Palmer v RTA & Ors

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION 20339/98 WOOD CJ AT CL

THURSDAY 20 DECEMBER 2001 PALMER V ROADS & TRAFFIC AUTHORITY OF NEW SOUTH WALES & ORS

INDEX TO JUDGMENT Paragraph A. INTRODUCTION 1 B. THE ACCIDENT 7 C. THE ROADWORKS 1. The State of the Road 15 2. Spray Sealing Operations 19 3. Factual Issues in relation to the Road 27 a) Loose Stone signage 28 b) Tyre marks on shoulder? 34 D. THE CAUSE OF THE PLAINTIFF'S ACCIDENT 44 1. Lay Witnesses 46 2. The Expert Evidence 63 a) Joint Experts' Report 64 b) The Possibilities 68 c) The expert witnesses 70 3. Findings on Causation 154 E. WAS ANY DEFENDANT RESPONSIBLE IN LAW FOR THE CONSEQUENCES OF THE ACCIDENT 199 1. The arrangements between the RTA and the Council for the provision of the roadworks 200 2. The Contract between the Council and Pioneer 266 3. Post Accident Modification 279 a) Armco Railing 280 b) Speed Advisory Sign 296 c) Relevance of Post Accident modifications 298 4. Findings on Duty and Breach 313 a) Submissions concerning The Council 314 b) Submissions concerning the RTA 332 c) Findings in relation to the Council and the RTA 351 d) Findings in relation to Pioneer 393 F. CONTRIBUTORY NEGLIGENCE 403 G. CROSS CLAIMS 1. The relevant Principle 410 2. The RTA 415 3. The Council and Pioneer 419 H. DAMAGES 1. Background 433 2. Agreed Damages 437 3. Consequences of the Accident 438 4. Life Expectancy 456 5. Child Care 485 6. Funds Management 513 7. General Damages 540 8. Summary of Damages 543

A. INTRODUCTION 1 HIS HONOUR: The plaintiff brings these proceedings in relation to the catastrophic injury which she suffered on 27 February 1997, when the manual 5-speed Hyundai Excel sedan which she was driving, left the Nobby's Hill section of Main Road 54, also known as the Peel or Sofala Road, in the Bathurst district, and rolled over, as it made its way down an embankment. 2 No other motor vehicle was involved in the accident, and her case depends upon her establishing negligence on the part of one or more of the defendants, the Roads & Traffic Authority of New South Wales ("the RTA"), the Council of the Shire of Evans ("the Council") and Pioneer Road Services Pty Ltd ("Pioneer"). 3 Each of the defendants has denied liability and has brought a cross claim for contribution or indemnity against the other defendants, to meet the contingency of it being held liable. Pioneer has brought a cross claim against the only other party joined to the action, QBE Insurance ("QBE") based upon a policy of insurance issued by that company, which it asserts, extends to provide cover in respect of any liability which it may incur. 4 Apart from denying any negligence on their part, the defendants have raised a defence of contributory negligence, alleging that the plaintiff was driving at an excessive speed, that she failed to maintain a proper control of her vehicle, and that she failed to pay attention to various warning signs placed beside the roadway, over a distance of about 2.5 kms. preceding the bend where the accident occurred. 5 Determination of the issues concerning the plaintiff's speed, and the cause of the accident, depends upon the evidence of those lay witnesses who had the opportunity of directing their attention to the state of the roadway immediately following the accident, and also upon the evidence of those expert witnesses who offered opinions, based upon their own subsequent examination of the accident scene, as to what had occurred on the morning of 27 February. 6 In this regard their evidence was supplemented by the following exhibits:

Exhibit A - a bundle of photographs of the accident scene taken on the day of the accident;

Exhibit B - photographs 1, 7 and 13, marked by David Suttor, attached to his statement;

Exhibit P3 - a television news video clip similarly made on the day of the accident, the value of which is limited by reason of its lesser definition of the road surface;

Exhibit C - photographs attached to the statements of Messrs Johnson and Hesper;

Exhibit 11 - an aerial photograph of the road and accident site;

Exhibit G - notes taken by a police officer (Snr. Const. Rose) at the scene, on the day of the accident, including his measurements of the skid marks;

Exhibit H - aerial photograph marked by Senior Constable Rose;

Exhibit R3 - the P4 accident form prepared by Senior Constable Rose;

Exhibit M1- M3 - aerial photograph with overlays of the signs in existence at the time of the accident, as well as those which various experts said should have been provided;

Exhibit P - photographs marked in the course of the evidence of Mr. Hesper;

Exhibit R7 - 65plan prepared by Detective Senior Constable Keogh.

B. THE ACCIDENT 7 It is first convenient to note the evidence of the plaintiff, and of the one motorist who had an opportunity to see her motor vehicle within a short time before it left the road. 8 The plaintiff was born on 25 December 1974, and was aged 22 years at the time of the accident in which she suffered a C2 spinal injury. As a result, she is almost wholly disabled, being unable to move any portion of her body below mouth level. She is significantly impaired in speech and partially impaired in hearing (the latter due to an unrelated condition). She could not remember, when called as a witness, anything in relation to the accident. She had, however, made a statement to her Counsel, on 27 July 2000, in which she had said: "On the day of the accident I recall approaching the bend which turned to the left just as I drove towards Bathurst when my accident occurred. I recall that I was driving relatively slowly, that is a speed less than the advisory sign which was 75km an hour. I recall the car wheels coming into contact with loose gravel and the gravel hitting the car. I slowed my car further. As I began to round the bend I recall the steering wheel pulling to the left. I have no further recollection of what occurred after that time." 9 This statement was received without objection. It was, however, established, through the limited examination and cross examination which could be conducted, with the assistance of a nursing sister who had some familiarity in communicating with her, and independently through the evidence of other witnesses, that:

a) she had been licensed to drive a motor vehicle in November 1996, and hence had only three months driving experience before the accident.

b) she had regularly driven over the road from her home "Pindari" at Wattle Flat, to Bathurst and back, between the time of gaining her licence and the time of the accident, either for the purposes of her work, or for social purposes.

c) she had not used the road, however, over the several days preceding the accident (ie after 22 February) and hence she had not encountered road works or gravel in the Nobby's Hill section of the roadway, before coming upon it, on the morning of 27 February. 10 Although varying estimates were made, in hindsight, of the speed at which the plaintiff had been travelling before her accident, there was only one witness whose evidence, it seems to me, was capable of providing any reliable guide in this respect. That witness was Mr. David Goodfellow, who lived on a property "Bundawarra", some 9.8 kms. north of the accident scene. He said that he saw the plaintiff's vehicle drive past the entrance to his property, as he drove down to his gate. Her speed at that point, he estimated to be about 70-80 km/h. 11 After opening and shutting the gate, he then drove his vehicle a further 200m or so down a driveway to the road before turning onto it, and proceeding towards Bathurst. The time involved in this exercise he later fixed at 2.5 minutes. 12 He said that, thereafter, he drove along the road at about 90-95 kmh, in the straight sections, and at a lesser speed around the bends. About one kilometre north of the accident site, he came into sight of the plaintiff's vehicle as it entered the first bend. 13 It is implicit in this evidence that he had been driving at a speed that was faster than her, since otherwise he would not have been able to make up the time which had been lost in exiting his property. It was his assessment that as the plaintiff entered this bend, she was going at a moderate pace "no faster than the 75kms and no slower than 60". 14 He said that he lost sight of her vehicle as she rounded that bend. The next thing which attracted his attention was a "pile of dust" arising from below the western side of the road. He then observed the plaintiff's Hyundai down in a gully on the side of the road facing in the direction from which it had come. It is evident from the crushed roof of this vehicle that it had rolled at least once, on its way down the 3 to 4 metre embankment to its final resting place, some 9 metres into a paddock of the property "Brucedale", owned by Mr. Suttor.

C. THE ROADWORKS 1. The State of the Road 15 Save for some questions concerning the full extent of the warning signs in place at the time of the accident, and the quantity of gravel on the roadway, there was a measure of agreement between the lay observers and the experts concerning the layout of the road and its state. In substance, their evidence established the following:

a) Main Road 54 runs between Bathurst and Main Road 55, and travels through the townships of Sofala, Peel and Wattle. For most of its distance it is a single carriageway in each direction, carrying a light to medium traffic volume, estimated at the time of the accident, at about 600 vehicles per day, and serving mainly as a tourism and inter-regional link to Bathurst;

b) Being a classified Main Road it came under the overall responsibility of the RTA, although the operational responsibility for it was vested in the Council, in which the fee simple was vested (S 145 of the Roads Act 1993, subject however, to the limitations on the incidents of ownership noted in S 146 of the Act);

c) The RTA had provided funding to the Council to carry out the resurfacing work, in accordance with the arrangements later examined, in the section of roadway extending over a distance of approximately 2.5kms, with which this case is concerned, ie in the area including Nobby's Hill;

d) The Council entered into a contract with Pioneer to carry out this work;

e) The relevant work commenced at a point approximately 250 to 300 metres south of the Winburndale Rivulet, and ended about 500m past the top of Nobby's Hill, near the Evans Shire and Bathurst Council boundary - ie over an area extending from a point 12.7 to 10.1 kms. North of Bathurst;

f) For a motorist travelling in a southerly direction along the road, the relevant section of roadway commenced with a long sweeping right hand bend in the vicinity of Ardsley Lane, followed by an uphill and generally straight section which then turned to the left, followed by a short straight section, which led into another left hand bend at the top of the hill, and then opened out into a straight section, just after the commencement of which the plaintiff's vehicle left the road (ie at a point which was opposite the dam on the eastern side of the road, and about 50 metres from the end of the bend).

g) At a point about 2.5 kms north of the accident site, at the bottom of the hill, on the eastern side of the road, and facing a southbound vehicle, such as that driven by the plaintiff, there was a yellow sign with the words "roadwork ahead" printed in black letters;

h) At a point a further 150 metres to the south, and on the same side as the sign last mentioned, just north of the Winburndale Rivulet bridge, there was a red sign with the words "reduce speed" printed in white letters;

i) At a point, a further 100 metres south of the last mentioned sign, just short of the bridge over the Winburndale Rivulet, and on the same side of the road as the last mentioned sign, was a further sign with a yellow background and, in black letters the advice "changed traffic conditions ahead";

j) The three signs mentioned so far preceded the commencement of the roadworks and, it was common ground, that each had been erected by the Council.

k) A "65km/h" advisory sign was in place preceding the right hand bend at Ardsley Lane previously mentioned, which was followed by a "ROAD NARROWS" graphic sign;

l) The last sign facing a southbound motorist before the accident site was another advisory speed sign on yellow with black letters "75 km/h", below a sign indicating an S shape bend commencing to the left. This sign, it was common ground, was intended to act as a "multiple curve warning", flagging, on this occasion, two bends to the left separated by a straight section of roadway. The straight section was measured to be about 110 metres in length, and the second bend, it was common ground, was tighter than the first. As such this compound bend answered the description of a "broken back bend". By whom the 75 km/hr sign was erected, and when that occurred, was not established;

m) These last mentioned signs were located about 0.9 kms from the "road narrows" sign and about 0.35 kms to the north of the point where the plaintiff's vehicle left the road. The 75 km/h speed advisory sign had not been covered over with hessian, or otherwise obscured before the accident;

n) To the west of the section of roadway where the plaintiff's vehicle left the road, which I have observed was just after the end of the left hand bend at the top of the hill, there was a ragged earth embankment, falling down for a distance of four to six metres to an earth bank which rose in the opposite direction, and eventually to a creek bed;

o) Located part way down this embankment, at a distance about one metre from the road verge, there was a farm fence which had been erected upon the property "Brucedale", of the traditional type, comprising timber posts, fixed at intervals, with steel pickets between them, and strung with wire;

p) For a north bound motorist approaching the top bend, there was a speed advisory sign "55 km/h", ie one advising a speed 20 km/h less than that for a south bound motorist approaching the same bend;

q) At the time of the accident, there was neither a chain wire and post fence, or Armco guard railing, adjacent to the corner preceding the accident site, or adjacent to the embankment over which the plaintiff's vehicle travelled. Further, there were no painted centre lines, although there were some temporary black markers ("sticks and stomps") in place to indicate the centre of the roadway;

r) The top bend immediately preceding the place where the plaintiff's vehicle left the road ("the top bend") was measured as having a radius of approximately 110 metres. Different assessments were initially made of the degree of its superelevation or banking although ultimately the experts agreed that it was in the range of 13.5 to 14%;

s) By mid afternoon on Monday 24 February, following the resealing work, 7mm aggregate or gravel, as it was variously referred to by the witnesses, had been spread over the new seal in the Nobby's Hill area, its purpose being to assist the surface compaction, and to protect the surface as it settled down. Removal of the loose gravel remaining on the road surface had been planned for Friday 28 February. In the meantime, as Mr. Vautin made clear in his evidence there had been no brooming of the road surface to remove any gravel from the road surface;

(t) On the morning of the accident, there was a layer of loose gravel remaining on the roadway in the area where the accident occurred, some of which had been moved by the passage of vehicles into shallow windrows or accumulations, to the nature and extent of which I will return in more detail, since some factual issues arise in this respect of relevance for the opinions of the expert witnesses as to the cause of the accident;

(u) Noise from the presence of the gravel was audible to a motorist driving over it;

v) Following the accident, distinct tracks were observable in the gravel remaining on the roadway, indicating that the plaintiff's vehicle had traversed the section of roadway to the point where it went over the embankment, in a yawing motion;

w) These tracks, appeared to commence on the southbound side of the carriageway at a point after the starting or tangent point for the top bend on the left hand side of the temporary centre line marker, and extended across the northbound side of the carriageway for about 26 metres, to the point where the vehicle left the roadway, about 2.8 km south of the Winburndale rivulet Bridge;

x) To the extent to which there was some difference of opinion, between observers on the day, as to whether or not there were also tyre marks on the unsealed white gravel shoulder, on the inside of the top bend, I shall return since it also has some significance in relation to the cause of the accident;

y) In June or July 1997, some five or so months after the accident, Armco railing, extending over a distance of approximately 480 metres, was erected, in the vicinity of the accident site, on the western side of the road. In 2001, a 55 km/h advisory speed warning was erected before the top bend, in place of the previous 75 km/h sign;

z) The weather conditions on the day of the accident were fine and the roadway was dry. 16 Upon the evidence as led, it is clear that mechanical failure, or negligence on the part of any other road user, can be excluded as a cause of the accident. 17 In this regard, it was established that:

a) When the plaintiff's vehicle was examined in the paddock where it finished up, it was found to be in third gear.

b) Subsequent examination of the vehicle failed to detect any damage to the wheel rim or nearside front tyre of the kind which might have suggested that it had been insufficiently inflated, or that it had suffered a sudden deflation before leaving the roadway.

c) There was consensus that the buckling found in the wheel rim, and the unseating of the outboard bead of the tyre had been the result of collision damage. No other mechanical fault or defect was found in the vehicle.

d) No evidence exists to suggest the presence, in the immediate vicinity of the accident, of any other vehicle, whether northbound or south bound, which may have been involved in any incident with the plaintiff's vehicle, or which may have contributed, in any way, to her leaving the roadway. 18 It was established that some months earlier, the relevant section of roadway had been widened by the addition of a strip of extra pavement on each shoulder. The joins between the original pavement and the shoulder widening, Mr. Hespe noticed, had left a slight ridge in places, as was evident from Photographs I, J and K, attached to his Report. To the possible significance of that ridge, I shall also return.

2. Spray Sealing Operations 19 As Mr. Johnston explained in his report, the roadworks involved the application of a sprayed bituminous binder over which a quantity of loose stones were to be spread and then rolled into the binder. Following completion of this portion of the work, the excess stone was to be swept off, leaving a small quantity to remain behind for the final bedding in process. Thereafter the road was to be opened to traffic for the final bedding in process, which would normally take place over the succeeding 24 to 48 hours. At the conclusion of this period, any remaining loose stone which had been left behind for the final bedding in, or which had been dislodged by passing traffic, was expected to be swept away. It was during this phase of the operation, after the initial application but before the final sweeping, that the plaintiff's accident occurred. 20 Roadworks of the kind here involved, it was established, are the subject of specific publications dealing with matters such as the procedures and guidelines to be followed for spray sealing operations, including instructions as to the use of signposting and traffic control plans. Two relevant documents identified were: a) Australian Standard AS 1742.3 which deals with signposting issues; and b) The RTA Spray Sealing Guide (1991), which identifies appropriate procedures and guidelines for the conduct of spray sealing and for the provision of a post sealing traffic control plan. 21 It may be accepted, as a matter of common sense, although it was also confirmed by Mr. Johnston in his Report, that the purpose of roadworks signposting is to: a) provide a timely warning to approaching motorists that roadworks are being undertaken; and to b) instruct them exactly what they should do, in order to safely negotiate these roadworks, taking into account the specific hazards associated with them. 22 This is reflected in AS 1742.3, clause 2.2 of which states: '2.2 GENERAL: No matter how brief the occupation of a work site may be, careful consideration has to be given to the signing of the site - a) to provide adequate warnings of changes in the road surface or in driving conditions and of personnel and/or plant engaged in work on the road; and b) to adequately instruct and guide road users safely through, around or past the work site." 23 The notes to fig. 5.25 which depicts the signage appropriate for traffic passing though a work area on a two lane, two way road, specifies that "any inappropriate signs … should be removed", during the currency of the works. 24 Table 4.2 of the Australian Standard provides a guide for the provision of warning signs and for the selection of speed limits at roadworks, as follows: " Advance Warning Signs 4.2.1 General Requirements for the display of advance warning signs and devices will vary according to factors such as the speed of approaching traffic, the degree to which the hazard requires modification of speed or diversion of travel path, or extra vigilance for other reasons, and the sign distance available to the hazard, including sight obstruction caused by other traffic. Typical advance sign layouts are illustrated in Figure 4.2. " 4.4 Creating a Roadwork Speed Limit Zone 4.4.1 General Speed limit zones are appropriate where the consequences of excessive speed are not apparent and motorists are unlikely to reduce speed voluntarily. A speed limit zone should not be introduced unless it is either self-enforcing or likely to be enforced. Roadwork speed limit signs should not be used alone but introduced in addition to other signs and devices already required by prevailing site conditions. Where traffic controllers would be effective, particularly on short-term works, roadwork speed limits may not be necessary, but equally, where both are needed, both should be provided and reliance should not be placed on the use alone of either speed limits or traffic controllers. Speed limits shall not be used where alternative means of traffic control such as advisory speed signing would be adequate, nor should they be used to avoid the necessity for some other more appropriate action such as the use of a traffic controller to slow traffic at a critical location. 4.4.3 Selection of appropriate speed The following principles should be applied in the selection of an appropriate speed limit: (a) The speed limit applied to a zone should not exceed the maximum safe speed of travel which depends on the degree of vehicular and pedestrian activity, and the type and extent of the work in progress, as well as the characteristics of the road. The more frequent the incidence of conflicts or hazards on the road, the lower the maximum safe speed of travel. (b) The speed limit should not be so low that a significant number of motorists will disregard it. Prevailing conditions vary over a length of road so any speed limit imposed is a compromise. (c) Speed limits should encourage uniform speed of travel but be low enough to allow drivers time to react to unusual events or to directions by personnel or traffic controllers. … A guide to the selection of speed limits at roadworks is given in Table 4.2 NOTE: State legislation may specify the speed limits to be used in various circumstances. 4.4.6 Repeater signs Repeater speed limit signs should be provided as follows: (a) To confirm and remind road users of the speed limit where it is imposed over a considerable length and there are locations where it may appear that the limit no longer applies, eg between work areas in an extended work site. (b) Where traffic enters from a side road and it is necessary to advise drivers of the speed limit in the road they have entered."

Table 4.2 Guide to the Selection of Speed Limit at Roadworks Speed limit km/h Selection criteria 60 A fresh bituminous seal has just been laid In rural areas, the appropriate speed limit for roads in progress is generally 60 km/h. For example, such a speed limit would be suitable for the protection of a newly-sprayed seal, thereby reducing the possibility of damage to vehicle windscreens. It would also provide a degree of protection for personnel where increased pedestrian, vehicular and plant movements occur at a work area in a similar manner to that encountered in a town area

25 It may be noted that the RTA Sprayed Sealing Guide also deals with the question of speed so far as it states, in Section 6.6 under the heading Traffic Control Procedures: "Control of traffic is necessary in sealing work to provide for the safe movement of traffic and the protection of persons and property through and/or around the work site. Control of traffic is also necessary during the early exposure of a fresh sealing treatment to traffic. All traffic control must be carried out in accordance with RTA Specification 1002. "During spraying operations it is essential that traffic be detoured or stopped for short periods. The work should be organised so that any delay to traffic is limited to less than 15 minutes. In order to control vehicle speeds, a temporary 60 km/h speed zone should be established. This zone should extend at least 100 m beyond the limits of the work and should be left in force until after all excess aggregate has been removed from the seal. Local Police should be notified for surveillance to ensure that the speed limit is complied with." 26 Having regard to the 75 km/h sign which was still in use, and which was the last traffic advice presented to a motorist entering the top bend, (located at a point approximately 350m back from the point at which the plaintiff's vehicle left the road), it must be regarded as having been reasonably foreseeable that a motorist observing it would consider it appropriate to approach this bend at a speed of that order. It must also be regarded as having been reasonably foreseeable that users of this road would include drivers of varying degrees of experience and competence, as well as motorists using small vehicles with front wheel drive. Similarly, it must be regarded as having been foreseeable that a motor vehicle exiting the roadway on the western side of the roadway over the embankment would drop a considerable distance and would be most likely to roll over.

3. Factual Issues in Relation to the Road 27 Before turning to the critical issue as to cause of the plaintiff's accident, it is convenient to deal with two factual issues concerning, first, the signs in use, and secondly, the marks left on the roadway by the vehicle.

a) Loose Stone Signs 28 The first of these questions concerns the presence or otherwise of one or more loose gravel or loose stone picturegrams, along the relevant section of roadway where the resealing was taking place. None of Mr. and Mrs Goodfellow, or Constable Stone recalled observing any such signs. Senior Constable Keogh, who attended the area for the purpose of conducting a scientific examination of the scene, travelled back over the roadway for the purpose of noting the signs in position. Apart from noting the signs already mentioned, he observed one "stone throwing" sign at a point 1.4 kms south of the Winburndale Bridge. He did not note any other such signs. 29 Mr. Vautin, the Works Manager of the Council, initially said that in addition to the signs previously mentioned, there were at least six gravel picturegrams in the Nobby's Hill area of roadworks, three facing to the south and three facing to the north. According to him, these comprised signs depicting two cars with a stone flying from the wheel of one vehicle and a star in the windscreen of the second vehicle. Mr. Vautin initially said that for a southbound motorist, the first of these was fixed to a guidepost at the northern commencement of this section of sealing work, the second was located near the right hand bend at Ardsley Lane, some 500 metres up the road from the bridge, and the third was at the beginning of Nobby's Hill, a further 300 metres south of Ardsley Lane. These signs he said were erected by Pioneer. Although he could not recall the location of any other signs, he thought that there may have been several more such signs, it being his impression that they were spaced along the works every few hundred metres or so. However, it became evident, when Mr. Vautin was recalled on 7 August, that he was in fact "unaware of the Pioneer signs that (had been left) on site" in the "after care", ie post sealing stage. He said in this respect: "I presume Pioneer would have erected some signs on the road works, but I can't recall what they were". 30 On any view, this was a significant departure from his very firm earlier insistence that there were stone warning signs in place at the specific locations which he had then identified. It seems more likely that his recollection was somewhat general and directed to the situation as it existed during the spray sealing stage, over the three separate sections upon which work was undertaken, rather than the "after care stage" in the Nobby's Hill area. 31 His evidence in relation to this question may also be considered in the light of the fact that, in his original statement Mr. Vautin had said that he had observed "very little loose gravel on the roadway", none of which answered the description of being "stacked layers" or "windrows" of aggregate. In cross examination, he conceded that in "certain parts" of the roadway, there was "substantial aggregate" on the bitumen, and that it was more than he had suggested in his statement. This did not reflect well on his overall credibility. 32 Conversely, so far as he was cross examined to suggest by implication that he had fabricated the evidence concerning the picturegrams, it is the case that, in an earlier draft of a statement which he had made, he had referred to "Pioneer Road Services warning signs' having been erected by "their sealing crew" although without identifying where they had been, or what precisely they had comprised. 33 I find, in these circumstances, taking into account, additionally, the absence of any witness from Pioneer, that the signs present were confined to those which were specifically recorded. They included, I find, only the one "stone damage" pictogram which Detective Senior Constable Keogh noted. I am not persuaded that there were any other such signs still in position along the climb up Nobby's Hill to the top bend.

b) Tyre Marks on shoulder 34 There was also an issue as to whether there were or were not any tyre marks in the gravel on the eastern shoulder of the road, which may have been consistent with the plaintiff's problem having begun when her near side wheels drifted off the roadway 35 This has a relevance for the fourth of the possible scenarios which were investigated as having been the cause of the accident. It rested substantially upon the evidence of Messrs Savage and Bardell, employees of the Council who had arrived at the scene after the accident, and who had assisted with traffic control, and who had stopped off there again, at about midday, while returning to the Council depot. 36 Mr. Savage said in a statement which he made in October 2000, that he observed at the time of this second visit, that there was "a line from the heavy skid marks in the middle of the road to a position where the vehicle had gone off the tarred shoulder of the road on the left hand (ie eastern) side of the road". He added that: "At that point the tyre marks were about one foot off the left hand side of the roadway. The tyre marks went from the gravel shoulder then veered in a distinct line to a skid. I then observed four sideways skid marks from the middle of the road to the edge of the embankment where the vehicle appeared to have gone over." 37 He agreed that the additional marks "off the left hand side of the roadway" were not evident in any of the photographs taken that day. 38 When questioned further about those marks, it became by no means clear what it was that he was referring to, since he said "there wasn't any actual mark"; rather there were "scuff marks off the edge of the bitumen". Although he had earlier said the marks were continuous, and had then said that they comprised a single tyre mark, he appeared later to be saying that what he observed amounted to a scuff or dust mark just on the edge of the road, adjacent to the guidepost at the point of the curve, followed by a gap, which he said was in the order of five metres or so, to the marks on the road surface. The point which he indicated for the scuff mark, however, would necessarily have to have been closer to twenty metres away from the marks on the bitumen. By this stage of the evidence, it had become clear that he was not describing a continuous mark between the shoulder and the tracks left on the road, and that at best he was reconstructing or assuming a connection between whatever it was that he saw. 39 Mr. Bardell provided a statement in October 2000, in which, similarly to Mr. Savage, he reported seeing tyre marks in the gravel on the left hand shoulder of the road. In his words: I observed a number of skid marks on the road. I estimate that I saw the first skid marks on the gravel shoulder approximately 30 metres back from where I observed heavy skid in approximately the middle of the road. I could clearly see a set of tyre tracks off the bitumen on the left hand side of the road where it appeared that the offside wheels had travelled in the gravel for a short distance of about 4 - 5 metres before pulling on to the tar." 40 He said that he made a contemporaneous diary note, which was produced, recording this observation. The relevant observation, concerning wheel marks in the gravel "15 inches in from sealed edge" comprised marginal notes, which he said had been written later that day. To some extent, they provide a prior statement consistent with his evidence, which needs also to be considered in the light of the circumstance that, in cross examination, he added that he observed a "sheen of rubber" on the bitumen surface "in both directions … towards the bank where the car went over and prior to that back to and from the corner". These marks he said "followed … right back to the gravel shoulder", as a "continuous mark". 41 This piece of his evidence does not accord with that of Mr Savage who seemed, at the end, to suggest that there was not a continuum of the marks from shoulder to shoulder. Moreover, to a degree Mr. Bardell's impartiality was questioned by his refusal, in cross examination, to acknowledge that there was any loose gravel on the road. 42 Mr. Savage's evidence was so uncertain and so contradictory that it should, in my view, be entirely disregarded. While Mr. Bardell was more consistent in his account, his observations simply do not sit with those made by Constable Rose and Detective Keogh, whose function and training it was, to look for such marks and who did not observe them. Nor do they sit with the photographs taken immediately after the accident occurred. 43 The explanation for any marks which Messrs Savage or Bardell may have seen at midday, ie assuming that they saw any, in my view lies more credibly in the circumstance that, during the period before they made their observations, there were many other vehicles stopped in the area, including a fire truck, a tow truck, an ambulance, several police vehicles, and council vehicles, as well as those of motorists who stopped either to render assistance or to have a look. Any one of them could have left marks in the shoulder. For these reasons I am not persuaded that there were tyre or scuff marks left by the plaintiff's vehicle in the gravel on the left hand shoulder of the roadway, or that there is any factual basis for concluding that the accident was caused by her driving off the carriageway in this area onto the gravel shoulder, and then losing control as she tried to correct the situation.

D. THE CAUSE OF THE PLAINTIFF'S ACCIDENT 44 The critical issue which arises is whether the accident was due solely to driving error on the part of the plaintiff, or whether it was due to negligence, on the part of one or other of the defendants, in relation to the state in which the roadway was left, and/or in relation to the absence of sufficient or appropriate warning or advisory signs concerning the roadworks. It is only after this question is resolved, assuming it to be capable of resolution, that consideration can be given to the potential liability of the various defendants. 45 Its resolution requires a consideration first of the evidence of the other road users who had encountered the relevant conditions in the immediate period before the accident, as well as over the longer term, and next the evidence of the expert witnesses.

1. Lay Witnesses. 46 David Suttor of "Brucedale", Peel, gave evidence of his experience with the road, and of its condition during the roadworks. It was his property which adjoined the road at the accident site, and onto which the plaintiff's vehicle was propelled after leaving the carriageway. 47 He said that, following a number of accidents in the area, he had spoken to an employee of the Council, who he felt might have been Les Lovell, in the early 1990s, concerning the possibility of erecting Armco fencing adjacent to the bend at the top of Nobby's Hill. He recalled informing the officer that there had been a number of accidents there, that he was concerned that someone might be injured because of the depth of the gully, and that his fence was being repeatedly damaged, leaving him at risk of his cattle getting out onto the road. He was informed that there was not enough money to do anything like that because it was expensive. It was his impression that at least 6 to 8 vehicles had gone through the boundary fence onto his property over a period of 30 years or so, and that these accidents had involved vehicles travelling both up and down the hill. 48 Shortly after speaking with the Council, he observed some reflective directional arrows being erected to depict the corner for northbound traffic. They were in place at the time of the plaintiff's accident, and they were replaced with orange arrows on top of the Armco railing when it was installed. 49 He had similarly noticed, after the resealing work in the Nobby's Hill area, that there were definite wheel tracks between loose gravel on the roadway. Otherwise, it was his impression that the road surface was well rolled in. The relevant corner, he said was a long corner which went a lot further than one might expect. 50 John Suttor, the father of David Suttor, also gave evidence in relation to the roadway, which was corroborative of that of his son, including the fact that there was a bit more to the bend than one might expect, ie it could be a "little sharper" than a motorist proceeding up hill would anticipate. He recalled having found himself on the wrong side of the road and agreed that there had been other accidents on the bend before the plaintiff's accident, involving vehicles travelling in either direction which had ended up down the embankment on their property, or which had hit their fence. 51 Mr. Goodfellow, who had over 35 years experience driving on country roads of all kinds, said that he had noticed the build up of the gravel which had been left on the road during the resheeting, and the tyre marks between the accumulations. Driving in the tyre marks he said was "quite good", although he thought that "if you got into the gravel… it would have been unsafe". 52 His wife, who had used the road on a number of times between 24 February and 27 February, as well as previously, said that she had concerns with its condition because of the mounds of gravel which had built up in the middle, and on the inside, of the top bend, near the dam. 53 On the evening following the blue metal being put down, she said "You could feel it moving" as she drove over it. In cross examination, she explained that after the gravel had been moved by passing vehicles, particularly truck traffic, "you couldn't go on the line around the road because there was too much asphalt (an expression which she used for gravel) built up (and) you had to follow the truck line". 54 She also said that she always drove cautiously around this bend, and explained that there was a tendency for a vehicle taking the corner to go out and across the road. 55 Bronwyn Marsh, who came upon the scene soon after the accident and rendered emergency assistance to the plaintiff, reported that she had found the road surface to be slippery due to the loose gravel. Her vehicle she said "felt different", and, by reason of the "poor traction", she found it necessary to "slow down a lot". She regarded the top bend as "quite a sharp corner", the tightest in the area. 56 Senior Constable Rose, who arrived at the accident scene at 8.30am. gave evidence of his observations on the roadway, as well as of the impression, which he had previously gained, in relation to a possible difficulty with the top bend. As to the latter, he said that "if you drive too quickly around the bend … the (camber) seems to throw you to the right hand side of the roadway across the centre line." 57 He observed the presence of gravel on the roadway, as well as tyre tracks on both sides of the centre of the road, which had been delineated by vehicles travelling over it. He said that the gravel had "started to build up into the centre of the roadway and to both sides of" it. The loose gravel in the centre of the road, he said, appeared to be similar to a windrow. 58 At the point of commencement of the yaw marks left by the plaintiff's vehicle (as shown in photograph 5 of Exhibit A) he said that there was a slight change in the texture of the road surface, where the road was clear of gravel. There was a build up of gravel, he confirmed, on the left hand (ie eastern) side of the road. 59 It was his opinion that a safe speed for the top bend upon the day of the accident, was 60 kp/h or less, because of the fact that the road was newly sealed and had loose gravel on its surface, and because the camber on the curve had the effect of tending to direct a southbound vehicle towards the centre of the roadway. He confirmed that he had examined the advisory speed curves, and found that the 75km/h sign was in place, and had not been covered with hessian or otherwise obscured, as is commonly done when roadworks were taking place. 60 Det Senior Constable Keogh, a member of the Crime Scene Unit, provided a statement in relation to his observations of the accident scene. Inter alia, he reported that the drop in the embankment where the plaintiff's accident occurred was in the order of 5 - 6 metres, and that extending along the bottom of it was a dry creek bed. He recalled observing "minor areas of loose gravel" on the road surface, with "very minor build up of gravel" in places covered by tyres tracking through it. He said that he did "not observe any major areas of build up of gravel prior to the skid marks" or "any other tyre marks on the roadway", prior to those skid marks. He added: "From the tyre marks I observed at the scene it would indicate that the vehicle was travelling in a sideways direction when these marks commenced. I could find no evidence to the north of the vehicle marks of any skid marks on or off the road to indicate at what point the vehicle lost control. 61 He also said: "The gravel on the road was formed into tracks so that gravel was located along the centre and outside portions of the road. However, there were no build ups of gravel to such a depth on the road which might cause a vehicle to lose control. However obviously once the vehicle is out of control then any loose gravel would not have assisted the driver in regaining control." He was unable to determine the exact cause for the plaintiff losing control. 62 Detective Senior Constable Keogh explained that the distance from the starting point marked on his rough sketch (indicated by a fence post on the eastern side of the top bend), to the first tyre mark in the gravel was 43.5 metres.

