Pearson v Sutherland Shire Council

District Court of NSW|2009-11-30

For the reasons I have set out in my findings, I have found that the defendant owed a relevant duty of care both to Mr Goodwin and to the plaintiff, I have found that the defendant was in breach of that duty and I consider that the plaintiff has relevantly satisfied the requirements of the Civil Liability Act 2002 concerning the foreseeability of harm in issue, the duty of care owed and its breach as well as causation of damage. I have found that there was no contributory negligence on the part of Mr Goodwin in respect of the circumstances that led to his death. I find the defendant has failed to make good its claimed defences raised pursuant to the Act. I have assessed the plaintiff's damages for pure mental harm or nervous shock in the amount of $362,420. I have assessed the plaintiff's damages pursuant to the Compensation to Relatives Act 1897 in the amount of $473,897. These damages assessments amount to a total of $836,317. The plaintiff has acknowledged that she cannot obtain a judgment in excess of the jurisdictional limit. The plaintiff is therefore entitled to a judgment limited to the amount of the jurisdictional limit of the court for such cases, namely, $750,000.

In the paragraphs that follow I set out a summary of the oral evidence given by the various witnesses. Where relevant, I have also included references to any documentary exhibits that related to the evidence of those witnesses.

Between 2003 and July 2005 the plaintiff Mrs Janis Pearson had rented a house at 18A Simpson Road. In that period she had observed that the northern part of Simpson Road had a steep embankment on the western edge of the roadway and the road itself had a steep cross-slope. She had on occasion observed the vehicles of visitors to the area becoming "stuck" following unsuccessful attempts at turning their vehicles around as Simpson Road was a cul-de-sac and it had no turning circle. On occasions she had also observed a neighbour, Mr Bell, use a winch device to haul and tow such "stuck" vehicles to safety after they had lost traction on the western edge of the road.

The plaintiff gave evidence of a telephone complaint she had made to the defendant council on 30 June 2004. Exhibit "G" which included a council generated customer request for maintenance service form or CRMS. That document contained a record of the council's description of the plaintiff's complaint in the following terms: "Concerned cars may go over the embankment, which has been eroding for the past 12 months. Disused pipe goes across the dirt road, which is now totally exposed on one side and still eroding on the other. Very steep, so that once car is committed, must keep turning. If traction is lost, will easily go over embankment. (low gravel road). Other side is national park."

In a statement given to the police who investigated the circumstances of Mr Goodwin's death, the plaintiff described how, on 10 July 2005, which was the day before the incident in which her son died, she had driven the vehicle in question on Simpson Road when a mechanical problem had occurred. This caused her to leave the car parked on the roadway to wait for her son to deal with the problem later. She then described the events that followed on the day of the incident in the following terms: "On 11 July 2005 I got up at about 8am, I had a cup of tea with Shane. Shane and I started talking about the car. I had trouble with my car when I was driving back from Sutherland. The car's engine was surging, I thought it might have had a fuel blockage. On my way home I decided to leave the car parked just down the road as I couldn't get it to go any further. I wanted to get Shane to have a look at it. I left the car just at the bottom of Simpson Road. My car is a white Jackeroo 1991 model. I can't remember the registration number and the car is not insured."

The plaintiff described the events leading to the death of her son in the following terms: "Q. Before Shane did anything to his vehicle on this date do you know where it was parked? A. It was parked at the bottom of the road because I had parked it there.

Q. Did you see where Shane went when he left the house on that day or not? A. No. I knew he was going to bring the vehicle up and turn it around and do whatever he wanted to do to it, whatever, I don't know what he was going to do to it.

Q. So did Shane leave the house with that intention as you understood? A. Yes he did.

Q. Some time after that did something come to your attention? A. I went down and - to go down to him to tell him I was going down to the village to pay the rent and when I came from the house I - all I could see was four wheels of his vehicle over the bank. Q. At what point, in relation to the top of that steep, sloping section was the vehicle? Was it past that? Was it at the top of that sloping section or was it up further towards Paddy's? Where was this? A. It was about - I don't know. It was not that far - well it was, it was a little ways from where the seal had stopped and it was probably about another ten feet down, ten or twelve.

Q. Towards Paddy's? A. Towards Paddy's place, yeah.

Q. And immediately above where you saw the vehicle, was Simpson Road sealed or was it gravel? A. It was gravel.

Q. So when you saw the vehicle with its wheels, was it on its side or upside down? A. Upside down."

The plaintiff described how she then hurried to the overturned vehicle and endeavoured to assist her son: "Q. What did you do at that point? A. I raced down the bank and tried to get to him.

Q. Could you see where Shane was? A. I could see part of him.

Q. Where was that? A. I could see part of him by the front seat.

Q. But only part - he wasn't sitting in the car? A. No.

Q. And was he - where was the car in relation to his body? Was the car on his body? A. Yes.

Q. Was he conscious or not, could you tell? A. He was unconscious. His head was still warm but his warm but his arm was cold when I reached.

Q. Did you try and do something then? A. I tried to - I don't really know what I was doing, to be honest. I just needed to get to him and then I realised that I couldn't, on my own, so I raced up the hill and phoned the guys at the garage and they came down to try and help me and they couldn't help, so they called the emergency services, then Mark came down before that, yeah.

Q. Is that Mark Wilson? A. Mark Wilson, yeah.

Q. In the meanwhile, did you try and do something to get to Shane? A. Yeah, I was trying to get to the windscreen so I could touch him and I couldn't break it with the rocks because the rocks are all pumicey, they're very soft and I had to go and get the hammer and break the screen. Then I managed to break the screen and that was when I felt his head and his hand."

The plaintiff said that she realised her son had died when she noticed that an emergency helicopter that was approaching the scene had changed its course on its approach and did not land at the scene. An ambulance later took her to hospital for medical attention. In the hours that followed these events the plaintiff said she felt numb and said she was in disbelief.

On the morning of 11 July 2005, on the last occasion when the plaintiff had seen her son before his death, she had observed from a distance that he and Mr Bruce, a neighbour, were using a rope to try to turn Mr Goodwin's vehicle around from the position at which it was located at the top of the hill straddled across Simpson Road with the front of the vehicle facing towards the embankment on the western edge of the roadway. She saw that they were trying to pull the vehicle away because the vehicle had "reached the point of no return on the road.".

The plaintiff did not see the events in which the vehicle or Mr Goodwin proceeded to travel down the embankment. Neither did she see how Mr Goodwin came to be positioned in the way that she had subsequently found him, shortly before his death.

It was the plaintiff's recollection that at the time of her son's death, at the point on Simpson Road where the vehicle had left the roadway and travelled down the embankment, there was no road seal of any type on the surface of the northern section of Simpson Road. Later in the trial, on behalf of the plaintiff, that recollection was ultimately conceded to be incorrect. It was conceded that there was a form of bitumen sealant on the road surface at the point where Mr Goodwin's vehicle had left the roadway. In my view, for the reasons I shall set out in stating my credit findings, I consider that nothing of significance turns on the plaintiff's mistaken recollection in that regard.

Mr Mark Wilson was a neighbour of the plaintiff. He has lived at 22 Simpson Road, Bundeena since 1983. His property is on the upper level of Simpson Road which splits from the lower level on which the accident occurred and was at a fork in the roadway some distance south of the accident scene. At the time of the hearing Mr Wilson was a currently serving senior fire fighter employed by the NSW Fire Brigade. He had participated in the attempt to rescue Mr Goodwin. He identified the accident scene by reference to the photograph that comprised Exhibit "2" to indicate that the point where Mr Goodwin's vehicle had left the roadway and went down the embankment, was a short distance north of the carport located outside 16 Simpson Road, as is seen in Exhibit "2".

Mr Wilson described an earlier event that occurred in 1986 which involved a partial collapse of land above Simpson Road and which resulted in the road being blocked from use for a time. Subsequently, the defendant council carried out substantial road works over the course of about a year. This included some paving of the road surface and the erection of some nearby guardrails but not along the entire length of the roadway. The erected guardrails stopped some distance south of the plaintiff's residence, and well south of the accident scene.

Mr Wilson described his observations of the traffic volumes on Simpson Road. He stated that, midweek, and even on weekends in winter, around 20 vehicles per day would use the northern section of Simpson Road. He said that on weekends in summer, traffic volume on that road customarily increased to as many as 150 vehicles per day as motorists attempted to seek vehicular access to Bonnie Vale Recreational Area or to the nearby waterfront whereas in fact, Simpson Road did not provide any direct vehicular access to Bonnie Vale or to the waterside. He described how persons attempting to obtain such vehicular access would either park in Simpson Road or turn their vehicles around in order to find alternative access to those areas. He confirmed that along its length, Simpson Road had no provision for vehicles to turn around, other than on the narrow road surface itself. At the time of the accident there were no advisory signs to warn drivers that the road did not provide vehicular access to the park or the water.

Mr Wilson stated that he knew of instances of vehicles "going over the edge" of Simpson Road. He said he had witnessed three such incidents before Mr Goodwin's death. He also described how, following the construction of sewer works in the area in 2001, these works had resulted in substantial damage occurring to various parts of Simpson Road, including to the northern section. He said that little or no rectification work had been carried out by the defendant after the sewerage authority had completed its work. However, he agreed that after the 2001 works had been completed the road was "tarred".

