ROADS AND TRAFFIC AUTHORITY v SNAPE, ROADS AND TRAFFIC AUTHORITY v TRIMBAK... [1999] NSWCA 47 | Case summary

1 HANDLEY JA: These are appeals by the Roads and Traffic Authority (RTA) from two judgments entered by Sidis DCJ against it. The plaintiffs had sued in separate actions arising out of accidents on the same stretch of the New England Highway, six kilometres north of Muswellbrook, which occurred on 6 and 7 December 1993. The first accident involving Mr Snape occurred at approximately 9.50 pm on 6 December; the second, involving Mr Gorman, occurred at approximately 1 am on 7 December. 2 Mr Snape was travelling south on the highway in a sedan. The accident occurred where the RTA was undertaking roadworks on a project known as the Darkbrook-Barker's Hill rehabilitation. The highway in the section where the accident occurred consisted of one southbound and one northbound lane. The RTA was in the process of constructing a second southbound lane and for this purpose had excavated an area adjacent to the existing southbound lane. In the process the white fog line on the eastern edge of the existing lane had been removed and the excavation had created a vertical drop of 450 mm from the edge. The accidents occurred on the downhill section after the vehicles had passed the crest of Barker's Hill where the road curves to the left before entering a straight section. 3 Mr Snape's vehicle left the road at chainage 480 as shown on RTA diagrams in evidence. He then travelled 80 metres before his vehicle stopped when it ran into a mound of roadmaking material in the excavation area. 4 The vehicle involved in the second accident, owned by Trimbak Pty Ltd, was a prime mover and semi-trailer driven by Mr Gorman travelling from Queensland to Sydney. His vehicle left the road about 200 metres south of the crest of Barker's Hill, about chainage 440. The nearside wheels of his vehicle left the road and it became unstable. He saw Mr Snape's car in the trench but managed to avoid it and having lost his load was able to stabilise the vehicle and bring it to a halt at chainage 340. 5 The Judge found that the RTA had been negligent in not providing adequate delineation at the edge of the excavated road pavement on the southern side of Barker's Hill where the vehicles left the highway. Her Honour assessed damages in Mr Snape's case and entered judgment for the agreed amount for property damage in the action brought by Trimbak Pty Ltd. Mr Snape had also sued the Nominal Defendant alleging that an unidentified motor vehicle travelling north on the highway had blinded or dazzled him with its lights on high beam causing him to veer to the left into the excavation trench. Her Honour said that this claim was not pursued with vigour. It was not supported by Mr Snape's oral evidence, although it was supported by his statements to the police and Mr Metcalf of the RTA on the night of the accident. Her Honour made a Sanderson order against the RTA for the latter to pay the costs of the Nominal Defendant. 6 The judgments for the plaintiffs were challenged on a large number of grounds, particularly the judgment in favour of Mr Snape. His case as pleaded was that there were no warning signs to mark the edge of the trafficable pavement. This case was supported, not only by his own evidence but also by evidence of other members of his family, but the case that there were no warning signs failed. 7 Both drivers had seen roadworks on the northern side of Barker's Hill and excavations there which were barricaded and delineated with barrier boards and warning signs. Mr Gorman said they were also delineated with star pickets and lights. Both drivers said that the barriers and road signs finished at the crest of the hill. Mr Gorman said that some distance before the crest the road returned to normal with a fog line and a sealed road shoulder of substantial width. Mr Gorman noticed no barrier boards, witches' hats or warning signs on the southern side of the crest, and this evidence was hardly challenged. As he descended Barker's Hill he noted a car parked to the side of the northbound carriageway and he moved slightly to his left to allow oncoming traffic to pass. In doing so his nearside wheels dropped into the excavation. 8 Mr Metcalf of the RTA identified the presence of broken or displaced barrier boards at the scene of the accident in the early hours of the 7th. He made a sketch of the scene which identified the position of the two vehicles and the displaced or damaged barrier boards and traffic cones. He also took a number of photographs. The Judge found that there had been three barrier boards in the area before Mr Snape's accident, spaced at 60 metre intervals with lights on every second barrier 120 metres apart. The barrier boards had been placed in the excavation 450 mm below the edge of the road pavement along with the cones and bollards. 9 The first submission of Mr Hislop QC for the RTA was that her Honour's finding that the Authority had been negligent in not providing adequate delineation at the edge of the excavated road pavement was not open on the pleadings. The amended statement of claim filed on behalf of Mr Snape had pleaded that no warning signs had been placed to indicate the existence of an excavation along the edge of the roadway. However Mr Snape's case was not conducted strictly on the pleadings. He called an independent witness, Mr Briskey, who said there were signs on the southern slope of Barker's Hill adjacent to the southbound carriageway at the top and the bottom of the hill. Mr Briskey was the driver of a semi-trailer proceeding north who witnessed Mr Gorman's accident and stopped to render assistance. 