This evidence was put to the plaintiff's wife in cross-examination. Before seeing the social worker, the plaintiff's wife had apparently spoken with Ms Belinda Quinn, the wife of Stuart Spence, who had been at the dinner on the previous evening. However, Mrs Binks was adamant that she had not told the social worker that her husband had been at Luna Park the previous evening, or that Ms Quinn had told her anything to that effect.
62 The result of this limited material is that no finding could be made (nor was made) as to what the plaintiff was doing between approximately 10.30pm and the time of the accident, nor as to when he last consumed alcohol. Pharmacological evidence indicated that a blood alcohol concentration will drop in what was described as "the elimination phase", which is normally attained about 20-30 minutes after drinking finishes. The blood alcohol concentration tends to decline at a constant rate of approximately 0.015g/ 100ml/hour. Given that the accident occurred at 12.55am, and the blood alcohol reading was taken at 1.45am, it is difficult to see that the actual blood alcohol reading would have been higher than the blood alcohol concentration at the time of the accident.
63 The other relevant consideration arising from the history of events prior to the accident concerns the route being taken by the plaintiff when the accident occurred. On the assumption that he was at the time driving home from Paddington, he would have crossed the Harbour Bridge going north and swung off the Bradfield Highway to the west at Milsons Point, so as to circle under the Bridge and head north again on its east side, in order to reach Neutral Bay. That route would have taken him south down Alfred Street and required him to make a left turn into Fitzroy Street, just short of Luna Park. As it was not in dispute that he was travelling south down Alfred Street, the probable inference is that he intended to turn left into Fitzroy Street.
64 There were two other routes available to him, coming off the Bradfield Highway, which would have allowed him to reach his home in Neutral Bay. He said that Alfred Street was not the route which he normally used, but when asked why he might have used it on that occasion that he thought "it was the quickest": Tcpt, p 182.
65 His Honour accepted evidence (Tcpt, pp 196 and 304-305) that he was "unaware of any road works at the intersection of Alfred Street and Fitzroy Street" prior to the night of the accident: at [74]. There is no challenge to that finding.
66 After turning off the Bradfield Highway, the plaintiff must have travelled some 400 metres south along Alfred Street, before coming near to the point at which Fitzroy Street enters from the east, forming a T-intersection. It was at that intersection that the Council was constructing a roundabout, with 'Give Way' signs governing traffic entering the roundabout and thin "splitter" islands on each of the three roads converging at the roundabout which narrowed the carriageway, so as to permit one vehicle at a time to enter the roundabout from each street. The areas subject of the works were, on the night in question, surrounded by "mesh" coloured red with a broad white stripe in the middle of the mesh. The mesh was attached to star pickets driven into the carriageway. Facing traffic coming south down Alfred Street, the mesh came to a point approximately 20 metres north of the roundabout. There were three flashing lights above the mesh.
67 There was no complaint that the mesh was not visible. In substance, the complaint was that warnings were given too late and that the signage (or lack of appropriate signage) was confusing and in particular that a driver approaching the construction work, travelling south down Alfred Street, might think that the southbound lane was blocked at the intersection with Fitzroy Street. That confusion was not alleviated by the fact that, some 25 metres before the northern alignment of Fitzroy Street, there was a sign across the parking lane which read "Changed Traffic Conditions Ahead" and that 8 metres north of that sign (at 33 metres from Fitzroy Street) was a roundabout sign.
68 Although the mesh achieved a narrowing of the southbound lane, how it gave rise to the mistaken impression that the southbound lane was closed is not entirely clear. Unfortunately, the photographs which were taken after the accident do not clearly show the view of a driver approaching the roundabout, with respect to the left-hand side of the works. However, it may be that there was further mesh at the roundabout, or on the splitter island in Fitzroy Street which, at a quick glance, may have indicated that a left turn from the southbound lane was not possible.
69 Apart from the photographs, his Honour had evidence from consulting engineers with experience in road safety issues and the analysis of motor vehicle accidents. He also had evidence from three witnesses who lived or worked in the area in 1995 who had themselves driven through the intersection at the time the construction of the roundabout was being undertaken.
70 The view of the consulting engineers called for the plaintiff was that the warning devices and signs failed to give clear guidance as to the route to be taken by southbound traffic. The only clear indication was provided by a thin board at the northern-most point of the mesh around the splitter island which read "Keep Left" in letters arranged vertically. At a distance, and at night, that sign was no doubt difficult to read. The evidence of the experts was expressed in somewhat tendentious terms, without any clear indication of what expertise was required to come to the conclusions presented, most of which could be accepted as a matter of common sense.
71 Of the three witnesses who had navigated the road works in 1995, each said that they had obtained the impression that the southbound lane of Alfred Street was blocked. One actually stated that he drove through the intersection on the incorrect side of the road. Although aspects of this evidence might properly have been approached with some scepticism, his Honour concluded at [110]:
"It seems that for the first few days after work was commenced on the central island of the roundabout, the road works were so configured that they were capable of giving the impression to drivers travelling South in Alfred Street that the southbound lane was blocked at the intersection. The signage in place at the time does not seem to have altered that impression for those drivers who gave evidence."
