Roads and Maritime Services v Grant

Operation of statutory immunity

1. The Authority pleaded in its defence that it relied on s 43A of the Civil Liability Act. That claim was the subject of the following particulars: Particulars in relation to s 43A (a) The RTA is authorised to carry out traffic control work which includes any activity in connection with the construction of traffic control facilities as defined by reference to s45E Transport Administration Act 1988. (b) The exercise of powers pursuant to the Roads Act 1993 is an exercise of a 'special statutory power' within the meaning of that term contained within the Act. (c) The exercise or failure to exercise such a special statutory power in the circumstances alleged in the statement of claim was not so unreasonable that no authority having such a special statutory power could properly consider the act or omission to be a reasonable exercise or failure to exercise that power.
2. As will be seen shortly, that pleading reflected the language of s 43A. Although the plaintiff did not take any point about this, that was an inadequate pleading, the purpose of pleading being to provide a summary of the material facts on which the party the relies. [1] The plaintiff did not file a reply, as it should have done to a properly pleaded reliance on the statute. Accordingly, the "real issues" in dispute were not adequately identified. [2]
3. Noting these matters is not an arid exercise in technicality; there was a dispute, even at this stage of the proceedings, as to where lay the burden of proof on factual matters relevant to the immunity.
4. Section 43A is in the following terms: 43A Proceedings against public or other authorities for the exercise of special statutory powers (1) This section applies to proceedings for civil liability to which this Part applies to the extent that the liability is based on a public or other authority's exercise of, or failure to exercise, a special statutory power conferred on the authority. (2) A special statutory power is a power: (a) that is conferred by or under a statute, and (b) that is of a kind that persons generally are not authorised to exercise without specific statutory authority. (3) For the purposes of any such proceedings, any act or omission involving an exercise of, or failure to exercise, a special statutory power does not give rise to civil liability unless the act or omission was in the circumstances 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, its power. (4) In the case of a special statutory power of a public or other authority to prohibit or regulate an activity, this section applies in addition to section 44.
5. The phrase "public or other authority" in subs (1) is defined in s 41 to include "any public or local authority constituted by or under an Act". [3] It would have been appropriate for the Authority to identify in its pleading how it fell within this defined term (assuming that was the part of the definition that was said to be engaged). In the absence of a reply, it could then be assumed that that aspect of the section was accepted by the plaintiff, as appears to have been the case as revealed by the running of the trial. [4]
6. It would then have been appropriate for the Authority to identify the acts or omissions on which the plaintiff had relied as giving rise to liability and, with respect to each, the matters which brought them within the scope of a special statutory power. The pleading dealt generically with "any activity in connection with the construction of traffic control facilities".
7. The particulars of negligence pleaded by the plaintiff were as follows: [5] Particulars of Negligence a. Failure to install a "Keep Left" sign on the concrete median nose or in a relevant location with due regard to the hazard the median nose and pedestrian barrier presented - in breach of Australian Standard AS1742.2 (1994) - Manual on Uniform Traffic Control Devi[c]es, part 2. b. Failure to paint the median nose in a colour that attracts the attention of oncoming vehicles. c. Failure to install appropriate visual aids to clearly identify the hazard of the median nose and pedestrian barrier. d. Failure to adequately design road to take into account the hazards identified above. e. Failure to clearly delineate the lanes of traffic in the Intersection to avoid a vehicle from drifting off the appropriate line while negotiating the change in traffic conditions within the Intersection. f. Failure to install adequate lighting to the road and the median nose and pedestrian barrier on the eastern side of the Intersection. g. Failure to have due regard to the safety of road users.
8. These particulars refer to a "hazard" involving the median strip (or at least the "nose" of the median strip) on the eastern side of the intersection, being a hazard to east bound traffic crossing the intersection. The hazard was identified in the following terms: [6] "a. There is a crest of a vertical alignment of the road on the western side of the Intersection resulting in a delayed view of the median nose on the eastern side of the intersection. b. The road alignment at the intersection shifts the traffic to the right while the apex of the road is a left turn causing vehicles to be right of the lane alignment when passing eastbound through the Intersection. c. The misalignment causes vehicles to make an adjustment to the line travelled to avoid a collision with the median nose. d. The Intersection is approximately 30 metres wide. There are no line markers to delineate the lanes to guide vehicles through the Intersection. e. From the middle of the Intersection for approximately 80 metres eastbound there is inadequate lighting at night on the road. f. The pedestrian walk bridge east of the Intersection casts a shadow reducing available light at night to the road on the eastern side of the Intersection."
9. The nature of the hazards so identified are best explained by reference to a diagrammatic representation of the intersection provided at appendix A below. However, that diagram does not provide a full understanding of the nature of the topography, including the reference to the "crest", which the evidence revealed to be a 7.4% incline for eastbound traffic approaching the intersection along Epping Road. Nor does the diagram give a full representation of the size and scale of the intersection or its various features, some aspects of which can be gathered from the reproduction of the overhead view reproduced at appendix B below.
10. The plaintiff's case, as it appeared from the evidence, was that the front wheel of his motorcycle made contact with the "nose" of the median strip, which caused him to lose control and crash. It also appeared that when he entered the intersection he was travelling in either the second or the third lane from the northern kerb of Epping Road. Epping Road had four lanes, the first being a bus lane and the fourth being a right hand turn lane. The kerb on the eastern side of the intersection was thus aligned with the outside of the third lane on Epping Road eastbound. Against this background, it may be seen that there are three basic complaints in the particulars of negligence, namely: (i) failing to install a sign or other visual aid allowing an eastbound traveller to identify the location of the median strip on the eastern side well before entering the intersection; (ii) failing to mark traffic lanes across the intersection from Epping Road eastbound, and (iii) failing to install adequate lighting.
11. The trial judge held that none of these omissions involved the exercise or failure to exercise a "special statutory power", because all (or at least the particular omission found to be material, namely the omission of a "keep left" sign) could be undertaken by the Authority in the exercise of its powers as the owner of the land. This conclusion is not consistent with the later reasoning of this Court in Curtis v Harden Shire Council, [7] delivered after the trial judgment in this case. No attempt was made on behalf of the plaintiff to distinguish between the elements of negligence alleged, on the basis that some might constitute a failure to exercise a special statutory power, while some might not. For reasons which will be explained below, that approach was correct: all the particulars involved the exercise of special statutory powers in designing, constructing and maintaining the intersection.
12. So far as the operation of s 43A was concerned, the plaintiff sought in this court to distinguish the reasoning in Curtis. He submitted that Curtis did not involve (or consider) how the section was engaged with respect to a failure to exercise a power. That concept, the plaintiff submitted, did not encompass a failure to address an issue at all, but only a positive decision, after consideration, not to exercise a power. For example, if the Authority had considered the erection of a sign on the nose of the median strip, but decided not to take that step, it could invoke the immunity. On the other hand, if it gave no consideration to the possibility of erecting a sign, it could not invoke the immunity.
13. As a matter of abstract analysis, it was open to the plaintiff to say that a "failure to exercise" a power might be the result of a consideration or inadvertence. However, there are reasons to doubt that such nice distinctions have relevance in the statutory context.
14. First, as was touched on in Curtis, there is no bright line distinction between exercising a power and failing to exercise a power. For example, it is common experience that lines demarcating traffic lanes do not extend across intersections, although one or two lines may be included for guidance, especially for turning traffic. The better understanding of this situation is not that the Authority has "failed" to mark lines, but rather that it has considered what guidance should be given by way of line marking, no doubt conscious of the purpose (to assist drivers) and the risk of confusion Thus, whether a particular situation is analysed as a limited exercise of a power or as an exercise of a power in some respects and a failure to exercise the power in other respects may depend upon the level of detail at which the analysis takes place. The same point arises with respect to a distinction between a considered decision and inadvertence. It is by no means clear that the statutory scheme envisages the relatively high level of particularity required by the plaintiff's approach. Nor is such an approach in keeping with the statement of principles set out in s 42: 42 Principles concerning resources, responsibilities etc of public or other authorities The following principles apply in determining whether a public or other authority has a duty of care or has breached a duty of care in proceedings for civil liability to which this Part applies: (a) the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions, (b) the general allocation of those resources by the authority is not open to challenge, (c) the functions required to be exercised by the authority are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate), (d) the authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceedings relate.
15. Although the different provisions in Pt 5 deal with questions of duty and breach in different ways, no basis was articulated upon which these principles should not be applied in the application of s 43A. Paragraphs (c) and (d) are not consistent with the approach proposed by the plaintiff to the construction of s 43A(3).
16. Other sections in Part 5 expressly address both a failure to exercise a function and the failure to consider exercising a function. Thus, s 44(1) provides: 44 When public or other authority not liable for failure to exercise regulatory functions (1) A public or other authority is not liable in proceedings for civil liability to which this Part applies to the extent that the liability is based on the failure of the authority to exercise or to consider exercising any function of the authority to prohibit or regulate an activity if the authority could not have been required to exercise the function in proceedings instituted by the plaintiff.
17. The plaintiff submitted that the explicit differentiation in s 44(1) between a failure to exercise and a failure to consider exercising a function supports the view that the failure to exercise referred to in s 43A(3) does not apply where there has been a failure to consider the exercise of a power. There is no doubt overlap between s 43A and s 44, as recognised by s 43A(4). The term "function" is defined to include a power, authority or duty. [8] It is likely that the erection of traffic lights would constitute the exercise of a function regulating an activity; accordingly a road authority could not be liable for a failure either to erect traffic signals, or to consider erecting such signals. It would be curious if the same function, involving (as many such functions will) the exercise of a special statutory power, might be covered by s 44, but not s 43A. The purpose to be served by such a distinction is not evident.
18. A similar inference was sought to be drawn from s 45 which provides: 45 Special non-feasance protection for roads authorities (1) A roads authority is not liable in proceedings for civil liability to which this Part applies for harm arising from a failure of the authority to carry out road work, or to consider carrying out road 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. (2) This section does not operate: (a) to create a duty of care in respect of a risk merely because a roads authority has actual knowledge of the risk, or (b) to affect any standard of care that would otherwise be applicable in respect of a risk. (3) In this section: carry out road work means carry out any activity in connection with the construction, erection, installation, maintenance, inspection, repair, removal or replacement of a road work within the meaning of the Roads Act 1993. roads authority has the same meaning as in the Roads Act 1993.
19. The inter-relationship of the various provisions in Pt 5 is not without its difficulties. The operation of s 44 is to deny liability in civil proceedings where an authority could not be required by the plaintiff to exercise the particular function, where the failure to exercise or consider the exercise of the function has resulted in loss to the plaintiff. That is, liability depends upon the function involving a power coupled with a duty, where the duty to act is enforceable by the injured party. Little consideration was given to the operation of that provision in the present case, although, at least on one view, it was engaged, subject to the question of standing to obtain a mandatory order. Pursuant to s 87(1) of the Roads Act 1993 (NSW) the Authority had power to "carry out traffic control work" on all public roads. (It was a basic premise of the plaintiff's case that it had power to put signs at the intersection of Epping and Longueville Roads.) It also appears to have been accepted that the Authority was the "roads authority" with respect to the intersection. [9] Part 8 of the Roads Act provides that roads authorities may "not regulate traffic on a public road otherwise than in accordance with this Part." [10] Section 115 provides: 115 Roads authority may regulate traffic in connection with road work etc (1) A roads authority may regulate traffic on a public road by means of barriers or by means of notices conspicuously displayed on or adjacent to the public road.
20. Further, the conferral on the Authority of power to carry out "traffic control work" [11] includes activities in connection with the installation of a traffic control facility, which is defined to include a sign. [12] The combination of these provisions confirms the ordinary meaning of the language used in s 44, namely that placing signs directing traffic, including a "keep left" sign would constitute the exercise of a function of the Authority to prohibit or regulate an activity. The plaintiff did not suggest that he would have had standing to require the Authority to place a "keep left" sign on the median strip on the eastern side of the intersection. Accordingly, the effect of s 44(1) appears to be that the Authority could not be liable for any failure to exercise or consider exercising the power to regulate traffic by placing a "keep left" sign on the median strip.
21. Nevertheless, the case was not run on that basis and little attention was paid to the relationship between the various provisions in Pt 5 of the Civil Liability Act. At trial, the judge having determined that the power to carry out traffic control works was not a "special" statutory power, because any member of the public could erect warning signs on a road on his or her private land, did not need to consider further aspects of s 43A. [13]
22. This case had nothing to do with a road on private land: it was concerned with the erection of a sign on a public road. As the parties accepted on appeal, the carrying out of such work constituted the exercise of a special statutory power, as held by this Court in Curtis. [14] It followed that the appellant could not be liable in a civil action for any act or omission involving the failure to exercise its relevant statutory powers unless the act or omission was in the circumstances "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, its power."
23. The test to be applied is, as noted in Curtis, [15] grammatically awkward. There are, three separate elements to the test which need to be identified. First, the requisite assessment of unreasonableness is to be made by an hypothetical reasonable public authority: while the court must make the assessment, it must do so by reference to the approach properly taken by such an authority. The significance of that element is that the exercise must be undertaken having regard to the limits beyond which a person (such as an authority) having necessary expertise in traffic engineering would not step.
24. Secondly, the test is formulated in the negative. By contrast with s 5B(1)(c) of the Civil Liability Act, it is not satisfied by evidence of what a reasonable traffic engineer would have done as a precaution against an identified risk. Rather, it is only satisfied by proof that no traffic engineer acting reasonably would have failed to take the precaution identified by the plaintiff. That is, accepting that there will be a range of views amongst reasonable traffic engineers, the omission must be such that no person with the requisite expertise could properly consider the omission to be reasonable. The fact that a high threshold is being prescribed is revealed by the double negative, "so unreasonable that no authority …".
25. Thirdly, the section reformulates the standard by which a breach of duty is to be judged. Once the section is engaged, the plaintiff will have to establish negligence beyond the statutory threshold in order to succeed. [16] An assessment of the relevant evidence in the present case demonstrates that the plaintiff failed on any view to establish that burden. (Indeed, it may be doubted whether the evidence established breach according to the ordinary standard identified in s 5B.)