10 His evidence was led without objection from counsel for the RTA although it was outside the plaintiff's statement of claim. The case for the RTA of course was that adequate warning signs were in place. Later in the trial counsel for the Nominal Defendant tendered the report of Jamieson-Foley and Associates. Pages 21 and 24 of that report contained statements of opinion by the author that the use of barrier boards and traffic cones was not sufficient, and that the edge of the pavement should have been delineated by other means to reduce the risk of accident. This report was admitted without objection. It was then too late to attempt to confine the case for Mr Snape to the pleadings and any attempt thereafter by counsel for the RTA to do so could have been met by an amendment which accommodated the statement of claim to the evidence. See Leotta v Public Transport Commission of NSW (1976) 50 ALJR 666 at 668-9. The pleading point must be rejected. 11 The next group of submissions made by Mr Hislop challenged the adequacy of the Judge's reasons on a number of questions. These were the rejection of some of Mr Metcalf's evidence, her findings on evidence by Mr Gorman that the excavations on the northern side of Barker's Hill had, at 1 am on 7 December, been delineated with star pickets and lights and that on his return journey on 7 December the excavation on the southern side of Barker's Hill had been "lit up like Luna Park"; and finally the reasons for rejecting the evidence of Mr Metcalf that there were no alternatives available for marking the edge of the pavement adjacent to the excavation. 12 There is no substance in the first of these submissions. Her Honour gave five reasons for rejecting Mr Metcalf's evidence that there were barrier boards in the trench at 40 metre intervals with lights on every second barrier board and witches' hats or cones and reflective bollards on the edge of the pavement. The first was the drawing made by Mr Metcalf when he visited the site after the second accident which indicated that the barrier boards were spaced at 60 metre intervals and the lights were 120 metres apart. Her second reason was that the cones and bollards were not on the edge of the pavement but in the excavation. It is also apparent that she preferred the evidence in Mr Metcalf's drawing as to the number and spacing of the barrier boards to his oral evidence on this topic. 13 Her third reason was that there had been no inspection of the site by the RTA between 2 pm on Saturday 4 December and Mr Metcalf's inspection about 2 am on the 7th, so he could not say what the position was at the time of Mr Snape's accident. The point received emphasis from evidence he gave in cross-examination that barrier boards, witches' hats and bollards placed on road construction work can be stolen or damaged and this is not uncommon. (212-3, 215, 218) 14 The fourth reason was that her Honour found that at least one of the barrier boards located by Mr Metcalf was "placed" on the grassed drain adjacent to the excavation a substantial distance from the roadway pavement. This was shown in the photograph which became Ex 8. This board was 2 metres east of the eastern side of the excavation trench and 7 to 8 metres from the edge of the road. It was lying flat on the grass and some distance from what appears to be its support which was even further away. Both objects are shown in Mr Metcalf's sketch but it is possible they were displaced when one of the vehicles hit the barrier board at an angle. 15 Mr Metcalf was not cross-examined to suggest that the board and its support were "placed" in the positions shown in the photograph and the sketch, and in these circumstances her Honour's finding to that effect cannot be supported. Her final reason was that the barrier boards were located 450 mm below the edge of the pavement which affected their visibility to the driver of the car on the southbound carriageway. This was not strictly a reason for rejecting Mr Metcalf's evidence as he had not suggested that the boards stood on the pavement, or that the ends of the boards extended over it. The other reasons given by her Honour amply support her finding, and the fact that an additional reason cannot be supported and another was strictly irrelevant cannot displace it in the circumstances of this case. 16 Her Honour did not in terms state that she accepted Mr Gorman's evidence about the presence of star pickets with lights to mark the edge of the excavation on the northern side of Barker's Hill, nor his evidence about their presence on the southern side of the hill the following night. He was not initially cross-examined about this evidence but was recalled for this purpose and interposed during the evidence-in-chief of Mr Metcalf following an objection based on the absence of such cross-examination. Mr Gorman was only cross-examined on the presence of such pickets on the southern side the following night. Mr Metcalf later agreed in cross-examination that star pickets were available on the site (215) but was not asked whether they had been used on the northern side of the hill on the weekend before the accident. He denied their suitability for marking the edge of the trafficable pavement. 