2. The Expert Evidence 63 A number of experts were qualified by the parties. They were as follows: · Mr. Johnston · Mr. Hespe · Mr. Keramidas · Mr.Richmond, and · Professor Yandell.

a) Joint Experts Report 64 By reason of the differences in their reports, and in the interests of narrowing the factual contest in relation to causation, a joint conference (between all experts other than Mr. Johnston) was convened, which led to the production of a joint statement in the following terms: "1. Signage 1.1 Provision of Standard Signage Required for the Site in Normal Conditions There are two curves, one just prior to the accident site and one at the accident site. The curve just prior to the accident site is provided with a multiple curve warning sign with a 75 km/hr advisory speed plate. We agree that under normal operating conditions the curves should have been provided with individual curve warning signs together with appropriate advisory speed plates We agree that a 75km/hr advisory plate was appropriate for the curve just prior to the accident site. We agree that for the curve at the accident site an advisory speed plate of 55km/hr or perhaps 60km/hr would be appropriate. We agree that no other signage would have been necessary. 1.2 Provision of signage at the time of the Accident The accident occurred after the application of the bitumen aggregate seal and before sweeping. Signage should have complied with AS 1742.3 - 1985 Figure 5.25. Of the optional signs listed in Fig 5.25, the following are considered to be warranted: 'NO LINES DO NOT OVERTAKE UNLESS SAFE' 'SLIPPERY' and 'LOOSE STONES'. There is not sufficient evidence available to us to fully determine the nature and location of signs that were installed on the site at the time of the accident. This includes the 'LOOSE STONES' sign(s) that have now been reported as installed at some point along the work. We agree that on the information available, a number of required signs were not there ,specifically: "NO LINES DO NOT OVERTAKE UNLESS SAFE' and ' SLIPPERY " We agree that due to the length of the work, the signs should have been repeated along the works at intervals that reflected the alignment and length of the site. We agree that the above signs should have remained in place until the road surface was finally swept (2 and 3) and marked with centrelines (1). We agree that it would have been appropriate practice to cover the curve advisory speed plates during the period of the works and until the works were fully completed. We agree that the installed ' REDUCE SPEED' sign was not sufficient for the site. We agree that while AS1742 does not require "Roadworks" speed limits for this site, the requirements of the RTA Sprayed Bituminous Surfacing Guide should be applied. We agree that a "Roadworks" 60 km/hr speed limit as required by the Guide should have been established for this site, and signs erected and left in place until the road surface was finally swept. 1.3 What was the extent of Centreline Markers There is limited information available. The police photographs indicate the presence of "stick and stomp" centreline markers on the road pavement at the time of the accident. A number of these were also observed near the accident site. The total number and spacing of the markers is not known. Without further evidence it is assumed that the markers extended for the length of the work. Stick and stomp markers are normally applied to the surface of the road prior to applying the seal. The markers protrude through the new seal. There are protective strips on the new markers that need to be removed after the seal is complete to allow the reflective surfaces to work at night or conditions of poor visibility. We agree that based on the limited information available, it appeared that the protective strips may not have been removed from the reflectors. We agreed that this would not be material to the series of event resulting in the accident, but may be material to the control applied to the site after sealing activity and before the accident. 2. Guard Rail 2.1 Whether or not, Where, and When, there should have been Guard rail We agree that considering the nature of the widening works in total, the provision of guard rail should have been considered at the time the shoulder widening work was planned. We agree that the curve demonstrates a warrant for the installation of guard rail when assessed using MR Form 246. We agree that chain wire mesh fencing was not an appropriate installation for consideration. We agree that there is no requirement to account for water at the bottom of the embankment in assessing the warrant for installation of guard rail. The creek bed is dry and, most likely, flows only during storm water runoff for short periods. We agree that the warrant for installation finishes on the straight roadway just to the north of the point of departure of the vehicle from the roadway (at the point of the northbound curve warning sign south of the curve). For installation construction purposes, the exact location of the southern end of the guard rail is selected by judgement and site influences. At the minimum the total guard rail system (rail, and terminal end treatment) would end somewhere near to the point of vehicle departure from the roadway. We agree that this is a marginal situation and to err by installation of a longer length by extension to the south might have been prudent on balance. [Mr. Hespe believes that the word 'might' should be replaced with the word 'would'] This matter of end location is often related to construction practicalities. On this site the difficulty is related to the existence of sufficient widened space on the embankment to allow for installation of the terminal end that includes a flared lead-in transition length. In this case lengthening the barrier to a point well to the south of the point of need may well cost less than creating a section of widened embankment. 2.2 The likely effectiveness of the Guard rail We agree that the exit speed of the vehicle would have been from 25 to 35 km/hr. We agree that there was a high likelihood that guard rail (Steel W Beam) would have arrested the vehicle motion and contained it within the carriageway . This would have prevented the vehicle from going over the edge and down the embankment. 3. Superelevation 3.1 What was the superelevation of the curve We agree that the superelevation of the curve was in the range 13.5 to 14%. 4. Loose Aggregate 4.1 Should there have been loose aggregate on the road We agree that control of the aggregate application for the works was within tolerance ordered and expected for this class of work. We agree that this left some loose aggregate on the road surface. We agree that the issue of loose aggregate should not be considered separately from the signage and management of the site . We agree that there should have been monitoring, management and control of the site after application of the seal and before final sweeping of the road surface . We agree that on the information available, the signage provided was less than that required (see 1.2 above) for the conditions presented with loose aggregate present . We agree that when considered with the absence of signage and control or monitoring , then there should not have been loose aggregate on the roadway . Therefore the road should have been swept earlier or appropriate signage and controls put into place. 5. Vehicle Behaviour 5.1 What happened to the vehicle before the commencement of the 26m of marks on the roadway (what initiated the loss of control)? We generally agree on the behaviour of the vehicle from the beginning of the skid marks left on the road. We agree that we have seen no probative evidence that would provide a scientific basis for determining the location or the cause of the loss of control of the vehicle. Each of the experts individually, is unable to provide a definite view of the initiation of the loss of control. We agree that there are various possibilities that exist, none of which can be presented as the joint, or only, view." [the emphasis is mine] 65 By reason of the matters agreed in this document, in relation to "signage", control and monitoring of the works, the continued presence of gravel, and the provision of a guard rail, (which accord generally with my own conclusions, subject to the more specific findings later made), it is not necessary to review the evidence which the experts gave concerning these matters, save in relation to the position at which a guard rail adjacent to the top bend, if installed, should properly have terminated. Since there is an associated issue concerning the question whether its presence might or might not have saved the plaintiff from the disastrous injury which she sustained, or conversely, might itself have led to a similar outcome, I shall return to that aspect of the case later. 66 As is apparent from the report, the experts were unable to agree jointly, or to provide individually a definitive view as to the cause of the loss of control of the plaintiff's vehicle, ie to a scientific standard of proof. It is necessary therefore to further explore the possibilities which they identified, as well as the factors in support of, or contradictory of, those possibilities. 67 In this regard, I proceed upon the basis that the burden of proof which rests upon the plaintiff is to prove, upon a balance of probabilities, that the loss of control of her vehicle and the occurrence of the accident was due to some condition, or set of circumstances, for which one or other of the defendants was responsible, either through act or omission. That burden of proof, however, falls short of proof to a scientific standard of certitude and validation.

b) The possibilities 68 The possibilities which were variously explored with the experts can ultimately be reduced to the following:

a) loss of traction on the left horizontal curve, caused by the presence of loose gravel, in a turn with the radius and camber which it possessed;

b) error on the plaintiff's part through inattention, distraction, or insufficiently precise steering, which allowed her vehicle to drift too far out to the right over the centre line as she took the curve, to which she responded by steering to the left in order to get back onto the correct side of the road, followed by overcorrection, which reaction initiated instability and loss of traction and control;

c) contact with some discontinuity in the road surface which caught a wheel and initiated a yaw, to which there was then an over correction;

d) an intermediate possibility in which the broken back nature of the turn was the catalyst for the turn being slightly tighter than the plaintiff had reasonably expected, for which there was no capacity for accommodation, because of the reduced friction due to the gravel on the roadway.

e) error on the part of the plaintiff in putting her nearside front wheels into the gravel shoulder on the eastern side of the corner, followed by over-correction to get out of the gravel, leading to a loss of traction and control. 69 For the reasons previously mentioned, I am not persuaded that there is any relevant factual basis for the fifth proposition. Had the plaintiff's vehicle drifted off onto the gravel shoulder on the left hand side of the road, then I am satisfied that marks of that occurrence would have been observable to Senior Constable Rose or Detective Senior Constable Keogh. This scenario can in my view be excluded, and I will not trouble further with it.

c) The Expert Witnesses 70 The first of the experts called by the plaintiff was Mr. Johnston, a consulting engineer, who has had significant experience in road crash investigations and roadway improvement, particularly during his employment by the NRMA. He also had experience while working as an engineer with Walker Engineering, whose business predominantly involved that of road construction. 71 It was his assessment of the roadway surface, as depicted in the photographs, that in places there was more than one thickness of aggregate on the roadway - a condition which he said led to "aggregate rolling on aggregate with a consequent reduction in the available friction". 72 In his opinion, the wheels of the plaintiff's vehicle had skidded on the road surface, probably as a result of a critical speed failure, leading to a loss of traction between the tyres and road surface followed by an over correction. This led to it undertaking a yawing or rotating movement, from which the plaintiff was unable to recover. 73 He, like the other witnesses, was unable to pinpoint the precise position where the plaintiff's initial loss of traction, and hence of control, occurred. He was, however, firm that what occurred was due to loss of traction on the loose material. It was his feeling that the loss of traction "probably occurred because the wheels moved slightly out of or onto the edge of the wheel tracks" where there was a layering of stone. 74 He accepted that he could not say with certainty that his preferred view was the case, although as a matter of probability, he said, that he believed that to be so. When further tested in this respect, he gave the following evidence: "Q. What physical and objective matters do you say you relied upon in forming your view?

A. The behaviour of the vehicle, the geometry of the roadway, the presence of the loose gravel, the apparent speed of the involved vehicle. I think they are the primary factors. "Q. Well what physical signs were available for you to rely upon in forming a view about what caused this accident? A. That the vehicle had lost traction on a curve containing loose gravel. When the signs are first visible the car at that point is out of control, it has already lost traction, it is rotating. It may have been a corrective manoeuvre of some sort --

-- following a previous loss of control, because when the marks start or visibly start the car is not travelling longitudinally, it is rotating, it is substantially sideways travelling around a left curve of a certain radius, at an unknown but estimated speed by a following vehicle, which contained loose gravel." He added: "A . You can tell the way the marks are separating the degree of rotation. The car is not physically spinning, there is some rotation from the start to the end. It didn't start spinning from the first part of the angle just before the marks start and slowly went. That rotation, unless acted upon by some external force, must have been continuous, the speed of that rotation. Therefore it has happened in the curve , it must have happened in the curve, nowhere else.

Q. Would you have not expected there to be signs of loss of control in the curve? A. if it was looked very closely, yes, I would have." 75 The marks in the photographs, and as recorded by the police, he described, accordingly, as "secondary marks", occurring after the vehicle had lost control at or before the exit from the curve. He surmised that there had not been sufficient investigation at the time to look, for example, for scratch marks of the kind that would have been left by stones that had moved across the surface. While this was a matter of supposition, and while much was sought to be made of his concession that he was unable to identify precisely where the loss of traction and of control began, he remained firm that it was somewhere in the curve. 76 His opinion, which was clearly based upon the fact that the vehicle was already sliding at an angle, before the marks in the gravel were first laid down, is encapsulated in the following passage of his evidence: "… on the balance of probabilities, what we know was there was loose gravel, the critical speed in that loose gravel was equated very closely to her speed, therefore in my opinion as an expert, that was the probable cause of the loss of control." 77 As he later explained, it was the plaintiff's "attempt to correct a critical speed failure" that caused the clockwise rotation or yaw that eventually took her vehicle off the road". He also confirmed that, in his opinion, the amount of loose material that had been "left unswept with the road open, unsignposted, was excessive". 78 The contributing effect of the gravel he described as follows: "A. She entered a section which contained enough loose gravel that, at her speed, she lost traction. If she was doing 50 kilometres an hour maybe, then she would probably have to get into the thicker part of the material to lose traction. At 60 or 70 then the higher values of friction which was the more dispersed loose gravel, but still a quantity of loose gravel more than should remain, would have been sufficient.

… "Q. Perhaps I could ask you to do this, if you would: Could you describe as best you can, if you can, the path of the vehicle, its behavioural path from the point where you assume it lost traction leading to a loss of control? A. I can probably describe the start reasonably and the end reasonably. The middle bit's probably less certain. The vehicle's probably travelling around the curve, probably initially in the wheel tracks, the vehicle has shifted position laterally slightly, it has hit, or it has travelled over a slightly thicker section of gravel or a more dense section of gravel. On the edge of those wheel tracks that would have initiated a critical speed loss of control, probably resulting in anti-clockwise rotation looking down on the vehicle, that's the rear of the vehicle going right. From that point there has been definitely another input either by the driver or by - probably by the driver, but maybe by some other means at least, which has been at least an attempted corrective manoeuvre and the vehicle has then commenced to rotate clockwise and has left the road. Whether there was a couple of corrective manoeuvres between or what happened in between I can't be certain. That part of it is not as, not really supported by anything I can draw any conclusions from." 79 The alternative theory of the plaintiff having carelessly crossed to the incorrect side of the roadway, and then losing control by over correction while endeavouring to return to the correct side of the road, he accepted was a possibility. However, had she done so, he said that he would have expected to see signs of it in the form of the vehicle having crossed through the windrow rather than travelling largely longitudinally on the edge of it. In that regard, he also pointed out that the marks which were apparent commenced on the correct side of the road for a southbound motorist. 80 In relation to the intermediate theory of the plaintiff's vehicle unexpectedly drifting out because of the nature of the bend, he agreed that this was a "broken back curve" ie a curve with two different radii in close proximity, which required a driver effectively to turn twice. That, he said, was in itself "a serious geometric hazard" and part of the reason why extra attention to signposting and so on in this vicinity, was necessary. It was also something, he acknowledged, which meant that a driver could end up travelling in an arc which would take a vehicle onto the wrong side of the road. It would then be necessary to make a turn back to the left in order to return to the correct side of the road. 81 While this scenario, he accepted, was possible, he did not agree that it was as probable as the theory which he advanced. 82 The fourth possible scenario (ie of the plaintiff hitting the gravel shoulder on the inside of the curve and then over-correcting to get out of the gravel) Mr. Johnston accepted, could also have provided the initiating cause for loss of control, assuming that there had been the evidence (which I find was absent) to support that occurrence. He did, however, incline to the view that the problem was more likely to have involved the offside wheels rather than the nearside wheels, because of the weight transfer which he believed to have been involved. 83 Mr. Johnston said that the probability of the loss of control occurring in the way which he postulated, was exacerbated by the removal of line marking, and also by a circumstance which he incorrectly assumed to have existed, namely the removal of previously installed wire mesh fencing. The relevance of these two considerations, which were not, to my mind, diminished by the elimination of the second, he considered was related to their likely effect in "reducing lane discipline". As he explained it: "This means that although the loose gravel would be expected to form wheel tracks with windrows of gravel between those tracks, it would generally be expected that the lateral placement of vehicles across the pavement would vary considerably more than if line marking was present and reasonably tight lane discipline maintained. The effect of this is to increase the probability of a vehicle's wheels entering the windrows with a resultant probability of a vehicle losing control." 84 The second expert called in the plaintiff's case was Mr. Hespe, who was a civil engineer with experience, gained over 20 to 30 years, in road design. 85 He did not consider it to have been safe to have left the road, in an uncontrolled situation, with the amount of gravel which had been left, ie without a controller or appropriate "signage". Like Mr. Johnston, he concluded from the photographs that there was loose gravel heaped between the tyre tracks, and a small amount of gravel even on the marked or "nominally cleared tracks". 86 He confirmed that the presence of loose gravel on a sealed pavement is inherently dangerous, since it operates so as to materially reduce the effective friction force between the tyres and the pavement. As he observed: "On straight stretches of road a sufficient depth of loose gravel can give rise to a significant reduction in directional stability, but on curves even a shallow depth of loose gravel can be dangerous because of the need of the friction force to keep vehicles on the desired course. This is particularly so on the main roads and highways, because most drivers, used to city and suburban conditions, are not capable of recovering from loss of tyre/road surface friction. 87 Another circumstance of relevance which he identified in this regard, was the type of vehicle which the plaintiff was driving. He said, in his report:

"Again it could also be said that she could have come to grief on any of the preceding curves or for that matter even on the straight sections of the road - such is the inherent danger of loose gravel combined with a lightweight front wheel drive motorcar of Asian origin. This type of vehicle; which constitutes a considerable proportion of vehicles on Australian roads today, and for which therefore road conditions and standards should be prepared; is dangerous in the hands of other than expert drivers in marginal conditions. The road conditions at the time and location of your client's accident were marginal. In marginal conditions this type of vehicle becomes unstable and very suddenly and usually without warning - feeling very safe and stable until it suddenly breaks away. The only chance of recovery from such a breakaway is hard acceleration, but in vehicles in the lower end of the power range this is not usually possible. Further the average driver's reaction is to ease off the throttle, as this is the appropriate reaction for rear wheel drive vehicles but is fatal in front wheel drive vehicles. Again, very often the vehicle will turn through 180-degrees within the reaction time of even good drivers." 88 The plaintiff's reaction, as she described it, was exactly that described by Mr. Hespe as inappropriate - namely to slow her vehicle, although whether that was by braking, or easing off the accelerator, she did not say. Nor does it seem to matter, since the only correct response was that of hard acceleration. 89 The fact that the road surface was slightly uneven and had a ridge at the junction between the original pavement and the newly sealed shoulders, Mr. Hespe thought "could well have added to the instability of a vehicle traversing this part of the roadway". That ridge he said was at most 5 to 6mm high, but it varied along the length of the curve. As he explained: "A. Well, as a vehicle is travelling over an uneven road surface, depending on the unsprung weight of the vehicle, the wheels will not exert a continuous force onto the pavement and since the friction force is proportional to the vertical force, friction between the wheels or the tyres and the surface would change and if you couple that with the loose material, that would add to the risk of losing enough frictional force to prevent [sic] the vehicle from breaking away. 90 Mr. Hespe offered the following opinion as to cause of the plaintiff's accident: "that [she] lost control of her vehicle principally and probably solely because of the loose gravel on the road surface. It seems to me that the likelihood that the wheels of her vehicle diverged from the "cleared" tyre tracks in the loose gravel is high and that once having done so the friction between the tyres and the road changed from limiting to sliding, and due to the inherent instability of this type of vehicle in such conditions the vehicle spun towards the outside of the curve. It is highly unlikely that your client had the slightest chance to do anything about it once the condition of sliding friction became operative. Again it is quite possible that the uneven surface of the southbound lane could have contribute to the initial instability or that the ridge at the junction of the original pavement and the newly sealed shoulder caused the vehicle to "tramtrack". I have said above that it is my opinion that the heaped gravel between the "cleared" tyre tracks initiated the loss of limiting friction and I am still of that opinion. However, it is also my opinion that there was sufficient loose gravel in the "cleared" tyre tracks to initiate a sliding friction condition. This mode of failure would probably have occurred at a higher critical speed than the first mentioned mode". 91 He added, reiterating some of the factors previously mentioned: "The road geometry may have had an effect in that the subject curve is tighter than the immediately preceding one but is signposted by the same advisory speed sign. As detailed … above it is my opinion that to most drivers these two curves would appear to be one longer tightening curve. This is a dangerous condition particularly in the circumstances where there was loose gravel on the road. Many drivers would instinctively at least ease throttle and probably even brake on realising that the curve was tightening. If this is indeed what (she) did there was no further hope of her avoiding an accident. 92 Later, he expanded on this feature, when noting that there was a difference in the navigability of the two curves covered by the 75 K/ph advisory sign, by adding: "In technical terms those two curves are called a broken back curve, which simply means there is a first curve, a short length of straight, and then the second curve. In my opinion a great number of drivers would look on it as being one continuing but tightening curve, and in that case it is called a compound curve. That is a very dangerous situation, and it is warned against in the Road Design Guide issued by the RTA, and the reason it is dangerous is that drivers going into the first curve set their speed and their attitude for that curve, and then when the second curve comes upon them it catches them by surprise so to speak, and if I can expand on that a little, the Road Design Guide also says that compound curves should not be road on radii of less than a thousand metres, and that the ratio between the two curves should be no more than 1 to .75 and certainly no more than 1 to .5, whereas we know that the subject curve had a radius of only 100 metres." 93 His opinion as to the likely progression of the plaintiff's vehicle, and as to the cause of the loss of control, which led it to commence rotating in a clockwise direction, while progressing along the road, as evidenced by the tyre marks, was encapsulated in the following passage of his evidence: "A. I believe it started to get into trouble in the tight curve, in that 100 metre radius curve, and it probably was exacerbated by the fact that that curve is, as I said earlier, the second curve in a compound curve or the second curve of a broken back curve of a much tighter radius than the first curve. So that would have created a situation of ambuscade almost. So that when the driver got into that curve, irrelevant as to what the speed the vehicle was travelling, that curve created an additional problem. That was probably the fundamental initiator of the accident, which again probably wouldn't have happened if there hadn't been gravel. In other words, the difference between the safetiness of that curve or not was the gravel. So the first factor is the curve itself and its relation to the previous curve and the whole geometry of the road at that point, and then the second factor is the gravel on the road. Now that gravel can be considered in two parts. There is the part that has been pushed into windrows by previous traffic, and a great deal of that traffic was heavy trucks because that road is used a lot by heavy trucks, and hence that cleared part, if we can call it the cleared part or the tyre tracks would have caused windrows of gravel between those cleared tracks. But even on the cleared tracks themselves there was scattered stone. Now, I don't want to have to say was there one every two square centimetres or whatever, but there was scattered stone in those tracks, and it is my opinion that trouble could have been caused by that stone, quite apart from the windrows. But I think on the balance of probabilities the wheels of the subject vehicle got into a windrow." 94 He added that once the vehicle became unstable: "…. there was very little chance of the driver being able to recover and in my opinion the rear wheels probably moved to the right, that is out of the curve and thence the beginning of a yaw and whether the driver attempted to correct that or not again I think is probably irrelevant but if the driver attempted to correct that, she would have probably turned to the right because that would be the normal response. But whether she did or not, as I say in my view is irrelevant because the vehicle then either because of the driver or in any case fishtailed is the general expression used, in other words the vehicle yawed about its centre of gravity and then continued in a right-hand or clockwise rotation and that is where these marks on the other police photographs became evident. Now, in my view, none of those marks represent locked wheels. In my view the wheels were still rolling at the time they made those marks and they are made because the wheels weren't rolling in a true direction, they were rolling across the direction of travelling, so that you had that effect of the wheel making a mark on the road through the gravel windrows and slightly across the so-called clear tracks. Now, the vehicle veered to the right as a result of the initial break away, the fishtailing and by the physics involved in the vehicle, that when it started to - because of the left-hand turn and the way the wheels and the engine were rotating, that it would tend to swing clockwise about its own vertical axis and that was the final determinant of what happened. 95 When asked why there were no marks evident on the road before the yaw marks, he offered the view: "I think that is because the vehicle was still then much more oriented to the direction of travel so that there wouldn't have been the criss-crossing, if I can use that expression, that there was where the yaw marks in photograph 4 for example took place. So that there would be less likelihood of the vehicle showing very explicit marks on the road." 96 Apart from the contribution of the gravel to the initial instability, he suggested that its presence would have made it more difficult for the average motorist to recover from that position, observing: "If you've got a small patch on the road with loose gravel on it and if you lose control because of that, the moment you exit that patch and get on to a fully bound surface, there is much more likelihood that you can correct any problem that occurred during that small patch. But in this case, where the entire road surface has loose stone on it, it becomes very difficult and in a lot of cases impossible to recover." 97 In cross examination, following the joint conference, he made it clear that he adhered to his opinion that the principal and probably the sole cause for loss of control was the presence of loose gravel or stone on the roadway. He made it plain that he had considered all of the possible hypotheses which had been explored, and accepted that each was possible. However, when they were individually tested against the evidence, he had reached the view that only the one which he favoured was shown to be more probable than not. 98 In dealing with the other possibilities, he drew attention to the plaintiff's recollection of feeling the steering wheel pull to the left. While recognising that there were a number of possible reasons why she might have felt that sensation, as identified by Mr. Richmond in his evidence, there was one, in particular, which he believed could have been the cause for it, and which was consistent with his opinion. This related to the "failure of the rear wheels to track properly around the curve because of the loose gravel". This he thought was supported by some marks which he identified in photograph 3 (Ex A), the reference point for which appears as a white spot in that photograph, which were "definitely indicative of the commencement of a counter clockwise movement of a vehicle" whose "rear wheels were moving out (or breaking out) of track." He did, concede that he could not be certain that these marks had been left by the plaintiff's vehicle; as distinct from some other vehicle; although their coincidence of presence would suggest, in my view, that this assumption was, more probably than not, correct. 99 He was pressed as to why he elevated the scenario based upon the rear wheels of the vehicle breaking out upon the gravel, at a time when the plaintiff was endeavouring to take the corner on the correct side of the roadway, over the possibility of that occurring when the plaintiff, having found her vehicle on the wrong side of the road, independently of the presence of gravel, turned back sharply to correct her position, and in doing so overcorrected. He said that there were "a large number of reasons" for doing so. These he specified as follows: "Firstly there is the evidence of the speed at which she was likely to have been travelling, given that she averaged less than 70 kilometres per hour for the previous 9 kilometres. There is the evidence from other experts than me as to what is called the slide off speed of the corner, both with gravel and without gravel, and I think that there is unanimity that at the sort of speed that we all agree that she was probably travelling that she would have been able to negotiate that curve in normal circumstances without having come to grief. So in other words if there was no gravel on the road there is every likelihood on the evidence that she would have been able to negotiate the curve. But with the gravel on the road the whole circumstance changes so that the tightening curve or the second curve with the markedly smaller radius than the preceding curves combined with other irregularities on the road, but fundamentally because of the additional problem of the gravel, created a situation which while without the gravel might have been awkward, turned it into an accident, and that's the basis of my reasoning." 100 He added that he did not believe that she had got onto the wrong side of the road, because: a) The yaw marks in the gravel were all on the correct side of the road

b) He did not think she would have had sufficient distance to make all of the manoeuvres which were required for that hypothesis;

c) There were no signs of the tyre tracks coming back across the centre windrow, as might have been expected, had there been a sharp and deliberate correction to take the vehicle back to the correct side of the road;

d) There was no reason to suppose a sudden loss of control following her managing to return to the correct side of the carriageway in control, and because

e) If alternatively, she had lost control on the incorrect side of the road, she would have gone off the road earlier and in a different way. 101 Mr Maconachie QC for the Council, tendered a statement from a psychologist, Dr. Austin Adams, in relation to signs, and sought to call him as a witness in the trial. His evidence, it was submitted, went both to breach of duty, causation, and contributory negligence. 102 To much of the statement, and to the evidence which Mr. Maconachie sought to adduce from him concerning the extent to which people pay attention to or obey signs, there was an objection. This was based upon his lack of relevant professional involvement with road works, and upon the proposition that evidence relating to general behavioural characteristics of the community had no evidentiary value in relation to that of an individual plaintiff. Some sections of his report were pressed and allowed, and some short evidence was led from him. 103 In relation to the general efficacy of warning signs, Dr. Adams made the following observations, in his statement, of immediate relevance. "5.1 Much research has been carried out concerning the required components of a good warning sign. It is generally agreed that a warning should include four components. It must (1) in some way draw attention to itself, (2) say what the hazard is (3) what the consequences are of not avoiding that hazard and (4) what behaviour is required in order to avoid that hazard." … "5.4 The question of when a warning sign will be obeyed is a complex question that has been the subject of much research. For example, there is considerable evidence that if, when faced with a warning, a person's prior knowledge, or knowledge gained through inspection of the situation, is such that they judge that they can proceed as if the warning were not there, they will do just that. That is, they will take no notice of the warning. Indeed, if the person's prior knowledge of the situation is such that they would not expect, or not be looking for, a warning, any warning that is present will be filtered out and thus, in a genuine sense, will not be seen." … "5.12 Warnings are not effective for a person who has performed that behaviour themselves in the past without incident, or who has seen others performing that behaviour without incident. A warning can only affect behaviour in the desired direction if the receiver of the warning has no information from past experience and where the warning message is reinforced by what can be plainly seen. … 5.15 There is a large body of literature dealing with the effects of warnings on behaviour. This literature demonstrates that many warnings are surprisingly ineffective. A recent volume of 55 papers has been published on the topic, beginning with one entitled "What is a warning and when will it work?" This paper brings up many points relevant to the present situation: a) "… people who are not looking for a particular type of information (be it instructions or warnings) are unlikely to notice and use that information if they encounter it." b) "Safety messages in familiar situations on familiar products are likely to be filtered out" c) "If the information is to change a person's behaviour, it must add something substantial to what the person already knew (ie be available from past experience or the present context). The information perceived as new must then motivate the person to change" d) "People accept some risk in all activities … and are unlikely to heed a warning unless the perceived risks of non-compliance are excessive …Compliance appears to depend primarily on perceived likelihood of injury … rather than on expected severity of injury…" e) " A person who feels that the situation is already under control does not feel any need to comply with the recommendations of a warning." 104 Much of the foregoing, if not all of it, seems to be to accord with common sense and experience of life. Applying the general principles to the present case, Dr. Adams said: "2.10 On the present occasion the plaintiff had I am told, been travelling immediately prior to the accident for more than 6 km on a road surface similar to that applying at the site of the accident. That is, the site of the accident was essentially no different from that applying generally to the road for the prior 6km. … "2.12 As far as cornering speeds are concerned, these again are decisions we make for ourselves given the circumstances we experience. If we have never been on the road before an advisory speed sign gives us useful information. 'A multiple curve sign, for example, indicates some serious curves ahead to which I should pay careful attention. However, after experiencing those curves on a section of familiar road I make my own decision as to the appropriate speed. 2.13 There is a further factor applying to warning signs that are judged by drivers to be present only because of road works. When a permanent speed sign is present, perhaps because of an intersection or a built up area, we feel it may be enforced by the police and we are apprehensive because of that possibility. Where the sign is clearly present only because of road works we take it as advisory, telling us about the road works. Sometimes it is clear to us that the road works may be just around a corner so we pay special attention and look ahead. Where we have experienced the circumstances, however, and have no reason to believe there are any changes from our experience, then we use our own judgment. We don't blindly follow a sign that we see as being there only to draw our attention to something that we can see for ourselves." 105 He made the point in his evidence that: "The whole of the signs on which my study is based is how people, as a fairly large group, respond and the research, the enormous number of research reports that have been written lead me to conclude that where people can see for themselves and can experience for themselves the circumstances, it is precisely under those circumstances that a warning sign that tells you about something you can see for yourself or that you can counteract for yourself by judging that it doesn't apply, will not be obeyed.