Assessment of evidence

1. With respect to certain matters, the experts were in agreement. First, there was a foreseeable risk of harm arising from three factors. The first factor was identified as a continuation across the intersection of the arc formed by the lanes as they entered the intersection from Epping Road. The slight curve was described as the arc of a circle having a diameter of 200 metres. That meant that a vehicle entering the intersection needed to follow the slight curve in order to exit in the same lane: to go straight ahead would involve moving at a tangent to the arc and thus, for a vehicle in the outside through lane, potentially colliding with the median strip on the eastern side of the intersection.
2. The second factor was described as the discontinuity of the median strip on either side of the intersection. That arose because, as Epping Road reached the intersection, it had four lanes, including a right hand turn lane. When it exited the intersection, the right hand turn lane had gone and the median strip was therefore the outer boundary of lane 3, rather than the outer boundary of lane 4. It was not suggested that there was anything unusual about that configuration, but simply that the median strip did not continue in the same arc as the lanes across the intersection.
3. The third factor derived from the slight incline of Epping Road coming into the intersection which, it was opined, made it less likely at night that the lights of a vehicle entering the intersection would strike immediately and directly on the reflectors on the median strip opposite. Although there was a dividing fence running down the median strip from about five metres from the point where the median strip recommenced on the eastern side of the intersection, the implication was that the strip and the fence were less visible than they might have been had the road coming into the intersection been flat.
4. The experts were also agreed that the median strip would have been more conspicuous if there had been a "keep left" sign (of unidentified dimensions) placed near the "nose".
5. That evidence did not, however, come close to bringing the failure within the area of residual liability allowed under s 43A.
6. To the extent that the experts entered on the territory of evaluating levels of responsibility, they relied upon the Australian Standard providing for "keep left" and "keep right" signs. [17] The Standard provided a picture of a sign with the words "keep left" and an arrow pointing diagonally down to the left. The text alongside the picture read: "The KEEP LEFT and KEEP RIGHT signs should be used where a physical obstruction exists and it is necessary for all vehicles approaching such an obstruction to pass it on one side only. Most common applications are where traffic islands are constructed at intersections or where a median is introduced at the start of a divided road. These signs may not be required if it is readily apparently under all normally encountered conditions that drivers should keep to the left of the obstruction. The signs should be located no closer than 600 mm to the approach end of the obstruction but in certain circumstances it may be necessary to place them 8 m or more from the approach end."
7. The experts were asked to prepare a joint report. [18] Question 8 was as follows: "Did the relevant Australian Standards require the defendant to attend to any matters identified in paragraph 17.a-f of the Statement of Claim?"
8. The joint experts' report referred to cl 2.8.7 of the Standard and identified the effect of imperative and permissive terms: "The use of 'should' indicates a recommendation under the standard, with the expression 'may' used to indicate an available option, and 'shall' used to indicate a mandatory circumstance."
9. Apparently adopting the same language, the experts agreed that there "should" have been a "keep left" sign on the point of commencement of the median strip on the eastern side of the intersection. Beyond that agreement, Mr Schnerring (the plaintiff's expert) was recorded as considering that "it would be good traffic and road safety engineering practice" to provide the sign; he gave reasons in substance reflecting the three factors creating the hazard noted at [38]-[40] above.
10. To a large extent, that evidence was the high point of the plaintiff's case with respect to negligence. However, one other passage in the joint report should be noted. Question 4 asked whether there were features of the intersection (and of the lighting) that created a relevantly foreseeable risk of injury; question 5 asked what those features were and why the risks would be foreseeable to the defendant. The experts agreed that there were features that created a reasonably foreseeable risk, although they disagreed on the level and significance of that risk. [19] The answer to question 5 was as follows: [20] "Mr Schnerring and Mr McDonald [the Authority's expert] agree that features with a level of foreseeable risk are: The median fence east of the intersection was not delineated with reflectors, high intensity lighting, high contrast markings or signposting, There was a combination of horizontal and vertical curvature which is not desirable. Mr McDonald considered that this is not in contravention of any applicable standards or guidelines. Mr Schnerring disagrees. The plans show that the horizontal left curve through the intersection commences after the crest curve. This is known to be poor road design practice. The RTA Road Design Guide, Section 2,4, page 2-40 (March 1988) notes: When combined, the start of the horizontal curve should precede the start of the vertical curve. … Mr Schnerring considers evidence of previous impacts with the median fence indicates a problem with visibility. Mr McDonald does not believe there is any evidence of more than one previous impact with the median fence, nor any indication of the causal factors leading to that collision based on the damage alone."
11. Before turning to the cross-examination of the experts, it is convenient to note a passage in Mr Schnerring's separate report commenting on a separate report by Mr McDonald. Mr Schnerring noted: [21] "In paragraph 6.34, Mr McDonald noted that 'the use of such a sign [Keep Left] is not common along most roads with a central median'. I agree that application of Keep Left signs is inconsistent on medians. Common practice of omitting Keep Left signs on medians does not mean that it is appropriate or correct. It could simply indicate a wide spread lack of appreciation of the Australian standard."
12. The evidence of Mr McDonald and the acknowledgment by Mr Schnerring that the use of keep left signs on median strips is far from universal (a fact which might be derived from common experience in driving in Sydney) was a major obstacle for the plaintiff. In the joint expert evidence at the trial, Mr Schnerring was taken to that passage by counsel for the Authority (Mr Cavanagh SC) and asked to clarify what he was suggesting; he stated: [22] "SCHNERRING: There is a common practice of omitting them. I just don't think, and I'm not saying it's as common as the norm. … CAVANAGH: Are you suggesting in the second paragraph on page 11 that the use of keep left signs on median strips is not common? SCHNERRING: No, I'm not saying that. I say there is a common practice of omitting them. I don't think that's necessarily the common practice of what occurs. CAVANAGH: But it is in fact the position that use of keep left signs on median strips isn't common, do you agree with that? SCHNERRING: There are many instances where there aren't, that is correct. CAVANAGH: And you agree, don't you, that the median strip which divides Epping Road continues along for many kilometres west of the intersection of Longueville Road, that is towards Lane Cove Road, do you agree with that? SCHNERRING: Yes. CAVANAGH: And the median strip which continues east after the intersection of Longueville Road is the same type of median strip? SCHNERRING: Generally, yes."
13. Mr Schnerring was then asked questions with respect to the qualification contained in the Standard with respect to what may be "readily apparent under all normally encountered conditions."
14. To place that evidence in context, in an earlier passage in the cross-examination, Mr Schnerring accepted that he had not seen any guidelines of the Authority dealing with this situation. [23] Turning to the Australian Standard to which the experts had made reference, both agreed that there was "nothing mandatory about that standard". [24] They also agreed that compliance with the standard depended upon "whether it [was] readily apparent under all normally encountered conditions that drivers should keep to the left of the obstruction". [25] Mr Schnerring then noted that whilst something may not be required, he considered that it was "good road safety engineering practice" to include signs "unless there is damn good reason for not putting it in." [26] It was put to him that there were "median strips proceeding all the way [along] the Pacific Highway, all major roads - " to which he responded: [27] "I am aware there are many places where they are not used, that may not necessarily be an indication of what is appropriate though."
15. Counsel then put to both experts the following proposition: [28] "The simple point is this requires some sort of evaluative judgment on the part of someone I suppose as to whether they consider it is readily apparent under all normally encountered conditions, if we are just dealing with the standard that is, do you agree with that Mr Schnerring? … SCHNERRING: Correct. You are making an engineering judgments [sic] about whether that last sentence applies. CAVANAGH: Mr McDonald? McDONALD: Yes, I agree, it is an engineering judgment."
16. Given that he did not consider s 43A was engaged, the trial judge did not need to consider whether the high unreasonableness threshold was satisfied. Nevertheless, he gave attention to that question, noting that the standard was "objective". [29] He then said: [30] "The question must therefore be asked: Could an authority properly consider the act or omission a reasonable exercise of the power? The use of the word 'could' does not here raise a mere possibility, but is intended to refer to capacity. Nevertheless, if it is possible that an authority acting reasonably could perform the act, then liability is excluded."
17. While the final statement is correct, the formulation of the question was not. The transformation of the negative language of the statute into an affirmative question changes the meaning. It is, however, appropriate to note that the correct language was applied in reaching conclusions. [31] The critical step on the way to the final conclusion appears to be found in the reasons at [156]: "As earlier explained, each relevant expert, qualified by each side, agreed 'that the subject median nose should have been signed a "Keep Left" sign'. No other expert was called. I infer that no other expert would assist the RTA's case. Thus, any expert advice to any authority exercising this power in these circumstances would be inconsistent with the failure to erect the sign."
18. There are a number of problems with this analysis. While it is true that the passage quoted reflects the answer given in the joint expert report to question 8, [32] the omission of the previous sentence indicating the meaning of "should", namely a recommendation rather than a requirement, fails to convey the true impact of the evidence relied upon. Secondly, that sentence alone does not, as the reasoning recognises, demonstrate that the conduct was so unreasonable that no authority acting reasonably would have failed to take the step recommended. Thirdly, the reasoning omits other qualifying evidence, namely that the application of the standard required an evaluative judgment, as to which the experts disagreed. Fourthly, the attempt to bolster the evidence by applying against the Authority the principle derived from Jones v Dunkel [33] reversed the onus of proof. Fifthly, the conclusion ignored the evidence of common practice by road authorities in Sydney. There was no evidence as to whether the common omission of signs operated in circumstances similar to the intersection in question, namely where there were curved lanes and an incline. Sixthly, even taken at face value, the evidence relied upon did not demonstrate that such conduct was "so unreasonable that no authority" could properly fail to exercise the power to erect a sign.

Conclusion

1. Although the case against the Authority was broadly pleaded, the only element upheld by the trial judge and relied upon on appeal was the failure to install a keep left sign on the median strip. That appears from the judgment at [103]: "I do not conclude that RTA acted negligently in deciding to install a median strip and/or fence; only that, given its location, it was negligent to install the median strip and not to have placed, on or at the nose of the median strip, a sign warning of its location that could be seen by road users travelling up the hill on Epping Road towards the intersection."
2. That finding involved a failure to exercise a special statutory power within the terms of s 43A(2). The qualified immunity granted to a public authority, including a roads authority, under s 43A was therefore engaged.
3. The evidence at trial did not demonstrate that the omission relied upon as giving rise to civil liability fell within the area of the residual liability provided by s 43A(3). That being so, the only proper order was to give judgment for the defendant Authority.
4. It follows that the following orders should be made: 1. Allow the appeal and set aside the judgment in the Common Law Division, including the orders made on 17 April 2014 as varied on 19 May 2014. 2. In place thereof, 1. give judgment for the Roads and Maritime Services. 2. order that the plaintiff pay the defendant's costs of the trial. 1. Order that the respondent pay the appellant's costs in this Court. 2. Grant the respondent a certificate under the Suitors' Fund Act 1951 (NSW).
5. EMMETT JA: The respondent, Mr Mitchell Grant, suffered catastrophic injuries when the motorcycle he was riding collided with a pedestrian barrier erected on a median strip in the centre of Longueville Road, Lane Cove, near the intersection of Longueville Road with Epping Road and Parklands Avenue (the intersection). He sued the appellant, Roads and Maritime Services (formerly Roads and Traffic Authority of New South Wales) (the Authority), in the Common Law Division. He alleged that the injuries that he suffered were caused by a breach by the Authority of a duty of care owed to him.
6. A judge of the Common Law Division (the primary judge) found that the Authority was in breach of the duty that it owed Mr Grant and that that breach caused the injuries that he suffered as a result of the accident. However, his Honour also found that it would be just and equitable to reduce the damages that should be awarded to Mr Grant by 30 per cent, having regard to Mr Grant's share in the responsibility for the accident. His Honour entered judgment in the sum of $2,656,665.49 and ordered the Authority to pay Mr Grant's costs. The Authority now appeals from the orders made by the primary judge.
7. I have concluded that the appeal should be allowed on a number of grounds and that a verdict and judgment should have been entered for the Authority. My reasons are set out below. However, before dealing with the issues raised in the appeal, I shall say something about the circumstances of Mr Grant's accident, Mr Grant's claims against the Authority and the evidence before the primary judge.

