Pearson v Sutherland Shire Council

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?

2. 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?

2. 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."

Mr Morgan stated that prior to sending the 20 May 2004 letter he had carried out an inspection of the Simpson Road site in March or April 2004. He stated that he recalled that inspection in which he drove to the northern section of Simpson Road and then walked around that part of Simpson Road, in order to inspect the specific matter of interest to him, namely, the condition of the road surface. Following that inspection Mr Morgan then consulted with the defendant's maintenance manager, Bob Mathis and he then authorised the construction of a "bitumen strip" on the northern section of Simpson Road.

Mr Morgan's awareness of plaintiff's complaint concerning safety of the roadway

Mr Morgan said that the defendant's record of that complaint by the plaintiff, the CRMS form which was dated 30 June 2004 and which contained an outline of the plaintiff's telephone complaint, had been delivered to him personally.

Mr Morgan stated that around 7 September 2004, he had carried out a further or second inspection of the site. He could not be precise about the date of his inspection. No inspection log or contemporaneous notes were taken by him before he prepared his response. It appears from his response on the CRMS form that his inspection was in response to the plaintiff's earlier described telephone message of 30 June 2004. Mr Morgan stated that he recalled the detail of that inspection. Following that inspection he prepared a response. The extent of the recorded detail of that undertaking is set out in the defendant's CRMS form that is part of Exhibit "G". Mr Morgan's notation on the CRMS form was in the following terms: "Action - Finalised - Action - Operationally Finalised - Jeremy Morgan/SSC 07/09/2004 01:38:30 PM"

Mr Morgan's description in evidence of that second inspection went into some considerable detail.

Included in those details was a description of the lower northern portion of Simpson Road providing access to house numbers 12 to 18 on that road. He said it "doesn't appear to go anywhere, it seems quite uninviting" to motorists approaching the fork in the road. The plaintiff's submission concerning this evidence was that the description given by Mr Morgan does not accord with the photographs looking at the fork of Simpson Road. The plaintiff's submission did not take into account Mr Morgan's description of the road being narrow and rutted on his first inspection compared to the changes seen in the photographs. Nevertheless, Mr Morgan's description was subjective.

Another detail of Mr Morgan's evidence that was criticised in the plaintiff's submissions was his recollection that on his second inspection he noticed that the northern section of Simpson road had been "re-surfaced" and that the seal was in "quite good condition". The plaintiff submitted that those observations were inconsistent with the photographs taken of the scene on 11 July 2005, namely Exhibits "2", "3" and "4", even when making cautious allowance for changes that may have occurred at the scene over time when comparing descriptions made of the scene in September 2004 with photographs taken after the accident in July 2005.

According to Mr Morgan, before a "temporary seal" was applied to the roadway in August 2004, the northern section of Simpson Road had at least a "spray seal" on it and some parts had sections of cold mix seal applied over more than 25mm thickness. That description, from Mr Morgan's recollection, appears to be inconsistent with the recorded complaints made by Mr Bell to the effect that the section of roadway in question was "impassable" in early 2004. Mr Morgan's recollection also appears inconsistent with a statement by Mr Mathis contained in a council CRMS which formed part of Exhibit "G" and which stated that there was "no constructed road" in that section of the roadway.

Mr Morgan said that on his September 2004 inspection he recalled driving to a point just north of the carport outside 16 Simpson Road which was where he said he had turned his vehicle around "with relative ease". With regard to this evidence, in submissions the plaintiff pointed out that whilst Mr Morgan conceded that he could not recall whether he had made a three-point turn or a five-point turn at that time, he was nevertheless at pains to point out that he was not particularly familiar with the council vehicle he was driving on that occasion.

Mr Morgan stated that on the occasion of his second inspection of Simpson Road he made an on-the-spot assessment of the likely traffic volume for that part of Simpson Road as being low and largely confined to use by residents only. A factor that led him to that view was his own subjective perception of the "uninviting" appearance at the road fork. He also stated that he didn't anticipate many people driving down there. He stated that he expected any person driving along that section of Simpson Road, to be driving "quite slowly". In this regard the plaintiff pointed out that it was noteworthy that there were no advisory signs erected at the site suggesting that motorists adopt such a course.

Mr Morgan stated that on his inspection he recalled that "traction appeared to be quite good" when driving on the northern section of Simpson Road. He also said that whilst the shoulder of the roadway was grassed, he did not notice anything in particular that was unusual about it. He conceded that he undertook a risk assessment of the northern section of Simpson Road, and in relation to that risk assessment the plaintiff submitted it was undertaken informally. He agreed that if he had assessed the risk as being anything other than "low", the hazard would have been investigated to determine what was appropriate to treat the hazard. In relation to this evidence the plaintiff submitted that there can be no doubt that if Mr Morgan had assessed the safety risk to be anything other than "low", a guardrail would have been installed before July 2005, and therefore Mr Goodwin's death would not have occurred.

The credibility of the detail of Mr Morgan's recollections has been challenged by the plaintiff on a number of counts concerning the reasonableness of his evidence but also on account of the fact that he gave his evidence on these matters some 5 years after the event without the opportunity of preparing himself to give his evidence by reviewing the relevant documents that would be expected to have been held by the defendant. The plaintiff also submitted it was extraordinary, that on the occasion of his second inspection, Mr Morgan did not get out of his vehicle to assess the site. In this regard, his evidence was as follows: "… And the reason for that [was], the complaint was in regards to concerns about a vehicle in that area so I thought it was appropriate that the inspection be undertaken from the driver's seat, and that's the reason why it was undertaken from the vehicle and not on foot."

Mr Morgan said he did not inspect the consistency of the make-up or degree of impaction or solidity of the road shoulder. He stated that it was unnecessary to undertake a physical examination of the road shoulder or road edge, because "the edge was clearly visible from the driver's seat". The plaintiff submitted that Mr Morgan's explanations were disingenuous and added that it was scarcely believable that a qualified engineer would give that evidence.

Mr Morgan said that he recalled that on his inspection on 7 September 2004 there was no cracking in the road surface, nor was there any subsidence in the road shoulder. He also stated that during that inspection, which was after the "temporary seal" had been applied, he noted "it was a reasonably smooth seal so it was a comfortable ride". The plaintiff submitted that if this evidence was true, it remains to be explained how the same road surface, which was assessed to be used by a low volume of traffic, came to be assessed as having the weighted score of "maximum roughness" and of being "near failure" by early 2008 according to the recorded descriptors used by the council and which were explained by Mr Hewitt.

Mr Morgan's awareness of the Road Design Guidelines

Mr Morgan stated that he was aware of the RDG however he said that he did not consider it to be applicable. In this respect, his evidence was in agreement with the similar opinion expressed by Mr McDonald.

The plaintiff has submitted that in cross-examination, when Mr Morgan was referred to the last page of Exhibit "9", being the defendant's "Draft Roads Construction Program for 2009/2011", he sought to downplay the 8 out of 10 rating ascribed to Simpson Road for "safety issues", noting that there was no road listed with a higher or more unsafe rating.

Mr Morgan said that it would be unusual to recommend road reconstruction for "small sections" of a particular road because of the magnitude of the equipment required to undertake the works. The plaintiff drew attention to the fact that the road construction works to which Exhibit "9" related largely concerned kerb and guttering works throughout the Shire. The plaintiff submitted that is one reason why the documents comprising Exhibit "9" are of only marginal relevance at best to a consideration of safety issues prevailing at the northern section of Simpson Road.

Mr Morgan's commentary on the relative significance of council's Draft Roads Construction Program for 2009/2011

In cross-examination Mr Morgan stated that the statistical analysis within each of the spreadsheets comprising Exhibit "9" was intended only to be an indicator of a need for road construction works and was not intended to be a substitute for the exercise of professional judgment by council engineers. Mr Morgan conceded that if a council engineer identified a "significant safety issue" on an inspection and which involved a risk of injury or death, then the first step that would have been taken by an engineer, regardless of seniority, would have been to direct the road be barricaded followed by taking action to eliminate the risk posed by the hazard.

Mr Morgan's awareness of complaints concerning safety issues at Simpson Road

Mr Morgan claimed that in 2004, the only complaints concerning the northern section of Simpson Road of which he was aware, concerned the condition of the road surface. The plaintiff submitted that this evidence was at least disingenuous, if not false. Mr Morgan clarified the reference to the road surface as being a reference to the wearing surface traversed by vehicles.

Mr Morgan confirmed that in 2004 he would have researched the council's records as to complaints when he was required to inspect the roadway and prepare some action response.

Mr Morgan was taken to the handwritten letter from Mr Bell dated 8 February 2004 and which formed part of Exhibit "G". He claimed that the assertion by Mr Bell that "the shoulder itself is unstable" related to the "road surface", explaining that the shoulder was part of the road. The plaintiff submitted that answer was disingenuous because Mr Bell's complaint that vehicles had actually rolled over the road shoulder and had to be winched out, plainly went beyond a complaint that relates only to the "road surface".

Mr Morgan acknowledged that at the time of his first inspection of Simpson Road in April 2004, the northern section of that road was all but impassable. His inspection revealed, what he described as a very steeply sloped embankment. He observed the road to be in very poor condition with signs of rutting and deterioration of the trenches in the pavement section of the roadway making it very difficult to drive through there. He stated however that he did not believe that vehicles would be forced onto the road shoulder, as Mr Bell had asserted in his letter of complaint. Nor did Mr Morgan believe that the shoulder of the road was itself "unstable" as there were no signs of subsidence. The plaintiff submitted that it appeared that Mr Morgan's understanding of the meaning of the word "unstable" in this context was that there must be a risk of collapse. Mr Morgan did not appear to equate softness of the road shoulder with instability.

Mr Morgan said he recalled that when he inspected the site in April 2004 he walked along the road shoulder from number 12 to number 18 Simpson Road. He disputed that the area of the grassed shoulder would give rise to a lack of wheel traction on the grassed area if a vehicle were moving slowly. He disputed that in the context of the location the road could fairly be described as "very narrow" and instead described it as "an access road that serves two or three properties".

Mr Morgan disputed that almost all road users who drive into the northern section of Simpson Road would have to turn their vehicles around to drive out again. He considered that instead such vehicles could and should reverse out, a procedure he regarded as "relatively safe". Alternatively, Mr Morgan considered that it was reasonable to expect residents to advise friends, visitors or service personnel to park somewhere else, and walk to their properties when access was difficult. Mr Morgan conceded that the defendant had not erected an advisory sign alerting road users that this particular portion of Simpson Road was advised to be reserved for use by resident vehicles only.

Mr Morgan conceded that road users who might be unfamiliar with the area and who might be seeking access to the waterfront or recreational reserve might erroneously drive into Simpson Road seeking such access. Although Mr Morgan said he would be "surprised" if the vehicle usage estimate of 150 vehicles per day during weekends in summertime made by Mr Wilson was accurate, he conceded that he had made no attempt to measure traffic volume on that road by any method other than the process of assumption which he had adopted.

In cross-examination Mr Morgan adhered to his description of the lower northern section of Simpson Road, viewed from the road fork, as "uninviting". He was referred to the photograph Exhibit "H" which comprised a view of the road fork of Simpson Road. The plaintiff submitted that Mr Morgan's attempted explanation of his use of the word "uninviting" by stating that it just did not appear to be going anywhere, was unconvincing.

In cross-examination Mr Morgan conceded that it was obvious that road users would enter the northern section of Simpson Road by day and by night. He also conceded that some of those road users might be unfamiliar with the roadway and could enter it in error. He also agreed that it was likely that those people would have to make a turn on the northern section of Simpson Road. He stated that such vehicles would have to either turn from the north to the south or reverse out.

At the time of his first inspection of the roadway in March or April 2004 Mr Morgan was aware that Mr Bell had drawn attention to the fact that a number of vehicles had gone over the edge of the embankment. The plaintiff submitted that Mr Morgan's evidence in which he sought to explain these occurrences by reference to his belief that this was probably a function of the condition of the pavement and lack of traction on the road surface, rather than a result of vehicles attempting to turn on the narrow roadway, was unconvincing.

When Mr Morgan's attention as drawn to the slope or cross-fall on Simpson Road he claimed to recall that, at his first inspection of the site in April 2004, he made general observations of the cross-fall affecting the road surface and the road shoulder. He claimed that the cross-fall was not "particularly steep", and disputed that a cross-fall of 12 per cent, as was estimated by Mr McDonald, must be regarded as being steep. Mr Morgan acknowledged that he did not actually measure the cross-fall in the roadway at either of his inspections. He also acknowledged that me made no notes of those inspections other than the comments he subsequently recorded in the CRMS.

Mr Morgan stated his view that the cross-fall was not a matter of significance in a safety context. He reached that view on an assessment based on experience. His evidence was: "Q. In assessing the safety of the site an assessment of cross fall was a relevant matter, wasn't it? A. Yes.

Q. You didn't make any measurement of the cross fall, did you, at the either of your inspections? A. Not a measurement, no.

Q. Well you couldn't at the second inspection because you were just driving in your car, correct? A. That's correct.

Q. And of course you couldn't even make an observation of the cross fall from a position in the driver's seat of the car, could you? A. I don't agree with that.

Q. And in all events without measuring the cross fall do you say that you noticed it but didn't regard it as a matter of any significance in a safety context? A. I didn't believe it was a significant contributor to any risk factors in that location.

Q. Can you outline the method of analysis by which you reached that conclusion? A. Your Honour, I should clarify the point at which inspection - could I ask for clarification of which inspection we are referring to, inspection 1 or 2?

Q. Either, you didn't at either of your-- A. At the first inspection the cross fall with an unsealed or certainly areas where the seal was in poor condition then at that particular point in time any cross fall is a consideration once--

Q. Just pause there. That's because the cross fall can be rectified if it's excessive during the resealing process, correct? A. To a certain degree. Your Honour, once the area is sealed the cross fall is less of an issue particularly when vehicles are travelling at a slow speed, cross fall is more of an issue when vehicles are travelling at higher speed and around corners.

Q. You base that comment on the assumption that all four wheels are on a sealed pavement? A. Not necessarily. A new seal has particularly - compared to the first inspection the difference in grip between the first inspection and the second inspection the grip once the seal had been put in place had increased dramatically.

Q. Provided that all four wheels of a vehicle remained on the sealed surface? A. No, I don't believe you'd have to have all four wheels on there.

Q. Have you finished outlining your method of analysis? A. Method of analysis for the cross fall?

Q. Yes. A. I guess to answer that question is would be the experience seen and being involved in construction of many roads and driveways, quite familiar with the relative difference in grades.

Q. In other words experience? A. Experience, your Honour."

The plaintiff drew attention to the fact that this evidence from Mr Morgan as to his view of the cross-fall not being a significant factor was inconsistent with and was strongly contradicted by the engineering opinion of Mr McDonald. In this regard, the plaintiff submitted that if Mr Morgan is and was in 2004, genuinely of that view, then that fact reflected very poorly on his capacity to exercise reasonable professional judgment as a council engineer. The plaintiff also submitted that since Mr Morgan did not consider that the cross-fall on Simpson Road was significant in a safety sense, even if a vehicle had two wheels off the "sealed" surface this was another indication that with regard to safety issues, in 2004 Mr Morgan lacked the capacity to exercise reasonable professional engineering judgment. The plaintiff further submitted that view was apparent because at the trial in 2009, Mr Morgan reiterated his earlier view notwithstanding compelling reasons for the contrary view.

Mr Morgan stated that he did not regard the fact that vehicles were required to manoeuvre and turn within a restricted area on Simpson Road created a significant safety risk. He expressed this view notwithstanding the existence of the embankment on the western side of Simpson Road. Although he claimed that his perception of low traffic volumes on Simpson Road was relevant in assessing that risk, he conceded that he had made no attempt to measure or research the actual traffic volumes. His evidence in this regard was: "Q. The fact that persons both familiar and unfamiliar with that stretch of road would be attempting to turn their vehicles around. You didn't take that into account, did you? A. Yes.

Q. I see. What did you do in the interval between your first inspection and when the works were carried out to protect road users who may be attempting to turn on that narrow section of roadway by day or by night? A. As I said I was unfamiliar with the site and was able to turn the vehicle.

Q. Well, doesn't that mean that the fact of the matter is that you did not perceive any safety issue arising from people having to turn in that section of roadway? A. I didn't believe there was an immediate risk that must be - works must be carried out immediately--

Q. Or for that matter-- A. --because of the low volumes of traffic that would be expected in that location.

Q. Which you did not take any steps at all to measure, is that right? A. That's right.

Q. You made a simple assumption about volumes without making any enquiries, is that correct? A. The enquiries were with staff in council who are familiar with the area.

Q. Well, you didn't make any enquiries with, for example, any of the complainants who forwarded written or made telephone complaints to council about that specific section of roadway, did you? A. No, I don't believe I did.

Q. Back on the previous answer you gave. To the extent that you made enquiries of other council staff who were familiar with the area are you able to throw some light on their profession or experiential status and the extent to which you relied upon that they told you? In other words what did they tell you and what effect did it have on your judgment? A. Your Honour, as I recall the discussions were relating to number of complaints for that area and there were limited or as I recall there were no significant number of complaints from the general public other than the residents who live there about difficulties using that section of road and their experience in going to the site previously and not noted any other traffic in the area or cars generally parked out as a popular area tends to be.

Q. So what effect did that information have on how you approached your analysis? A. It affected my analysis in the assumption of the number of uses that would be expected in that area.

Q. So is what you're saying that the fact that in truth every resident of that section of roadway made a complaint to council but no other member of the public did inspired you to assess the road use as being residents only? A. I wouldn't say residents only, no, but they would be the highest population of use in that area.

Q. Have you recently researched the complaints that were received during 2004 before the work was done in August? A. Have I researched it?

Q. Are you aware that the residents of numbers 12, 16 and 18 all made complaints to council? A. Some of the house numbers have been blocked under Freedom of Information so I'm not sure what the numbers are.

Q. In fact the only block of land on that section of road from which no complaint emanated was the only block where nothing was built. That's the fact, isn't it?

A. As I said I can't answer on the house numbers because the documentation I have here has addressed blocked out under Freedom of Information, so I can't confirm addresses.

Q. If you had wanted in the first half of 2004 to obtain an accurate picture of the traffic volume along the northern end of Simpson Road, you had at least two different and free opportunities to obtain accurate information didn't you? One, by enquiring of any or all of the residents who had complained to council; two, by installing a device in the northern end of Simpson Road which would measure volume and types of vehicle using that section of road? A. Yes.

Q. Rather, you chose to rely on an estimate based on essentially what you perceived to be the number of houses there? A. Yes, that's correct.

Q. It was essentially a guess based on the number of residents only? A. I don't think it was a guess, I think it was a reasonable assumption based on the location and number of properties.

Q. Would you have a look at this page of exhibit G that's being handed to which is a series of emails, parts of which are blocked out. Is that a document you have seen before? A. (No verbal reply)

Q. You'll see there that the author of the email is in effect speaking for a number of residents enquiring of the status of action on the road. Does that email look familiar to you? A. I can't recall this specific email, your Honour."

Mr Morgan was taken to the council's record of the plaintiff's telephone complaint on 30 June 2004. He argued that the complaint as was recorded coincided with his own observations made at the time of the inspection he carried out in March or April 2004. The plaintiff submitted that Mr Morgan attempted to explain away the plaintiff's reference to "erosion" of the embankment, and that it was "very steep". The plaintiff submitted that the explanation proffered by Mr Morgan was unconvincing. Mr Morgan's evidence on this issue was: "Q. Well you didn't mention in your evidence earlier any sign of erosion of the embankment did you? A. This statement - my inspection, the steep, the very steep section is the incline going up to the area around the carport. There is a relatively steep incline of say - I would estimate it was around 20%. In that location there was a trench across the access road where there had been some cold mix restoration and that had eroded quite significantly and there was a - the road base underneath was exposed and that was eroding. So in the context of the particular location I'd need to clarify the exact place where that pipe was and that was not adjacent to the carport."

Mr Morgan stated that as at the time of the March/April 2004 inspection he was not concerned over the stability of the embankment and he had no significant concerns over the likelihood of vehicles losing traction on the shoulder of the road.

Although the plaintiff's 30 June 2004 recorded complaint was the second complaint concerning safety at Simpson Road that had explicitly and specifically referred to the risk of vehicles falling over the embankment, Mr Morgan conceded that it did not occur to him to take immediate action, either by arranging for the placement of barricades, or by initiating the installation of a guardrail, to eliminate the specific risk embodied with the complaint. He said he did not believe that the provision of a barrier would achieve anything and no immediate works were arranged. The plaintiff referred to Mr Morgan's stated view that any risk was not "an immediate risk" and submitted that, in the context, this was a nonsensical expression in the light of the evidence that there had been at least two complaints by residents concerning the prospect that vehicles may go over the embankment.