17 It was not suggested that Mr Gorman's evidence on these matters should not have been accepted and in my view the Judge's references to this evidence indicated that she had accepted it and was finding the facts accordingly. 18 In her judgment dealing with the next question Her Honour referred to the relevant Australian Standard 1742.3-1985 Traffic Control Devices for Works on Roads and to the Jamieson-Foley Report which concluded that the delineation devices used by the RTA were inadequate. The RTA had relied upon section 3.8.2.1 of the Standard and figure 5.9. Section 3.8 dealt with signs and devices for lane closures. Section 3.9, which was relied upon in the Jamieson-Foley Report, dealt with signs and devices for delineating and indicating the travel path of vehicles. Her Honour said that she read these provisions of the Standard carefully and continued: "Taken together it is clear that measures referred to in part 3.9 could have been adopted, and should have been adopted, by the Roads and Traffic Authority in relation to this section of the road. Mr Metcalf, in his evidence, denied that there were alternatives available to him but a number of alternatives are clearly spelled out in part 3.9". 19 This last statement was clearly correct, and figure 5.9 shows the use of delineation devices in accordance with cl 3.9.2 along the edge of the trafficable pavement. Mr Metcalf was cross-examined about the use of such devices and said that there would be practical problems. The gravel being deposited as road base in the excavated area tends to spill onto the pavement and is removed at the end of the working day by a grader, which would also remove any raised reflective pavement markers. The deposit of gravel in excavations is an invariable feature of this type of road construction, and the provisions of the Standard must reflect an expert opinion that practical problems of the kind referred to should not prevent the use of the recommended safety devices. 20 Her Honour was fully entitled to prefer the relevant sections of the Standard to Mr Metcalf's evidence especially where, as in this case, the road works were suspended from 2 pm Saturday until the following Tuesday morning. There is no substance in this attack on her Honour's judgment. 21 The next submission was that her Honour should have made a finding or findings as to the safety measures that the RTA should have adopted but failed to do so. This was said to be necessary to ensure that the findings had been put to Mr Metcalf in cross-examination and were within the plaintiff's case. In my judgment it was not necessary for her Honour to find other than she did, namely that the safety measures in place were inadequate and more could and should have been done. It does not matter that evidence of negligence within the plaintiff's cause of action emerged during the defendant's case, or during the case of another defendant. Although this is only commonsense it is supported by binding authority. See Mummery v Irvings Pty Ltd (1956) 96 CLR 99, 110-11. 22 Mr Hislop submitted that her Honour failed to consider the issue of Mr Snape's contributory negligence arising from his failure to see the barrier boards, cones and bollards in the excavation. The issue of contributory negligence was not specifically raised in the notice of appeal as a ground of appeal, or in the orders sought, and it was not referred to by her Honour. It is evident that the trial was conducted on the basis that if negligence by the RTA was established there was really no scope for a finding of contributory negligence, and in my opinion this was correct. 23 The real difficulty in the case arises from the remaining submission of Mr Hislop on liability. Mr Snape's case, as pleaded in his amended statement of claim, was that he was affected by lights on high beam from an approaching vehicle and this caused him to steer to the left and run off the pavement into the excavation. His case against the Nominal Defendant was based on the same allegations. The RTA argued at the trial that Mr Snape did not see the warning devices that were in position because he had been affected by the glare of the approaching headlights and that this was the cause of the accident. 24 Mr Snape said in evidence that as he went down Barker's Hill he thought the roadworks were finished because there were no signs. He moved his car to the left because of the lights of the oncoming car but said that they only affected his sight a little and he was not blinded. In due course he was cross-examined on his inconsistent statements to Constable Parsons, and Mr Metcalf. He denied telling Constable Parsons what the latter recorded in his notebook and said that he was in a bit of shock when he signed it. He later denied telling Mr Metcalf that because of the lights he could not see where he was going and couldn't see the edge. Constable Parsons was called in the case for the RTA and confirmed Mr Snape's statement in his notebook, and the contents of the P4 traffic report in his handwriting which was to the same effect. When Mr Metcalf was called he also gave evidence that Mr Snape had said much the same to him later that night at the scene of the accident. 