The Accident

1. On 31 December 2008, Mr Grant, together with a friend, Mr Joshua Faulkner, travelled on their respective motorcycles to an overpass on Epping Road in order to watch a display of fireworks to celebrate the new year. The weather was fine and the road was dry. Shortly after midnight, following the conclusion of the fireworks display, Mr Grant and Mr Faulkner walked back to their motorcycles. After a brief conversation, they decided to go to a bar in the city and each travelled east on his motorcycle towards the city. Mr Faulkner rode some distance ahead of Mr Grant at a speed that was equal to or greater than Mr Grant's speed. The distance between the overpass where Mr Grant and Mr Faulkner watched the fireworks display and the point of the accident is approximately 5.3 kilometres.
2. Epping Road is a major thoroughfare, which runs generally in an east-west direction, to a point where it intersects with Longueville Road and Parklands Avenue. A plan of the intersection is set out in Appendix A to these reasons, and a view looking westbound along Epping Road is shown in Appendix B. Epping Road ceases at the intersection, but the thoroughfare continues in an easterly direction as Longueville Road. Longueville Road joins the intersection from the south, on the right, and then turns approximately at right angles to the east. On the northern side of the intersection, Parklands Avenue continues in a northerly direction.
3. There are four lanes on the eastbound carriageway of Epping Road immediately west of the intersection, which become three lanes on the east bound carriageway of Longueville Road east of the intersection. The right hand lane of Epping Road before the intersection is a right-turn lane for traffic turning from Epping Road into Longueville Road to proceed south. The left hand lane is a bus lane, which continues as a bus lane on the eastern side of the intersection, with access to a bus lay-by. The two middle lanes on the western side of the intersection are through lanes for ordinary traffic proceeding east from Epping Road into Longueville Road. Those two lanes continue east of the intersection, towards the Gore Hill Freeway and ultimately to the Harbour Bridge and Harbour Tunnel. Those lanes curve slightly to the right as they approach the intersection and then curve to the left through the intersection. While there are lane markings before and after the intersection, the lane markings do not continue through the intersection.
4. The westbound carriageway of Longueville Road, east of the intersection, has a right-turn lane for traffic turning to the right to proceed northbound into Parklands Avenue. There is also a bus lane on each side of the intersection in the westbound carriageway of Longueville Road and Epping Road.
5. That part of Longueville Road that runs north towards the intersection has one lane for traffic turning left to travel west in Epping Road, one lane for traffic travelling north across the intersection into Parklands Avenue and two lanes for traffic turning right in order to travel east on Longueville Road.
6. A median strip divides the two carriageways of Epping Road west of the intersection and a median strip divides the two carriageways of Longueville Road east of the intersection. A pedestrian barrier is erected on the median strip on Longueville Road east of the intersection. The pedestrian barrier is designed to prevent pedestrians crossing Longueville Road, since there is a pedestrian overpass across Longueville Road a short distance east of the intersection. The first few panels of the barrier were not in place at the time in question, with the result that, on the night of the accident, the barrier did not begin until approximately 2 metres east of the intersection.
7. The eastbound portion of Epping Road, west of the intersection, is on a gradient upwards towards to the intersection. The only evidence as to the extent of the gradient was that an "as-built longitudinal profile" of Epping Road showed a gradient of about 7.4 per cent on the immediate eastbound approach to the intersection. The primary judge characterised the gradient as "steep" and found that, because of the gradient, a person crouched on a motorcycle, as Mr Grant was, would not have been able to see the median strip dividing the carriageways of Longueville Road east of the intersection "until at, or immediately before, the intersection". His Honour found that, given the time of night, the lighting and colour of the fence above the median strip, together with the gradient, a rider in the position of Mr Grant would also not have seen the fence erected on the median strip "until at or just before the intersection".
8. The primary judge identified two substantial matters of controversy in relation to the primary facts. The first was the speed at which Mr Grant was travelling at or just prior to the accident. The second was the precise mechanism by which his motorcycle collided with the pedestrian barrier, namely, whether, before impact with the pedestrian barrier, Mr Grant's motorcycle hit the northern edge of the western end, or "nose", of the median strip dividing the eastbound and westbound carriageways of Longueville Road.
9. The speed limit at the location of the accident was 60 km/hr and the primary judge concluded that Mr Grant was travelling at approximately 80 km/hr when he reached the intersection. Although one of the Authority's grounds of appeal is that his Honour erred in not finding that Mr Grant was travelling at a speed in excess of 80 km/hr, the Authority now accepts that the precise speed is not determinative of the issues in the appeal. It is relevant, however, that Mr Grant was travelling somewhat in excess of the limit.
10. In relation to the mechanism of the collision, the primary judge found that Mr Grant's motorcycle was travelling up the incline of Epping Road towards the intersection, in the right hand through lane for ordinary traffic. His Honour found that, as the motorcycle came towards the crest of the incline, at or just before the traffic lights of the intersection, Mr Grant noticed the median strip and pedestrian barrier and attempted to adjust the direction of his motorcycle to take account of the northerly curve in the road to the left, east of the intersection. His Honour found that the motorcycle clipped the northern edge of the nose of the median strip sufficiently hard to cause the front of the motorcycle to lift off the road. The motorcycle then wobbled along the eastbound carriageway of Longueville Road and collided with the pedestrian barrier 29 metres from the nose, wedging between uprights of the barrier, 150 millimetres above the concrete of the median strip, being 250 millimetres above the road level. The rear of the motorcycle rotated clockwise and, as it did so, the motorcycle dislodged from the barrier and fell onto Mr Grant's left leg, severing it. The motorcycle and Mr Grant slid some considerable distance along the eastbound carriageway of Longueville Road before coming to a halt.
11. The Authority challenges the findings of the primary judge in so far as his Honour concluded that Mr Grant's motorcycle clipped the northern edge of the nose of the median strip before hitting the pedestrian barrier. It is common ground that if it is successful in that challenge, then the appeal must be allowed. However, the Authority also challenges other findings made, and conclusions reached, by his Honour.

Mr Grant's Claims

1. In his statement of claim filed on 28 March 2011 (the Statement of Claim), Mr Grant alleged that the Authority owed to him, as a road user, a duty of care:

• to identify and to take all reasonable precautions in its design of the intersection to eliminate the risk of injury, and
• to design the intersection and median strip, including the pedestrian barrier, free of hazards that could cause injury. In its defence, the Authority admitted that it owed a duty of care to road users exercising care for their own safety, but otherwise did not admit Mr Grant's allegations of duty.

1. The Statement of Claim then alleged that the Authority built the intersection with hazards that could cause injury. It asserted that the characteristics of the intersection that made it a hazard were as follows:

• the crest of the vertical alignment of Epping Road on the western side of the intersection resulted in a delayed view of the nose of the median strip on the eastern side of the intersection;
• the road alignment at the intersection shifts the traffic to the right, while the apex of the road is a left turn, causing vehicles to move to the right of the lane alignment when passing eastbound through the intersection;
• that misalignment requires vehicles to make an adjustment to the line travelled to avoid a collision with the nose of the median strip;
• the intersection is approximately 30 metres wide and there are no line marks to delineate the lanes to guide vehicles through the intersection;
• from the middle of the intersection for approximately 80 metres eastbound, there is inadequate lighting on the road at night; and
• the pedestrian overpass east of the intersection casts a shadow, reducing available light at night to the road on the eastern side of the intersection.

1. The Statement of Claim also alleged that the Authority built the median strip, including the pedestrian barrier, with hazards that could cause injury. It asserted that the following characteristics of the nose, median strip and pedestrian barrier made it a hazard:

• from the middle of the intersection for approximately 80 metres eastbound, there is inadequate lighting on the road at night;
• the pedestrian overpass east of the intersection casts a shadow reducing available light at night to the road, the median nose and the pedestrian barrier on the eastern side of the intersection;
• the nose is approximately 150 millimetres in height and 150 millimetres in width and is of concrete of low contrast;
• the nose is not obvious and is not marked as a hazard;
• the pedestrian barrier is grey in colour and of low contrast; and
• the pedestrian barrier is constructed with parallel metal bars that could catch a wheel or other part of a motorcycle, causing it to catapult the motorcycle rider.

1. The Statement of Claim then alleged that the accident occurred as a result of negligence on behalf of the Authority, particularised as follows:

• failure, in breach of Australian Standard AS 1742.2 (1994) - Manual on Uniform Traffic Control Devices (the Traffic Standard), to install a "Keep Left" sign on the nose or in a relevant location with due regard to the hazard presented by the nose and pedestrian barrier;
• failure to paint the nose in a colour that attracts the attention of oncoming vehicles;
• failure to install appropriate visual aids to identify clearly the hazard of the nose and the pedestrian barrier;
• failure to design the road adequately to take into account the hazards identified above;
• failure to delineate clearly the lanes of traffic in the intersection to avoid a vehicle from drifting off the appropriate line while negotiating the change in traffic conditions within the intersection;
• failure to install adequate lighting for the road, the nose and the pedestrian barrier on the eastern side of the intersection; and
• failure to have regard to the safety of road users.

1. Notwithstanding the references to lighting in the parts of the Statement of Claim summarised above, inadequate lighting does not appear to have been a matter relied on by Mr Grant. The primary judge expressly noted (at [7]) that lighting was not an issue in the proceedings.
2. The Authority denied that it breached any duty owed by it to Mr Grant. It also relied on s 43A of the Civil Liability Act 2002 (NSW) (Civil Liability Act), which applies to proceedings for civil liability in tort, to the extent that the liability is based on a public or other authority's exercise of, or failure to exercise, a special statutory power. Specifically, s 43A(3) provides that, for the purposes of any such proceedings, any act or omission involving an exercise of, or failure to exercise, a special statutory power does not give rise to civil liability unless the act or omission was, in the circumstances, 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, its power.

The Evidence

1. Mr Grant gave evidence and evidence was also adduced from several persons who were in the vicinity of the intersection at the time of the accident. However, none of the witnesses was able to say precisely what happened. Mr Grant had no recollection of the accident, which the primary judge did not find surprising, having regard to the injuries that he suffered. As will appear, the other lay witnesses did not see everything that happened.
2. The evidence also included a DVD recording made by police officers at the scene of the accident on the night in question and a closed circuit recording of the two motorcycles overtaking a bus in Epping Road several hundred metres before the intersection. That evidence was equivocal as to the mechanism of the collision.
3. In addition, his Honour undertook a view of the intersection. His Honour briefly recorded in his reasons the impressions he formed from the view.
4. Mr Grant relied on a written report dated 18 December 2009 by Mr Fred Schnerring, who is a consulting engineer with Jamieson Foley. The Authority relied on a written report dated 25 October 2012 by Mr Nigel McDonald, who is a consulting civil engineer with consulting and forensic engineers known as Collision and Safety. Mr Schnerring then provided a supplementary report, which responded to Mr McDonald's report, on 12 December 2012. Following the provision of their reports, Messrs Schnerring and McDonald were provided with a list of assumptions and nine questions, which were discussed at a joint conference. After the joint conference, they produced a joint report dated 28 May 2013, which was admitted into evidence. Mr Schnerring and Mr McDonald were sworn together for the purposes of cross-examination on their individual reports and on the joint report. Mr R Cavanagh SC, senior counsel for the Authority, asked questions first, followed by Mr A Bartley SC, senior counsel for Mr Grant.

Darlene Price

1. On the night in question, Ms Darlene Price was sitting in the shelter at the bus stop on the southern side of Longueville Road, east of the intersection. She gave a brief statement to the police on the night of the accident and made a statement to an insurance investigator in August 2009.
2. In her statement to the police, Ms Price said that, for no particular reason, she looked across the road and saw a motorcycle travelling east along Longueville Road. She saw the rider on his motorcycle, although it appeared that it was wobbling and the rider was losing control. She said that the rider then fell from the motorcycle, landed face down and rolled at least a couple of times. She said that the motorcycle skidded up the road and bits of it fell off.
3. In her statement to the investigator, Ms Price said that she had been sitting at the bus stop for about two minutes before the accident occurred and observed that the traffic conditions on Longueville Road east of the intersection were moderate. She realised that there was no traffic moving in Longueville Road and thought to herself that the lights for traffic at the intersection must be red for traffic in Epping Road. She looked to her right to see if her bus was coming and saw that it was not. She then heard the noise of traffic coming from her left, from the direction of Epping Road. The sound she heard was "just general traffic sound" and she did not associate the sound with that of a motorcycle. She turned her head to her front and was looking directly across the roadway through the metal pedestrian barrier, when she saw a motorcycle come into view from her left.
4. When she first noticed the motorcycle, it appeared to be leaving the roadway and lifting into the air. She said that the whole of the motorcycle lifted into the air with the rider still seated on it. When the motorcycle came into her view, she did not notice any other vehicles in the eastbound lanes in the vicinity of the motorcycle. Ms Price said that she saw the motorcycle roll in the air and, as the rider rolled with it, he became unseated. She said that two objects appeared to come off the motorcycle, one of which was the rider's leg and the other was a part of the motorcycle. She did not see or hear the motorcycle hit anything. She said that the motorcycle and the rider fell to the road and they both slid along the roadway. The rider slid about two or three car lengths before coming to rest on the road, but the motorcycle slid a bit further. Ms Price said that she only saw one motorcycle and was not aware of another motorcycle preceding the motorcycle involved in the accident.
5. Ms Price also gave oral evidence. She marked on a plan of the intersection the spot where she was sitting and the point where she said she first saw the motorcycle. According to the scale on the plan, the point marked by Ms Price as the point where she first saw the motorcycle appears to be approximately 29 metres from the nose of the median strip. That is to say, it appears that she was sitting virtually opposite the point where the motorcycle struck the pedestrian barrier. In cross-examination, Ms Price said that, when she observed bits coming off the motorcycle, it appeared to be already leaving the roadway and lifting into the air. She confirmed that she did not observe or hear the motorcycle hit anything. She agreed that she had been looking to the right in the immediate period before turning straight ahead and had not been concentrating on anything happening on the other side of Longueville Road. She agreed that she first saw the motorcycle when she turned around to look straight across the roadway.
6. Ms Price's oral evidence tends to suggest, as does her statement to the investigator, that she did not see the motorcycle until after it had hit the barrier, and that, as a consequence of hitting the barrier, the motorcycle and Mr Grant went up into the air before landing on the roadway. Her statement to the investigator is not entirely consistent with the statement she gave to the police at the time of the accident. The statement made to the police at the time may be thought to be more reliable than the statement made to the investigator some eight months later. The former makes no mention of the motorcycle's leaving the roadway and lifting into the air with the rider on it. Further, in her statement to the investigator, Ms Price did not refer to the bike "wobbling" or the rider "losing control". The totality of Ms Price's evidence is equivocal as to whether the motorcycle first collided with or clipped the nose of the median strip before colliding with the pedestrian barrier. Indeed, it is equivocal as to whether the motorcycle came into contact with the median strip or pedestrian barrier at all.