There has been a lot of discussion here about the fact that why would we bother with road signs? Well, you bother with a road sign when you can't see, when there is something that you can see that you can't see, because it is around a corner." 106 In coming to the conclusion, that additional signage would not have affected the plaintiff's behaviour, he acknowledged that he had assumed the existence of four circumstances, namely that: a) the plaintiff had driven on a similar surface for a reasonable distance;

b) the accident site was no different from that applying generally to the preceding section of the road, and that there was nothing there which presented any additional danger, and in that particular there was no difference in frictional capacity;

c) the plaintiff had driven over the same surface on the two days before the accident;

d) any additional sign that might have been provided would have been purely advisory in nature. 107 However, in the present case, the facts which were the subject of the second and third of these assumptions, critically, were not present. Moreover, it was the fact that the plaintiff was an inexperienced driver, a matter which he accepted would be relevant for her likely response to a situation which she thought might be dangerous. Additionally, he answered in the affirmative to the following question: "Q. If indeed it can be plainly seen that there is an amount of loose gravel on the road and if the receiver of the warning has not driven on that road in that condition before, then the requirements for a warning to affect behaviour in your opinion have been met, haven't they?" 108 In all those circumstances, it does not seem to me that Dr. Adams' evidence in any way supports the proposition that, given the signs which the experts jointly agreed should have been present, the plaintiff would have ignored them, or that a proper exercise of care did not require their presence. Moreover, the plaintiff made express reference, in her statement, to having kept her speed below the 75 k/ph advisory speed, an observation which suggests, at least by implication, that she was aware of and obedient to it. 109 If anything, having regard to the plaintiff's inexperience, her unfamiliarity with the road in its recently resealed state, and the special problems of the bend, the evidence points in the opposite direction to that suggested by Dr. Adams. In any event, in a motoring context, I have considerable difficulty in accepting Dr Adams' transference of experience with signs and warnings, in relation to workplace environments, or in relation to the activities of consumers. As a matter of common experience, of which I believe judicial notice can be drawn, motorists do look to advisory signs and warnings for guidance as to potential hazards, and as to safe driving speeds. Were it otherwise, then one may ask why they are used at all, either on an ongoing basis, or more particularly, when a fresh but temporary hazard, such as roadworks, exist? 110 M. Richmond now of Sinclair Knight Merz, who similarly had extensive experience as an engineer, with special competence and involvement in highway engineering and road safety, who had previously worked for the Department of Main Roads, and who had carried out the 1996 road safety audit in relation to Main Road 54, provided a report and gave evidence. I can leave aside the portions of his report which dealt with those aspects concerning the road, the signs and the safety measures, upon which the experts agreed. It is convenient to focus upon his observations concerning the cause of the loss of control of the plaintiff's vehicle. 111 In relating to the speed at which the plaintiff made her way up the hill, and having regard to the calculations which he made, Mr. Richmond said, in his report: "… it is unlikely that the uphill speed adopted by Palmer [which he assumed to have been in the order of 70-80 km/h) would have been a problem under normal circumstances . However, speeds in the range of 60 to 70 km/h would be regarded as excessive on a new seal , particularly with an inexperienced driver. It is likely that Palmer's vehicle started to yaw to the left as she powered her way up the hill . She over-corrected the steering and this caused the vehicle to yaw in the other direction. Her skill level was then insufficient to control the resulting movement of the vehicle. The drive-line layout (front wheel drive) makes these type of lightweight sedans prone to yawing problems. As it is likely that Palmer applied the brakes hard, it is my view that she managed to lock the front wheels (she may have locked all the wheels). This meant she would have been unable to steer the vehicle. 112 The plaintiff's speed, it was accepted, was more likely to have been in the range of 60 - 70 km/h, rather than the 70-80 km/h which he had assumed in this section of the report. However, Mr. Richmond's assessment of the problems potentially involved with the lower speed range, within which I am satisfied the plaintiff was travelling, remains relevant. 113 He was of the view that the presence of loose aggregate was not such as to reduce the friction supply available over the road to a point of unsafety, observing: "The yaw marks that are visible do not show significant variations in width and this tells me that the aggregate is relatively uniformly spread across the surface of the road. The dark marks that can be seen in both photographs indicate that both front wheels of the Hyundai had locked . I would note that the ability of Palmer to steer the vehicle would have been lost because of the locked wheels. Steering would have only been regained once the front wheels started to rotate once again. My impression is that the friction supply available over the road was sufficient to allow drivers to negotiate this area with complete safety. 5.3 Vehicle Dynamics … the first point to be made is that Palmer's vehicle did not slide sideways off the curve. Her vehicle went out of control at the exit of the curve. The photographs provided do not show any yaw marks to the north of the site and I cannot detect any yaw marks around the curve itself. The inference is that something has happened that has caused Palmer to provide a yaw input with her steering wheel sufficient to make the vehicle unstable at the exit from the curve. In the P4 the reporting officer suggests that the speed of the vehicle was about 70 km/h. From the measurements and calculations I have taken this appears to be in the right order of magnitude. My impression of the wearing surface is that there would be no problems associated with travelling at such a speed in this location under normal circumstances . However, I do note that the friction demand when travelling at 70 km/h around a 105m radius curve is in the region of 0.4g. This means that packages will slide around on the seats of vehicles. It could be an explanation for the behaviour of Palmer's vehicle as she may have been distracted by events that were occurring within the cabin of the vehicle. It is my opinion that a speed of 70 km/h would have been excessive on a new seal. It is also my opinion that a lack of experience driving on a newly sealed surface was the primary cause of this unfortunate crash and that her speed in the circumstances was excessive ." 114 It may be noted that no other witness agreed that there were signs of the plaintiff having locked the wheels of her vehicle. 115 There is something of an inconsistency in these passages of his report so far as he asserted that the presence of loose aggregate was not such as to reduce the friction supply to a point of unsafety, yet at the same time said that, while a speed in the range of 70-80 km/h would not have been a problem "under normal circumstances", one in the range of 60 to 70 km/h would have been excessive "on a new seal". The difference presumably depended upon a reduction in friction supply, due to the presence of gravel. 116 Notwithstanding these observations, and notwithstanding his assessment (shared by the other experts) that the advisory speed sign had indicated a speed excessive for the bend in the prevailing circumstances, he expressed the opinion that neither this sign, nor the other signs, had been a factor in the accident. The reason which he offered for this view seems to have turned upon the fact that the plaintiff had driven over the unsealed surface for 2 kms. or so before getting into trouble, and that advisory speed signs: " … are for strangers on the road. Regular users (such as Palmer) would, in all probability, have been unaware that it was there." 117 I do not accept the correctness of this latter assumption, which, if correct, questions the entire basis for the careful framework earlier analysed in relation to traffic control plans, and the need for proper advice to motorists, when roadworks are underway. Moreover, and independently of that consideration, the plaintiff had not driven over the roadworks before the day of her accident and she was therefore unaware of how they might affect the top bend. 118 When giving evidence Mr. Richmond identified several possibilities for the loss of control of the plaintiff's vehicle, each of which he considered was "wide open". He repeated the view, offered in his report, that the problem began with an anti-clockwise yaw before turning into the clockwise yaw which resulted in the vehicle going over the embankment. The possible causes for that, he identified as including: "If that was the case, the issue of what could have caused the initial anti-clockwise yaw would have been in possible terms of the simplistic possibilities, such as driver inattention …, the driver being confronted with some surprise event. Now, that could have been anything from something in the environment catching her eye taking her attention away from what she was doing, it could have been, and as I postulated, it could have been that she was driving close to the inner edge of the seal at a point where there might have been a discontinuity from the surface which a wheel could have caught and initiated a left-hand yaw which might have resulted in an overreaction of some description. It could have been that there was some other surface discontinuity on the roadway that initiated a similar event which meant it would have placed her a little bit further out into the pavement itself. It could have been that the vehicle was simply tracking inappropriately and to bring it back on line an incorrect action resulted which commenced the left-hand yaw by the vehicle." 119 He concluded: "When you consider issues such as the discontinuity of the inner edge of the pavement it might result in either the front or the rear wheels catching momentarily to throw the vehicle off balance. That could have also arisen by a … potential excess of loose aggregate that might have been on the surface at any one point, bearing in mind at the time the driver traversed this site there had been some shifting of the loose aggregate into the …sections between the wheel path. Those mannerisms of potential initiation of a left-hand - sorry, anti-clockwise yaw could very well have occurred." However, as he said, he could not identify any one cause which had a higher degree of probability than any of the others. 120 When asked whether, if the presence of gravel on the road had been implicated in the accident, he would have then expected to see marks indicative of it, he said that he would have liked to have seen them, but whether he would have expected to have seen them was something about which he could not be definitive. 121 He agreed with the view which had been offered by Mr. Keramidis, to the effect that had the skid resistance applied to the vehicle varied significantly across the road surface, one would have expected signs, in the marks, of "a wobble" to indicate instability or unevenness during the yaw. The relevance of this assessment, which appeared to be of some importance for their inability to accept the hypothesis advanced by the plaintiff, is not at all clear, since it did not depend on any significant variation in skid resistance. 122 He was asked, in the course of cross examination by Mr. Toomey QC, whether the sensation which the plaintiff recalled of "the steering wheel pulling to the left" was consistent with the wheels of her vehicle coming "…into contact either with some loose gravel in the track, or of drifting on to the loose gravel in the windrows?" He replied: "A. Coming into contact with loose gravel in the tracks? I wouldn't expect it to be consistent. If the vehicle pulled to the left? I would expect there to be some resistance applied to encourage the wheels to pull to the left, if that was the case. The exact cause of that, if there was a windrow, that might cause it. If your wheels, for instance, contacted some kind of lets say lip at the inner edge of the pavement where the seal and the gravel shoulder existed, that could also cause that kind of reaction." As he went on to explain, this would depend on the depth of the lip. Otherwise it seems to me, his answer, was consistent with the plaintiff's hypothesis. 123 He was next asked: "Q. if you add to the existence of some ridge the presence of some gravel in that area, could that exacerbate any possible effect of that ridge? A. I would have to say there it depends on the circumstances where the gravel was, if there was gravel within a wheel track and between a wheel track, again as to extent, I think. If it was an exacerbated ridge, then that might have made it more accentuated or more able to pull a wheel to the left." 124 He accepted that the events postulated on behalf of the plaintiff could explain the initiation of instability, and he agreed that, when combined with an inexperienced driver and a front wheel drive motor vehicle, they could provide a recipe for a loss of control. In those circumstances, he agreed, that the presence of loose gravel on the road would produce the likelihood of the vehicle not being capable of being brought back under control. 125 He similarly explained the problems which arise with a front wheel drive vehicle as follows: One of the major problems in my view is the nature of the mechanism. The front wheel drive car pulls the vehicle through a corner rather than pushes it. The ability to regain control is very much a function of the mechanism by which you balance the steering and throttle movements of the vehicle and you need to drive out of a situation such as that rather than allow the car to drive itself around a corner. The theory is, as I understand it, of course, that if you attempt to operate a front wheel drive vehicle in the same manner as a rear wheel drive vehicle you will certainly get into extreme difficulty. …if you are experienced in skids and out of control situations with a front wheel drive vehicle then you adopt a completely different mechanism, in which case -- Q. you use your accelerator instead of your brake, in effect? A. Yes. Q. And the effect of in fact just setting aside braking, forgetting braking for the moment, the effect of ceasing to continue to feed power to the car would itself contribute to loss of stability, would it not? A. Yes, potentially, yes. Q. So if an inexperienced drive reacted by taking her foot off the accelerator, that …could potentially lead to a loss of stability? A. It may in fact be completely the inappropriate reaction, yes." 126 In his report, Professor Yandells offered two possible reasons for the plaintiff's accident as follows: a) she may have slowed to negotiate the corner then accelerated hard to regain speed. If her right hand driving wheel had been on gravel and the left on bound aggregate, the front wheel drive car would have swung to the right and over the embankment, or

b) she may have braked while her right hand wheels were on the solid bitumen seal and her left (hand wheels) on some gravel, in which case she would also have slewed to the right, lost control and gone over the edge.

Each possibility supports the plaintiff's case which is dependent upon the plaintiff encountering gravel in the corner at a speed which was inappropriate for the prevailing conditions. 127 He also noted that: 'Eyewitnesses report that there was gravel on the road. However, statistically over 500 motorists would have passed the location without mishap during the previous day." 128 In making this additional observation, Professor Yandells could not have known whether any of these other motorists had experienced a difficulty from which they had recovered. Moreover, there was likely to have been some difference in the spread of gravel over the two days as passing vehicles progressively shifted it into windrows. This observation of Professor Yandells is, accordingly, of little value. Otherwise his views were not explored, since he did not give evidence. 129 The final expert was Mr Keramidas, a Master of Engineering Science and an expert in Forensic Engineering and Collision Reconstruction, who had formally been a member of the Victorian Police, who had experience in conducting road safety audits, and who had made a particular study of vehicle yaw analysis. He shared the view of the other experts that the top curve was substandard and might lead to a person drifting out to the right. Its substandard nature he attributed both to the general layout of the roadway and the previous bend and advisory signage. 130 He gave particular attention to the problem of "shoulder clearance" in the accident area, observing, in his report, relevantly: "The drop off is only about 1.5 metres off the paved surface, which is not considered adequate from the perspective of shoulder clearance. Consideration should therefore be made to provide protection from rollover of errant vehicles. The site currently has a guardrail in place over a considerable distance [in excess of 400 metres] including the area where the plaintiff's vehicle left the roadway. This guardrail is appropriate for the conditions at the site, considering that the drop-off is about 3.6 metres and the slope is 1 metre in 1.9 metres, on a substandard curve [being a bend which is rated at 10km/h below the 85th percentile of the approach speed of vehicles)]. As he added, later in his report, there was a further circumstance of relevance in that the curve was located in a section of roadway which involved a downhill grade for northbound traffic. He said that the substandard curve, and the downhill grade, combined "to increase the probability of vehicles leaving the roadway and also increased the probability of impact severity". 131 In relation to the amount of gravel on the roadway, he pointed out, as was recognised by all the experts, that aggregate had to be spread onto the bitumen sprayed surface and left for some days to complete the bedding-in process, and that during that period some loose aggregate had to be expected. 132 In relation to the relevant section of the roadway, he said, again in his report: "The fact that the sealing was carried out two days before the day of this incident and that the sweep was to take place the following day is entirely consistent with normal sealing practice. It is also expected that an amount of surplus material would be present at the site, although two days after laying, the material would be expected to have 'migrated' largely outside the 'normal traffic path. Indeed, the photographs taken at the site on the day of the accident, displayed the expected character of a roadway two days out from sealing. The key is therefore the amount of material concentrated in the windrows and the effect of that material on traffic passing through the site. In this case, the amount of material apparent between the wheel tracks and between the two lanes is minimal. The wheel tracks appear fairly broad, allowing for considerable lateral movement within the "expected" path without undue movement onto any surplus material. Based on visual evidence and the description of road conditions by various persons at the site, it is this author's considered opinion, that the amount of surplus material at the site was not excessive and was entirely consistent with the standard procedures for road resurfacing throughout Australia. 133 By way of explanation in relation to the grip of tyres on a road surface, he said: "when a vehicle is in a curved path, its inertia tends to make the vehicle continue in a straight line. The force allowing the vehicle to maintain its curved path is generated by the traction of its tyres to the road surface. The tighter the curved path, the greater the demand on the road/tyre interfaces. Similarly, the greater the speed for a given rate of turn, the greater the demand on the skid resistance characteristics of the roadway. It is important to note that during a "yaw" condition, the tyres on the vehicle are NOT locked and skidding but rather are rotating and partially side-slipping. In that latter observation, he disagreed with Mr. Richmond's conclusion that the wheels on the vehicle had been locked, while traversing the area where marks were left. 134 He said that the marks evident on the roadway indicated, by way of an application of these principles, that: "… the vehicle had experienced a "yaw" condition, which involves the vehicle exceeding the critical traction limits [while in a curved path] with respect to its speed and applied rate of turn. 135 He added: "The rate of turn is determined by the steering action applied by the driver. If the driver applies rapid and significant steering action, then a "yaw" condition can be induced very quickly and can reach an "unrecoverable" point just as quickly. The marks from a vehicle in a "yaw" are curved in nature and describe a curved path for the vehicle. In this case the vehicle has experienced a clockwise "yaw" meaning that the driver has applied significant steering input to the right. The marks seen in the photographs are indicative of such a sudden and heavy steering action , initiated in the final stages of her transition from the bend to the straight . At that point along the vehicle's path, there would have been very little demand for traction as the side forces acting on the vehicle would have been negligible. That is, in the area where the marks commenced there would have been virtually no sideways force to act on the vehicle to cause lateral instability, loss of traction, or induce a yaw. 136 Again, it appears to me that these observations wholly support the plaintiff's case that traction was lost in the curve, or at the end of it. 137 Although he acknowledged that it was difficult to determine the speed of the plaintiff's vehicle before it got into trouble, he accepted that it was in the order of about 60 to 70 kmh "at the time of the start of the yawing process". That speed, he said "should not have posed a problem for the plaintiff under the prevailing conditions at the site". To that extent, he differed from the other experts. Moreover, his observation to this effect seems to be in conflict with the joint experts' report. 138 In relation to the possible contribution of the prevailing road conditions to the accident, he saw, as being of importance, that the path of the marks left by the vehicle was "smooth", noting (in relation to the section of roadway where the marks had been left): "The vehicle had crossed from what could be described as a "high" concentration of surplus material [in the centre of the road] to a compacted and stabilised surface [made by the off-side tyres of northbound vehicles] then again onto a 'high' concentration of loose aggregate [between the northbound tyre tracks] and back onto the stabilised [near-side wheel track] surface. If the skid resistance offered to the vehicle was significantly different across these surfaces, one would have expected the vehicle's "yaw" marks to have exhibited a "wobble" to indicate instability or unevenness during the yaw. No such deviations are present in the marks. Also, given that the tyres of the subject vehicle would be presenting themselves at an angle as they sideslipped across the roadway, they would have 'furrowed' through any material of depth, particularly in the 'high' concentration areas. This would have effectively generated furrow marks across the windrows, exposing the depth of the surplus material and 'spraying' the displaced aggregate to the south west of the windrows. Again, there is no evidence of this displacement, nor does there appear to be any appreciable depth in the 'high' concentration area of surplus material. Indeed, the marks running through the windrows appear to be more of a 'scouring' action than a furrow through heaped aggregate. 139 This was a view which he confirmed when called to give evidence, also adding at that point, (in relation to the section of roadway preceding the marks) that: "The loose aggregate on approach to those yaw marks would show definite signs if the vehicle had experienced lateral instability or slip as it progressed through that area of road works." 140 However, this observation seems to be of little value, since on any view, the vehicle was out of control before it began to leave the yaw marks. Indeed, he acknowledged that, from the point at which the vehicle was leaving those marks, it was "totally out of control". He said, in this regard: "The vehicle as it progressed through its yaw condition and essentially commences to rotate, other than the first several metres, perhaps 5, 6 up to 10 metres, the vehicle at that point could be recovered if appropriate corrective action was taken. By the time the vehicle progresses towards the centre of the roadway, it has achieved a slip angle which is such that recovery is not possible, regardless of the circumstances of the surface that it is travelling over at the time. It is unrecoverable. So although the marks indicate that the driver on this occasion has not attempted corrective steering action to the left as indicated by the two front track marks and indeed where it crosses onto the white gravel shoulder, indicates that the steering was still to the right and power had been applied, nevertheless through that portion the driver is not capable of regaining control. HIS HONOUR: Why is that? A. The slip angle is such your Honour, that even with a corrective steering action to the left, the maximum steer angle that would be applied by the vehicle is not sufficient to recover the vehicle in the opposite direction. Q. Even if acceleration is applied? A. Even if acceleration is applied, yes." 141 He acknowledged that the presence of gravel on the roadway would have made it harder to bring the vehicle back under control during the period when it would otherwise have been recoverable, that being at a point which he marked on a plan (Ex P4), that is, if the attempt at recovery "was made within the loose aggregate". 142 He next addressed, in his report, the question whether the plaintiff's vehicle could, or would, have yawed in the absence of any loose aggregate. His answer, which he said was based upon his experience with yaw events, was as follows: "…it is possible to say that even in the absence of any loose material, the plaintiff's vehicle could and more likely would have still experienced a yaw condition with sufficient steering application by the driver . A yaw can in fact be initiated even at very low speeds and in high friction surfaces. Even speeds below 55 km/h could easily produce a yaw provided the steering input is sufficient. In this case, the steering input appears to have been rapid and excessive, providing the ingredients for a yaw to be initiated, even at lower speeds. He added, however: "The difference to the vehicle's path if no surplus material was present would be that the radius of path would be tighter than was the case here. This in turn would mean that the vehicle would have exited the roadway further to the north than it did but only marginally so." 143 He did not consider that there would have been a sufficient difference in the exit speed of the vehicle, had there been no aggregate present, to have prevented it leaving the pavement and going over the embankment. While the slipping action of its tyres would have led to some drag or slowing effect, he estimated that the end result would have differed by only a few kilometres per hour. 144 It was his considered opinion that: "the commencement of the marks as depicted in the photographs, combined with the lack of any anti-clockwise yaw marks to the north, indicate that the driver did not experience a loss of control while negotiating the bend." Rather, as noted earlier, he thought that: "the marks are indicative of a sudden and heavy steering action, initiated in the final stages of the transition from the bend to the straight. (although) without any significant additional response [such as braking or counter steer]." 145 The difficulty with this opinion is that it offered no logical reason for the "sudden and heavy steering action", and it did not exclude an attempt to recover control of a vehicle which had lost traction in the gravel on the road surface, as the plaintiff postulated. 146 The reason for his conclusion that the plaintiff had not attempted to regain control of the vehicle, he attributed to the fact that "at the end …. the steering was still to the right and that there was power being applied, as evidenced by the throw of material off the gravel shoulder". Additionally, he felt that there would have been "insufficient time, (in the 1.3 seconds which he later corrected to 1.7 secs) for the plaintiff to steer left and then back to the right", although why that would have been so is by no means clear. In any event, it may well be that the subsequent trip over the embankment, and roll which turned the vehicle around, may have left the front wheels and steering wheel in this position. 147 He added that there was: "no physical evidence to indicate on a scientific basis why that steering action occurred to the right". As a result, as he noted in his report, he: "could only hypothesise as to why this right steer manoeuvre was initiated. It is possible that the plaintiff may have drifted [for whatever reason] to the left, off the seal onto the shoulder and on realising this has over-reacted to the situation and initiated the heavy steering action to the right. This scenario would explain the steering action to the right and would be consistent with the witness accounts of the tyre marks on the road shoulder." 148 This possible hypothesis, however, I reject as not being available, since I am satisfied that there were no tyre marks left on the road shoulder of the kind which such an event would have produced, and which would immediately have been apparent following the accident. Further, such an action appears to be inconsistent with the plaintiff's sensation of the steering wheel pulling to the left, after she struck the gravel. 149 He agreed, in cross examination, that if the plaintiff's statement of feeling the vehicle pulling to the left, as she began to round the bend, having earlier slowed her vehicle after the wheels came into contact with loose gravel, was accepted, then this could have "led to loss of control by correction". 150 While he also accepted, in cross examination, that the presence of gravel on a roadway would "generally … reduce the friction between the vehicle and the road surface", he did not agree that this suggested that its presence, on this occasion, had contributed to the occurrence of this accident. The explanation he gave was as follows: "A. The particular part of her statement that requires some thought, but does not indicate [implicate?] the loose aggregate, is her description of the steering wheel pulling to the left. That suggests that there is some mode or mechanism that is causing that pulling action. Q. Would that not be caused by her left wheels getting into the gravel so that the impetus being provided to the car would be stronger on the right side than on the left? A. That would be the case if she entered either a significantly heaped material, in which case the tyre is rolling through mounded material which is going to create a drag effect on the left, or if she were to move on to I think what has been described as the white gravel shoulder." 151 The sound of gravel hitting the car which she had described, he accepted, indicated that she had come into contact with it. He was then asked as to the significance of the plaintiff's observation that she had "slowed" her car, at that point, noting: "What do you mean by 'slow'? If 'slow' is to remove the foot off the accelerator, then in that case it would not have an effect. Q. What about if she braked? A. If she braked, then it certainly can have an effect. If she is running through gravel, then there is a greater likelihood that she would lose traction. So that's why its, there is no definitive answer to it. It depends on her rate of slowing and the method of slowing." 152 His evidence was in conflict with that of Mr. Hespe and Mr. Richmond as to the consequence of a driver, in such a situation, easing off the accelerator - an event which they suggested would have a similar effect to braking. I find his evidence in this regard unconvincing. 153 Finally, it needs to be noted that he agreed that the initiating point for the plaintiff's problems must have been in an area six to ten metres, or at least a short distance, before the yaw marks, observing: "… that the steering action which led to the loss of control as evidenced by the yaw marks, must logically have occurred a short distance prior to the commencement of the marks, because the marks are actually separated by the tyre marks and so if we are to assume that there was some loss of control to initiate that steering action prior to, then I cannot identify where that happened, if it happened. … What I am saying is there is a steering action that must necessarily have preceded those marks and that that would be a very short distance from them. But as to whether there was a loss of control preceding those marks, or even a loss of traction preceding those marks, there is no evidence to say." 3. Findings on Causation 154 A number of matters were, clearly established upon the evidence, and accepted as such by the experts. There is no real issue in relation to them. They include the following; a) the sign posts warning of the work, its nature and dangers, were seriously inadequate;

b) the "reduce speed sign" located in a 100 km/h zone was, in the absence of any indication of a safe speed for the road works, of no value whatsoever;

c) there should have been more stone warning signs as well as "slippery" surface signs repeated at regular intervals;

d) there should have been a Roadworks 60 km/h limit for the entire section of road;

e) the 75 km/h sign was misleading and dangerous in that:

(i) it suggested that even in normal conditions the safe speed for the two bends was the same, when clearly there was a proper differential between them of 15 to 20 km/h;

(ii) it indicated that the safe speed during the roadworks was the same as under normal conditions;

(iii) it failed to advise that the roadworks continued round the bend, and that the safe speed was substantially less than 60 km/h; and

(iv) it should have been covered up until the gravel was removed.

f) the adjoining embankment added to the hazard by reason of the potential drop off and the proximity of the newly widened shoulder to it;

g) the broken back bend was inherently dangerous because of the tight radius of the second bend which was covered by the same advisory speed as that for the first bend;

h) the normal friction between the wheels of the plaintiff's car and the road surface, which determines the speed at which a bend can be safely taken, was significantly reduced by the presence of loose aggregate on the newly sealed surface;

i) the loose aggregate was not evenly spread, by the morning of the accident, having been accumulated, in sections, into mounds;

j) the plaintiff began to lose control on the roadway before the point at which the tyre marks were left;

k) the plaintiff had not driven over this section of road during the resealing and hence was not to know what was its condition in the area of the broken back bend;

l) the plaintiff had safely traversed this section of roadway on many previous occasions, but came to grief on the one occasion when there was gravel on the road;