At the time of the incident in question Mr Wilson was at home. After the accident he went to the scene and he observed Mr Goodwin's vehicle which was then located at the bottom of the embankment. He also identified the location on Simpson Road at which Mr Goodwin's vehicle had left the roadway in its course of travel down the embankment. He described the road edge at that place as "loose vegetation and rubble, boulders and … quite unstable … probably gravel and dirt to the edge, with some grass and weeds and minor vegetation". These quoted observations of Mr Wilson appear to be consistent with Exhibit "3" which comprised the photograph of the accident scene taken on 11 July 2005 although I observe the caution concerning the difficulty interpreting photographs.

Mr Wilson described the observations he had made at the scene as to the position of Mr Goodwin's body as he had seen it after the incident. He said he observed that Mr Goodwin's head and torso were in the driver's area of the cabin of the vehicle from the chest up, whilst his legs were pinned by the vehicle, being located between the open driver's door and the doorsill of that door.

Mr Wilson described the topography of the lower track of Simpson Road in the region of house numbers 18 to 20 as follows: "Q. 18 to 12? A. Yes.

Q. And you saw some paving on that track as well? A. I believe it went to just below our carport, perhaps another five or ten metres, but I'm not certain of that.

Q. To your knowledge, did it go to number 18? A. No.

Q. Now can you describe, by reference to what you've called the lower track? A. Yes.

Q. The topography of the area around the lower track? A. The slope, as I've stated, varies from 20 degrees to, in places as steep as 50 degrees off the vertical. It's heavily forested with sub rainforest. Trees up to 80 to 90 feet high, with quite an amount of lantana and other weed and vegetation mixed in amongst it. There are extremely steep banks at various points along the track from the western side and on the eastern side uphill, again a variety of vegetation, mostly on the smaller side on the uphill side.

Q. Now travelling north, the western side is downhill, is that right? A. That's correct, yes.

Q. When on leaves the lower track, as you've described it? A. Yes.

Q. How steeply downhill is it? A. In parts it's near vertical. In other parts it would be 20, 30, 40, 50 degrees. Just depends on varies quite an amount as it's a slight curvature around to the north east, so it's running across the edge of a ridge and a point running out to the cliff lines on the sea.

Q. And on the eastern side of the lower track? A. Yes.

Q. How steeply uphill is it? A. If you walk uphill, anything from five to 20 metres, there is a cliff line running pretty much uninterrupted across the entire length of Simpson Road. Anything as high as 10 to 15 metres high, depending on where you hit it."

Mr Wilson was careful to state that he was unsure as to whether that section of roadway where Mr Goodwin's vehicle had left the roadway was sealed with tar or comprised just road base at the time of the accident. If it was sealed he was not prepared to venture a guess as to the extent of any such seal.

Mr Patrick Bell, a neighbour, has lived at 12 Simpson Road, Bundeena since 1973. He stated that on numerous occasions before Mr Goodwin's death he had been called upon to use his chain block and tackle equipment to assist stranded motorists whose vehicles had lost traction either on or over the edge of the northern section of Simpson Road. Mr Bell estimated that he was called upon to render such assistance at least two or three times per year. Mr Bell agreed that there was a seal on the relevant portion of the roadway but he was uncertain as to when that seal had been applied.

Although Mr Bell recalled only one previous occasion on which a vehicle had gone over the embankment and down onto the track below; he recalled that many other vehicles "got themselves so far over [the road edge] that they didn't have any traction to get back" so that these vehicles had either a wheel or a number of their wheels off the roadway when they had got into such trouble.

The section of Simpson Road on which Mr Bell had occasion to use his block and tackle to assist motorists in difficulty included the part of the roadway where the accident had occurred.

Mr Bell described how, after Mr Goodwin's death, a Telstra vehicle that came to Simpson Road in order to provide service to Mr Bell's property was found over the edge of the roadway, "precariously balanced on a loose rock".

Mr Bell gave evidence about his correspondence with the defendant council as to the state of the roadway. He had sent letters to the council on 6 June 2001 and on 8 February 2004. Both of these letters form part of Exhibit "G".

Mr Bell's letter dated 6 June 2001 to the defendant referred to the "unsafe" access provided to his property by the northern section of Simpson Road. Mr Bell's property is the last or most northern property on that section of roadway.

Mr Bell's letter dated 8 February 2004 to the defendant is particularly pertinent. The relevant parts of that letter are as follows: "I would like to draw your attention to the neglected and dangerous state of the North end of Simpson Road. No. 8 → 18 are effected (sic). The track is so rutted that it is all but impassable for light vehicles. Because of the ruts, vehicles are forced onto the shoulders of the track. On occasions cars have rolled over this shoulder and have had to be winched out. The shoulder itself is unstable … Perhaps it is time for the council to assume responsibility for the road and design and effect a solution to the problem"

Following Mr Goodwin's death Mr Bell wrote to the defendant council again on 12 August 2005. That letter comprises Exhibit "L". The primary significance to the present case of the existence of that letter and the receipt of that letter by the defendant is that notwithstanding the receipt of the letter by the defendant council, it became apparent that the occurrence of the incident which claimed the life of Mr Goodwin had not been recorded on the council's accident "database". The council had apparently considered the content of the database to be relevant to any decision to be made by council to undertake road safety works on that road. This raised questions as to the accuracy of the database.

Mr Neil Porter, a neighbouring resident, has lived at 16 Simpson Road for 30 years. He is the owner of the carport outside his property. That carport is shown in the photograph Exhibit "2".

Mr Porter had sent several email communications to the defendant council on 27 January 2004 and again in March 2004, expressing concerns on behalf of the residents of the northern section of Simpson Road as to the state of the road. In oral evidence he described the road after its reinstatement by Sydney Water in 2001 as being a sort of dirt road, not a made road. Mr Porter confirmed that subsequently, in July or August 2004, the council, applied some form of road seal to that section of Simpson Road. He described that work as comprising some form of grading and then steam-rolled with bitumen. Mr Porter described the seal, as shown in the photographs Exhibit "4" and Exhibit "2", as comprising a non-smooth bitumen surface with protruding pieces of blue metal that interrupted the smoothness of the road surface. Shortly after these works were completed Mr Porter was sufficiently grateful that the surface of the roadway had finally been "upgraded" after what was described as 25 years of inactivity by the defendant council, that he forwarded a congratulatory email to the council on 16 August 2004. That correspondence is part of Exhibit "G".

Mr Porter observed that, before the work was done, the roadway in question was in a very poor state and in his opinion, it was close to being undriveable.

At the time of Mr Goodwin's death Mr Porter was overseas. He confirmed that in his view the state of the road surface in Simpson Road, after the works carried out in August 2004 was as is shown in the photographs comprising Exhibits "3" and "4". His description was that the road surface was not a smooth bituminous surface, and in particular, the edge was not smooth. The terms of Mr Porter's description of the work did not extend to a precise description of the type of bitumen seal applied to the road in 2004. It was evident that not all of the road area was "sealed" in August 2004 and that some areas of the roadway had remained unsealed, for example, the area next to Mr Porter's carport as shown in Exhibit "2". Mr Porter described the strip of bitumen seal, which was laid on the roadway in August 2004 as being "one car width".

It was plain that Mr Porter's use of the road was not affected by the difficulty in turning his vehicles on the northern section of Simpson Road because he had the benefit of a double carport, the existence of which made the manoeuvring, turning and parking of his vehicles much easier.

Another neighbour, Mr Christopher Bruce made a witness statement to the investigating police on 12 July 2005. That statement was tendered in the defendant's case as Exhibit "12". Mr Bruce apparently declined to give evidence at the hearing. This was evident from his mobile telephone communications with the solicitor for the defendant which made it plain he did not want to disclose his address for the purpose of service of a subpoena. His statement to the police was ultimately admitted as a business record without objection.

In his statement Mr Bruce said he had lived in Simpson Road for around nine years prior to the death of Mr Goodwin.

At paragraph 4 of his police statement Mr Bruce said he had personally witnessed two other vehicles go over the embankment before Mr Goodwin's death. Those incidents had apparently occurred before the defendant had applied a temporary seal to the road surface in August 2004.

In his statement Mr Bruce described his pre-incident attempts to assist Mr Goodwin on the morning of 11 July 2005. That assistance involved attempts to try and turn Mr Goodwin's vehicle around on the northern section of Simpson Road because it would not start and Mr Goodwin wanted to coast the vehicle down the hill to a nearby service station. Mr Bruce's statement describes how, on the day of the incident when he first went to assist, Mr Goodwin's vehicle was parked across the roadway, facing towards the embankment. He described how he took a length of rope from his car and tied it to the tow bar of Mr Goodwin's vehicle and then attempted to pull Mr Goodwin's vehicle around, but this was unsuccessful in turning the vehicle. Mr Bruce stated that he had an appointment he had to keep and so he could not assist further at that stage. According to Mr Bruce, before he left to keep his appointment he said he had asked Mr Goodwin "on two or three occasions, not to do anything with the car by himself, because I had seen cars go over the edge before".