Craig Boyle

1. On the night in question, Mr Craig Boyle and his family drove north along Longueville Road towards the intersection after watching the midnight fireworks display. They reached the intersection at about 12.20 am and stopped at a red light behind a vehicle in the lane proceeding straight ahead into Parklands Avenue. Mr Boyle said in a statement to the police made on 6 January 2009 that he had a good view of the intersection and could see that there was no traffic travelling east on Epping Road into Longueville Road and there were no vehicles waiting in Parklands Avenue. He said that the only vehicle that he noticed at the intersection was the one in front of his car.
2. Mr Boyle said that he then saw a motorcycle go very fast through the intersection onto Longueville Road, travelling east. He commented to his wife "Geez, he's going fast". Mr Boyle said that, within two seconds, a second bike came through the intersection at a similar speed. He said that, as soon as the second bike went through the intersection, he heard a "loud clanging sound", which sounded like metal against metal. He looked and saw sparks coming from the eastbound lanes where the motorcycles had just travelled. When the lights turned green, the vehicle in front of Mr Boyle's car moved off and travelled straight ahead into Parklands Avenue. Mr Boyle followed slowly behind it. At that time, he saw a car make a U-turn from the westbound carriageway of Longueville Road into the eastbound carriageway of Longueville Road. He could see a lot of debris on the road on the eastbound carriageway.
3. In his oral evidence, Mr Boyle said that, as the second motorcycle went through the intersection, he did not observe it hitting the nose of the median strip. In cross-examination, Mr Boyle said that he was sure that the motorcycle did not hit the nose of the median strip. He said that his certainty was based not on something he did or did not see, but on the delay between the time when the motorcycle passed through the intersection and the time when he first heard the "clanging" noise.

Janelle Boyle

1. Mrs Janelle Boyle was travelling with Mr Boyle in their motor car. Mrs Boyle made a statement to the insurance investigator in August 2009. Mrs Boyle said that, after watching the fireworks, Mr Boyle drove their car north along Longueville Road in the direction of Epping Road, where they stopped at a red light. They were the second car stopped at the lights. Mrs Boyle said that they had been stopped for a short time and she noticed that traffic conditions were "pretty quiet" along Epping Road travelling eastwards. She said that, after a short period of time, while they still had a red light facing them, she noticed a motorcycle in Epping Road cross over the intersection heading east. She said that her husband commented to the effect that the motorcyclist was travelling fast and she responded to the effect that he would cause an accident. She said that, within a couple of seconds, when she had only just finished speaking, a second motorcyclist appeared and entered the intersection travelling in the same direction.
2. Mrs Boyle thought that both motorcycles were being ridden in the lane closest to the centre of the road. She said that the second motorcycle appeared to be in control as it passed through the intersection, in that it "wasn't wobbling or anything". She said that, as the second motorcycle passed through the intersection, or very soon after it passed through the intersection, the green light showed. She said that they started moving forward, following the car ahead of them, when she heard a "very loud metallic noise" coming from the roadway to her right. By that time, they were crossing over the eastbound lanes in which the motorcyclists had been travelling. She looked to her right and saw debris scattered along the roadway close to the pedestrian barrier. She could not see the motorcycle at that time, but saw that there was something on the roadway a short distance from the intersection and that people were running towards it. She said that, as they were crossing the roadway, after she heard the noise, she noticed a car that had been travelling west along Longueville Road make a U-turn into Longueville Road eastbound. Mrs Boyle also gave oral evidence, but did not add anything of relevance to her written statement.

The Police Officers

1. Constable Paul Etches and Constable Andrew Driley responded to a call received at about 12:19 am over the police radio to the effect that there had been a motorcycle accident at the intersection. In a statement made in April 2013, Constable Etches said that he inspected the area to establish the cause of the accident. He said that he looked at the nose of the median strip at the eastern side of the intersection and could see no damage to the nose and no debris in that area. He said that some 29 metres from the nose, he saw an impact point with the pedestrian barrier and debris from that point onwards. He said in his statement that the damage and debris suggested that the first point of impact occurred when the front wheel of the motorcycle collided with the pedestrian barrier. Constable Etches confirmed in oral evidence that he inspected the nose of the median strip and did not see any marks or gouge marks or anything indicating that the motorcycle had collided with it. He also said that he saw no debris at the nose.
2. Leading Senior Constable Fraser Mackay made a statement in April 2013. Constable Mackay attended the scene of the accident and held a camera that recorded a police walk-through of the scene. He said that he inspected the area before making the DVD and observed that there was no damage to the nose or debris near it. However, he observed damage to the pedestrian barrier approximately 29 metres from the nose and that debris commenced around that point. He measured the distance by pacing with his feet.
3. In cross-examination, Constable Mackay confirmed that he did not take any video footage of the nose of the median strip. He said that he inspected along the roadway and along the pedestrian barrier and did not see anything that would have been worth putting on the video. When asked why he looked at the nose of the median strip, he replied that he "looked at all the fence". He said that he did not pay any particular attention to the nose; instead, his attention to the nose was "just the same as the rest of the fence". He said that, when he was making his statement, he was asked whether he looked at the median strip and the nose. He maintained that he had looked at the median strip from the intersection through to where the motorcycle rested. He said that he would have paid as much attention to the nose as to the rest of the barrier, although he agreed that, at the time, the barrier did not go right down to the nose. He said that he looked at it because it formed part of the median strip "from the intersection through". He did not agree that he thought it might have played a part in the accident and mentioned it in his statement only because he was asked whether he had looked at the median strip. He said that he observed nothing to indicate that a vehicle had collided with the median strip.
4. Constable Mackay was then shown a photo of the nose of the median strip on the northern side of which there appeared to be tyre marks, as well as, on one view, damage to the concrete. Constable Mackay said that he did not recall having seen the scuff marks on the night of the accident, but said that, even if he had seen them, he would not necessarily have recorded their presence because they are a common occurrence. He could not be sure whether the photo showed damage to the concrete, but repeated his statement that there was no damaged concrete on the night of the accident. That statement, however, appears to be based on the assumption that he would have recorded the presence of such damage if there had been any (and he made no such recording), as opposed to reflecting a specific memory one way or the other.

The Opinion Evidence

1. As I have indicated, the opinion evidence consisted of written reports, a joint report and then cross-examination. The opinion evidence is relevant both to the mechanism of the accident and to the absence of a "Keep Left" sign. I shall deal with each of those topics separately.

The Mechanism of the Accident

1. Both Mr Schnerring and Mr McDonald inspected the intersection before providing their reports, and both examined photographs of Mr Grant's damaged motorcycle, but neither examined the motorcycle themselves. They made similar observations about the damage incurred by the motorcycle, including:

• damage to the front wheel: a large portion of the rim had been bent to the offside (or right side) of the motorcycle, and there were gouges in the rim flange and similarly oriented striations, with apparent concrete transfer on the tyre and a fracture on the tyre's side wall;
• horizontal contact marks on the right side fairing (which was detached from the motorcycle);
• twisting and other damage to the front forks (in particular to the right fork and to the right side of the motorcycle generally), but although the forks were twisted out of alignment, they appeared near to straight and there was no evidence that they had been forced and bent rearwards during an impact;
• damage to the front of the motorcycle's fairing; and
• a small extent of cleansing at the top of the front fork slider, caused by compression of the fork into the slider (which contains fork oil). They also both observed rubber marks on the median nose on the eastern side of the intersection.

1. The experts agreed about some general causes of the damage identified above. They agreed that:

• the gouges and abrasions on the front tyre suggested that it had struck a hard, solid object;
• the damage to the front tyre and rim and steering was consistent with the front tyre catching and being forced to the right, and any of the individual fractures to the rim would be sufficient to have deflated the tyre rapidly (indeed, almost instantaneously);
• further, the damage to the front wheel indicated two different strikes to the wheel: one was a radial force towards the axle, and the other was a lateral force across the tyre;
• the front forks of the motorcycle were twisted due to a laterally applied force; and
• the damage to the right fork and the damage along the right side of the motorcycle (including the horizontal grey transfers on the motorcycle's fairings) indicated a side-swipe type of impact, specifically with an upright grey-coloured object such as the pedestrian barrier.

1. Further, Messrs Schnerring and McDonald agreed about some aspects of the mechanism of the accident, in that:

• the first contact between Mr Grant's motorcycle and any object was most likely between the motorcycle and the median strip or the pedestrian barrier;
• the sudden deflation of the front tyre of the motorcycle (wherever that occurred) would have made the bike almost impossible to control and it would have travelled erratically until it came to a stop;
• at least on initial contact with the roadway, Mr Grant had not separated from his motorcycle;
• the motorcycle struck the pedestrian barrier around 29 metres east of the median nose; and
• after striking the pedestrian barrier at the 29 metre mark, the motorcycle fell to the roadway and slid to rest.

1. The engineers disagreed about several aspects of the mechanism of the accident. It is convenient to deal with those aspects separately, before considering the engineers' ultimate (and differing) hypotheses about how the accident occurred.

(a) Cause of Damage to the Front Wheel

1. Mr Schnerring said that the damage to the wheel (being gouges to the rim flange and bending of the rim) indicated that two separate forces had been applied to the rim, one applied end-on or vertically, and the other applied laterally. In his opinion, the application of two forces at right angles to each other indicated two separate impacts to the wheel.
2. The end-on impact could be consistent with an impact with the base of the stanchion supporting the pedestrian barrier. However, since the front wheel of the motorcycle is positioned on the centre line of the motorcycle and inside the front forks and brake disc rotors, if the rim of the front wheel had impacted the base of the barrier stanchion, then the right front fork and right front disc rotor would have engaged with the stanchion, causing substantial bending or fracturing of the right front fork and disc rotor and the right side of the motorcycle would have been effectively buried in the barrier. Since that course of events is not reflected in the damage actually caused to the motorcycle, the front wheel must have impacted an object that damaged and removed the section of the wheel rim flange without bending or fracturing the front fork and brake disc rotor. Therefore, the vertical impact upwards into the rim that caused a small section to be punched out of it must have occurred clear of other objects (thereby avoiding damage to the fork and disc rotor, which would almost inevitably have resulted from contact with the pedestrian barrier). Since the median nose would be clear of other objects, it was the most likely location of the initial impact.
3. Mr Schnerring considered that impacting or clipping the nose of the median would be sufficient to damage the wheel rim and would also be sufficient to fracture the side wall of the tyre. His opinion was that, although the nose is somewhat rounded in shape, the vertical rise of 150 millimetres occurs over a longitudinal distance of about 150 millimetres and, accordingly, the nose would not appear rounded but would appear more as a square-shaped solid object from the point of view of a motorcycle travelling at 60 km/hr (being the speed limit at the intersection). However, if the first collision with the median strip was "downstream" from the nose, then the wheel would ride up what is a semi-mountable kerbing and, while the tyre may be fractured, a chunk would not be taken out of the rim. Because the nose is, in his description, like an inverted pot-hole, the impact of hitting the edge of it would be more likely to take a chunk out of the rim.
4. Mr McDonald, on the other hand, expressed the opinion that substantial force would be required for the rim to fracture as it passed over the median nose. However, the dynamic effects of such a force were not evident. Mr McDonald also said that he would expect fractures to the rim to be accompanied with sudden deflation of the front tyre, possibly with a reduced capability to rotate, which would be expected to produce marks from the tyre running flat and debris from a broken rim in the vicinity of the median nose. He noted that there was apparently no such evidence.
5. Further, Mr McDonald said that, because the markings are on the vertical face of the rim, the motorcycle would need to be leaning greatly to the right in order for such contact with the nose to occur. The rubber of the side wall of the tyre showed a distinct outwards bowing in the vicinity of the tear in the side wall, which was consistent with the tyre's being impacted or pinched by a narrow object in a very localised area (such as the pedestrian barrier). That would not be consistent with striking the median nose.
6. In addition, the side wall of the tyre showed no evidence of run flat damage. Once the tyre became deflated, the rim would be pushing down onto it, and it would rotate about fifteen times over a distance of 29 metres so, which would lead to the side wall of the tyre showing quite significant run flat damage. This also suggests that the motorcycle did not hit the median nose before hitting the pedestrian barrier 29 metres further down the road.
7. Mr McDonald accepted that the theory that the front wheel struck an object while the wheel was more or less vertical (with a radial force being thereby exerted) was a plausible explanation, but was not sure that it was the most likely. He did not agree that the initial damage to the front wheel occurred when an upwards force was exerted on the rim. All that he could say was that the rim was forced in towards the axle at the time of the initial damage.
8. Mr McDonald also referred to the likely angle at which the motorcycle wheel hit the horizontal rail at the bottom of the pedestrian barrier. If the wheel hit the rail at an acute angle, then one side of the tyre, and more likely one side of the rim, would bear the initial contact and load, and only one side would be pinched. He said that the side wall of the tyre showed pinching on one side only and not across the tyre. On the other hand, if the wheel had come in at an obtuse angle, then the force would be spread across the face of the tyre and would not be loaded up mainly towards one side wall and one side of the rim. In the case of Mr Grant's motorcycle, the damage that had been punched out was damage on one side of the rim and was a pinch on one side wall only, so the impact most likely occurred at an acute angle. In Mr McDonald's opinion, it was most likely caused by a horizontal object, such as the base rail of the barrier.
9. Further, Mr McDonald said, the damage (being contact gouging and scratches) to the face of the tyre rim was inconsistent with impact with the median nose, because of the height of the vertical face of the nose as compared with the height of the tyre rim. If Mr Grant's motorcycle (and thus the tyre) were upright, then the face of the rim (which would be facing the median strip) would be vertical. At that point, part of the rim would be in line with the vertical face of the median strip. If, on the other hand, the motorcycle (and tyre) were in any lean to the left, then the angle of the tyre would be such that the rim would be lifted up, above the height of the vertical face of the median. Because of the northerly curvature of the road past the intersection, the motorcycle must have been leaning to the left in order to change path and continue on towards the impact side 29 metres further on. Given that fact, and given that the rim of the tyre was in fact damaged, the motorcycle could therefore not have hit the nose of the median strip.
10. Mr McDonald also replied to Mr Schnerring's view that the absence of damage to the motorcycle's disc rotor was close to fatal to Mr McDonald's theory about the mechanism of the accident. (Mr Schnerring had said that, since the wheel rim was damaged but the disc rotor was not, the motorcycle must have impacted an object, such as the median nose, that was not tall enough to come into contact with the disc rotor.) Mr McDonald said, with reference to a diagram, that, if one drew a projection from the rim of the motorcycle tyre to the right side of the motorcycle, it would contact the base of the right front fork and various points on the right side of the motorcycle, but it would not contact the actual disc rotor. Thus, if the motorcycle were pressed up against a vertical object, such as the pedestrian barrier, then the disk rotor would remain clear of the area of contact, but there would be evidence of contact on the base of the right front fork. Since Mr Grant's motorcycle showed evidence of damage to the front fork but not to the disc rotor, Mr McDonald's hypothesis of initial contact with the barrier remained consistent with the evidence. Mr Schnerring said that he did not accept Mr McDonald's explanation and accompanying diagram on the basis that it was not consistent with the damage to the wheel rim.