m) other motorists had found the bend and the gravel difficult to negotiate. 155 In the circumstances outlined the risk of an unwarned motorist who approached the top corner at a speed which was in excess of that which was safe in the prevailing conditions, of losing control in the gravel, and of leaving the roadway and going over the embankment, was a foreseeable and significant risk, within the meaning of the test as developed in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47; Minister Administering the Environmental Planning & Assessment Act 1979 v San Sebastian Pty Ltd (1983) 2 NSWLR 268 at 296; Rottnest Island Authority v Nagle (1993) 177 CLR 423 and Brodie v Singleton Council (2001) 75 ALJR 992. 156 The present case is not easy of decision, being one in which a determination of the cause of the accident depends upon circumstantial proof. It is necessary to approach it by reference to the principles discussed by Dixon, Fullager and Kitto JJ in Luxton v Vines (1952) 85 CLR 352 at 358: "The test to be applied in determining in cases like this whether circumstantial evidence suffices to support a finding that negligence for which the defendant is responsible vicariously or otherwise occasioned the injury complained of was restated recently by this Court in Bradshaw v McEwans Pty Ltd (unreported 1951), and for the purposes of this case it is enough to set out the following passage from the judgment: 'Of course as far as logical consistency goes many hypotheses may be put which the evidence does not exclude positively. But this is a civil and not a criminal case. We are concerned with probabilities, not with possibilities. The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while in the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture; see Lord Robson, Richard Evans & Co Ld v Astley [1911] AC 674 at 687. But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise: cf per Lord Loreburn at 678'." 157 Similarly in Holloway v McFeeters (1956) 94 CLR 470 at 480-481, Williams, Webb and Taylor JJ observed: "All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission left unexplained, should be that the injury arose from the defendant's negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood". These passages are extracted from the unanimous judgment of this Court (Dixon J, as he then was, Williams, Webb, Fullager and Kitto JJ), in Bradshaw v McEwans Pty Ltd. " See also Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155 at 161-162, and Trevali Pty Ltd v Haddad NSWCA 16 November 1987. 158 It remains correct that a balance of probability test, while not calling for a mathematical evaluation, still requires a Court to reach a level of "actual persuasion": Seltsam Pty Ltd v McGuinness (2000) 49 NSWLR 262 at 284. That does not, however, call for the degree of scientific certitude or precision for which the experts, in the present case, appeared to be searching in their conclave, an approach considered to be inappropriate in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 e.g. at 642-643. Nor does it mean that their individual opinions cannot be taken into account, or that the evidence should not be evaluated by me in the light of their input as to those matters which may make any given possibility as to causation more probable than not. What it does mean is that a mere possibility that the plaintiff's injury was caused by, or materially contributed to by an act or omission, constituting a breach of duty by a relevant defendant, is not enough: see additionally Desmond v Cullen [2001] NSWCCA 238 at para 13 per Spigelman CJ and Wallaby Grip (BAE) Pty Ltd (in Liq) v Macleay Area Health Service 17 NSW CCR 355 at par 16. 159 Accordingly, It would not assist the plaintiff if the evidence did not go beyond establishing that the event, or the combination of events, for which she contended could not be excluded as a cause of her injury, or if that event or combination of events was not shown to rise above a mere possibility. 160 I accept the plaintiff's submission, however, that, in a case such as the present, which involves a combination of an act which creates a potential hazard (here the spread of gravel on a road surface) and an omission or failure to take appropriate action to reduce that hazard (relevantly through proper control or site signs), the policy of the law is to take a somewhat robust and pragmatic approach to the question of causation: see Wilsher v Essex Area Health Authority (1988) AC 1074 at 1090, and Wallaby Grip (supra) at par 17 Per Beazley JA. That question is essentially one of fact to be answered by reference to commonsense and experience and one into which considerations of policy and value judgments necessarily enter. March v Stramare Pty Ltd (1991) 171 CLR 506. 161 The concern of the courts, I also accept, is that a plaintiff should not fail to recover for injuries which arise out of a situation of danger created by a defendant, where there is an inability to prove every fact leading to the injury. In Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 420, Gaudron J said: "Leaving aside cases involving some positive act and those in which an omission can be treated as a positive act, a case based on omission or a failure to act will, in certain respects, fall for analysis in a way which differs from that appropriate for a case based on a positive act. Thus, in the case of a positive act, questions of causation are answered by reference to what, in fact, happened. In the case of an omission, they are answered by reference to what would or would not have happened had the act occurred. In that exercise, the larger philosophical questions are brushed aside and the issue is approached on the basis that 'when there is a duty to take a precaution against damage occurring to others through the default of third parties or through accident, breach of the duty may be regarded as materially causing or materially contributing to that damage, should it occur, subject of course to the question whether performance of the duty would have averted the harm'." (citing Mason J in Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 467) 162 Her Honour went on in Bennett's case to say: "In practice, it is not always necessary to inquire what would have happened in the circumstances under consideration had a positive duty been performed. Thus, in the case of a statutory duty, a 'breach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary , that in fact the accident did occur owing to the act or omission amounting to the breach of statutory duty" ( Betts v Wittingslowe (1945) 71 LR 637 at 649 (per Dixon J) 163 Gaudron J continued: "And although it is sometimes necessary for a plaintiff to lead evidence as to what would or would not have happened if a particular common law duty had been performed, generally speaking, if an injury occurs within an area of foreseeable risk, then, in the absence of evidence that the breach had no effect, or that the injury would have occurred even if the duty had been performed, it will be taken that the breach of the common law duty caused or materially contributed to the injury." 164 As elsewhere explained in these reasons, I am satisfied that relevant breaches of duty were established in relation to the inadequate "signage", and control of the site after the resealing work was carried out, in relation to leaving gravel on the roadway in the absence of sufficient "signage" or control, and in relation to the absence of the guard rail. I am also satisfied that the plaintiff's injury occurred within an area of foreseeable risk. Her Honour's reasons are accordingly applicable in relation to the issue of causation. 165 It may be granted that proof of an increase in risk does not of itself satisfy the legal requirement of causing or materially contributing to injury: Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 esp at 315-316 where Mason P agreed that: "The law does not equate the situation where the defendant has materially increased the risk of injury with one where he has materially contributed to the injury". See also Seltsam Pty Ltd v McGuinness (2000) 49 NSWLR 267 at 278, where Spigelman CJ observed, however, that it does not follow that an increase in risk is not capable of establishing causation, when considered in the full factual matrix. 166 So it was that in Chappel v Hart (1998) 195 CLR 232 at 244, McHugh J (in a passage subsequently referred to by the High Court with approval in Naxakis v Western General Hospital (1999) 73 ALJR 782 at 787) said: "… if a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates , the defendant's conduct has materially contributed to the injury that the plaintiff suffers whether or not other factors also contribute to that injury occurring. If, however, the defendant's conduct does not increase the risk of injury to the plaintiff, the defendant cannot be said to have materially contributed to the injury suffered by the plaintiff." See also The Council for the Municipality of Waverley v Bloom (1999) NSW CA 229 at paras 29-31, and Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 467 per Mason J. 167 In the present case, the relevant risk was that of coming onto loose gravel upon a substandard bend, un-warned as to the speed which was safe for that section of roadway. That risk, I am satisfied, eventuated for the reasons previously mentioned. Hence in the absence of sufficient reason to the contrary, the line of reasoning discussed is open. 168 The case is one where in my view, an inference is open that the accident did occur owing to the breaches of duty, which I find were established. 169 Irrespective of that approach, I am also satisfied that, upon a fair assessment of the evidence, there is an irresistible inference to be drawn that the plaintiff began to lose control of her vehicle in the top bend, because her wheels lost traction when they came into contact with the gravel, which undoubtedly was present in that area, and that this occurred at a time when she was proceeding at a speed which, although in accordance with the advisory speed sign, was in fact excessive for the conditions. I am further satisfied upon the evidence, that the presence of gravel made it impossible, once traction was lost, for the plaintiff to regain control of the vehicle. 170 While it is true that the plaintiff's memory was absent at the time of the trial, a day upon which she was not particularly well, and while it is also true that her earlier statement had been prepared well after the event, and was untested, it cannot be disregarded. There was no objection to its tender, and it identified two events which were consistent with the scenario advanced on her behalf, being one which all the experts agreed could have led to the accident. 171 These related to her impression that there was an unintended deviation, to the left, from the track being taken around the bend, after her vehicle struck some gravel, and her intuitive reaction to correct that problem by slowing down. The first is consistent with a loss of traction on the part of a vehicle hitting the edge of gravel in a windrow of the kind which was present. The second was something which was only likely to make it more difficult for her to regain control and to maintain a direct track out of the corner, once the vehicle got into trouble. 172 Although it was submitted by Pioneer that this statement was equivocal as to whether the recollection by the plaintiff of her wheels hitting gravel occurred well before, or immediately before the accident, that is not a submission which I accept. Read fairly, it is clear that she was referring to the events immediately preceding the vehicle getting out of control, ie when she struck an accumulation of gravel and felt her vehicle deviate from its desired course, sufficient , in each case, to attract her attention. 173 While there were no tyre marks on the gravel in the area where control was lost, or at least any which were noted by any of the witnesses at the scene, or evident in the photographs, that is not, to my mind, fatal to the plaintiff's contention. 174 Mr. Hespe did suggest that there were in the photographs signs of an initial anticlockwise movement at the beginning of the tracks, a matter which would be consistent with the plaintiff's recollection and with the scenario advanced on her behalf. 175 This view was subject to the assumption that these signs had in fact been left by the plaintiff's vehicle, and it needs to be evaluated accordingly. The defendant's criticism of it is justified, to that extent, although as observed above, the coincidence or juxtaposition of the marks provides clear support for it. Moreover, it appears to have been accepted, by all experts, that there was such a movement to the left and a subsequent correction. The issue between them was not so much as to the fact of that occurrence but rather as to what caused it, and where it occurred. 176 Whatever be the case as to the initial anti clockwise movement, it is clear that the initiating cause for the accident began at some point before the marks which were laid down, and that those marks began on the southbound side of the carriageway. That fact, along with the absence of any signs in the gravel of the vehicle having moved back across the centre of the road, tend to contradict, at least on a balance of probabilities, the hypothesis that the accident was due to the fault of the plaintiff as a result of her driving at a speed in excess of 75 km/h, or as a result of inattention, or distraction, or insufficient application of steering in the top bend, of the kind which took her vehicle across the centre of the carriageway, followed by overcorrection to remedy what would have been error on her part. I accordingly discard that possibility as one that was reasonably open. 177 Over-correction there almost certainly was, because upon the expert evidence, that would have been necessary to result in the clockwise yaw which took the vehicle over the embankment. However, I see no reason to find that it occurred other than at a time when the plaintiff was doing her best to respond, on the correct side of the roadway, to the sensation which she experienced of a loss of traction and unexpected movement of her vehicle to the left after striking a patch of loose gravel on the road surface. Whether that was in the cleared tracks, or, as was more probable than not, on the edge of a windrow, does not seem to me to matter. 178 I consider it unlikely that the difficulty which the plaintiff faced was caused by the uneven surface, or by the ridge between the shoulder and new surface, since there is no evidence to suggest that the degree of unevenness or the height of the ridge were of any great significance. However, that factor may have contributed to and complicated the problem caused by the gravel. 179 Equally, it appears to me, in the absence of any indication to the contrary, there is no reason to infer that the plaintiff became distracted in some way. To reason that this may have occurred in the absence, for example, of signs of a dropped cigarette, or of a partially adjusted car radio, or of her taking a telephone call, or of the presence of an animal or other occurrence on the roadside, is to resort entirely to speculation of a kind which would not be appropriate. 180 I am satisfied from the evidence of Mr. Goodfellow, which did not seem to be seriously challenged, or contradicted by such calculations as were made as to the exit speed of the vehicle, that the plaintiff was travelling around the top bend at a speed somewhat above 60 km/h and somewhat less than the 75 km/h advised by the sign in place. Although that should not have occasioned any unsurmountable problems under normal road conditions, I am satisfied that it was an excessive speed, in the prevailing conditions, particularly in a broken back curve which the experts all agreed, was substandard, in any conditions. 181 The continuing presence of gravel upon the roadway in this area, upon my assessment, as the experts' report also shows, was a hazard of some significance, in the absence of proper precautions, including an advisory speed restriction, or other form of control or specific warnings of a need to take particular care in this section of roadway. 182 Had the 75 km/h advisory been covered, and had there been provided the cautionary signs, which I consider due care required, as to the slippery condition of the road, and as to the need not to exceed at most 55 km/h in the top bend, then I am satisfied that the plaintiff would have approached that bend at a considerably lesser speed than that at which she did in fact proceed. In that event, I am also satisfied, on a balance of probabilities that she would not have lost traction in the gravel, or that she would have thereafter been prevented from regaining control. Clearly the less the speed in the corner, the less the problem with the reduced wheel/pavement friction force which inevitably, as the experts all agreed, (although not necessarily to the same extent), was caused by the presence of gravel, and with recovery of control, once traction was lost. 183 While it is true that there was no specific evidence from the plaintiff that she did set her speed by reference to the advisory sign, or that she would have complied with a 55 km/h advisory sign, and while in relation to warnings, a subjective test is appropriate: Ellis v Wallsend District Hospital (1989) 17 NSWLR 55 at 559-560 and at 581-582, it is implicit from the statement that she had taken notice of the sign which was in place. I see no reason, in circumstances where she had come upon those roadworks for the first time, why she would not have taken notice of and obeyed any roadside warnings, or why she would not have reduced speed, had there been a change in the signs indicating a need to do so. There was no evidence to suggest that she had been driving recklessly to that point, and she was not an experienced driver. The case was not of the genus where there was a non immediate risk of injury which may have been prevented had a worker obeyed a general sign calling for the use of protective clothing or a safety device. Here there was a specific danger which the "signage" should have dealt with, and to which it is proper to assume that this plaintiff, subjectively, would have responded. 184 The view offered by Dr. Adams does not call for any contrary conclusion. This was not an occasion of familiarity with pre-existing road conditions. There had been a significant change in the road surface, and the more probable response of the plaintiff in my view was that she would have taken note of any advice or warning given. This case, in my view, falls on the other side of the line to that considered in Waverley Council v Bloom (1999) NSWCA 229 where doubt was expressed, in passing, whether a failure to erect additional signs warning of board riders would have obviated the risk of injury to the plaintiff. 185 While the experts were unable to identify a "scientific basis" for determining the location, or the cause, of the loss of control of the plaintiff's vehicle, or individually to provide a "definitive view" of such event, that is not the end of the matter. To make out her case that it was due to the presence of gravel, and to the absence of sufficient warning that would have led her to reduce her speed to a safe speed, in the order of 55 km/h or below, she needs to establish those matters only upon a balance of probabilities. That I am satisfied she has done. In particular, despite the criticism advance of the evidence of Messrs Johnson and Hespe, I find their assessment and the reasons they offered, as extracted above, to have been more in accordance with common sense, and with the reality of the plaintiff's accident, than that of Messrs Richmond and Keramidas which appeared to have concentrated almost exclusively on the absence of marks preceding the yaw marks, and hence to have been more drawn to a scientific approach depending upon certitude than to the approach which is relevant for a case of this kind. 186 The conclusion which I reach in this regard, I should emphasise, does not depend upon any question as to whether the gravel spread or left on the road was or was not excessive had proper precautions as to road signs and control been taken. Although there were differing opinions in this regard, I incline to the view that the initial spread of gravel was in accordance with proper engineering practice. My conclusion, however, depends upon the assessment, with which the experts agreed, that absent proper control and signs, there should not have been any gravel left on the road. Certainly there should not have been sufficient left that could accumulate into the mounds or windrows that all witnesses, save perhaps for Messrs Vautin and Savage, acknowledged were present. It is the combination of its presence, and of the speed at which the plaintiff was driving, and was entitled to drive, in the absence of proper control and signs, that I am satisfied were the effective cause of her accident. 187 The associated question whether the presence of loose aggregate on the road had in some way prevented the plaintiff from regaining control of her vehicle, if its initial loss of control had been occasioned by some other circumstance such as inadvertence or striking a ridge, was the subject of limited consideration by the experts. Mr. Keramidas was of the view that the absence of any indication of deviation or scuffing, in the marks which were left on the road, was contradictory of that proposition. This does not seem to me to provide a sufficient answer since it does not deal with the circumstance that there clearly was some correction which brought about the loss of control and the clockwise yaw, from which it would have been very difficult to recover in the presence of the gravel. 188 His answer, in any event, assumed that the plaintiff could and should have taken corrective action in the area where the marks were left, yet failed to do so, whereas in fact the preponderance of the evidence was to the effect that once out of control, the presence of the gravel would have precluded recovery, certainly in the hands of an inexperienced driver. Common sense points also in favour of that conclusion, there being an obvious difficulty of a very serious kind in regaining control of a vehicle on a loose surface. 189 Accordingly, and independently of the manner in which initial control was lost, I find that the presence of gravel which, absent proper control and signposting, should not have been left on the roadway, materially contributed to the accident. It did so in materially reducing, if not eliminating, the ability of the plaintiff as an inexperienced driver, of the kind who was foreseeable as a road user, to respond effectively to it. 190 I observe, additionally, in relation to this aspect of the case, that while there is only limited value in referring to cases decided upon their own facts, the present case does bear some similarity to Goldworthy v District Council of Port MacDonnell (1992) 57 SASR 473 where, in similar circumstances, an inference was drawn as to the causal link between inadequate signage in relation to a potentially dangerous section of roadway, and the resulting accident. 191 Although reference was made to the decision in Michelle Gray v South Hampton and SW Hampshire Health Authority (2001) EWCA Civ 855, it does not establish any matter of principle of assistance for the present case. So far as any of the reasoning differs from that in Chappell v Hart the latter must be preferred. 192 An argument was developed by the Council and by Pioneer to the effect that since there was no evidence of the police and others who attended the accident scene having done anything afterwards to rectify the signs or road surface, this offered support for the view that all was well. This is an argument of no merit. It assumes that they had a responsibility individually to do something, that they considered whether to take action, and decided not to do so, and that they had good cause or justification for such a decision. There is no evidence that individually they did give attention to that question, and in any event, the final premise is circular in nature. Moreover, it is the fact that, on the following day, the road was swept to remove the hazard, and that subsequently the sign was altered, and the guard rail was installed. The submission is of no weight. 193 Equally, I dismiss as of no weight the submission that Mr. Richmond undertook a survey of the road in June 1996, made no criticism of the signage or of the layout of the curve, and hence all was well. In my view, despite his expertise the audit was inadequate in this respect, and to rely upon its omission to detect a problem as proof that there was none, is again circular, and ignores the unanimous opinion of the experts, including himself, that the curve was substandard as to layout and signposting. More directly relevant, however, is the fact that it was the condition of the roadway and signs in February 1997, ie during the roadworks, that determined what should be done, rather than its state pre shoulder widening and resealing. 194 I am also satisfied, as were the experts, that the presence of a guard rail in the area of the embankment was appropriate, having regard to the nature of the bend and to the fact of shoulder widening, and that if present it would also have prevented the plaintiff's vehicle going over the embankment. Were this the sole area of inadequacy in relation to this section of roadway, then it would be necessary, subject to the question of whether, after paying due regard to competing budgetary demands, a proper exercise of care would have called for its installation, to then consider the possibility of some discount, in relation to damages. This would relate to the risk of some other injury, of a lesser or equivalent kind, having been sustained by the plaintiff, if her vehicle had come into impact with it. 195 By reason of my primary conclusion concerning the gravel and inadequate signposting, it is not strictly necessary to deal with this question, as there was no guard rail present. However, had the plaintiff's claim been confined to the absence of a guard rail, as the sole inadequacy in this area of roadwork, and as the effective cause of her injury, then I would not have made other then a modest adjustment on this account. In particular, while the evidence established that a spinal lesion could possibly have been sustained in such an impact, by reason of the plaintiff's pre-existing condition, I accept Dr Yeo's assessment that it is more likely that it would not have been of that kind or degree. 196 The injury sustained in that event would, in my view, have more likely to have been of a ligamentous whiplash kind, that would have taken the plaintiff out of the work force for a relatively brief time, that would have been the occasion of some temporary pain and discomfort, and of a need for limited medical intervention with physiotherapy. A modest discount of the damages otherwise attributable to the condition of tetraplegia which the plaintiff suffered, to reflect this matter, not exceeding $100,000, would in my view, have been appropriate, in the circumstances postulated, were the plaintiff's case to depend upon the absence of a guard rail alone. 197 For these reasons, I am satisfied that the plaintiff's accident was due to serious inadequacies, in relation to the site control and provision of signs in relation to the presence of gravel while there was that inadequacy in control or signposting, and also in relation to the absence of a guard rail. 198 To the question whether any one or more of the defendants is legally responsible for those acts and omissions, which I am satisfied were causative of the plaintiff's injuries, I shall next turn.

E. WAS ANY DEFENDANT RESPONSIBLE IN LAW FOR THE CONSEQUENCES OF THE ACCIDENT 199 The resolution of this question requires consideration of the circumstances in which the road work came to be carried out, and the arrangements which existed in relation to the management of the State road system, as well as reference to the authorities which touch upon the responsibilities of road authorities, and contractors who are engaged to perform work on their behalf.

1. The arrangements between the RTA and the Council concerning the management of State Roads 200 Mr. Maloney, the RTA area maintenance manager, gave evidence of the arrangements in force concerning the provision of road work in conjunction with councils such as the Evans Shire Council. The Sofala Road, he said, was one of the roads within his area of responsibility. As a 'classified road' (pursuant to S 46 of the Roads Act 1993) the Evans Shire Council was the nominated maintaining road authority in relation to that road, which became a "State Road" on July 1, 1994. 201 Each year, he explained, the RTA provides funds, for the maintenance of such roads to the maintaining authority. This is done pursuant to an individual "State Road Maintenance Agreement" signed by the RTA and by the Council, on an annual basis. 202 Additionally, there exists a booklet "Arrangements with Councils for Road Management", more commonly referred to as the "Yellow Book", which evolved from negotiations with the Local Government and Shires Association prior to 1993. 203 The STATE ROAD MAINTENANCE AGREEMENT for the relevant year (1996/97) recited: "2.1 The RTA and Councils share responsibility for the management of the roads and traffic system in New South Wales and are committed to a joint consultative approach to the exercise of that responsibility. 2.2 The RTA is accountable to the NSW Government to ensure that it achieves best practice and best value for money in the delivery of all Maintenance Services. 2.3 The RTA wants to work in partnership with the Agency to promote the most cost effective delivery of Maintenance Services. 2.4 The RTA and Councils have an agreed administrative procedure "Arrangements with Councils for Road Management" (the "Yellow book") which sets out the administrative framework within which the RTA makes an allocation available to the Agency. 2.5 On a State Road where Council carries out the work, the RTA decides what work is to be done and engages Council to carry out the work. The process is formalised by an agreement referred to in the Yellow Book. 2.6 The RTA and the Agency therefore enter into this agreement to administer the management, implementation and payment of the Maintenance Services." 204 The Agreement then provided: "4.1 The RTA engages the Agency to provide maintenance services on the network of State Roads identified in Schedule 2 to this agreement". (one of which was Main Road 54). 205 It also contained an express provision whereby the Council "agrees to administer (it) according to the requirements in the Yellow Book" (6.1). It further provides: "6.3 The Agency agrees to perform the Maintenance Services; a) in a diligent manner b) to the standard of skill and care expected of an Agency experienced in the provision of road maintenance services;

… 6.6 The Agency may subcontract any part of the Maintenance services provided the Agency uses tendering practices according to the NSW Government's Code of Practice for the Construction Industry and Code of Tendering for the Construction Industry. Subcontracting does not relieve the Agency from its obligations and liabilities contained in this agreement. Traffic Control 11.15 The Agency is to provide traffic control for Maintenance Services according to RTA's Traffic Control at Worksites Manual, and agrees to immediately follow the directions of the Police." 206 The agreement also provides for drive through safety inspections to be conducted by the Council, on a monthly basis, in relation to signs, delineators, safety barriers and adequate visibility, and on a two monthly basis, of roadside and pavement conditions. 207 The YELLOW BOOK, which was issued in July 1993 to all Councils, contains several provisions of relevance. 208 In a forward to the arrangements, it is noted: "Local Government Councils have a major role in the management of roads within NSW and the RTA provides considerable financial and other support to assist in that task. … This manual now provides for an extension of modern working arrangements to all work on State Roads and any other works which the RTA may specifically fund. The new arrangements take into account the Government's aim to reduce administrative complexity and cost, and the need for the RTA to reduce its supervision of Councils and increase Councils' responsibility and accountability for State funds distributed by the RTA. The new Arrangements are not intended to be a mere updating of current procedures. They incorporate modern management techniques for such areas as project management, financial arrangements and contract management. The arrangements are a blend of conditions which must be followed, guidelines which should be followed and best practice for Councils' information." 209 The foreword is followed by a summary, in an Introduction, of the new arrangements. Relevantly, this section provides: " What are the key elements in the project management based approach? The new arrangements are based on State, Regional and Local Roads as the basic categorisation of roads for administrative purposes and reflect the RTA's shift to take greater responsibility for the strategic management of State Roads. A major feature is the move to improved project management of all works on State Roads carried out by Councils. The approach will also apply to other works by Councils for which the RTA provides a specific allocation. Key principles include: RTA to determine and fund all programs of work for State Roads. Council may deliver all or part of a project/program by agreement with RTA (including concept stage). Council to submit estimates of the full cost of the agreed project/program … RTA, when satisfied with the estimate and when funding is available, will accept Council estimate and agree to Council commencing work. Council will be responsible for adherence to RTA technical standards, where available rather than plans or specifications being approved by the RTA. Council will be responsible for delivery of project stages to agreed time, cost and quality targets. Council compliance with technical and financial standards will be monitored by random audit. …" 210 In Section B, headed Works Carried Out by Councils, are the following observations: "B.01 LEGAL FRAMEWORK UNDER THE ROADS ACT Who is the Roads Authority? The Roads Act 1993 provides that a roads authority may carry out road work on any public road for which it is the roads authority. A roads authority owns the roads for which it is the roads authority and may regulate traffic, control the carrying out of activities on the road and exercise other functions as conferred by the Act. Section 7 provides that: - the RTA is the roads authority for Freeways - the Council of a local government area is the roads authority for all public roads within its area other than: any Freeway or crown road and any public road for which some other public authority is declared to be the roads authority." Who decides what works are to be carried out? Under Section 61, only the RTA may make decisions as to what road work is to be carried out on: Freeways, State Highways and Metropolitan Main Roads or Any other classified road where An agreement has been made under Section 62 for the RTA to exercise the functions of a roads authority, or

The Minister has directed the RTA under Section 63 to exercise the functions of the roads authority. Councils may make decisions over what work is to be done on any other classified road except Tollways and State Works. Who carries out the work? Only the RTA may carry out work on a Freeway, Tollway or State Work … A Council may exercise its functions as the roads authority and carry out works on any other classified road except where the RTA is exercising the functions of a roads authority. The RTA may carry out work on a classified road where the RTA and Council have made a roads agreement under Section 62. … The RTA has a general power under Section 64 by which it may exercise the functions of a roads authority on any classified road irrespective of whether it is the roads authority for that road. Financial Provisions The RTA and Council may enter an agreement under Section 207 under which the RTA provides financial assistance to a Council to enable it to: Carry out specific road work or specified traffic control work on a specified classified road, or carry out road work or traffic control work generally.

Application to State and Regional Roads State and Regional Roads are administrative categories that generally operate within the framework of existing legislation as follows: State Roads Within Part 5, Division 3, the following is applicable: - On a State Road under the direct control of the RTA, the RTA decides what work is to be done and carries out the work - on a State Road where a Council carries out the work, the RTA decides what work is to be done and provides funding under a Section 207 assistance agreement, for the Council to carry out the work." 211 Section B continues to deal with the Administrative Arrangement of Funds, noting that: "The RTA makes financial contributions to Councils for carrying out works on certain roads depending on the availability of funds .. (which) are disbursed through the following three programs: Maintenance Program Enhancement Program Use Program 212 In relation to the Maintenance Program the document continues: B.03 MAINTENANCE PROGRAM What is the Maintenance Program? The maintenance program is those works which preserve and restore the road and traffic management system. Maintenance of State Roads On State Roads maintenance works are carried out directly by the RTA or by Councils by agreement with the RTA. The on-going maintenance of State Roads cared for by Councils by agreement with the RTA is covered by annual programs commencing 1 July each year. These programs may include both preservation as well as restoration works including widening of curves, provision of new pipe culverts and such other minor works as can be undertaken readily in conjunction with routine preservation." 213 In relation to the Enhancement program the document records: "B.04 ENHANCEMENT PROGRAM What is the Enhancement Program? The Enhancement Program is those works which develop the roads and traffic management system to increase capacity and improve performance. Enhancement of State Roads On State roads, enhancement works are carried out directly by the RTA or by Councils by agreement with the RTA. The RTA will provide allocations for enhancement works from time to time depending on the availability of funds and the priority of the work in relation to other works on State Roads throughout NSW." 214 In relation to Road Safety (Black spots) Projects, the Yellow Book provides" "GENERAL Black Spots projects are funded under the federal government's Road Safety (Black Spots) Program. The financial assistance program aims to improve the physical condition or management of locations noted for a high incidence of crashes involving death and serious injury, often termed "Black Spots", and to encourage implementation of safety-related road management techniques that have proven road safety value. The RTA is responsible to the Federal Government for preparation of the Road Safety (Black Spots) Program and takes into account submissions and proposals by Councils. Funds under the program are available for: - works on public roads, regardless of ownership or control. - capital expenditure on equipment having road safety improvement potential. Projects should have a benefit to cost ratio of at least 2, and a recorded history of fatalities or serious injuries. Works eligible for funding may include any construction, alteration or remedial treatment at a Black Spot. Specified sites or short lengths of road can be considered. ADMINISTRATION Projects are administered in the same manner as Enhancement Programs." 215 In Section F, further provision is made in relation to Financial Arrangements as follows: F.01 HOW ARE FINANCIAL ALLOCATIONS MADE TO COUNCIL? When is Council advised of financial allocations? RTA Programs for assistance to Council commence at the beginning of the financial year on 1 July. The RTA will give Councils preliminary advice of allocations for annual programs and for new projects and ongoing allocations for continuing projects as soon as possible in the financial year. Allocations will be confirmed after the NSW Government hands down the State budget. State Roads - All Works For those State Roads cared for by Council by agreement with the RTA, the RTA will determine the works to be carried out by Council and allocate the required funds. Council may make submissions for works it recommends to be carried out. F.02 ACCOUNTING SYSTEM FOR RTA ALLOCATIONS …. RTA allocations may not be used for any purpose other than that for which they are made available. 216 In Section G LEGAL MATTERS, the Yellow Book provides: "G.01 Any damages, costs, charges or expenses of any nature whatsoever paid, suffered or incurred by Council in respect of any action, claim, suit or proceeding taken by or against Council in respect of any work, is to be paid or borne by Council and is not to be charged to the cost of the work, and Council is to indemnify and save harmless and keep indemnified the RTA from and against all such damages, costs, charges and expenses." 217 It emerged from the evidence of Mr. Maloney, that there were within the Council boundaries, some 111 kms of State roads, INCLUDING main Road 54 all of the same S2 classification. 218 Typically, and it was common ground that the year 1996/1997 followed the same course, the procedure for funding of work on State Roads Mr. Maloney described as involving: - allocation by head office of the RTA of maintenance funding, on a regional basis, following approval of the State budget;

• allocation of the regional funds between each Council in the region

• request by Mr. Maloney of each Council, within his sphere of responsibility, for proposals requiring an allocation of the funds available for that Council, for the coming year

• upon acceptance of the proposals, inclusion of the work in the approved work program embodied in the State Road Maintenance Agreement for the Council for that year. 219 In relation to the financial year 1996/97, the RTA received a proposal from the Evans Shire Council for a variety of works including a reseal of the existing section of Sofala Road at 10.1 to 12.75 km north of Bathurst. 220 The proposal was accepted and included in the Approved Work program for the State Road Maintenance Agreement (page 4, Schedule 4). Thereafter, it was for the Council to program and carry out the works, and to invoice the RTA on a monthly basis. It was left to the Council to determine whether to do the work itself, or to engage a contractor which had been "quality assured" in accordance with RTA requirements. Pioneer, it was established, was quality assured, and had regularly been used on projects funded by the RTA. 221 Mr. Maloney confirmed that when, during the preceding year, RTA funds had become available for shoulder widening, he had contacted the Councils in his management area, to inquire whether they might be able to use these funds. In response to his inquiry of the Evans Shire Council, a proposal was received and accepted by the RTA, by letter dated 18 June 1996, which included "shoulder reshaping and sealing for the section of Main Road 54, extending from 10.5 km to 17.5 km. north of Bathurst". 222 Mr. Maloney said that he had inspected the site of the widening after the work had been done, for monetary audit purposes. 223 The resealing of the central portion of the road, he said, was deferred, following discussions between the Council and the RTA, until the shoulder widening had been completed. 224 While the RTA had no direct control of or participation in the works undertaken by Council, he acknowledged that it did have financial control and hence control of the end product, particularly if it were dissatisfied with it. Consistently with these arrangements , he said, there were no RTA staff on site when the resealing work was done. 225 He agreed that in order to put the program together, audits of the roads were conducted on behalf of the RTA and paid for by the latter. One such audit, he acknowledged, being a drive through audit, which was designed to identify problems of the kind that would be encountered by an average motorist, had been conducted Mr. Richmond in June 1996. Additionally, he said that the RTA carried out audits of its own in relation to signs, that being a matter within Mr.Walker's sphere of responsibility. The purpose, he agreed, was to assist in the management of the relevant roads and the expenditure of funds on them. 226 He said that from time to time he, or some other RTA officer, also made routine inspections, which may or may not coincide with work in progress. 227 It was his understanding that the authorisation of advisory speed signs, for state roads, could be done either by the Council or by the RTA, in either case after an advisory speed survey. 228 Mr. Walker, the Roads Safety and Traffic Officer for the RTA for the Bowenfels District, confirmed that his role was to represent the RTA on the Local Traffic Committees, which made representations to Council on traffic matters. He understood that the responsibility for advisory signs rested with Local Councils, by reason of their day to day knowledge of the roads within their boundaries. This observation appeared to rest upon the fact that Councils do in fact look after sign posting, irrespective of where the legal responsibility rests. 229 He agreed that he had been involved in the road safety audit stage 5 which related to MR 54, which had been carried out in June 1996, and which had included the section of road relevant for these proceedings. This was part of his work duties, which led to recommendations being made to the RTA and to directions being given to councils. The object of the safety audit, he explained, was to look for matters that were obviously dangerous or confusing. 230 The existence of a "broken back bend" he agreed could be confusing, and could also be dangerous if it was adjacent to an unguarded embankment of the kind here involved. 231 The audit, he said, had been done prior to the road widening, so that any resulting danger relating to the embankment may not have been obvious. He agreed, however, that it was a matter which should have been looked at, if any widening of the road was proposed, in such an area. 232 He said that as a Road Safety and Traffic Officer, it fell to him to make decisions about regulatory road signs. He also agreed that there was a protocol for the receipt and processing of applications by Councils to alter such signs, including temporary regulatory speed signs during road works. This required, in his case, authorisation by the Road Safety & Traffic Manager at Parkes, following referral by him to that office. 233 He agreed that matters such as the appropriateness of advisory speed signs could be and were raised at local traffic committee meetings, and that if any concern was raised, RTA officers would have a look at it. In the event of disagreement between Council and the RTA, there would be a joint inspection, and if the matter was still unresolved, it could be referred to the Regional Traffic Committee for decision. 234 Mr. Woodburn, the RTA Asset Manager, Western Region, whose role include managing the State Road network in the Western region of the State, confirmed the arrangements as described by Mr. Maloney. 235 He supplemented his evidence by noting that until 1995, MR 54 had been a Regional road, and as such the Evans Shire Council had been the sole determinant of the works to be undertaken in relation to it, under a block grant funding arrangement with the RTA. However, from 1995, after the State Road Maintenance Agreement system was introduced, it had been regarded as a State Road, for funding purposes. 236 He explained that the procedure now in force requires Councils to inspect State Roads within their boundaries, on an annual basis, and to provide the RTA with proposals for maintenance treatments. 237 He said that the RTA relies on the knowledge of Councils, concerning the roads within their boundaries, to prioritise the maintenance funding. Moreover, it leaves it to Council to undertake the work through the contractor or contractors which it engages. It does not supervise the work. It does, however, make inspections on its own behalf, as well as joint inspections with Council staff of State roads. The State Road Maintenance Agreement, he noted, provided funding for Council inspections and reports to the RTA. The purpose, he considered, was to assist in managing "the programmes of works rather than the detailed management of the asset". It was upon that basis that Councils made inspections, at the request of the RTA, and that it made its own inspections, so that the former could provide submissions, and so that the latter could determine the relative priorities for work within each Council area. 238 The overall funding for roadwork, he said, was provided to the RTA through the State budget process, and then distributed to the various regions. As Asset Manager for the Western Division, it became his responsibility to disburse his allocation across the various road and bridge works in the region, whether undertaken by the RTA or by the thirty-one Councils within the Division. Once received, Mr Woodburn allocated funds to each of the five areas, for the assets of which individual Assets Managers, such as Mr. Maloney, had managerial responsibility. 239 One of the main reason for the existence of the RTA, he accepted, was to act in a co-ordinating capacity to ensure a uniformity of road works and standards across the State. 240 He said, additionally, that the RTA is responsible for the erection of regulatory road signs. The provision of advisory speed warning signs, he suggested, was a matter falling within the responsibility of the Council. Their purpose, he said, not surprisingly, was to show "the maximum speed that is safe in good conditions" - viz the Road Users Handbook. 241 Although his evidence was a little equivocal in this respect, it appears that he accepted that deficits in a curve, or in advisory speed signposting, detectable during an audit conducted at "normal road speed" should be the subject of comment in a report of that audit. More particular definition would, however, depend upon a detailed inspection, since the findings of drive through audits are "limited to what could be observed at (normal) road speed." 242 Mr. Vautin the Works Manager of the Council, with responsibility for the programming, supervision and coordination of all roadwork projects within the Shire, confirmed the classification of MR 54 and the system for maintenance which I have earlier outlined. He also confirmed that a copy of the 1996 Road Safety Audit report, which was commissioned by the RTA, was provided to the Council A copy of this document (annexure C to Mr. Vautin's statement) identified the works which should be carried out, along with the defects and deficiencies which had been observed, and gave them ratings according to their risk level. 243 The Audit Report commenced by noting that its objective was "to identify the safety related defects and deficiencies of the road from a driver's perspective in both day and night time travelling conditions". It also noted that while Council representatives had been invited to participate in the field survey, they had been unable to attend. The auditors involved were Colin Richmond and Howard McDonald, from Gutheridge Haskin & Davey, and Mr. Walker from the RTA. 244 Apart from some general observations concerning the condition of existing signs, and their adequacy for night time conditions, and the need for a review of safety barrier installations, the only specific observation in relation to the relevant section of MR 54, concerned the guardrail for the bridge over Winburndale Creek. 245 Mr. Vautin added that for Regional road work, the Council was given block funding by the RTA, on an annual basis. Work on Local roads, however, had to be funded by the Council from its own revenue sources. For these reasons it was, for all practical purposes, dependent upon RTA funding for work done on State Roads. 246 He explained that, following advice from the RTA in about May 1996, as to the availability of funding from the RTA in the sum of $100,000 for road widening work, he had made a decision in conjunction with Mr. Lovell, the Director of Engineering Services of the Council, to widen three sections of the Sofala Road, spanning some 6.41 kms. of road, including the 2.4kms which fell within the Nobby's Hill area. The widening of State Roads to a standard gauge of 10.5 metres, including a seal of 8.5 metres, and shoulders each of 1 metre, he said, was an RTA initiative. 247 The road widening work, he said, commenced in June 1996, in the area where the accident occurred, and was completed for all Sections by August 1996. Before the work commenced, Council employees erected various warning signs including those depicting "Roadworks Ahead", "Reduce Speed", and "Changed Traffic Conditions" previously mentioned. Fine trim work was carried out on all sections between 26 November 1996 and 12 December 1996. This was followed by primer sealing work on the widened shoulders, on12 December 1996, the final seal being planned for the following February. 248 During this period the road remained open for vehicular traffic. He said that the warning signs which had been erected were covered over after the initial shoulder widening was finished, and reopened, upon his instructions, for the final sealing work in February 1997. 249 He informed Mr. Harrower of Pioneer, that the Council required 7mm aggregate, which it would supply, to be used on the final seal. It was his understanding that it was for Council to identify the work which was required, and to specify the aggregate size. 250 In the course of discussions with Pioneer, Mr. Vautin was informed that the final seal work would be carried out on Monday 24 and Tuesday 25 February 1997. He attended at the site on each of these days. His purpose was to satisfy himself that the work was being carried out in a workmanlike manner, and that the aggregate was applied in accordance with the rate which he had calculated. He observed that the three signs which had earlier been erected by Council were in place. He said that he walked over part of the road and did not observed any "excess loose gravel" on it. He was satisfied that the works had been properly carried out both in relation to the bitumen and gravel spread. 251 He was informed on Tuesday afternoon, by Pioneer, that a crew would be back on Friday 28 February to "back broom the road". He considered that this was an appropriate timing for such work, being such as would allow the aggregate to embed itself properly in the resealed section, in accordance with good engineering practice This sweep back was in fact carried out on the Friday. He accepted that no other sweeping work was done between Tuesday and Friday. So far as the evidence shows there was no monitoring or other control of the road surface over this period by any party. 252 Mr. Vautin acknowledged in cross examination, that he did not receive a Traffic Control Plan from Pioneer, in relation to the works, either in accordance with RTA QA specification Part G10, (which, as is later noted, was expressly incorporated into the Contract between Council and Pioneer) or at all. 253 When asked whose responsibility it was to set out temporary speed zones for roadworks of the kind here involved, Mr. Vautin appeared to be quite uncertain as to where that responsibility lay. He did, however, indicate, after some reflection, that he expected that it would have been Council's responsibility to apply to the RTA for a direction to restrict speed. 254 Wherever that responsibility lay, he agreed that "No-one (appeared) to have put their minds to a temporary speed zone". The explanation which he gave was that: "A. Because it was the practice of the day, we are talking - it was the way the work was done in the early nineties and/or had been for many many years and we were in the bedding down process of a new contract and it was, it was new to all parties and I guess we were all learning, we were on a learning curve." 255 Mr. Vautin acknowledged that the Spray Sealing Guide (Section 6 Field Practice) provided that "light brooming may be carried out on the same day as rolling, but additional brooming will be required on the following day". Although the contract with Pioneer called for spray bituminous surfacing to "conform to" the requirements of the Guide, he disagreed that this amounted to a direction, and observed "from my training it is a guide only and it was never practiced". 256 He said that he had considered it unnecessary for a light brooming to have been carried out on the day of rolling, or for additional brooming to have been carried out on the following day. 257 He acknowledged that he was also aware of the provisions of the Spray Sealing Guide in relation to Traffic Control Procedures (clause 6.6 noted earlier in the judgment at para 25.) 258 He said that he did not do anything about ensuring compliance with this provision, because he considered that it had been unnecessary to do so. 259 In his statement, Mr. Harrison, who had been the Deputy Director of Engineering for the Council at the relevant time, said that the contract in question had been executed, in pursuance of an RTA initiative for quality assurance, which had required Councils to call for tenders for all major spray bituminous surfacing work. 260 Road maintenance agreements for the year 1995/ 1996 and 1997/1998, as well as earlier correspondence between the Council and the RTA, were placed into evidence revealing the funds allocations which had been made, as well as the roadworks for which funding had earlier been approved. 261 There were considerable differences between the terms of the 1996/1997 road maintenance agreement and the other road maintenance agreements in that those other agreements made express reference to S 207 of the Roads Act, whereas the 1996/1997 agreement was silent in that respect (the 1997/1998 agreement being expressly described as an agreement under that Section, as well as under S 61). Moreover, the other agreements did not use the terms of engagement which were used in the 1996/1997 agreement (clause 4.1). 262 It was established that the Evans Shire was a large country shire with a relatively small ratepayer base, which had been created by an amalgamation of the Abercrombie and Turong shires. 263 A financial statement of the Council for the year ending 30 June 1997, was tendered which revealed the extent and source of its operating revenues and expenses. 264 There was evidence tendered concerning the condition of the longer section of roadway between Sofala and Bathurst. This revealed that: a) there were a number of other sections adjacent to drop offs, near crests or curves, some of which were deeper and longer horizontally than that at the accident site, as well as significant stands of mature trees, in other sections, none of which were guarded with fencing;

b) there were some sections of the road which were gravel shouldered and with a narrow tar seal just wide enough for two vehicles to pass. 265 The evidence also showed that, apart from the two State roads within the Shire which ran respectively from Goulburn to Ilford, and from Hartley to Bathurst via Jenolan Caves and Oberon (MR 253), there were within the Council's boundaries many unsealed roads, as well as other roads which were narrower than the Sofala Road, or which had less in the way of shoulders, or which had drop offs and stands of trees adjacent to the roadway. To the relevance of that evidence, which went to the competing demands upon the Council's roads budget, as a matter of law, I shall return.