Mr Morgan stated that he had included in his "overall assessment" the possibility that a vehicle attempting to turn, might find its wheels on the grassed road shoulder, which had an even greater cross-fall than the road surface itself. Mr Morgan appeared to believe this was not a safety concern because he imagined that in that location any such vehicles would be travelling at relatively low speed so that a loss of traction could be overcome. The plaintiff submitted that such opinion expressed by Mr Morgan cast doubt on his capacity to exercise reasonable professional engineering judgment.

Mr Morgan appeared to be of the view that the cross-fall that continued and increased across the width of the road surface and road shoulder was actually a positive factor in assessing the safety of the road. Mr Morgan explained the basis for that view as being because "it actually helps with your vision of the embankment". The plaintiff submitted that opinion, if genuinely held, cast still further doubt on Mr Morgan's capacity to exercise reasonable professional engineering judgment.

It would appear that Mr Morgan considered that there were one or two preferential areas for vehicles to turn on the northern section of Simpson Road. His view was that if those areas were unavailable for turning, he would expect vehicles to reverse out. The plaintiff submitted that Mr Morgan's stated preference for that course of action cast further doubt on his capacity to exercise reasonable professional engineering judgment.

Mr Morgan denied that the prospect of vehicles rolling, sliding or falling down the embankment on the western side of the roadway of Simpson Road was a "significant safety issue". He further denied that the risk could have been easily and cheaply prevented. Mr Morgan had not previously seen the guardrail cost estimate prepared by Mr Vasquez in 2008. Without the benefit of any research, preparation or focussed consideration, he disputed the guardrail cost estimate made by Mr Vasquez, whose role in council specifically involves making such estimates. Mr Morgan claimed that a guardrail could not be installed "without doing other works" which implied widening or stabilising the embankment. That proposition was not put to Mr McDonald and Mr Hewitt did not seem to share Mr Morgan's view on this issue.

Having reviewed the array of evidence given in the proceedings it becomes necessary to record my findings concerning the credibility of testimony before making my findings of fact and before giving final consideration to the issues calling for determination.

I have found the plaintiff to be a credible witness who gave generally accurate testimony except in one small respect. This concerned the issue of whether the roadway where the incident occurred had a bituminous surface. Her stated recollection was that the portion of the roadway in question did not have a bituminous surface. Ultimately, it was accepted by her counsel that her recollection in that respect was mistaken. In my view an error of that nature on her part was understandable in the circumstances. She no longer lived in the area where the accident had occurred. She had in the meantime been through quite an emotional and traumatic time over the incident which involved the roadway.

Against that background I do not consider that her mistaken recollection on this point was a factor that reflected adversely on her credit because, as is evident from the evidence of the other lay witnesses, a number of the residents of Simpson Road, who still live there were also uncertain as to the composition or sealing of the road surface. In my view a want of that detail in her recollection in this regard should not detract from the plaintiff's credit or the reliability of her testimony generally. I consider that in all other respects the plaintiff gave truthful and accurate evidence and I regard her to be a truthful witness whose evidence I could rely upon.

For the purposes of stating my credit findings I consider it is convenient to group together the lay witnesses who gave oral evidence, namely Mr Wilson, Mr Bell and Mr Porter. In my view they were all impressive witnesses and I consider that each of them gave unvarnished and truthful accounts of their descriptions of the accident scene, its history and their recollections of relevant events. I could see no reason why I should not accept their evidence. I consider that the pre-accident correspondence and records that comprise Exhibit "G" confirms this view of their testimony.

The evidence of Mr Bell, whilst not in conflict with the other lay witnesses, requires additional comment. I consider that he was in the particularly advantageous position, not only as an interested resident, but also as a person who had before the accident been repeatedly called upon to render mechanical assistance to rescue motorists who had from time to time found themselves in difficulty with their vehicles on Simpson Road. I consider that he was very well placed to make his factual observations and descriptions of the site. I consider his evidence was given in an un-emotive, restrained and reasonable matter of fact manner. I consider him to be a reliable witness who confined himself to what he knew and did not speculate on matters not within his direct knowledge. It is against this background that I found his pre-accident 8 February 2004 letter to the council which incorporated his assessment of the instability of the road shoulder of Simpson Road to be particularly credible and compelling.

The evidence of Mr Christopher Bruce, a former neighbour of the plaintiff and the last person to see Mr Goodwin alive, was limited to the tender of his statement that was prepared by the investigating police. That statement, which was marked Exhibit "12', was not the subject of cross-examination because Mr Bruce refused to attend the hearing to give oral evidence and avoided the service of a subpoena that would have compelled him to attend. As a consequence of that refusal, the plaintiff had no opportunity to test some aspects of Mr Bruce's factual account of the events leading to the accident. Therefore I approached the untested evidence of Mr Bruce with some caution when it came to dealing with submissions as to what inferences I should draw from the content of his statement.

With respect to the evidence of Mr McDonald, Mr Winning and Mr Hewitt there is no suggestion other than that they gave truthful evidence. Nevertheless it is relevant that I record my impressions concerning each of these witnesses.

I consider that Mr McDonald, the expert civil engineer who was engaged by the plaintiff's solicitor, was a most impressive and careful expert witness. He was careful to identify his assumptions and he was also careful to limit his evidence to the confines of his expertise. I consider that he responded thoughtfully and candidly to matters that were explored with him in cross-examination and he was willing to make concessions where this was appropriate. In expressing his disagreement with matters put to him, he did so reasonably. I consider that he gave reliable expert evidence to assist the court with the task of resolving issues that arose in the proceedings. I have no reservations about accepting his evidence and the expert analyses within his evidence.

I consider that whilst Mr Winning, the traffic engineering consultant engaged by the defendant, gave truthful evidence, the depth and content of his evidence was somewhat limited by the terms of his engagement by the solicitor for the defendant and also by the segmented process by which his opinion was formed. That process started with the request made of him by Mr Vasquez or some other officer of the council to certify the guard rail analysis Mr Vasquez had prepared, and ended up in the form of an expert opinion prepared at the request of the solicitor for the defendant. In between these steps I considered the process to be somewhat opaque to analysis. I formed the view that this adversely impacted on the acceptability of his views on critical matters. Whilst that is not intended as a criticism of Mr Winning, I consider those limitations significantly and adversely impacted upon the usefulness of his opinions in this case, particularly since he did not possess qualifications in civil engineering. As a consequence, on critical matters I prefer the reasoned expert opinions of Mr McDonald.

I considered the evidence of Mr Davies, the Pittwater Council engineer to be of limited probative value. That view was not at all the result of any adverse view of his credibility, but rather, the limited approach he was asked to undertake to his contribution to the pool of evidence in this case. Whilst I am satisfied Mr Davies gave truthful evidence, I consider there were limitations upon the manner by which his evidence was procured by the defendant. My views on that process and the value of the products of it are incorporated in my summary of the evidence given by Mr Davies. It was those limitations as to the framework within which he formed his initial views, and the content of the concessions that he made in his evidence, that influenced me to prefer the expert opinions of Mr McDonald to those of Mr Davies wherever their evidence was at odds.

I consider that Mr Hewitt, the defendant's Director of Engineering, gave his evidence in reasonable terms. Whilst as a senior council officer he had no direct or day-to-day responsibility for the road works in question, he fielded questions on a range of council activities, procedures, policies and documents in a reasonable way and there was no reason to have reservations over the content or credibility of his testimony. When analysed, I considered that Mr Hewitt's evidence was largely supportive of the plaintiff's case, particularly in the areas of what would have been expected of a council engineer on finding a significant safety issue of concern at a road site inspection, and as to how the council had access to emergency financial resources and policies to appropriately and practically respond to such issues if they were of concern.

Mr Morgan, the Project and Planning Engineer who was employed by the defendant council at the time of the critical events was not employed by the defendant at the time of the hearing. I found his evidence was not particularly well informed, focussed or helpful. This may have been because he had not had the opportunity of reviewing relevant documents, files and council records before he gave his evidence. I allow for the possibility that this may have affected the detail and content of his evidence. Nevertheless there were aspects of Mr Morgan's evidence that I found to be unsatisfactory and not credible.

An example of one such matter was the divergence of evidence between Mr McDonald and Mr Morgan on the availability of adequate space for turning a vehicle on Simpson Road. Mr McDonald thought that in 2009 it was not safe to execute a 3-point turn on Simpson Road and Mr Morgan had no such concern, adding that he had no difficulty turning an unfamiliar vehicle at the time of his inspection on 7 September 2004. I note that the road did not materially change in width or with regard to its surface in the interim. I found his evidence that on the occasion of his 7 September 2004 inspection he had turned his vehicle around with relative ease, to be unconvincing.

I found Mr Morgan's evidence that equated his assumed low volume of traffic use on Simpson Road to a low risk site to be at best, a superficial analysis. I accept the plaintiff's submission that Mr Morgan's justification for assessing the lower northern end of Simpson road as uninviting as part of his justification for his low volume and low risk assessment was unconvincing and not based on factual enquiry.

His evidence was understandably defensive, but making due allowance for that factor, it seemed to me that he was determined to downplay the significance of the risk associated with vehicular use of Simpson Road. For example, his evidence equating Mr Bells' complaint about the unstable shoulder of the roadway to the road surface was in my view, needlessly guarded, defensive, argumentative and unconvincing. His evidence suggesting the road shoulder was not unstable was based on the proposition that there were no signs of subsidence but that evidence was difficult to reconcile with Mr Bell's letter dated 8 February 2004 in which Mr Bell described the shoulder as being covered in vegetation. It is difficult to see how one could determine there was no subsidence without a detailed and close examination of the site given the vegetation covering. I found this evidence to be remarkable in its argumentative detail especially given that Mr Morgan gave his evidence without prior access to records and files.

On aspects of engineering expertise, such as whether the cross-fall on Simpson road was steep or not, I reject Mr Morgan's evidence that it was not particularly steep. That evidence was not based on a site measurement and was diametrically opposed to Mr McDonald's measurement of 12 per cent, which I accept in preference to Mr Morgan's evidence. I reject Mr Morgan's assessment that the cross-fall was not a significant contributor to any risk factors at that location, especially given the other engineering evidence describing it as excessive compared to the usual 3 - 4 per cent. In my view that evidence demonstrates the superficiality of Mr Morgan's appreciation of the risks the location posed to road users, which in my view, in turn led him to under-assess the risk of the site.

I also found Mr Morgan's stated disagreement with the validity of the estimated cost of installation of a guardrail to be unconvincing, especially given the evidence of Mr McDonald, Mr Winning and the calculations of Mr Vasquez on this issue.

It is because of these matters that I find that the plaintiff's criticisms of the credibility of Mr Morgan's evidence have been made out. Accordingly, I prefer the engineering explanations within the evidence of Mr McDonald to the evidence given by Mr Morgan on such matters and I reject Mr Morgan's evidence where there is a material difference between the two.

In the paragraphs that follow I set out the facts which were not disputed.

The plaintiff's background, work history and situation

The plaintiff, Mrs Janis Pearson was born in New Zealand in 1946. She was aged 59 years at the time of the accident. She was aged 63 years at the time of the trial. She married in New Zealand in 1961. She had two children, the deceased, Shane Goodwin who was born in 1969 and a daughter who was born in 1971. Mrs Pearson immigrated to Australia with her family in 1976 and found employment in the travel industry. She divorced from her husband in 1981. She continued in her employment in the travel industry until the mid-1990s, when she was made redundant.

Following her redundancy the plaintiff developed symptoms of depression. She was successfully treated for that depression with the psychotropic medication Zoloft. At the time of the accident in question she was almost weaned off Zoloft.

In about 1996 / 1997 the plaintiff developed the musculo-skeletal symptoms of pain and fatigue and was diagnosed with the condition of fibromyalgia. This had apparently occurred as a result of the repetitive nature of her work tasks in the airline industry which involved "flicking too many tickets" in the course of her employment. Accordingly, in 1997 Mrs Pearson commenced to receive a disability pension for this condition. Apart from a 12 month period of employment with Kiwi International Airlines in the year 2000, she has not been engaged in any work and she has continued to receive her disability pension.

In 2003 the plaintiff commenced to live in rented premises at 18A Simpson Road Bundeena. Initially, her son Shane was residing in different premises which were located nearby in Short Street, Bundeena. Later he moved to reside with his mother at the premises at 18A Simpson Road.

The plaintiff's son Shane Goodwin was aged 36 years at the time of his death. He was single and there was no evidence to suggest that he was in anything but apparent good health. In the year 2000 he had commenced employment as a flight attendant. Initially this was with Impulse Airlines and then subsequently with Jetstar Airways. There was no issue that Mr Goodwin had a sufficient earning capacity and ability to provide the plaintiff with the support claimed. The uncontested evidence is that the deceased died as a result of traumatic asphyxia due to the accident. Had he survived, he would be aged 40 years at the time of the trial.

As a consequence of the plaintiff's pre-existing medical symptoms she was limited in her capacity to perform physical activities and she required regular assistance in a variety of the heavier domestic tasks around her household. The unchallenged evidence is that from a least the year 2003 onwards and until the time of the accident, the plaintiff had received considerable assistance from her son in the form of carrying out domestic tasks and the provision of financial support. Prior to Mr Goodwin's death, the plaintiff also enjoyed the benefit of significantly discounted air travel costs by reason of having being named as Mr Goodwin's beneficiary for travel discounts in his capacity as an airline employee and in accordance with travel benefits available to him and his family under the terms of his employment in that industry.

The plaintiff gave evidence that, but for the accident in which Mr Goodwin met his death, she and her son had the intention of continuing to reside together in a supportive relationship for the remainder of her life. They had purchased investment properties and they had formed the intention to purchase a property in Tasmania where they would continue to live and from where Mr Goodwin would be based in his continued employment with the Jetstar Airways. There was no evidence to suggest that Mr Goodwin's future employment prospects, earning capacity or ability to continue to provide assistance to the plaintiff were in any way limited or curtailed.

Findings of fact in respect of matters in contention

In the paragraphs that follow I set out my findings of fact on the disputed matters. These findings are organised into 8 discrete topics which concern the manner of occurrence of the accident on 11 July 2005; the accident scene; the history of Simpson Road; difficulty in turning vehicles on Simpson Road; traffic volumes; the cost of installing a guardrail or barrier; the available council resources and matters concerning the defendant's knowledge of the risk at the site.

I find that Shane Goodwin died on Monday 11 July 2005 as a result of injuries he suffered when his body was crushed by his Holden Jackaroo motor vehicle when it slid down an embankment situated at the western edge of the northern section of Simpson Road, Bundeena.

On the previous day, 10 July 2005, the plaintiff had parked the vehicle at or near the bottom of an incline further south of the accident scene on Simpson Road after she had experienced some mechanical difficulties in driving the vehicle.

It is necessary to review the events that led to Mr Goodwin's death.

On the morning of 11 July 2005 Mr Goodwin had managed to start the vehicle at the place where the plaintiff had left it the previous day. After starting the vehicle he drove it a short distance to the north up the incline of Simpson Road. He had parked it at the accident scene at a point on the roadway which was a short distance north of a carport outside 16 Simpson Road. A subsequent attempt by Mr Goodwin to re-start the vehicle proved unsuccessful.

Subsequently, Mr Goodwin, together with a neighbour, Mr Bruce, unsuccessfully attempted to start the vehicle using jumper leads. I accept the description given by Mr Bruce at paragraph 10 of his statement to the investigating police, comprising Exhibit "12", in which he described how before making manual attempts to turn Mr Goodwin's vehicle to face south there had been attempts to start the vehicle. I infer from the terms of Mr Bruce's description of Mr Goodwin "trying" to start the vehicle and the use of jumper leads, that such attempts had been unsuccessful because of a low battery charge which was insufficient to start the ignition. I find that it was for this reason that Mr Goodwin required Mr Bruce's assistance to move the vehicle.

I infer from Mr Bruce's statement that Mr Goodwin's purpose in wanting to move the vehicle was to position it in such a way that the front of the vehicle would be turned to face south in Simpson Road so that he could get the vehicle attended to by coasting the vehicle down the hill towards a service station that was located downhill from where the vehicle was situated. For this purpose some attempts had been made by Mr Goodwin and Mr Bruce together to push Mr Goodwin's vehicle manually. From Mr Bruce's description, this appeared to be partly successful in moving the position of the vehicle from its original position to a point where a small rock on the road surface impeded further progress. This occurred by means of Mr Bruce and Mr Goodwin both pushing the vehicle backwards. Mr Goodwin was by the driver's door pushing the vehicle and was at the same time turning the steering wheel to the full lock position to the right. It is clear from Mr Bruce's description of these events, which I accept, that he was pushing the vehicle from its front end with the vehicle being pushed backwards and in an uphill direction. I infer from this description that the handbrake had been disengaged at that time. Otherwise, any attempts at manually pushing the vehicle in those circumstances, would have been futile.

After the vehicle encountered the rock on the road it could not be moved further back. It was at that point that Mr Bruce advised Mr Goodwin to apply the handbrake to prevent the vehicle moving forward or downhill.

Mr Bruce's vehicle was then positioned behind Mr Goodwin's vehicle. Mr Bruce attached a rope to the front bumper of his own vehicle and to the rear towbar of Mr Goodwin's vehicle in order to apply a pulling force by means of reversing his own vehicle whilst the rope was under strain. The intention was to move Mr Goodwin's vehicle to dislodge it from the small rock impeding further movement and to enable Mr Goodwin's vehicle to be positioned to face south to enable Mr Goodwin to then "coast" his vehicle down the hill to the service station in order to obtain assistance.

Mr Bruce ceased applying towing traction using his own vehicle after two or three attempts to pull Mr Goodwin's vehicle around from behind because he had become concerned about what this procedure may have been doing to the clutch of his own vehicle as he detected a smell he thought was coming from his clutch. I infer from the description, this smell was due to clutch friction caused by the process described. At the time Mr Bruce found he was unable to obtain sufficient traction on the road to enable him to move the plaintiff's vehicle over the rock because his own vehicle "was on the dirt" some 5 or 6 metres away from Mr Goodwin's vehicle.

A number of possible scenarios emerge to explain why Mr Bruce's vehicle was unable to get sufficient traction on the roadway. These include the possibility that all four wheels of Mr Bruce's vehicle were on the dirt portion of the road, or that one or more of them were on the dirt portion of the road or that one or more of the wheels were on the non-bitumen shoulder of the road. Another possibility is that Mr Goodwin's vehicle was simply too heavy to be moved in the manner attempted. The evidence does not permit a non-speculative and reasoned resolution of these possible scenarios but it is not necessary to resolve these questions.

Mr Bruce found that he had to interrupt his attempts at assistance and leave the scene in order to keep an appointment elsewhere. He suggested to Mr Goodwin that he enlist the assistance of someone at the service station for a tow "backwards". It is from that description that I infer that when Mr Bruce left the scene, the front of Mr Goodwin's vehicle was facing downhill to the south to some degree and that Mr Bruce's suggestion involved the notion that the suggested towing vehicle proceed for a little distance downhill and in reverse to dislodge Mr Goodwin's vehicle and get it moving downhill, using the brakes and steering to guide its course. Before Mr Bruce left the scene he said that he saw that the wheels on Mr Goodwin's vehicle were "quite straight". I infer from that description that Mr Goodwin must have straightened the wheels on his vehicle in order to be able to try to manoeuvre his vehicle to "coast" down the hill.

The defendant submitted that it was of some significance that Mr Bruce had stated that before he had commenced the described attempts at towing by traction he had observed that Mr Goodwin's vehicle "was still on the bitumen". There is no evidence as to where Mr Bruce was standing when he acquired this stated perception. The plaintiff submitted that Mr Bruce's evidence in this regard should not be accepted because it was not possible to test it in order to resolve inherent ambiguities within the description he gave. I accept that submission. I consider Mr Bruce's description of the position of the vehicle on the bitumen to be of little probative value, especially where the party wanting to test the evidence in question is precluded from doing so by reason of the refusal of the witness to subject himself to cross-examination.