25 Her Honour noted the argument of the RTA based on this evidence and that the claim against the Nominal Defendant had not been pursued with vigour. She said that "on this basis" she made no finding of negligence against the Nominal Defendant and added: "Mr Snape's credibility was attacked, both in respect of liability and quantum. He was not an impressive witness and my decision as regards liability depended upon other objective evidence which supported Mr Snape's version of events". 26 While the number and adequacy of the warning devices left in place by the RTA were established by other evidence, the question of causation could not be solved in this fashion. There was no objective evidence which supported Mr Snape's version of events, and since he gave two inconsistent versions it is not clear which her Honour was referring to. Although the RTA was found to be negligent in not providing adequate delineation of the edge of the pavement, on one view of the facts this alone would not have caused Mr Snape's accident. On this view something else was necessary which caused him to move far enough to the left for his nearside wheels to drop off the edge of the pavement. If the approaching headlights had temporarily blinded him, he could not have seen adequate warning devices even if they had been in place, and a finding may be open that the blinding headlights were the sole cause of the accident. Other possible findings would have been that the headlights and the inadequate delineation were concurrent causes, or the inadequate delineation was the sole cause. A judge of the facts might not be satisfied that there were any headlights from approaching traffic, and find that Mr Snape's movement of his vehicle to the left was unexplained. 27 The "objective" evidence and inferences from her Honour's express findings cannot cover this gap, nor can it be inferred that she accepted his oral evidence in preference to his out-of-court statements. Her Honour did not make an express finding on causation, and if the finding is implicit, she has not made it clear which possible basis for causation was accepted, and she has not exposed her reasons for that finding. The RTA therefore succeeds on this narrow basis, and there must be a new trial on the issue of liability. 28 Mr Hislop had further submissions on damages, and on the appropriateness of the Sanderson costs order. Her Honour awarded general damages of $30,000 and allocated $25,000 to the past, and $5,000 to the future. The award for the future was challenged as being inconsistent with the following findings of her Honour: "I am satisfied that it is likely that he has recovered to his pre-accident condition. The claim of psychological damage I do not believe has been made out on the evidence. There is a report from Dr Spragg for the defendants and a report from Dr Miller who examined Mr Snape in his own case. Dr Miller says that he is not suffering from any psychological illness but he is suffering from an adjustment reaction causing ongoing anger in respect of the accident, sleep disturbance and irritability". 29 On the face of these findings the award for the future seems, at first glance, to be so extraordinary, that one is driven to seek another explanation. During argument Giles JA pointed out that it would make more sense if the first sentence of the paragraph quoted was read as part of the previous paragraph which was concerned with Mr Snape's physical injuries. The rest of the quoted paragraph can then be read as referring to his psychological and mental condition, and read in this way one could refer the award for the future to his ongoing problems referred to at the end of the paragraph. 30 It seems to me that the paragraph should be read in this way even if the first sentence is retained. Her Honour clearly found that he had some ongoing problems and her judgment can be reconciled by reading the first sentence as confined to his physical condition. I am therefore not persuaded that this part of her Honour's award is inconsistent with her findings, properly understood, and I would not interfere. 31 The final question on this appeal concerns the Sanderson order that the RTA pay the costs of the Nominal Defendant. The Judge based her order on the report of September 1995 by Professor Yandell, prepared for the RTA, which concluded that Mr Snape's vehicle had left the road because his vision had been impaired by the lights of an oncoming vehicle. In October 1996 the plaintiff joined the Nominal Defendant as an additional defendant. The Judge pointed out that a substantial part of the case for the RTA at the trial was based on the evidence of Constable Parsons, and to some extent that of Mr Metcalf, relating to statements made by Mr Snape on the night of the accident. She correctly directed herself that the question for decision when this type of order was sought was "whether the unsuccessful defendant has, by his conduct in relation to the matter, made it a proper exercise of discretion to order costs on a Bullock or Sanderson basis in favour of the other defendant". She concluded by saying: "It does seem to me that in this matter it was the first defendant which raised the issue of the cause of the accident arising from the impairment of the plaintiff's vision by reason of the lights of the oncoming vehicle and that in those circumstances it was a reasonable exercise of discretion on the part of the plaintiff to join the Nominal Defendant, the successful defendant". 