Roads and Traffic Authority of NSW v Turner

CATCHWORDS: CAUSATION - multiple causes - but for test - CONTRIBUTION - multiple causes - causative potency - culpability - NEGLIGENCE - multiple causes

LEGISLATION CITED: Law Reform (Miscellaneous Provisions) Act 1965, s 10(1) Suitors' Fund Act 1951

March v Stramare (E & M H) Pty Limited [1991] HCA 12, 171 CLR 506 Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28, 217 CLR 424 CASES CITED: Andrews v Nominal Defendant (1962) 63 SR (NSW) 110 Barisic v Devenport [1978] 2 NSWLR 111 Fitzgerald v Lane [1989] AC 328

Roads and Traffic Authority of NSW (Appellant) PARTIES: Terry John Turner (First Respondent) Australian Associated Motor Insurers Limited (Second Respondent)

D F Jackson QC/P R Sternberg (Appellant) COUNSEL: J Sexton SC/R Sheldon (First Respondent) L King SC/R Cavanagh (Second Respondent)

Hunt & Hunt (Appellant) SOLICITORS: Carroll & O'Dea (First Respondent) McLachlan Chilton (Second Respondent)

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40792/06 SC 20307/04

HODGSON JA TOBIAS JA HANDLEY AJA

2 April 2008 ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES v TURNER AND ANOR CAUSATION - multiple causes - but for test CONTRIBUTION - multiple causes - causative potency - culpability NEGLIGENCE - multiple causes

The first respondent lost control of the vehicle he was driving in wet conditions on a tight uphill curve on the Princes Highway north of Ulladulla. The vehicle crossed onto its incorrect side and collided with an oncoming vehicle. The first respondent was seriously injured and his passenger, who owned the vehicle, was killed. The first respondent sued the owner of the vehicle represented by her third party insurer (AAMI), and the Roads and Traffic Authority (RTA). The vehicle was travelling a little below 85 kph when control was lost and the first respondent had seen but ignored a 65 kph advisory speed sign. The owner had been negligent in allowing her vehicle to be driven with smooth rear tyres. It had been negligent in failing to reduce the 100 kph speed limit to 80 kph and in failing to erect a slippery when wet sign. It had also been negligent in failing to maintain adequate skid resistance on the road surface at the curve.

The trial judge found that but for the negligence of the RTA the accident would not have happened and held that the negligence of the owner was not a cause of the accident and the first respondent had not been guilty of contributory negligence. The RTA appealed.

HELD: (1) The speed of the vehicle, and the condition of the rear tyres were concurrent causes of the accident because the accident would not have happened if the car had been travelling at a significantly lower speed or if the tyres had been roadworthy; (2) The first respondent as driver of the vehicle was guilty of contributory negligence in ignoring the advisory speed sign on the tight corner in wet conditions and in driving at over 80 kph; (3) The case was one of concurrent fault by all parties and the court should apportion responsibility between the plaintiff and both defendants, and then between the defendants; (4) Although the causative potency of the negligence and contributory negligence of the parties was the same their degrees of culpability differed markedly; (5) The appeal should be allowed and the responsibility of the plaintiff assessed at 20%, and that of the defendants apportioned 75% to the RTA and 25% to AAMI. ORDERS: 1. Appeal allowed. 2. Judgment in favour of the Plaintiff for $1,211,287.87 set aside. 3. Judgment in favour of Australian Associated Motor Insurers Ltd set aside. 4. Set aside the order that the second defendant pay the costs of the first defendant. 5. In lieu thereof substitute judgment for the plaintiff for $969,030.24 with costs against both defendants with effect from 28 November 2006. 6. On the first defendant's cross-claim verdict for the cross-claimant AAMI against the cross-defendant RTA for $726,772.68 and 75% of the costs of the plaintiff of the proceedings in the Common Law Division. 7. On the second defendant's cross-claim verdict for the RTA against AAMI for $242,257.56 and 25% of the costs of the plaintiff of the proceedings in the Common Law Division. 8. No order as to the costs of either cross-claimant of the proceedings on the cross-claim. 9. First and second respondents each to pay one-half of the appellant's costs of the appeal. 10. The first respondent is to have a certificate under the Suitors' Fund Act. 11. Liberty to apply in respect of any claim for indemnity costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40792/06 SC 20307/04