Accordingly, on Mr Bruce's untested and unexplained account of his stated observation of the vehicle on the bitumen, I consider that it was not possible to resolve, other than through speculation, whether by that expression he meant that all four wheels on Mr Goodwin's vehicle were on the bitumen, or whether only one or less than four of them were on the bitumen or whether the whole of the general space occupied by the bulk of Mr Goodwin's vehicle was on the bituminised portion of the roadway. Whilst a possible inference arises that Mr Bruce was referring to the whole of Mr Goodwin's vehicle being on the bitumen, it is clear that is not the only inference that arises. There is no rational basis upon which I feel justified in choosing between these competing possibilities and the issue cannot be resolved by speculation in the absence of acceptable evidence: Luxton v Vines [1952] HCA 19 at [8]; (1952) 85 CLR 352 at p 358.

There were no eyewitnesses to the subsequent sequence of events in which Mr Goodwin's vehicle moved from its position of inertia and then proceeded downhill, also carrying Mr Goodwin downhill with the vehicle in the process. It is therefore necessary to reconstruct the relevant events from the otherwise known and unchallenged facts and reasoned inferences from those facts.

It is clear that at some time immediately before the vehicle went over the embankment on the western edge of Simpson Road, the vehicle had been stationary, with its nose facing to some degree towards the south and also to some degree to the west towards the embankment and at an angle to the embankment.

The plaintiff submits that the two front wheels of Mr Goodwin's vehicle were probably on the grassed shoulder adjacent to a section of temporary road seal which had previously been applied by the defendant to that section of Simpson Road in or around September 2004. When the police photograph that comprised Exhibit "3" is considered it appears to me that at the time there was a contiguity of the bituminised aggregate road surface with the grassed and vegetation covered shoulder of the road at the point where Mr Goodwin's vehicle left the roadway and proceeded down the embankment. In my view, the point of no return must refer to the non-bituminised shoulder or grassed edge of the roadway.

Given such contiguity between the road surface and the grassed shoulder, given the relative narrowness of the road and given Mrs Pearson's pre-accident observation that she had seen Mr Goodwin's vehicle reach "the point of no return" on the road, an observation which I accept, I consider that there is a satisfactory evidentiary basis upon which to infer that at least one if not both of the front wheels of Mr Goodwin's vehicle was on the grassed shoulder of the roadway immediately before the vehicle moved off to proceed down the embankment.

In my view the description of the temporary bituminised seal of the roadway which comprised road aggregate blue metal bound by sprayed bitumen is consistent with what is shown in Exhibit "3". This leads me to conclude that at the point where Mr Goodwin's vehicle had left the roadway, the edge of which was paved in this way, the bituminised edge was contiguous with the grassed shoulder. I accept the description of the grassed shoulder area being approximately one metre in width.

On that analysis it seems to me to be quite feasible that a heavy vehicle such as Mr Goodwin's vehicle, being difficult to manoeuvre without motive power, would end up with its front wheels, or at least one of them, partly on the grassed shoulder of a narrow road as a result of attempts to turn it by pushing it manually. I therefore find that immediately before Mr Goodwin's vehicle commenced to move down the embankment at least one if not more of the wheels of the vehicle were resting on the grassed shoulder edge of the roadway.

This raises the question of what caused the vehicle to move from its position of inertia in order to enable it to proceed down the embankment.

The plaintiff submitted that before Mr Goodwin's vehicle left the roadway it had been stationary and it had been left in first gear with its handbrake on and engaged and with the ignition of the vehicle turned off. The plaintiff submits that I should infer these facts from the state of the vehicle when it was inspected at the Engadine police yard. It was submitted that it is highly improbable that the position of these controls would have been materially moved or changed from how they were found at the accident scene, especially during the currency of a police investigation of the events. It is necessary to evaluate that submission as the defendant submits it involves elements of unwarranted speculation.

In the analysis it is pertinent to note that before he left the scene, Mr Bruce suggested to Mr Goodwin that he engage the handbrake of the vehicle. I infer from the content of Mr Bruce's statement that Mr Goodwin in fact engaged the handbrake as was suggested because there is no evidence from within Mr Bruce's statement to the effect that the vehicle had moved before Mr Bruce left the scene to attend to his appointment. If the handbrake had not been engaged and if the vehicle had been left in neutral gear I consider that the operation of gravity would have caused it to move forward towards the south and I infer that this did not occur in the presence of Mr Bruce. In my view the stationary position of the vehicle could only have been maintained if either the handbrake and or the gears had been engaged, irrespective of the position with the ignition switch. I consider it most unlikely that the vehicle was left in neutral gear with the handbrake disengaged at the time Mr Bruce left the scene.

The plaintiff has submitted that because the vehicle was inspected at the Engadine police holding yard, and at that time found to be in first gear with the handbrake on and the ignition off, I should find that the vehicle was also in that state both at the time it was found at the bottom of the embankment and beforehand at the time it commenced to slide down the embankment. The defendant has submitted that there is no proper factual foundation for such a finding.

In this case there is no integral evidentiary chain to demonstrate that the state of the vehicle when it was inspected at the police holding yard was the same state it was in at the time it was found immediately after the incident. In this case no evidence was called by either party to describe the detail of the tasks that were undertaken to free Mr Goodwin's body at the scene or the steps taken during the process of righting and recovering the vehicle from its position down the embankment where it had been resting on the driver's side. The defendant submits this state of the evidence precludes findings of the kind sought by the plaintiff.

If this were a case that required an application of the criminal standard of proof beyond reasonable doubt concerning the contended facts, the defendant's submission would have much if not overwhelming force. However, this case requires proof on the less onerous standard of the balance of probabilities, which is the basis upon which I must proceed.

It is convenient to start with the description of the ignition key being in the off position as observed at the police yard.

I can readily envisage a circumstance where at an accident scene such as the one under examination, where a vehicle was found to have slid down an embankment and was found to have its ignition on, irrespective of whether the engine as running or not, persons who subsequently attended, whether they were lay persons or trained rescuers, would have acted prudently and switched off the ignition on account of the risk fire. Accordingly, on the ignition issue examined in isolation, on the basis of the findings at the police yard alone, I consider that it would be inappropriate and speculative to draw the contended inference that the ignition was turned off at the time Mr Goodwin's vehicle commenced to slide down the embankment. I come to this view because there is no satisfactory evidentiary basis for me to come to that conclusion by reasonably excluding other possibilities that could have prevailed to provide an explanation for the later observation at the police yard that the ignition key was then in the off position. However, I consider that it was most unlikely that the ignition would have been left on by Mr Goodwin where the battery was in a low state of charge.

This leads to a consideration of the concurrent observations at the police yard of the transmission of the vehicle being engaged in gear and the handbrake engaged in the on position. Although a similar analysis to that of the ignition key findings at the police yard could be argued to apply to the engagement of the handbrake and the gears I consider these issues are in a different category to the ignition key issue and thus require a different consideration, notwithstanding the defendant's submissions concerning the lacking state of the evidence on these matters.

Without attempting to catalogue the possibilities concerning the handbrake and gear issues, these possibilities include the scenario as was submitted by the plaintiff, as well as the possibility that either or both the handbrake and the gears were not engaged at the commencement of the slide but were engaged at some stage during the period in which the vehicle was recovered and stored at the police yard.

Although there is no direct evidence to describe the events relating to the handbrake and the gears I consider that there is a reasonably arguable basis from which to infer that these controls were not relevantly operated before the vehicle was stored at the police yard. The question remains as to whether such inferences should reasonably be drawn in the circumstances.

A factor in favour of drawing the contended inferences is that I consider it would have been highly likely to have been apparent to those at the scene who were attempting to free Mr Goodwin's body that the circumstances of the accident would be the subject of at least a coronial investigation if not an inquest. This would have required those responsible for the investigation to ensure the preservation of the evidence. In those circumstances I consider that it would have been most unlikely that the state of the vehicle, as it was found at the scene, would have been interfered with either at the scene or at the police yard. In my view this could reasonably base an inference that there was no such interference and that the state of the gears and handbrake on the vehicle as seen at the police yard was the same as at the accident scene.

Another factor in favour of the proposition that the handbrake and the gears were engaged before the vehicle left the roadway to slide down the embankment is that with a flat battery or a battery with insufficient charge to start the ignition, and with the vehicle being in a somewhat precarious position on a sloping roadway, it would have been imprudent not to take measures to ensure that the vehicle remained stationary until it was ready to be moved safely, either with or without assistance. In support of that course there is the evidence of Mr Bruce, who advised Mr Goodwin to apply the handbrake. The inference that arises from Mr Bruce's statement is to the effect that the vehicle was not moving when he left the scene, for otherwise, the contrary proposition would have been a salient matter to record in a police witness statement of the events. In my view the absence of such contrary content leads me to draw the inference that the vehicle was secured, at least by the engagement of the handbrake, if not also by the engagement of the gears at the time Mr Bruce left the scene.

A further factor in favour of the proposition that the gears, if not the handbrake, were engaged before the vehicle left the roadway is the extreme improbability that Mr Goodwin could have been in a position to engage either the handbrake or the gears as the vehicle slid towards and then down the embankment. In this regard I consider that for either of these events to have occurred during that downhill course Mr Goodwin, would have to have been seated in the driver's seat in order to have been able to operate those controls. In my view, and for the reasons as explained by Mr Wilson and Mr McDonald concerning the nature of Mr Goodwin's injuries and the location of blood stains on the inside of the driver's door, which reasoning I accept, the evidence is overwhelmingly against that possibility.

In my view the inference is compelling that the handbrake and the gears on the vehicle were both engaged at the time it commenced to slide off the roadway and down the embankment. I consider this inference involves something more substantive than mere speculation, as was submitted by the defendant and for the foregoing reasons I do not accept the submissions of the defendant on this point.

Having determined that the vehicle was parked with its handbrake on with its gears engaged, it remains necessary to explain how the vehicle could have moved so as to enable the accident to occur.

Mr McDonald has given expert evidence that it was possible for the vehicle to have moved from its position of inertia and to have then slid down the embankment notwithstanding that the handbrake was on and notwithstanding that the vehicle had been left in gear. He said that if the vehicle was on a slope, such as a cross-slope, as I find it was, and the point of traction on the underlying surface was unstable, this in combination with the application of a relatively trivial force, could cause the vehicle to slide down the embankment. That evidence was not contradicted, it was not glaringly improbable and I therefore accept it.

It is therefore necessary to arrive at an understanding of how the vehicle could possibly have moved during the events in question.

I infer from Mr Bruce's description of problems starting the vehicle due to the battery having a low charge that it was most improbable that the vehicle was started by the operation of the ignition key and the battery and then driven by Mr Goodwin by means of motive power. In my view this then rules out the possibility of the vehicle sliding down the embankment due to it being mishandled whilst being driven by Mr Goodwin.

One possibility that arises for consideration is that Mr Goodwin may have somehow managed, either alone or with other assistance, to push the vehicle to get it moving on the roadway and was attempting to clutch start it by these events when it went down the embankment perhaps because he had not managed to jump in and turn the steering wheel to the left in sufficient time and to a sufficient degree to keep the vehicle on the road. I discount and rule out this possibility as unlikely for several reasons. First, no one has come forward to give any evidence suggestive of such an account so it is speculative. Secondly, since both Mr Bruce and Mr Goodwin were unsuccessful in their attempts to move the vehicle in the manner described, I consider it most improbable that Mr Goodwin would have been able to achieve the task of moving his heavy vehicle alone. Thirdly, even if the vehicle had been moved forward successfully in the manner postulated, given that the wheels were observed to be straight which I take to mean they were pointing forward, it seems to me unlikely that the vehicle would not have been capable of being steered forward on the roadway and then downhill without encountering any mishap with the embankment. Fourthly, and most significantly, even if is assumed that the gears were engaged in an attempted clutch start of the vehicle, such a course appears inconsistent with the handbrake remaining in the engaged position.

I coming to that view I have considered and discounted as a speculative and improbable occurrence, the possibility of a scenario whereby Mr Goodwin somehow managed to move the vehicle over a sufficient distance and over a sufficient speed to justify him thinking that it was worthwhile to attempt a clutch start of the vehicle. Whilst such a possibility could explain why the vehicle was found with the gear engaged there is no evidence which would justify the necessary inferences that there was sufficient time and distance on the slope for these events to occur and that there was sufficient time for Mr Goodwin to have engaged the handbrake as an emergency response in the course of these events. In my view that scenario involves speculation that is unwarranted on the evidence.

I accept Mr McDonald's analysis that at the time the vehicle moved off and commenced to travel down the embankment, Mr Goodwin was outside his vehicle. I find that Mr Goodwin was standing outside the vehicle between the open driver's door and the doorsill when the vehicle commenced to move. Mr Wilson's description of the injuries tends to confirm that view. I infer that Mr Goodwin was not seated in the driver's seat of his vehicle at the time nor was he there immediately prior to the vehicle sliding over the embankment. I draw these inferences from the fact that the vehicle was parked in gear with the handbrake engaged in the on position.

No witness was able to say whether or not Mr Goodwin was pushing the vehicle at the time it moved towards the embankment although I consider that it was unlikely he was doing so. I infer this was so because previous attempts at pushing were ineffective and this would probably have disinclined him to attempt to push the vehicle himself.

Instead I prefer Mr McDonald's explanation, supported by Mr Wilson's description, that Mr Goodwin probably partly leaned into the vehicle perhaps in order to retrieve something from the interior of the vehicle or he may have simply been leaning against the vehicle. I also accept as credible the possibility that a loose rock or aggregate or a soft or unstable surface under a wheel or wheels may have been dislodged and moved under the weight of the stationary vehicle thereby causing the inertia to change to enable the vehicle to move and then commence to slide.

Either way, I accept as credible Mr McDonald's explanation that by retrieving an object from within the vehicle, or by bumping the vehicle, a force was created sufficient to overcome the inertia of the vehicle. I find that this in turn caused the vehicle to slide, with its wheels locked. It then slid down the grassed shoulder and over the edge of the embankment thereby carrying Mr Goodwin with it between the open driver's door and the doorsill. I find that thereafter, when the vehicle was close to the bottom of the embankment it rolled onto the driver's side, thereby trapping Mr Goodwin's lower body beneath the driver's side of the vehicle in the manner described by Mr Wilson. I also infer this from the nature of the injuries found to have been occasioned to Mr Goodwin and from the location of the blood stains found on the inside of the driver's door after the accident.

In August 2004 the defendant had applied a "temporary seal", comprising aggregate and a binding agent, to the road surface on the northern section of Simpson Road. The temporary seal was laid in a central strip, proceeding as far north as 12 Simpson Road. The width of that strip was a little greater than one car width. Along the relevant section of Simpson Road there was a grassed shoulder of variable width located adjacent to the edge of the temporary seal. The shoulder consisted of weeds and grass on a soft under-base. The soft consistency of the road shoulder meant that it provided little slip resistance if the wheels of a vehicle strayed onto it.

The sealed strip of the road surface had a cross-fall of approximately 12 per cent running from east to west. That cross-fall had the physical effect of directing vehicles travelling on the roadway towards the western shoulder of the road.

In addition to the cross-fall on the sealed road surface the grassed road shoulder had a greater degree of cross-fall which exceeded 12 per cent. Beyond that, the embankment which commenced to fall away at the road shoulder was of a steep angle of at least 45 degrees or more.

At any point on the northern portion between 12 Simpson Road and 18 Simpson Road, the road was of insufficient width to enable a vehicle to execute a U-turn or a three-point turn. In that area a five-point turn, at least, was required. Turning on the roadway was difficult, even at the two widest areas of that section of road located immediately to the north of the carport outside 16 Simpson Road, and near the driveway of 12 Simpson Road. At any other point, turning was extremely difficult and hazardous.

At the time of Mr Goodwin's death there were no parking restrictions in place, on the relevant section of Simpson Road. Neither were there any advisory signs in place advising motorists entering that section of Simpson Road that turning was difficult, that parking was limited or unavailable, or that entrance should be limited to resident vehicles only. There were no restrictions to vehicular access to that section of Simpson Road, nor was there any sign posting of a specific speed limit.

No guardrails or other protective barriers had been installed by the defendant council along the western edge of the relevant section of Simpson Road prior to or subsequent to Mr Goodwin's death. Nor was there any natural protection or kerbing and guttering to prevent or impede a vehicle from sliding down the embankment. The condition of the western edge of the temporary seal at the time of Mr Goodwin's death was as shown in Exhibit "3". This comprised aggregate and a binding agent. That surface provided less slip resistance or grip than a full bituminous seal. The condition of the temporary seal in the relevant part of Simpson Road at the time of Mr Goodwin's death, was as shown in Exhibit "4". It also provided less slip resistance or grip than would have been the case with a full bituminous seal.

In 1987 significant road works were carried out by the defendant on other sections of Simpson Road, following a collapse of land and rocks onto the roadway. Those road works included the application of a full bituminous seal to the surface and the installation of two guardrails. Those works finished well south of the accident scene and well south of 18/18A Simpson Road.

In 2001 sewerage works were carried out on all sections of Simpson Road. As a result, all sections of Simpson Road were damaged and required repair and reinstalment. The four copy photographs comprising Exhibit "8" that were apparently taken in March 2001 give some indication of the extent of those works. Thereafter some patching and remedial work to the road surface was carried out by sewerage contractors. After the sewerage contractors left the site no rectification work was carried out by the defendant on the northern section of Simpson Road.

The condition of the northern section of Simpson Road was brought to the attention of the defendant council on numerous occasions between 1959 and the date of Mr Goodwin's death.

On 6 June 2001, Mr Bell, who lived at 12 Simpson Road, sent a handwritten letter to the defendant, requesting that the defendant provide safe all-weather access along that section of road. No work was carried out in response to that complaint.

On 8 October 2003 Mr Bell made a telephone complaint to the defendant as to the condition of that section of Simpson Road. No work was carried out by the defendant in response to that complaint.

In January and March 2004 Mr Neil Porter, who lived at 16 Simpson Road, forwarded emails to the defendant on behalf of the residents of the northern section of Simpson Road. Those emails contained complaints about the condition of the road surface.

On 8 February 2004, Mr Bell wrote to the defendant, specifically in connection with "the neglected and dangerous state of the north end of Simpson Road". Mr Bell asserted that the road "is so rutted that it is all but impassable for light vehicles". In that letter Mr Bell further asserted that vehicles were forced onto the road shoulder, and that "on occasions, cars have rolled over this shoulder and have had to be winched out". Mr Bell further asserted that the road shoulder itself was "unstable".

On 7 April 2004 a further complaint was received by the defendant, referring to the surface of the relevant section of road as "a disgrace".

In April 2004, in response to these complaints, Mr Jeremy Morgan, a civil engineer employed by the defendant, who held a senior management position as the defendant's "Project Planning Engineer", inspected the northern section of Simpson Road. At that inspection Mr Morgan confined his attention to the condition of the road surface. He did not turn his mind to the risk that vehicles attempting to turn or manoeuvre on that section of road might roll or slide over the embankment, notwithstanding the terms of the complaint to the defendant council as communicated by Mr Bell on 8 February 2004.

On 20 May 2004, Mr Morgan wrote a letter to Mr Porter, confirming that "instructions have been issued to construct a bitumen strip within the road reserve in order to provide reasonable all-weather access for the residents". The proposed works were described as "a temporary measure".

On 30 June 2004, the plaintiff made a telephone complaint to the defendant. That call was logged by the defendant and a summary of it was delivered to Mr Morgan. The complaint referred to the plaintiff's expressed concern that "cars may go over the embankment, which has been eroding for the past 12 months". The plaintiff further informed the defendant that the embankment was "very steep, so that once (a) car is committed (it) must keep going. If traction is lost, (a vehicle) will easily go over (the) embankment".

In August 2004, a "temporary seal" was applied to the road surface of Simpson Road. This was by way of a strip of a little more than one car width, to the relevant section of Simpson Road. No other work was carried out. No guardrail or other protective barrier was installed, in response to the complaint made by the plaintiff on 30 June 2004, or in relation to other complaints. There is no direct evidence that any work was done to the eroding embankment, as distinct from the work done on the sealing of the road surface. This leads me to conclude that the embankment remained in an eroded state between June 2004 and the time of the accident.

On or around 7 September 2004 Mr Morgan "inspected" the relevant section of road. On that occasion he did so without leaving the driver's seat of his vehicle.

At that inspection, which was his second inspection of the site, Mr Morgan again did not turn his mind to the risk that vehicles might roll or slide over the embankment. This was so notwithstanding the terms of the complaints made by the plaintiff and Mr Bell. As a consequence, I consider that he failed to assess the condition of the road shoulder, in terms of its lack of slip resistance and softness, and I consider that he failed to attach adequate significance to the narrowness of the road, the cross-fall, or the necessity for vehicles to turn at any point along the section of road between 12 and 18/18A Simpson Road.