72 This finding, restated at [130], was expressly challenged by the Appellant. The Appellant identified particular deficiencies in the evidence of the three lay witnesses and, it was contended, that the trial judge gave undue weight to a photograph taken the following day facing south down Alfred Street from a position approximately 50 metres before the intersection. The evidence of the experts might also properly have been treated with some scepticism. However, his Honour also stated that he placed weight upon his inspection of the site, when taken on a "view". Precisely what impression was obtained from a view of the site which had changed in significant respects from the time of the accident, was not explained. However, no doubt deference should be accorded to the statement that the trial judge obtained assistance from it: see Evidence Act 1995 (NSW), s 54 and Pledge v Roads and Traffic Authority [2004] HCA 13; (2004) 78 ALJR 572 at [35] (Callinan and Heydon JJ). Taking the whole of the evidence into account, as his Honour clearly did, there is no error demonstrated in the conclusion reached by his Honour at [110], set out above.
73 Once it was accepted that the configuration of the intersection during the construction work was confusing, at least for a driver heading south down Alfred Street, it was but a short step to accept that some further signage was reasonably required and that those undertaking the construction work should reasonably have provided such signage in exercise of their duty of care to road users.
74 His Honour drew each of those inferences; at [128] his Honour concluded:
"Given the nature of the works and the fact that they would substantially encroach onto the southbound lane in Alfred Street, the signage and other indicia were inadequate to sufficiently place motorists on notice that there would be a significant lateral movement to the East. The vertical 'keep left' sign was patently inadequate. The only other sign which indicated that anything unusual was occurring (leaving aside the conventional roundabout signs which would not have had that effect) was the 'changed traffic conditions ahead' sign which was not only too close, but failed to provide sufficient information. Both signs failed to comply with the Standard."
75 At [131] his Honour stated:
"There was no indication such as LSMs [lateral shift markers] that the southbound lane remained open and that a southbound driver should expect to move laterally to the East. This was not a situation where the evidence established only that more could have been done. The combination of the configuration of the road works with the inadequate signage created a confusing and ambiguous situation. In a dynamic circumstance involving drivers travelling at night at speeds of 60km/h or more, such ambiguity and confusion became a source of danger. More signs, better positioned and containing more information such [as] LSMs were required to reduce this danger."
76 These conclusions, which were central to the finding of negligence on the part of the Council, were somewhat imprecise as to what was required. The reference to the "Standard" was a reference to the Australian Standard 1742.3 - 1985, published by the Standards Association of Australia, relating to traffic control devices for works on roads. By reference to the relevant aspect of the Standard, a "lateral shift marker" might have been understood to include a black board 600mm square with a reflecting yellow chevron pointing in the direction to which traffic was required to shift. Accepting that the splitter island involved a confined area, one or more single chevrons of that size might have been treated as relevant to the circumstances. Three such arrows were proposed by Mr Morrison, a consulting engineer called by the plaintiff. In addition, Mr Morrison proposed two signs, the first to be located approximately 165 metres before the intersection, reading "Roadwork Ahead" and a second, possibly 85 metres before the intersection, reading "New Roundabout Ahead". The sign "Roadwork Ahead" may be thought not to provide any greater information than the sign in fact used, which read "Changed Traffic Conditions Ahead". However, instead of being 25 metres short of the intersection, the proposal was to place it 165 or even 200 metres before the intersection. Secondly, the identification of the actual road works, namely a new roundabout, some 85 metres before the intersection, could be seen to have a greater impact than a standard roundabout sign on a single post beside the road, some 35 metres before the intersection. Finally, the chevrons could be seen as saying no more than the "Keep Left" sign that was used, but they would have been more clearly visible at a distance and certainly more visible at night. As his Honour noted, the "Keep Left" sign at the north end of the mesh around the new splitter island was off-set to the east of the centre line approximately 500mm: at [83]. Accordingly, there would have been no difficulty in fixing a 600mm wide chevron at the northern point of the splitter island and perhaps a second, closer to the roundabout.
77 Against this approach it might be argued that the Standard envisaged the use of lateral shift markers on carriageways where drivers are required to move out of a lane and particularly on wide open roads or highways. Alfred Street was a reasonably narrow suburban street, allowed, with parking, only one lane of traffic in each direction and, prior to Fitzroy Street, extended for little more than 500 metres to the north. The road works themselves were readily visible and the signage warned of changed conditions. There was no suggestion that a lane was closed or that it was necessary to detour, let alone cross to the wrong side of the road. Absent a clear indication that such was the case, a reasonable driver would not assume a lane was blocked or take the step of crossing to the wrong side of the road. Further, unnecessary signage is apt to create, rather than lessen, confusion: saying that the driver could proceed in the lane in which he or she was travelling would generally be unnecessary and inappropriate.
78 These arguments, however, lose some weight in circumstances where the configuration of an intersection creates potential confusion. In such circumstances, different or additional signage may be necessary to warn the driver of precisely what is being approached and which direction should be taken.
79 In the circumstances, the steps which his Honour treated as appropriate and necessary in the exercise of reasonable care for the safety of road users should be understood to include those identified above. They should also be understood as reasonably necessary to resolve confusion in the mind of a driver taking reasonable care. So understood, there is no error demonstrated in his Honour's conclusion that it was negligent on the part of those constructing the roundabout and splitter island not to use such signs and chevrons, placed as indicated.