HODGSON JA TOBIAS JA HANDLEY AJA

2 April 2008 ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES v TURNER AND ANOR

Judgment 1 HODGSON JA: I agree with Handley AJA. 2 TOBIAS JA: I agree with Handley AJA. 3 HANDLEY AJA: This appeal arises out of a motor vehicle accident on the Princes Highway north of Ulladulla at 5.45pm on 5 January 2001. The plaintiff was driving his partner's 1979 Mazda north in wet conditions on a tight uphill curve known as Heggo's corner when it fishtailed, crossed to the wrong side of the road and crashed into an oncoming vehicle. He was seriously injured, and his partner (the deceased) was killed. 4 The plaintiff sued the third party insurer of the deceased (AAMI) and the Roads and Traffic Authority (RTA) to recover damages for his personal injuries. He alleged that the deceased had been negligent in leaving bald rear tyres on her vehicle, and in allowing it to be driven in that condition. 5 He alleged against the RTA that it had been negligent in failing to adequately warn northbound drivers of the dangers of driving into Heggo's corner at an excessive speed in wet conditions, in leaving the speed limit at 100 kph, and in failing to maintain a road surface with sufficient friction to allow northbound vehicles to safely negotiate the bend in wet conditions at 100 kph. 6 Latham J found for the plaintiff against the RTA but not AAMI, held that there was no contributory negligence, and awarded damages of $1,211,287.87. 7 The trial judge found that the deceased had been negligent in failing to inspect the tyres and in failing to take reasonable care that the vehicle was in a roadworthy condition. She found that the bald tyres did not make a material contribution to the accident (par [88]). The skid resistance on the road surface in the northbound lane, as measured by the RTA's SCRIM machine on 12 December 2000, only weeks before the accident, was inadequate in wet conditions at the speed limit of 100 kph, and the signage for northbound drivers was inadequate. The 65 kph advisory speed sign did not warn drivers that the road surface on the corner was slippery when wet. She also found that a lower speed limit should have been fixed, and a permanent warning sign (slippery when wet) erected facing northbound drivers. 8 According to the RTA's records (Ex K) between April 1998 and 5 January 2001 there were nine accidents, including the plaintiff's, at Heggo's corner. Five involved northbound vehicles. Seven of the nine were single vehicle accidents but all were the result of a driver losing control on the bend. All vehicles had to be towed away. Eight of the nine accidents occurred in wet conditions. 9 The RTA records did not accurately reflect the police records (blue 2/255). Thus a fatal accident on this corner on 6 November 2000 (black 3/562) was not included. 10 Exhibit K showed only one accident before January 1999. In his submission to the Shoalhaven Traffic Committee on 21 January 1999 (blue 1/240) Senior Constable Charlton referred to at least five single vehicle accidents which had occurred on this corner in wet weather in the previous 18 months. He recommended the installation of slippery when wet signs for both north and southbound traffic approaching the corner. The RTA had a representative on this Committee. 11 A meeting of that Committee on 21 November 2000 considered a submission from Senior Constable Hawkshaw of the Shoalhaven Highway Patrol (Ulladulla) for consideration to be given to reducing the speed limit at this corner to 80 kph because of recent accidents. The RTA's representative was present. 12 Thus responsible officers of the RTA knew from early 1999 that this corner was considered by local police to be dangerous in wet conditions and its own SCRIM data supported that view. However, warning signs (slippery when wet) were not installed and the speed limit was not reduced. These were simple measures which could have been adopted at trifling expense. 13 The judge found that the Mazda was travelling "in the vicinity of 85 kph probably on the lower side of the estimate", well above the 65 kph on the advisory speed sign, but well below the speed limit. She said (para [58]: "The plaintiff would not have encountered any problems negotiating the curve in the Mazda at that speed if the road surface had conformed to minimum friction requirements". 14 The plaintiff was not aware of the accident history at this corner. There was no specific warning sign, and the inadequate skid resistance was a latent condition. In these circumstances the judge was not prepared to find contributory negligence based on excessive speed. Although the plaintiff knew more about cars than the deceased, and had often driven the Mazda on social occasions, he was not responsible for its maintenance and the judge was not prepared to find that he knew or ought to have known that the rear tyres were bald. This finding was not challenged. 15 The RTA's appeal challenged the finding that there was no contributory negligence, and the finding in favour in AAMI. There was no challenge to the primary findings. AAMI by way of contention challenged the finding that the deceased knew or ought to have known that the rear tyres were bald. 16 The condition of the tyres was obvious to anyone who looked and there was no need for any special skill or experience. The deceased had bought the car for $500 without the advice or assistance of the plaintiff about five months before the accident. It still had six months registration when she bought it and re-registration was due about three weeks after the accident. It may be inferred that the deceased inspected the car and the tyres before she purchased it. The court may be permitted to know that the value of six months registration and four good tyres would approximate the purchase price. 17 The decisive consideration is that the deceased had a duty, as the owner for five months of a vehicle of this age, to take reasonable care that it was in a roadworthy condition. She was not entitled to assume that the tyres would remain roadworthy without taking the simple step of checking them. Had she done this she must have realised they were unsafe. The finding that the owner knew or ought to have known about the unsafe condition of the rear tyres should not be disturbed. 18 The trial judge declined to find contributory negligence because she found that the accident would not have happened at the speed the plaintiff was travelling if the road surface had sufficient skid resistance (paras [58], [85]). She also found (para [90]): "Given the inherently latent nature of the risk of loss of traction, there were no precautions that a reasonable person in the plaintiff's position would have taken, particularly in the absence of an appropriately specific warning sign."