Several hours later Mr Bruce returned to the scene but by then the accident in question had already occurred.

In his statement Mr Bruce said that whilst he was still at the scene assisting Mr Goodwin, the vehicle was located wholly on the sealed surface of the road. According to the statement of Mr Bruce : "When I left Shane, his car was still about three or four inches still on the bitumen". In his statement Mr Bruce also conceded that Mr Goodwin's vehicle "was close to the edge".

On behalf of the plaintiff it was submitted that the weight to be given to Mr Bruce's statement is somewhat diminished by the fact that he declined to make himself available to give evidence and to be cross-examined. In particular the plaintiff draws attention to that part of the statement concerning Mr Bruce's parting conversations with Mr Goodwin and states this should be given no weight because the assertions cannot be tested. The possibilities are that those conversations either did occur in the terms stated by Mr Bruce, or did not occur at all, or did not occur precisely in the terms stated. The plaintiff has submitted that by the content of his statement, and for whatever reason, Mr Bruce may well have been attempting to exculpate himself, or to assuage the guilt he may have felt after Mr Goodwin's death because he had deferred continuing to provide further assistance and had left Mr Goodwin at the scene in order to keep an appointment.

The plaintiff also draws attention to Mr Bruce's stated recollection as to the position of Mr Goodwin's vehicle on the sealed surface and submits that this evidence may also have been found wanting, had cross-examination of Mr Bruce been possible. The plaintiff also points to the need for elucidation of Mr Bruce's statement of his observation that Mr Goodwin's vehicle "was close to the edge …".

Mr Nigel McDonald, an expert civil engineer, was called by the plaintiff. Mr McDonald's reports dated 1 June 2009 and 5 November 2009 were tendered as Exhibits "B" and "C".

For the purposes of his report, Mr McDonald undertook an analysis of the circumstances of the incident whereby he assumed that, before the incident, Mr Godwin had been unsuccessfully attempting to turn the vehicle around from a north facing position on a narrow section of Simpson Road at a point where the western edge of Simpson Road sloped steeply away towards a very steep embankment. He also assumed that Mr Goodwin had managed to turn the vehicle to face west and across Simpson road but that he was thereafter unable to move the vehicle from its position which was then in close proximity to the western edge of Simpson Road which sloped away down the embankment. He also assumed that the vehicle later toppled down that steep slope, carrying Mr Godwin with it in the process, with the result that when the vehicle came to rest, Mr Godwin had been crushed by the vehicle.

Before arriving at that analysis Mr McDonald examined the material identified in his first report and he also visited the accident scene on 31 March 2009 to take measurements and to take photographs. The observations made by Mr McDonald are recorded at paragraphs 3.5 to 3.14 of his first report.

Mr McDonald described the roadway as comprising a single lane north / south roadway with a total width of 7 metres for vehicle manoeuvring which included a 3 metre wide traffic path. The road had incorporated within its surface what Mr McDonald described as a cross slope of approximately 12 per cent towards the edge of the roadway sloping towards the adjacent embankment. This section of roadway was without guardrails. The appearance of the road surface on the occasion of Mr McDonald's inspection in 2009 was different to that which as described by the lay witnesses as at 11 July 2005.

Mr McDonald was required to make a number of assumptions as to the state of the vehicle involved in the incident. These assumptions were that the vehicle was not mechanically operating at the time of the incident and had slipped rather than rolled down the embankment, thereby knocking over an in situ roadside guide post in the process and then coming to rest further down the embankment on its off-side, with the key remaining in the ignition, the handbrake on and the vehicle being in gear. He also assumed that immediately before the vehicle went down the embankment, Mr Goodwin was located outside the vehicle and beside the drivers' side with the door open when he was carried down the embankment. These assumptions were inferred from the police documents and photographs.

From his consideration of the matters he had assumed, as well as from his own observations of the topography of the accident scene on the occasion of his inspection, Mr McDonald concluded that at the accident scene, Simpson Road was a high-risk environment for road users. He came to this conclusion on account of his assessment of the independent operation of a number of factors.

Those factors were first, that Simpson Road was in close proximity to a large unprotected embankment that fell away immediately beside the vehicle travel path on the road, secondly, the likelihood that vehicles would need to manoeuvre in a confined space to turn around near the large drop-off, including the likelihood that the vehicles of residents would be manoeuvring in close proximity to the drop-off and thirdly, because the nature of the road, being a poor low friction surface which was sloping away from the horizontal plane, notably towards the drop-off. These factors led Mr McDonald to the view that there was significant risk in the use of the roadway. He pointed to the fact that despite these factors there was no edge protection on the roadway other than a guide post positioned at the edge of the embankment. He also expressed the view that the nature of the risk at the location had been increased due to disruption of the road surface due to sewage works carried out in approximately 2001.

Mr McDonald described the roadway in question as being a roadway intended for low speed traffic use but the roadway was not low risk in its use because the narrowness of the road space available and the extended distance of the access road made it inevitable that local residents and other road users would be required to manoeuvre in a limited space when parking or changing direction and exiting Simpson Road. He pointed to the fact that the slope of the road was about 12 per cent compared to a typical cross-fall of about 3 per cent. He described these factors as being circumstances that would allow a vehicle to move over the edge and slip down the embankment from a notable height. He drew attention to the fact that the commonly encountered vehicle turning manoeuvre, namely a three point turn, was unlikely to be achievable within the area of the 7 metres of available road space at the scene.

Mr McDonald stated that the implementation of safety treatment of the area was warranted to minimise the risk of vehicles passing over the embankment, noting for comparison purposes, that the defendant council had previously treated lesser risks located further south on Simpson Road by installing crash barriers that would serve to prevent any vehicular passage down the embankment. That area involved a much smaller drop-off and a shorter access road. In Mr McDonald's view, the defendant should have either installed low cost barriers to keep vehicles away from the edge or considered closure of the relevant portion of Simpson Road until safety treatment of that nature could have been undertaken.

In giving consideration to the approach to be applied to the design of some form of safety barrier Mr McDonald noted that the provision of a full crash barrier was not necessarily required. In that regard he identified the other options as being the installation of a chain wire fence, a fence/handrail arrangement or the installation of a length of kerb as being appropriate treatment to provide a visual reference. He also suggested that it would have been desirable to seal the surface of the relatively short distance of the roadway.

In approaching his analysis Mr McDonald made reference to the Australian Standard AS2890.1:2004 as being an appropriate reference point to aid the process of selection of an appropriate physical barrier. In doing so he thought that the applicable considerations for car park safety represented an appropriate analogy. He explained that the car park analogy provided a useful benchmark for a consideration of safety issues at the site because of the likelihood of vehicles manoeuvring there at low speed and because there was a change in height of 0.6 metres or more between levels. I infer from the context that he was referring to changing height levels of the roadway associated with the cross-slope on the roadway. He thought that a barrier would be a sufficiently durable installation to endure impact in the assumed conditions. He estimated the cost of implementing these measures as being of the order of $50 to $130 per metre for a wire rope solution or approximately $260 per metre for a conventional steel W beam crash rail system.

Mr McDonald's second report, which was dated 5 November 2009, was marked as Exhibit "C". It was prepared in response to the report by Mr Winning which was tendered by the defendant. For convenience I have juxtaposed the analysis of that report to the analysis of the evidence of Mr Winning.

Mr McDonald's oral evidence expanded upon and explained his written opinions.

Mr McDonald described the seal carried out on the northern surface of Simpson Road in August 2004 as a "temporary (road) seal". He believed that the "seal" probably comprised a mixture of aggregate and a binding agent, which had then been rolled to "smooth" the surface and to distribute the aggregate evenly. According to Mr McDonald, the application of that process was consistent with the road surface appearance as shown in the photographs Exhibit "3" and Exhibit "4".

Mr McDonald said that if there was any loose aggregate on the road surface, particularly located near the edges, this would have the tendency to reduce the slip resistance of the road surface. In any event, the "temporary seal" would not provide the same grip as a permanent bituminous seal. According to Mr McDonald, the surface shown in Exhibit "3" did not appear to have been rolled smooth, and was likely to be "still quite slippery".

Mr McDonald observed from the photographs, that the grassed shoulder to the roadway was irregular in shape and was soft, not firm. He came to that view because of the appearance of depressions on the surface of that area. He said that in such circumstances, the road shoulder would provide very minimal slip resistance, particularly as the road shoulder sloped towards the embankment.

Mr McDonald's hypothesis as to the manner in which the accident occurred was based on photographs and police records. The hypothesis was that Mr Goodwin's vehicle slid, with its wheels locked, either rear or nose first, down the embankment. Mr McDonald noted that, when the vehicle was inspected by a police engineer in the yard at the Engadine police station, the vehicle was in first gear, with its handbrake in the "on" position. He also noted that the ignition key had been turned "off" : Exhibit "O". Mr McDonald considered it was unlikely that police or rescue personnel would have interfered with the gears or the handbrake before the police engineer conducted his mechanical examination.