32 Unfortunately it is now clear that her Honour mistook the relevant facts because it became common ground on the appeal that the solicitors for the RTA did not serve the report of Professor Yandell on the plaintiff's solicitors until April 1997, long after the joinder of the Nominal Defendant, and only three months or so before the trial. In these circumstances her Honour's exercise of discretion miscarried, and this Court must re-exercise the discretion. In Gould v Vaggelas (1985) 157 CLR 215, 229 Gibbs CJ said: "Obviously a judge should make a Bullock order only if he considers it just that the costs of the successful defendant should be borne by the unsuccessful defendant and, if nothing that the unsuccessful defendant has said or done has led the plaintiff to sue the other defendant, who ultimately was held not to be liable, it is difficult to see any reason why the unsuccessful defendant should be required to pay for the plaintiff's error or over-caution". 33 The only factual basis advanced by Mr Coolahan, counsel for Mr Snape, in support of a Sanderson order was the conduct of the RTA after the joinder of the Nominal Defendant, particularly at the trial, in relying on the statements of Mr Snape to Constable Parsons and Mr Metcalf. However the RTA did nothing to lead the plaintiff to sue the Nominal Defendant and it might fairly be said that the decision to do this was driven by the inconsistency between the plaintiff's statements on the night of the accident and the way his case was pleaded against the RTA in his amended statement of claim. In my judgment the appeal on this issue should succeed. 34 The RTA also appealed against the judgment in the other action entered in favour of Trimbak Pty Ltd. In my opinion this appeal was hopeless. Whatever the position may have been immediately before Mr Snape's vehicle left the road, when Mr Gorman drove along at least two of the barrier boards on this section of the excavation had been knocked out of position by Mr Snape's vehicle along with the cones and bollards originally placed there. The result was a gap of some 180 metres between the nearest barrier boards in this section of the excavation, and one of those barrier boards would have been unlit. 35 If reflecting tape or raised retroflective pavement markers had been used in accordance with the Australian Standard they may not only have prevented Mr Snape's accident; they would still have been in position to warn Mr Gorman of the location of the edge of the pavement when he drove by some hours later. The inadequacy of the warning devices, not only made an accident such as that suffered by Mr Snape reasonably foreseeable, their fragility and impermanence made a further accident, such as that suffered by Mr Gorman, doubly foreseeable. In my judgment this appeal should be dismissed with costs. 36 I have concluded that there must be a new trial in the Snape action on the issue of liability but there is no need for the issue of damages to be tried again and I would limit the order for the new trial accordingly. A new trial on liability is only necessary because of the lack of essential findings on the issue of causation. The numerous challenges by the RTA to the Judge's findings on the issue of negligence have all failed, and as the Judge said, her findings on this issue did not depend on the oral evidence of Mr Snape. In these circumstances I can see no good reason why the order for the new trial should entitle the RTA to relitigate the issue of negligence which, in this case, is severable from the issue of causation. This Court has wide powers under SCR Pt 51 r 23 (2), (3), (4) and (5) to limit the issue in any new trial and in my opinion those powers should be exercised to limit the new trial on liability to the issue of causation. The RTA has only succeeded on one of a large number of issues it raised in the appeal, and in my opinion its lack of success on other issues should be reflected in the order for costs to be made by this Court. 37 In my opinion the following orders should be made: (1) Appeal by the Roads and Traffic Authority in matter CA 40521/97 allowed; (2) Set aside the judgment of the District Court in favour of Kenneth George Snape and order that there be a new trial of the action limited to the issue or issues of causation; (3) Costs of the first trial as between the appellant and the first respondent to be in the discretion of the Judge presiding in the second trial; (4) The respondent, Kenneth George Snape, to pay one half of the appellant's costs of the appeal, this proportion to include the costs of the appeal relating to the Sanderson order, and to have a certificate under the Suitors Fund Act in respect of those costs and his own costs of the appeal; (5) Set aside the order that the appellant pay the costs of the Nominal Defendant of the first trial, and in lieu thereof order that the plaintiff pay those costs; (6) The Nominal Defendant to pay the appellant's costs of the appeal relating to the Sanderson order and, if qualified, to have a certificate under the Suitors Fund Act; (7) Liberty to apply to Handley JA on seven days notice for further directions relating to the new trial; (8) Appeal by the Roads and Traffic Authority in matter CA 40522/97 against the judgment in favour of Trimbak Pty Ltd dismissed with costs. 38 POWELL JA: I agree with Handley JA. 39 GILES JA: I agree with Handley JA.

ROADS AND TRAFFIC AUTHORITY v SNAPE, ROADS AND TRAFFIC AUTHORITY v TRIMBAK PTY LTD

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Judgment (9 paragraphs)

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