19 With respect there was a precaution that a reasonable person would have taken, namely to reduce his speed to that shown on the advisory speed sign. 20 The plaintiff saw the advisory speed sign and knew what it meant. He also knew that the road was wet and three chevron signs told him he was approaching a tight curve. He acknowledged in cross-examination that the 65 kph on the advisory sign was the maximum safe speed in good conditions and that if the road was wet it would be prudent to take the curve at a lower speed (black 1/200-1). 21 The appeal on this point challenges the inference the trial judge drew from primary facts which are not in dispute and she was not in a position of advantage. In my judgment she erred in finding that there was no precaution that a reasonable person in the plaintiff's position would have taken and this court should intervene and substitute a finding of contributory negligence based on the plaintiff's excessive speed. 22 The remaining issues are causation and apportionment. The findings of negligence against the RTA and the deceased stand, and a finding of contributory negligence based on excessive speed has been substituted. The judge found that the negligence of the RTA was causative but the negligence of the deceased was not because (para [88]) up to speeds of 85 kph the condition of the rear tyres played no part in the capacity of the vehicle to travel through the curve without loss of traction. She also appears to have found that the plaintiff's speed was not causative because he would have had no problem if the road surface had been adequate (para [58]). 23 The front wheels on the vehicle were roadworthy and did not lose traction in the curve but the rear wheels did. This caused the vehicle to fishtail and to cross onto its incorrect side of the road (para [2]). 24 The judge accepted the evidence of Mr Jamieson, the expert called for the plaintiff, and Mr Kiernan, the expert called for AAMI. In their view the Mazda's loss of traction in the curve was due to three causes, the speed of the vehicle, the state of the rear tyres, and the condition of the road surface. 25 Mr Jamieson said that if any one of those factors had been eliminated the crash probably would not have occurred (blue 1/24, 26). 26 Mr Kiernan said that the likely reason for the rotation of the rear wheels was that the smooth tyres started to slide but the treaded front tyres did not (blue 2/286). This, as Mr Jackson QC for the RTA submitted, indicated that the condition of the rear tyres played a part in the accident. It also indicated that if all the tyres had been good the vehicle would have safely negotiated the curve. In Mr Kiernan's opinion the critical speed for the smooth tyres on this corner in wet conditions was 75 to 80 kph (2/287). 27 Mr Kiernan also considered that the road factors referred to, the smooth rear tyres, and a speed well in excess of that recommended all contributed to the accident. He said that if the driver had observed the recommended speed limit he would not have lost control of his vehicle (2/288, 291), and that the rear smooth tyres caused the loss of control at the estimated speed of between 80 and 90 kph (blue 2/ 439). 28 The judge found that but for the condition of the road surface the Mazda could have safely negotiated the curve despite its bald rear tyres at speeds up to 85 kph (para [85]). She therefore concluded that the Mazda's speed, and the state of the rear tyres played no part in the accident (para [88]). 29 These findings are contrary to the expert evidence of Mr Jamieson and Mr Kiernan that Her Honour accepted. This established that the accident would not have happened but for the negligence of the RTA and that it would also not have happened but for the speed of the vehicle and the state of the rear tyres. The preliminary, but for test of causation: March v Stramare (E & M H) Pty Limited [1991] HCA 12, 171 CLR 506, 514, 515-6 was applied to the negligence of the RTA. It should also have been applied to the negligence of the deceased, and the contributory negligence of the plaintiff. 30 As Hodgson JA pointed out during argument the state of the tyres could only be excluded as a cause if the accident would have occurred even if the rear tyres were roadworthy. There was no expert evidence to that effect. The same point applies in respect of the driver's speed. This could only be eliminated as a cause if the accident would still have happened if the car had been travelling at 65 kph. The speed, the state of the tyres, and the state of the road, including the absence of additional signage, were all concurrent causes of the accident operating at the moment when control was lost. 31 Mr Jackson submitted that the judge erred in thinking that she had to identify the cause of the accident that is a single cause. It is not clear that she made that error. However she evidently thought that having found that the RTA's negligence was a cause there was no need for any further inquiry into causation. She failed to apply the same test to the factors for which the driver and the deceased were responsible. As Mason CJ said in March v Stramare (E & M H) Pty Limited (at 512): "… courts readily recognise that there are concurrent and successive causes of damage on the footing that liability will be apportioned as between the wrongdoers." See also Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28, 217 CLR 424, 441-2. 