2. The Contract between the Council and Pioneer 266 Mr. Vautin confirmed, and there was no suggestion to the contrary, that the contract under which the resealing work was carried out, along with all other sprayed bituminous sealing work in the Shire, was embodied in a document described as "Quality Assurance Contract 1/96 Evans Shire Council - Sprayed Bituminous Surfacing Works". It bears the date 13 November 1996, and was expressed to have been made between the Council and Pioneer Road Services Pty Ltd (The Contractor), and contained an agreement by the Contractor extending over a two year period, to "perform the various works required in and about the full and proper completion of the Contract in accordance in all things with" the various annexures thereto, which included a set of General Conditions of Contract prepared by the RTA. 267 These GENERAL CONDITIONS OF CONTRACT, it was common ground, constituted a pro forma document provided by the RTA for use by Councils. It was accepted by all parties, notwithstanding the fact that, in the General Conditions, the "Principal" was said to be the RTA, that the contract as a whole remained one between the Council and Pioneer. Clearly there was a common intention to that effect. 268 However, the issue which remained was whether, for the purpose of the indemnity clause (clause 18) contained in the General Conditions, which was expressed to be for the benefit of the "Principal", it enured in favour of the Council or the RTA. 269 In this respect, the RTA maintained a somewhat neutral position, the issue which arose essentially being one between Pioneer and the Council, the latter of which asserted that, either by way of the proper construction of the contract, or through rectification, the clause should be regarded as operating in its favour, rather than in favour of the RTA. 270 I am in no doubt that it was the continuing common intention and understanding of the parties that the General Conditions were also to be read as though the Council was the Principal. The attachment of the pro forma was a matter of convenience, designed to spell out the conditions operating between the Council as engaging party, and Pioneer as the contractor providing services for it. It was the Council which executed the document, and it related to regional and local roads, as well as to State roads, for the former of which the RTA had no direct responsibility. This conclusion I reach as a matter of construction. Any other approach would be inconsistent with the clear intention of the parties and would led to an absurd result that ought to be avoided: Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297. 271 I do not consider rectification necessary to achieve such result, although if that were necessary I would have made an order to such effect, in accordance with the principles considered in Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336 at 350, in Pukallus v Cameron (1982) 180 CLR 447 at 452 per Wilson J, and in Commissioner of Stamp Duties v Carlenka (1995) 41 NSWLR 329. 272 It was submitted by Pioneer, relevantly in relation to both the construction and rectification issues that it was by no means clear that the indemnity clause was not intended to enure for the benefit of the RTA, since it was that body which funded the works. This submission in my view has no weight, having regard to the fact, that in all other clauses where the "Principal" is mentioned (eg clauses 2(iii), 2 (ix), 2(xii), 3, 3(a), 3(b), 4, 5, 6, 7, 10, 11, 27, 38, 43, 44, 45, and 46) the only sensible view open is that such party was the Council. 273 It is unrealistic to assume that a third party benefit would have been secured to the RTA under a document to which it was not joined as a party, and which as a result it may not have been able to enforce. If rectification is needed, those circumstances, when added to Mr. Harrison's evidence, which was not contradicted by any Pioneer witness, provides the degree of proof required for that remedy. 274 The General Conditions relevantly provide: "15. Protection of Persons and Property The Contractor shall a) provide, erect and maintain all barricades, guards, fencing, temporary roadways and footpaths, signs and lighting; b) provide watchmen and traffic flagmen; … lawfully required by any public, municipal or other authority and by the Superintendent or necessary for the protection of the Works or of other property or for the safety and convenience of the public and others and shall remove the same when no longer required.

18. Property Damage and Public Risk The Contractor shall indemnify the Principal against all loss of or damage to the property of the Principal (other than the Works but including existing property on which the works are being carried out) and against any claim or action brought by any person against the Principal or his agents in respect of personal injury or death of any person or loss of or damage to any property, arising out of the construction of the Works by the Contractor." 19. Public Liability Insurance

Before commencing work under the Contract the Contractor shall at his cost effect a Public Liability Policy of Insurance, for an amount not less than the sum stated in the Annexure hereto and with an Insurer approved by the Principal, in the joint names of the Principal, the Contractor and all sub-contractors employed from time to time in relation to the Works for their respective rights and interests to cover their liabilities to third parties including the liabilities set out in Clause 18." … 23 Superintendent The works shall be executed in accordance with the contract and in accordance with any directions of the Superintendent pursuant to the provisions of the Contract. (the nominated superintendent was Mr. Lovell of the Council) 33. Programming of the Works The Superintendent shall have full power to direct in what order and at what time the various parts of the works shall be performed, which power shall not be unreasonably exercised" 275 There were several annexures to the General Conditions, including the following: PART 5 TECHNICAL SPECIFICATION Which provided, relevantly: 5.1 Job Specific Requirements 5.1.1 Description of Work The Contract is for sprayed bituminous surfacing works in the Evans Shire Council area described in part 1. 5.1.3 Scope of Work The Contract is for all aspects of sprayed bituminous surfacing works and includes:- … f) Control of traffic and erection of signposting. g) Maintain road free of loose stones." " 5.1.9. Public Safety and Convenience The Contractor shall carry out the work with the least possible obstruction to traffic. The convenience of the public and of residents adjacent to works and the protection of persons and property shall be provided for by the Contractor in an adequate and satisfactory manner. …

5.3 Control of Traffic 5.3.1 General The work to be executed under this part of the Specification consists of all work necessary to provide for the safe movement of traffic and the protection of persons and property through and/or around the work site. A separate rate has not been included for this work. The cost of traffic control, the supply, erection and maintenance of signposting, the supply and training of traffic controllers and protection of work shall be included in the pay rates for spray sealing. 5.3.2 Control of Traffic Traffic control shall be in accordance with RTA Specification Part G10- Control of Traffic a copy of which forms Annexure 5E to this Part, and with AS 1742.3 - 1985, which together are to be considered as the minimum requirements for traffic control. The Contractor shall provide a Traffic Control Plan to the Superintendent at least five (5) working days prior to any proposed work. The Traffic Control Plan shall provide that, at each end of each work site, the contractor shall supply, erect and maintain temporary reflectorised warning and Road work Speed Zone signposting required during sealing operations and until all risk of flying stones has passed. The Contractor shall also supply erect and maintain "Windscreen Damage" - pictorial (T3-9) signs at intervals not greater than 1 kilometre apart, and at crests of hills through each work site for traffic in both directions. Council shall supply erect and maintain such other signs as are required to be left in position until the work is delineated. …"" 276 I have earlier noted the relevant provisions of AS 1742.3 (paras 22-24), The RTA specification Part G10 Control of Traffic, which comprises a pro forma document, with some revisions, headed "QA SPECIFICATION G1O CONTROL OF TRAFFIC" provides, relevantly: "1.1 Extent of Work The work to be executed under this Specification consists of all work necessary to provide for the safe movement of traffic and the protection of persons and property through and/or around the work site. The extent of work includes the design, construction, maintenance and removal of temporary roadways and detours, the provision of traffic controls, signposting, road markings, raised pavement markers, lights, barriers and any other items required. All temporary traffic arrangements required by works under this Contract are included under this Specification except where specified otherwise. Control of traffic shall be in accordance with AS 1742.3 this specification, and the Drawings. Wherever the word 'should' occurs in AS 1742.3, the world 'shall' applies and the required action is the Contractor's responsibility. 1.3 Traffic Control Plan The Contractor shall construct the Works with the least possible obstruction to traffic. The Contractor shall obtain all necessary approvals from Councils and other authorities for temporary traffic arrangements except where specified otherwise Four weeks before undertaking work which would involve any obstruction whatsoever to traffic, the Contractor shall submit, for the Superintendent's approval, a Traffic Control Plan. The plan shall include: …. c) A signpost layout plan showing: (i) location, size and legend of all temporary signs; (ii) temporary regulatory signs and temporary speed zones; and (iii) all traffic control devices such as temporary traffic signals, line marking, pavement reflectors, guideposts, guardrail, barrier boards etc. 1.7 Temporary Speed Zoning Where a temporary speed limit has been approved, in a accordance with Clause 4.1, the Contractors shall arrange for the supply of appropriate temporary speed zoning signs including posts and fittings, for erection. Where and when directed by the Superintendent, the Contractor shall erect these signs, cover the signs when the speed zone is not in use and remove the signs when the speed zone is no longer required as part of the provision for traffic. A diary recording operation times of the speed zone shall be kept by the Contractor. All costs associated with temporary speed zoning signposting shall be borne by the Contractor. 4. TRAFFIC CONTROL DEVICES 4.1 Regulatory Traffic Control Devices A Regulatory Traffic Control Device shall be as defined in Clause 1.4.7 of AS 1742.3, and shall require approval by the appropriate authority before its erection. This approval shall be obtained through the Superintendent. The Contractor shall apply for approval in writing at least six weeks before the Regulatory Traffic Control Device is intended to be used. 4.2 Arrangement of Traffic Control Devices The arrangement and placement of traffic control devices shall be carried out in accordance with AS 1742.3 Figures 5.3 to 5.31 inclusive illustrate the more common examples of the arrangement of traffic control devices and set out the minimum requirements. An amended Figure 5.28 - Short Term Linemarking - All Roads, as shown in Annexure G10/4, shall be used in this Contract in lieu of Figure 5.28 of AS 1742.3. 4.4. Defective Traffic Control Devices Where the contractor fails to provide and maintain adequate traffic control devices specified in this Specification, the Superintendent may arrange to have such items provided and maintained. The cost of providing and maintaining adequate traffic control devices arranged by the Superintendent shall be borne by the Contractor. 4.5 Signs Signs shall be designed and manufactured in accordance with AS 1743. Details of each letter shall be shown in AS 1744. …." 277 It may next be noted that the contract specifically required (clause 5.5.1 of part 5 Technical Specification) that sprayed bitumen surfacing should conform to the requirements of the RTA Spray Sealing Guide and the RTA Specification Part R 45 - Sprayed Bituminous Surfacing attached as annexure 5E. I have already made reference to the Spray Sealing Guide. (para 25) 278 The RTA QA SPECIFICATION R45 which was attached as Annexure 5E, relevantly notes: " SPRAYED BITUMINOUS SURFACING R45.5 Application of Sprayed Bituminous Surfacing R45.5.1 General The Contractor shall carry out sprayed bituminous surfacing so as to (i) provide a uniform application of binder with adequate adhesion to the underlying surface (ii) provide a complete cover of interlocking aggregate particles and (iii) achieve effective bond between binder and aggregate … R45.5.10 Control of Traffic The Contractor shall provide for traffic in accordance with the requirements of the Specification Part for CONTROL OF TRAFFIC while undertaking the work and shall take all necessary precautions to protect the work from damage until such time as the new seal coat has developed sufficient strength to carry normal traffic without disturbance of the aggregate. … R45.5.1 Application and Incorporation of Aggregate The application of aggregate shall proceed after spraying is commenced and shall be completed within fifteen minutes of spraying bitumen or cutback bitumen. … The Contractor shall apply the aggregate of the specified nominal size and at the target aggregate application rate. … The aggregate shall be spread uniformly over the sprayed surface by means of suitable mechanical spreading equipment. Any bare or insufficiently covered areas shall be re-run by the mechanical spreader or covered by hand as necessary to give a uniform and complete coverage. Any aggregate spread in excess of the target aggregate application rate shall be removed before rolling is commenced. After the aggregate has been applied to each section of the work, initial rolling shall be carried out with two or more dual axle smooth pneumatic tyred multi-wheel rollers of minimum load of one tonne per tyre and minimum tyre pressure of 550 kPa. Initial rolling shall continue until the aggregate is firmly embedded in the primer-binder or binder. If the aggregate is not evenly distributed over the surface of the pavement, the surface shall be traversed with a light drag broom after the initial rolling. If the broom has any tendency to dislodge aggregate particles bedded in the primerbinder or binder, the Contractor shall defer or eliminate the drag brooming. Where drag brooming is eliminated, the contractor shall substitute light hand brooming. Backrolling shall then be carried out for a minimum period of one hour per 1000 square metres sprayed for roads having a traffic volume of less than 500 vehicles per lane per day and one hour per 1500 square metres sprayed for other roads, up to a maximum of twenty-four hours after the aggregate has been applied. Where a bituminous surfacing is specified with separate applications of coarse and fine aggregate on a single application of binder, the coarse aggregate shall be applied first, rolled and any necessary brooming carried out as described above, before application of the fine aggregate and its subsequent rolling and brooming. In this case, the time limits for incorporation of aggregate shall apply only to the application of the coarse aggregate. When the aggregate has been evenly spread and embedded in the binder, any remaining loose particles of aggregate shall be removed from the pavement."

3. Post accident modifications 279 It was established that, following the accident, modifications were made to the Nobby's Hill section of roadway, to install Armco guard railing in the area where the plaintiff's vehicle left the road, and also to change the advisory speed sign for the top corner. Each modification was the subject of discussion and agreement, at least in part, between the experts, following the joint conference.

a) Armco Railing 280 Mr. Maloney said that on 4 April 1997, the Council wrote to the RTA requesting funding for the erection of 480 metres of guardrail, melts, and ten curved alignment markers, in the area where the plaintiff's accident had occurred, for a total cost of $56,000. On 13 June 1997, the RTA wrote to the Council advising that it would contribute up to $40,000 for this work, which was accepted in a letter dated 26 June 1997. 281 From the letter to the Council it appears that this request followed a joint inspection by an officer of the Council and by Mr. Walker of the RTA. 282 The erection of the Armco guardrail, Mr. Woodburn explained, was not part of the 1996-1997 maintenance programme, but was funded out of the Federal Road Safety Black Spot Program for that year. That was the case even though, statistically, the accident site did not qualify as a black spot in accordance with the Federal Office of Road Safety Criteria, at least so far as recorded accidents were concerned. In fact, the funds only became available towards the end of the financial year when it became apparent that the Federal Office had received insufficient submissions for specific black spots under its definition, and as a result, had relaxed its rules in about March 1997, to offer moneys for other potential works. Had the funding not become available then, he said, there would not have been any other funds available to pay for this guardrail. The release by it of the sum of $40,000 for the guardrail, he said, had occurred following a submission from Council, after the accident. 283 Mr. Woodburn explained that the Federal Office of Road Safety criteria differed from Council's own road safety programme for dealing with accident sites, which included data additional to bare accident statistics, and which also involved a costs/benefit analysis so as to determine priorities. Information from local traffic committees was also taken into account. 284 He explained that the 1996 drive through safety audit of the 500 to 800 kms or so of State roads within the Evans Shire had "highlighted the fact that safety protection fencing along (MR 54) needed further examination in some detail", although without specifying any particular area for attention. This, it would appear, led directly to the production of the Schedule of Works to be undertaken by the Council and approved by the RTA (Exhibit 6). This document did not, however, mention the section where the accident occurred. 285 Mr. Woodburn did concede that a guardrail would have been justified at the relevant location because of the foreseeable consequences of a vehicle leaving the roadway and falling down an embankment in the order of four metres or so. 286 Mr. Walker also said that he was of the view, in mid 1997, that a guard rail was warranted in the area of the top bend and embankment. This was based upon the fact of the earlier road widening which had taken the edge of the road closer to the embankment, and also upon the fact of the plaintiff's accident. 287 The provision of a section of Armco railing in this location, and the point at which it should have ended, it was common ground, depended upon a number of matters. The first of these included the making of a risk assessment, and the determination of competing priorities. The second depended, at least to a degree, upon the layout of the road and the depth and angle of the adjoining embankment, and in particular whether the railing could be finished off in a way that would not impose an additional hazard for a vehicle striking it head on. 288 As to the first, it was shown that the RTA had developed a Table, MR 246, of relevant circumstances (Exhibit R) which were weighted for their significance, and which determined, by reference to a net need factor, whether a guard rail should be installed. Additionally it had adopted a more recent document, in its Road Design Guide, which included reference not only to risk assessment but also to risk management, which goes into a comparison between costs of accidents and costs of installation. 289 Mr. Johnston in reaching the conclusion that Armco railing should have been provided in this area, did have regard to this table. Additionally, as he pointed out, his opinion depended significantly upon his own experience and observations of the embankment, and the creek bed at the bottom of it. He explained that while the embankment was shallower at one end, to a degree which did not of itself call for any form of protection, that did not necessarily negate the need for a guard rail to cover the full length of the hazard, where one existed in the immediate area. 290 Mr. Hespe was taken specifically to the formula contained in MR 246, and to a calculation made by Professor Yandell for the RTA. He identified certain points of disagreement with his and Professor Yandell's calculations which reflected a divergence in the "need" factor respectively between 23 and at least 63. It is not necessary to explore these differences in view of the joint report of the experts. 291 Although the experts agreed that the precise point for termination of a guardrail was a "marginal situation", it was common ground that the top bend warranted protection in this way. In Mr. Hespe's view it "would" have been prudent to have extended the guardrail past the point where the plaintiff's vehicle left the roadway. For the other experts there was agreement that this "might" have been prudent. They were, however, at one that the terminus should have been "at or about the point where" the plaintiff went over the embankment. They were also agreed that its presence, at that location, would have prevented the plaintiff's vehicle leaving the road. 292 The point of difference, Mr. Hespe said, turned upon the fact that the other experts were basing their view upon a "mathematical exercise of the site", whereas in his view, as there had been a warrant for the installation of approximately 400 metres of guardrail, the extra cost of extending it further to the south was sufficiently small to justify that extra provision. 293 In fact, as events transpired the guardrail which was installed in June 1997 for a cost of $56,000 (approximately $115 per metre) extended for some 480 metres, up the hill, and to the south of the accident site. 294 For completeness, it may be noted that, although there was, at one stage, a suggestion that there might have formerly been a chain wire metal fence in the area of the bend, it appears, from Mr. Vautin's statement of 7 July 200l, that there was no substance in this suggestion. It was not otherwise pursued. 295 The disagreement between the experts which arose in relation to the required length of the Armco railing, related to the circumstance that, in order to avoid vehicles being impaled when striking the end of a guard rail, it is necessary to flare it out. Where the rail is to be placed alongside the embankment it needs, accordingly, to be extended to an area where there is sufficient residual embankment to allow for it to be flared out. Alternatively, there is a need to construct a new and wider embankment, which can be costly, to accommodate the flare out. This was the position which needed to be confronted at the accident site.

b) Speed Advisory Sign 296 It was also established than an advisory speed survey for curves had been carried out by the RTA during the year 2000. As a result, a letter was sent by the RTA to the Council on 10 January 2001, attaching a copy of the survey report specifying the proposed advisory speeds and action required. 297 The funding for these changes was then provided by the RTA, which on 28 May 2001, accepted the Council's estimate for the required work. The change in signage for the top curve is depicted in the photographs tendered as Exhibit U, which revealed that the sign approaching the first section of the broken back bend is now 85 kp/h, and that a new sign has been installed before the top bend with an advisory speed of 55 kp/h. This new sign now matches the northbound advisory sign, and it accords with my opinion as to what was the maximum safe speed on the day of the accident.

c) Relevance of Evidence of Post Accident Modifications 298 The relevance of this evidence relates to the practicability of pre-accident detection of the need for such changes, and of their provision. In accordance with authority, e.g. Brito v Fairfield City Council (2000) NSWCA 215, at p 11 per Handley JA, I do not regard the fact of their adoption as an admission of a breach of duty of care on the part either of the Council, or of the RTA, or of their need pre-accident. That falls to be assessed in the light of what was known, or should have been known at that time. The fact of the accident added a new dimension which was not previously present, but which was taken into account when the decision was made to effect the changes. I am, however, satisfied, for the reasons previously mentioned, that the need for each was detectable pre accident, and should have been identified in the course of one or other of the road audits which was undertaken. The need for the guard rail should have been apparent when the shoulders were widened, and the need for the change in signs, if not detected in one of these audits, should have been apparent when the sealing work began. 299 The cost of the change in signposting, it may be taken, would have been negligible. Clearly, the top sign was inappropriate for any conditions, and it should have been in the form in which it now is, irrespective of the road works. 300 The cost of the Armco railing was substantial, although not prohibitive. Its provision admittedly needs to be understood in the context of competing priorities for the funding available for such work, both within the Council's area of operations, and within the State road system generally. Having regard to the broken back nature of the curve, the road widening, the proximity of the embankment, and the foreseeable risk of serious injury if a vehicle left the roadway in this area, I am also satisfied that it should have been in place before the accident. Cost is but one consideration. Safety at a potential accident zone, which this was, on the basis of the evidence of the experts and the experience of John and David Suttor, in my view, required its provision. As to the point of termination, I prefer Mr. Hespe's approach as both practical and as representing a proper exercise of care. 301 In any event, as later outlined, if funding was not available, then other precautions such as reducing the advisory speed for the bend should have been taken to reduce the risk of a motorist losing control and leaving the road. 302 The evidence concerning the signposting and the need, or absence of need, for a guardrail in this area, bears directly on the issue of causation. So far as the signposting is concerned, the question which arises is whether a reduction of the advisory speed by reference to a temporary or permanent sign to 55 kp/h, would have caused the plaintiff to reduce her speed to a point where she might have retained control of her vehicle. 303 In the light of my findings, I am satisfied that the covering up of the existing sign and its replacement with a temporary or permanent 55 km/h advisory sign, would have led the plaintiff to reduce her speed to a point where she would not have lost control of her vehicle. 304 The evidence in relation to the Armco railing bears on the question whether or not its presence would have saved the plaintiff from the more catastrophic consequences of her accident, or might have led to precisely the same or a similar outcome. It would not have had any contribution to the fact of loss of control; its relevance goes rather to its presence as a means of arresting a vehicle which is out of control or which is otherwise heading for the embankment. 305 The likely consequences for the plaintiff, in the event of her vehicle having half spun and having struck the Armco railing at an assumed speed of 25 to 35 km/hour on its near side, at an angle of about 30 degrees to 40 degrees, and with a force equivalent to 8 to 10 times gravity, while she was wearing a conventional lap sash seat belt, was the subject of evidence from several experts. The basis for the assumption as to the likely impact force appears to lie in the evidence of Mr. Johnston, and to have been accepted by the parties as involving a reasonable reconstruction, or prediction, of what might have occurred had there been Armco railing in the path of the plaintiff's vehicle on the day of the accident. 306 Mr. Johnston did not agree that an impact of the kind contemplated would have led to any significant long term injury. At most he thought that there may have been soft tissue injury to the neck but not a spinal injury of an orthopaedic kind. This opinion he said he derived by reference to his qualification as a biomechanical engineer. He observed that the impact would not have involved "a very severe crash". 307 There was no evidence tendered by the defendants to support the proposition that the presence of Armco railing would not have saved the plaintiff from the injury which she received. They did, however, obtain some qualified concessions in this regard through the cross examination of the plaintiff's experts. 308 While Dr. Lahz did not claim any relevant expertise in this area, she was inclined to agree that, in the light of the assumed forces involved and the prior surgery at the C1 level, the plaintiff would have been at a greater risk of suffering some kind of spinal injury than would otherwise have been the case. 309 Professor McLeod said that it was probable that the laminectomy which the plaintiff had undergone at the C1 level predisposed her to a spinal cord injury of the kind which she sustained. That was due to the resultant increase in mobility of her spine at this level. 310 Professor Yeo also agreed that, if the assumed force of such an impact was 8 to 10 times gravity (a force which he had some difficulty in accepting as correct) or even if it were something less than that, then it would have been "possible" although "not probable" for a patient, who had a previous laminectomy at C1, to have suffered another fracture at that level. This, he explained, would be due to the fact that such an impact would involve a flexion and rotation type impact, for which the earlier removal of bone and replacement by fibrous tissue would pose an increased risk of displacement of vertebrae. This, in summary, he said, would be the case because of the reduced stability of the spinal column in this area. The kind of injury which he expected could occur would be more likely to be a displacement rather than a fracture, although the results, he said, could be the same. 311 The laminectomy which had been performed before the accident, to remove the Schwannoma, Professor Evans accepted would have significantly increased her chances of neck injury in an accident involving the assumed facts. 312 Having regard to the findings earlier noted, I am satisfied that there should have been a guard rail in this area where the plaintiff's vehicle left the road. I am further satisfied that its presence would have prevented the plaintiff's vehicle leaving the roadway. I am not persuaded in the light of the medical evidence, that collision with it at the assumed speed would have necessarily resulted in an equally serious injury to the plaintiff. As noted earlier (paras 195-196), it is more likely that the injury would have been of a lesser ligamentous kind.

4. Findings on Duty and Breach 313 The plaintiff submitted that there was a breach of duty on the part of all of the defendants. That breach was denied by each of them. By reason of the complexity of the issues which arise it is necessary to record, in some depth, the competing submissions which were advanced, before stating my relevant conclusions in relation to them.

a) Submissions concerning the Evans Shire Council 314 The plaintiff submitted that as the Road Authority in accordance with S 7 of the Act, and as agent for the RTA with respect to the provision of maintenance services within its boundaries, the Council owed a non delegable duty to road users, which was not discharged by contracting the relevant work out to Pioneer. In this regard reliance was place upon the decision of the Court of Appeal of New South Wales in Roads & Traffic Authority v Scroop (1998) 28 MVR 233, where it was held that a highway authority causing or permitting operations on a highway has a non delegable duty of care to highway users. 315 The Council, it was submitted, accordingly, was vicariously liable for the failures of Pioneer, whether it was aware of them or not. In that respect it was also submitted that this was a case involving actual knowledge of the failures since Mr. Vautin was on site, yet he and/or Mr. Lovell allowed the work to proceed without appropriate safety measures being implemented and without ensuring compliance, on the part of Pioneer, with the contractual obligations which were related to safety issues. In part, that omission, so it was argued, was related to Mr. Vautin's erroneous assumption that the relevant precautions were not necessary, and that the relevant requirements were at most guides as to best practice, and not matters that should have been addressed. 316 It was further submitted that the Council had a duty and statutory power, as Road Authority, irrespective of any contractual entitlement, to require Pioneer to remove or rectify any condition which was potentially dangerous to the public and which was created by the works that it was carrying out, and failing that, to undertake such remedial activity itself. 317 The non compliance upon Pioneer's part, it submitted, extended to a failure to: a) provide a traffic control plan - contrary to clause 1.3 of the QA specification G10 Control of Traffic and clause 5.3.2 of the annexure to the General Conditions of Contract.

b) carry out light brooming between the time at which aggregate was spread and the time of the accident - contrary to clause 6.5 of the Sprayed Sealing Guide which calls for brooming by the day following the spray;

c) establish a temporary speed zone or to sufficiently control traffic during such time as there was aggregate on the roadway, contrary to clause 6.6 of the Sprayed Sealing Guide and clause 4 of the RTA QA Specification G10;

d) secure the covering up of the 75 km/h advisory speed while there was aggregate on the road. 318 In summary, therefore, the plaintiff submitted that the Council was liable both for its own omissions to exercise reasonable care, and vicariously for Pioneer's negligence. 319 Independently of Pioneer's breaches, the plaintiff submitted that the Council, similarly to the RTA, owed a duty to assess the need for and if necessary to install, a guard rail at the corner. Its failure to do so, at the time of the shoulder widening, it was submitted, constituted a breach of its duty of care. 320 The Council submitted that it owed no duty of care to the plaintiff since any risk relevant to the harm suffered by the plaintiff (due to loose gravel, inadequate signposting, and/or the absence of a guard rail) resulted from works which were carried out in circumstances where the RTA was exercising the functions of the Road Authority for the Sofala Road, and where it was merely the agent of that party. 321 In this regard reliance was placed on the following Sections of the Roads Act: " 7. Roads authorities (1) The RTA is the roads authority for all freeways (2) The Minister is the roads authority for all Crown roads (3) The regulations may declare that a specified public authority is the roads authority for a specified public road, or for all public roads within a specified area, other than any freeway or Crown road. (4) The council of a local government area is the roads authority for all public roads within the area, other than: a) any freeway or Crown road, and b) any public road for which some other public authority is declared by the regulations to be the roads authority. 5) A roads authority has such functions as are conferred on it by or under this or any other Act or law. Division 3 - Distribution of certain functions between RTA and other roads authorities.