(b) Marks or Damage on the Median Nose

1. Mr Schnerring considered that the absence of physical damage to the nose (such as gouges, scrapes or missing sections of concrete) would provide no indication one way or the other as to whether Mr Grant's motorcycle hit the nose prior to colliding with the pedestrian barrier. He said further that the tyre would act as a buffer, protecting the nose from physical damage. He referred to a 30 millimetre long scrape on the rim of the motorcycle's front wheel, adjacent to the missing section of the rim, and said that any corresponding scrape on the nose would have been similarly small and thus easily overlooked (by the police officers inspecting the scene immediately after the accident).
2. Mr McDonald considered that, if contact with the nose had occurred, he would have expected there to have been physical damage to the concrete (such as that referred to by Mr Schnerring), but none was apparent in the material available to him. He observed that the square section of missing rim on the front wheel included an area of heavy abrasion and gouging from contact with a hard surface, and he said that he would expect a similar gouging and scratches on the nose. He considered that it was unlikely that the small square section of damage was produced by a glancing blow on the nose, given the height of the rim relative to the vertical face of the median and given the abrasions on the vertical face of the rim. He considered that those abrasions would be unlikely if the motorcycle was in even a slight lean to the left when the tyre contacted such a vertical object, unless the motorcycle was upright and travelling straight on impact, in which case, it would likely mount the curved median and follow a path onto the southern side of the median and pedestrian barrier.
3. As for the scuff marks, Mr McDonald said that they appeared to be caused by the tyres of larger vehicles turning right out of Longueville Road, rather than by a motorcycle. (Even Mr Schnerring agreed that it could not be concluded with certainty that the marks were caused by Mr Grant's motorcycle.)

(c) Marks on the Roadway

1. Mr McDonald said that, in most instances where he has dealt with a flat tyre, there have been tyre marks on the pavement, because the rims pressing down on the tyre leave uneven marks. However, there were none in the present case. If the tyre did strike the median nose and deflate at that point, Mr McDonald would have expected irregular run flat tyre marks at the point where the motorcycle finally struck the median strip and barrier 29 metres beyond the nose. However, there was apparently no evidence of such marks.
2. Mr Schnerring said that, over a longer distance and with a heavier vehicle, he would expect to see marks, but because this was a motorcycle, run flat damage over a distance of 29 metres would not be evident. A motor car will do far more run flat damage than a motorcycle.

(d) Other Indications of Contact, or Non-Contact, with the Median Nose

1. Mr Schnerring said that the photographs indicated an exposed tyre bead on the front wheel of the motorcycle that, he said, would have resulted in almost instantaneous air loss, causing the motorcycle to wobble. He expressed the opinion that impact with the nose was consistent with the damage to the front wheel's right side rim flange and that such an impact would cause the motorcycle to wobble. Almost instantaneous air loss would also cause the motorcycle to wobble and make it very difficult to retain control. He expressed the opinion that it was therefore very likely that the motorcycle collided with the nose of the median, causing Mr Grant to lose control and then collide with the pedestrian barrier further east.
2. Mr McDonald pointed to the small extent of cleansing at the top of the front fork slider, indicating that the front suspension had not been compressed substantially in recent operation. On the lower portion of the slider, there were a number of scratches in the dirty surface that appeared to be contact marks from the collision, consistent with the slider not being cleansed by compression shortly before impact. If the motorcycle had struck the median nose at speed, then Mr McDonald would have expected to see physical evidence on the motorcycle. Such evidence would include substantial compression of the front suspension, as the front tyre attempted to ride over the nose, being an object with a height of 200 millimetres (noting that the front suspension was a maximum of 119 millimetres). He would also have expected to see evidence of the front forks being thrust rearwards, such as a bend in the forks or contact marks on the motorcycle radiator, but no such evidence was observable.
3. Mr McDonald also said that, if the motorcycle had struck the nose, then the sudden force of doing so would be likely to destabilise the motorcycle sufficiently for it to follow a path of inertia from the point of impact, rather than continuing to negotiate the turn, and would most likely result in the motorcycle falling to the roadway, possibly by a vault over the front tyre, since the median is nearly as high as the axle. He said that a motorcycle experiencing sudden deceleration, such as braking whilst leaning in a turn, tends to right itself and follow a straight path on a tangent to its original turn. In the case of striking the nose, the deceleration would be more extreme than braking. He said that, if striking the median strip were not sufficient to cause the motorcycle to collapse to the roadway, its ability to maintain a curved travel path would be greatly reduced. Those scenarios, Mr McDonald said, would have placed the path of the motorcycle to the south of the median strip, so that the motorcycle would either have struck the end of the barrier or, more likely, would have passed to the southern side of the barrier, on the wrong side of Longueville Road. However, that did not happen.
4. Mr Schnerring's response to the above contention was that the damage to the motorcycle's front rim indicates that it only clipped the edge of the median nose, with the result that the degree of deceleration would be minor (and not "extreme"). Instead, the main consequence of such impact with the nose would be to induce wobble in the motorcycle's path.
5. In further reference to the motorcycle's direction of travel, Mr McDonald said that, if the motorcycle followed a straight path from the nose to the point of impact with the barrier some 29 metres to the east, its trajectory would appear to be from the southern side of Epping Road. If the motorcycle were redirected from the path approaching the eastbound lanes of Epping Road in such a short duration impacting with the nose, then the forces would be very large and Mr McDonald would have expected both physical evidence on the roadway from such a large force and a catastrophic effect on the stability of the motorcycle, such that it no longer remained upright. Mr Schnerring, however, countered that Mr McDonald's thesis assumed no rider input in negotiating the curve at the intersection and then no rider input to correct the motorcycle's wobble after clipping the median nose.
6. Mr McDonald also said that, if the front wheel impacted the median nose, then the rear wheel would also likely have traversed the median - yet no similar damage was evident on the rear wheel. Further, a motorcycle would not traverse an object almost as high as its axle with both wheels and not result in a catastrophic impact at that point, as opposed to merely losing stability and continuing along the roadway. If the motorcycle was in a wobble before striking the barrier, he did not consider that that could be the result of having struck the nose. He considered that, if the motorcycle was in a wobble, it is likely that it was following a straight, or near straight, path, as it was oscillating to reach its tendency to right itself. He said that, if the motorcycle was wobbling or weaving whilst cornering, then the instability would produce a fall to the roadway because of the lack of cornering equilibrium.
7. Finally, Mr McDonald said that, if the front tyre became locked by impact with the pedestrian barrier, then the motorcycle would not be able to remain upright and would fall rapidly to the roadway. He would have expected a similar result if the front tyre had been heavily damaged by striking the nose, rather than the motorcycle continuing to negotiate the turn and then striking the fence further to the east while still upright. Although Mr Schnerring agreed that the motorcycle would quickly fall over if the front tyre became locked, he considered that the damage to the rim from clipping the median nose would not lock the front wheel.
8. Overall, Mr Schnerring's hypothesis was that the point of first impact of Mr Grant's motorcycle was at or close to the median nose. Mr McDonald's overall hypothesis was that the point of first impact was 29 metres east of the intersection and that it did not impact the median nose. Subsequent or continuing impacts occurred close to that point. One of the fundamental points of difference between the two experts was the explanation for the lack of damage to the motorcycle's disc rotor. As explained above, Mr Schnerring's opinion was that that fact pointed to an initial impact with the median nose; on the other hand, Mr McDonald said that that fact was consistent with an initial impact 29 metres further east.

Absence of a "Keep Left" Sign

1. Mr Schnerring said in his report of 18 December 2009 that the location of the crest ahead of the intersection meant that eastbound motorists would have a delayed view of the pavement through the intersection and of the nose of the median on the eastern side of the intersection. He said that no longitudinal delineation was provided to guide and control eastbound traffic passing through the intersection, and road users would need to direct their vehicles to the left of the structures located in the centre of the road on the eastern side of the intersection. He expressed the opinion that, since the nose and pedestrian barrier lacked conspicuity, and since the intersection was located on a left curve with a crest ahead of the intersection, a road user could be unsure of precisely where the road went, and could drift wide, clipping the nose on the median. He said that, when he visited the intersection, he observed that eastbound traffic in the right-hand through lane tended to run wide and then quickly veer slightly left, passing close to the nose of the median.
2. Attached to Mr Schnerring's report was an extract from the Traffic Standard. The Traffic Standard is described as a "manual of uniform traffic control devices". Part 2 deals with traffic control devices for general use. Paragraph 2.8.7, which is in Pt 2, deals with "Keep Left" and "Keep Right" signs, and provides as follows: The KEEP LEFT and KEEP RIGHT signs should be used where a physical obstruction exists and it is necessary for all vehicles approaching such an obstruction to pass it on one side only. Most common applications are where traffic islands are constructed at intersections or where a median is introduced at the start of a divided road. These signs may not be required if it is readily apparent under all normally encountered conditions that drivers should keep to the left of the obstruction. The signs should be located no closer than 600 millimetres to the approach end of the obstruction but in certain circumstances it may be necessary to place them 8 m or more from the approach end.
3. Mr Schnerring expressed the following opinion: Put simply, precisely where the road or right through lane went as it passed through the intersection was uncertain. Combined with the poor conspicuity of the median nose (an obstruction to be avoided and keep to the left of) the median nose was hard to see on the approach to the intersection. Under the circumstances of the site, the [Traffic Standard] required a Keep Left sign on the median nose. The site inspection showed that no Keep Left sign had been provided. Based on my specialised knowledge and experience in road safety engineering and traffic engineering, I consider that a Keep Left sign was required. Mr Schnerring repeated his opinion in the following terms: Had a Keep Left sign been provided on the median nose, as required by the [Traffic Standard], then based on my specialised knowledge and experience in accident investigation and reconstruction, traffic engineering and road safety engineering, […] the accident very likely would not have occurred.
4. It is difficult to see how such an opinion was admissible. However, the only objection taken to the above opinion was to the third paragraph quoted above, on the basis that it speculated on what Mr Grant would have observed had a sign been provided. The primary judge consequently did not admit the words represented by the ellipsis. Mr Schnerring's opinion appears to be an opinion as to the effect or meaning of the Traffic Standard and whether there was a legal requirement for the erection of a sign. That is a matter for a court and not a matter about which a consulting engineer may give evidence. Even if the statement were treated as evidence of an opinion about the existence of a fact, s 76 of the Evidence Act 1995 (NSW) would render it inadmissible unless s 79 applied. Section 79 requires that an opinion be based wholly or substantially on specialised knowledge of the witness and that that specialised knowledge be based on the person's training, study or experience.
5. Before a report containing an opinion can be given any weight, it must demonstrate particular specialised knowledge of its author, it must demonstrate how the knowledge is based on the training, study or experience of the author, and, finally, it must demonstrate the way in which the opinion is based on that knowledge. In other words, the witness's evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", and on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded. [34] Although the requirements of s 79 may in many cases be met very quickly and easily, [35] the Court must be satisfied that they have been met. The final requirement, that an opinion be based on specialised knowledge, would normally be satisfied by the person who expresses the opinion demonstrating the reasoning process by which the opinion was reached. [36]
6. Mr Schnerring's opinions, that a "Keep Left" sign "was required" and that, if one had been provided, Mr Grant would have been warned and the accident would not have occurred, did not meet the requirements outlined above and no weight should have been given to them. That is so for at least two reasons.
7. First, Mr Schnerring did not demonstrate how the opinions he expressed were based on his specialised knowledge. His curriculum vitae lists extensive experience in road safety auditing, accident investigation and prevention, and risk engineering modelling, and his bibliography lists authorship of, inter alia, road safety handbooks and various editions of the Traffic Standard. However, notwithstanding his boilerplate comment ("based on my specialised knowledge and experience in road safety engineering and traffic engineering"), he did not explain how that knowledge qualified him to opine that a "Keep Left" sign was "required" and that the absence of such a sign was a cause of Mr Grant's accident.
8. Second, and in any event, the two opinions of Mr Schnerring just referred to both amount to legal conclusions - the former as to standard of care, and the latter as to causation. Such conclusions are, of course, a matter for the Court to draw, or not draw. Mr Schnerring could (and did) give admissible evidence about how commonly "Keep Left" signs are used in similar road conditions. His evidence about the conspicuity of the median nose may also have been admissible, although it is more likely that that is a matter about which a person without instruction in the relevant area would be able to form a sound judgment without expert assistance. [37] What Mr Schnerring could not do, however, was to provide an (admissible) opinion about a matter in respect of which, by the very nature of that matter, he could not have had specialised knowledge.
9. In his report, Mr McDonald agreed with Mr Schnerring that, while there is a slight move right before reaching the left curve at the intersection, the transition is negligible and the two are linked by a straight section of roadway. He characterised the crest within the left curve as being "only slight" and considered that motorists were guided left prior to the relative position of the crest. Mr McDonald found the sight distance through the intersection adequate and said that he had no difficulty negotiating the road alignment at the speed limit in darkness. He said that, from the western side of the intersection, he was able to see line markings delineating the travel paths on the eastern leg of the intersection, including a continuous edge line, with raised pavement markers along the edge of the median.
10. Mr McDonald disagreed with Mr Schnerring's opinion that there was a tendency for eastbound vehicles to veer towards the nose before correcting suddenly to the left. He said that the observation of wheel paths in aerial imagery showed vehicles following the radius of the eastbound lanes across the intersection. Further, the median nose and northern edge was clear of scuff marks from eastbound vehicles. (As Mr McDonald said elsewhere, his opinion was that the scuff marks that appeared on the median nose had been caused by vehicles turning right out of Longueville Road.)
11. Mr McDonald said that, while he considered that a "Keep Left" sign could have benefits, the use of such a sign was not common along most roads with a central median. He pointed out that all approaches to the intersection in question have medians, such that a central island would not be unexpected by a motorist. He disagreed with Mr Schnerring's opinion that such a sign was "required".
12. In Mr Schnerring's supplementary report in response to Mr McDonald's report, he agreed, significantly, that "the application of Keep Left signs is inconsistent on medians". He said, however, that a common practice of omitting "Keep Left" signs on medians did not mean that it was appropriate or correct, and it could simply indicate a widespread lack of appreciation of the Traffic Standard. He thereby again expressed an opinion as to the meaning of the Traffic Standard. Indeed, there was no evidence at all before the primary judge as to the extent to which "Keep Left" signs are used on medians.
13. In the joint report, Messrs Schnerring and McDonald observed that the use of "should" in para 2.8.7 of the Traffic Standard indicated a recommendation, that the use of "may" indicated an available option and that "shall" was used to indicate a mandatory circumstance. The engineers agreed that the median nose "should have been signed with a 'Keep Left' sign". Mr Schnerring considered that "it would be good traffic and road safety engineering practice" to provide a "Keep Left" sign, given that the median on the approach side was offset one lane to the right of the median on the opposite side of the intersection. He considered that, combined with the horizontal and vertical curvature through the intersection, the position of the start of the median on the far side of the intersection would be difficult for a driver to determine.
14. While both Mr Schnerring and Mr McDonald (contrary to the latter's opinion in his individual expert report) thus apparently agreed that the nose "should have been signed", that appears to be an opinion as to the meaning and effect of the Traffic Standard. If so, it should have been given no weight, for the reasons indicated above at [131]-[134]. If the opinion was not as to the meaning of the Traffic Standard, then it was an opinion as to the ultimate issue of negligence and, therefore, it similarly has no weight.
15. Mr Schnerring and Mr McDonald agreed in the joint report that there were features of the intersection and associated lighting that created a reasonably foreseeable risk. However, they disagreed on the level and significance of that risk. They agreed that there was a foreseeable risk because the median barrier east of the intersection was not delineated with reflectors, high intensity lighting, high contrast markings or signposting and that there was a combination of horizontal and vertical curvature in the roadway that was not desirable. They agreed that the median barrier east of the intersection "could have been" delineated with reflectors, high intensity lighting, high contrast markings or signposting.
16. Mr Schnerring said in the joint report that high intensity lighting and signposting of the barrier were not necessary, but that the median "could be" delineated with a "Keep Left" sign, painted with reflective paint and/or marked with reflectors. Mr McDonald, however, did not consider that the absence of reflectors, high intensity lighting, high contrast markings or signposting was in contravention of any applicable standards or guidelines. He pointed out that a solid continuous line was provided along the edge of the median and was supplemented by raised yellow reflective markers, which provided delineation and guidance to road users, and therefore would be likely to achieve the same result as providing a "Keep Left" sign. Mr Schnerring, on the other hand, considered that the reflective raised pavement markers and painted edge were ineffective on approach, given that the median nose commenced after the slight crest in the intersection. He said that, on approach, vehicle headlights would not be aimed at the pavement markers and the light reflected from them would be weak.
17. Mr Schnerring said in the joint report that the fact that the nose east of the intersection was not marked or signed to indicate its presence and precise position on the roadway, combined with the horizontal and vertical curve of the intersection, posed a level of foreseeable risk. He referred to a road design guide of the Authority dated March 1988 (the Design Guide). The Design Guide was not in evidence, but Mr Schnerring said that it contained the following: Pavement narrowing, transitions between divided and undivided roads, traffic islands or median noses should not be combined with horizontal or vertical curves unless adequate visibility is available to ensure driver awareness. Mr Schnerring appears to have been making a complaint about the design of the intersection. However, it is clear that the case was conducted on the basis that the negligence alleged against the Authority was not concerned with the design of the intersection, but was limited to the construction of the intersection to that design, without having a "Keep Left" sign affixed to the nose of the median.
18. Mr Schnerring said that evidence of previous impacts with the median barrier indicated a problem with visibility. Mr McDonald, on the other hand, pointed out that there was no evidence of more than one previous impact with the median barrier, and no indication of the causal factors leading to any such collision.
19. Both Mr Schnerring and Mr McDonald agreed, in their oral evidence, that they had not seen any guidelines of the Authority dealing with the circumstances in question, being the absence of a "Keep Left" sign. In response to questions about the Traffic Standard, Mr Schnerring and Mr McDonald agreed that there was nothing mandatory in the Traffic Standard and that compliance with it depended upon whether or not, "under all normally encountered conditions", it was "readily apparent" that drivers should keep to the left of an obstruction. Mr Schnerring expressed the opinion, however, that he understood that the way the Traffic Standard reads was that "Keep Left" signs should be installed unless there is "damn good reason for not putting it in". He said that that was consistent with good road safety engineering practice. In any event, each of them said that he took the view that a "Keep Left" sign "should have been installed", although Mr McDonald said that one must bear in mind that one needed to consider whether the obstruction (in this case, the median strip) "is adequately delineated". Both agreed that the Traffic Standard required some sort of evaluative judgment.
20. Mr Schnerring agreed that there was a common practice of omitting "Keep Left" signs on median strips. He also agreed that the point of the Traffic Standard is to suggest that a "Keep Left" sign should be put in the place where a motorist might be confused as to the side of an obstruction on which a driver should travel. He said that there are many circumstances where it would be quite obvious on which side of the median one should be, but that, even in such cases, a "Keep Left" sign could still be beneficial in indicating to drivers where the obstruction is. Although he agreed that he would not expect there to be any confusion about keeping to the left of the median at the intersection in question, he would not agree that the Traffic Standard was inapplicable to the situation under consideration. He said that a "Keep Left" sign would provide "conspicuity" for the nose, which would then let a motorcycle rider know the actual location of an object that he needs to keep to the left of.

Findings of the Primary Judge

1. The primary judge found that neither Mr Boyle nor Mrs Boyle could have seen the northern edge of the nose of the median strip. Further, neither of them saw the motorcycle hit the pedestrian barrier. His Honour found that it was significant that Mr Boyle knew of the accident only because he heard the impact of the motorcycle with the barrier and that neither he, nor Mrs Boyle, heard the motorcycles before they entered the intersection (notwithstanding that both motorcycles were of a type and modification such as to render them particularly noisy), since the windows of their car were closed. The impact with the barrier would have been extremely noisy, whereas an impact with the nose of the median strip would have been, by way of contrast, relatively quiet.
2. His Honour accepted that the intersection, and the thoroughfare along Epping Road and continuing through Longueville Road, is a busy road where, usually, there will be significant traffic. The driver of a vehicle stopped at the traffic lights west of the intersection would see the median strip. Further, during normal hours, vehicles, if not stopping at the traffic lights, would follow other vehicles through the intersection. Such circumstances would ameliorate the probability of the harm occurring by reason of the risk that a motorist would not see the nose of the median strip. Nevertheless, his Honour said, during the night and early hours of the morning, the thoroughfare must be expected to experience periods of very light or no traffic. His Honour considered that, in such circumstances, there was a significant probability that some harm would occur if that risk were realised. While such harm, if such risk were realised, would not always be as serious as the circumstances of Mr Grant's accident, his Honour concluded that there was a likelihood of serious harm resulting from a motorist failing to observe the nose of the median.
3. The primary judge was faced with the competing opinions of Mr McDonald and Mr Schnerring. His Honour considered that Mr McDonald was "less independent" than Mr Schnerring and "more obviously an advocate for a particular position". His Honour also took into account the fact that Mr Schnerring was "an extremely experienced motorcycle rider" of motorcycles the same as, or similar to, the motorcycle being ridden by Mr Grant. His Honour therefore preferred the opinions of Mr Schnerring to those of Mr McDonald.
4. The primary judge found that there was a mark or gouge in the pedestrian barrier, which Mr McDonald described as leading away from where the motorcycle struck the barrier. Mr Schnerring described the gouge as having been made after impact. His Honour considered that their comments were consistent. Both agreed that the front wheel of Mr Grant's motorcycle wedged in the barrier, forcing the rear of the motorcycle to rotate clockwise. Both agreed that the damage to the motorcycle evidenced two distinct forces operating on it, one vertical and one lateral, each at 90 degrees to the other. However, they disagreed as to the circumstances in which those two forces came to be applied.
5. The primary judge accepted the opinion of Mr Schnerring that the fact that there were two forces in that angular relationship indicated two separate impacts to the front wheel of the motorcycle, one at the nose of the median strip, and the other at the barrier. His Honour found that the damage, other than the damage caused by the barrier, was caused by an impact upwards on the front tyre of the motorcycle. His Honour considered that Mr McDonald gave "no adequate or acceptable answer" to Mr Schnerring's opinion based on the two forces to the front wheel, and that Mr McDonald's theory, that the motorcycle hit the median strip almost at a right angle, thereby punching out a section of the rim and simultaneously wedging in the barrier, was highly improbable. His Honour considered that, for that to have occurred, the motorcycle would have to have been almost at right angles to the barrier, travelling towards the barrier at speed. His Honour found that the evidence of the movement of the motorcycle was not consistent with such a theory. On the other hand, his Honour considered that the theory advanced by Mr Schnerring was consistent with the observations of the witnesses of the motorcycle in motion and explained the two distinct kinds of damage in a rational and logical way.
6. The primary judge found that the placement of the median strip, commencing on the eastern side of the intersection, without a sign indicating its non-alignment with the lanes on the western side, posed a not insignificant risk to road users exercising reasonable care for their own safety. His Honour considered further that, given the insignificant cost of a "Keep Left" sign, the terms of the Design Guide, the risk created by each of the vertical and horizontal curves, and the likely consequences of the realisation of the risk, a reasonable person in the position of the Authority would have installed such a sign. His Honour concluded that, given the location of the median strip and pedestrian barrier, it was negligent not to have placed, on or at the nose of the median strip, a sign warning of its location that could be seen by road users travelling on Epping Road up the hill towards the intersection.
7. The primary judge found that, with sufficient notice of the location of the median strip or the altered curvature of the road, Mr Grant would not have clipped the nose of the median strip and would not have hit the pedestrian barrier. Therefore, his Honour concluded, the negligence of the Authority caused Mr Grant's injury.
8. While the primary judge considered that the speed at which Mr Grant was travelling was negligent, it was not so negligent as to absolve the Authority from its duty towards him. In his Honour's view, the negligence of each of the Authority and Mr Grant was a necessary condition for the occurrence of the harm suffered by Mr Grant. His Honour found that, even if Mr Grant had been travelling at the speed limit of 60 km/h, he may still have had the accident, in that there was "certainly still a significant risk" of the accident. His Honour concluded that, were it not for the negligence of the Authority, the accident would not have occurred.
9. The primary judge held that the Authority must have anticipated that some people would travel in excess of the speed limit, since it conceded that, up to a certain speed, such conduct would be safe. At the same time, his Honour held, Mr Grant could have expected that the Authority would not place an obstacle in his path. In all of the circumstances, his Honour assessed that it was just and equitable to reduce Mr Grant's damages having regard to his share in the responsibility for the accident. Having concluded that Mr Grant was clearly not responsible for 100 per cent of the damage, and that he was not equally responsible with the Authority, but was more than 25 per cent responsible, his Honour reduced the award by 30 per cent.

The Issues on the Appeal

1. The Authority's notice of appeal contains some 13 grounds of appeal. In essence, five matters are raised by the grounds of appeal as follows: 1. the mechanism of the accident; 2. breach of duty by the Authority; 3. the causal connection between the breach and the accident; 4. the application of s 43A of the Civil Liability Act; and 5. assessment of non-economic loss and economic loss.
2. The Authority makes the following complaints about the conclusions of the primary judge on the question of liability:

• His Honour erred in finding that Mr Grant's motorcycle came into contact with the nose of the median strip before colliding with the pedestrian barrier 29 metres from the nose.
• Even if Mr Grant's motorcycle did come into contact with the nose of the median strip before colliding with the pedestrian barrier 29 metres along the median strip, there was no breach of duty on the part of the Authority in failing to provide a "Keep Left" sign at the nose of the median strip.
• There is no basis for concluding that, but for the absence of a "Keep Left" sign, the accident would not have happened.
• The Authority was exercising a special power within the meaning of s 43A of the Civil Liability Act and a reasonable authority may well not place a "Keep Left" sign in a situation such as encountered at the intersection.

Mechanism of the Accident

1. The only evidence to support the finding made by the primary judge that Mr Grant's motorcycle struck the nose of the median strip before colliding with the pedestrian barrier is the opinion evidence of Mr Schnerring. Mr Schnerring's hypothesis, that the motorcycle struck the nose before colliding with the barrier, was first advanced more than eleven months after the accident. While the primary judge considered that there were other possibilities, his Honour considered that Mr Schnerring's hypothesis was most probably what occurred and best fitted, without being inconsistent with, all of the evidence that his Honour accepted. His Honour did not deal more specifically with the evidence to which he was then referring. Further, while his Honour considered that Mr McDonald was less independent than Mr Schnerring, in that Mr McDonald was more obviously an advocate for a particular position, his Honour did not indicate the aspects of Mr McDonald's evidence that would support such an assessment.
2. Significantly, the primary judge said that Mr McDonald gave "no adequate or acceptable answer" to Mr Schnerring's theory, other than "the highly improbable proposition that the motorbike hit the median strip almost at a right angle, thereby punching out a section of the rim and simultaneously (or so quickly thereafter as to be imperceptible) wedging in the fence while the motorcycle was leaning sufficiently to avoid damage" to its right side.
3. In making those observations, his Honour made no mention of the extensive evidence given by Mr McDonald by way of refutation of the hypothesis advanced by Mr Schnerring, indicating that his Honour failed to have regard to that evidence. As recounted above (at [105]), Mr Schnerring had said that, since the motorcycle's wheel rim was damaged but the disc rotor was not, the motorcycle must have impacted an object, such as the median nose, that was not tall enough to come into contact with the disc rotor. The absence of damage to the disc rotor was therefore, in Mr Schnerring's view, "close to fatal" to Mr McDonald's theory about the mechanism of the accident.
4. In response, Mr McDonald had provided diagrams to explain why it was not necessary that the motorcycle should have exhibited damage to its disc rotor in order to support the proposition that the first impact of the motorcycle was at the pedestrian barrier 29 metres east of the median nose. That diagrammatic evidence was sought to be refuted by Mr Schnerring on the basis that it was not consistent with the damaged incurred by the front wheel, but his Honour did not refer to either Mr McDonald's diagrams or Mr Schnerring's response to them.
5. One reason given by the primary judge for preferring Mr Schnerring's hypothesis was his Honour's view that Mr McDonald's hypothesis was dependent on whether the motorcycle hit the barrier almost at a right angle. However, Mr McDonald's evidence was not to that effect. Rather, he explicitly disagreed with a question asked by Mr Grant's counsel that the initial damage to the front wheel was far more likely (given the lack of damage to the disc rotor) to have occurred when the wheel struck an object at right angles. Further, he said that the motorcycle could have hit the barrier at a "slight angle", so that the tyre struck the bottom rail of the barrier. He concluded that the damage to the tyre was more likely caused by impact at an acute angle. Indeed, when Mr Schnerring was asked whether Mr McDonald's hypothesis implied that the motorcycle was at right angles to the median strip when the impact occurred, he replied, "Not necessarily fully right angles", although he said that it was "a very large angle", otherwise described as "obtuse".
6. Mr Schnerring's hypothesis was based (as was Mr McDonald's) solely upon his examination of photographs of the damaged motorcycle, as well as his examination of the lay evidence and police evidence, but there was no evidence at the scene of the accident to support his hypothesis. None of the lay evidence supported Mr Schnerring's hypothesis: it was either inconsistent with the hypothesis or was equivocal with it.
7. Mr and Mrs Boyle were able to see Mr Grant's motorcycle through their windscreen and neither of them saw the motorcycle hit the nose of the median strip. Mr Boyle said positively that it did not. His Honour attached significance to the fact that there was another motor vehicle in front of Mr Boyle's vehicle and his evidence that the motorcycle did not strike the nose was based on the fact that there was a delay between seeing the motorcycle go through the intersection and hearing the noise of the crash into the pedestrian barrier.
8. Neither of the versions given by Ms Price was directly supportive of Mr Schnerring's hypothesis. Ms Price initially said that she saw the rider on his motorcycle, although it appeared to be wobbling, that the rider was losing control and that the rider then fell from the motorcycle. While Ms Price was sitting on the other side of Longueville Road, more or less directly opposite the point of collision with the barrier, she did not see or hear any collision with the pedestrian barrier. Further, notwithstanding that Mr and Mrs Boyle said that they heard the collision from inside their car more than 20 metres away, Ms Price said that she did not hear the collision. That, along with the differences in Ms Price's evidence outlined above (at [89]), casts some doubt on the reliability of all of her evidence.
9. Finally, the police officers saw no evidence of any damage to the nose of the median strip or debris on the roadway prior to the point of impact 29 metres east of the nose. Mr Schnerring expressed the opinion that the absence of such indications was not significant. Mr McDonald, on the other hand, explained why he would have expected to see evidence of contact with the nose (see above at [115]). The primary judge did not deal with the explanation.
10. The primary judge clearly had some advantage in seeing the engineers give oral evidence. However, Mr McDonald provided an alternative hypothesis for the lack damage to the motorcycle's disc rotor, which his Honour did not address. Further, his Honour did not explain, or give any reason for, his conclusion that Mr McDonald was less independent than Mr Schnerring and was more obviously an advocate. Submissions leading to that conclusion were apparently not put to the primary judge and they were not, in terms, put to Mr McDonald during cross-examination. In the absence of compelling reasons as to why the primary judge preferred the hypothesis of Mr Schnerring over that of Mr McDonald, coupled with the lay evidence, which, if anything, supports Mr McDonald's hypothesis, I am not persuaded that Mr Grant established that it is more likely than not that the accident resulted from his motorcycle colliding with the nose of the median strip before it collided with the pedestrian barrier. His Honour erred in concluding to the contrary.
11. It is common ground that, if this Court were to conclude that Mr Grant's motorcycle did not come into contact with the nose of the median prior to colliding with the pedestrian barrier, the appeal must be allowed. However, since the other matters raised in the appeal were argued at length, it is desirable to deal with those other matters.

Breach of Duty

1. Mr Grant's case was that the accident occurred when the front wheel of his motorcycle came into contact with the nose of the median, that the Authority was in breach of its duty of care to him as a user of the roadway by failing to erect a "Keep Left" sign at some point close to the nose and that, if such a sign had been erected, Mr Grant would have managed his motorcycle in a different fashion and would not have come into collision with the nose of the median, thereby causing him to lose control and collide with the pedestrian barrier. While the Authority accepts that it owed a duty of care to road users exercising care for their own safety, it disputed that that duty extended to erecting a "Keep Left" sign at the nose of the median at the intersection.
2. Section 5B(1) of the Civil Liability Act relevantly provides that a person is not negligent in failing to take precautions against a risk of harm unless:

• the risk was one of which the person knew or ought to have known;
• the risk was not insignificant; and
• in the circumstances, a reasonable person in the person's position would have taken those precautions. There was no evidence that the one previous impact with the median barrier referred to by the engineers (see above at [144]) indicated any connection with the absence of a sign indicating the location of the nose. Evidence of some prior collision with the pedestrian barrier does not say anything about the need to have a "Keep Left" sign at the nose of the median strip.

1. Significantly, the primary judge did not conclude that the Authority acted negligently in the design of the intersection generally or in deciding to install a median strip and pedestrian barrier at the location in question. Further, there was no finding, for example, of any earlier accident or incident that would have put the Authority on notice of any risk of injury or danger by reason of the absence of a "Keep Left" sign at the intersection. The only finding of breach of duty made by his Honour is that the Authority failed to erect a "Keep Left" sign, warning motorists of the presence of the median strip and barrier, in circumstances where his Honour concluded that the Authority should have erected such a sign. That finding appears to be based entirely on the opinions of Mr Schnerring and the concessions made by Mr McDonald as to whether the Traffic Standard applied in the circumstances of the case.
2. Mr Grant relies particularly on the joint response by Mr Schnerring and Mr McDonald that the nose "should have been signed with a Keep Left sign". That statement appears in the context of cl 2.8.7 of the Traffic Standard. It seems clear enough that the engineers were expressing an opinion as to the meaning of the Traffic Standard. Indeed, they opined that the word "should" in the Traffic Standard should be understood as indicating a recommendation, as opposed to a mandatory circumstance (which would be indicated by the word "shall"). That is a matter about which they could not have given admissible evidence, for the reasons outlined above (at [131]-[134]).
3. The Traffic Standard proposed the placement of a "Keep Left" sign for the purpose of directing motorists to travel to the left of a traffic obstruction. Whether the Traffic Standard applied in the present circumstances involves the interpretation of its wording and that is a matter for the Court. No weight should have been given to the opinions of engineers as to the meaning of the Traffic Standard, except to the extent that some technical meaning of a term or terms, different from the ordinary English meaning, is relevant in the interpretation process. No such suggestion was made for relying on the opinions of the engineers.
4. There is nothing in the Traffic Standard that suggests that a sign was required in the circumstances under consideration. The Traffic Standard merely indicated that it would be necessary to evaluate whether a sign should be placed, having regard to normal conditions. In that regard, it is important that the engineers disagreed on the level and significance of the risk. While they agreed that the features that constituted risk were that the pedestrian barrier east of the intersection was not delineated with reflectors, high intensity lighting, high contrast markings or signposting and that there was a combination of horizontal and vertical curvature, Mr McDonald emphasised that that was not in contravention of any applicable standard or guideline. Mr Schnerring considered that the fact that the nose was not marked or signed to indicate clearly its presence and its precise position on the roadway, combined with the horizontal and vertical curve at the intersection, posed a level of foreseeable risk. He considered that evidence of previous impacts with the median barrier indicated a problem with visibility.
5. Further, each of the engineers agreed that an "engineering judgment" was required in so far as cl 2.8.7 provides that signs would not be required if it is readily apparent, under all normally encountered conditions, that drivers should keep to the left of the obstruction. Even if the Traffic Standard applied, there would still be a question of judgment as to whether the particular circumstances required the erection of a "Keep Left" sign. The absence of evidence of prior accident incidents involving the nose of the median strip, and the presence of a median strip all the way along the roadway prior to the intersection, indicates that there can be no real doubt that it would be readily apparent, under normally encountered conditions, that drivers proceeding east from Epping Road through the intersection to Longueville Road should keep left of the median strip and the pedestrian barrier. That is to say, there could be no doubt for any user of the roadway that vehicles should keep left of the median strip and pedestrian barrier.
6. Mr Schnerring's reliance on the Design Guide as supporting the provision of a "Keep Left" sign appears to be misconceived. The Design Guide provided, relevantly, that median noses should not be combined with horizontal or vertical curves unless adequate visibility is available to ensure driver awareness. That says nothing about the requirement to erect signs. It addresses the question of design of the intersection. The primary judge found no defect in the design of the intersection. There is no evidence that the intersection was designed and constructed contrary to any guidelines or standards.
7. I do not consider that the evidence establishes that the Authority ought to have known, much less knew, that the absence of a "Keep Left" sign at the nose of the median strip constituted a not insignificant risk of injury to a motorcyclist who was exercising care for his own safety. It follows that the Authority did not breach the duty that it owed to road users such as Mr Grant. On that ground, the appeal should be allowed.

Causation

1. The Authority does not accept that, if a "Keep Left" sign had been erected, the accident would have been avoided, assuming, contrary to its contention, that the accident was caused by Mr Grant's motorcycle coming into contact with the nose of the median before colliding with the pedestrian barrier. Section 5D(1) of the Civil Liability Act provides that a determination that negligence caused a particular harm comprises two elements. The first is that the negligence was a necessary condition of the occurrence of the harm (factual causation). The second is that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent, that matter is to be determined subjectively in the light of all relevant circumstances. For the purpose of determining the scope of liability, a court is to consider, among other relevant things, whether or not, and why, responsibility for the harm should be imposed on the negligent party. Under s 5E, in determining liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.
2. The primary judge found that, with sufficient notice of the location of the nose of the median strip, Mr Grant would not have clipped it. That is a finding that, but for the absence of a "Keep Left" sign, Mr Grant's motorcycle would not have come into contact with the nose, thereby causing him to lose control of the motorcycle. While his Honour found that Mr Grant was negligent (by his exceeding the speed limit by some 20 km/hr), his Honour also found that, were it not for the negligence of the Authority, the accident would not have occurred. However, his Honour gave no reasons and referred to no facts for that ultimate conclusion.
3. In order that a fact may be regarded as established, the evidence should be such that it is more probable that it exists than it does not. A fact cannot be regarded as established unless its existence is at least a reasonable inference from some matter provided in evidence. It is not sufficient that there be some ground for conjecturing that the fact exists. There must be evidence affording ground for treating it as existing as a matter of inference, and not of conjecture. The existence of a fact may be inferred from other facts, when those facts make it reasonably probable that it exists. However, if they go no further than to show that it is possible that the fact may exist, the existence of the fact does not go beyond mere conjecture. If there is no piece of evidence that, taken at its highest, is more than equally consistent with the existence and with the non-existence of a fact, then it cannot be treated as established. [38]
4. The primary judge did not identify any particular evidence that supported the finding that the presence of a "Keep Left" sign would have caused Mr Grant to control his motorcycle in a manner that would have avoided contact with the nose of the median strip, assuming that that is what occurred. On the other hand, there was evidence that did not support such a finding. Mr Grant had ridden a motorcycle through the intersection on previous occasions, although not very often, and had frequently driven a car through the intersection. Further, he had, from time to time, been driven in a motor car through the intersection, for example, with Mr Faulkner. Mr Faulkner said that they quite often drove through the intersection for work purposes. Thus, a clear inference is available that Mr Grant was aware that, east of the intersection, there was a median strip and pedestrian barrier dividing the eastbound carriageway of Longueville Road from the westbound carriageway of Longueville Road.
5. Further, Mr Grant had been riding along Epping Road for a distance of more than 5 kilometres with the road being divided along that length by either concrete barriers or median strips, subject to breaks for intersections. In addition, there was a reflective line supplemented by raised pavement markers on both sides of the median strip east of the intersection. Again, even if Mr Grant had no familiarity with the intersection, it is highly unlikely that a rider travelling through the intersection for the first time would not expect the median strip to recommence on the other side of the intersection.
6. Mr Grant was following close behind Mr Faulkner who had travelled through the intersection without mishap. It might be expected that Mr Grant might have followed the same line as Mr Faulkner. If he hit the nose of the median before colliding with the barrier, he could not have been following Mr Faulkner's line.
7. In all the circumstances, the evidence does not support the conclusion that, but for the absence of a "Keep Left" sign, Mr Grant's motorcycle would not have come into contact with the nose of the median strip. I do not consider that the evidence demonstrates that it is more likely than not that the absence of a "Keep Left" sign at the nose of the median strip caused Mr Grant's injury. Rather, the inference to be drawn is that he was riding with such a lack of care that the presence of such a sign would have made no difference. That is another ground upon which the appeal should be allowed.

Section 43A of the Civil Liability Act

1. In the light of the conclusions reached above, that there should have been verdict and judgment for the Authority, it is not necessary to consider s 43A of the Civil Liability Act. However, I have read in draft form the proposed reasons of Basten JA for concluding that the appeal should be allowed. I agree with his Honour that, if it was negligent to install the median strip and not to have placed, on or at the nose of the median strip, a "Keep Left" sign warning of its location, which could be seen by road users travelling up the hill on Epping Road towards the intersection, that involved a failure to exercise a special statutory power within the terms of s 43A(2). I also agree with Basten JA, for the reasons proposed by his Honour, that the qualified immunity granted under s 43A to a public authority, including a roads authority, was engaged in the present case, and that the evidence before the primary judge did not demonstrate that the omission relied upon as giving rise to civil liability fell within the area of the residual liability provided by s 43A(3). Accordingly, the application of s 43A would be a further ground for allowing the appeal.

Damages

1. The primary judge observed that the issues between the parties concerning the assessment of damages related to non-economic loss, past economic loss (being past earnings), loss of future earnings, and consequential calculations of superannuation (past and future) and interest on past economic loss. The damages issues in the appeal concerned the assessment of non-economic loss and the assessment of Mr Grant's earning capacity, both before and after the accident. Since the appeal must be allowed, it is not necessary to deal with the grounds relating to the assessment of damages. However, I propose to say something brief about the grounds.
2. Section 16 of the Civil Liability Act provides that no damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15 per cent of a most extreme case. Section 16(2), as qualified by s 17, provides for the maximum amount of damages that may be awarded for non-economic loss in a most extreme case. Under s 16(3), if the severity of the non-economic loss is equal to or greater than 15 per cent of the most extreme case, the damages for non-economic loss are to be determined in accordance with the table appended to s 16(3).
3. Mr Grant claimed 100 per cent of the maximum amount. The Authority contended that it should be limited to 75 per cent. The Authority conceded that Mr Grant's injuries were significant. The primary judge described Mr Grant as having been severely injured with significant ongoing disabilities. However, his Honour did not consider that Mr Grant's injuries warranted 100 per cent of the maximum, but concluded that he was entitled to 90 per cent of the maximum. The Authority contends that, in assessing non-economic loss, the primary judge placed undue weight on the nature of Mr Grant's injury and, in doing so, did not have adequate regard to his true loss of amenities of life.
4. The primary judge found that Mr Grant is incapable of performing his prior, and desired long-term, work. He now drives a car and works at his father's gym, while also doing regular gym work to maintain strength and fitness. Mr Grant received his first prosthetic leg in October 2009 and in September 2011 underwent osseointegration, which, his Honour found, has dramatically improved his life and ameliorated some of the worst features of his disability arising from the earlier prostheses. His Honour found that Mr Grant continues to suffer pain and takes prescribed medication whenever it becomes too severe, which is rare.
5. Two qualified occupational therapists described Mr Grant as a "highly motivated, resourceful and adaptable person", who has the "desire to have the full life of a normal young person". Given those attributes, one of the occupational therapists described him as having achieved a "far greater level than usual clinical expectations". His Honour described Mr Grant as an extremely impressive young man, who is well built, good looking and, but for his injuries, extremely fit. His demeanour was impressive and he was charming and pleasant. His Honour had little doubt that, in the absence of injury, Mr Grant would have commenced his own business and done very well. He has talent as a carpenter. The Authority complains that the assessment of 90 per cent made by the primary judge does not properly take into account the matters there identified by his Honour.
6. Mr Grant has travelled interstate and overseas to speak at conferences promoting osseointegration. Shortly before the hearing, he had travelled to Orlando and New York in the United States. He has maintained friendships and, at the time of the hearing, had had a girlfriend for just over a year.
7. Mr Grant, on the other hand, draws attention to the extremely serious nature of his injuries, which were described as "horrific". He suffered a traumatic amputation of his left leg in the course of the accident and suffered injury to his right knee requiring reconstruction. He suffered a serious injury to his left arm and had impaired sensation in the left forearm. He was left with extensive disfiguring scarring on his arm and leg and had to undergo extensive skin grafting operations. He also had multiple fractures of his left hand requiring wiring and some of his digits were deformed. He also had severe traumatic dislocation of the right ankle and foot, causing problems pushing off the foot.
8. Mr Grant was in intensive care in Royal North Shore Hospital for a significant period of time after the accident and was an in-patient there for approximately three months. He underwent some 19 surgical procedures in three different hospitals in addition to three procedures involving osseointegration.
9. The assessment of non-economic loss is an evaluative assessment to be made by a trial judge akin to an exercise of discretion. It is not readily susceptible to appellate review unless it can be shown that the trial judge acted on a wrong principle of law or misapprehended a fact or that the amount awarded is so inordinately high as to be a wholly erroneous estimate. [39] There is something to be said for that contention. While I might well have accepted that the severity of Mr Grant's case is no more than 75 per cent of the most severe case, if the question of damages arose in the appeal, I would be disposed to conclude that a basis has not been established for interfering with the assessment of the primary judge.
10. The primary judge found it difficult to assess past economic loss. Mr Grant was overseas for about ten months and returned to Australia in late 2007. In 2007 and 2008, he worked casually for a hotel and a bottle shop. He commenced carpentry work in 2008. The accident occurred at the beginning of 2009. His Honour assessed the earnings lost by Mr Grant as $1,000 per week from 1 January 2009 to 31 December 2011, $1,500 per week from 1 January 2012 until 31 January 2013 and concluded that, after 31 December 2013, he would earn $1,800 per week. That final figure took into account, with significant discounting, higher earnings that he would derive from the commencement of his own business. His Honour also concluded that Mr Grant has a residual earning capacity, but that the likelihood that he would reach that full capacity, notwithstanding his motivated attitude, is remote.
11. Mr Grant contends that, given the $1,800 per week net included a buffer for the loss of opportunity to run his own business and earn profits from the business, the assessment of future loss of earning capacity based on $1,800 net per week was appropriate. Mr Grant also contends that the primary judge's assessment of residual earning capacity was underpinned by findings that the likelihood that he would reach capacity notwithstanding his attitude is remote, that he would have worked as a shopfitter in his own business if uninjured and that the gym was not a lucrative business. He says that, while there was evidence from the vocational experts as to what could have been earned in various jobs, there was no evidence that those jobs were available to Mr Grant.
12. The Authority complains that the primary judge did not identify how he fixed on the figure of $1,800 per week net, which equates to more than $130,000 gross per annum after expenses. It complains that his Honour did not consider the gross income net of expenses, such as tools and motor vehicles, that would be required to earn the various net amounts that his Honour found that Mr Grant would have earned uninjured. The Authority contends that the allowance for lost income for the past should have been calculated either by reference to Mr Grant's tax return or, at best, something less than the average weekly earnings of a qualified carpenter while performing his apprenticeship and thereafter by reference to the average weekly earnings of a qualified carpenter.
13. The primary judge effectively found a residual capacity to earn $90 per week. The Authority complains that, in doing so, his Honour did not properly consider the evidence, made no reference to the joint vocational report, and made findings that were not supported by the evidence. Mr Grant had started to receive wages of $300 or $400 per week in the last three or four weeks before the trial. He had not sought outside employment, in part because working in his father's gym provided him with the flexibility required for his public speaking engagements. The number of speeches he was doing increased each month. He hopes to be able to earn an income for motivational speaking in the future. The Authority submitted to the primary judge that Mr Grant's residual earning capacity should have been quantified at $400 per week, which is considerably more than $90 per week.
14. If the question of damages arose, I would be disposed to accept the Authority's contentions in relation to economic loss. However, since I have concluded that the Authority is not liable for the injury suffered by Mr Grant, it is not necessary to express a final view.

Conclusion

1. In summary, the primary judge erred in concluding that Mr Grant had established, on the balance of probabilities, that his motorcycle came into contact with the nose of the median strip prior to colliding with the pedestrian barrier. His Honour's error was in preferring the opinions of Mr Schnerring and in not having proper regard to Mr McDonald's response to Mr Schnerring's evidence. Even if that first conclusion were correct, his Honour erred in holding that the Authority's failure to install a "Keep Left" sign at the nose of the median on the eastern side of the intersection constituted a breach of the duty of care that it owed to Mr Grant. The opinions of the two engineers, although relevant to other aspects of the case, were not admissible to establish that the Traffic Standard "required" the Authority to install such a sign, or that its failure to do so amounted to negligence. Even if that second conclusion were correct, his Honour further erred in concluding that the absence of a "Keep Left" sign was a cause of Mr Grant's accident, in circumstances where Mr Grant was travelling at least 20 km/hr over the speed limit. Finally, even if the previous three conclusions were correct, the primary judge erred in not finding that the Authority was protected by the qualified immunity afforded by s 43A of the Civil Liability Act.
2. It follows from the above that the appeal should be allowed. The orders of the primary judge should be set aside. In lieu of those orders, there should be a verdict and judgment for the Authority and Mr Grant should be ordered to pay the Authority's costs of the proceedings. Mr Grant should also be ordered to pay the Authority's costs of the appeal. However, he should have a certificate under the Suitors' Fund Act 1951 (NSW).

Endnotes

1. Uniform Civil Procedure Rules 2005 (NSW), r 14.7.
2. See Civil Procedure Act 2005 (NSW), s 56(1).
3. Civil Liability Act, s 41 Definitions public or other authority (e).
4. See further at [31] below.
5. Statement of claim, par 17.
6. Statement of claim, par 15.
7. [2014] NSWCA 314; 203 LGERA 352.
8. Civil Liability Act, s 41 function.
9. Statement of claim, par 2; defence, par 2 (a) and (b).
10. Section 114.
11. Section 87(1).
12. Roads Act, Dictionary, traffic control facility, carry out traffic control work; Transport Administration Act 1988 (NSW), Pt 6.
13. Judgment at [135].
14. Bathurst CJ at [4] and Beazley P at [220] agreeing with my analysis at [245]-[256].
15. By the Chief Justice at [5] and by me at [277]-[279], Beazley P agreeing at [224].
16. Curtis at [244].
17. Standards Australia, Manual of uniform traffic control devices - Part 2: Traffic control devices for general use, par 2.8.7. AS1742.2 (1994).
18. Joint Experts Report (May 2013), prepared by David Beck, Nigel McDonald and Fred Schnerring.
19. Joint Experts Report, p 4.
20. Joint Experts Report, p 5.
21. Supplementary Report, 12 December 2012, p 11.
22. Tcpt, 20/07/13, pp 306(47)-307(34).
23. Tcpt, pp 231(50)-232(12).
24. Tcpt, p 233(12)-(17).
25. Tcpt, p 233(19)-(25).
26. Tcpt, p 233(30).
27. Tcpt, p 233(34)-(39).
28. Tcpt, 234(5).
29. Judgment at [152].
30. Judgment at [153].
31. Judgment at [156] and [159].
32. Set out above at [44]-[45].
33. [1959] HCA 8; 101 CLR 298.
34. Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 at [85]; Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588 at [37].
35. Dasreef Pty Ltd v Hawchar at [37].
36. Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd [2000] FCA 1463; 120 FCR 146 at [23].
37. See, eg, HG v The Queen [1999] HCA 2; 197 CLR 414 at [58].
38. See Carr v Baker (1936) 36 SR (NSW) 301 at 306-7.
39. See, for example, Nemeth v Westfield Shopping Centre Co Management Pty Ltd [2013] NSWCA 298 at [11].

Amendments 22 May 2015 - Removal of [202] prior to Appendix A DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 May 2015