Mr McDonald advanced the hypothesis that before the vehicle proceeded down the embankment it had probably been stationary, and was positioned not quite perpendicular to the road edge, with its front wheels either on the edge of the "temporary seal" or on the grassed shoulder. He expressed the view that Mr Goodwin was probably standing outside the vehicle and was located between the open driver's door and the doorsill on that side and he may have been leaning into the driver's area. This would appear to be consistent with the observations Mr Wilson made at the scene. Mr McDonald stated that with the vehicle in that position, some force would be required to overcome the inertia of the stationary vehicle. In Mr McDonald's view, that force did not have to be major force. He said it "may have been something as trivial as taking a load in or out of the vehicle to change the weight distribution or an occupant getting in and out of the vehicle or opening a door".

In Mr McDonald's view, once the inertia of the vehicle had been overcome in the manner postulated and the vehicle had begun to slide toward the embankment, the fact that the road shoulder sloped downhill towards the embankment would have directed the vehicle towards the embankment and this would have caused the vehicle to increase the velocity of its forward movement until it reached the edge of the road and then slid down the embankment.

In Mr McDonald's view, it was improbable that Mr Goodwin had been sitting in the driver's seat when the vehicle began to slide. He thought there was no reason for him to do so, given that the vehicle was in gear with the handbrake on. He also stated that the final position of Mr Goodwin's body was inconsistent with him having been thrown from the vehicle as it slid down the embankment. For the same reasons, in Mr McDonald's view it was improbable that Mr Goodwin was attempting to drive the vehicle at the time it slid down the embankment.

Mr McDonald thought it was significant that the police photograph Exhibit "O" showed that the ignition key was in the "off" position. He said that this appeared to be inconsistent with the proposition that Mr Goodwin was attempting to drive the vehicle at the time it slid over the embankment. Mr McDonald also thought that it was improbable that Mr Goodwin was attempting to push the vehicle because such activity was inconsistent with the vehicle being in gear, with the handbrake on and facing the embankment.

In Mr McDonald's view, the most probable hypothesis is that Mr Goodwin was standing on the roadway outside the stationary vehicle at a point between the open driver's door and the door sill; the vehicle was at an angle to and not perpendicular to the embankment; the vehicle began to slide, an action that could have occurred if Mr Goodwin had leaned into the vehicle to remove something from it; as the vehicle slid down the embankment, it carried Mr Goodwin with it, until it was eventually tipped onto its driver's side, thereby pinning Mr Goodwin's legs beneath the vehicle.

Mr McDonald's view was that the factors relevant to the vehicle commencing to slide in the manner he postulated included the degree of cross-fall of the road surface, as well as the slightly greater degree of cross-fall of the grassed road shoulder. Mr McDonald was the only witness who had made a measurement of the cross-fall of the road surface. He measured it at 12 per cent, which he described as "exceptionally high" for a road surface used by vehicular traffic. He said that road design values do not normally exceed 3 per cent to 4 per cent. In Mr McDonald's view, the nature of cross-fall of the road surface was likely to have drawn vehicles towards the western edge of the roadway, and the embankment. He said it probably contributed to Mr Goodwin's vehicle sliding over the road shoulder and embankment. In Mr McDonald's view, in August 2004 the defendant should have taken action during the course of applying a "temporary seal" to the road surface to remedy what he considered to be an excessive cross-fall in the roadway.

Mr McDonald measured the width of the northern section of Simpson Road both at and near the accident scene. He included in his measurements, both the sealed road surface, and unsealed areas to each side of the traffic pathway. In Mr McDonald's opinion, the relevant section of Simpson Road was too narrow for any vehicle to make a U-turn, or a three-point turn. He said the minimum turn which could safely be performed in the area was a five-point turn.

As to the risk to safety created by the narrowness of the relevant section of Simpson Road, Mr McDonald gave the following evidence: "Q. Is that difficulty in turning, in your view, relevant to whether or not protection should have been provided by way of a guard rail or some other system along the western embankment?

A. Yes, most certainly. I consider the narrow width means, firstly, that it would be difficult to navigate within that space, but secondly, that there will be a tendency for drivers to try and minimise the number of turns, and therefore use the full width available, which would bring them perilously close to the top of the embankment."

The fact that the northern section of Simpson Road was a no-through road was, in Mr McDonald's view, relevant to an assessment of the likelihood that turning manoeuvres would take place on the roadway. Mr McDonald pointed out that apart from vehicles turning into Mr Bell's driveway at 12 Simpson Road, all vehicles would be required to undertake either a multi-point turn, or to reverse out of Simpson Road. He described both alternatives as being equally perilous.

In Mr McDonald's opinion, it would be unreasonable for any competent council engineer to make an assessment that the northern section of Simpson Road was, at the time of Mr Goodwin's death, "low risk" so as not to warrant remedial treatment. Mr McDonald described the location as "moderate to high risk".

In Mr McDonald's opinion, the area of "moderate to high risk" extended from the carport situated outside 16 Simpson Road, to the position of the driveway of 12 Simpson Road, a distance of the order of 20 to 30 metres. Whilst there were wider areas of Simpson Road just north of the carport, as well as at the driveway to 12 Simpson Road, he noted that those areas might not be available for turning traffic.

Mr McDonald was of the view that it would be unreasonable to erect separate barriers only at the two most likely turning areas, such as near the carport outside 16 Simpson Road and near the driveway at 12 Simpson Road. He was of this view because if multi-point turns were required, each barrier would have to be about 15 metres in length, and therefore, having due regard to safety considerations, the barriers might as well be continuous. In Mr McDonald's opinion, it would have made no engineering or economic sense to erect two separate sections of guardrail adjacent to the "most likely" turning areas on that section of Simpson Road even if it was reasonable to assume that turning would be limited to those areas.

Mr McDonald pointed out, as was obvious, that the risks involved in manoeuvring vehicles at any point on the roadway between 12 and 18 Simpson Road, were even greater at nighttime.

In re-examination, Mr McDonald explained in detail the many factors which he felt ought to have been taken into account in an assessment by a reasonably competent council engineer in considering whether there were sufficient safety risks near the accident scene to warrant the installation of a guardrail for a length of around 30 metres along the relevant section of Simpson Road.

The plaintiff argued that it would appear that none of those factors were actually taken into account by the relevant council engineer, Mr Morgan, whose duty it was to give such consideration to the matter, or by any of the other engineering personnel employed by the defendant and who had inspected the northern section of Simpson Road prior to Mr Goodwin's death. Alternatively, it was argued that any factors that may have been taken into account, were given inadequate weight.

The defendant relied on expert evidence from Mr Terry Winning. He was not a qualified engineer, but claimed to have had "quite a bit of experience in the civil engineering and traffic engineering fields". Mr Winning was asked to "certify" calculations made by a council officer, Cristian Vasquez, and he did so. Both Mr Winning and Mr Vasquez used s 6 of the Road Design Guide [RDG] that had been published by the Roads and Traffic Authority. That particular section of the guidelines dealt with safety barriers.

Mr McDonald stated his view that this part of the RDG was inappropriate to be used to undertake a risk analysis of the northern section of Simpson Road because it was irrelevant. He explained that the guide in question deals with the scenario of vehicles travelling along a roadway, and is concerned with the prospect that vehicles will drift or be driven off the road surface whilst progressing along the road, which was a different risk scenario to the one under consideration. He stated that s 6 of the RDG dealing with safety barriers is not intended to, and does not contemplate, a roadway such as Simpson Road, where at some point almost every vehicle using that roadway must turn and manoeuvre within the road width. Almost every vehicle on Simpson Road will at some point be driven towards the edge of the roadway either in forward or reverse gear, either by day and by night.

In Mr McDonald's view, s 6 of the RDG was not definitive and could only ever be used as an aid in undertaking a risk assessment. He said it should be used in conjunction with the relevant Australian Standard for car parks which contemplates repetitive vehicle manoeuvres. He also invoked the RDG for the design of bridges because that guide also contemplates protection from a steep fall away from the edge of the roadway embankment at the side of the roadway.

Mr McDonald pointed out, significantly, that in any risk assessment, and in particular a risk assessment of a location such as Simpson Road, professional judgment by a competent engineer should be the basis of any risk analysis, rather than simple reference to a road design guide which may be inappropriate.

Mr McDonald explained in detail why almost every component of Mr Vasquez' calculations that were "certified" by Mr Winning, were inappropriate, misleading, and/or simply erroneous in the context under consideration.

In Mr McDonald's view, each of the complaints the defendant had received concerning the condition of the northern section of Simpson Road should have triggered a proper risk assessment based on the professional judgment of a competent council engineer. In addition, Mr McDonald expected that those complaints, and the occasion of the sewerage works in 2001, would have resulted in actual inspections of the site by council engineers. It is apparent from the evidence of Mr Hewitt and Mr Morgan that such inspections did occur. In Mr McDonald's view those inspections ought to have resulted in risk factors being identified, with remedial work being appropriately scheduled and undertaken promptly on account of safety considerations.