No further works were carried out on the relevant section of Simpson Road between September 2004 and the time of the death of Mr Goodwin. No work was done on the eroding embankment to which the plaintiff had made earlier reference in her call to the defendant on 30 June 2004.

I find that it was difficult, or extremely difficult, for a vehicle to turn around at any point between 12 and 18/18A Simpson Road. I reject the evidence of Mr Morgan to the contrary on this issue. In the past numerous vehicles had lost traction and experienced difficulties due to their wheels being on or over the western edge of the road prior to Mr Goodwin's death. In this regard a number of road users had to be assisted by Mr Bell to retrieve their vehicles. At least one such vehicle slid or rolled down the embankment prior to Mr Goodwin's death.

Prior to Mr Goodwin's death the difficulty experienced in turning on that section of roadway should have been obvious to Mr Morgan and any other council engineer at the site at the times of their inspections.

Prior to Mr Goodwin's death, the risk that a vehicle might roll or slide down the embankment whilst attempting to turn or manoeuvre on that section of Simpson Road, should have been obvious to Mr Morgan and any other council engineer at the site even without attention being drawn to the issue by reason of the complaints made by the plaintiff and Mr Bell.

The risk of such an event occurring was increased by the cross-fall of the road surface towards the embankment, and the even greater degree of cross-fall of the grassed road shoulder. That fact should have been obvious to Mr Morgan and to any other council engineer who inspected the site.

Because the northern section of Simpson Road was a no-through road, almost every vehicle entering that section of road would at some stage be predictably required to turn around. That fact should have been obvious to Mr Morgan and any council engineer at the times of their various inspections of the site. I reject Mr Morgan's evidence to the effect that on the occasion of his inspection of the road on or about 7 September 2004 he was able to turn his vehicle without difficulty.

Before Mr Goodwin's death Mr Morgan had assumed that the volume of traffic using the northern section of Simpson Road was "low". Mr Morgan made no attempt to measure the actual traffic volume, in order to justify that assumption. The volume of traffic using that section of Simpson Road could easily have been measured by using a simple traffic measuring device in the possession of the defendant. Alternatively, enquiries could have been made of local residents, all of whom had complained to the defendant as to the condition of that section of road and all of whom could by reason of their earlier complaints about the condition of the roadway, have reasonably been presumed to have relevant knowledge of traffic volumes and road usage.

I accept the evidence from the residents that the average number of vehicles using that section of road on weekdays, and weekends in winter, was at least 20 vehicles per day. I also accept that on weekends in summer, up to 150 vehicles per day could enter the northern section of Simpson Road. I do not consider such usage to reasonably constitute low volume use.

Apart from vehicles entering the driveway of 12 Simpson Road, or the carport of 16 Simpson Road, there was no provision on Simpson Road for parking for residents, visitors or service vehicles, on the northern section of Simpson Road. I infer from this fact that it was probable that vehicles would be parked on Simpson Road, between 12 and 18/18A Simpson Road, at most times by day and particularly by night.

Despite such usage and potential usage, apart from locating a guide post which was not protective of vehicles that might leave the road surface, assuming it was the defendant that had placed that guide post, no action was taken by the defendant to mark or protect the western edge of that section of road for vehicles using the road by day or night.

The cost of erecting a guardrail along the relevant 30 metre length of the northern section of Simpson Road, as an isolated project, in August 2008, was estimated by Mr Vasquez and certified by Mr Winning to be in the amount of $8464. Mr Morgan disputed that estimate. I reject his evidence in that regard because it is contradicted by the estimate prepared by Mr Vasquez and certified by Mr Winning. I accept the plaintiff's submissions that if a guardrail had been erected in conjunction with other works at the site, such as occurred in August 2004 which was prior to Mr Goodwin's death, the cost would have been likely to be less than $8000.

At the time of and prior to the time of Mr Goodwin's death, the defendant had available to it a surplus fund with which to undertake "urgent" remedial work to roads within the Shire if such works were considered by a council engineer to be needed to address a safety issue of concern.

The surplus funds available to the council for that purpose dwarfed the relatively trivial cost of erecting a guardrail along the relevant section of Simpson Road. In any event, it was the policy of council at the time of Mr Goodwin's death, to undertake "emergency" work where a significant road safety issue was assessed, to be present, regardless of the cost of such works.

I find that prior to Mr Goodwin's death the defendant had actual knowledge of the particular risk, the materialisation of which resulted in Mr Goodwin's death, namely the risk that a vehicle could slide or roll over the unprotected western edge of Simpson Road, and proceed down the embankment.

I find that risk was, or should have been, obvious to the council engineers who had inspected the site in 1987, 2001, April 2004 and again September 2004. It is noteworthy that the last two of these inspections had been carried out by Mr Morgan. I find that on the occasions of the 2004 inspections it was or should have been obvious to any council engineer inspecting the site prior to Mr Goodwin's death that if a vehicle got into difficulty on the roadway of Simpson Road and slid or rolled down the embankment, serious bodily injury or death might result.

There is no issue that both Mr Morgan and Mr Hewitt, both of whom were employees of the defendant had the requisite authority and responsibility for the authorisation, initiation and undertaking of road works, maintenance and repairs, and installation of roadside devices or traffic control facilities, including the installation of guardrails, including at the scene where Mr Goodwin died.

Findings on liability and causation issues calling for determination

I now turn to a consideration of the liability and causation issues that call for decision.

Issue 1 - The duty of care owed and the scope of that duty

The defendant has conceded that it was the relevant road authority with relevant powers in relation to the road, its designated boundaries and the adjacent embankment. It would ordinarily follow from the defendant having such powers, that concomitant responsibilities would also arise in the context of a duty of care. However, because a road is involved in the issue under consideration, the duty of care is not the same as if it had arisen from the occupation of land : s 146(d) Roads Act 1993. Nevertheless, I consider that a duty of care was owed by the defendant to road users.

The defendant argued for a "barrier" approach to be applied to the analysis of the issue of the duty of care owed and sought to differentiate the duty of care owed to Mr Goodwin and the duty of care owed to the plaintiff. It argued that a differential approach to the question of duty of care was required due to the provisions of s 3(1) of the Compensation to Relatives Act 1897 and the requirements of the Civil Liability Act 2002 and the related damages considerations. By that approach the defendant sought to truncate the analysis by introducing a "barrier" or threshold argument concerning an alleged failure on Mr Goodwin's part to take care for his own safety, thereby seeking to limit the scope of the analysis of the duty of care.

The defendant pointed to s 3(1) of the Compensation to Relatives Act 1897 which enables a plaintiff to bring proceedings in circumstances where the death of a person has been caused by the negligence of another and argued that in this case, the condition precedent for the plaintiff's action under that Act has not been satisfied because, it was argued, had Mr Goodwin survived his injuries, he would not have been entitled to maintain an action against the defendant in this case.

In support of that position the defendant argued there was an alleged "gross" failure of the part of Mr Goodwin to exercise reasonable care for himself. The defendant consequently argued that the duty owed by the defendant road authority was necessarily limited by its scope to those road users who exercised reasonable care for their own safety. In my view, for the reasons I have outlined in the ensuing paragraphs, that submission is untenable.

Even if that submission were tenable, I consider that it is of no assistance to the defendant in this case because the defendant carries the onus of demonstrating any alleged failure on the part of Mr Goodwin to take care for his own safety. In the absence of any eyewitness accounts of the actual events that led to Mr Goodwin's death, other than by inferences it seeks to draw, the defendant was unable to point to any evidence that demonstrated a failure on Mr Goodwin's part of the kind alleged.

Without such evidence I therefore decline to make a threshold finding at the outset of the analysis along the lines of the defendant's submission that Mr Goodwin failed to take reasonable care for his safety. I will return to this issue when dealing with the defendant's submissions concerning alleged contributory negligence.

The plaintiff submitted that the approach taken by the defendant's submissions on the question of the existence of a duty of care in this case represented a generalised oversimplification of statements in Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 206 CLR 512 with regard to the existence of a duty of care. The plaintiff pointed to Brodie, at [163] and an extract of the leading judgment of Gaudron, McHugh and Gummow JJ which states: "The formulation of the duty in terms which require that a road be safe not in all circumstances but for users exercising reasonable care for their own safety is even more important where, as in Ghantous , the plaintiff was a pedestrian. In general, such persons are more able to see and avoid imperfections in a road surface. It is the nature of walking in the outdoors that the ground may not be as even, flat or smooth as other surfaces. As Callinan J points out in his reasons in Ghantous , persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes. Of course, some allowance must be made for inadvertence. Certain dangers may not readily be perceived because of inadequate lighting or the nature of the danger ... Each case will, of course, turn on its own facts ."

The reference in the leading judgment in Brodie to the judgment of Callinan J in Ghantous was to the passage at [355] which is reproduced in part as follows: "…Even if I were to assume that an action in negligence lay against the respondent for any failure to maintain or improve the footpath to keep or make it safe, whether as a matter of misfeasance or otherwise, I would conclude that there was no failure in that regard because the footpath was not, despite what the expert witness was allowed to say, unsafe… There was no concealment of the difference in height. It was plain to be seen. The world is not a level playing field. It is not unreasonable to expect that people will see in broad daylight what lies ahead of them in the ordinary course as they walk along. No special vigilance is required for this."

The plaintiff submitted, correctly in my view, that these statements did not create the asserted "principle" that a road authority owes a duty only to those road users who take reasonable care for their own safety. Instead, statutory authorities that have statutory powers concerning the design, construction, maintenance and repair of roads are obliged to take reasonable care that the exercise of or failure to exercise these powers does not create a foreseeable risk of harm to road users : Brodie per Gaudron, McHugh and Gummow JJ at [150].

The arguments of the defendant to the contrary of that position are, in my view, incorrect. This is so because at the analytical stage of determining whether or not a duty of care was owed, the defendant's approach artificially seeks to impose a barrier to truncate a full evaluation of the circumstances by seeking to merge the separate elements of the tort of negligence. Such an approach would be to permit an oversimplification that overlooks the importance of determining the preliminary analysis of the presence or otherwise of the essential liability elements of the tort in an appropriate sequence, namely the existence of a duty of care, the content, scope or standard of care required, breach of duty and causation.

The plaintiff submits, and I accept, that the barrier approach contended for by the defendant, in which only the conduct of Mr Goodwin is given consideration, is an erroneous one. This is because it oversimplifies the exercise and wrongly seeks to pre-empt or preclude an evaluation of other important issues, such as the respective conduct of the parties in the circumstances and the possible basis for apportionment for any contributory negligence. In this regard, whilst the barrier approach suggested by the defendant may have some analytical relevance in some cases, in this case, to isolate the analysis in the manner suggested appears to me to be in conflict with the requirement that a court undertake a "balancing exercise" or calculus as was described by Mason J in Wyong Shire Council v Shirt [1980] HCA 81; (1981) 146 CLR 40.

The Shirt calculus was approved in Brodie by Gaudron, McHugh and Gummow JJ at [151] and is undertaken in such cases as a matter of convention : Waverley Municipal Council v Swain [2003] NSWCA 61 at [114] and Turnbull v Alm & Anor [2004] NSWCA 173. In the latter case, at [43] Bryson JA summarised the required approach in the following extract: "In the Shirt calculus the consideration that a duty is owed to persons who take ordinary care for their own safety is only one of the elements in the calculus; the nature and the difficulty of the measures which would overcome the risk, and the likelihood that the risk will come to realisation at some time … are also elements in the calculus; all have to be taken together…"

Whilst in this case an examination of the actions of Mr Goodwin may be an appropriate starting point for the evaluation of the existence of a duty of care, that approach can only be a starting point and it does not adequately represent the whole of the required exercise : Brodie at [160]. Further confirmation of what seems to me to be the erroneousness of the defendant's barrier approach to the question of the existence of a duty of care is found in Sutherland Shire Council v Henshaw [2004] NSWCA 386. In that case at [61], the following extract from the judgment of Bryson JA states: " Overall, the ground on which Ghantous was disposed of was that there was no negligence, not that there was no duty of care . Gaudron, McHugh, Gummow and Hayne JJ expressly adopted Callinan J's ground of disposition, and Gleeson CJ and Kirby J's conclusions were similar in this respect. The decision of the High Court in Brodie is not an authoritative source for a legal rule that, whatever result might otherwise be produced by applying the Shirt Calculus to the facts, no duty of care is owed by a highway authority to a pedestrian who does not take reasonable care for his or her own safety. Judgments in Brodie do not make any such rule its ratio decidendi. )"

Bryson JA further explained at [89]: "What I understand to be established by the preponderance of opinion in the Court of Appeal, and by adherence to principle so far as principle can be seen, is that Courts should approach the disposition of cases … on the view that the question whether a pedestrian who was making reasonable use of a road, such as by walking on a footpath, took reasonable care for his or her own safety does not determine the existence of a duty of care, but is relevant to the standard of care or scope of duty and to whether there was a breach of duty by the highway authority. In relation to those questions inadvertence and momentary inattention of a pedestrian are within the range of risks foresight of which may move a highway authority to take such action as regularly inspecting footpaths and carrying out repairs, subject to considerations of reasonableness."

Bryson JA also pointed out in Sutherland Shire Council v Henshaw at [87] that whilst it is helpful to a point, to look at different elements of the tort, they are not separate, and should be treated as part of the whole consideration. Bryson JA traced the authorities for that view back to John Pfeiffer Pty Ltd v Canny [1981] HCA 52; (1981) 148 CLR 218 per Brennan J at 241-242 which was also cited by Brennan J in Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424 at [27] p 487.

The recent trend of authority both in the High Court and in the Court of Appeal confirms that a duty is owed by a road authority to road users and such duty cannot be negated by a failure on the part of road users to take reasonable care for their own safety, assuming such failure can be established : Leichhardt Municipal Council v Montgomery [2007] HCA 6; (2007) 233 ALR 200; Chotiputhsilpa v Waterhouse [2005] NSWCA 295; Edson v RTA [2006] NSWCA 68; North Sydney Council v Binks [2007] NSWCA 245.

In my view the foregoing approach, garnered from these authorities, does not enable or justify a truncated or barrier approach to the analysis to be undertaken, as has been contended for by the defendant in this case.

Accordingly, in my view, in the circumstances of this case the defendant is not in a position to dispute that a duty of care was owed to Mr Goodwin. It follows, subject to the specific requirements of the Civil Liability Act 2002 which have to be satisfied, the same considerations apply to the duty owed to the plaintiff. Accordingly, I find the defendant owed a duty of care to both Mr Goodwin and the plaintiff.

The scope or content of the duty of care owed by the defendant requires some definition before undertaking an analysis of whether or not there were relevant breaches of that duty.

The common law duty imposes a duty on a road authority to take reasonable care to ensure that any failure on its part to do work does not create a foreseeable risk of harm to a class of persons which includes, in the present case, Mr Goodwin ; see Brodie at [150]. In my view, unless special circumstances can be shown to justify a departure from this principle, there ought to be no difference in the content of the duty owed to Mr Goodwin as distinct from the duty owed to his mother, the plaintiff in this case. In my view there are no special circumstances shown in this case to justify such a departure from this principle.

The duty arising at common law is governed by several limiting factors that arise pursuant to statute.

First, the duty of care arising from the powers invested in the road authority does not attract the full array of obligations cast upon an occupier of land : s 146(d) of the Roads Act 1993. The effect of that statutory provision therefore requires a consideration within the context of an application of the Shirt calculus. However in this case s 146(d) does not prevent or defeat a claim of the kind brought by the plaintiff in this case as the claimed breaches of duty do not arise from the occupation of the road but rather, from the obligation to take reasonable care to maintain the road and make it safe from foreseeable sources of danger.

Secondly, another limiter on the scope of the duty of care is the relationship criteria provided by s 3(1) of the Compensation to Relatives Act 1897. This is of relevance to determining whether or not the plaintiff can demonstrate an entitlement to bring a claim. It is clear from the terms of s 3(1) that had Mr Goodwin not died, he would have been entitled to bring a claim in respect of injuries received. However the defendant has raised an argument based on s 30(4) of the Civil Liability Act 2002 and claims that the plaintiff is precluded from recovering damages for pure mental harm because Mr Goodwin was owed no duty because, it is argued, the deceased would not have been able to recover damages due to his own conduct.

The defendant has argued that its duty to the plaintiff in respect of the nervous shock claim depends upon the plaintiff proving a duty of care would have been owed to Mr Goodwin and an entitlement of Mr Goodwin to damages if a breach of that duty was established. The defendant relies upon s 30(4) of the Civil Liability Act 2002 to argue that no duty of care could have been owed to Mr Goodwin, nor would any breach of duty towards Mr Goodwin have been found to have occurred, thereby precluding an award of damages in this case.

Section 30(4) of the Act provides: "…(4) No damages are to be awarded to the plaintiff for pure mental harm if the recovery of damages from the defendant by or through the victim in respect of the act or omission would be prevented by any provision of this Act or any other written or unwritten law..."

In my view s 30(4) does not operate in this case in the manner contended by the defendant in order to limit the scope of the duty owed to either Mr Goodwin or the plaintiff unless the defendant demonstrates that Mr Goodwin failed to exercise reasonable care for his own safety. The defendant has not demonstrated any such failure on the part of Mr Goodwin as a preliminary matter. I will therefore deal with the arguments concerning alleged failure on Mr Goodwin's part to take care for his own safety when dealing with the defendant's plea of contributory negligence and not as a preliminary matter.

The defendant further submitted that its duty to the plaintiff in respect of "pure mental harm" depends upon the defendant "foreseeing a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken": s 32(1) of the Civil Liability Act 2002. In my view this raises questions of fact that fall to be determined according to conventional assessment criteria and I will deal with the requirements of s 32(1) when analysing the medical evidence in dealing with damages.

The final limiting factor arising under statute concerns Div 2 of Pt 1A of the Civil Liability Act 2002, namely ss 5B and 5C. Those matters will be addressed in detail in my reasons concerning causation when dealing with Issue 2.

In this case the plaintiff claims that the practical scope or content of the duty of care extends to the defendant being duty bound to take reasonable measures aimed at preventing a foreseeable risk of injury or death should a vehicle slide from the roadway or its shoulder and over the embankment of the western edge of Simpson Road. The plaintiff contends that such measures included the need for the installation of a guardrail or a similar device to prevent vehicles going over the embankment. I consider this to be the correct definition of the scope of the duty of care owed.

The plaintiff's claim in negligence essentially centres around contended failures by the defendant to achieve an appropriate risk assessment of the roadway and to ensure that the road was made safe by means of the installation of a guardrail or a wire safety fence. In addition the plaintiff relied upon an allegation of failure to heed the complaints of residents, including her own specific complaint, concerning dangers presented by the condition of the road and failure to close the road pending remedial action to render it safe. The initial allegations made by the plaintiff concerning failure to seal the shoulders of the road and failure to provide a safe turning circle on the road were ultimately not pursued as the case developed.

I have rejected the defendant's primary submission to the effect that there was no relevant breach of duty of care because the duty of care did not extend to road users who failed to exercise reasonable care for themselves.

The defendant relied upon the alternative submission that the defendant had appropriately assessed Simpson Road to be "low risk" and that this justified deferring consideration of any work to install a guardrail or a barrier to a time when the road was to be included in the road construction programme.

The defendant submitted that the council had no cause to inspect the relevant section of Simpson Road for the purpose of responding to customer requests prior to 2004.

The defendant submitted that the first of Mr Morgan's assessments, which was carried out shortly before 20 May 2004, was to inspect the condition of the surface of the road. The defendant submitted that the second of Mr Morgan's assessments, which was carried out on or about 7 September 2004 was for the specific purpose of responding to and assessing the plaintiff's complaint dated 30 June 2004 as recorded in the defendant's document identified as CRMS 766002234 which formed part of Exhibit "G".

The defendant submitted that according to a prospective analysis of the risk, as is required by Vairy, at the time Mr Morgan carried out his inspections, his assessment of the roadway as being of low risk was a reasonable one in the circumstances and as such, the immediate response of installation of a guardrail or safety fence, or the closure of the roadway to traffic was not required.

The defendant further submitted that any case based on alleged failures on the part of the council to install a guardrail or a safety barrier, or alternatively, to close the road to vehicular traffic, required the plaintiff to prove negligence according to the standard demanded by the common law and also satisfying the supplementary tests posed by the provisions of the Civil Liability Act 2002.

Approach to determining whether there was a relevant breach of duty of care

Any assessment of whether there has been a breach of the duty of care owed requires an application of the Shirt calculus : Shirt per Mason J at pp 47 - 48 ; RTA v Dederer [2007] HCA 42; (2007) 234 CLR 330 per Gummow J at [18], [68]; pp 337, 353-354. The evaluation in question requires a consideration of the magnitude of the risk, the degree of probability of its occurrence, along with the expense, degree of difficulty and inconvenience associated with taking preventive action. It is against this framework that I approach the determination of the issues relating to alleged breach of duty of care.

