RTA v Fletcher & Leighton Contractors

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

26 March 2001 ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES v Jeremy Andrew FLETCHER and LEIGHTON CONTRACTORS PTY LIMITED FACTS The first respondent was injured when he rode his motorcycle off the Hume Highway in New South Wales. The appellant, the Roads and Traffic Authority of NSW, owned the highway and had a duty to keep it in repair. At the time of the accident, the appellant had contracted the second respondent, Leighton Contractors, to carry out road work at the area where the accident occurred. A perception that the highway continued straight ahead, rather than curving to the right as it in fact did, caused the first respondent to crash through some orange webbing on the side of the road and into a ditch which was part of the recent road works. The trial judge found both the appellant and second respondent negligent and apportioned liability at 2/3, 1/3 respectively. The first respondent was held to be guilty of contributory negligence to the extent of 10%. The appellant appealed both these findings.

HELD (i) There is no reason to disturb the trial Judge's findings on negligence and contributory negligence. Whilst the first respondent did fail to notice a number of warning signs on the road, in the circumstances, that was not extraordinary. The appellant ought to have realized that a danger existed and taken the precaution of erecting chevron signs to deal with it.

(ii) per Meagher JA, (Priestley JA agreeing): The trial Judge's finding on contribution should not be disturbed. The High Court has affirmed the duty of an appellate court not to disturb the findings of a trial judge on a question of apportionment, except in the most extraordinary circumstances. There is nothing wrong in her Honour's orders as to apportionment. per Handley JA (dissenting): The apportionment of the trial Judge as between the defendants miscarried and this Court is entitled to intervene. The major responsibility was that of the second respondent in terms of both culpability and causative potency. Accordingly, the appeal should be allowed on this issue and an apportionment of 1/3 to the appellant, 2/3 to the second respondent substituted.

(iii) per Meagher JA, (Priestley & Handley JJA agreeing): On the issue of damages; an error in the amount of $4,860 was conceded by the first respondent in respect of future treatment pharmaceuticals. There is no basis to disturb the assessment of any other item of damages.

ORDERS Appeal dismissed with costs, except for the sum of $4,860. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

26 March 2001 ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES v Jeremy Andrew FLETCHER and LEIGHTON CONTRACTORS PTY LIMITED JUDGMENT

