67 These observations were made in the context of causation but are important on the question of negligence.
68 The evidence leads me to the conclusion that there was a confluence of factors which brought about the incident on the night of 16 August 2000. The four factors which in my view contributed to the incident were the speed of the plaintiff in the circumstances prevailing at the relevant time, the existence of a hump over the expansion joint at the commencement of the bridge deck, the presence of black ice on the surface of the bridge deck and the placement of an inadequate sign. It was contended on behalf of the plaintiff that the sign was totally inadequate to warn him of the real hazard which was on the deck of the bridge, was not large enough, was not precise enough and was situated at a point too far back from a known area of black ice to give adequate warning.
69 The next question is to consider what the reasonable authority should have done to reasonably respond to the risk with knowledge of all relevant matters which the authority knew or ought to have known in the circumstances?
70 In considering and determining the issue of negligence it is necessary to state the facts relevant to the question.
How did the incident occur?
71 I have already considered this question. I have stated my conclusions. The incident occurred as described by the plaintiff and supported by his passenger, Corey Hyland.
What speed?
72 I have already found that the plaintiff approached the commencement of the bridge deck at a speed somewhere between 90-100kph. This was the speed limit. There was no sign requiring him to reduce his speed and neither the sign or the conditions alerted him to slow down. In the circumstances known at the time, his speed was reasonable.
Was there a hump and if so, what size?
73 The plaintiff gave evidence that there was a hump over the expansion joint area at the northern end of the bridge. It was a noticeable hump. It caused the back wheels of his vehicle to leave the roadway. The hump had been there for many months prior to the incident as deposed to by the plaintiff's co-workers. There is no direct evidence from any source as to the size of the hump on the night of the incident. A photograph taken by his brother, a member of the police force, Senior Constable Andrew Montfroy, on 21 September 2000, five weeks after the happening of the incident shows the area over the expansion joint and it appears to be raised. However, it is not possible, looking at that photograph, to determine the size of the hump. On the western side of the roadway, that is, on the other side to the plaintiff's course of travel, the white fog line over the area indicates a reasonably sizeable hump but it is not possible to determine the size of the hump on the actual driving lanes from the photograph.
74 A number of experts have at various times since the date of the accident visited the scene and made observations concerning the size of the hump at the time of their inspection. Because of the danger involved in stepping onto the roadway and making a proper examination to determine the height of the hump, the evidence of each of the experts has to be treated with caution. Further, it appears that the Roads Corporation resurfaced the area in January 2004.
75 The evidence revealed that Roads Corporation carried out inspections on the overpass in the year 2000 and previously, on a weekly basis and in a range of weather conditions. It is also clear that the Roads Corporation kept records, some of which have been tendered in evidence. Evidence also revealed that two days prior to this incident the Roads Corporation inspected the area. Nobody was called from the Roads Corporation to provide information as to inspections and whether there was any hump. On the other hand there is evidence that prior to 16 August 2000 it was observed that the road surface leading up to the expansion joint on the northern end of the bridge had subsided to some extent because of settlement, thereby creating a lip at the point where the road surface met at the expansion joint, the bridge deck.