Mr McDonald noted that in Mr Vasquez' calculations, in 2008, the cost of the supply and installation of a guardrail of the appropriate length, was estimated to be $8,365. On any view, Mr McDonald considered that this cost was justified, having regard to the risk. He said that if necessary, an even cheaper alternative such as a wire fence could have been installed, which would also have prevented Mr Goodwin's death. He said that until remedial work had been undertaken, the relevant section of road could and should have been closed.

Mr McDonald disagreed with a number of observations of the site made by the defendant's witness Mr Davies, an engineer employed by Pittwater Council. Mr McDonald disagreed with Mr Davies' description of the embankment in the relevant section of Simpson Road. Mr McDonald also disagreed with Mr Davies' description of the state of the road shoulder at the accident scene. In Mr McDonald's view, Mr Davies had underestimated the steepness of the embankment, and should have regarded the embankment as an "extensive hazard" requiring treatment.

Mr McDonald pointed out that in his consideration, Mr Davies had not referred to the lack of slip resistance on the grassed road shoulder, nor had he taken into account that the road shoulder was soft as well as slippery. In Mr McDonald's view, Mr Davies wrongly took into account the presence of vegetation along the western edge of the road as a guide to where the trafficable area of the pavement was located. The plaintiff submitted that Mr Davies failed to take into account that the vegetation at the time of the accident was less dense than how it appeared at the time of Mr Davies' inspection.

Mr McDonald believed that Mr Davies failed to take into account that the road surface had comprised only a "temporary seal" at the time of Mr Goodwin's death, as distinct from a full bituminous seal. It was argued that this was a circumstance that was likely to affect the friction characteristics of the sealed surface.

Mr McDonald pointed out that Mr Davies had also failed to refer to the fact of the presence of a cross-fall of the road surface, including the even greater cross-fall of the road shoulder as the slope of the embankment commenced to drop away from the edge.

Mr Terry Winning is a road traffic safety consultant with some experience in traffic analysis and civil engineering. He was not a professional civil engineer. Without intending any criticism of his professional skills, it was plain that Mr Winning carried out what must be considered to be only a very limited analysis confined to what had been requested of him, initially by the defendant council, and later, by the solicitor for the defendant council. It is relevant to outline the nature of the process by which Mr Winning was asked to provide his opinions on the matters that were requested of him.

Following the advent of this litigation the defendant council had one of its officers, Mr Cristian Vasquez, carry out what appears to be an in-house theoretical RDG assessment of the accident site in Simpson Road for the purpose of analysing the need, appropriateness and cost of installing a guardrail at that site. From the date, terms and content of that assessment I am satisfied that the assessment by Mr Vasquez was prepared for use in the defence of these proceedings. I will return to the subject of that assessment shortly, but in the meantime, I observe that the assessment was a statistically based formulaic assessment, and like any statistical or mathematical approach to the analysis of data, the validity of such an analysis could only ever be reliable and accurate as was any information or data upon which it was based.

It is relevant to note that the RDG formula was a statistical instrument used by road authorities to process raw descriptive information concerning road conditions with the aim of producing normed descriptors. Those descriptors were then customarily used by council officers to grade the assessment of relative urgency of the need for remedial works to be planned and implemented on roads that had been the subject of such analysis.

The starting point for the analysis of the evidence of Mr Winning is to examine the document prepared by Mr Vasquez which Mr Winning was asked to "certify."

On 15 August 2008 Mr Vasquez prepared a memorandum addressed to the defendant's Director of Engineering in which he noted the severity of the embankment at the site and he recommended that a guardrail be provided as part of a future works programme. That memorandum recited a description of the accident site in the following terms: "The section of Simpson Rd, Bundeena, fronting property No.16 is a narrow access road of width 3m which partly proceeds into private property to also serve property No.12 and has a steep embankment to the west of the access road. As such it is a low volume, low speed road.

However, the embankment along the west side of the road is considered steep with generally little available clear zone for an errant vehicle to be able to correct and recover onto the road. There does not appear to be a cost-effective method removing this hazard.

An assessment has been carried out using the RTA's Road Design Guide - Section 6 "Safety Barriers for Roads and Bridges" (refer Appendix A). It should be noted that the (sic) for the economic evaluation component of the assessment, available crash costs date to 2000 and would need to be updated however the results are still considered to be indicative. Further, the extremely low traffic volume results in very low crash cost values."

It was revealing that the commentary within Mr Vasquez' memorandum identified an important factual shortcoming within the defendant's database concerning the accident scene. Mr Vasquez stated: "Council's database shows no record of accidents recorded at this location. However it is known that one vehicle rolled over embankment resulting in a fatality."

Whilst the council's database did not record any accidents at the location in question it is plain that the database was not only wrong or at least incomplete, but that it was known to the council to be wrong in that regard.

It is plain that this information, which had been relied upon by Mr Vasquez not so much for the assessment of the need for a guardrail to be provided at the site, but rather, the timing urgency for addressing that need. The result of Mr Vasquez' assessment was "Low Risk - works can be deferred (RTA Road Design Guide Table 6.7 p6-19). Appendix A to Mr Vasquez' memorandum set out the detail of the statistical workings of his assessment according to the criteria and descriptors that formed the basis for the assessment guide. The assessment prepared by Mr Vasquez concluded with a low risk assessment and it estimated the total cost for the supply and installation of a guardrail at the location in the amount of $8464.

It was against that background of Mr Vasquez' memorandum that Mr Winning produced a report dated 12 February 2009 which was addressed to Mr Vasquez. In that report Mr Winning concluded Mr Vasquez had undertaken a valid assessment applying the RDG Guidelines in reaching his conclusion that the timing for the erection of the recommended guardrail could be deferred. Mr Winning then certified that the assessment undertaken by the council was compliant with the processes outlined in the RTA RDG criteria for road design for "Safety Barriers For Roads and Bridges."

That opinion by Mr Winning carried within it a number of important matters that need to be weighed when considering the probative value of the views set out by Mr Winning in that document.

First, there was the opacity of the method by which the report was procured. It was verbally commissioned by the defendant council so that it was not possible to examine with transparency the process by which Mr Winning was briefed nor was it possible to evaluate the assumptions he had been requested to make for the purpose of the exercise. A record of those matters was not introduced by the defendant through the evidence of Mr Winning. Secondly, Mr Winning's acknowledgment of the existence of the Expert Witness Practice Direction No.22 (2004) issued by the NSW Land and Environment Court and his statement that he would be prepared to give evidence on the basis of the contents of his letter was not quite an acknowledgment of being bound by UCPR Schedule 7. That is not so much a methodological criticism but it simply demonstrates the limitations on the use to which the document could be put in litigation. Thirdly, Mr Winning stated that his understanding was that since he was not requested by solicitors to provide an expert report for a court to consider, he was not submitting his letter as such. Fourthly, Mr Winning was not asked to visit the site for the purpose of preparing his commentary. Sixthly, it does not appear that he had an opportunity of testing or applying any expert analysis to the reasonableness or otherwise of the assumptions he was asked to make and that were inherent in the exercise that Mr Vasquez had undertaken.

It was upon these foundations that Mr Winning was later retained by the solicitor for the defendant to provide an expert opinion for the purpose of these proceedings. He did so in the form of his second report dated 14 October 2009 which was tendered by the defendant as Exhibit "7". That report had annexed to it, amongst other things, his earlier letter to the defendant dated 12 February 2009, along with the memorandum dated 15 August 2008 from Mr Vasquez, a black and white aerial photograph of the area and some RDG appendices. Although the report of Mr Winning referred to a letter of instruction dated 30 September 2009 from the defendant's solicitors DLA Phillips Fox to Mr Winning, that letter of instruction was not tendered by the defendant.

In his report Mr Winning re-iterated the two questions that the instructing solicitors had asked him to consider, namely: "1. In your opinion, what method would a reasonable road authority [have] used in about September 2004 to have assessed the risk of a vehicle travelling over the subject embankment?

In view of documents referred to above and the above assumptions, whether your review of Council's 2008 assessment alters in any way. If so, in what way?"

Although in his 14 October 2009 report Mr Winning acknowledged the UCPR Expert Witness Code of Conduct, two problems arise that affect the probative value of his report. The first was that the documents provided to Mr Winning (his report indicates that there were at least 27 such documents) were not identified by the defendant nor was the absence of these documents explained or explored. Secondly, the assumptions that the defendant had asked Mr Winning to make were not identified. As a consequence, I consider that the probative value of the report of Mr Winning is at the outset limited by these matters : Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705.

In relation to the first question the solicitor for the defendant asked Mr Winning to consider in his report, Mr Winning stated that in his opinion, a reasonable road authority in September 2004 would have used the RDG process to make a risk assessment and in doing so would have assessed the site as being low risk justifying deferral of the works.

In relation to the second question that he was asked to consider, Mr Winning stated he did not alter his views as to the low risk assessment with which he had been briefed for certification "according to accepted practice and methodology."

It is difficult to understand exactly what Mr Winning was addressing when he stated that view because of the manner in which he had been briefed and because not all the materials he had before him were tendered into evidence. A prime example of the difficulty is the absence from the matrix of the evidence of the full content and context of an email dated 13 July 2005 from a named police officer to Mr Bruce Powe, the defendant council's Traffic Engineer, who was not called to give evidence. For example, it was not possible to consider the full significance of the limited quotation Mr Winning made from the police communication to the council, which was cited in the following terms: "Local (sic) report that this type of incident has occurred on at least 5 prior occasions in recent years. I have only one previous incident on record from 2001 where a vehicle rolled 10 metres down the embankment o/s No. 8 Simpson Road."