1 MEAGHER JA: On 7 September 1984 the respondent, Mr Fletcher, was travelling South on the Hume Highway on his motorcycle when he sustained severe injuries resulting from his cycle going off the road. The appellant in CA 40039/99 and first respondent in 40059/99, Roads and Traffic Authority of New South Wales (the "RTA"), was the owner of the road and had a duty to keep it in repair. The first respondent in CA 40039/99 and appellant in CA 40059/99, Leighton Contractors Pty Limited ("Leightons") was on that day in the middle of doing road work on behalf of the RTA by altering the Highway so as to divert it over the Jugiong Creek. Mr Fletcher sued both the RTA and Leightons. He succeeded against both, obtaining a verdict in his favour from her Honour Acting Judge Bolan in the sum of $765,785.00. Her Honour found that he had been guilty of contributory negligence to the extent of 10%. These two appeals are from those decisions. 2 Mr Fletcher was born on 7 May 1962. He was then aged 22 at the time of the accident. He left school half way through year ten, when he enlisted in the Royal Australian Navy. He served in the Navy for many years, indeed until seven years after the accident in respect of which he sued. He seems to have been a particularly fit young man. He swam regularly. He played squash and tennis. He also played rugby league (football) and rugby union (football). He was also an accomplished motor cyclist. 3 On 7 September 1984 he and a friend of his called Clarke started to drive their cycles from Nowra, where they were stationed, to Wagga Wagga. They travelled via Kangaroo Valley to the Hume Highway, before Goulburn. They left Nowra at about 3pm, having worked extra hours the previous four days to have Friday afternoon off. Mr Fletcher's was the "lead" cycle, going about 25m in front of that of Mr Clarke. 4 They stopped at McDonald's Restaurant at Goulburn for a meal. They then proceeded South, without incident, to Yass. There they refuelled, had cigarettes and chips, and donned wet weather gear. Thence they went southwards toward Jugiong. It was on the road from Yass to Jugiong that disaster befell them. 5 At the point of the accident, the Hume Highway, instead of continuing straight ahead, took a curve to the right. It was at this point that Leightons, under the supervision of the RTA, was conducting its road works. At this point, there is a road now known as Benangaroo Road which is in alignment with the Highway. In other words, other things being equal, a driver going south towards Jugiong at night, seeing a car coming north on Benangaroo Road, would get the impression that Benangaroo Road was a continuation of the highway. At the very moment Mr Fletcher was approaching the curve, a Mrs Winkler was driving her motor car down Benangaroo Road toward him, her lights on low beam. He then drove his cycle towards her car, instead of following the curve to the right. He drove through some orange webbing on his left (on the side of the road), and then into a ditch (which was part of the recent road works). He woke up in hospital, with no recollection of what happened. Mr Clarke said that, before the accident, he had made the same mistake and assumed that the road on which Mrs Winkler was travelling was the same road as that on which he was travelling. 6 In the circumstances it is difficult to see what was the main cause of the accident except the illusion that Benangaroo Road was an extension of the Highway. Her Honour so held, and I cannot see that any alternative was open to her. However, for a person in Mr Fletcher's position to suffer from that illusion, he had to be oblivious of a number of warning signs. He could not have understood the significance of the line marking the side of the road or of the centre line marking. However, he must have been blind to a "curve" sign on the side of the road, with a speed sign underneath it (indicating that drivers should proceed at a speed of not less than 85 or 95 kph). Further, the significance of the fact that orange webbing on star-picket fencing ran alongside the road to his left must have escaped him. He hardly paid any conscious attention to these signals of danger: he must simply have been so absorbed by the oncoming lights that he forgot to consider what the signs meant, if he noticed them at all. With respect to all the submissions to the contrary, that does not seem to be extraordinary. This is particularly so when none of the signs impacted on Mr Clarke's consciousness, except that when he noticed his friend crashing through the webbing he noticed the existence of that webbing. 7 It was submitted by both counsel for each appellant that Mr Fletcher's failure to keep a constant look-out must have been so great that it was his conduct which caused the accident. Certainly he did fail to keep a proper look-out, and in his state of fatigue that is hardly to be wondered at; but in any situation it is impossible always to keep a proper look-out, and in his case the vision of an oncoming car fixated him (although hardly dazzled him) to the extent that fulfilling his primary duty of looking straight ahead distracted him from noticing warning signs on his left. The defendant ought to have realized that such an emergency might arise, and taken the precaution of erecting chevron signs (which are normally of sufficient size to seize the attention of the most distracted driver) in order to deal with it. I can see no reason to tamper with her Honour's 10% figure for contributory negligence. 8 On the question of contribution between defendants, her Honour found that the RTA was 2/3 liable, Leightons 1/3. I would not disturb that finding. The High Court has affirmed most emphatically the duty of an appellate Court not to disturb the findings of a trial judge on a question of apportionment, except in the most extraordinary circumstances. The Court of Appeal has laid down the same principles, although it has not always acted in accordance with them. This is no occasion to depart from the High Court injunction. 9 The RTA owned the land, it was the repair authority, it had complete control over the relevant road and its environs. It must have had enormous experience of signage. It must have had a duty in the law of tort to erect such signage as was necessary to minimize the risk of accidents. It had an inspector on its staff whose job it was to ride up and down the relevant parts of the Highway at least once a day (he was not called). It also had another inspector whose job it was to do much the same thing (neither was he called). 10 On the other hand, Leightons is hardly innocent of blame. In the first place the webbing to which I have referred and which was erected by Leightons, was at the time of the accident left in a dusty state, and was draped over a series of sign posts in such a way that the retro-reflective reflectors on each part were obscured. In the second place, the RTA seems to have endeavoured to contract to assign most of its duties to Leightons. 11 Thus, the contract between RTA and Leightons provides, by clause 15, "the contractor shall provide, erect and maintain barricades, guards, fencing, temporary roadways, footpaths, signs and lighting and shall provide and maintain all watching and traffic flagging lawfully required by any public or any authority if necessary for the protection of the work under the contract or of other property or for the safety and convenience of the public and others and shall remove the same when no longer required."

Thus did the RTA attempt to assign its responsibilities.

I can see nothing wrong in her Honour's orders as to apportionment; no error of law; no mis-statement of fact; no omission to take any relevant fact into consideration; no palpably unjust result. Obviously, she must have considered that the RTA's superior position and greater knowledge edged its responsibility higher than Leighton's. 12 As I have said, the damages which her Honour awarded Mr Fletcher amounted to $765,785. That figure consisted of the following components: 1. General damages $180,000. 2. Out of pocket expenses $ 23,336. 3. Interest on past general damages $ 22,400. 4. Past wage loss $ 39.540. 5. Interest on past wage loss $ 6,174. 6. Past domestic assistance $ 32,760. 7. Interest on past domestic assistance $ 18,428. 8. Past handyman assistance $ 24,024. 9. Interest on handyman assistance $ 13,514. 10. Past pharmaceutical expenses $ 3,640. 11. Interest on past pharmaceutical expenses $ 2,048. 12. Future treatment pharmaceuticals $ 74,500. 13. Future handyman and domestic assistance $ 137,629. 14. Future economic loss $ 272,879. TOTAL $ 850,872. Less 10% contributory negligence $ 765,785 .