I find that the defendant council had been aware of complaints made by residents over a long period of time concerning the poor state of Simpson Road. That awareness is clearly evident from the documentation comprising Exhibit "G" and from the oral evidence of the witnesses who gave evidence on these matters. The poor state of Simpson Road was obviously due to the operation of a variety of factors that impacted at the site over time and the plaintiff does not seek a finding that the poor state of the road that was evident in early 2004 was due to a breach of duty of care on the part of the defendant. In my view that concession is soundly based as a finding to the contrary of that concession by the plaintiff would seek to impose too high a duty of the council.

However, I find that by at least 20 May 2004 the defendant must be taken to have known that aspects of the northern end of Simpson Road and its surrounds, including the embankment, posed significant safety problems for road users. That knowledge was acquired by the defendant in at least two ways, the first being through the written and oral communications recorded in Exhibit "G" and secondly, at least as a result of inspections of the roadway carried out by council officers whose duty was to act on such communications. An additional means of acquiring this knowledge was through the defendant's periodical walking inspections of the roadways within its shire, as was described by Mr Hewitt which, ought to have identified problems evident at the site.

Although the residents of Simpson Road would have undoubtedly preferred the inspection carried out by Mr Morgan to have been carried out earlier than when it occurred just prior to May 2004, I consider that there is no proper basis for finding that the defendant failed to appropriately heed the complaints of residents in a more timely manner before that time. In my view the actions of Mr Morgan, who was the responsible council engineer, in attending Simpson Road for his first inspection just before May 2004, represented an appropriate initial albeit somewhat belated response by the defendant to the repeated calls by residents for some action to be taken by the council to address their concerns over safety issues concerning the Simpson Road site.

I consider that the low risk assessment made by Mr Morgan during and following his inspection of the northern end of Simpson Road in early 2004 was inappropriate to the circumstances that prevailed at the site at that time and was based on an inadequate consideration of the problems and risks that would have been evident to an ordinarily skilled civil engineer.

I accept that at the time of Mr Morgan's first inspection in early 2004 it ought to have been plain to a civil engineer in his position, that there was an interplay of a combination of aspects of the site that presented real safety problems and risks for road users. Those problems related not only to the unmade or unsealed nature of the rutted dirt road surface, but also related to the narrowness of the roadway, the difficulty in safely manoeuvring and turning vehicles on the roadway, and especially the juxtaposition of the edge of the roadway to a steep sloping embankment over which vehicles could readily slide. These were factors present at the site which did not require additional input beyond relatively simple site observation by an engineer in the position of Mr Morgan. In this regard, I accept the evidence of Mr McDonald on these matters.

Given the specific and reasonably contemporaneous content of the warnings by local residents of the risk to road users, which included the risk of injury and death, I find that Mr Morgan's assessment of low risk was inappropriate and incorrect. He arrived at that assessment by making what I consider to have been an arbitrary assumption of road usage that was uninformed by any form of measurement of likely traffic volumes experienced on the road or by enquiry from local residents on that subject. Instead, he made a guess concerning the volume of traffic that might typically use that road, and in doing so he did not consider the potential use of the road by non-residents visiting the area, including at weekends either purposefully or inadvertently, including visits by service vehicles. I reject the notion that the roadway was "uninviting" as he asserted to be a consideration of the assessment.

I find that at the time of Mr Morgan's first inspection, if he or someone at his direction had taken the opportunity to speak to the local residents, who were only very few in number, to obtain an indication of traffic volumes, or had steps been taken to measure traffic volume using a device for that purpose, a different picture of road usage would most probably have emerged. If the more accurate picture of usage by weekend visitors seeking access to the nearby national park and waterfront had been known to him, I find that it would have been most unlikely that he would have assessed the site as being used by low volumes of traffic and therefore this would not have led to an assessment of low risk to road users as in fact occurred.

I find that the low risk assessment made by Mr Morgan came about because of inadequate consideration by him of the factors and features at paly at the site and by lack of adequate enquiry concerning the likely use of the roadway, those matters being of critical importance to the formulation of a risk assessment.

Nature of the safety problems evident on inspection of the site as at 20 May 2004

In my view the nature of the safety issues of concern at the northern end of Simpson Road that ought to have been evident as at May 2004 encompassed a wide range of matters, the components of which ought to have been obvious to a council engineer in the position of Mr Morgan at the time of his first inspection of the site.

These issues of concern included the narrowness of the single traffic lane of the road, the rutted, uneven and eroded parts of the road surface, parts of which were unmade, the cross-fall on the roadway, erosion and softness of parts of the road shoulder, the absence of adequate turning and parking space on the narrow cul-de-sac road which required that vehicles turn around within a confined space not suitable for a safe 3 point turn or to reverse in order to exit following entry, the absence of kerbing or guttering or a line of guide posts to assist to guide traffic on the road and the absence of guardrails or safety fencing to prevent vehicles in difficulty from leaving the narrow road and sliding down the steep embankment which was immediately adjacent to the narrow road.

It is against that background that Mr Morgan's risk assessment must be considered for its adequacy.

Adequacy of Mr Morgan's risk assessment as at 20 May 2004

In my view the entirety of the range of the safety issues of concern that I have outlined in the preceding paragraphs should have all been considered as a whole as part of the risk assessment of the site when Mr Morgan undertook his assessment in or around May 2004. I consider that such an inclusive approach was mandated both by the terms of the communications received by the council up until that time, as is evident within Exhibit "G", as well as from the nature and content of the observations that an engineer in Mr Morgan's position would be expected to have recognised on an inspection. In that regard I infer from the evidence of Mr McDonald that such observations were there and available for the making.

Instead, it appears from Mr Morgan's evidence, which he gave unaided by any council records, work logs, work sheets or contemporaneous notes that may have been made during or shortly after the inspection that may have thrown light on the detail of the matter, that all that Mr Morgan considered as being relevant was the condition of the road surface. In my view, as was explained by Mr McDonald, that assessment was inadequate and fell below the standard expected of an ordinarily skilled council civil engineer who had been allocated the task of inspecting the roadway for a consideration of its safety in response to specific resident complaints raising safety concerns.

Adequacy of the council's response to resident complaints over safety issues

Following Mr Morgan's inspection in or about May 2004, the council approved and executed road works to upgrade the road surface of the northern part of Simpson Road. The application of a temporary bitumen seal of the central traffic lane on the road surface was the only part of those works that was described with specificity by any witness who had actual knowledge of what was done in the course of such works. That witness was Mr Morgan. He had the opportunity of inspecting the works both before and after they were carried out.

No witness gave any evidence of any other work actually carried out on the condition of the road shoulder or the embankment adjacent to the road surface. Although Mr Hewitt gave evidence to the effect that he assumed that when the temporary bitumen seal had been applied to the road, the road shoulder would have been compacted by the vehicles that were used by the council during the works, I do not regard such an assumption, without descriptive evidence and documentation of what was actually done, as probative of the facts implicit within that assumption. Nor do I regard that evidence to be an appropriate basis for drawing inferences along the lines of the assumption made by Mr Hewitt as Mr Hewitt was not responsible for managing or inspecting those works.

Accordingly, I consider that the defendant's remedial works completed in or around August 2004, the detail of which was envisaged by Mr Morgan's letter dated 20 May 2004 (part of Exhibit "G") addressed to Mr Porter in response to Mr Porter's email dated 16 August 2004 (part of Exhibit "6") represented an inadequate response on the part of the council to the safety problems posed by the site.

I accept as inherently reasonable the evidence Mr McDonald gave as to the appropriate civil engineering safety options that the council should have considered in the circumstances. These options were the erection of a guardrail or a wire safety fence. The purpose of these options was to prevent vehicles from leaving the roadway to proceed down the embankment at the risk of injury to life and limb. I accept that if these matters could not have been put in train urgently or promptly then the roadway should have been closed to vehicular traffic until the required remedial work was completed.

It is significant that Mr Morgan's letter dated 20 May 2004 made reference to budgetary constrains for the prioritising of kerb and guttering work from maintenance funds. By the reference to maintenance funds it is evident that Mr Morgan did not appreciate that protective work was required on the embankment, not just on the road surface. Clearly, by determining that the proposed bitumen strip be constructed on the road surface Mr Morgan was differentiating work on the deteriorated road surface as a priority not to be deferred. In my view, had he given proper consideration to the specific complaints of residents drawing attention to the soft and eroded or unstable road shoulder, he would have realised this too required similar priority attention. It is apparent, as was submitted by the defendant, that the reason the embankment work was deferred is that it was not considered urgent because of low volume traffic use which somehow became equated with low risk. In my view, the assessment of the volume of traffic use was avoidably erroneous and this lead to the avoidably erroneous low risk assessment being made by Mr Morgan.

Adequacy of Mr Morgan's inspection on or about 7 September 2004

I consider that Mr Morgan's inspection of the northern end of Simpson Road on or about 7 September 2004 was inadequate for the circumstances and failed to fulfil the purpose of such an inspection. As a such it fell below the standard that was expected of an ordinarily skilled council engineer in Mr Morgan's position at that time.

I have come to this view both because of the manner in which the inspection was carried out and because of the limited parameters of that inspection.

In my view it was unacceptable for Mr Morgan to have carried out his inspection from the driver's seat of his car. Given that he had attended at the site to view the completed road works and, I infer, to certify that the job had been properly and adequately completed to the standards expected by the council, I consider that his described visual inspection of the bitumen seal from the driver's seat, in combination with gauging the nature of the ride of his vehicle over the surface, was inadequate. It was inadequate because he only considered the road surface in that inspection. Instead, a more broadly encompassing general review of the site should have been undertaken to consider and address the specific safety issues that had been raised in the correspondence within Exhibit "G" concerning the unstable road shoulder and also the particular concerns raised by the plaintiff in her communication to the defendant on 30 June 2004 in which she drew attention to the embankment that had been eroding over the previous 12 months.

In my view Mr Morgan's 7 September inspection was needlessly limited in its parameters. I consider that his focus for that inspection was unduly narrow in that it focussed on the adequacy of the road surface and he therefore did not address the other safety concerns that had earlier been communicated to the defendant by the local residents.

Based on the evidence of Mr McDonald, whose evidence I accept, I consider that at the time of his inspection of the road on 7 September 2004 Mr Morgan ought to have recognised the fact that the surface of the road had an excessive cross-fall of the order of 12 per cent and had an even greater cross-fall on the road shoulder when an appropriate cross-fall for the road would have been of the order of between 3 to 4 per cent. In this regard I consider that he failed to adequately recognise the safety issue that on a narrow roadway adjacent to an embankment where, in the absence of a place for vehicles to turn, vehicles on that road would have to turn around and could thereby become stuck or get into difficulty and proceed over the nearby sloping embankment. In view of Mr McDonald's evidence that a safe 3-point turn was unachievable at the site at the time of his inspection, which I infer involved no difference in the topography in September 2004, I reject Mr Morgan's evidence that he was able to make a vehicular turn at the site with ease.

In my view it ought to have been plainly foreseeable to someone in Mr Morgan's position at the time of each of his inspections, both in September 2004 and beforehand, that in a variety of ways, a vehicle such as Mr Goodwin's might reach the point of no return on the edge of the roadway and slide down the embankment and cause serious injury or death. In my view such a prospect was not a flimsy or fanciful possibility. Instead, I consider it to have been a very real prospect, especially given the evidence of the lay witnesses and the nature and content of Exhibit "G", the content of which was within the knowledge of the defendant council at the relevant time. In my view, in 2004, these matters required a prudent response with appropriate measures by the council, aimed at avoiding such an incident. Instead because an incorrect assessment of traffic volume and site risk was made by the defendant, this set the scene for the accident in question to occur.

I find that on a prospective analysis of the risks posed by the site, in 2004, either the installation of a guardrail or the lesser measure of installation of a wire safety fence would each have been an appropriate and required council response to a correct appreciation of the risks posed by the site. I accept the assessment by Mr Vasquez that the price of installing an appropriate 20 to 30 metre guardrail at the site in 2008 would have been of the order of $8300 and that in 2004, such installation was likely to involve a somewhat lesser cost. I also accept that the installation of a wire safety fence at the site would have involved the council in even lesser expense. Furthermore, if it was anticipated that there was likely to be some difficulty or delay encountered in the implementation of either of these measures, I consider that the appropriate council response to such anticipated delay ought to have been for the council to close the road to vehicular traffic until such time as the site could have been made safe. In this regard I accept the evidence of Mr McDonald.

I also find that the same considerations would have applied to the inspection by Mr Morgan on or about 7 September 2004. Accordingly, I find that the risk assessments undertaken by Mr Morgan were inadequate and represented a less than adequate response to the circumstances of the site.

There is no documentary evidence to indicate that Mr Morgan gave the matter of the installation of a safety guardrail or safety fence any consideration and there is no documentation of the nature of the risk assessment he arrived at following his inspection. In those circumstances I am not prepared to make these inferences as submitted by the defendant, particularly given my credit reservations and findings concerning the evidence of Mr Morgan

Subject to a consideration of Pt 1A Div 2 of the Civil Liability Act, 2002, I have concluded that the defendant's risk assessment of the site, and the underlying assessment of traffic volume using the road which formed a part of that risk assessment, as well as the defendant's responses to the risks evident at the site, was not in accordance with what was expected to be a reasonable exercise of professional judgment by a council civil engineer of ordinary skill and competence. I have come to this view on an acceptance of the evidence of Mr McDonald and, properly understood, on the evidence of Mr Hewitt, which I consider supports that view once the true nature of the risk is appreciated and given proper attention.

In applying the Shirt calculus I have considered the likelihood, in the period 2004 to July 2005, of the occurrence of an incident of the kind that befell Mr Goodwin at the site on Simpson Road. In doing so I have taken into account the magnitude of the risk, namely the significant injury or death of a road user due to a vehicle sliding down the embankment due to the prevailing conditions earlier described. In doing so I have also considered the relatively small expense and inconvenience associated with the installation of a guardrail or a wire safety fence, especially if such work were to have been carried out in August 2004 in conjunction with other works on the site. The next and final analysis of the issue of breach of duty of care requires a consideration of the provisions of Pt 1A of the Civil Liability Act 2002.

Consideration of Pt 1A of the Civil Liability Act 2002

It is necessary to consider whether the failures that I have outlined in respect of the previous issue of breach of duty of care should, according to the statutory framework, result in a finding that the defendant was negligent in the circumstances under consideration : s 5B of the Civil Liability Act 2002.

In context, the first consideration s 5B issue, is to assess whether the risk in question was foreseeable in the sense that the defendant knew or ought to have known of it : s 5B(1)(a) of the Act. In this case there are two relevant considerations, the first being the content of the lay factual evidence and secondly, the expert engineering evidence.

On the first consideration it is beyond dispute that the defendant council was in receipt of specific complaints from local residents which alerted the defendant to the risk that vehicles could go over the embankment of Simpson Road if something was not done by the council about the safety of the site. With regard to the second consideration, I accept the evidence of Mr McDonald as to the foreseeability of risk on the site and his observations as to what ought to have been apparent to a competent civil engineer in the position of Mr Morgan on his inspection of the site at the relevant times, namely the need for safety barriers on the embankment. In my view these matters satisfy the requirements of s 5B(1)(a) of the Act.

Before a finding of negligence can be made it must be established that the risk under consideration was not insignificant : s 5B(1)(b) of the Act. Here, the risk under consideration is one of serious injury or death due to a vehicle going over the embankment due to a lack of protective measures being in place. In the circumstances of this case the risk was not one that involved a static condition of the roadway but was instead a dynamic combination of that static condition with the active use of the roadway by vehicles, including vehicles belonging to residents. In this case the significance of the risk was defined by the fact that on previous occasions vehicles had got into difficulty on the roadway, including in situations where this involved a vehicle going over the embankment and also multiple occasions where other vehicles needed to be winched back to the relative safety of the roadway. This was information that was provided to the defendant well before the accident and it was apparently received without question, or at least without any reaction questioning the credulity of the information. In these circumstances I consider the risk which materialised, namely a vehicle going over the embankment, was not an insignificant risk : s 5B(1)(b) of the Act.

A further precondition to a negligence finding is the conclusion that in the circumstances, a reasonable person in the position of the defendant would have taken the precautions that are contended for the plaintiff in this case : s 5B(1)(c) of the Act. In this regard the precautions in question are, in the interests of safety and in order of desirability of implementation, the installation of a guardrail, or the installation of a wire safety fence, or the closure of the road until either of these measures were able to be implemented. These solutions were not only the subject of Mr McDonald's expert consideration, but were also accepted by Mr Hewitt as being reasonable steps. He was not only a civil engineer but also a very senior council officer. In that latter capacity he accepted that analysis on the assumption that a different risk assessment to the one achieved by Mr Morgan was obtained. In these circumstances, subject to what follows, I consider that the requirements of s 5B(1)(a) of the Act are comfortably satisfied.

It is a requirement of the Act that there be a consideration of whether a reasonable person would have taken the precautions contended for into account the probability that harm would occur if precautions were not taken. In this regard, given the history of vehicles going over the edge and requiring assistance by winching them out, if the protective barrier of a guard rail or a wire safety fence were not implemented, there was a significantly high probability that such occurrences would recur, particularly as the road was very narrow and it had no provision for turning vehicles. Accordingly, I consider that a reasonable person would have taken the measures contended for by the plaintiff : s 5B(2)(a) of the Act.

The other matters required by the section involve a consideration of the likely seriousness of the harm (s 5B(2)(b) of the Act), the burden of taking precautions against the risk of the harm (s 5B(2)(c) of the Act) and the social utility of the activity that creates the harm (s 5B(2)(d) of the Act). In my view all of these considerations are met by the circumstances of this case.

With regard to those latter considerations, the likely seriousness of the harm, namely injury or death are self-evident and require no further consideration. The likely burden on the council concerning the taking of precautions to avoid the risk of harm was not considered by Mr Hewitt to be significant or burdensome and I agree with his view. The cost of installing a guardrail, an expense of the order of $8000, was able to be readily absorbed as a very small fraction of the significant emergency fund the council had available in its budget for such emergency works if the safety issue had been correctly identified by Mr Morgan. Furthermore, there was no complex allocation or approval process required. Mr Morgan had the necessary authority to commission the work without seeking budgetary approval. The social utility of the activity that created the risk of the harm does not appear to be relevant as there would appear to be no social utility for a council to knowingly allow roads within its maintenance jurisdiction to remain in a state of neglect or dangerous disrepair so as to pose a risk of injury to both ratepayers and members of the public who are also road users.

In my view the requirements of ss 5B and 5C of the Act are satisfied and justify a finding of negligence on the part of the council. For the reasons that follow, I am also satisfied that causation has been established by the plaintiff. I therefore find that the defendant was negligent.

I am satisfied that Mr Goodwin's death was caused by the negligence of the defendant. I have come to this view on several bases.

First, it is abundantly clear that if the defendant had in a timely manner either installed guardrails at the site or a wire safety fence, that is in August 2004 when other works were in progress at the site, or shortly thereafter as the safety issue identified by Mr McDonald required an urgent response, the accident in which Mr Goodwin died simply would not have occurred. If those measures had been in place, I consider that either of the proposed safety barriers would have prevented Mr Goodwin's vehicle from leaving the roadway and sliding down the embankment. Had either of those barriers been in place I am satisfied that at the worst, Mr Goodwin's vehicle would have travelled only a few feet and into a low speed impact with the safety barrier, assuming the other conditions of the road, its shoulder and edge were present but with the safety barrier in place.

Secondly, if for some reason a delay was encountered in promptly installing either of these proposed safety barrier measures, I am satisfied that the alternative safety measure that was mandated in such circumstances, namely closing Simpson Road to vehicular traffic, would have without doubt prevented Mr Goodwin's vehicle from sliding down the embankment because the road would have been inaccessible and the accident would obviously not have occurred.

I am also satisfied that the causation requirements of s 5D of the Civil Liability Act 2002 are fulfilled in this case. This so because the plaintiff has demonstrated factual causation. This has been shown because if the safety barriers had been in place in 2004, as I have found should have been the case, or alternatively, if the road had been closed until the installation of the barrier was complete, as I have also found should have been the case, the accident in which Mr Goodwin died would not have occurred. The negligence of the defendant has therefore been shown as a necessary pre-condition : s 5D(1)(a) of the Act.