76 Mr Terry W. Alford is a consulting engineer who has had considerable experience in the area of road construction and maintenance. He gave evidence which I accept that sealed roads deteriorate as a result of repeated traffic loading and environmental influences such as climate and soils. Maintenance is to be carried out to ensure not only the safety of traffic but to sustain the serviceability and appearance of the road. He referred to the Austroads publication, A Guide to the Visual Assessment of Pavement Condition 1987, which classified defects in road surfaces under six headings, two of which were deformation and surface texture deficiencies. He visited the Elphinstone Overpass on 6 June 2005 and observed that there was a hump of approximately 25-30mm existing at the northern end of the bridge deck. He observed that it caused a small deflection of light vehicles, and caused trucks and semitrailers to visibly jolt their load. He stated that such a hump would be classified as a deformation with possible surface texture defects. He stated that the hump results from shoving resulting from the movement of the road surface immediately adjacent to the bridge deck. He opined that the cause of such movement can be poor pavement material, inadequate compaction at the time of construction and/or the intrusion of water. Evidence was given by Mr Alford and also another expert, Jackson Clark, that good road management procedures require the monitoring of the approaches to bridge abutments for settlement and to correct any settlement as required. As Mr Clark emphasised, the identification and correction of any hump is not only a matter of driver comfort for road users but is a matter of safety. Mr Clark opined, and I accept his evidence, that loss of control is more likely to occur on bends in the road and/or uneven or rough road surfaces with poor friction, resistance or traction. He also stated, and I accept his evidence, that humps in road surfaces can cause the wheels of vehicles to become airborne and a vehicle can start to slide when this occurs. If wheels slide, control can be lost with respect to the vehicle's path. Mr Alford stated that good road works practice recognised that if a hump was of 25mm or more in height, a response was necessary to avoid, amongst other things, a safety issue arising. He referred to VicRoads specifications, s.750, Appendix 2. At the time of the incident, the response time for intervention to do something about a hump of 25mm or more was not specified but it was noted that intervention should take place.
77 The first expert to visit the scene was Jackson Clark who provided a report to TAC Law. He examined the area on 13 June 2003. He observed that the road surface approaching the bridge had settled; this had occurred over a number of years and had apparently been rectified by building up the road surface. He observed that "the settlement resulted in a step or hump along the abutment for the full width of the roadway". Photographs taken by him at the time clearly establish this as did the photograph taken by the plaintiff's brother shortly after the incident. He said that he measured the height of the hump at "the abutment in the south bound traffic lane" at 125mm. However, as he stated in his evidence, that measurement was made reasonably close to the fog line on the east side of the carriageway. He measured the height of the hump by placing a piece of wood at the peak of the hump and running in a generally northerly direction, bringing the wood to a level plain using a spirit level, and he then measured the distance between the bottom of the piece of wood and surface of the road. In my opinion that process gave a wrong reading. To get a reading which had a degree of accuracy about it, it would have been necessary for the piece of wood to have been held parallel to the surface of the road. I do not accept that the hump at that date was 125mm as Mr Clark stated.
78 The next expert to look at the scene was David Axup who is very experienced in the area of motor car accidents and at one point was a Chief Superintendent in the Victoria Police Force. His experience is by reason of both study and work in the field. He visited the scene on 6 January 2004 and took a number of photographs. He determined the vertical height of the hump at 37mm. He opined that the hump could form a dam for moisture and facilitate the forming of ice. Photographs taken by him in early January 2004 when compared with the photograph taken by the plaintiff's brother shows that some sealing work had been done in the intervening period. Roads Corporation provided evidence that the bridge and approaches were resealed in January 2004. Looking at Mr Axup's photographs there is a real suspicion that work had been done prior to January 2004 on the northern approach to the bridge deck, especially when compared with the photograph taken by the plaintiff's brother.
79 As stated Mr Terry Alford visited the site on 6 June 2005 and he came to the conclusion that the hump was approximately 25-30mm at the northern abutment.
80 Another expert, Robert Morgan, an expert in the area of traffic signs, visited the site on 22 June 2005 but apparently did not measure the size of the hump.
81 Finally, Mr Richardson, who was called by Roads Corporation, visited the site on 30 April 2005 and 17 May 2005 and, by placing a tape over the size of the hump and getting down on his knees, measured the size of the hump in the traffic lanes at 10mm whereas the size of the hump outside the fog line was 37mm and 28mm.
82 I am not assisted by the views of the various experts who looked at the scene many years after the event as to the size of the hump on the night of the incident. It is apparent that some work had been done in the area between the date of the incident and the time when the experts looked at the scene and it is not possible to say so long after the event what the size of the hump was at the relevant time. On the other hand, I do have the evidence of the plaintiff and his passenger Mr Hyland which showed that the hump was of sufficient height to cause the rear wheels of the plaintiff's car to rise above the ground and slip to the left. The plaintiff, in the month prior to trial, took a video of vehicles crossing over the expansion joint and was able to demonstrate that from time to time the wheels of vehicles driving over the hump rose above the surface. That is the position today. It does demonstrate that if a hump is of a certain size it can have the effect of causing the rear wheels to rise above the surface. This was also observed by the expert, Mr Alford.