The correctness of items 2 and 11 is conceded by the appellants. It is conceded by the respondent that item 12 contains a mathematical error of $4,860. 13 Before I turn to examine the various items in detail, there are, I think, some general observations to make: a) the respondent's evidence, in its entirety, was accepted by her Honour; b) it was conceded by each appellant that Mr Fletcher had suffered very serious injuries and that fact is reflected in the unusually high figure for out-of-pocket expenses; c) her Honour found that Mr Fletcher had a very stoic attitude to his problems; d) her Honour found that initially Mr Fletcher seemed to have made a remarkable recovery, working at sea for three years without complaint or apparent difficulty, and keeping clear of the medical profession; and e) evidence which her Honour accepted (principally from Dr Searle) shows that the future will not be so rosy. 14 Item 1 is general damages in the amount of $180,000. The appellant in each appeal submitted this was too high. I do not think so. The accident led to 14 weeks in hospital. The catalogue of Mr Fletcher's injuries is as follows: a depressed fracture of the left zygoma; facial bone fractures; injuries to jaw (including dislocation of mandible); fracture to the left clavicle; fractured left ribs; fractured left radius; fractured left femur; fracture to the right pubic ramus; fracture to L5 vertebrae and neighbouring soft tissues; a fractured coccyx; damages to the left hip; diabetes insipidis; head injury, including loss of consciousness; injury to the left knee (probably requiring an operation); laceration to the nose; and restriction of movement to the left eye. Not surprisingly, all these disabilities led to an early retirement from the Navy and caused (and still to some extent causes) a considerable amount of pain. 15 Item 3 is interest on past general damages of $22,400. Granted the correctness of her Honour's figure for general damages, I see nothing wrong with this. 16 Item 4: past wage loss $39,540 and interest thereon $6,174: There is no doubt as to the correctness of her Honour's conclusion that if Mr Fletcher had remained in the Navy he would have been promoted if uninjured, and at the date of the hearing would probably have been a Chief Petty Officer. Her Honour reached the figure of $39,540 by aggregating these amounts: loss of income by reason of missed promotion from the date of the accident, ie 7 September 1984, to 22 September 1995 (the date on which he left the Navy) - $1,000, which seems modest enough; diminution of net weekly income: the average amount of $100 per week for 164 weeks ie. $16,400 which seems to me a trifle on the light side, as the evidence disclosed that the difference between a Chief Petty Officer's salary and that earned by Mr Fletcher in his present employment for the year ending 30 June 1998 was $348 per week; and loss of service-related benefits @ $135 x 164 weeks - $22,140, which was calculated in a manner I cannot criticize. And, of course, if the figure of $39,540 is correct, as I think it is, the figure of $6,174 must also be correct. 17 Items 6 and 7: past domestic assistance of $32,670 and interest thereon of $18,428. The need for domestic assistance was clearly proved, and bearing in mind that no more than the need matters, I can see nothing wrong with either item 6, or the interest thereon in item 7. 18 Items 8 and 9: past handyman assistance of $24,024.00 and interest thereon of $13,544. On the face of it this seems excessive. Mr Fletcher claimed three hours per week for 14 years, but such a period would include 3 years at sea, when the need for a handyman's assistance is scarcely likely. However, her Honour was not misled. Noticing the weakness in his case she extended him only one half of what he sought, 1.5 hours for 14 years. That mode of doing things would remove the discrepancy. I would not interfere. 19 Item 12 : future treatment pharmaceuticals, $74,500.00. Apart from the $4,860 mathematical error conceded by the plaintiff, the rest of the figure is acceptable if one accepts, as her Honour did, the gloomy prognostications of Dr. Searle. 20 Item 13: future handyman and domestic assistance $137,629. Again, on her Honour's primary findings of fact this figure seems to me to be unassailable. Her Honour found that most household jobs (like vacuuming and painting) seem to be beyond him, as do gardening jobs, and cooking jobs. Meanwhile his wife, who might normally be expected to do them, is herself incapacitated by some work-related injury. 21 Item 14: future economic loss $272,879. Again, on her Honour's assumptions, I think this figure cannot be attacked. These assumptions are: (a) if uninjured Mr Fletcher would have continued to work in the Navy until he was 55 years old and elsewhere until age 65; (b) as it is, he cannot, in all probability, look forward to being employed by anyone else after age 55; (c) there is a large discrepancy between what he is earning and what he would be earning in the Navy if uninjured; and (d) on Dr. Searle's report, his chances of continuous employment are rapidly diminishing. 22 In my view the appeal should, except for the sum of $4,860, be dismissed with costs. 23 PRIESTLEY JA: I agree with Meagher JA's view of this case and his reasons, except that I doubt that fatigue played any part in the mistake made by Mr Fletcher about the direction of the road. The evidence shows, in my view, that the length of time spent riding the cycles by the two riders in company, and the breaks they took from riding, were sensible and likely to have left them in good condition for riding at the time of the accident. This difference from Meagher JA's reasons does not affect my overall agreement with his conclusions. 