In coming to this view I have considered the appropriateness or otherwise of extending the scope of the defendant's liability to include responsibility for Mr Goodwin's death and the damages that have flowed as a result : s 5D(1)(b) of the Act. In my view there are no reasons apparent within the facts of this case that require a finding that the defendant should not be held responsible for the consequences of Mr Goodwin's death, for the reasons apparent on my causation analysis based on common law principles, there are no relevant contra-indications or conflicts with the requirements of the statutory framework in which causation must be considered : s 5D(4) of the Act.

The defendant has raised an alternative defence of contributory negligence and it therefore carries the onus of proving that defence. In response to that plea the plaintiff has submitted that the defendant has failed to discharge its onus to prove that Mr Goodwin in any way failed to take care for his own safety. The plaintiff further submitted that there is no evidence, either direct or inferential, which would reasonably support any of the allegations of contributory negligence made by the defendant.

It is therefore necessary to examine the particularised allegations of contributory negligence on the part of Mr Goodwin as raised by the defendant, and the arguments in support of those allegations. The alleged heads of contributory negligence are summarised as follows: (a) Failing to ensure the vehicle was a safe distance from the embankment which was known to involve risk;

(b) Failing to ensure the handbrake " was in the right position " to prevent the vehicle from continuing down the slope;

(c) Failing to ensure the vehicle " was in its proper gear " to prevent it continuing down the slope;

(d) Failing to take care for his own safety having regard to his surroundings;

(e) Attempting to move the vehicle from a position close to the edge of the embankment when it was obviously dangerous to do so.

I will address each of these matters in the paragraphs which follow.

In making its submission that Mr Goodwin had placed the vehicle too close to the edge of the embankment the defendant has assumed, incorrectly in my view, that it was parked 1 metre from the embankment. That submission was based on a reference to the plaintiff's observation of the position of the vehicle at a point when Mr Goodwin and Mr Bruce were trying to turn the vehicle around. The difficulty with this part of the defendant's submissions is that the defendant has translated the plaintiff's imprecise observation of "about 1 metre" to the more precise measurement description of "1 metre." In my view the defendant has misinterpreted this aspect of the plaintiff's evidence in a material way by seeking to invest it with a degree of precision that was not intended.

Further, there is also some uncertainty over the distance from where the plaintiff made the observation in question concerning the position of the vehicle. This in my view precludes a conclusion as to the precise distance of the vehicle from the embankment, particularly when it remains uncertain as to which particular part of the vehicle was used as the reference point for that estimated distance. It could have been the contact surface of one or both front tyres on the road surface or it could have been the position of the front bumper bar of the vehicle relative to the road surface. Either of these interpretations is possible but it is not possible to make a reasoned non-speculative choice between these possibilities.

In addition, the defendant's argument makes no allowance, as I consider is required, for the fact that at the time of the plaintiff's observation as to the position of the vehicle, Mr Goodwin and Mr Bruce were attempting to move the vehicle and were at some stage engaged in a course of conduct to that effect. Reference to Mr Bruce's untested description of these events is that there were about three attempts to move the vehicle. The described process was obviously not a static one. One could well envisage that in this process the vehicle could have been pulled back and was then rocking forward during this process as successive attempts were made to try to pull the vehicle over the obstacle of the rock on the road surface with the aid of a rope attached to the back of Mr Bruce's vehicle. The detail of these matters was not explored in cross-examination. It is not clear as to whether the plaintiff's observation, as relied upon by the defendant, was made before or after the vehicle stopped moving because it had encountered the obstacle of the rock on the roadway which then impeded the further progress of any movement of the vehicle. The possibilities are that the observation of the plaintiff was made either before or after the attempts to move the vehicle. The plaintiff could have made her observation concerning the rope attached to the back of Mr Goodwin's vehicle either before or after the manoeuvres described by Mr Bruce. The difference amongst the possible observation times and opportunities for the plaintiff is material and I am unable to choose between these two possibilities other than by unreasoned speculation, which is impermissible.

The defendant's handbrake submission relies upon the proposition that Mr Goodwin must have somehow released the handbrake on the vehicle and then attempted to drive or push the vehicle so as to try and turn it to the left and allow it to proceed downhill. It is also argued, alternatively, that he may have tried to clutch or jump-start the vehicle but then applied the handbrake whilst the vehicle was sliding downhill. I reject those submissions as they are entirely based on speculation and are not based on evidence or inferences reasonably open on the evidence.

Furthermore, the handbrake argument outlined by the defendant is inconsistent with the analysis put forward by Mr McDonald and which I have accepted, namely that Mr Goodwin was out of the vehicle at the time it slid down the embankment. There is no evidence that the handbrake was not "in the right position" as claimed by the defendant. The defendant's submission requires speculation. I have found that the handbrake was on when the vehicle commenced to slide down the embankment and I reject the submission concerning contributory negligence that relies on an assumption to the contrary.

The defendant's handbrake submission also invokes the theory that Mr Goodwin may have attempted to clutch-start the vehicle, thereby explaining why it was found in gear at the scene after the accident. In my view, as already explained, that theory is without any reasonable evidentiary foundation and is not supported by any reasoned inferences from the evidence. I therefore reject the submission.

The defendant made a further submission to the effect that when Mr Goodwin moved his vehicle to a position about 1 metre from the embankment to a point where the front wheels or the driver's side front wheel crossed over the grassed embankment it was perched in a precarious position. It was argued that this involved a failure on the part of Mr Goodwin to have adequate regard for his own safety by reason of his surroundings. I do not accept that submission as I consider that the allegation, so framed, fails to have due regard to the fact that Mr Goodwin's vehicle became immobilised due to a low battery charge and its initial stationary position on the roadway was not as a result of deliberate action or even fault on his part but rather, was due to an electrical failure. In my view it cannot be reasonably asserted that he moved his vehicle into that position by avoidable choice.

In my view, in the light of the available evidence, it is an unwarrantedly harsh criticism of Mr Goodwin's actions to assert that his subsequent attempts to move the vehicle with the assistance of Mr Bruce were ill advised so as to amount to placing himself in harm's way. I consider that it is equally inappropriate for that criticism to be advanced where all Mr Goodwin did was, in my assessment, to stand by his disabled vehicle and, on Mr McDonald's analysis, which I accept, simply lean into or reach into his vehicle in order to reach for something, or alternately, lean on the vehicle so as to unintentionally set it into a sliding motion toward and down the embankment. It must be remembered that Mr Goodwin was not a qualified engineer and I consider that it would be wrong to impute to him the degree of expert knowledge that Mr McDonald had, namely knowledge that a relatively small or trivial degree of force could have set the vehicle on such a course, notwithstanding that the handbrake and first gear were engaged. I therefore reject the submission relied upon by the defendant.

Danger involved in attempting to move the vehicle close to the embankment

The defendant's argument critical of Mr Goodwin's attempts to move the vehicle when it was close to the embankment are, in my view, misplaced. There is no doubt that the vehicle was stationary just before it moved off down the embankment. I have found that Mr Goodwin was not in the vehicle at that time nor was he attempting to move it at the time the vehicle commenced to move. Instead, I have found that he was standing next to his vehicle when he was swept down the embankment. Without Mr Goodwin having been shown to have special knowledge such as that outlined by Mr McDonald concerning the minor degree of force required to cause a vehicle, on the assumed condition of Simpson Road to move, I do not consider that Mr Goodwin's actions in standing next to a stationary vehicle, parked in gear with the handbrake engaged, albeit near an embankment, should as such be characterised as constituting contributory negligence on his part, and I reject the defendant's argument to the contrary.

General submissions by the defendant on alleged contributory negligence

The defendant also made an alternate contributory negligence submission on the basis of the assumed correctness of Mr McDonald's analysis as to how the vehicle moved with the handbrake engaged and the vehicle being in first gear when it slid down the embankment. As I have accepted Mr McDonald's analysis, it is necessary to also review the defendant's alternate submission in that regard. The alternative submission comprised four scenarios.

The first scenario involved the assumption that Mr Goodwin was driving the vehicle in first gear, that he applied the handbrake and attempted to exit the vehicle but was then caught between the chassis and the door. The second scenario involved the assumption that Mr Goodwin had attempted to jump-start the vehicle by putting it in first gear with the same result. The third scenario involved the assumption that Mr Goodwin was pushing the vehicle and he then applied the handbrake and also engaged the first gear in an attempt to stop its movement. I consider that each of these three scenarios should be dismissed from consideration as they are entirely speculative and without foundation in the evidence. In relation to the third scenario it is difficult to conceive how someone pushing the vehicle from the outside could also engage the gears from the outside without the operator being in the vehicle in the driver's seat to depress the clutch to do so, let alone engaging the handbrake at the same time. I have accepted Mr McDonald's evidence that this scenario was unlikely to have occurred.

This leaves the fourth scenario argued by the defendant, which assumed that Mr Goodwin was outside his stationary vehicle with the first gear and the handbrake engaged when he leaned or reached into the vehicle at which time the vehicle slid from its position and because it was an at an angled position in relation to the embankment, and because he was standing near the embankment, he was unable to get out of the way and was carried down the embankment.

It is noteworthy that the defendant's analysis omits two possible further scenarios, namely, that standing beside his vehicle on the road shoulder or edge of the embankment, Mr Goodwin could have found his foothold to be uncertain because of the unstable surface beneath him, or that when he alighted from his vehicle after engaging the handbrake, his movement in doing so could have somehow provided the trivial force to alter the inertia of the vehicle and cause it to move forward as he was alighting.

If either of these events had occurred, he may well have reached out to steady himself and in so doing, he could have by inadvertence, applied sufficient force to the vehicle, albeit relatively trivial, to cause a change in the inertia of the vehicle, thereby causing it to move down the embankment and carry him down the embankment as well. Whilst these scenarios also involve some speculation, because of the description of the soft and unstable shoulder, these too are inferences that are reasonably open on the evidence. There is no evidence that the unstable road shoulder identified on 8 February 2004 (part of Exhibit "G"), and which I accept was present, was never remedied. The availability of these possibilities is in my view further reason for rejecting the defendant's contributory negligence argument.

In relation to the fourth scenario outlined above, I consider this to be a likely explanation as to what happened. Whilst the assumption that Mr Goodwin either leaned into or onto the vehicle may be seen as involving a degree of speculation, I consider it to be a reasonable inference to be drawn from the circumstances because it explains, as Mr McDonald outlined, how the vehicle could have moved with the handbrake and first gear engaged. I consider that this inference is both open, reasonable and I accept it.

In addressing the defendant's contributory negligence argument, I do not accept that the action of merely leaning into an otherwise stationary vehicle knowing that it is parked in gear with the handbrake on, and in an apparently stable position, can amount to contributory negligence. There was no evidence that Mr Goodwin was on notice of any instability of the surface of the underlying road shoulder or its embankment. I therefore reject this argument as seeking to impose too high a standard for anticipating that something untoward might occur.

Conclusion regarding alleged contributory negligence

In my view the defendant has failed to make good any of the components of its asserted defence of contributory negligence and I reject that defence. In view of my fact finding that there was no contributory negligence it is not necessary for me to review the defendant's submitted authorities concerning argued degrees of apportionment.

Issue 5 - Statutory defences claimed pursuant to Part 5 of the Civil Liability Act 2002

The defendant has raised defences under ss 5F, 5H, 5I, 42, 43A and 45 of the Civil Liability Act 2002. These defences can be considered in two convenient categories : defences concerning assumption of risk raised under Pt 1A Div 4 of the Act (ss 5F, 5G and 5I) and defences arising under Part 5 of the Act and involving claims made against public authorities (ss 42, 43, 43A and 45).

Sections 5F, 5H and 5I of Pt 1A - assumption of risk

The defendant claims that in the circumstances in which Mr Goodwin found himself in the moments before the accident, he must be presumed to have been aware, by reason of the position of his vehicle on the roadway, that there was an obvious risk the vehicle could slide down the embankment and cause him to suffer serious injury or death. The defendant claims that if this proposition is shown to be the case, this defeats the plaintiff's claim.

For the reasons that follow, I consider the defendant's argument concerning assumption of risk to be flawed and therefore incorrect.

Section 5F of the Act provides that an obvious risk is one that would have been considered to be obvious to a reasonable person in the circumstances, and includes risks that are patent or involve matters of common knowledge and may include risks that have a low probability of occurrence, including risks, conditions or circumstances that are not prominent, conspicuous or physically observable.

Section 5G provides that for the purpose of determining negligence, a person who suffers harm is presumed to have been aware of the risk of harm if the risk was obvious, even if the person in the circumstances was not aware of the precise nature, extent or manner of occurrence of the risk.

Section 5H provides, subject to provisos that are not relevant to this case, that a person ("the defendant") does not have a duty to warn another person ("the plaintiff") of a risk obvious to the plaintiff.

Section 5I provides that a person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk, which is defined as something occurring that cannot be avoided by the exercise of reasonable care and skill. The section does not operate to exclude liability in connection with a duty to warn of a risk.

It is clear from these provisions that they are directed at circumstances involving risk where a warning of danger is required, thus giving rise to a duty to warn.

The plaintiff has submitted that this case does not concern allegations of negligence involving an alleged failure on the part of the defendant to warn Mr Goodwin of the risks associated with the circumstances he was in, or concerning the safety of the road, its shoulder, or the embankment of the road.

In my view the plaintiff's submission in this regard is correct. This claim is not based on any allegations of failure to warn and therefore I find that the provisions of Pt 1A Div 4 of the Act do not operate to defeat the plaintiff's claim on that account as claimed by the defendant.

In the event that I may be found to be wrong in these views, I will give brief consideration to the counter argument.

I consider that it would have been obvious to any road user that a stationary vehicle that was situated on an elevated roadway adjacent to an embankment and was incapable of movement by its own motive power may be liable to slide down that adjacent embankment in a variety of circumstances which may cause a vehicle to leave the roadway, especially where the road had an obvious slope or cross-fall within its construction. However, I do not consider that a reasonable person in the circumstances in which Mr Goodwin found himself in the moments before his vehicle went over the embankment, would have considered that there was an obvious risk of the vehicle going over the embankment if the vehicle was parked on the road with its handbrake engaged and with the transmission engaged in first gear, unless there was evidence that the surface of the road under the parked wheels was unusually slippery or was unstable or that significant force was being somehow applied to the vehicle so as to cause it's inertia to be displaced to make it liable to move forward towards the embankment.

I find that this would have been the case even if the front wheels of the vehicle were located on the unsealed portion of the road shoulder adjacent to the embankment. I consider that the degree of cross-fall on the road, which was measured by Mr McDonald at about 12 per cent, and thought to be significant to a civil engineer, was not a matter that ought reasonably to have been within the knowledge of a reasonable person in the circumstances of Mr Goodwin who did not possess civil engineering qualifications and experience. In my view, without such special knowledge, Mr Goodwin should not be taken to have understood that only a relatively trivial degree of force was all that was required to displace the inertia of the vehicle in the circumstances.

I come to these views because, from the time that Mr Bruce left the scene before the accident occurred and to the time when the vehicle went over the edge of the embankment (which I infer from the circumstances must have been significantly more than a matter of fleeting seconds) there must have been sufficient time for Mr Goodwin to enter the vehicle, apply the handbrake and engage the gears if they were not engaged earlier, then alight from the vehicle and then stand beside it. In that time there is no evidence that the vehicle showed a tendency or propensity to move on the surface on which it was resting by reason of the position in which it was located or due to the manner in which it had been secured in the stationary position. Accordingly, I find that Mr Goodwin was not aware of any obvious material risk before the accident occurred.

There seems to me to be further difficulty with the defendant's argument concerning the applicability of these provisions of the Civil Liability Act 2002. The activity under consideration here was being carried out at the time by Mr Goodwin. He is not the plaintiff in these proceedings. The Act does not anywhere define "plaintiff". In those circumstances I take "the plaintiff" to refer to Mrs Pearson, who is the plaintiff who commenced these proceedings. Section 5H negates the notion that a duty of care is owed by a person ("the defendant") to another person ("the plaintiff") where a risk to the plaintiff is obvious. In my view, s 5H could not reasonably be said to apply to a person who was in Mr Goodwin's situation where, due to the circumstances of his death, Mr Goodwin is not the plaintiff. In my view this is so because it cannot reasonably be said, using the ordinary meaning of language, unaffected by special statutory definitions, that Mr Goodwin is "the plaintiff". Were it otherwise, the section would not refer solely to "the plaintiff" but rather, would have referred to "the person injured or put in peril", or words to like effect.

I therefore reject each of the claimed statutory defences based on ss 5F, 5H and 5I of the Act.

Sections 42, 43, 43A and s 45 of Pt 5 - liability of public authorities

The defendant claims that the effect of the provisions of Part 5 of the Act, namely ss 42, 43, 43A and 45, the allegations made by the plaintiff concerning the risk assessments carried out by Mr Morgan were allegations concerning the exercise or failure to exercise "special statutory powers".

The defendant further argues that the power to install either guardrails or barriers at Simpson Road constitutes "road work" or "traffic control work" within the meaning of ss 71 and 87(3) of the Roads Act 1993 and consequently a risk assessment of the road with a view to assessing the need for road work or traffic control work is the exercise of functions under ss 7(4) and 7(5), 71 and 87 of the Roads Act 1993. The defendant further argues that the reference to a "function" within that statutory scheme is a reference to the powers conferred by the Roads Act and includes "power, duty and authority" under that Act. The defendant argues that these powers attract the operation of Part 5 and in particular s 43A of the Civil Liability Act 2002.

Section 42 of the Civil Liability Act provides that for the purposes of determining whether or not a public authority has a duty of care, or has breached a duty of care, the consideration of the functions of the authority that are required to be exercised is limited to the financial and other resources that are reasonably available to the authority for the exercise of those functions. In that consideration, the general allocation of resources is not open to challenge, and the functions that were required to be exercised by the authority must be determined by reference to the entire breadth of the activities of the authority, not just the subject matter of the proceedings. In defending itself in proceedings such as this, the authority may rely on its compliance with the general procedures and standards for the exercise of its functions as evidence of the proper exercise of those functions to which the proceedings relate.

Section 43 of the Act provides that where the alleged liability of a public authority is based on a breach of a statutory duty by a public authority in connection with the exercise or failure to exercise a function of the authority, any such act or omission does not constitute a breach of statutory duty unless the act or omission alleged was so unreasonable that no authority having the functions of the authority in question could properly consider the act or omission to be a reasonable exercise of its functions.

Section 43A of the Act provides that in proceedings for civil liability of this kind, based on the exercise of, or a failure to exercise a special statutory power, being a power conferred by statute and of a kind that persons are generally not authorised to exercise without specific statutory authority, no right to civil liability arises unless the act in question was so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, the power in question.

A consideration of s 44 of the Act does not arise because the plaintiff's claim is not based on any allegation concerning the exercise of or the failure to exercise a prohibition or regulatory functions.

Section 45 of the Act provides that a road authority is not liable in civil proceedings for a failure to carry out work, or failing to consider carrying out work, unless at the time of the alleged failure, the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm claimed. The section does not operate to create a duty of care in respect of risk just because the authority has actual knowledge of the risk, or to affect the standard of care that would otherwise be applicable in respect of a risk. For the purpose of the section, the carrying out of roadwork refers to and means any activity in connection with, among other things, maintenance and inspection.

The defendant argues that as a consequence of the operation of these provisions, it has the benefit of statutory defences that defeat the plaintiff's claim.

In my view the defence that seeks to invoke s 42 of the Act is flawed. The plaintiff has not challenged any general allocation of the defendant's financial resources. There is no issue between the parties that the defendant had the necessary financial resources to carry out urgent remedial work where there was a safety issue at stake. This was conceded by Mr Hewitt. I have found that there was an urgent safety issue at stake and the defendant failed to recognise this. In my view the defendant has failed to demonstrate by reference to a broad range of its activities that it did not owe a duty of care to the users of Simpson Road and it has failed to demonstrate that by reference to its broad range of activities, including its responsibility for some 280 odd streets in its shire, that it was entitled to defer consideration of the works required to remedy safety issues at the Simpson Road site. In my view there is nothing in Exhibit "9" or in any other part of the evidence that reasonably justified the defendant to defer the remedial works in question for Simpson Road. The 4 year rolling roads and footpath Construction Programme was not a reasonable basis for deferring remedial works where a safety issue was involved. The defendant simply failed to appreciate the nature and extent of the risk and the urgency of addressing the risk. I reject the defence claimed under s 42 of the Act.

In my view the defence that seeks to invoke s 43 of the Act is also flawed. I do not consider the evidence of Mr Davies, Mr Hewitt and Mr Morgan, when viewed at its highest, to satisfactorily establish, either by fact or inference, that another council would have acted in the same manner as the defendant in response to the risk evident to be seen on inspection at the Simpson Road site. Further, to the extent that such a defence could arguably apply, I consider that reliance upon it would be so unreasonable as to amount to an irrational position which no authority in the position of the council could properly consider to be reasonable in the circumstances. I come to this view on balancing the obligation on a council to carefully and prudently utilise its resources against the overwhelming consideration of the safety of road users in the face of a real and foreseeable risk of harm to life and limb and where such risk could be reasonably addressed by remedial works that could have been carried out both conveniently and economically at relatively small expense in conjunction with other works that were planned to be carried out. Here there was a failure to recognise the seriousness of the risk and the urgency of the remedial action that was required to address that risk. I consider that no reasonable public authority would have acted in that manner in the circumstances. I reject the defence claimed under s 42 of the Act.

In my view the defence that seeks to invoke s43A of the Act is also flawed. I consider this to be so because the facts giving rise to the plaintiff's claim, and the failures I have found to have occurred on the defendant's part did not involve the exercise of, or the failure to exercise, a "special statutory power" conferred on the authority. In my view it cannot reasonably be said that Mr Morgan's assessments, subsequent actions and inactions, involved the exercise of a special statutory power. His actins simply involved carrying out an inspection and making some decisions concerning site remediation. None of these actions were pursuant to or required special statutory powers : RTA v Refrigerated Roadways Pty Limited [2009] NSWCA 263.

The defendant's arguments to the contrary, which rely upon the provisions of the Roads Act 1993 are inapplicable. All that Mr Morgan was required to do was exercise the judgment of an ordinarily skilled civil engineer employed by a council. This did not involve ore require that he be invested with special statutory powers for the purpose of his inspection, analysis and remediation plans for Simpson Road.

Section 45 of the Act does not assist the defendant to avoid liability in this case. I consider this to be so because at the time of the failures on the defendant's part which I found to have occurred, the defendant had actual knowledge of the particular risk of vehicles going over the embankment of Simpson Road. It was the materialisation of that risk which resulted in the death of Mr Goodwin and which I have found could have been avoided by the exercise of reasonable care : s 45 of the Act.

I therefore reject the statutory defences based on ss 42, 43, 43A and 45 of the Civil Liability Act 2002.

As a consequence of my liability and causation findings I find that the defendant was negligent in the manner outlined, that negligence was the relevant cause of Mr Goodwin's death and there was no contributory negligence. The plaintiff is therefore entitled to a verdict in her favour in the proceedings. I will now proceed to an assessment of her claim for damages.

The plaintiff had been examined by a number of medical practitioners for treatment and for assessment. It is necessary to review the available medical evidence concerning these reviews.

The plaintiff has been hospitalised on a number of occasions and she has sought treatment from a number of doctors and clinical psychologists. I will review their reports in the paragraphs that follow. The plaintiff's medical evidence did not include any reports from non-treating medico-legal examiners. The plaintiff has pointed to this fact to demonstrate that there are no advocacy type opinions put forward to advance her medico-legal case. It was submitted that because of this, the court could confidently rely upon opinions from the treating practitioners whose reports are in evidence.

The plaintiff was taken to hospital by ambulance in a state of shock after she realised that her son had been killed. There is no report of that hospitalisation. Between 2005 and 2008 the plaintiff has had a number of admissions to psychiatric hospitals for treatment. With the exception of an admission to the Palm Beach Currumbin Clinic between 14 December 2006 and 2 February 2009 there is no documentation in the evidence concerning the dates or treatment concerning those admissions. Nothing of importance turns upon this.

Initial treatment from an unknown general practitioner

The plaintiff stated that before she went to the Gold Coast she was under the care of a general practitioner in Sydney. That doctor was not identified in the evidence. The defendant made no issue of the absence of evidence from that doctor.

In March 2006 Mrs Pearson was staying in Murwillumbah. Previously, in December 2005 she had been discharged from the New Farm Clinic following a 10 day period as an in-patient in that hospital. Apparently, there were no follow-up arrangements made for her following discharge and in March 2006 she saw to Dr Peter McMahon, a general practitioner in Murwillumbah, presenting with major depression and suffering from grief. Dr McMahon prescribed an increased dose of Efexor and referred her to a consultant psychiatrist, Dr David Straton.

The plaintiff saw Dr David Straton on referral from Dr McMahon. In his report dated 15 September 2006 Dr Straton recalled the history of the plaintiff having been devastated by the death of her son and of being distressed by flashbacks of the accident scene. Dr Straton diagnosed three different conditions which affected the plaintiff, namely post-traumatic stress disorder, complicated grief reaction and a major depression. Dr Straton trialled some treatment of the plaintiff's flashbacks with eye movement desensitisation and reprocessing, or EMDR. This resulted in a reduction of the reported level of distress. Dr Straton noted that the Efexor dose of 225mg was 'numbing' her without significantly relieving the depression. He noted a score of 38 on the Beck Depression Inventory. He also noted that the death of her favourite child was a particularly hard grief to have to deal with, especially since the plaintiff now lived on her own without companionship or support. He noted that she had been obtaining some support from the Salvation Army and this was likely to be helpful.

Whilst the plaintiff was in Queensland in order to spend some time with her daughter and her daughter's family, over a 10 month period between 24 April 2006 and 28 February 2007 the plaintiff sought treatment from Dr Sandra Masih, a clinical psychologist. This treatment comprised psychotherapy and cognitive behavioural therapy techniques to address what Dr Masih identified as complicated grief with post-traumatic stress features following the sudden death bereavement.

During the period of this therapy Dr Masih identified the plaintiff's stages of grief comprising shock and grief, significant depression, hopelessness, helplessness, feelings of worthlessness, anxiety, flashbacks, disturbed sleep, avoidance behaviours and related problems including financial issues due to having limited support. During this period the plaintiff was hospitalised for a depressive episode involving severe suicidal ideation. Dr Masih noted some improvement in the plaintiff's depression however treatment was terminated due to her decision to return to Sydney.

The Palm Beach Currumbin Clinic - 14 December 2006 to 2 February 2007

On 14 December 2006 the plaintiff was admitted to the Palm Beach Currumbin Clinic under the care of Dr Straton. She remained there for 50 days until 2 February 2007. Whilst she was there her depression was treated with a variety of medications but she encountered the side effect of the oedema. She was discharged with arrangements for follow-up by Dr Straton.

In April 2007 the plaintiff saw Dr Alex Pilsky, a consultant psychiatrist, whilst she was an in-patient at Wandene Private Hospital. Dr Pilsky's record of the initial history he took from the plaintiff was: "At the point when I first saw Ms Pearson in Wandene Private Hospital in April 2007, she presented with significant features of major depression. This included pervasively dysphoric mood and intense grief over the loss of her son. She was crying frequently and was constantly troubled by the flash backs of his dead body. She told me she couldn't imagine her life without him. She was anhedonic, not experiencing any enjoyment from things that would normally make her happy. She felt hopeless, not believing that her life could go on without Shane. She was also experiencing decrease (sic) poor sleep with initial insomnia and nightmares. Often she woke up in the middle of the night and was unable to go back to sleep. Ms Pearson also experienced severe back pain which she told me she had for a long time but it became severely aggravated since she became depressed."

She has continued under the care of Dr Pilsky who has been treating her for major depression and worsening symptoms of post-traumatic stress disorder. Dr Pilsky noted the plaintiff's prior history of major depression after she had been made redundant from work in the airline industry when she was left without income which resulted in her feeling depressed and being overwhelmed by this experience. It was significant that since that time she had been increasingly dependent upon her son for support which he had provided.

Dr Pilsky described the plaintiff's ongoing psychological adjustment problems as follows: "Following Shane's death Ms Pearson 'tried to cope' but found it very difficult. She felt her life was incomplete without Shane. Sometimes she felt 'flat' all day. At other times, when seeing friends or family, she felt a little better. Nevertheless, every day she experienced moments of sadness feeling her son's loss. Following Shane's death, Ms Pearson told me she cried every day for at least six months. She also constantly experienced flashbacks of the incident when she opened the door of Shane's car and saw his dead body. She described typically having a vision of her son's hand and then his face and then the rest of his dead body, which she saw immediately after the accident. She experienced these flashbacks without any warning and to this day she still has them every day although she told me they weren't as confronting as they had been initially."

Dr Pilsky also noted the history of increasing depression and isolation. The plaintiff had moved from Sydney to Byron Bay to be closer to her daughter and her family but she felt lonely and isolated as she was intensely grieving for her son. He noted she was treated for major depression in Byron Bay earlier in 2007. He noted that she developed a gambling habit following which she returned to Sydney to seek hospital admission and treatment.

After various hospital admissions for treatment for depression the plaintiff continued to see Dr Pilsky as an out-patient.

Dr Pilsky's diagnosis was that the plaintiff satisfied the diagnostic criteria for major depression, post-traumatic stress disorder and pathological gambling, this latter condition being in remission. He considered that the cause of the plaintiff's major depression was directly caused by her son's tragic death. He also noted that her son's death represented a major contribution to the recent and ongoing episode of major depression.

In October 2007, earlier in her treatment, Dr Pilsky referred the plaintiff to Dr John Kearney, a clinical psychologist. At the time of the referral the plaintiff was an in-patient at the Wandene Private Hospital. The initial admission was noted to have been for major depression and gambling problems. However it soon became clear that the plaintiff was having great difficulty in dealing with the tragic death of her son. Dr Kearney noted that the plaintiff was having frequent nightmares and intense and physiological reactions such as sweating, a rapid heartbeat and feeling physically tense. She found these reactions very distressing and she was exhibiting avoidance behaviour. She acknowledged that her gambling activities have been an attempt to distract herself from the emotional pain she had been experiencing. It was noted that she felt keyed-up and on edge much of the time and her sleep patterns and concentration were disrupted.

Dr Kearney observed that the plaintiff found it difficult to come to terms with tragic events and losses in her life, particularly the tragic death of her son. He noted that she had worked hard and tried to make an adjustment and was continuing to engage in therapy to manage her anxiety and depression. Dr Kearney noted that as a strategy for managing these conditions the plaintiff had been encouraged to engage in intellectually challenging activity. In this regard she enrolled at the University of New South Wales to undertake a degree in psychology.

Dr Kearney noted that the plaintiff was suffering from complex post-traumatic stress disorder and that she had a pre-incident psychological vulnerability because of her past which made it more likely that she would become further traumatised. He expressed the view that there was no doubt that her son's tragic death has had a significant effect on the level of functioning and he stated his view that it was unlikely she would be able to move forward in any significant way without intense trauma-focused therapy. He also noted that even with therapy, it was unlikely that the plaintiff would ever enjoy a full recovery from her anxiety and depression, although he hoped for a significant reduction in the current level of symptoms, as well as a reduction in her vulnerability to further episodes.

Psychiatric assessment carried out at the request of the solicitor for the defendant

On 11 December 2008, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Klaas Akkerman, a consultant psychiatrist. His report of that assessment was dated 18 December 2008. In his report Dr Akkerman noted that he had examined and perused a large file of papers but these were not fully identified or tendered in evidence. Dr Akkerman reviewed the history of the events and he reviewed the history of the treatment received by the plaintiff. On his mental state examination of the plaintiff he noted that she was tearful when she spoke about her son, she described getting upset when she thought about the accident and he observed her to become visibly upset. Dr Akkerman noted that the plaintiff used avoidance during the consultation and he noted that she startled easily and that she was hypervigilant.

Dr Akkerman noted the previous history of depression and differentiated the present condition from that previous disorder from which he noted that she had recovered. Dr Akkerman's diagnosis was that the plaintiff now had post-traumatic stress disorder which was an entirely different disorder from the previous condition. He noted a temporary worsening in her previous depressive disorder but also noted that this had improved. He ruled out the presence of functional overlay and noted that at times the plaintiff had tried to exaggerate somewhat in that she tried to place herself in a more positive light. I do not understand Dr Akkerman's comment in this regard to suggest that the plaintiff had been untruthful in the reporting of her problems or nor do I understand him to suggest she was exaggerating her difficulties.

Dr Akkerman thought the plaintiff continued to suffer from post-traumatic stress disorder. He also thought the plaintiff no longer suffered from major depression or gambling. He thought her prognosis was guarded and suggested some treatment recommendations to which I will refer when assessing damages in respect of the claim for future treatment expenses.

In my view there is no substantive difference in the range of medical opinions concerning the plaintiff's psychological status. Her treating psychologist Dr Pilsky and the defendant's assessing psychiatrist both agree that the plaintiff has post-traumatic stress disorder with depression. Whatever the adjectival description, it is reality based in that these problems relate to bereavement following the death of her son in tragic and unexpected circumstances.

I find that the plaintiff suffered nervous shock on realising at the scene of the accident that her son had been killed. I find that the psychological shock she had suffered was severe and required that she be taken to hospital by ambulance for assessment and treatment for what I find was pure mental harm within the meaning of s 30 of the Civil Liability Act 2002. Following that initial treatment the plaintiff has remained under medical supervision. In my view the plaintiff has satisfied all the requirements of ss 30 and 31of the Act as to the requisite degree of relationship. Proximity to the scene, and the resultant psychiatric illness she has suffered.

The plaintiff gave what I considered was quite measured and restrained evidence about the effects upon her of her son's death although she did understandably react adversely to being required to view confronting material in cross-examination. As I have found her to be a credible witness I consider that with confidence as to the truth, I am able to rely upon the histories recorded by the various medical practitioners who have interviewed the plaintiff when they summarised and noted her complaints. I have had regard to those histories in assessing her disabilities : Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25.

I find that the plaintiff suffers from post-traumatic stress disorder and a complicated grief reaction to the sudden death of her son in circumstances that were very traumatic for her.

I find that since the plaintiff carried with her a pre-existing vulnerability to develop depression, as had occurred in the past, when her son died this triggered in her a major depression which has continued with fluctuating levels of intensity associated with her post-traumatic stress disorder.

The plaintiff suffers from a number of significant psychological and physiological manifestations of these conditions.

Physiologically, she experiences the reactions of rapid heart beat, sweating and feeling tense. Psychologically and emotionally she has had great difficulty in coming to terms with the death of her son. She continues to have flashbacks and nightmares and becomes tearful. She exhibits avoidant behaviour. She suffers from anxiety, she is startled easily and is hypervigilant. She suffers from significant long term depression, she has poor sleep, difficulty with concentration and has post-traumatic stress disorder.

I find that these matters continue to be significantly disabling to the plaintiff over the four years since her bereavement. I consider that the plaintiff's reaction is one that the defendant ought to have foreseen might have occurred to a person of normal fortitude in the circumstances : s 32 of the Act.

It is necessary to identify the plaintiff's probable future life span for the purpose of assessing some of the future losses she has claimed. Similarly, in this regard it is also necessary to make an assessment of Mr Goodwin's probable life span on the assumption that the incident that led to his death had not occurred.

Estimation of plaintiff's probable future life span 488. Having regard to the current prospective life tables, at age 63, this being the plaintiff's age at trial, in the absence of any medical or other evidence suggesting a decreased life span, I assess the plaintiff's life expectancy, which is by definition a statistical estimate or average, to be in a rounded down estimate of a remaining 25 years.

Estimation of Mr Goodwin's probable life span but for the accident

489. Mr Goodwin was born in 1969. If he had survived at the date of the trial he would have been aged 40 years. According to the prospective life tables, absent any medical or other reason for discounting an assessment of his probable life span, in round figures I assess Mr Goodwin's probable life span would have otherwise been a further 45 years.

Significance of differences in probable life span estimates

490. The difference between the statistical estimation of the respective probable life spans of the plaintiff and Mr Goodwin is that absent the accident, Mr Goodwin would most probably have continued to remain in the workforce until at least age 65 years at which time the plaintiff would most probably have ceased to be financially and domestically dependent upon him by reason of her shorter estimated life span. The 5 per cent multiplier for those 25 years is 231.5.

491. I now turn to an assessment of the individual heads of damage claimed by the plaintiff. The parties made disparate submissions on quantum. The plaintiff's adjusted damages submissions totalled $868,777, which was acknowledged to be in a sum in excess of the court's jurisdictional limit. The plaintiff's submissions made it clear that she did not seek an amount in excess of the court's jurisdiction. The extended jurisdiction conferred by s 51(2) of the District Court Act 1973 was not applicable in the circumstances. The effect of the defendant's submissions was that the plaintiff's entitlement to damages should be assessed in an amount of the order of $240,000 plus an allowance for future treatment. These respective positions require close analysis.

492. There are three heads of damage that relate to the plaintiff's nervous shock claim, namely non-economic loss, past medical and allied treatment and future medical and allied treatment.

493. At age 59, the plaintiff unfortunately witnessed the immediate aftermath of the accident in which her son had been crushed by the weight of his own motor vehicle. She became aware that he had died from asphyxia. She came upon the scene of the accident at a time when she thought her son may still have been alive and she made frantic attempts to break the glass windscreen of his vehicle in order to gain access to him at which time she felt that his body was still warm and she was hopeful that he would still be alive.

494. On behalf of the plaintiff it was submitted that it is difficult to conceive of a more harrowing experience from the perspective of a caring mother. At age 63 the plaintiff still suffers from the ongoing effects of a very severe psychiatric reaction to the experience of witnessing the death of her son. The medical and allied reports tendered in the proceedings support that submission.

495. There is no dispute that the plaintiff has suffered a complicated grief reaction which continues to manifest itself in the form of a psychiatric disorder. She suffers from a post-traumatic stress disorder and major depression. Over the years since the death of her son the plaintiff has continued the need to be constantly medicated in order to assist her in dealing with her psychiatric symptoms.

496. The plaintiff has had numerous formal admissions to psychiatric clinics for management of her condition over extended periods of time. According to the submissions made on her behalf, which was not relevantly disputed, the first such admission was to the New Farm Clinic for 10 days in December 2005. The second such admission was to the Palm Beach Currumbin Clinic in Queensland for 50 days between 14 December 2006 and 2 February 2007. The third such admission was to the Wandene Hospital in Kogarah for 49 days between 28 March 2007 and 16 May 2007. The fifth such admission was to the Wandene Clinic 22 days between 28 June 2008 and 21 July 2008. She faces the prospect of further hospitalisations if her condition and ability to cope deteriorates.

497. There was no substantial disagreement between the opinions of the plaintiff's treating psychiatrist, Dr Pilsky and the consultant psychiatrist engaged to examine the plaintiff on behalf of the defendant, Dr Akkerman concerning the plaintiff's problems with depression and post-traumatic stress disorder. The consensus of psychiatric opinion is that the plaintiff has a guarded psychiatric prognosis and she requires ongoing treatment for a major and chronic psychiatric response to the traumatic death of her son.

498. There is no dispute that the plaintiff has suffered mental harm within the meaning of Pt 3 of the Civil Liability Act 2002 and there is no dispute that she is entitled to recover damages for nervous shock consequent upon the death of her son as she is the mother of Mr Goodwin : s 30(2)(a) of the Act and she has suffered a recognised psychiatric illness in the form of post-traumatic stress disorder and depression : s 31 of the Act.

499. On behalf of the defendant it was submitted that an appropriate award of damages for non-economic loss should be assessed at 20 per cent of a most extreme case for the purposes of s16 of the Civil Liability Act 2002. I consider that submission to represent manifestly inadequate compensation for the plaintiff's situation where the plaintiff's psychiatric illness is permanent and will require ongoing specialist management without indication of resolution.

500. On behalf of the plaintiff it has been submitted that her entitlement to damages for non-economic loss should be assessed at 40 per cent of a most extreme case according to the considerations of s 16 of the Act. Given the nature of the plaintiff's condition and my findings that relate to it, I consider that the submission made on behalf of the plaintiff has correctly identified the appropriate level of compensation for non-economic loss.

501. An assessment of 40 per cent of a most extreme case is the monetary equivalent of $189,500. I therefore assess the plaintiff's damages for non-economic loss in the sum of $189,500.

502. At the conclusion of their respective submissions the parties announced that they had reached an agreement as to the total cost of the plaintiff's past medical, hospital and allied treatment. This agreement included the costs of the plaintiff's multiple admissions to psychiatric clinics. These amounts have been respectively paid by the plaintiff's health insurer HCF Australia in the sum of $63,942, and by Medicare in the sum of $8977.15, as is evident from a notice of charge from Medicare which was stated to be valid to 15 March 2010. These amounts totalled $72,919.15. In accordance with the agreement of the parties I assess the plaintiff's damages for past medical and allied treatment in the rounded off sum of $72,920.

503. The plaintiff makes a claim for future medical and allied treatment. The components of that claim comprise firstly, medication costs of $100 per month, secondly, 12 general practitioner attendances per annum at $60 each, 12 psychological counselling sessions per annum at $200 each as well as 12 psychiatric consultations per annum at $200 each. In the plaintiff's submissions these items were analysed to be the equivalent of $105 per week to be projected over the plaintiff's remaining lifespan of 25 years (x 753.6) to yield the sum of $79,128. In addition, a claim is made for an allowance over the plaintiff's remaining lifetime for a sum to cover possible future hospitalisations, that allowance being of the suggested order of $20,000. The plaintiff's submission overall for future treatment calls for an allowance of $100,000 to cover these items of future expenditure.

504. In contrast, the defendant did not make any monetary submission concerning the cost of the plaintiff's future treatment needs. The defendant has cited an aspect of Dr Akkerman's opinion for future treatment comprising attendances on a psychologist 12 times per year, a general practitioner 12 times per year and medication at $100 per month in respect of a guarded prognosis. It is therefore necessary to analyse the basis for the plaintiff's submissions in respect of the claimed components for this head of damage.

505. The report of Dr Pilsky dated 30 June 2008 refers to an ongoing episode of major depression. Dr Pilsky also referred to the prior history of the plaintiff having continued to take Zoloft prophylactically after her prior depressive episode to the point where she was considering stopping that drug before the death of her son. Dr Pilsky described that situation as being not unusual. This is of some significance because the depression suffered by the plaintiff following the loss of her job was obviously far less devastating than the grief of losing her son. Given that both Dr Pilsky and Dr Akkerman variously accept that by whatever label, the plaintiff's psychiatric problems are ongoing and the prognosis for them is guarded, I consider it reasonable to make an appropriate allowance in damages to cover the cost of a regime for overseeing and treating these ongoing problems.

506. I infer from the opinion of Dr Pilsky concerning the plaintiff's past history of depression that followed her redundancy, that it was not unusual for the need for psychotropic medication to continue for prophylactic purposes. In order to manage such a regime the plaintiff would have to periodically see a general practitioner and a consultant psychiatrist to oversee, deal with and treat her problems, including by medications. In fact the plaintiff would be unable to obtain such restricted scheduled medications without prescriptions which confirms the need for such management. There is also evidence that the plaintiff will also need to see a psychologist from time to time. Against this background I will analyse the submissions made by the parties.

507. On the question of the cost of the submitted treatment regime it should be noted that there was no direct evidence of the cost of some of the items. Notwithstanding the absence of such evidence, it is plain that the costing amounts submitted by the plaintiff appear reasonable when compared to the public record of the scheduled fees allowed by Medicare in respect of the contended services as the amounts submitted are well within the range of published costs for such services.

508. The plaintiff's claim for future medication costs is based on paragraph 10 of the report of Dr Akkerman where he identifies an approximate sum of expenditure of $100 per month. Given the ongoing nature of the plaintiff's depressive illness, which from the descriptions, shows no signs of abating, I consider that the suggestion made by Dr Akkerman for an allowance of $100 per month to be made for medication costs is a reasonable one. This is the equivalent of $23.07 per week.

509. The plaintiff seeks the cost of 12 general practitioner consultations at $60 per consultation. The evidence as to the frequency of this need is found in paragraph 11(a) of the report of Dr Akkerman. Although the costing has been assumed by the plaintiff's submissions, I consider that the cost of this component of the claim is reasonable. This is the equivalent of $13.84 per week.

Psychological counselling 510. The plaintiff claims the cost of 12 psychological counselling sessions per annum at a cost of $200 per session. The evidence supporting the frequency of this type of assistance is found in paragraph 11(a) of the report of Dr Akkerman. The evidence of the cost of $200 per hour is found at page 11 of the report of Dr Kearney. I consider that this component of the claim is reasonable. It is the equivalent of $46.15 per week.

511. The plaintiff claims the cost of 12 consultations per annum with a consultant psychiatrist at a cost of $200 per session. The evidence of the frequency of such consultations is found in paragraph 11(a) of Dr Akkerman's report. The costing has been assumed in the plaintiff's submissions but it also seems to be reasonable by reference to a comparison with the evidence of the cost of consulting a psychologist. I consider that this component of the claim is also reasonable. It is the equivalent of $46.15 per week.

Projection of claimed recurring costs for consultations and medication

512. The above components for general practitioner consultations, psychological counselling, psychiatric consultations and medication costs amounts to $129.21 per week which comes out at a higher figure than that included in the plaintiff's submissions. The difference appears to be due to a computation error. This amount is projected at 5 per cent over 25 years (x753.6) this yields the sum of $97,372. This amount does not include an allowance for possible future hospitalisations.

513. In addition to a claim for the cost of recurring treatment, the plaintiff also makes a claim for a buffer amount of $20,000 as a cushion against the prospect of future hospitalisations over the remaining course of her life span. The argued basis for this claim is that the plaintiff has been subject to severe depressive episodes, she is vulnerable to her PTSD triggers as has been explained in the medical evidence. In this regard it is significant that the plaintiff has had at least 4 hospitalisations in the past between December 2005 and July 2008 in addition to her initial hospitalisation. This has incurred a total cost, which I infer from the HCF payment to be either $63,942 or a substantial part of that sum.

514. In my view this evidence provides a reasonable basis upon which to make a buffer allowance for potential future hospitalisations. The argument against such an allowance is the opinion of Dr Akkerman who has stated that there is no longer a need for hospitalisation. I consider that Dr Akkerman's view to that effect is based in the present but it does not exclude the possibility of the need for future hospitalisations. I consider the claim for a buffer in the amount of $20,000 to be reasonable against this background of previous hospital admissions. When analysed, it is the equivalent of about $26 per week, which in my view is confirmatory of the reasonableness of the figure of $20,000 as a lifetime allowance by way of a buffer against the cost of future hospital admissions.

515. When the projected amount of $97,372 for the care and treatment costs is added to the allowance of $20,000 for the possibility of future hospitalisation costs the plaintiff is likely to encounter during her remaining lifetime, the total of these two sums is $117,372. I propose to round the final sum down to $100,000 on account of the usual imponderable factors associated with the attempted precision of assessment of likely future treatment costs where certainty of costing and patterns of incurring costs is necessarily imprecise and where there is a potential for overlap in costing elements. Nevertheless an allowance for such expenditure is in my view justified on evidence. I therefore assess the plaintiff's damages for future medical and allied treatment in the sum of $100,000.

516. There are seven heads of damage claimed under s 4 of the Compensation to Relatives Act 1897.

517. The plaintiff makes a claim for the loss of the value of the financial assistance that her son was continuing to provide to her. The evidence is that Mr Goodwin committed himself to looking after his mother after her second marriage had ended. He took her in and provided her with shelter and support. The value of that support is estimated by the plaintiff to be valued at $200 per week. The weekly sum of $200 per week is claimed over the 226 weeks from the date of the death of Mr Goodwin until the commencement of the trial, namely $45,200. The plaintiff said and I accept, her son paid for all utilities in the household, namely telephone, power, internet as well as food in addition to his own needs. The plaintiff estimates this support was to the value of $200 per week.

518. The defendant submits that the appropriate amount to be awarded for this head of damage should be based on a figure representing 50 per cent of Mr Goodwin's submitted net earnings, namely, the rate of $180 per week which results in an assessment of $40,680. The parties are otherwise agreed that the figure of 50 per cent of available net earnings is the appropriate basis for calculation.

519. Whilst the difference in these two amounts is relatively small, I consider the defendant's approach to the assessment of this head of damage is flawed for a number of reasons.

520. First, in arriving at the figure of $180 per week the defendant has undertaken what I consider to be an inappropriate analysis by averaging Mr Goodwin's earnings over the two years before his death. I consider that by taking that approach the defendant has identified an artificially low and incorrect sum to form the basis for calculation of this loss. The fact is that Mr Goodwin had a secure job in the airline industry and there was no evidence that this would not have continued or that there would be likely to be a reduction in his level of remuneration. I therefore consider that using an average rate rather than the actual rate at the time of his death is a more realistic approach.

521. Secondly, the unchallenged evidence is that Mr Goodwin was devoted to his mother and there was no evidence that he had any expensive past-times, interests or activities that would have represented a significant drain on his resources so that it was quite feasible that he would have provided his mother with financial support to the level that is claimed on her behalf.

522. Thirdly, the plaintiff's own means of support, namely a modest disability pension with allowances providing her with about $325 per week suggests she was significantly dependent upon her son for support, particularly since they planned to move to Tasmania and share the cost of acquiring a property. There is no basis upon which to infer that Mr Goodwin's contribution to these plans would have been less than equal or that he would contribute less than $200 per week to the support of the plaintiff. I accept the plaintiff's submission that she was financially dependent upon her son to the level of at least $200 per week. I therefore assess the plaintiff's damages for past loss of financial support in the sum of $45,200.

523. The plaintiff makes a claim for the projected value of the loss of financial support that Mr Goodwin would have continued to provide to her for the remainder of her life. That submission is conceptually based upon a continuation of the financial support provided by Mr Goodwin in the past.

524. Consistent with my findings concerning the claim for past loss of financial support I consider that the plaintiff's claim for future loss of financial support is a reasonable one.

525. The defendant has submitted that the rate for future projection should be $180 per week rather than $200 per week. Consistent with my earlier findings I reject that approach in favour of the projection of a loss of $200 per week.

526. The defendant has also submitted that a greater than usual discount for vicissitudes is required, namely, 25 per cent rather than the customary 15 per cent. I do not accept that submission for a number of reasons.

527. First, the argued basis for discount, namely that Mr Goodwin had uncertain employment prospects, has not been made out. Mr Goodwin had a secure job in the airline industry with Jetstar. Even if that job were to have ceased, he had an unrestricted capacity to obtain employment that was likely to derive an income.

528. Secondly, there is no basis for suggesting there be a discount for an acceleration in the plaintiff receiving an inheritance from Mr Goodwin's estate. There is no evidence as to the contents of his will and the evidence is that an investment property held by Mr Goodwin was sold at a loss after his death and this resulted in the plaintiff's property also being lost because it was put up as security for the loan. These circumstances do not provide a basis for discounting the future loss component of a damages award.

529. In my view it is significant that the plaintiff's claim for projection of $200 per week for the loss of future financial support is based on a 2005 rate of earnings. I therefore consider that rate is probably artificially low for an assessment made in 2009. In my view, given the fact that the suggested assessment sum of $200 per week contains no components for CPI increments over the last 4.34 years, indicates to me that no allowance should be made for a discount for vicissitudes from the future projection as that would probably lead to under-compensation which would not only be unreasonable but unjust to the plaintiff. In this case I consider that the artificially low rate of $200 per week effectively counter-balances any need to apply a discount for vicissitudes.

530. I therefore accept the plaintiff's submission for the projection of $200 per week at 5 per cent over 25 years (x 753.6) which yields the sum of $150,720.

531. I therefore assess the plaintiff's damages for future loss of financial support in the sum of $150,720.

532. The plaintiff makes a claim for the past loss of domestic assistance that was provided to her by her son. The claim is for the value of 7 hours per week of such assistance over a period of 226 weeks to the date of the trial at the rate of $22 per hour. The total claim for the value of past domestic assistance is $34,804.

533. The defendant submits that this claim is not maintainable because the statutory threshold of 6 hours per week for 6 months as required by s 15(3) of the Civil Liability Act has not been met. The defendant does not take issue with the rate claimed nor does it dispute that the services were provided by Mr Goodwin. Instead the defendant argues that the value of the services are not claimable as they do not represent an injury-based need : Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161.

534. The claimed services in question relate to heavier aspects of housework. She suffered back, leg and generalised pain if she undertook heavy activities. I accept the plaintiff's evidence that these services were necessarily provided to her by her son because her pre-existing conditions of fibromyalgia and thumb RSI made it difficult for her to carry out such activities. The question then arises as to whether the Act precludes recovery of the value of these services.

535. The plaintiff has submitted that s 15 of the Act does not apply to these services in the context of a dependency claim of this type as the Act is concerned with limiting the ability of an injured person from recovering damages for past domestic assistance whereas this claim is made under the Compensation to Relatives Act 1897 which remains unaffected by s 15 of the Civil Liability Act 1897. I accept that submission.

536. In the alternative, the defendant has submitted that no allowance should be made in respect of past domestic services because there is no evidence to support a claim that the plaintiff had continued to receive such services after Mr Goodwin's death. Whilst that submission has some superficial attraction I consider that it is conceptually misconceived because in this case the context and purpose of an award of damages, so far as an award of monetary damages can achieve, is to place the plaintiff in the position she would have been in but for the wrong committed against her. Further, the defendant should not be seen to be benefiting from the wrongdoing.

537. Once these principles are acknowledged, in my view it follows that the plaintiff is entitled to the damages for the loss of the value of Mr Goodwin's services as claimed.

538. I consider the plaintiff's claim for the lost value of past domestic assistance provided to her by her son to be an incident of financial dependence within the meaning of the Compensation to Relatives Act. I consider the amount claimed by the plaintiff to be reasonable. I therefore assess the plaintiff's damages for past loss of domestic support in the sum of $34,804.

539. The plaintiff makes a claim for the projected value of the loss of future domestic services provided by her son and claims those services would have continued to be provided by him for the remainder of her life. That claim is a natural extension of the claim made for the value of the loss of past services of this kind. The plaintiff claims the value of 7 hours per week at the agreed rate of $30 per hour which is the equivalent of $210 per week.

540. The defendant has submitted that only 3 hours per week should be allowed at $30 per hour, namely $90 per week.

541. Consistent with my findings concerning the claim for past loss of domestic support I consider that the plaintiff's claim as made is a reasonable one.

542. The defendant's submission that only 3 hours per week should be allowed in respect of the plaintiff's claim for future domestic services in my view makes insufficient allowance for the plaintiff's fibromyalgia and thumb condition which restricts her ability to perform household tasks, chores and activities.

543. I consider that an allowance of 7 hours per week for such services, which equates to an average of 1 hour per day is reasonable. I come to this view having regard to the ordinary range of physical tasks that comprise cleaning and maintenance of a household and a domestic garden.

544. I therefore accept the plaintiff's submission for the projection of $210 per week at 5 per cent over 25 years (x 753.6) which yields the sum of $158,256.

545. Whilst the foregoing calculation includes a longevity factor in the actuarial basis for projection, it does not include any allowance for the vicissitudes that might have otherwise affected Mr Goodwin's ability to continue to provide domestic assistance to his mother in those remaining 25 years had he lived. Having regard to that factor, I believe that the projected sum should be discounted by the conventional 15 per cent. In giving effect to this approach the projected sum of $158,256 becomes discounted down to the amount of $134,517.

546. I therefore assess the plaintiff's damages for future loss of domestic support in the sum of $134,517.

547. The plaintiff makes a claim for the past loss of the value of discounted air travel to which she claims she was entitled. The claim is for past discounted air travel to the value of $100 per week over 226 weeks until the date of the trial, namely $22,600.

548. It was a term of Mr Goodwin's employment that he was able to nominate as a beneficiary a family member to take advantage of discounted airfares being 10 per cent of the full economy fare for the routes travelled on Qantas or Jetstar airlines.

549. The plaintiff's evidence was that she typically travelled to the Gold Coast in Queensland every 6 or 7 weeks as her daughter and her grandchildren lived there and she would visit them. The plaintiff said she also travelled to New Zealand and return 3 to 4 times per annum to visit family she had there. That evidence was not challenged. It seems to me to be reasonable and I accept it.

550. The plaintiff tendered Exhibit "T" to demonstrate the commercial cost of return flights to the Gold Coast and to New Zealand on Qantas and Jetstar airlines.

551. The plaintiff argued that the standard economy Jetstar fare for travel from Sydney to the Gold Coast and return is $558. The plaintiff argued that allowing 8 trips per annum this equates to a loss of $502.20 per trip. This is the equivalent of $4017.60 per annum or $77.26 per week.

552. The plaintiff also argued that the standard economy Qantas fare for travel between Sydney and Auckland and return is $1333. That submission contained a computation error which is corrected to $1199.70. Allowing 3 trips per annum this is the equivalent of $3599.10 per annum or $69.21 per week.

553. The combined total of these claimed losses is $146.47 per week, which, when applied over 226 weeks to the date of the trial yields the sum of $33,102 which is the amount claimed by the plaintiff.

554. The defendant submitted that as the plaintiff has a duty to mitigate her loss this component of damages should be assessed on a different basis to the one claimed by the plaintiff. The defendant submits that the loss should be assessed according to a more complex formulation by reference to the cost of commercially discounted airfares offered by airlines other than Qantas and Jetstar but less the 10 per cent discounted fare with Qantas and Jetstar.

555. In my view that approach is inapplicable to the plaintiff's circumstances for a number of reasons. First, discounted airfares, according to common experience, are generally available at short notice and on less flexible or inflexible conditions. Secondly, the availability and pricing of such discounted fares is not only seasonal but subject to commercial policies and pressures whereas those claimed for by the plaintiff are not. The fares claimed for would only vary within the 10 per cent margin, not over the full amount.

556. For these reasons I consider that the defendant's mitigation submission should be rejected.

557. Accordingly, in my view, there is no reasonable answer to the plaintiff's claim other than some possible scope for discounting on account of vicissitudes concerning Mr Goodwin's continuity of employment by Jetstar. I do not consider that such a discount should be applied for the period up until the date of the trial as it is relatively short and there was no evidence that Mr Goodwin's employment was anything other than secure. I therefore assess the plaintiff's damages for the past loss of discounted air travel in the sum of $33,102.

558. The plaintiff makes a claim for the value of the loss of future discounted travel benefits that would have accrued for her benefit if Mr Goodwin had continued to remain employed by Jetstar for a further 25 years. The claim is for $146.47 per week projected over 25 years at 5 per cent ( x 756.3) to yield an undiscounted claim of $111,133.

559. For the same reasons that I have allowed the claim for the past value of loss of discounted air travel, including the rejection of the defendant's submission for an alternative basis for assessment involving mitigatory fare costs, I consider that it is appropriate to make a similar allowance for such losses into the future.

560. However, I consider that the sum for the future should be discounted on account of two relevant factors. The first such factor is for the conventional vicissitudes that would have applied to Mr Goodwin's prospects of continued employment with Jetstar. On account of this factor I consider the conventional discount of 15 per cent would be appropriate. The second such discounting factor is the vicissitudes that apply to the plaintiff. These could arise in respect of her own longevity, a lessening desire or need to travel or a reduced ability to travel on account of the possibility that her own health may preclude such travel or because the family members whom she would seek to visit in those places may, for whatever reason, cease to reside there. On account of this second category of factors I consider an appropriate discount of 20 per cent would be appropriate. The combined discount I intend to apply is therefore 35 per cent.

561. Applying a discount of 35 per cent to the amount of $111,133 this yields the sum of $72,236. I therefore assess the plaintiff's damages for the future loss of discounted air travel in the sum of $72,236.

562. The defendant has conceded that the plaintiff's claim for reimbursement of the funeral costs she has incurred in respect of her deceased son are in the amount of $3318. I therefore assess funeral costs in the sum of $3318.

563. My assessment of the plaintiff's damages is summarised as follows:

Heads of damage claimed in the nervous shock claim Assessment (a) Non economic loss $189,500 (b) Past medical and allied treatment $72,920 (c) Future medical and allied treatment $100,000 First sub-total $362,420 Heads of damage claimed under Compensation to Relatives Act 1897 Assessment (d) Past loss of financial support $45,200 (e) Future loss of financial support $150,720 (f) Past loss of domestic support $34,804 (g) Future loss of domestic support $134,517 (h) Past loss of discounted air travel $33,102 (i) Future loss of discounted air travel $72,236 (j) Funeral costs $3,318 Second sub-total $473,897 Total $836,317

564. The plaintiff has succeeded on the issues of liability and causation and I have assessed the plaintiff's entitlement to damages in respect of both claimed causes of action in the combined sum of $836,317. As there is no memorandum of consent to unlimited jurisdiction the plaintiff has acknowledged that she cannot and does not expect to recover damages in excess of $750,000 : s 51 of the District Court Act 1973. She is entitled to a judgment in that amount. There is no reason why in this case costs of the proceedings should not follow the event of a successful outcome for the plaintiff.

565. I make the following orders: (a) Verdict for the plaintiff in the sum of $836,317; (b) Judgment for the plaintiff in the sum of $750,000; (c) The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise ordered; (d) Liberty to apply on 7 days notice if further orders are required; (e) The exhibits may be returned.

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