83 Not only do I have the evidence of the plaintiff and his passenger of what occurred on that night, I also have evidence from other persons who travelled over that area of road prior to 16 August 2000. The plaintiff's brother stated that when he took the photographs in September 2000 there was a hump over the area where the expansion joint was. The passenger, Mr Hyland, stated that in the two years prior to August 2000 he was aware that there was a substantial lip on the bridge. He was involved in traffic management involving road construction and he said that he was aware that there should not be a lip. He opined that it was dangerous. He could not think of a larger lip on any part of the surface of the road between Bendigo and Melbourne.
84 Shelly Weaver also worked with the plaintiff prior to the date of the incident and often travelled with him from Bendigo down to Melbourne and back. She had been travelling the highway for about 12 months. At times she drove her own vehicle or others drove her vehicle. She also gave evidence that there was a big hump which could be felt as the vehicle travelled onto the bridge. She stated that she particularly noticed the hump because the chassis of her vehicle had been lowered and there was a tendency to scrub when the wheels struck an area which caused them to rise within the base of the vehicle.
85 Two co-workers, Ricky Drescher and Christopher Philby, also gave like evidence that there was a noticeable hump and that it had been there, to their knowledge, for at least two years prior to the incident.
86 Christopher Philby stated that the size of the hump was commented on from time to time amongst those travelling down to Melbourne.
87 In my opinion, at the time of the incident there was a hump over the expansion joint for cars travelling south proceeding onto the Elphinstone Overpass Bridge deck and it was of sufficient size to cause the wheels of a motor vehicle to slightly bounce and to cause them to rise slightly above the surface. Given the evidence of the witnesses, including those who had inspected the hump in the last few years, it is my opinion that the hump was at least 25mm and probably greater. I say that based upon the observations made by various people as to the effect of the hump when a vehicle passed over it prior to and on the night of the incident, and the observations made in the last few years when others have measured the hump in excess of 25mm. Any hump in the road of at least 25mm requires repair. As at the date of the incident good road repair practice required repair of a hump on highways where the speed was at least 100kph. Proper inspections carried out by Roads Corporation prior to the date of the incident would have revealed the excessive size of the hump at the date of the incident. Experience tells us that hitting a hump at speed has a tendency to cause deflection from the line of travel.
State of knowledge of Roads Corporation
88 Roads Corporation did not call any evidence from any employee concerning the bridge, the hump and its state of knowledge as to these matters, its signs or any repair work that was done to the bridge leading up to 16 August 2000. I am satisfied on the evidence available that there would be employees of Roads Corporation who would have some knowledge of the condition of the bridge and the accidents which had occurred on the bridge due to the presence of black ice prior to 16 August 2000. The records which have been produced and tendered in evidence lead to that conclusion, as do some of the Corporation's answers to interrogatories administered by the plaintiff. Mr Shane Richardson, who was called on behalf of the Corporation, investigated the collision history at the Elphinstone overpass for the period from 1 January 1987 to 31 December 2000. He obtained information from what was called Crashstats, which is a Victorian Government record available through the Internet. His investigation revealed two incidents at the Elphinstone overpass due to mud, snow or ice prior to 16 August 2000. He also stated that it was a known fact that there was a problem with black ice forming on the overpass/bridge decks due to the increased cooling effect of circulating airflows, but did not state whether VicRoads had that information prior to the date of the incident. However the evidence leads to the conclusion that the Corporation knew of accidents on the overpass due to black ice in the past. In the circumstances, it is open to the Court to more readily accept the evidence called by and on behalf of the plaintiff and, further, to infer that if any Roads Corporation employee had been called, he or she would not have assisted the defendant's case. See Jones v Dunkel;[44] O'Donnell v Reichard.[45]
89 In RPS v The Queen,[46] four judges of the High Court said: