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.