32 In my judgment this court must intervene and substitute findings that the negligence of the deceased and the contributory negligence of the plaintiff were concurrent causes of the accident, and liability must be apportioned. 33 The established approach to apportionment in a case such as this is to first determine the extent to which the plaintiff's damage should be reduced having regard to his share of the responsibility (Law Reform (Miscellaneous Provisions) Act 1965 s 10(1)) which must be compared with the responsibility of all defendants liable to the plaintiff: Barisic v Devenport [1978] 2 NSWLR 111; Fitzgerald v Lane [1989] AC 328. 34 Apportionment requires an evaluation of the causative potency of the plaintiff's contributory negligence, and that of the negligence of the relevant defendants. It also requires an evaluation of the relative culpability of the parties, namely the degree to which their conduct departed from the standard of care of the reasonable man: Barisic v Devenport (above) at 140-1 per Samuels JA. 35 In my judgment the defendants' breaches of duty and the plaintiff's failure to take reasonable care for his own safety had equal causative potency because all were operative when control of the vehicle was lost. However the RTA's negligence in failing to reduce the speed limit and erect a warning (slippery when wet) sign also contributed to the plaintiff's excessive speed. 36 The culpability of the parties also differed. The plaintiff should not have exceeded the advisory speed in wet conditions on a tight corner marked by three chevron signs but the RTA had not reduced the speed limit to 80 kph or warned him that the curve was slippery when wet. The RTA alone knew that the road surface provided inadequate friction, that it was slippery when wet, and dangerous in wet conditions above 80 kph. The plaintiff did not know that the rear tyres were bald, but the deceased ought to have known this. His culpability in ignoring an advisory speed sign for a tight corner in wet conditions was significantly less than it would have been if he exceeded the speed limit and ignored a warning sign. In the circumstances I would apportion responsibility as between the plaintiff and the defendants 20:80. 37 The culpability of the RTA was much greater than that of the deceased because it knew of the problems at this corner but did nothing while it was not established that she was aware of the condition of her rear tyres. It was also partly responsible for the plaintiff's excessive speed. Nevertheless her neglect of duty to other road users, including the plaintiff, showed a marked departure from the standard of care of the reasonable vehicle owner. In the circumstances I would apportion responsibility between the RTA and the deceased in the proportion 75:25. 38 The RTA and AAMI are each entitled to verdicts but not judgments on their cross claims in accordance with the principles established in Andrews v Nominal Defendant (1962) 63 SR (NSW) 110. 39 The following orders should be made: 1. Appeal allowed. 2. Judgment in favour of the Plaintiff for $1,211,287.87 set aside. 3. Judgment in favour of Australian Associated Motor Insurers Ltd set aside. 4. Set aside the order that the second defendant pay the costs of the first defendant. 5. In lieu thereof substitute judgment for the plaintiff for $969,030.24 with costs against both defendants with effect from 28 November 2006. 6. On the first defendant's cross-claim verdict for the cross-claimant AAMI against the cross-defendant RTA for $726,772.68 and 75% of the costs of the plaintiff of the proceedings in the Common Law Division. 7. On the second defendant's cross-claim verdict for the RTA against AAMI for $242,257.56 and 25% of the costs of the plaintiff of the proceedings in the Common Law Division. 8. No order as to the costs of either cross-claimant of the proceedings on the cross-claim. 9. First and second respondents each to pay one-half of the appellant's costs of the appeal. 10. The first respondent is to have a certificate under the Suitors' Fund Act. 11. Liberty to apply in respect of any claim for indemnity costs.

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