61 Road works on certain classified roads (1) It is exclusively the function of the RTA to make decisions as to what road work is to be carried out a) on any freeway, State highway or metropolitan main road, or b) on any other classified road in respect of which the carrying out of that kind of road work is, by virtue of an agreement or direction under this Division, the responsibility of the RTA. … 62. Roads agreements between RTA and roads authorities 1) The RTA and a roads authority may enter into an agreement under which some or all of the functions of the roads authority with respect to a classified road become, to the extent provided by the agreement, the responsibility of the RTA. 2) While an agreement under this section has effect, the functions of the roads authority with respect to the road are, to the extent provided by the agreement, to be exercised by the RTA. 3) This section does not limit the power of the RTA to exercise any function conferred on it by or under any other provision of this Act with respect to a classified road. 63. Ministerial directions 1) The Minister may, if of the opinion that special circumstances so require, direct that some or all of the functions of a roads authority with respect to a classified road are to become, to the extent provided by the direction, the responsibility of the RTA. 2) While a direction under this section has effect, the functions of the roads authority with respect to the road are, to the extent provided by the direction, to be exercised by the RTA. 64. RTA may exercise functions of roads authority with respect to certain roads 1) The RTA may exercise the functions of a roads authority with respect to any classified road, whether or not it is the roads authority for that road, and, in the case of a classified road, whether or not that road is a public road. 2) The roads authority for a classified road with respect to which the RTA is exercising a particular function may not exercise its functions with respect to the road in any manner that is inconsistent with that in which the function is being exercised by the RTA. … 65 RTA has immunities of a roads authority While exercising the functions of a roads authority under this Division with respect to a road for which it is not the roads authority, the RTA has the immunities of a roads authority with respect to that road. 322 The agreement whereby funds were approved, and then provided by the RTA for the shoulder widening (18 June 1996 correspondence) and for the resealing (State Roads Maintenance Agreement) it submitted, were agreements made pursuant to S 62 of the Act. Alternatively, it was submitted that, in relation to these works, the RTA was exercising the functions of a road authority pursuant to S 64 of the Act. Upon either basis it was submitted, the RTA had control and a veto power which effectively excluded the exercise of Council powers in relation to the works, so that any default on the part of Pioneer became the responsibility of the RTA rather than itself. 323 This conclusion was said to be supported by the terms of the documents themselves. In relation to the State Roads Maintenance Agreement, significance was attached to: a) clauses 2.5 and 4.1 of that document (noted above), so far as they recorded that the RTA engaged the Council to carry out the relevant maintenance services, and so far as the Council was referred to as an "agency".

b) the description in the Yellow Book, which was incorporated in the agreement, in relation to the arrangements for determining and funding all programmes of works for State Roads, and the practice followed in relation thereto (as noted above); as a result of which all decisions as to the work to be done, the standards for its performance, and the provision of the necessary funds were reposed in the RTA. 324 It was accepted that S 207 of the Roads Act permits the RTA to provide financial assistance for the carrying out of road works on classified roads. However, it was submitted that, in circumstances where the arrangements went beyond the mere provision of funds, and included the reservation to the RTA of a high degree of control and direction as to what work is to be carried out, when it was to be carried out, and how it was to be carried out, then they are more properly categorised as involving the exercise by the RTA of powers, as a roads authority, under either S 62 or S 64 of the Act. 325 Alternatively, or additionally, it was submitted that the Yellow Book was itself a S 62 agreement or a S 64 exercise of functions, by the RTA, as a Road Authority by reason of: a) the fact that all arrangements for the works were carried out pursuant to its provisions;

b) the terms of paragraphs B.03, and B.04 set out above

c) the terms of Para C.03 which permit the RTA to "commission the Council to carry out projects on any State Road"; to "determine" in consultation with Council "projects to be undertaken on those State Roads for which Council carries out work by agreement with the RTA", as well as "those phases/stages of the project development cycle for which it proposes to engage Council"; and otherwise to determine cost and quality standards for the project through negotiations with Council;

d) the terms of Para C.07 relating to cost estimates, in particular those Sections which note that the RTA "will determine maintenance programs on State Roads in consultation with Council"; which note that "where a Council carries out maintenance of a State Road by agreement with the RTA (it) will issue a schedule of works which it requires Councils to carry out; and which otherwise permit it to require the use by the Council of a maintenance management and reporting system.

e) the nature, extent, and particularity, of the powers and controls reposed in the RTA by the Yellow Book arrangements. 326 Independently, and by reference to the matters which were identified by the plaintiff as preserving in the RTA a responsibility as a road authority, de facto if not de jure, the Council submitted that this was a proper analysis of the position of that party. In advancing the proposition and the associated proposition that the Council was only the agent of the RTA, it additionally drew attention to the circumstances that:

a) the RTA had unilateral power to determine what moneys should be spent on the road, being aware that the Council had no resources of its own, and was entirely dependent upon it, for that purpose;

b) it was the RTA which effectively determined how the money which it provided would be used by the Council and which had established a system for monitoring compliance with the works programs which it approved; and that

c) the road safety and speed advisory sign audits were carried out by the RTA, and any decision thereafter made as to what work would be done to remedy any deficiency which was identified, effectively rested with it, the council undertaking such work on its behalf after funding approval which it granted. 327 An additional submission was advanced to the effect that the Council, having a rate payer income in the order of only about $1.7m, yet with an area of 427,800 hectares, and a road system in the order of 1,200kms within its boundaries, had limited resources for the provision of road works. By reason of that factor and the many competing demands which existed for the provision of road sealing, shoulder widening and Armco railing, it was entirely dependent upon the RTA for funding, and therefore should not be held negligent if it failed to provide a guard rail, or to take sufficient precautions for the safety of motorists, in the area of this accident. 328 In developing these submissions, the Council contended that: a) since it was not the road authority, it had no power with respect to the road, and hence it owed no duty of care to the plaintiff in relation to the safety of the road at the time either of the shoulder widening or of the resealing works;

b) since Pioneer was an independent quality assured contractor, and it was reasonable for it, as agent of the RTA, to have engaged such party to do the works, it did not assume any responsibility for any negligent act or omission on the part of that defendant. 329 It was further submitted that even if it did retain powers in relation to the manner in which the works were carried out, that circumstance would not, of itself, create a duty of care. In this respect it relied upon the principle that where liability depends upon the failure to exercise a power or function, circumstances must be shown to exist, such as control, which would give rise independently to a duty of care: Romeo v Conservation Commission (NT) (1989) 192 CLR 431 at 457, Brodie v Singleton Shire Council (2001) 75 ALJR 992 at 1022 per Gaudron, McHugh and Gummow JJ; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at 18 per Gaudron J, citing Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 443-445;, 460-461, and 478; and Pyrenees Shire Council v Day (1998) 192 CLR 330 at 368-369. 330 That control, it was submitted, in the circumstances outlined, was absent so far as the Council is concerned. The presence of Mr. Vautin, during the works, it was submitted, did not alter its position, since he was neither the Superintendent, or the Superintendent's Representative nominated in accordance with the contract. His role, it was submitted, was that of inspecting the performance of the works for the purpose only of quality control, and not for safety considerations. In particular, it was submitted that he had no authority or power to give directions in this respect. 331 These submissions clearly overlap with, or come into conflict with the case argued by and against the RTA, so it is convenient, initially, to record the competing submissions concerning that party before coming to a resolution of the issues which arise. The position of Pioneer is somewhat different, and it can be dealt with separately when I come to the case presented for and against it.

b) Submissions concerning the RTA 332 The plaintiff submitted in substance that the RTA was a road authority by reason of: a) its position as manager of the State Road network;

b) its acceptance of responsibility for the overall management of the road, as part of the State Road network;

c) the provision and effective control by it alone of funding for maintenance and enhancement of State Roads;

d) the fact that it performed audits or surveys of the road from time to time, in order to identify dangers either general or particular, and to determine what work was needed, both in terms of safety and improvement or maintenance;

e) the fact that it was in a position to control and direct the provision of both advisory and regulatory speed signs on State Roads. 333 In substance, it was submitted that either under the Act, or by reason of the control which it exercised, the RTA occupied the position of a roads authority, and owed a non delegable duty of care to the plaintiff. 334 Hence, it was argued, the RTA was liable for any breaches of duty owed by the Council or by Pioneer, even though it might not itself have been directly responsible for any act or omission. 335 Independently of the resealing work, it was submitted that, by assuming responsibility for carrying out audits and surveys of the road for safety purposes, and by its control of funding for roadworks where there were potential danger spots, it also owed a duty of care to assess the need for a guard rail, and if necessary to secure, in association with Council, its provision. 336 The need for such a guard rail, it was submitted, arose, at least by the time of the shoulder widening works, having regard to the substandard nature of that bend, the history of prior accidents, and the proximity of the bitumen surface to the drop off. 337 The RTA submitted, in broad terms, that a) it was not the road authority because S 7 of the Roads Act, in the circumstances of this case, placed that responsibility in the hands of the Council;

b) In the absence of some act or direction, either express or implied, none of the relevant works could be said to have been done by it pursuant to a S 62 agreement, or to have involved an exercise by the RTA of S 64 powers, nor had a Ministerial direction been made under S 63 of the Act.

c) Since the RTA was not the road authority, and was not exercising such power, it was not subject to a non delegable duty of care in accordance with the decision in RTA v Scroop , a decision which it also formally submitted was wrongly decided or was distinguishable in relation to the position of the RTA;

d) Vicarious liability did not attach to it for anything done, or omitted to be done either by the Council or by Pioneer, the latter of which it submitted was a contractor to the Council, and not to itself;

e) the standards laid down in the Spray Sealing Guide, and in the various documents attached to the contract between the Council and Pioneer, which it had developed and published for works of the kind here involved, were appropriate and in accordance with proper practice, and as such its requirement for their use constituted a complete discharge of any duty of care which may have attached to it;

f) if there was an omission in relation to the guard rail, then there was no breach of any duty of care resting upon it, since it had arranged for an independent contractor to carry out a safety audit which had not identified any relevant problem; and/or its provision was a budgetary issue for which, in the absence of available funds, liability should not attach. 338 The RTA submitted, in development of these propositions, that both the shoulder widening and the resealing work should be seen as having been funded under S 207 of the Act, which is in the following terms: " 207 RTA may provide financial and other assistance to roads authorities for road work on classified roads (1) The RTA and a roads authority may enter into, and may perform their obligations under, an agreement under which the RTA provides financial or other assistance to the roads authority to enable it: a) to carry out specified road work or specified traffic control work on a specified classified road, or b) to carry out road work or traffic control work generally." 339 By its terms, it was submitted, a S 207 provision of assistance by the RTA preserves the role of the Council as the Road Authority, and does not convert its own position to such status. 340 The relevant works, it was submitted were governed by the Yellow Book and, in accordance with the overall arrangements, which it established were designed to permit the RTA to secure the necessary quality and efficiency standards for the use of the public funds which it provides, through the State budget process, for roads such as State Roads. Its role, in effect, was to respond to claims made by the Council for maintenance or for enhancement work which it adjudged to be necessary or desirable, the various arrangements on foot being designed to facilitate and to provide an orderly management of the funding for work on State Roads. 341 These circumstances, it was submitted, did not convert the RTA into a Road Authority, nor did they, or the 1996/1997 State Road Maintenance agreement, or the Yellow Book have that consequence, or establish a relationship of principal and agency between the RTA and the Council. 342 In this regard some reliance was placed on the terms of the 1995/1996 and 1997/1998 agreements which, it was submitted, made it clear by reference to a presumption of continuity, that there had never been any intention to create a principal and agency relationship between the parties, or for the RTA to utilise for the 1996/1997 year, either Section 62 or 64 of the Act, in a way that would convert it to a Road Authority, in relation to Main Road 54. 343 It accepted that it faced a hurdle in so far as the 1996/1997 maintenance agreement, but not the preceding and succeeding agreements, provided expressly that the RTA engaged the Council to carry out the work which fell within its ambit, on its behalf. 344 The answer to this aspect of the case, upon which the Council placed particular reliance, it suggested lay in the following circumstances: a) the comparison with the other agreements which were clearly dependent on a S 207 exercise of power;

b) the absence of any reference to S 62 or S 64 in the document;

c) the fact that the 1996/1997 agreement involved an engagement by the RTA of the Council, to provide " Maintenance Services on the network of State Roads" which were identified, rather than to discharge, as its agent, the obligations attaching to a road authority;

d) the fact that the agreement was made in the context of the Yellow Book, Section B of which specifically identified the Council as the road authority for both maintenance and enhancement;

e) the fact that the 1996/1997 Agreement did not extend to enhancement, as distinct from maintenance, and hence it had no relevance for shoulder widening. 345 The RTA also submitted that it did not become a de facto road authority by reason of the audits or inspections in which it became involved, since they were limited in number and depth, and were conducted for the assistance of Council in submitting proposals for funding, and for its own assistance in determining priorities and in assessing the applications which were made for funding. 346 Next, it was submitted that in terms of the practical management of the particular road, the direct involvement of the RTA was small. Its role, it was put, consistently with the recitals in the 1996/97 agreement, was concerned with the overall roads and traffic system for the State, and not with individual roads. Put another way, its input was confined to receiving and responding to submissions from Councils as to maintenance or enhancement requirements, and to provide funds as they became available, although at times it may also invite Councils to offer proposals for particular purposes where it, or the Federal Office of Road Safety supplied funds which might be gainfully used. It was in this way that the funds were released for the shoulder widening and the barrier. That, however, it was put, fell short of any exercise of authority by it to direct the Council as to what work it should undertake, or of the acceptance by it, de facto, of the responsibilities of a road authority for the subject road. 347 The RTA, it was further submitted, had no direct involvement in the performance of either the shoulder widening or the resealing, since it had not been on site nor had it directed the way in which the works should be performed, save so far as it had laid down the standards and requirements which were incorporated into the contract between the Council and Pioneer. 348 Alternatively, it was submitted that if the Council was the RTA's agent or independent contractor (and Pioneer a sub agent or independent contractor) then there had been no authorisation by it to either party to breach any of the requirements which it had laid down, or to commit any tort. On the contrary, it was submitted that the various documents which it had published, for use in circumstances such as the present, laid down comprehensive requirements which, if complied with, would specifically preclude and prevent the commission of any such tort. 349 Further, it was submitted in so far as the plaintiff, or any other party, sought to attach liability to it for acts or omissions of independent contractors, including those who conducted the 1996 audit, that it had discharged its duty in ensuring that competent contractors were engaged, and it was not otherwise vicariously liable for any negligence on their part. Reliance was placed upon the decision in Scott v Davis (2000) 74 ALJR 1410 at 1451. 350 In relation to the guard rail, the RTA also relied upon the budgetary restrictions and resultant policy considerations which may properly be taken into account when considering whether a particular omission involves a breach of duty - as noted in Brodie v Singleton Shire Council (2001) 75 ALJR 992 at 1013.

c) Findings in relation to the Council and the RTA (i) The applicable law 351 Before turning to the relevant case law, it is necessary to note that although the Local Government Act 1919 (now wholly repealed) previously made detailed provision in relation to the powers of Councils concerning the regulation of traffic on Roads, these provisions were repealed in 1993. They were moved, at that time, to the Roads Act 1993. Earlier decisions need to be considered in the light of that legislative change, a consequence of which was to eliminate the pre-existing duplication of powers and functions. 352 By the Roads Act, a "public road" is defined (in the Dictionary) as meaning: "a) any road that is opened or dedicated as a public road whether under this or any other Act or law, and b) any road that is declared to be a public road for the purposes of this Act." Main Road 54 was at all material times a public road within the meaning of the Act.

A "road authority" is defined as meaning: "a person or body that is, by or under this Act, declared to be a roads authority and, in relation to a particular public road, means the road authority for that road." 353 The circumstances in which a person or body such as a Council may be declared to be a road authority are spelled out in S 7 of the Act (see para 321 above). 354 The powers whereby the RTA, and Councils who are road authorities, may regulate traffic on public roads are identified in Part 8 of the Act, relevantly as follows: Division 1 General Powers 114 Roads authorities may only regulate traffic in accordance with Part A roads authority may not regulate traffic on a public road otherwise than in accordance with this Part. 115 Roads authority may regulate traffic in connection with road work etc (1) A roads authority may regulate traffic on a public road by mean of barriers or by means of notices conspicuously displayed on or adjacent to the public road. (2) The power conferred by this section may be exercised by the RTA for any purpose but may not be exercised by any other roads authority otherwise than: a) for the purpose of enabling the roads authority to exercise its functions under this Act with respect to the carrying out of road work or other work on a public road, or … d) for the purpose of protecting members of the public from any hazards on the public road, or e) for the purpose of protecting vehicles and other property on the public road from damage ..." 355 It is next convenient to move from the statute and from the administrative framework previously summarised, to the general law. 356 It appears to be an impossible, if not a fruitless exercise, to search for a single touchstone or unifying principle which would detect the existence of a duty of care, for the reasons outlined by the High Court in Sullivan v Moody (2001) HCA 59. That this is so arises by reason of the rejection of foreseeability and proximity tests as determinative of the issue; by reason of the disfavour expressed, at least in some quarters, for a "categories approach"; and by reason of the limitations of the three-stage approach which was suggested by Lord Bridge of Harwich in Caparo Industries PLC v Dickman (1990) 2 AC 605 at 617-618 (as to the deficiencies of which approach see Perre v Apand Pty Ltd (1999) 198 CLR 180 and Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 75 ALJR 164. 357 Notwithstanding the uncertainty in which this leaves a trial Judge, the present is not a novel case so far as the contractor Pioneer is concerned; nor so far as either the RTA or the Council is concerned, provided that one or other occupied the position of a road authority, in relation to the Sofala Road at the relevant time. 358 Particularly is that so now that the High Court has delivered its judgment in Brodie v Singleton Shire Council (2001) 75 ALJR 992. 359 What is, however in issue, is whether or not, in the present factual context, the Council or the RTA did occupy that position, and if not, whether independently of that circumstance, a duty of care nevertheless was imposed upon either of them. 360 In Brodie v Singleton Shire Council the old "highway rule" which had been enshrined in Buckle v Bayswater Road Board (1936) 57 CLR 259 and in Gorringe v Transport Commission (Tas) (1950) 80 CLR 357, (although subject to many exceptions and glosses), was held by a majority (Gaudron, McHugh, Gummow and Kirby JJ, Gleeson CJ, Hayne and Callinan JJ dissenting) to no longer be good law. That rule, which had drawn a distinction between misfeasance and non feasance, is now replaced by the ordinary principles of negligence which govern all other statutory bodies (at paras 55, 137, 149 per Gaudron, McHugh and Gummow JJ, and at paras 226 and 239 per Kirby J). 361 Gaudron, McHugh and Gummow JJ expressed the relevant principle as follows: "Authorities having statutory powers of the nature of those conferred by the LG Act upon the present respondents to design or construct roads, or carry out works or repairs upon them, are 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 a 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 its 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. The perception of the response by the authority calls for, to adapt the statement by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48, 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." 362 Their Honours went on to instance areas where an exercise of the duty of care might require relevant action in relation to the headings of construction and design; repair, maintenance and works; and inspections. 363 Of relevance for the present case, in relation to the guardrail, it was said (under the heading of construction and design): "157 The safety of a road may be altered by the changes to the ground over which it passes. These changes may produce a source of danger which requires the taking of reasonable steps to remove or minimise it. Thus, for example, if a ravine is cut alongside a road, or exposed by the removal of natural scrub, it might well be incumbent on an authority having the management of that road to install fencing to prevent users of the road too easily falling into the ravine. ( Miller v McKeon (1905) 3 CLR 50; Flukes v Paddington Municipal Council (1915) 15 SR (NSW) 408." 364 In relation to repairs and maintenance, their Honours observed: "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,( Greater Bendigo City Council v Miles (2000) 31 MVR 137 at 137-138) from a failure to remove unsafe items in or near a road, (an issue adverted to by Hayne J in Romeo v Conservation Commission (NT) (1998) 192 CLR 431` at 488 (see eg Stovin v Wise (1996) AC 923; cf Weir v Commissioner for Main Roads (1947) 17 LGR 1, Vale v Whiddon (1949) 50 SR (NSW) 90). or from the placing of items upon a road which create a danger, ( Thompson v Bankstown Corporation (1953) 87 CLR 619), or the removal of items which protect against danger ( Flukes v Paddington Municipal Council (1915) 15 SR (NSW) 40). 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',( Smith v Broken Hill Pty Co Ltd (1957) 97 CLR 337 at 343) a proper starting point may be the proposition that the persons using the road will themselves take ordinary care: ( Miller v McKeon (1905) 3 CLR 50 at 60)." 365 In relation to inspections their Honours said (at 1026 - 1027): "… 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 ( Hodgson v Cardwell Shire Council (1994) 1 Qd R 357 at 362-363) and, if they are found, fails to take reasonable steps to correct them." 366 In resolving the question of duty in the present context, it is appropriate to have regard to where power and control is reposed, so far as the safety of road users is concerned. This was made clear in Brodie, where Gaudron, McHugh and Gummow JJ said, (at 1013): "Whatever may be the general significance today in tort law of the distinction between misfeasance and non-feasance, it has become more clearly understood that, on occasions, the powers vested by statute in a public authority may give it such a significant and special measure of control over the safety of the person or property of citizens as to impose upon the authority a duty of care. This may oblige the particular authority to exercise those powers to avert a danger to safety or to bring the danger to the knowledge of citizens otherwise at hazard from the danger. In this regard, the factor of control is of fundamental importance. ( Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 551-552) It is often the case that statutory bodies which are alleged to have been negligent because they failed to exercise statutory powers have no control over the source of the risk of harm to those who suffer injury. Authorities having the control of highways are in a different position. They have physical control over the object or structure which is the source of the risk of harm. This places highway authorities in category apart from other recipients of statutory powers." 367 Their Honours later noted, at 1021-1-033: "… the powers vested in road authorities give them a significant and special measure of control over the safety of the person and property of road users. This may make it incumbent upon the authority to exercise its powers, whether by averting the danger to safety or by bringing it to the notice of persons in the situation of the plaintiff. In Pyrenees Shire Council v Day the powers of the appellant were in this category. (see Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at 61 (166)" 368 In considering where control lay in the present case, it is appropriate to take into account, not only the provisions of the Roads Act previously mentioned, but also the Yellow Book, which I am satisfied, along with the Road Maintenance Agreement (so far as the work answered the description of maintenance) governed the relationship between the RTA and the Council. It is also necessary to have regard to the contract between the Council and Pioneer. 369 It is clear from the decision in Brodie v Singleton Shire Council that the question whether any suggested omission to act fell within an area of a legitimate exercise of discretion, involving a consideration of policy and allocation of resources, continues to be one that can properly be asked: (see Pyrenees Shire Council v Day (1998) 192 CLR 330 at 394-395; Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 and Brodie v Singleton Shire Council at pp 1013, 1024-1026, 1038. 370 In terms which leave no room for misunderstanding in this regard, Gaudron, McHugh and Gummow JJ said, in Brodie (at 1026): "The formulation of the duty of care includes consideration of competing or conflicting responsibilities of the authority. In the circumstances of a given case, it may be shown that it was reasonable for an authority to deal in a particular priority with repairs in various locations. The resources available to a road authority, including the availability of material and skilled labour, may dictate the pace at which repairs may be made and effect the order of priority in which they are to be made. It may be reasonable in the circumstances not to perform repairs at a certain site until a certain date, or to perform them after more pressing dangers are first addressed. Even so, it may well be reasonable for the authority to exercise other powers including, for example, by erecting warning signs, by restricting road usage or, in extreme cases, by closing the road in question." 371 Upon that basis, as earlier authority reveals, when considering the question of any breach in relation to the absence of the guardrail, it is necessary for me to take into account, firstly, any evidence which was led concerning restraints on funding and competing priorities; and secondly, as the concluding sentence of the passage extracted shows, any less expensive temporary precautions which might have been taken to reduce or to exclude the risk. 372 In the light of these observations, I turn to the question whether a duty of care, in the circumstances of the present case, was owed by the Council and/or by the RTA, and if so whether breach on their part has been proved. 373 Having regard to the evidence, and to the submissions outlined above, I am satisfied, in relation to the road works carried out on the Sofala Road during the 1996/1997 period, that the RTA shared responsibility as a road Authority with the Council. As such, each owed the duty of care to the plaintiff which was held to exist in Brodie. 374 In this respect I see no reason why, depending upon the nature of the arrangements in force between those parties, and/or the exercise by one or other of them of the powers conferred upon or reserved to them, they should not be regarded as owing co-extensive duties.

(ii) the Council 375 So far as the Council is concerned, this conclusion is supported, in my assessment, by the following circumstances: a) the recitals in the road maintenance agreement in relation to the "shared responsibility" of the RTA and the Council; the express adoption in that agreement of the Yellow Book which, in the several respects noted (eg Section B.01) referred to the Council as the "Road Authority" in relation to the Main Road 54; and the agreement by Council to administer that agreement in accordance with the requirements in that Book (Clause 6.1).

b) the acceptance by the Council (in clause 11.15 of the Road Maintenance Agreement) of an obligation to provide traffic control for maintenance services according to RTA's Traffic Control at Worksites Manual;

c) the terms of S7(4) of the Roads Act, so far as that made it clear that the Council was a road authority; and of S 115 of the Act which gave it the necessary powers to regulate traffic on the road;

d) the fact that the Council assumed responsibility for annual inspections, and for the submission of proposals to the RTA for maintenance, enhancement and black spot work; and also for the provision and erection of advisory speed signs;

e) the fact that the Council possessed local knowledge in relation to main roads within its boundaries, and was in a position to, and was expected to, identify problems requiring attention;

f) the fact that the Council entered in a contract with Pioneer to carry out the resealing works, and approved the shoulder widening, and to that extent, it was the body which directly permitted and authorised the road surface to be altered;

g) the reservation, in the contract, to the Council of power and consequently of control, in relation to requiring the Contractor to provide, erect and maintain any necessary signs and controls for the protection of road users (eg clause 15 of the General Conditions; clause 5.3.2 of the Part 5 Technical Specification, and clause 1 of QA Specification G10 Control of Traffic. 376 It does not appear to me that the distribution of function contemplated by Division 3 of the Act has the effect for which the Council contended. Sections 62 and 64 are facultative and S 62(3) preserves the potential for a co-extensive exercise of powers. Section 64(2) does not strip a council of power when the RTA elects to exercise its function as a road authority. Its effect is to preclude an exercise of function by the Council which is inconsistent with that exercised by the RTA. That is not the case in an instance, such as the present, where the RTA and Council were acting co-operatively in securing the shoulder widening and resealing. 377 In those circumstances, it does not seem to be either helpful or necessary to determine whether the road maintenance agreement, or the Yellow Book, involved an exercise of S 62 or S 64 power, or amounted to a funding agreement made under S 207 of the Act. 378 The duty which the Council owed was, in accordance with authority, a non delegable duty. As a result the Council was liable for any breach of duty which was committed by Pioneer, in the course of carrying out any works which it had authorised that party to perform. I accept that the relevant principle of law in this respect was that stated by Fitzgerald AJA, with whom Handley and Beazley JJA agreed, in RTA v Scroop (1998) 28 MVR 233. (at 238): "A conclusion that a highway authority causing or permitting operations on the highway has a non-delegable duty of care to highway users also seems to me required by recent pronouncements of the High Court. (see, e.g. Kondis v State Transit Authority ( 1984) 154 CLR 672; Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 550' 120 ALR 42; Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313; 146 ALR 572. RTA had control of the road. It introduced Bitupave onto the road for it to carry out work involving danger to users of the road, including Mr. And Mrs Scroop. Road users had neither the right nor the opportunity to exercise control over, or even to have knowledge of, what had been done on the road. (see Burnie Port Authority v General Jones (1994) 179 CLR 520 at 551) In these circumstances, RTA had a particular responsibility for their safety, involving a high standard of care, (see Burnie Port Authority at 554 ff) which it was unable to delegate to an independent contractor." 379 Similarly, in RTA v Fletcher & Leighton Contractors (2001) NSWCA 63 Handley JA said: "The RTA, as a highway authority which had authorised the carrying out of work on or near the highway, had what has been referred to as a non-delegable duty to users of the highway and could not avoid this duty by delegating its performance to a competent independent contractor. A highway authority is therefore vicariously responsible for the negligence of its independent contractor. See Hardaker v Idle District Council [1896] 1 QB 335 CA. An innocent employer vicariously liable for the negligence of an independent contractor is entitled to be indemnified by the contractor against his liability to a third party. See Lister v Romford Ice & Coal Storage Co Ltd [1957] AC 555; FAI General Insurance Co Ltd v A.R. Griffiths & Sons Pty Ltd (1997) 71 ALJR 651." 380 Accordingly the Council became liable for the breaches of duty which I find were committed by Pioneer, as described later in these reasons. (paras 399 - 401). 381 Independently, I am of the view that it was itself directly in breach of the duty which it owed to the plaintiff, insofar as it failed to ensure that proper warning signs, (ie the slippery road, 60 km/h site regulation, and 55km/h advisory signs), were in place, or to ensure that the 75 km/h sign was covered over while there was still gravel on the roadway in the area of the top bend. Additionally, I find that it was in breach of the duty which it owed, in failing to take steps to have a guardrail installed adjacent to the embankment where the plaintiff left the road; or alternatively, until there were funds available for its installation, in failing to replace the 75 km/h advisory speed sign with a 55 km/h sign, in order to reduce the risk of a motorist losing control on the substandard bend, and as a consequence, leaving the road. 382 The duty which the Council owed directly to exercise care, in these respects, I find arose by reason of: a) the powers and right of control which it possessed under the Act to regulate traffic;

b) the responsibility and control which it possessed as a road authority pursuant to the Yellow Book arrangements and the road maintenance agreement;

c) the fact that it had the obligation to consider traffic control arrangements while the works were being carried out and the ability to approve or disapprove of the traffic control plan which was required under the Contract;

d) the presence of Mr. Vautin on site during the works, and the office of Superintendent held by Mr. Lovell under the Contract with Pioneer.

e) its participation in inspections and audits of the roads;

f) the fact that it had the responsibility to erect advisory signs, and took it upon itself to erect a number of the signs which were on site. 383 I am unable to accept the proposition that Mr. Vautin had no role other than that of quality control, or that the sole source of control for the road and its environs, so far as the Council was concerned, was the Contract between it and Pioneer. 384 I have already made reference to S 115 of the Act. Additionally, it is to be recalled that it was the Council to which Pioneer was to submit a Traffic Control Plan, and it was the Council which had erected the warning signs in the Winburndale Rivulet area, and which gave directions to Pioneer concerning when the relevant signs were to be exposed or covered up. 385 I am accordingly not persuaded that the Council surrendered control of the road, either by reason of its entry into a contract with Pioneer, or by reason of the fact that the RTA had the power to determine what works should or should not be funded, or otherwise involved itself in the maintenance or enhancement of State Roads. 386 In this regard, what is decisive is that both the shoulder widening and the resealing were approved works, for which funding had been provided and for which the responsibility for their delivery rested with the Council, to be performed either by it or by an approved subcontractor. 387 That there were breaches of the Council's duty arose, in my view, from the need for Council to exercise particular care, when the road condition was altered, initially by the shoulder widening and later by the resurfacing, to ensure that the changed conditions did not present a hazard to road users. That there was such a hazard arises from the matters previously noted involving a substandard curve, the proximity of the road to the embankment, the presence of gravel on the road, and an advisory speed sign which was positively misleading, under normal conditions, and particularly when there was gravel on the road.

(iii) The RTA 388 In the case of the RTA, the conclusion that it also owed a duty of care to the plaintiff depends upon the following circumstances: a) the position of the RTA as manager of the State Road Network, and its acceptance for the overall management of Main Road 54 as part of that network;

b) the recitals to the State Roads Maintenance Agreement to the effect that the RTA and Councils " share responsibility for the management of the roads and traffic system"; that "the RTA wants to work in partnership with the (Council)"; and that on a State Road, where Council carries out the work, "the RTA decides what work is to be done and engages the Council to carry out the work";

c) the terms of engagement contained in clause 4.1 of the State Road Maintenance Agreement;

d) the entire structure of the Roads Act, in relation to the overall functions and powers of the Roads & Traffic Authority; and in particular the reservation of powers contained in Sections 61 and 64;

e) the terms of the Yellow Book, which note in the introduction that the arrangements made "reflect the RTA's shift to take greater responsibility for the strategic management of State Roads"; and the statement in Section 1 B, that the maintenance and enhancement works respectively, if not carried out by the RTA, are carried out by "Councils by agreement with the RTA".

f) the control which the RTA exercised through the funding arrangements in relation to the roads upon which works could be carried out, and in determining what works were permissible (see inter alia, Section F of the Yellow Book);

g) the fact that it conducted surveys and audits to assist both itself and the Council in determining the need, and priorities, for maintenance and enhancement; and participated in the decision making process concerning the erection of suitable regulatory and advisory road signs;

h) the fact that Black Spot funding is secured by the RTA in negotiation with the Federal Government, and available funds are then allocated by it to Councils according to its assessment of their needs and priorities;

i) the fact that the resealing work was deferred, following discussions between the RTA and Council, until the shoulders had been widened;

j) the protocols in place for the alteration of regulatory road signs, or for the provision of temporary signs, as well as for advisory signs each of which called for input, if not decision by the RTA, as described by Mr. Maloney. 389 The case accordingly is one where, in the way mentioned by Mason J, in Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 459-460, the RTA "by its conduct place(d) itself in such a position that it attract(ed) a duty of care", in relation to users of Main Road 54. 390 For the reasons earlier mentioned, it does not seem to me that the provisions of Sections 7, 62 or 64 of the Roads Act, are decisive in relation to the question whether the RTA had passed the entire duty of care, in relation to the Road, to the Council. Nor is it appropriate, in the circumstances of its close management and control of funding and of standards for the performance of the works, to confine its role to that of a mere budgetary agent whose responsibility did not extend beyond the efficient allocation of the funds available for road maintenance and enhancement, or the establishment of overall quality standards. 391 For the reasons identified in RTA v Scroop, the duty of care which the RTA owed was non delegable. Although it was formally submitted that this case was wrong decided and/or distinguishable, I am obliged to follow and apply it. I can see no relevant grounds for distinguishing it. 392 I do, however, accept, both in relation to the shoulder widening and the resealing work that there was no relevant act or omission for which the RTA was directly responsible. Its liability is wholly vicarious.

d) Findings in relation to Pioneer 393 It was submitted by the plaintiff that, as a contractor carrying out the roadwork, Pioneer owed a duty to the public to exercise proper care and skill, in doing so in a way that did not present a danger to road users. The content of the duty, it was submitted, was co-extensive with that set out in the contract documents, which had been designed to ensure quality control and proper practice in relation to all relevant safety issues. 394 Breaches were alleged on its part, in: a) not submitting a Traffic Control Plan;

b) not taking steps to ensure that the advisory speed sign was covered, and replaced with an appropriate advisory speed sign;

c) not supplying or ensuring the provision of slippery road signs, or of a 60 km/hr limit for the whole of the site;

d) not removing the gravel from the road surface when the signs in place were inadequate; 395 It was conceded properly by the plaintiff that no claim could be addressed against Pioneer in relation to the Armco guard rail. Additionally, she did not pursue any head of negligence in relation to the provision of a temporary barrier in this section of roadway. 396 Further, no claim was or could have been pursued against Pioneer in relation to the original installation of the 75 km/h advisory sign, since that was a matter for which responsibility lay solely with the Council or with the RTA. The plaintiff's claim in this regard related not to its presence in normal conditions, but to the fact that it was allowed to remain in position uncovered, and was not replaced with an appropriate advisory sign during the roadworks. As Pioneer properly submitted, any obligation, upon its part, to erect signs could not exist independently of the work which it was performing on the site. This does not, however, assist its case since the liability of the defendants needs to be considered in the light of my finding that there should have been a sign, and/or control of this section of the road, so as to reduce the speed of a motorist to a maximum of 55 km/hr, as well as sufficient warning as to the slippery state of the road. 397 Pioneer accepted that it owed the duty of care which the plaintiff alleged, so far as it was concerned, but rested its defence in this regard upon the submission that:

a) there was no breach of duty on its part in relation to the leaving of aggregate on the road, or in the absence of sufficient or appropriate signs;

b) if there was any such breach of duty on its part, then causation was not established. 398 I have already dealt with the causation issue. Otherwise I am satisfied that the breaches of duty alleged against Pioneer both under the contract and under the general law, were made good. 399 So far as the contract is concerned, those breaches related to clause 15(a) of the General Conditions; clauses 5.1.3, 5.1.9, 5.3.1, 5.3.2, of Part 5 Technical Specification; clauses 1.1, 1.3, 1.7 and 4 of QA Specification G10 Control of Traffic; clause 45 of the RTA QA Specification R45 (in particular 45.5.10); clauses 6.5 and 6.6 of the Sprayed Sealing Guide; and of the provisions of the Australian Standard 1742.3 contained in clause 2.2 and Table 4.4), in relation to the provision of the signs and controls which I have earlier found were necessary for the safety of the public while gravel was on the road. The contractual and tortious duties in this respect are, in my view, co-extensive. 400 I am similarly satisfied that it was in breach of its general duty of care in allowing gravel to remain on the roadway, in circumstances where the signs and control of the site were inadequate in the respects earlier found, and in not arranging to cover over the 75km/h advisory sign. 401 For a proper discharge of its general duty of care, as well as of the contractual duty, it was imperative that Pioneer: a) give regard to and comply with AS 1742.3, and in particular so much of the Standard as required careful consideration to be given to the signing of the site so as to provide adequate warnings of changes in the road surface and driving conditions; as required it to remove any signs which were inappropriate while works were being carried out; as required it to establish an appropriate speed limit zone, and to provide repeater signs (generally and pursuant to clause 1.1 of the QA Specification G10 and clause 5.3.2 of the Part 5 Technical Specification);

b) give regard to and comply with the requirement of the Spray Sealing Guide Section 6.6, as well as those arising under RTA QA Specification R45 (45.5.10), in controlling traffic in the area of the works so as to provide for the safe movement of traffic, and to establish a temporary speed zone;

c) give regard to and provide appropriate slippery road warning and advisory signs for the safety of the public, as required by clause 15 of the General Conditions of Contract;

d) give regard to and ensure that the road was free of loose stone, unless sufficiently controlled and the subject of appropriate warning and speed advisory signs, as required by clause 5.1.3, 5.1.9, 5.3 of the Technical Specification and clause 1.7 of the QA Specification G10.

e) provide a Traffic Control Plan that complied with AS 1742.3 and the RTA Specification Part G10, as required by clause 5.3.2 of the Technical Specification and by clause 1.3 of the QA Specification G10 Control of Traffic. 402 Of importance in this regard are the references in clause 5.3.2 of the Technical Specification to compliance with AS 1742.3 and the RTA Specification Part G10 Control of Traffic, as being "minimum requirements"; and the reference in clause 1.1 of the QA Specification G10 Control of Traffic, that the word "should" in AS 1742.3 means "shall", and that action required by it is the Contractor's responsibility. It follows that breaches of the Contract and of the general duty of care on Pioneer's part were established.

