless have some difficulty with the logic of certain of the above deductions. 33. In this respect I bear well in mind the principles applicable to appeals of this type. Whilst it is true that considerable weight and respect must be accorded to the impact which the evidence made on the trial judge, it is to be recalled that the critical matters for consideration on this appeal do not arise from assessments of relative credibility and reliability. The appellant expressly mounts her appeal on the footing that, accepting the primary facts found by the learned trial judge, the inferences drawn by him from them were, in important respects, erroneous. 34. In this regard it is well settled that the appellate court is not only in a position of equal advantage as to what inferences can reasonably and ought properly to be drawn, but has a duty to apply an independent mind to the primary facts as found for that purpose. (Brunskill and Anor. v. Sovereign Marine and General Insurance Co. Ltd. and Ors. [1985] HCA 61; (1985) 62 ALR 53, Raimondo v. The State of South Australia (1978) 19 SASR 141, Patterson v. McGinlay (unreported as yet) judgment no. 2727.3 dated 27 February 1991.) 35. It seems to me, with respect, that the conclusion that the reverse camber of the road was not causative of the plaintiff's accident may be well founded. The position of the commencement of the skid marks and the subsequent course of the vehicle relate to an area in which reverse camber had little or no part to play until the skid was well developed - although, in the final stages, it may have channelled the vehicle off the road and prevented any last minute recovery. 36. However, as I have earlier pointed out, the apparent acceptance by the learned trial judge of the plaintiff's description of the broad sequence of events clearly indicates to me an initial loss of control well before the commencement of the skid marks and, probably, almost as soon as the bend was entered. The fact that McKnight did not note earlier marks on the road is scarcely surprising. Quite apart from the fact that the thoroughness of his examination was suspect (he did not even see the curve right sign) it is clear that other traffic had traversed the road following the accident. The examination by McKnight did not take place for some 15 hours or so after the accident. Quite apart from normal traffic on the road, rescue vehicles had clearly been present in the area to evacuate the injured persons and also recover the vehicle driven by the plaintiff. 37. It seems to me that, on the evidence, the inescapable conclusion to be reached is that the plaintiff entered the bend at a speed of close to 80-100 kph, was taken by surprise at its presence (possibly not having registered the presence of the first two signs or, at least, their true significance) and commenced to skid in the loose surface when she attempted to execute the turn at a speed too great for safe negotiation of the bend. The weight in the boot of the vehicle clearly exacerbated her problems and, obviously, an initially difficult situation degenerated from bad to worse. I consider that the evidence compellingly indicates that the plaintiff was in serious difficulty not 30 metres from the end of the curved section, but almost as soon as she entered it. 38. As the learned trial judge recognised, there were obvious inherent dangers in the road as constructed. The facts earlier recited in these reasons (as cogently portrayed by the various photographs) indicate that the presence and extent of the curve were not obvious until an approaching vehicle was very close to the crest. It would be natural for vehicles to travel at 80-100 kph over the prior, quite lengthy, straight approach. However, the maintenance of such a speed on entering the curve would have been an almost certain recipe for disaster on the loose road surface, except perhaps in the case of a very skilled driver. So much is the product of plain common sense and everyday experience (as well as the evidence of the expert Aust) and I do not take Duggan J to have held a contrary view. 39. In my opinion, such were the obvious dangers attendant upon proceeding over the crest into a curve, the safe maximum design speed of which was of the order of 65-73 kph, that it behoved the respondent clearly to warn motorists of the danger in ample time and in an unmistakable fashion. It is not adopting the wisdom of hindsight to say that the minimum requirement at the time of the accident was to do what the defendant actually did shortly thereafter - to affix an advisory speed sign below the curve right sign. The present sign indicating a safe speed around the curve of 55 kph gives a clear and unmistakable message that a significant hazard lies ahead if normal speed is not dramatically reduced from what would otherwise be the norm on a well made, open country road. 40. I have the impression that the learned trial judge attached undue importance to the fact that the plaintiff did not apparently see the curve right sign and, by implication, would not therefore have been alerted by the addition to it of an advisory speed sign. I do not think that such a line of reasoning is valid. It might well be that a mere curve right sign, taken alone, would not consciously register with some motorists. However, the additional presence of an advisory speed sign - particularly one which cautioned a dramatically lower speed than the norm - would, in my opinion, be likely to have far more impact and convey a cogent warning to the approaching motorist. Had this been in place at the time, it seems to me that the probabilities are that the plaintiff may well have registered its presence, the more so as the dual sign stands out in far more prominent fashion than does a single sign. 41. Furthermore, it is not to be forgotten that the plaintiff was rendered unconscious by the accident and did not regain consciousness until she was in the Royal Adelaide Hospital. There may be a very real question as to whether she did, or did not, in fact register as to the presence of the two signs at the time. 42. At the end of the day, with all due respect to the learned trial judge, I am satisfied that the absence of an advisory speed sign more probably than not significantly contributed to the occurrence of the accident and constituted negligence on the part of the defendant. Indeed, I consider that, bearing in mind the likely speed of vehicles along the straight stretch of road up to the crest and the sudden change of direction on its reverse slope, there is much to be said for the proposition that the sign in question was too close to the crest. At 90 kph there is, as I have pointed out, only a matter of seconds within which to achieve a major necessary reduction in speed and change of direction. I would therefore hold that the plaintiff did establish her case against the respondent as to liability. 43. That, of course, does not imply any exoneration of the plaintiff from a finding that she was guilty of a substantial degree of contributory negligence. Her general inexperience as a driver, coupled with her lack of familiarity of the inherent hazards of driving on unsealed roads ought to have caused her to drive with considerable circumspection and at a more modest speed than that which might well have been appropriate to a far more experienced driver. Moreover, it can be argued that, prima facie, her lookout left something to be desired, on the perhaps doubtful assumption that her memory remained impaired by her injuries. She should have registered the presence of the first two signs and appreciated that some bend in the road, of unknown proportions and difficulty, lay ahead directly over the crest. This ought to have led her to a significant, immediate speed reduction across the crest until she was able adequately to assess what lay ahead. She did not reduce her speed until it was too late. It follows that she was, in some degree, the author of her own misfortune. Even if the bend on the reverse side of the crest was something of a trap for the unwary, nevertheless the geographic situation must have suggested a need to be more careful than she in fact was. 44. In the event, I would apportion responsibility 60 per cent to the defendant and 40 per cent to the plaintiff. I would therefore allow the appeal, set aside the judgment entered and substitute a judgment in favour of the plaintiff for 60 per cent of her damages to be assessed. 45. In my opinion, the action should be remitted to the learned trial judge to assess damages on that basis.

JUDGE3 ZELLING AJ I have had the advantage of reading in draft the judgments of the Chief Justice and of Olsson J in this matter. I agree with what they have written and have nothing to add. 2. The appeal should be allowed, judgment be entered for the plaintiff for 60 per cent of her damages and the matter remitted to the trial judge for assessment.

McINTYRE v. DISTRICT COUNCIL OF RIDLEY No. 3934 of 1985 Judgment No. 3009 Number of pages - 18 Negligence (1991) 56 SASR 343 [1991] SASC 3009 (6 September 1991)

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Judgment (14 paragraphs)

McINTYRE v. DISTRICT COUNCIL OF RIDLEY No. 3934 of 1985 Judgment No. 3009 Number of pages - 18 Negligence (1991) 56 SASR 343 [1991] SASC 3009 (6 September 1991)

Cases Cited (6)