The foregoing quotation serves to call into question the accuracy or at least the completeness of the records of incidents occurring at the site.

The plaintiff made a number of submissions concerning the lack of probative value of the first report by Mr Winning.

First, Mr Winning made no site visit for preparation of the first report. It was argued that such a visit was a necessary and required step before making and prioritising any safety assessments. Secondly, as Mr Winning ultimately acknowledged, his certification of the use by Mr Vasquez of s 6 of the RDG was no more than a checking of Mr Vasquez' mathematics concerning the RDG assessment instrument used. Thirdly, the underlying assessment by Mr Vasquez, whilst methodologically correct, was based on data wrongly assumed to have been correct. Fourthly, there was no evidence that Mr Vasquez held engineering qualifications. I consider these matters to have been made out with the result that I consider the first report of Mr Winning to have no probative value. On the evidence adduced, I consider it fundamentally unreasonable for a council to make a safety and priority assessment of remedial works required for a roadway on such flimsy and flawed foundations.

The plaintiff made a number of submissions concerning the lack of probative value of the second report of Mr Winning.

First, there was no indication in either of the reports of Mr Winning or within his oral evidence that in using the RDG instrument which comprised exhibit "M", Mr Winning employed engineering knowledge, experience and judgment in addition to using the guidelines themselves. This is significant because there was no discussion on whether the guidelines should have been applied only as an aid to the exercise of professional judgment. In this regard it was submitted that the first portion of the second report of Mr Winning was meaningless.

Secondly, there is no mention in the second report of Mr Winning of the presence of a cross-fall in the roadway of the order of 12 per cent. In his oral evidence Mr Winning stated that he did in fact notice such a cross-fall at the site when he attended for the purpose of preparing his second report, yet he did not measure it nor did he include reference to it in his report. This omission was of some significance because Mr Winning acknowledged that a cross-fall of 12 per cent on a roadway is far greater than would be recommended in good road design and of itself creates hazards and risks in the use of the road. This omission from the consideration is of even greater significance when understood in the light of other concessions made by Mr Winning that a cross-fall was but just one aspect of the site that would be taken into account in the exercise of professional engineering judgment, together with the concession that the simple application of the guidelines is not an appropriate or sufficient exercise to deal with different hazards that may apply or prevail at different sites.

Thirdly, although Mr Winning claimed that he took into account the fact that the roadway was narrow, that it was not a through road, and that vehicles had to perform multi-point turns in difficult circumstances, including in some places, at least five-point turns, these matters were not mentioned, discussed or evaluated in his report.

Whilst I accept the explanation given by Mr Winning that the reason why the matters raised by the plaintiff were not included in his report, namely that he was not asked to undertake "an accident investigation", that is not to the point when it comes to assessing the probative value of his evidence on the liability issues that were contested by the defendant and which the defendant sought to defend through the evidence of Mr Winning.

It is noteworthy that when relevant matters were drawn to the attention of Mr Winning, in cross-examination he made a number of appropriate concessions.

Mr Winning conceded that the plaintiff's expert engineer Mr McDonald was correct in referring to difficulties in manoeuvring and turning on the roadway and the consequent risks associated with the steep embankment on the western side of Simpson Road. He acknowledged that the RDG did not make any allowance at all for such difficulties which was precisely the point made by Mr McDonald in his evidence. He ultimately agreed that s 6 of the RDG was a comparative tool and the use of it on its own, was insufficient and that professional judgment as well as a holistic consideration by the competent engineer was required. He also conceded that the urgency which should have been given to the installation of a guardrail required consideration of aspects of the site that involved professional judgment, including assessment of the cross-fall of the roadway and of the road shoulder, and the difficulties in the manoeuvrability of vehicles on the site. It is of significance that none of these matters were mentioned in the reports of Mr Winning or in the underlying analysis that had been undertaken for the council by Mr Vasquez.

When Mr Winning's attention was drawn to the condition of the road surface in July 2005, he conceded that it may well have had significantly less grip than a properly sealed bituminous surface. He also conceded that the grassed road shoulder was likely to have been a slippery surface. He also conceded that the grassed shoulder area may have been an area on which a turning vehicle might find one or more of its wheels. He conceded that this was a relevant matter to be considered in making a risk analysis concerning the need for the installation of a guardrail at the scene and the urgency with such an installation was required in the circumstances. Again, none of these matters were mentioned in his reports.

The plaintiff also submitted that the evidence discloses that Mr Winning did not give sufficiently careful consideration to the documentation presented to him when formulating his opinions. The plaintiff submitted that this has in turn led to a flawed process evident in the preparation of the second and final report by Mr Winning. In this regard the plaintiff draws attention to Mr Winning's answer to the second question the defendant posed to him, namely whether the documents and assumptions provided to him had caused him to alter his previous opinion. When weighing his statement that his assessment had not been altered in any way following such a consideration, it is difficult to reconcile his opinion at page 3 of his second report, which stated that the council had no knowledge of any vehicles having travelled over the embankment prior to the subject accident. I take this view because he had available for his consideration a copy of the letter dated 8 February 2004 from Mr Bell to the council in which Mr Bell made reference to vehicles having rolled over the road shoulder, and having to be winched out. Clearly, the cited statement by Mr Winning was wrong and was contradicted by the letter from Mr Bell to the defendant council, as was ultimately conceded. There was no attempt to refocus the views of Mr Winning on the alternative and correct assumptions.

It was also significant that Mr Winning conceded that there was nothing in any document that had been provided to him by the defendant which indicated anyone had given consideration to the cross-fall on the road surface, or the difficulty in manoeuvring or turning on the northern part of Simpson Road. He conceded that the exercise of reasonable professional judgment by a competent engineer would be expected to take such matters into account.

Significant amongst the concessions made by Mr Winning was that the various aspects of the site that Mr McDonald considered to be relevant to a risk analysis would have, in his view, all been obvious to a competent council engineer inspecting the site at the time the work was undertaken there in August 2004. This included the fact that at some places in the roadway a vehicle turning manoeuvre requiring at least a five-point turn was required because of the narrowness of the road surface, thus giving rise to a significant risk that a wheel or a number of wheels on a turning vehicle might end up on the slippery grassed shoulder. It is important to observe that this would apply to a vehicle that was moving in either forward or reverse gear. Another relevant concession by Mr Winning was that these observations would have informed a competent engineer that a guardrail was required at the site.

I note that Mr Winning had the opportunity of observing Mr McDonald's evidence before he himself gave evidence.

It is against this background that I must weigh the evidence given by Mr Winning.

I have considered the respective submissions concerning the evidence of Mr Winning and I have concluded that the matters raised in the plaintiff's submissions with regard to his evidence are all made out with the effect that the probative value of the opinions of Mr Winning have been completely undermined except where they serve, by his concessions, to corroborate and confirm the evidence given by Mr McDonald. On all of these matters I prefer the evidence of Mr McDonald to the evidence of Mr Winning.

The defendant called Mr Paul Davies, a Principal Engineer employed by Pittwater Council. Mr Davies prepared a report dated 14 October 2009 which became Exhibit "11". For the purposes of his report the defendant asked Mr Davies to address two specific questions that were obviously intended to fit within the parameters of a claimed defence under s 43A of the Civil Liability Act 2002. These two questions were: "1. What method would a reasonable road authority have used in September 2004 to have assessed the risk of a vehicle travelling over the subject embankment?

What is the risk assessment of the subject embankment using this method, corresponding to the period of about September 2004?"

The task that the solicitor for the defendant had set for Mr Davies by posing these questions was problematic for several reasons.

First, and obviously, Mr Davies could not speak for "a reasonable road authority". All he could speak about is what he would recommend to a council and perhaps discuss what took place in Pittwater Council regarding the consideration process of that council but he could not say what a reasonable council would do in particular circumstances, for the reasons he acknowledged.

Secondly, for the result of any deliberation on the issue by Mr Davies to have probative value, a request made of him that he perform such a task in October 2009 in respect of a notional risk assessment for road conditions that prevailed in September 2004 required a particularly focussed forensic approach to the analysis. This included accurate identification of any relevant assumptions in order to guard against potential problems with the well-recognised phenomenon of hindsight bias that may occur in an after-the-event analysis by an expert witness.

This latter issue is particularly pertinent because in finding facts on such issues I am mindful that a court must remain alert to the danger of applying a hindsight analysis to the issue of breach of duty of care. This is especially so where the parties seek to guide such fact finding with expert evidence. In such circumstances care must be taken to ensure that such expert evidence is not based on impermissible considerations such as in a retrospective analysis rather than the required prospective analysis: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442, as was identified and explained by Hayne J at [126], p 461, namely : "That inquiry must attempt, after the event, to judge what the reasonable person would have done to avoid what is now known to have occurred. Although that judgment must be made after the event, it must seek to identify what the response would have been by a person looking forward at the prospect of the risk of injury."