F. CONTRIBUTORY NEGLIGENCE 403 It was submitted that the plaintiff was guilty of contributory negligence in not slowing down, or in not taking extra care, in the presence of the roadworks and gravel over which she had travelled for 2.4 kms. or so before the accident. It was further submitted, in this regard that she should have been aware of the characteristics of the top bend and of the motor vehicle which she was driving, and, on that account, she should have made allowance for any inherent problems associated with that bend or with maintaining or regaining control of such a vehicle. 404 I am not persuaded that there is any force in either of those propositions. In the absence of proper site control or appropriate signs, the plaintiff had no reason to be placed on notice of any particular hazard associated with the top bend. Such sign as there was, was only likely to lull her into a false sense of security in that it gave no warning as to the need for a motorist to reduce his or her speed to that which I find was a safe speed. 405 The plaintiff's prior experience with the two kilometres of road leading to the accident site had not presented any similar problem, and there was no evidence to show that any preceding bend in this section of roadway was of the same substandard nature or degree as the top bend. Again this gave no cause for greater vigilance or for a reduction of speed below that indicated by the sign in place. If anything it was a further factor inviting a false sense of security. 406 It is in my view also illogical to suggest, as Pioneer did, that the plaintiff should have regarded the 75 km/h sign as relevant only for normal conditions, and on that account reduced her speed. It was the responsibility of those undertaking the road works to provide proper warnings, and the plaintiff was clearly entitled to accept that if the 75 km/h sign remained in position, uncovered, then it conveyed a safe speed, for the bend. 407 Similarly, I see no reason to attribute to the plaintiff, as an inexperienced motorist, the particular knowledge of which the experts spoke in relation to the means of recovery of control of a light front wheel drive vehicle. I am not persuaded that such knowledge is possessed by or should be possessed by the average motorist - or that the plaintiff had any cognisance of it. In any event, it appears to me that while a rally driver might recover control of such a vehicle, once traction was lost in the gravel the chances of an average driver doing so were virtually non-existent, and at best a matter of good fortune. 408 As previously noted, there is no basis for supposing that through inattention or lack of care, the plaintiff allowed her vehicle to go off the carriageway to the east, or to drift wide on the bend, or that she was distracted by attending to some event, from giving proper attention to the control of her vehicle. 409 The defences of contributory negligence fail.

G. CROSS CLAIMS 1. The relevant principles 410 The cross claims for contribution or indemnity were variously based on S 5 of the Law Reform (Miscellaneous Provisions) Act 1946, and/or the contracts made variously between the RTA and the Council, and between the Council and Pioneer. 411 Under the Law Reform (Miscellaneous Provisions) Act 1946, apportionment depends upon a weighing of the relative culpability and causative potency of the negligence found in relation to the individual defendants: Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 at 493-4 and Wynbergen v Hoyts Corporation Pty Ltd (1997) 72 ALJR 65 at 68. 412 In this regard, it is appropriate to pay attention to the extent to which the accident was due to positive acts which actually created a hazard, on the one hand, and to omissions to respond to that hazard. While the distinction between misfeasance and nonfeasance no longer has any relevance to primary liability, it can still have a relevance for apportionment questions, since it may well be appropriate in a particular case to attribute a greater degree of culpability to the party which creates or participates in the creation of a hazard, than to a party which neglects to exercise a power available to it, to eliminate or reduce that hazard. 413 The potential significance of this distinction was noted in Brodie v Singleton Shire Council (at 139). Illustrations involving either positive acts or omissions where liability arose, can be seen in decisions such as Campbelltown City Council v Crain NSWCA 23 October 1998, Turner v Ku-ring-gai Municipal Council (1990) 72 LGRA 60; Desmond v Mount Isa City Council (1991) 2 QdR 482; McIntyre v Ridley District Council (1991) 56 SASR 343 and Gloucester Shire Council v McLenaghan (2000) NSWCA 208. 414 As Handley JA pointed out in RTA v Fletcher and Leighton Contractors [2001] NSWCA 63 (at para 54), the terms of any contractual obligations on the part of an independent contractor also can remain relevant in assessing the responsibility of tort feasors in the position (there) of the RTA and Leighton Contractors; or here of the Council and the RTA, on the one hand, and Pioneer, on the other hand: (see also on this aspect RTA v Scroop (1998) L8 MVR 233 at p 238 and 239).

2. The RTA 415 In the present case there was no direct breach of duty on the part of the RTA. Its liability was entirely vicarious. In those circumstances, it is in my view, entitled to contribution amounting to an indemnity from both the Council and Pioneer under the Law Reform (Miscellaneous Provisions) Act. Additionally, it is in my view, entitled to an indemnity from the Council under the provision contained in Section G.01 of the Yellow Book, which was incorporated into the road maintenance agreement. That indemnity is in absolute terms, unlike that considered in RTA v Scroop. 416 It was submitted by the Council that this clause should be read narrowly and confined to any liability arising in relation to work which was covered by the Yellow Book, such as a claim by Pioneer for moneys payable in respect of any resealing work carried out by it. On the contrary, I am satisfied that it extends to indemnify the RTA for any claim for which it may become vicariously liable as the result any breach by the Council of the duty of care which it owed to a third party, arising in respect of any works which fall within the umbrella of the Yellow Book, including damages awarded to a motorist who is injured by reason of any breach of duty occurring in the course of those works. 417 So far as the statutory claim is concerned, the Council and Pioneer were directly responsible for: a) the presence of gravel on the road;

d) the several breaches of the Australian Standard, the Traffic Control Plan and the Sprayed Sealing Guide that had been prepared by the RTA. 418 The responsibility for the provision of the guardrail or for a lesser temporary solution, subject to budgetary considerations, similarly rested with Council. It was entrusted with the shoulder widening work for which the RTA had provided the funding, and it should have directed attention to the potential problem which that created, both for the reasons identified by Messrs Walker, Woodburn, Johnston, Hespe and Keramidas, but also because of the fact that prior accidents had been reported to it by Mr. Suttor.

3. The Council and Pioneer 419 The Council submitted, contrary to the entitlement to an indemnity contended for by the RTA, that it was the party which was entitled to an indemnity from the RTA, since it was the agent of that body: Re Parker (1882) 21 ChD 408. I am satisfied that it was the act of the Council which directly authorised the change in the road surface, that it was both a road authority and contractor with Pioneer, and that it was itself in breach of the duty of care which was owed to the plaintiff. The submission which it advances in this regard is, accordingly, not made good. In fact the Council conceded as much if it were found that its liability was due party or wholly to its own negligence. 420 The Council submitted next that it was an implied term of the Contract that Pioneer would indemnify it in respect of any liability arising, relying in support of that proposition upon the business efficacy principle established in Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337. I am not persuaded that it "goes without saying" that such a term was implied, let alone one that would give rise to an indemnity, irrespective of its own breach. 421 Additionally, the Council submitted that it was entitled to an indemnity from Pioneer pursuant to clause 18 of the General Conditions of Contract (para 274 above). In particular, it was submitted that this clause was not subject to a gloss that would imply a limitation in respect of any negligence found that was attributable to its own breach of duty. In this regard comparison was invited with the clause considered in RTA v Scroop and with clause 20 of the present contract which, when dealing with accident or injury to employees, was expressed in the following terms: "The Contractor shall indemnify the Principal against liability for loss of damage resulting from personal injury to the Contractor or his agents occurring during the execution of the works, except such injury resulting from breach of the Contract by the Principal or his negligent act. " (emphasis added) It was submitted that had a similar exception been intended for clause 18, then it would have included a similar wording. 422 For the reasons previously expressed, I am satisfied that "the Principal" referred to in clauses 18 and 20, is the Council. I am not, however, persuaded that the submission advanced by the Council concerning the construction of clause 18 is correct. 423 The proviso in Scroop was clearly designed to protect the Contractor from being held liable to third parties for the negligence of the Principal. It was in the following terms: "… The Contractor shall not, under the last preceding paragraph of this clause, be rendered liable for or in respect of personal injury to … any person … resulting from any breach by the Principal, of any provision of the Contract, or any negligent act or omission of the Principal, the Superintendent or the employees, professional consultants or agents of the principal". It was held in Scroop , that it did not apply where the Principal's liability was not vicarious, but arose directly from its own breach of duty. 424 It seems to me that clause 20 was designed specifically to deal with the situation where the Contractor might have become responsible as an employer for injuries suffered by its workers due to the negligence or breach of duty of the Principal alone. In those circumstances, particularly having regard to the Statutory scheme for Compensation to which the Contractor was subject, it was entirely understandable that there be such an express limitation on the indemnity which clause 20 otherwise provided. 425 Next, it appears to me that the limitation for which Pioneer contends is implicit in the fact that the claim or action to which it applies is governed by the concluding words, "arising out of the construction of the works by the Contractor". This suggests that the indemnity relates to claims based upon the negligence or breach of duty of the Contractor and does not apply where the negligence or breach of duty is that of the Council. 426 This appears to me to be the natural and ordinary means of the clause, in its context, giving due weight to the nature and object of the contract, in accordance with the well recognised principle of construction noted in Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500 at 510. This construction in fact accords with that given to a similar indemnity provision by the Victorian Court of Appeal in Australian Paper Plantations Pty Ltd v Venturoni (2000) VSCA 71. The present case is, in fact, somewhat stronger, since the Court there accepted that the words "by the tenderer" were to be read as if they included at the end of the words "all costs, damages … arising out of in respect of the carrying out of the agreement" which were the subject of the indemnity. 427 Accordingly, the Council's claim against Pioneer rests upon the Law Reform (Miscellaneous Provisions) Act alone, as does that of Pioneer against it. This requires consideration of the degree of culpability of each party, and of the causal potency of their breaches of duty. 428 The negligence of Pioneer was related directly to the interference with the road surface in circumstances where it failed to take the steps required under the Contract, or at general law, to provide proper traffic control, including speed restrictions, and advisory signs, or to remove the gravel from the roadway (in circumstances where there was insufficient control or signposting in place). 429 The negligence of the Council was directly related to its failure to exercise its powers under SS 23 and 33 of the General Conditions of Contract; to its various failures e.g. to ensure that Pioneer submitted a proper proposal for traffic control while the works were carried out, to ensure that sufficient warning signs were posted and that the 75 km/h sign was covered over; and to ensure that a guardrail was installed or that temporary measures were taken to ensure that traffic speed was reduced, until such time as funding for a barrier was available. Additionally, that negligence relates to the inadequate superintendence or supervision of the site by the Superintendent, or by Mr. Vautin, the latter of whom made the arrangements, in consultation with Pioneer, to delay gravel removal; and to its failure to detect in the course of its inspections the need for a guardrail or some less expensive temporary alternative, when the road shoulders were widened, as well as the inappropriateness of the 75 km/h sign. 430 In my view, there was a shared responsibility in relation to traffic control, and in the provision of suitable warning signs, under clause 5.3.2 of the Technical Specification and clause 1.3 of the QA Specification G10; as well as in deciding whether it was safe to leave gravel on the road, in the prevailing conditions, including such signs as had been erected. 431 The proper apportionment of responsibility for the accident, both in terms of degree of culpability and causal potency, by reference to those considerations, is for it to be shared equally between the Council and Pioneer. I so find for the purpose of the cross claims brought by Pioneer and the Council, respectively, against each other. 432 I am not persuaded, again for the reasons earlier set out, that either the Council or Pioneer has any claim for contribution against the RTA. Nor am I persuaded that Pioneer has any contractual claim against the Council for a breach of clause 5.3.2 of the Technical Specification. In that regard the primary responsibility rested with it to provide a suitable Traffic Control Plan, that being an obligation which it breached.

H. DAMAGES 1. Background 433 The injury suffered by the plaintiff, which involved a fracture of the second cervical vertebra, with complete transection of the spinal cord at that level, was on any view catastrophic, particularly for a person of her age. In brief summary it has left her in a position of tetraplegia where she: a) has complete paralysis of her upper and lower limbs, and trunk, as well as absence of sensation below the level of the second cervical vertebra;

b) has paralysis of the diaphragm which has left her fully and permanently ventilator dependent, via a tracheostomy and respirator;

c) has an indwelling suprapubic catheter, and a second daily bowel program since she has no control of her neurogenic bladder or bowels;

d) requires medication for bladder care, as well as for the control of limb spasms which are easily set off by movement and by exposure to draught;

e) cannot adjust her body temperature and is extremely sensitive to heat and to cold;

f) is barely able to speak, although by lip movement she can make herself understood to carers who have experience in dealing with her problems;

g) has a limited capacity to operate an electric wheelchair with a chin control unit, but requires assistance to be placed in and out of the chair, and in being driven in a motor vehicle;

h) suffers understandable feelings of panic, anxiety and depression in relation to her tragic situation, and in particular referrable to her dependency upon her partner, and to her relative social isolation;

i) experiences cramping and discomfort in the neck region. 434 It was common ground that her potential for any form of employment has, for all practical purposes, been entirely destroyed. 435 This is but a bare statement of the disabilities which the plaintiff suffers as a tetraplegic, a condition from which there is no prospect of recovery. To a significant extent the damages which are appropriate for the various heads of loss have been agreed. 436 It is only in respect of: a) general damages (including interest)

that issues remain for decision by me, and I will accordingly concentrate on the evidence so far as it concerns these issues.

2. Agreed Damages 437 Otherwise, damages have been agreed between the parties for calculation purposes, in accordance with the schedule which was tendered as Exhibit R, supplemented by an agreement (version 2) as to certain items which were still in issue, at the time of its tender. The matters agreed and outstanding were accordingly as follows: Agreed Damages Schedule - Version 2

Plaintiff's date of birth 25 December 1974 (now aged 26 years)

3% Multiplier to age 65 years - (38.5 years) = 1199.6

$475/wk to age 65 less 20% (contingencies) $454,708

3.2 Interest on Past Economic Loss $6,600

4. Loss of Superannuation 4.1 Past superannuation $4,462 4.2 Future Superannuation $386,045

5. Past Out of Pocket Expenses $1,813,856.60 (to be revised by up to date figure from W/C insurer to date of judgment)

6.1 Case Co-ordinator $180/wk

6.2 - Full time (24 hour) Registered Nurse $6,375.84/wk

6.3 Additional Care to Assist Registered Nurse $817.88/wk 6.4 Third Nurse for Tracheostomy Tube change, domestic assistance (commercial), home maintenance and van driver $514.50/wk

7. Domestic Assistance - Past gratuitous $75,570

8. Domestic Assistance - Future Gratuitous $200.00/wk

9. Future Equipment Requirements $1,140.50/wk

Difference in running costs and associated expenses between VW Transporter and Toyota Camry $100/week

13. Housing a) Cost of suitable house in Bathurst Region less cost of average dwelling in region $270,000

6. Nanny - care for child $430,000 (Agreed only for calculation purposes)

subject to defendants to argue discount of this sum by reason of:

• argument of double counting with future economic loss

(Defendants agree to quantification as set out in report from Public Trustee in Ex D - but argue that Fund Management is not warranted)

3. Consequences of the Accident 438 Before turning to the contested heads of damage, it is convenient to note, in a general way, the consequences of the accident for the plaintiff so far as they relate to the burdens she faces, the assistance she needs, and the loss of enjoyment and of amenity of life in which this sounds. As will become apparent, a general survey in this respect provides a necessary backdrop for an examination of the contested heads of damage. 439 Following her accident the plaintiff was hospitalised, initially at the Prince of Wales Hospital, for a period of approximately sixteen months. Since being discharged from that hospital, she has had several admissions to the rehabilitation unit at Bathurst Base Hospital for varying periods, including a stay of four months in 1998, largely under the care of Dr. Sophia Lahz, the Director of Rehabilitation. She has not, however, required readmission for any complications of her tetraplegia, or for any other medical problems associated with the condition of neurofibromatosis Type II from which she suffers ("NF2"). 440 Naturally, she has extensive ongoing needs in relation to suitably modified housing, electronic and manual wheelchairs with suitable accessories, (including a head support) respirators and suction units, humidifier, nebuliser, hoists, commode and shower chairs, shower trolley, electric bed, wheelchair accessible transporter van, pressure relieving cushions and mattresses, air conditioner and environmental control unit, computer, video, audio and television systems (for recreation and education), medications, enemas, leg bags, incontinence sheets, an oxygen delivery system, portable suction and resuscitation equipment, suitable storage for the items needed for her medical and personal care, home security, battery charging systems for her ventilator and wheelchair, and a back up power supply for life support in case of electricity failure. Many of these items will require replacement. In some cases duplicates will be needed, as will some form of nurse's station. 441 As a consequence of her problems, the plaintiff requires twenty-four hour nursing care, as well as total assistance with all aspects of daily living including housework, shopping, laundry, food preparation, gardening and home maintenance, showering, dressing, grooming, feeding, motor vehicle travel and so on. 442 In order to deal with the practical impingement of the injury upon the plaintiff's life, it is necessary to explore, in a little more detail, the daily regime associated with her nursing and personal care. It includes:

a) getting her out of bed and into the shower, and then groomed, dressed and transferred to a wheelchair - a procedure taking up to four hours and involving one registered nurse and an assistant;

b) removal and change of the tracheostomy, which requires temporary artificial respiration using an air viva or oxylog - an occasion of some stress and anxiety for the plaintiff;

c) monitoring and adjustment of the mechanical ventilator to ensure the correct respiration rate and delivery of air;

d) manual ventilation by a second attendant while showering and while being transferred to and from the bed and wheelchair;

e) suctioning at regular intervals via the tracheostomy, of the plaintiff's airways to clear the build up of mucous secretions;

f) showering on three days of the week, being replaced with sponging in bed on the other days, as the plaintiff finds the showering and manual ventilation needed for it distressful;

g) the use of enemas upon bowel days requiring the presence of two nurses, and when required, manual evacuation;

h) Monitoring and adjustment of the plaintiff's temperature

i) passive stretching exercises of the upper and lower limbs for about two hours per day;

j) attention to the suprapubic catheter which needs to be changed every four weeks, (a difficult exercise in the plaintiff's case because of her propensity to spasm) and checked constantly to prevent kinking and blocking;

k) careful monitoring of fluid intake and output and constant vigilance for possible signs of urinary tract infections;

l) regular turning and attention to her skin to prevent ulceration and pressure sores;

m) provision of medication at various times during the day;

n) transfer from the wheelchair to bed at night, and preparing her for sleep, an activity taking between one and two hours each day;

o) once placed in bed, monitoring by the night nurse who also provides medication, attends to spasms and provides suction to clear airways as needed;

p) assistance by an attendant as well as a driver while being transported in the van. 443 These needs have been met to date upon a 24-hour 3-shift basis (each of eight hours). The rostered staff has accordingly involved six registered nurses split between 21 shifts, as well as 3 carers including 1 enrolled nurse and 2 assistants in nursing. One such assistant has been present for about four hours every day on Mondays to Fridays, and three hours per day on Saturdays and Sundays. They are also subject to call back when problems develop. Additional assistance is needed at night, although that has largely been provided by the plaintiff's partner. 444 By reason of her special difficulties, and full time dependence upon ventilation, with the consequent risk of misadventure, the plaintiff's nursing care can only be regarded as highly specialised and as calling for staff who are experienced in this area of nursing. 445 In this regard, she faces numerous possible complications, if not properly cared for, which as Professor Yeo and Sister Monaghan explained, include:

b) the condition of autonomic dysreflexia, which is a life threatening complication found in most people with high level quadriplegia, and which can lead to cardiac arrest or a stroke

h) perforation and ulceration of the trachea in the process of inserting the suction tube, absent skilful manipulation of it, and early detection of a potential problem

i) spasticity and contractures leading to fractures;

j) perforation of the bowel, in the course of the administration of enemas, again absent the exercise of particular care, by reason of the plaintiff's tendency to go into spasm;

k) panic attacks and anxiety. 446 It was the assessment of Lois Rothwell, a consultant occupational therapist, who has attended at the plaintiff's home in order to monitor her daily activities and nursing care, that she needed to have one registered nurse, with specific training in the management of a ventilator dependent quadriplegic, present within her sight at all times. Additionally she said that an additional carer, who could be an assistant-in-nursing, or a nursing aide, was required for three hours every morning and for two hours each evening. 447 She also thought that the plaintiff needed the services of a case manager, who should be a health professional, to perform an ongoing supervisory and management role, with responsibility for matters such as planning and monitoring her daily activities, reviewing the equipment required, (with a view to their replacement and upgrade as occasion arose), to assist with the selection of carers, and to liaise with the health professionals and advisers with whom she would require an ongoing relationship. This was in addition to any provision of domestic help and transport. 448 I am satisfied from the evidence of Sister Monaghan that there needs to be a registered nurse on duty, at all times, because of the potential for ventilation emergencies which may require cardiopulmonary rehabilitation and urgent treatment to remove accumulations in the airways and lungs, and also because of the complex regime which she described for control and monitoring, particularly of the plaintiff's bladder and bowel, and for dealing with spasms and contractures which can lead to other problems. 449 As noted by Drs Yeo and Lahz, the plaintiff will require regular review by her general practitioner, by a spinal rehabilitation specialist, by a respiratory physician and by a urologist, as well as rehabilitation assistance to develop such educational or personal interests as are attainable, if she is to preserve some limited quality of life, and possibly psychological assistance for the inevitable emotional lows associated with her situation. Regular review by a physiotherapist and occupational therapist have also been considered appropriate by way of consultancy, so as to ensure that the plaintiff's needs in these areas are being met. 450 The potential for medical complications and special care also mean that she is likely to require short term hospital admissions from time to time, for review and for emergencies. She will also need provision for annual holidays to provide a change of environment, and a respite allowance for her carer if her fiancé continues to look after many of her needs. 451 Before the accident the plaintiff had an active life, in the course of which she worked two part time jobs, one as a cleaner at a nursing home, and the other at Edgells Factory in Bathurst (Simplot Australia). She had attained her Higher School Certificate in 1994, and was studying environmental science. She was also involved in the breeding of Chow Chow dogs, bike riding, swimming, and cross-stitching. 452 She has not given in to her injury, in that she still enjoys social outings and interaction, in particular in talking to aged people and others with disabilities. She maintains an interest in acquiring computer skills, and in further educating herself through the TAFE college at Bathurst in the area of environmental science. She also enjoys having books read to her. 453 She has expressed a desire to marry her live-in partner Malcolm, who has been attending to a number of household activities for her, and she maintains a hope that she may be able to have a baby to him. The latter matter is particularly problematic, having regard not only to her condition as a tetraplegic, but also to the high risk of any child of the union inheriting from her the condition of NF2. To that issue I will need to return. 454 It is sufficient at this point to note the evidence of Sister Monaghan to the effect that the plaintiff and her partner have a very strong emotional tie, and that this tie includes a sexual relationship. This appears to be very important for each of them, even though it has had its problems, and is not something which all of the carers encourage, let alone approve. 455 The plaintiff, she thought, was more likely than her partner to be the primary decision maker in the relationship, it being her view that he was in fact quite dependent on her.

4. Life Expectancy 456 Independently of the accident induced tetraplegia, the plaintiff has a history of neurofibromatosis, Type II ("NF2"), an inherited disorder, which results in neurological manifestations due to the development of benign tumours that surround nerve cells, particularly acoustic schwannomas, and which carries with it a predisposition also for the development of meningiomas (occurring in the membrane surrounding the brain). 457 Prior to the accident the plaintiff had undergone surgery on several occasions, one such procedure having involved the removal of an accoustic tumour. She was left with reduced hearing in her left ear as a result. She also has a left sided facial paralysis because of it. 458 Although there were some uncertainties in relation to the plaintiff's history, it would appear that it encompasses the following events, so far as her condition of NF2 is concerned: a) discovery in 1985, at the age of about ten years, of a subcutaneous extradural tumour at the base of the neck above the clavicle, measuring 5cms by 6 cms, with an intraspinal extradural component, and also an extradural lesion at T8;

b) removal, in June 1988, of the C7 dumbbell shaped tumour, involving a hemi laminectomy at which time a left sided vestibular schwannoma/acoustic neuroma was noted on MRI scan; the neck lump was also removed later that month;

c) Surgery by Dr, Besser, on 10 August 1989, for removal of the left side Schwannoma which was in fact intracanicular rather than vestibular (resulting in some hearing loss on that side);

d) surgery, on 9 September 1995, to remove a neuroma at the C1 level, involving a laminectomy;

e) the subsequent discovery, although before the accident, of a small right vestibular schwannoma (accoustic), of a meningioma in the falx (membrane behind the brain) and of schwannomas on the 3rd and 5th cranial nerves.

f) Following the accident, the CT scans revealed that the right vestibular schwannoma and the meningioma in the falx were in the order of 1.5cm, in diameter, and that the schwannoma remained intracanicular. 459 The current position as to the overall tumour burden, and as to any growth since 1997, was unexplored, so far as recent CT or MRI scanning was concerned, although there appear to be no symptoms or signs of any tumour having reached the stage of being a problem. 460 Professor Halmagyi, from the Department of Neurology at Royal Prince Alfred Hospital, had, however, provided a report, in April 1999, that there had been no obvious advance in the plaintiff's intracranial neurofibromatosis to that stage. 461 It is the existence of this condition of NF2 alongside the condition of tetraplegia which gives rise to an issue as to the life expectancy of the plaintiff. 462 Professor Yeo gave evidence, based upon his extended and recent studies of high level quadriplegias, that, with recent improvements in care, this condition was likely to have led to a reduction of only 25% in the statistical norm for the life expectancy that would otherwise have existed for a person of her age, without that disability, provided that the plaintiff continued to have an appropriate level of attendant care, and regular medical review. This level of care to date he considered to have been "excellent", it being unusual that it had not been necessary, over the four years since the accident, for her to have required any readmission to hospital for complications. The fact that she was on a ventilator, he said, in the light of more recent experience and knowledge on the part of carers, no longer required any additional reduction in life expectancy, although, as he recognised the sample of such persons upon which he came to this view, was very small. Again, as he made clear, the critical factor for such a patient was the quality of the ongoing care, particularly in relation to the management of the tracheostomy and of the risk of respiratory tract infections. 463 Upon the basis of his evidence, the plaintiff would have a current life expectancy of 68 years, equivalent to a further 41 years of life. 464 Having regard to his pre-eminence in the field of serious spinal injury, and the extensive research which he has undertaken, as recorded most recently in the study "Mortality Following Spinal Cord Injury" 1998, I see no reason not to accept Professor Yeo's opinion in relation to the plaintiff's condition of tetraplegia, in particular having regard to a) the high level nursing care which she is receiving;

b) the assessment that any risks associated with a pregnancy, if that occurs, are likely to be manageable, and of a short term nature;

c) the fact that he rounded down to 75% from the statistical 77% reported in his study; and

d) the absence of any contradictory evidence offered by the defendants. 465 Professor Yeo was not able to offer any definitive opinion as to whether there should be any further reduction of life expectancy by reason of the plaintiff's condition of NF2. He saw no reason for any such reduction although he recognised that his study group of quadriplegics had not included any patients with NF2. 466 The evidence in relation to this aspect of this case, was largely confined to that of Professor Evans, to which I will turn, after noting first the somewhat unsatisfactory evidence of Professor McLeod, who initially said that the average age of death in the NF2 population had been reported to be thirty-six years, with an actuarial survival from diagnosis of fifteen years. Although the plaintiff had already exceeded the actuarial calculation of survival from the time of diagnosis, he said that, if the average age of death was thirty-six years, then she had at the time of his report, in July 2000, only about ten more years to live. 467 In a subsequent report dated 21 June 2001, based upon various articles, including Professor Evans' study, he did in fact revise his view as to plaintiff's life expectancy, from the time of the report, to one of eighteen more years. This appears to be an unduly pessimistic view of the case, and it is not one that appears to have been well considered or researched, either generally, or in relation to the plaintiff's personal history. 468 It was the assessment of Professor Evans, who was a consultant in medical genetics with particular experience in the inherited condition of NF2, that the plaintiff could properly be classified as "moderately affected" by the condition, ie at a level of 4/5 on a scale of seriousness 1 to 10. This opinion was based upon the fact that, at the time of discovery of the condition, she had been asymptomatic. It was also based upon the early intervention, and expert management, by her treating neurosurgeon, Dr. Besser, and upon the fact that the family history of the disorder had spanned four generations (indicating that the gene fault was not particularly severe), upon the relatively slow growth of the right sided tumour and upon the not overwhelming burden of the neuromas which were present. 469 He observed that the main NF2 related threats to her life were the right sided vestibular schwannoma and the falx meningioma. These were amenable to treatment through surgical removal, and possibly through stereotactic radio-surgical intervention. Although that latter form of treatment can cause a malignant transformation of a tumour if delayed for too long, it has no mortality risk and offers an 80% chance of tumour control. Some other possible forms of therapy, he said, were in the course of being trialled including in one form, antiangiogenesis agents which starve the tumour by closing off blood vessel growth; and, in the other form, apoptotic agents which are designed to bring about cell death. 470 If left untreated, he thought the tumours might be expected to kill her in twenty years or so. The vestibular schwannoma, which was not extra-canicular, he thought had grown on average 1 to 1.5mm per year which, if it continued to grow at that rate, would reach a critical size of around 4.5 to 5cms, requiring surgery around the year 2020. If treated successfully, then she could be expected to live considerably longer. The surgery require for this neuroma, he said, had a mortality rate under 1%. The spinal tumours he thought no longer to be an issue because of her tetraplegia. 471 He said that the meningioma which the plaintiff had in the falx probably was the safest place possible for such a tumour, because of the space which exists between the two hemispheres of the brain. In that area, he said, a meningioma could grow to 6/7cms in size before becoming a real problem, with the consequence that it was unlikely to require operative treatment for at least twenty years. While invasive surgery would be required for removal, the surgery, he said, would be simpler and less time consuming than surgery to remove a vestibular schwannoma and had very little mortality or morbidity associated with it. 472 With expert medical attention, he did not consider that her life expectancy, as a ventilated quadriplegic, would be further reduced by her NF2. By reference to the studies which he had undertaken in relation to the follow up of a significant group of patients, he was of the view that actuarial survival of NF2 sufferers had improved to 68 years of age. The plaintiff's history, he thought, was such that she could have been expected to live into the "late sixties/seventies", as opposed to a much earlier projected age, had she revealed many tumours or rapid growing ones. 473 In this regard, as he made clear, the prognosis depended upon the rate at which the tumours grew, which was not altogether predictable. He observed that their rate of growth tended to slow with age, and he speculated that the plaintiff's tetraplegia, with the accompanying reduction in activity and metabolic rate, may in fact turn out to be an advantage. Similarly, he thought her risks of early death, from the condition, were reduced by the exceptional nursing care which she was receiving and by the fact that she was being suctioned and ventilated, since the common causes of death in NF2 patients were events such as pneumonia, suppressed respiration, and falls from the loss of balance, which is typically associated with impingement upon, or surgery affecting, the 8th cranial nerve. 474 So far as future contingencies are concerned, he accepted that the plaintiff's NF2 was likely to impact upon her condition, so far as she was likely to lose either wholly or partially her hearing, and so far as she could have problems with balance, although bilateral surgery on the acoustic schwannoma would tend to equilibrate that situation. Additionally, he accepted that her condition of tetraplegia increased the risks of her developing peri-operative thrombosis and pulmonary emboli (through her inability after surgery to exercise and move around). 475 Of some relevance, in relation to the plaintiff's life expectancy, is the fact that her father, who had bilateral acoustic neuromas removed surgically at the age of 34 or 35 years, died at age 40. Balanced against that, however, was the fact that she had a grandmother who lived to 58 years, and a genetic history spanning several generations, a circumstance inconsistent with the existence of a severe genetic defect, since those with such a defect tend not to marry or to have children. Moreover, as Professor Evans explained, it was not known what effects the surgery had for him, or whether his outcome would have been better if there had been an earlier intervention, or medical care equivalent to that which is now available to the plaintiff, or to any similar patient, a generation on. 476 Some possible challenges to the opinion of Professor Evans emerged in the course of his cross examination by Mr. Harrison SC. They related to the circumstances that: a) there was a suggestion in a pathology report, prepared at the time of the 1988 surgery to the effect that there were some signs of a malignant change in the nerve sheath tumour;

b) the dumbbell tumour which the plaintiff had at the C7 level, was very similar to the one which had appeared in her father;

c) the plaintiff has had neuromas beyond the eighth cervical nerve and hence could be said to have had multi-tumour disease;

d) in one nursing report during the 1988 hospitalisation, there were some notes of observations which could have been consistent with pre-operative central nervous system symptoms, and which, if related to the tumour then under treatment, would qualify the assumption that she had not demonstrated such symptoms before her twenties. 477 However, as Professor Evans made clear in relation to the pathology report, the plaintiff had the benefit of extensive review with lengthy follow up, which has shown only slow growth without any suggestion of malignancy developing, and which also suggested that she has had only one meningioma. These circumstances, he considered, put paid to the suggestion of possible signs of malignancy in the pathology report of 1988, since it would have been virtually certain that any such condition would have become apparent within two years. Moreover, as he explained, save in the case of irradiation transformation, malignant tumours are "extremely unusual" in the case of NF2. He suspected that the pathologist may have "overcalled" his finding, particularly if he was unaware whether the plaintiff had NF1 or NF2. 478 So far as the early death of the plaintiff's father was concerned, Professor Evans explained that this was not a certain predictor, for the reasons earlier mentioned. 479 The relevant radiology reports between 12 July 1990 and 17 October 1997 were tendered (and became Exhibit E9) at the end of the evidence, along with the nursing notes, the pathology reports and the operation record sheet for the June 1998 procedure. The nursing notes show that the possible existence of central nervous symptoms were noted the day after the hemi-laminectomy on 16 June 1998. Subsequent observations in the notes were consistent with the progressive lessening of these symptoms, and hence are consistent with them having been the residual and resolving product of the surgery. 480 The operation record for 16 June however, noted: "pre-operative examination showed no neurological signs except perhaps for some mild weakness of abductor digiti minimi and elbow extension." What significance this had, and whether it had any connection with the neuroma, was left unexplored. It also recorded that an intraspinal neuroma at C6/7 was removed along with a separate tumour on the C8 nerve root. The subsequent procedure involved removal of the soft tissue supraclavicular mass which was reported as having increased in size "fairly quickly". 481 The position in relation to an earlier emergence of neurological signs or symptoms that had been assumed, remained somewhat uncertain, having regard to the fact that the defendants had not served the relevant documents, nor had they taken Professor Evans to them before he returned to the UK, having been excused as a witness. 482 In the absence of Professor Evans having been confronted with this material, and in the absence of the defendant showing positively that signs or symptoms of central nervous system impingement due to a tumour had existed before 16 June 1998, this aspect of the case must in all fairness be approached on a neutral basis, and not used as a circumstance contradictory of the opinion provided by Professor Evans. 483 I find Professor Evans' reasoning generally persuasive, particularly having regard to his experience with NF2 patients, and to the history of the plaintiff and of her family. What is important is that the plaintiff's condition has been recognised and treated, that the quality of her care is excellent, and that, with appropriate treatment including surgery, which carries a low morbidity rate, the condition is not life threatening. 484 However, I am of the view, having regard to the limited experience in relation to patients with a combination of tetraplegia and NF2, and to the fact that the plaintiff has been assessed as "moderately affected", with more than one tumour present, that there should be a small reduction in her life expectancy from 68 years to 65 years.