Here I interpolate "reasonable council" for "reasonable person".

In truth, all Mr Davies could reasonably say in this case was to give evidence as to what advice he would have given a council in 2004, or what work he would have initiated, had he been asked to undertake a risk assessment of the northern section of Simpson Road at that time. In this regard it is significant to note, as was acknowledged by Mr Davies, that for a variety of reasons councils do not always act on the internal advice received.

The report prepared by Mr Davies dated 14 October 2009 stated that it was commissioned by the defendant council. I infer from the terms used, this meant that it had been commissioned by the defendant council directly, and not by its solicitors. Whilst the report provides an acknowledgment of the requirements of the Expert Witness Code of Conduct it does not provide a full indication of the assumptions and documents that were given to Mr Davies for the purposes of preparation of his report. In these circumstances it is difficult to ascertain all of the matters he has assumed for the purpose of his opinion which in turn affects the probative value of the evidence : Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705.

Mr Davies addressed the first question asked of him by stating: "For roadworks provided by Pittwater Council there is no formalised risk assessment process undertaken as part of the design/investigation process. Risk is managed through an intuitive process, by complying with the relevant design standards and by the application of historical practises appropriate to the category of roadworks being considered."

Given that part of the process has been explained as being intuitive, it is important, as far as is possible, to reach an understanding of the reasoning behind any decision made by this process, including any assumptions that had been made. In this regard the plaintiff points to numerous matters which it is argued serve to undermine the probative value of the opinions of Mr Davies. I will review some of these matters.

When Mr Davies inspected the site on 9 October 2009 he took no measurements or photographs of the scene. He did not examine the integrity or degree of softness of the soft shoulder of the roadway. He did not measure the cross-fall of the sealed surface of the roadway or the cross-fall of the road shoulder. He did not measure the angle of the embankment, the vertical height of the embankment or the length of slope of the embankment. He did not measure or make enquiries concerning the volume of traffic that was likely to have used Simpson Road in September 2004. Instead he simply made an uninformed estimate of such usage, based on the number of dwellings on that road. When he addressed his assumption that the road was "mainly used by residents familiar with the access" he did not appear to take into account the prospect that the road would be used by non-residents, such as friends and visitors of residents as well as by service vehicles and strangers to the vicinity

In his report, Mr Davies makes no reference at all to the narrowness of the road, the fact that it was a no-through road, the fact that there was a cross-fall of the road and the fact that there was a greater cross-fall of the road shoulder. The report of Mr Davies makes no reference to the surface of the road, or difficulties in turning or manoeuvring on that section of Simpson Road. Mr Davies also assumed, without apparent basis, that there had been no change in the road and road shoulder or the embankment since 2004. Given the passage of time between 2004 and 2009 and given that the surface of the road shoulder was partly comprising vegetation covering, I consider that assumption to be unsafe in the circumstances. It appears from the face of his report and from his evidence that he was not provided with assumptions concerning these matters.

The plaintiff also points to other matters that affect the probative value of the evidence of Mr Davies concerning the manner in which he addressed the second question that he was asked to consider and which he assessed as involving low risk.

Mr Davies described the northern section of Simpson Road as a "driveway" or "driveway access track". Whilst these were terms which may have some terminological or technical meaning or significance for a council, in this particular location I consider that such terms are not particularly useful, helpful or relevant to an assessment of safety risks.

At page 2 of his report Mr Davies identified 5 assumptions to support his opinion that Pittwater Council would have rated the embankment in question as being low-risk to traffic. The plaintiff has submitted that even on those assumptions, his own council, Pittwater Council, would have at least installed guide posts with reflectors along the length of the embankment to delineate the edge of the driveable area to drivers so that they could take appropriate care to ensure their safe use of the carriageway pavement. The significance of that opinion to the issue of causation will be examined separately. However, the plaintiff has submitted that each of the five assumptions made by Mr Davies was either inadequate, incomplete, misleading or wrong. That submission requires examination.

The first assumption made by Mr Davies was that the location, "being a multiple access vehicular driveway having very low traffic volumes/speeds and … mainly used by residents familiar with the access, therefore having a low risk in relation to traffic." That assumption has not been borne out by the evidence as it makes no allowance for the evidence of Mr Wilson who had described what I consider to be the significant volume of weekend traffic use by visitors to the area, apparently hoping to gain access to the nearby waterfront or recreational reserve.

The second assumption made by Mr Davies that "the embankment appears flatter than a 45° slope and is not very extensive". This assumption involves a judgment based on estimates rather than measurements and the assessment that it was "not very extensive" is non-empirical and it is therefore not helpful. It is also contrary to the evidence of Mr McDonald who attended the site and carried out his own measurements, including of the cross-fall.

The third assumption made by Mr Davies concerning " a grassed space between the sealed carriageway on the edge of the embankment generally not less than 1 m in width" failed to take into account the irregular shape of the shoulder of the road, its lack of slip resistance and the fact that there is a cross-fall on the road shoulder itself. Significantly, no attempt has been made to co-relate the condition of the roadway in September 2004, which is the relevant analytical consideration, and the condition of the roadway at the time when Mr Davies undertook his inspection of it on 9 October 2009.

The fourth assumption made by Mr Davies concerned the observation that "the embankment is heavily vegetated and that this clearly defines the edge of the driveable area." The problem with this observation is that it is ambiguous in that it appears to relate to the condition of the embankment when Mr Davies saw it in October 2009 rather than describing how the embankment appeared in September 2004. There is no objective evidence such as photographs introduced through the evidence of Mr Davies that would indicate the condition of that vegetation in September 2004 so it is not clear how Mr Davies came to validly make the fourth assumption. That fourth assumption also appears to be inconsistent with the photographs of the site taken in July 2005 which comprise Exhibits "3" and "4", as was observed by Mr McDonald.

The fifth assumption made by Mr Davies, namely " that there was no known history of multiple vehicular accidents at this specific location" was plainly incorrect. Although he later qualified that assumption to refer only to RTA and police records, it nevertheless remains as a significant erroneous assumption having regard to what a council either knew or ought to have known from examining its own records of resident complaints concerning safety issues. The plaintiff points to the fact that Mr Davies was provided with a copy of the letter received by the defendant from Mr Bell dated 8 February 2004, and well as the detail of the defendant's record of the plaintiff's complaint on 30 June 2004. It appears that when expressing his opinion Mr Davies either overlooked or ignored that information.

When the foregoing matters submitted by the plaintiff are taken into account, in my view, the probative value of the opinions in the report of Mr Davies becomes overwhelmingly diminished.

When Mr Davies was cross-examined and his attention was directed to relevant matters and assumptions, fairly, he made a number of significant concessions.

Mr Davies agreed with the suggestion made by Mr McDonald, that a risk assessment required the holistic exercise of professional engineering judgment and he did not regard the exercise consisting of the simple application of the RDG (as was carried out by Mr Vasquez and certified by Mr Winning) as in any way appropriate or sufficient.

Mr Davies expressed the view that no vehicle should attempt to turn anywhere on the northern section of Simpson Road because turning was simply too hazardous. He said it was safer to reverse out of Simpson Road, even at night, notwithstanding that a motorist would be required to reverse along the edge of a steep embankment, without street lighting, down a steep incline, and around a bend. The plaintiff submitted that, properly understood, this indicated that it must be Mr Davies' view that such a reversing manoeuvre, which itself raised safety concerns, was by comparison a safer option than attempting to turn anywhere along the northern section of Simpson Road. The plaintiff submitted that this evidence indicated that it was inherently unsafe to attempt a turning manoeuvre anywhere along the portion of Simpson Road in question, including at the point where the accident occurred.

The plaintiff points to the reconsidered evidence Mr Davies gave when he was asked to assume that residents, visitors, service vehicles and others would inevitably attempt to turn around on the northern section of Simpson Road. In particular, when accurate facts were put to him as to the condition of the road more contemporaneously with the time of the accident rather than at the time of his inspection, Mr Davies agreed that a council engineer exercising reasonable professional judgment would have initiated the installation of a guardrail along that section of Simpson Road, that is, at the time that a temporary seal was applied to that roadway in August 2004.

The plaintiff has submitted that these concessions by Mr Davies only served to establish primary negligence on the part of the defendant.

Mr Des Hewitt was called by the defendant. He has been employed by the defendant as its Director of Engineering since 1999. He has been employed by the defendant since 1968, and has held a management position with the defendant since 1984. Although Mr Hewitt is a qualified civil engineer, he did not give expert evidence. His evidence was confined to an explanation of his role in the defendant council, council policy and procedures, council resources, his knowledge of Simpson Road, complaints by residents there, and the appropriate response by council to those complaints.

Mr Hewitt's first personal involvement with Simpson Road was in connection with work that had been undertaken in 1987. That work had been brought forward and given immediate priority because of the occurrence of a land collapse that had blocked access to properties in Simpson Road.

As far as Mr Hewitt was aware, no capital works had been carried out on the northern section of Simpson Road between 12 and 18 Simpson Road. That evidence was not necessarily inconsistent with evidence that a "temporary seal" had been applied in 2004 as such work may have been regarded as "maintenance work" rather than "capital works".

Mr Hewitt addressed a question concerning the availability of funds to undertake "emergency" work where a significant safety risk was identified. He responded in the following terms: "…within our overall operational budgets within council there is - scope for emergency need …we do have a working sum fund surplus which [is] for emergency situations … If we need to do [emergency work] we'd be looking to our surplus funds to be able to fund that. Either that … or we would actually review our program, put back a lesser priority project, and include [the emergency work]."

He went on to describe the size of the "surplus funds" provided for emergency works and stated: "…In the last number of years, the council has always looked to around about $1.5 million of available funds for an emergency situation, and … our current council budget is $200 million, we're looking at less than half a percent of our budget for an emergency situation."

In cross-examination, Mr Hewitt explained that cost was not a consideration if a safety issue arose: "If there was a matter of safety involved that had been determined by an officer or someone else who had inspected the road, and had indicated that there was a significant matter of safety, the cost would not have been a consideration. The works would have been undertaken no matter what, if anybody, the public or anybody else, was at any sort of risk, if it was a proscribed risk, assessed risk."

Mr Hewitt confirmed that Simpson Road had never been included in any of the defendant's "rolling 4-year plans" for upgrade, until the latest "Draft Roads Construction Program 2009/2011" [Exhibit "9"]. The inclusion of the works in that programme was based on an assessment of the standard of the road surface which took place in early 2008. At that time Simpson Road was assessed to be of "maximum roughness", which Mr Hewitt explained meant that the road surface had failed, or was getting very close to having failed. When the evidence given by Mr Porter and Mr Morgan is compared as to the work actually done in August 2004 the relatively short interval between 2004 and 2008, taken together with the relatively poor condition of the road as was found to be the case in 2008 raises a question as to the nature of the work carried out in 2004. Another possibility is that the road received a greater use than was imagined by council officers.

Mr Hewitt identified that Simpson Road had received an 8 out of 10 or high rating for "safety issues" when it was assessed in early 2008, although the particular "safety issues" were not identified in Exhibit "9". Mr Hewitt confirmed that a safety rating of 8 out of 10 indicated that "it's getting towards it being an unsafe road".

Mr Hewitt confirmed that the council's descriptor of "Pavement Condition Index" for Simpson Road was unchanged when assessed in 2001 and 2005, and had actually worsened when assessed in 2008. Mr Hewitt confirmed that the statistical spreadsheet approach to programming of future road works was only one indicator taken into account by the council's engineering department. He confirmed that it was not intended to exclude the exercise of professional judgment by council engineers.

The plaintiff submitted that the not-so-subtle inference arises, that the identified spreadsheet analysis tendered by the defendant was designed to assist the engineering department in obtaining funds for road works from Councillors who themselves had no engineering expertise.

Mr Hewitt was cross-examined as to the council's procedure that applied in the event that a safety issue was identified by a council engineer. Mr Hewitt confirmed that within the staffing structure of the council there were several senior managers with engineering qualifications and experience who reported to him. He said that below that level, junior engineers reported to their senior managers. He said that one such senior manager was Mr Jeremy Morgan who had authority to approve and initiate remedial work where a safety issue was identified. Mr Hewitt explained that senior managers were only required to consult with him if there was a need to approach the Council for a budgetary allocation. It is clear on the evidence that the question of whether or not a guardrail was required at Simpson Road was not a matter that required a consultation with the Director of Engineering in order to obtain a budgetary allocation from council.

Mr Hewitt stated that if a safety issue was detected by a junior engineer, it was that engineer's responsibility to make the site safe, and to advise a senior manager, so that remedial work could be instigated.

Significantly, Mr Hewitt stated that where a matter of vehicle safety was concerned, he expected that the first engineer to become aware of the safety issue would be expected to close the road forthwith until remedial work could be carried out. He also confirmed that once a safety issue was identified, remedial work would be instigated regardless of cost. In this regard, when Mr Hewitt was shown Mr Vasquez' 2008 estimate of $8464 for installing a guardrail on the northern section of Simpson Road, he confirmed that such a cost would be a tiny proportion of the defendant's funds available for emergency work.

Mr Hewitt said that he had inspected Simpson Road personally at least three times during the period when the works were carried out in 1987. Since that time, he had probably not visited the site. Mr Hewitt confirmed that engineers employed by the council at any level were expected to exercise professional judgment in making any risk assessment on any road in the Shire. He confirmed that complaints by residents were, as a matter of practice, directed to senior engineers in the council at management level, rather than to himself. The documents in Exhibit "G" verify that this did occur with regard to resident complaints concerning Simpson Road.

When Mr Hewitt was shown Mr Bell's handwritten letter dated 6 June 2001, he confirmed that Mr Bell's complaint had probably triggered an inspection of the site by a council engineer. He stated that if that inspection had revealed a significant safety issue, the road should have been closed until remedial action had been undertaken, regardless of how many properties were served by the road.

When Mr Hewitt was shown Mr Bell's second handwritten letter dated 8 February 2004, he was in no doubt that the letter referred to the northern section of Simpson Road, and regarded the reference to cars rolling over the shoulder of the road, and needing to be winched out, as a "significant safety matter". Mr Hewitt confirmed that the letter should have triggered an inspection by a senior council engineer.

Mr Hewitt acknowledged that the council's CRMS numbered 765087152 and dated 13 February 2004 which was created by the council in response to Mr Bell's letter dated 8 February 2004, namely Exhibit "R", referred to the "neglected and dangerous state of Simpson Road at Bundeena", and that the word "dangerous" was used appropriately having regard to the terms and content of Mr Bell's letter.

Mr Hewitt confirmed that the matter raised by the 8 February 2004 letter from Mr Bell, was dealt with by Mr Morgan, who was regarded as a senior engineer in Mr Hewitt's division. Mr Morgan's response was to make arrangements for "temporary sealing of this section of Simpson Road" in conjunction with nearby works. The "temporary seal" was applied in August 2004.

Mr Hewitt confirmed that the cost of installing a guardrail was even less than the sum identified by Mr Vasquez, if the guardrail installation was carried out in conjunction with this work, namely, at a time when council had men and equipment already at the site.

Mr Hewitt was also referred to Exhibit "G" which comprised emails from Mr Porter to the council, which apparently operated as a further trigger for the "temporary" work carried out in 2004. The defendant's belated response to Mr Porter's emails is contained in Exhibit "S". Mr Hewitt acknowledged that neither the council's written response to the various complaints, namely Exhibit "S", or the council's work carried out at Simpson Road in September 2004, addressed the complaints as to the likelihood of vehicles going over the embankment.

Significantly, Mr Hewitt conceded that the plaintiff's telephone complaint on 30 June 2004 could hardly have been more specific as to the safety risk involved in vehicles going over the unprotected embankment on the western edge of Simpson Road. Mr Morgan's response to that complaint, recorded in council's CRMS which was part of Exhibit "G", was "low speed road and corresponding low risk", and "guard railing will be considered when road is included on a future road construction program".

Mr Hewitt conceded that if there was "an identified risk of someone going over the embankment", that should be regarded as a "significant safety risk".

Mr Hewitt said that he expected that the plaintiff's complaint would have triggered an inspection of the site. If, in the exercise of professional judgment, a safety risk of the type specifically outlined by the plaintiff was detected, he said that the road should at least have been barricaded, until a guardrail was installed.

Mr Hewitt confirmed that the work carried out at Simpson Road in August 2004 would have involved a number of inspections by council engineers. He said that those engineers would have been expected to exercise professional judgment in assessing whether the unprotected embankment amounted to a significant safety risk.

The foregoing considerations serve to provide the relevant framework for an examination of the evidence of Mr Morgan who was called by the defendant.

Mr Morgan's position, qualifications and experience

Mr Jeremy Morgan was called to give evidence in the defendant's case. At the time of the trial he was employed by Rockdale City Council. In 2004 he was employed by the defendant council in the senior position of Project Planning Engineer which was a senior engineering role. In 2000 he had completed his qualifications in engineering by obtaining the degree of Batchelor of Engineering in Civil Engineering. He identified the fact that there were 280 odd streets in the Sutherland Shire. Part of his duties whilst he was in the defendant's employ was to develop and implement a maintenance management system including a register of maintenance requests.

Mr Morgan's familiarity with the scene and the history of complaints

Mr Morgan described his first professional involvement with the northern section of Simpson Road as being in 2004. He said this was probably in response to the emails copied and incorporated within Exhibit "G" which were sent by Mr Porter to the council in January and March 2004, as was evidenced by the council's CRMS dated 7 April 2004. The way Mr Morgan dealt with Mr Porter's complaint was to regard the complaint as relating only to the condition of the road surface. Exhibit "G" contains a copy of his response to Mr Porter by dated 20 May 2004. The relevant portion of that letter stated: "In view of the current deteriorating condition of this road section instructions have been issued to construct a bitumen strip within the road reserve in order to provide reasonable all weather access for the residents. This work will be undertaken early in the new financial year as insufficient maintenance funds are available in the current budget."

At a glance

Court

Decision date

Source

Judgment (647 paragraphs)

Parties

Cases Cited (30)