5. Child Care 485 As has been observed earlier, the plaintiff does wish to have one child, notwithstanding her physical disabilities, and notwithstanding the problems which would be associated with the care of an infant. Sister Monaghan saw advantages in her having a child, although she accepted that there would need to be a considerable increase in the level of care if she was to become pregnant, and that she would need a good deal of counselling, and education, before reaching any firm decision in that regard. 486 Professor Yeo thought it not impossible for the plaintiff to conceive and bear a child, although as he said, this would require very careful monitoring and would necessitate a caesarean section. There could well be complications and a risk of mortality associated with a pregnancy, he said, relating to: a) the possible adverse, but unknown, effects of raised intra-abdominal pressure (with a growing foetus) upon the plaintiff's ventilatory support;

b) the possible difficulties associated with the suprapubic catheter; and

c) the possible development of eclampsia, of autonomic dysreflexia and of polynephritis. 487 If a child were born to the plaintiff, Professor Yeo said, not surprisingly, there would be a need for a live-in nanny until that child reached the age of eleven years or thereabouts, with some additional assistance thereafter. He considered that a pregnancy would enhance the plaintiff's wellbeing in an emotional and hence a physical sense, in giving her a reason for living. On the other hand, he also accepted that it could imperil her physical medical condition because of the risks mentioned. He thought that these risks could, however, be managed by an early hospital admission and by appropriate medical review. 488 While Professor Yeo had experience with pregnancies in quadriplegics, he acknowledged not having any such experience with a tetraplegic patient. He agreed that before becoming pregnant, the plaintiff would need to have a full warning as to all possible outcomes and risks. 489 The chance of the plaintiff bearing a child which inherited the NF2 mutation, as Professor Evans agreed and as Dr. Newlinds, a gynaecologist, noted, was a very high 1 in 2, affecting both sexes. 490 Dr. Newlinds said that he had found nothing in the plaintiff's history, or examination, or in the literature, whether relating to patients with NF2 or to her condition of tetraplegia, to suggest that her fertility would be any less than that of other women in her cohort of population. While, in his opinion a pregnancy would be ill advised because of the risks to the plaintiff and of passing the NF2 condition on, he accepted that the decision, whether or not to have a child, was that of the plaintiff to take, after being advised by a genetic counsellor. He added that, in the event of pregnancy, tests could be undertaken on the foetal tissue, to determine whether the condition had been passed to the foetus, thereby preserving an option to terminate the pregnancy. 491 So far the plaintiff's dependence upon an artificial respiratory system was concerned, Professor Newlinds pointed out that this carried with it potential problems for a developing baby. As he observed: "Uterine growth in pregnancy causes even able bodied women to have increasing difficulties in breathing. Such problems would be magnified enormously in Miss Palmer's case. Gaseous exchange is essential for life. Life for a developing baby is entirely dependent on the function of the mother's respiratory function and the placenta. A baby in-utero has been likened to living on a high mountain where oxygen tensions are low. It follows that any diminution in the mother's respiratory function would further jeopardise the placenta function. To overcome this it could be necessary to increase the pressure used by the respirator. This amongst other problems would lead to an increase in chance of alveolar rupture and possibly the development of a pneumothorax. These would further decrease respiratory function so that a downward spiral of diminishing respiratory function would be started. The oxygen saturation of the respired air could be increased. That too has considerable problems and it would not help to eliminate carbon dioxide from the system and would not assist in the maintenance of acid based relationships within the mother and baby. Apart from these fairly obvious respiratory difficulties, there would be increasing problems in other vital functions - elimination through kidney and bowel, circulation, etc. Overall I believe that while it might just be possible to maintain a pregnancy through to full term, the chances of success would be so small that even contemplation of it would be unrealistic in the extreme. An unsuccessful attempt to do so could be fatal to both mother and baby." 492 The parties agreed that the additional costs to rear a child with the assistance of a full time nanny to the age of twelve years, with some part time assistance to the age of sixteen years, were $430,000. This appears to be reasonable. They were, however, unable to agree as to what discount should be applied for: a) the prospect of the plaintiff becoming pregnant.

a) the prospect of the plaintiff successfully bearing a child to full term; or for

c) the risk of the child suffering an NF2 genetically inherited condition. They were also unable to agree as to whether, in the particular circumstances of this case, recovery was available at law. 493 The third of the possible discounting factors mentioned, it appears to me, was more related to the first of them than it was to the mortality of the child below the age of sixteen years, an event which obviously would have resulted in a reduction in the calculated cost of his or her care. 494 Properly to be taken into account in this context, on the one hand, are the desire of the plaintiff and her partner to have a child, the strength of their relationship, the emotional benefit to the plaintiff of a successful pregnancy, and the support which she could expect from Sister Monaghan; and on the other hand, the negative advice offered by Dr Newlinds, the risks associated with a pregnancy over and above those likely to be experienced by a mother free from the plaintiff's medical conditions, the absence of positive evidence that the plaintiff and her partner are in fact fertile, and the possibilities that the plaintiff may be unable to carry a child to full term and/or may pass on to the child the genetic disorder from which she suffers. 495 In recognition of these factors, the plaintiff submitted that there should be a allowance in the order of 20 to 30 per cent. The defendants, however, submitted that the plaintiff was not entitled at law to any award under this head and/or alternatively, if she were, then that award should be heavily discounted for the contingencies mentioned, as well as that of the plaintiff surviving the pregnancy and delivery. Additionally, it was put, there would need to be some allowance for the responsibility of the father to contribute towards the child's care, and for the necessity of the plaintiff, in the normal course of events, having either ceased to work for a time (during a period for which economic loss damages are to be awarded without deduction), or alternatively, having found it necessary to incur child care costs. Upon that basis, it was submitted, any award should be, at best, nominal. 496 The basis for an allowance under this head lies in the principles discussed in Sullivan v Gordon (1999) 47 NSWLR 319. That was a case where the plaintiff became pregnant three times following a motor vehicle accident in which she had suffered extensive injuries, including frontal lobe brain damage. She gave birth to two children, one pregnancy having been terminated. By reason of her brain damage, she needed assistance to care for her children. The Court, comprised by Spigelman CJ, Mason P, Powell JA, Beazley JA and Stein JA held, overruling Burnicle v Cutelli (1982) 2 NSWLR 26, that the accident caused need of a plaintiff is not confined to self care. Accordingly, it was held, a person who, by reason of the accident, has lost the capacity herself to care for a child or children, is entitled to be compensated for the cost of such necessary care, on the same basis as that recognised in Griffiths v Kirkemeyer (1977) 139 CLR 161. 497 As Beazley JA, who delivered the leading judgment, noted, at 331, a claim of this type is based in the plaintiff's "loss of pre-accident capacity". Relevantly, it seems to me that this was the capacity reserved to any fertile female to care for a child, in the event of her exercising the right she had to become pregnant and to have that child. 498 A submission was advanced by the Defendant in that case, to similar effect to that advanced by the Council in this case, that any such claim must fail on causation theory, since the additional cost incurred had been caused not by the accident, but by the appellant's own actions in becoming pregnant and having a child. Additionally, it was submitted that the plaintiff had not acted reasonably in taking that course, thereby breaking the chain of causation. Upon that basis, it was the defendant's contention that any compensation in relation to such loss of capacity should be dealt with by inclusion in the general damages, presumably as a loss of amenity. 499 To that submission I will return. It is first necessary to note that Sullivan v Gordon was a case which dealt with children who had been born before the date of the trial, and to that extent, as well as by reason of another more significant factor, it is distinguishable. In relation to this aspect, Beazley JA said, at 332: "It is well established that, although the cause of action in a negligence claim is complete at the time when damage is suffered (which in a motor vehicle accident is at the time of the accident), the court must award damages for the losses which reasonably flow from the damage, both present and future. When assessing those damages the court takes account of facts which are known as at the date of trial: see Willis v Commonwealth (1946) 73 CLR 105; Thompson v Faraonio (1979) 54 ALJR 231; 24 ALR 1; Ruby v Marsh (1975) 132 CLR 642; Johnson v Perez (1988) 166 CLR 351; also see generally, Luntz 'Assessment of Damages for Personal Injury and Death" 3rd ed (1990) Butterworths, Sydney, par 1.4.1. The appellant was a teenager when the accident occurred. It was therefore possible that at some time in the future she would have children. By the date of trial that possibility had become a reality, thus enabling the court to determine the amount of compensation for her lost capacity to look after the children, having regard to the actuality which existed at trial. I should add at this point that no claim was made for the possibility that she may have had more children in the future which may have increased or extended the need for care." 500 I do not, however, regard these observations as having excluded recovery in relation to possible future losses, as distinct from requiring an appropriate discount to reflect the likelihood of them occurring or not occurring. 501 In relation to the more difficult causation issue, Beazley JA first made reference to the judgment of Lord Reid, in McKew v Holland & Hannen & Cubitts (Scotland) Ltd [1969] 3 All ER 1621, where his Lordship said (at 1623) that: "… it is quite possible that in spite of all reasonable care [the plaintiff's] leg [injured due to the defendant's negligence] may give way in circumstances such that as a result he sustains further injury. Then that second injury was caused by his disability which in turn was caused by the defender's fault. But if the injured man acts unreasonably he cannot hold the defender liable for injury caused by his own unreasonable conduct. His unreasonable conduct is novus actus interveniens. The chain of causation has been broken and what follows must be regarded as caused by his own conduct and not by the defender's fault or the disability caused by it. Or one may say that unreasonable conduct of the pursuer and what follows from it is not the natural and probable result of the original fault of the defender or of the ensuing disability. I do not see that foreseeability comes into this. A defender is not liable for a consequence of a kind which is not foreseeable. But it does not follow that he is liable for every consequence which a reasonable man could foresee. What can be foreseen depends almost entirely on the facts of the case, and it is often easy to foresee unreasonable conduct or some other novus actus interveniens as being quite likely. But that does not mean that the defender must pay for damage caused by the novus actus. It only leads to trouble that if one tries to graft on to the concept of foreseeability some rule of law to the effect that a wrongdoer is not bound to foresee something which in fact he could readily foresee as quite likely to happen. For, it is not at all unlikely or unforeseeable that an active man who has suffered such a disability will take some quite unreasonable risk. But if he does he cannot hold the defender liable for the consequences." 502 That statement, as her Honour observed, has to be considered in the light of general principles of causation, noting that: "In McKew Lord Guest referred to the statement of Lord Haldane in Steamship Baron Vernon v Steamship Metagama 1928 SC (HL) 21 at 25 that damages are recoverable if they are the natural and reasonable result of the negligence. Included in that category was 'reasonable human conduct'. In McKew, it was held that the appellant's conduct was unreasonable." and adding that: "In Australia, the proper approach to the question of causation was discussed in March v E and M H Stramare Pty Ltd (1991) 171 CLR 506. As Mason CJ held in that case, causation in negligence is a question to be determined by applying commonsense to the facts of the particular case. The test also applies to the question whether some particular damage resulted from the negligent act or omission: see Medlin v State Government Insurance Commission (1995) 182 CLR 1. Medlin demonstrates that the chain of causation is not necessarily broken by an act of a plaintiff or a third party which constitutes a more immediate cause of the loss or damage than the defendant's negligence: see also Chappell v Hart (1998) 156 ALR 517; Kavanagh v Akhtar (1998) 45 NSWLR 588. In March v Stramare , Mason CJ considered (at 517) that the decision in McKew could be explained as: "… a value judgment that it would be unjust to hold the defendant legally responsible for an injury which, though it could be traced back to the defendant's wrongful conduct, was the immediate result of unreasonable action on the part of the plaintiff. In truth the decision proceeded from a conclusion that the plaintiff's injury was the consequence of his independent and unreasonable action. 503 The appellant's claim was upheld, on the facts, by reference to the circumstance that her brain damage had interfered with her capacity to have insight into her own behaviour, and had left her irresponsible, forgetful and promiscuous, one aspect of which was that she would not always take her contraceptive pill. Beazley JA said that the evidence in this regard:

"… clearly established that the appellant's brain damage reduced her ability to determine whether it was appropriate or responsible or reasonable for her to have children, either at all or in the circumstances in which she conceived and bore these children. The appellant's conduct in having children, even if it could be objectively viewed as unreasonable, was caused by the respondent's negligence and consequently there was no break in the chain of causation." 504 Beazley JA considered that an associated argument, to the effect that the appellant had failed to mitigate her damages by electing to have children ran into a similar difficulty. It was difficult, her Honour observed, to see how the appellant could have mitigated her damages, save perhaps by sterilization, when the behaviour which led to her pregnancies was a result of her frontal lobe damage. In any event, there were problems in law in securing sterilization of a patient subject to the Mental Health Act 1990, and in the fact that there is probably a common law right to procreate: re "Jane" (1988) 94 FLR which is recognised in the International Covenant on Civil and Political Rights (Article 23(a).) 505 None of these considerations arise in the present case, there being no evidence to suggest that any injury to the plaintiff's spinal cord, or to her resulting state mental state has affected her capacity to decide whether or not to have a child. If she has a child it will be as the result of her own free choice, although made no doubt with the benefit of advice from others. 506 Whether there needed to be a link between an injury and the capacity to determine whether it was responsible or appropriate for the appellant to have children, was not finally determined by Mason P in a passage in Sullivan v Gordon at p.324 where his Honour observed: "The birth of children is also linked to the accident, in a sense, because the appellant's brain damage impacted upon her ability to determine whether it was appropriate or responsible or sensible for her to have children: see at [67] of Beazley JA's reasons. I incline to the view that it would make no difference if this unusual link were absent, but I express no final view on the matter. An injured plaintiff's own need for personal care includes changing needs occurring throughout his or her lifetime. Nevertheless, it may be necessary to consider whether it is always reasonable to lay at the tortfeasor's door the cost of care for children born after the injury. Pure logic is not the only matter at play in this difficult area of the law."

507 Some reliance was placed by the defendants upon the decision in CES v Super Clinics (Australia) Pty Ltd (1995) 38 NSWLR 47. That was a case of an unwanted birth, following a negligent failure by a number of medical practitioners to properly diagnose the plaintiff's pregnancy. The plaintiff sought, inter alia, the costs of rearing a child, which she incurred following her election to keep it. Priestly JA dismissed this aspect of the claim, noting (at 84-85): "The point in the present case is that the plaintiff chose to keep her child. The anguish of having to make the choice is part of the damage caused by the negligent breach of duty, but the fact remains, however compelling the psychological pressure on the plaintiff may have been to keep the child, the opportunity of choice was in my opinion, real and the choice made was voluntary. It was this choice which was the cause, in my opinion, of the subsequent cost of rearing the child. Putting the matter another way, in my opinion, if the test accepted by Deane J, in March v E & M Stramare Pty Ltd (1991) 171 CLR 506 at 522, and see Gaudron J (at 525) is applied, the defendant's negligence should not, as a matter of ordinary commonsense and experience, be regarded as a cause of the ordinary expenses of rearing a child that is (sic) parent has chosen to bring up. The plaintiff, having chosen to keep the child in the human way that as I have said I think most people in the community would approve of, is not entitled to damages for the financial consequences of having made that difficult but ordinary human choice." 508 While decided by reference to causation theory, the case is not one from which any clear ratio can be drawn, having regard to the dissenting judgment of Meagher JA and the different approach taken by Kirby P. I am not inclined to the view that it assists in the resolution of the present case, which is concerned with a somewhat different factual situation. 509 The plaintiff, in the present case, had a potential capacity at the time of the accident, to conceive and to raise a child, without the need to pay for a carer. At the time of trial she wished to continue to exercise that capacity, but by reason of her accident induced disability, its exercise would occasion her extra cost of a substantial nature. 510 The decisive consideration, in my view, is whether it would be reasonable for her to now have a child, or whether it would be unreasonable to the point where the chain of causation was broken. I am of the view that, notwithstanding the emotional advantage to the plaintiff of having a child, and the natural desire that she be able to achieve fulfilment as a mother in that regard, it would be unreasonable for her to do so. The risks to herself and to the child, and the uncertainties and the practical problems involved at all stages between conception and delivery, as well as those associated with the management of an infant, in her special circumstances, cause this to be so. 511 Independently of that conclusion, it also appears to me that, in the light of the advice which Dr. Newlinds has given, and in the light of the counselling which she is likely to receive, it is improbable in the extreme that she would go ahead, to the point where the chance of her delivering a child are so speculative as not to sound in damages: Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 642-643. 512 In all of these circumstances, I do not propose to award any damages under this head of claim.

6. Funds Management 513 A significant issue remains in relation to the financial management of so much of the plaintiff's damages as are required to provide for her care and future losses. 514 Dr. Lahz considered the plaintiff to be "very vulnerable to exploitation", and strongly recommended the appointment of a funds manager, who would be in a position to supervise her investments and to provide her with an appropriate fortnightly allowance. 515 In this regard, Dr Lahz took into account her intelligence level, which was assessed to be probably low average, her social isolation, her hearing disability which was likely to progress, her problems in speaking, and also the impression which she had gained that her reading ability may have been compromised by her left third nerve palsy, which had left her with a dilated pupil. 516 She also thought that, by reason of the fluctuations in the plaintiff's mental state, one could not rely upon her consistently making good decisions from day to day about financial matters. She expected that it would be "extraordinarily difficult" for her to check up, or to keep a track on specific things that were being done in this regard. There was a difference, Dr. Lahz thought, between the plaintiff being able to pay day to day bills, and to deal with minor matters, on the one hand, and being able to manage and invest a large sum of money so as to provide for her long term future. 517 Professor Yeo similarly thought it inappropriate and impractical to expect the plaintiff to manage the fund which would be available and needed for her future support, in the event of her success in these proceedings. As a tetraplegic, he expected her to "drift in her concentration and attention". This related to the low blood pressure, as well as the fatigue which are associated with this condition. 518 In this regard, as appears from the cross examination, he also paid attention to the plaintiff's communication difficulties, which are significant. 519 Sister Monaghan, who noted that the plaintiff had a tendency to not be alert when stressed as well as having a difficulty in communicating with people who were not familiar with her, said that she had experienced a wish to be involved in the financial management of the damages, and in particular to do so by way of a computer. It was her apparent desire to be in control of her own life. The ability for her to take some control of her affairs, Professor Yeo agreed, would enhance such residual capacity as she had to enjoy her life. However, this, he made clear, was always subject to her having appropriate advice and assistance, otherwise she risked losing the fund established for that purpose, and of being thrown onto a pension, at which time she would be unlikely to survive for long. 520 The principles according to which the cost of funds management may properly be awarded by way of damages have been the subject of consideration in GIO of New South Wales v Rosniak (1992) 27 NSWLR 665, and more recently in Nominal Defendant v Gardikiotis (1996) 186 CLR 49. 521 As was pointed out by Brennan CJ, Dawson, Toohey and Gaudron JJ at 52, and by McHugh J at 57 in Gardikiotis the entitlement to an award under this head depends upon proof that, as a result of physical or intellectual disabilities caused by the defendant's negligence, the plaintiff will incur additional expense in managing her affairs. It is not sufficient to show simply that there is a fund, even a substantial fund, provided by way of damages for the injury. This is a consequence of causation theory. 522 The question whether the need arises from the accident is, as the majority pointed out, essentially one of common sense; it is not a question to be answered by application of the "but for" test. 523 Gummow J at 66 cited, as a correct representation of the law, the statement of principle by King CJ in Campbell v Nangle (1985) 40 SASR 161 at 192: "It seems to me that the principles of the law relating to damages for tort require the inclusion in an incapacitated plaintiff's damages of the amount which he will be required to pay to a manager by reason of his incapacity. A plaintiff is entitled to recover the loss caused by the tort. The fundamental principle upon which damages are assessed is the principle of compensation that the plaintiff is to be placed, so far as possible, in the same position financially as he would have been if he had not sustained the wrong for which he receives the damages. The capital sum awarded to him is computed upon the basis of an assumed real return from its investment. If the plaintiff has been rendered by the wrong for which he recovers damages incapable of managing his affairs so that the fund resulting from the damages must be managed for him, the fees payable to the manager will reduce the real return from its investment. Unless an amount is included in the damages to compensate for those fees, the plaintiff will not receive the full restitution to which the law entitles him. It seems to me that the liability for the fees is a loss flowing directly from the wrong and is recoverable as damages caused by the wrong. I should say for the sake of completeness that the same is true, in my opinion, where the plaintiff's incapacity to manage his affairs does not result from the wrong but is antecedent to it, being the result of legal disability or some other cause." 524 So far as Dr. Lahz and Professor Yeo concluded that there was a need for an allowance under this head, by reason of an assumption, either that the amount of money potentially available for investment was, of itself, such as to provide a warrant for specialist assistance or protection, or that the management needed would call for constant investment switching or getting out and about to monitor stock prices and to inspect properties, then their opinions need to be qualified, as they would have proceeded upon an incorrect premise. However, their observations concerning the factual impact of the plaintiff's reduced capacity, by reason of her accident, both emotionally and physically, to become effectively and appropriately involved in the safe management of the invested funds, remain relevant. 525 The various considerations which they mentioned along with the plaintiff's extreme immobility, her confinement to a bed or wheelchair, her inability to write and to communicate with any facility, along with her tendency to depression and emotional lows are, in my view, properly to be considered direct sequelae of the accident. 526 The case is accordingly proper for an application of the principle discussed in Gardiokitis, subject to quantification of the extent to which there is a need for management causally related to these circumstances. The need to make suitable allowance where there has been a partial, but not a complete interference with the capacity to manage the fruits of an award of damages, was acknowledged by Gummow J, at 69. 527 It was agreed by all parties that if the plaintiff was entitled to total funds management, then the amount to be awarded would be in accordance with the rate as set out by the Public Trustee (Ex D pages 170 to 171), relevantly as follows: "Payment of Personal Bills At the convenience of the Trust Beneficiary and guardian the Public Trustee could arrange payment of personal bills possibly by way of a separate account at the local bank with an initial deposit and then maintained on the imprest system with recoups to be arranged on receipt of details of expenditure. This arrangement would be considered on an individual case basis as it is not a normal occurrence. Tax Returns The Public Trustee would attend to the preparation and lodgement of tax returns. Fees for this service are on the basis of an investigation fee of $39 per hour plus a fee of $39 per hour for preparation and lodgement of return. Charges All charges are set by regulation. The following is a summary: (i) Capital commission, a once only charge for the duration of the Trust, would be the following rates: on the first $100,000 -4% on the next $100,000 -3% on the next $100,000 -2% On all in excess of $300,000 -1% If appropriate the Public Trustee's commission may be 'split' over a period of years to maximise income from the Trust. (ii) Income Commission - on all income received including interest credited from the Common Fund 5.25% except for rents which are collected by Managing Agent in which case the commission is reduced to 2.5%. (iii) Administration fee - $24 per annum (iv) Out of pocket expenses including postal, telephone, etc would be in addition to the prescribed charges mentioned above. (v) The above fees and charges cover the basic trust management fees. If the Public Trustee is ever required to become involved in litigation or legal expenses, including conveyancing, on behalf of the Trust Beneficiary, the Public Trustee is entitled to be reimbursed for such expenses incurred bona fide for the benefit of the Trust Beneficiary." 528 The plaintiff did not develop a submission as to the precise amount which should be allowed, by reference to an application of these rates to the sum available for investment, particularly that which is expected to meet recurring expenses or losses on a diminishing basis, through an application of capital and interest, in accordance with the principles established in Todorovic v Waller (1981) 150 CLR 402. 529 The defendants accept that there will be some expense consequent upon the injury, but dispute that the sum to be awarded is as extensive as that contended for by the plaintiff which, it was submitted, assumed a need for aggressive and vigilant management including frequent trading in shares and securities, the switching of investments, and the like. 530 That assumption, they correctly submitted, is not the basis upon which the 3% discount rate for future losses is predicated. As was pointed out in Todorovic (which the High Court declined to reconsider in Rozniak v Government Insurance Office of New South Wales, when refusing special leave), it is premised on "a speculation free model" (per Stephen J at 436) or on "such investments as loans issued by Public Authorities … or debentures issued by large well established industrial companies" (per Gibbs CJ and Wilson J at 415), or on "the rate of interest available on government loans or some suitable investment" (per Brennan J at 477). 531 The management expense to be incurred and recouped, accordingly is that which is needed to secure regular income from non equity, risk-free investments, and that which will allow some draw down of capital, so as to meet the recurring expenses or future losses, but which does not contemplate an objective of securing capital growth through speculative or aggressive investment strategies. Necessarily, the fund invested will be net of any amounts repaid to the Workers Compensation Insurer and to others, for past losses, and of any amounts applied in the immediate acquisition of capital assets such as housing, equipment, and a motor vehicle, and any necessary modifications thereto. 532 In assessing the extent to which the plaintiff will need assistance, it is proper in my view to pay some regard to Sister Monaghan's view (shared by Dr. Lahz) that she could, successfully, in her own interest, attend to some aspects such as paying cheques, and could also participate, with appropriate advice, in some management decisions. In this regard, there is no clear indication of her intellectual capacity having been reduced to any appreciable extent by the accident. She remains able to participate in some recreational activities of a cerebral kind, and she is apparently considered able to undertake some limited TAFE studies, and to use a computer once it is provided. Moreover, a sum has been agreed for the cost of a co-ordinator to assist with the procurement and management of the specialist medical and related services which the plaintiff needs (as well as their updating). 533 The defendants submitted that additionally the plaintiff was entitled to look to her various carers, including her medical practitioners and registered nurses and so on, for guidance and protection from exploitation. While it may be conceded that ethical duties do attach to these positions, it is not their proper role to become involved in the management of the plaintiff's financial affairs. To do so would be potentially to raise a conflict of duty and interest, and to expect of them expertise in an area of skill which they do not posses. This submission I disregard entirely. 534 Otherwise, it appears to me that the defendants' submissions have weight, and that the plaintiff does not fall into the category, for example, of a severely brain damaged patient, for whom an allowance for full fund management should be made. On the contrary, the need, in her case, is for a reasonable allowance for the initial creation of an investment plan involving the moneys left, after the necessary immediate outlay, accompanied by ongoing review and advice on a bi-monthly basis. The initial set up will require the services of a suitably qualified investment adviser and legal adviser. Review will require consultation with an investment adviser and accountant. 535 Additionally, the plaintiff will need ongoing assistance from the accountant with the preparation of her income tax returns, and of the periodic statements which are now required under Australian tax law, since they will necessarily be significantly more complex than those required of the PAYE taxpayer which she would otherwise most likely, have been. In this respect, the complications of communication and writing difficulties quite apart from the complexity of the documentation, justify an allowance for such an expense. 536 Otherwise, as I have observed, I see merit and benefit in preserving for the plaintiff some say in relation to her affairs, including attention to recurrent domestic accounts which could be attended to under her supervision, particularly via electronic banking. 537 The evidence is, at this stage, incomplete as to the final amount which is likely to be available for investment, and as to the costs of the kind of management which I consider justified. Moreover, the submissions on both sides of the record in relation to this head of loss, depend to some extent on the findings as to life expectancy, and in any event, were more directed to the matter of broad principle than to an actual calculation. 538 I therefore propose to reserve further quantification of this head of damage so as to allow the parties to provide such further evidence or submissions, as they may consider appropriate, in the light of the conclusions which I have reached. Absent agreement or further submissions, I will make an assessment, as best as I can, noting at the moment, that the amount contended for by the plaintiff would seem to be excessive, in so far as it would sound in a sum in the order of $1.3m, while that contended for by the defendants, when extended over the remaining life expectancy of the plaintiff, in the order of $110,000 would appear insufficient. 539 That this last mentioned sum is inadequate, is supported by the circumstance that, being unable to articulate clearly, or to be understood except by those who have a close association with her, telephone communication is next to impossible for the plaintiff, although internet banking would seem to be available. The other significant difficulty in reserving any substantial management role for herself relates to the everyday stresses which leave her easily exhausted, and which occasion difficulties in concentration and emotional stability.

6. General Damages 540 I have sufficiently recounted earlier the devastating and far reaching consequences of the accident for the plaintiff. These consequences were sustained at an early age, and they will endure, without any prospect of improvement, for the remainder of her life. The interference with her enjoyment of life and amenity is as extensive as it could be, and she is fully aware and conscious of it. These damages are to be assessed in accordance with the principles considered in Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 119, and in particular are to constitute fair and reasonable compensation for the injuries received and the disabilities caused, which is to be proportionate to the position of the plaintiff. 541 It was submitted, on her behalf, that the award should be in the range of $500,000 to $600,000, of which 35% should be apportioned to the past. The defendants submitted that the award should be in the range of $375,000 to $400,000, of which 20% to 30% should be apportioned to the past. 542 In my view, so far as any monetary award can compensate the plaintiff in relation to this head of loss, it should be assessed in the sum of $420,000. Of that sum, for the purpose of assessment of interest, I apportion 30% or $126,000 to the past. Although, I am mindful of the fact that the loss will be suffered for a longer period into the future than for the past (now almost 5 years) I consider it fair to regard the initial period, when the enormity of the consequences of the accident came to be experienced and appreciated, and when adjustment to a new life had to be made, as significantly more traumatic.

8. Summary in relation to Damages 543 Having regard to the need to update the losses as at the time of judgment, it is convenient to record the basis for calculation, as found by me, and to require the parties to bring in short minutes to reflect those findings (excluding that brought against QBE, which is still reserved). 544 In summary, therefore, I assess damages on the following basis: a) General Damages (assessed) $420,000

b) Interest on past general damages of $126,000 at 2% p/a from 27/2/97 to date of judgment (to be calculated as at Judgment date)

d) Interest on past economic loss (as agreed at trial) $6,600

e) Future economic loss (as agreed at trial) $454,708

f) Loss of past superannuation (as agreed at trial) $4,462

g) Loss of future superannuation (as agreed at trial) $386,045

h) Past out of pocket expenses (as agreed at trial) $1,813,856.60

i) Case Co-ordinator (agreed at $180 per week until age 65 years (to be calculated at judgment date)

j) Full time (24 hr) Registered Nurse (Agreed at $6,375.84 per week until age 65 years) (to be calculated at judgment date)

l) Additional carer to assist registered nurse (agreed at $817.88 per week until age 65 years) (to be calculated at judgment date)

m) Third nurse for tracheostomy change, domestic assistance, home maintenance and van driver (agreed at $514.50 per week until age 65 years) (to be calculated at judgment date)

n) Gratuitous past domestic assistance (as agreed at trial) $75,570

o) Future gratuitous domestic assistance (Agreed at $200 per week until age 65 years) (to be calculated at judgment date)

p) Future Equipment requirements (agreed at $1,140.50 per week until age 65 years) (to be calculated at judgment date)

(agreed at $100 per week until age 65 years) (to be calculated at judgment date)

s) Annual allowance for computer (agreed at $250 per week until age 65 years) (to be calculated at judgment date)

u) Annual Allowance for Environmental Control Equipment

(agreed at $100.54 per week until age 65 years) (to be calculated at judgment date)

w) House Maintenance (agreed at $145 per week until age 65 years (to be calculated at judgment date)

(agreed at $34.70 per week until age 65 years) (to be calculated at judgment date)

y) Future consultations with other professional health carers (agreed at $72.79 per week until age 65 years) (to be calculated at judgment date)

z) Medications Agreed at $73.66 per week until age 65 years) (to be calculated at judgment date)

a) Annual holiday for plaintiff and carer Agreed at $250 per week until age 65 years (to be calculated at judgment date)

ac) Funds Management Reserved for further submissions 545 I deliver these reasons in advance of entering judgment to enable the parties to confirm the correctness of the agreed figures, to bring in short minutes that will reflect the findings made, to update any of the figures which may have changed since the time of trial, to provide for any order which may be necessary for payment out to third parties, and to allow the parties, to direct attention to such orders as should be made in relation to the cross claims between the Council, the RTA and Pioneer. 546 I reserve, in case it be necessary, in the light of my findings as to the cause of the accident, any further questions relating to the cross claim between Pioneer and QBE. I grant the parties leave to supply any further submissions which may be necessary in that regard. 547 I reserve all questions of costs of the proceedings and cross claims for further consideration, upon a date to be fixed. **********

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