24 In my opinion the orders proposed by Meagher JA should be made. 25 HANDLEY JA: These reasons need to be read in conjunction with the reasons for judgment of Meagher JA. 26 On 7 September 1984 about 7 pm the respondent, Mr Jeremy Fletcher, was injured when he rode his motor cycle off the southbound carriageway of the Hume Highway on a right hand bend near Jugiong. The southbound carriageway immediately before the bend was aligned with Benangaroo Road which had formerly been the site of the Hume Highway but had become a feeder road which served a single property occupied by 4 families with 8 vehicles. Vehicles travelling north along Benangaroo Road at night with their lights on could appear to southbound vehicles on the Highway to be travelling north on the Highway itself. The only artificial lighting on this section of the Highway was that provided by traffic. 27 The Roads and Traffic Authority (RTA), or its predecessor, had taken some steps to warn motorists approaching from the north, as Mr Fletcher did, of the presence of the bend. A curve sign and an advisory speed sign had been erected before the start of the bend. The signs were retro-reflective and stood on a post some distance off the left hand side of the carriageway. The post was shown in photographs but its precise location was not established. The bitumen carriageway had a continuous white painted edge or fog line, a few inches in from the edge of the bitumen, and the centre of the carriageway was marked with a broken white line. Both were clearly visible in photographs taken shortly before and shortly after the accident. The trial Judge also found that guide posts had been erected at intervals on the bend with red reflectors facing southbound traffic. The photographs showed that those guide posts were white. 28 Fletcher had no recollection of the accident but a companion, Mr Peter Clarke, who was riding a motor cycle about 25 metres behind Fletcher, gave evidence of what had happened. Mr Clarke observed the lights of a car travelling north on Benangaroo Road, and thought that it was travelling towards them on the Hume Highway. He saw Mr Fletcher ride ahead in the direction of the lights of this vehicle without braking or changing direction. Mr Clarke became aware of the bend when he saw the orange coloured plastic webbing illuminated in the headlight of Mr Fletcher's motor cycle immediately before it went through the webbing. He had not previously been conscious that there was a right hand bend in the Highway at this point. Mr Clarke was able to safely negotiate the bend and bring his motor cycle to a stop before going to render assistance to Fletcher. 29 This bend in the Hume Highway and its alignment with Benangaroo Road were the result of work undertaken by the predecessor of the RTA some time between 1960 and 1964. The witnesses at the trial included a Mrs Winkler, the driver of the approaching car, who lived on the property serviced by Benangaroo Road, Mr Reid, the local tow truck operator, and Police Inspector Norton who had been stationed at Jugiong between 1982 and 1986. There was no suggestion from any of these witnesses that there had been any previous accidents of the kind suffered by Fletcher on this part of the Highway during the previous 20 years. 30 The trial Judge found that Mr Fletcher had been misled by the lights on Mrs Winkler's vehicle into believing that the Hume Highway ran straight ahead to the south and that her vehicle was travelling north on the Highway. Northbound traffic on the Highway would have alerted Mr Fletcher to the existence of the bend but there was none. If he had arrived a few seconds later Mrs Winkler's vehicle would have been moving west as Benangaroo Road turned to enter the Highway at a right angle further along the bend. 31 An accident such as that suffered by Mr Fletcher thus required a combination of southbound traffic on the Highway approaching the bend at night, northbound traffic on Benangaroo Road, and the absence of northbound traffic on the Highway. There is no reason for thinking that this combination would not have occurred over the 20 years or so before September 1984 but there was no evidence of any previous accident of this kind. It would be reasonable to suppose that if such accidents had occurred they would have come to the notice of nearby residents, the police and the local tow truck operator. 32 In 1984 the Hume Highway was under the control of the RTA. For some time prior to and during September that year Leighton Contractors Pty Ltd (Leighton), under contract with the RTA, had been carrying out earthmoving and road construction works for the conversion of this section of the Highway to dual carriageway. The extensive nature of the earthworks in the vicinity of this bend is shown in the photographs. The work required the construction of a new culvert between Benangaroo Road and the Highway on the southern side of this right hand bend. This had involved the excavation of a pit close to the edge of the carriageway which was 6 feet deep and wide enough to accommodate a utility truck with its driver and passenger doors wide open. 33 Leighton had erected webbing along the gravel edge of the southbound lane of the Highway on this section of the curve. The webbing was supported by star pickets erected in front of the white guide posts. It was clearly visible in daylight but was not retro-reflective at night. It appears to have obscured both the guide posts and their red reflectors because neither Mr Fletcher nor Mr Clarke were alerted to the presence of the bend. They also failed to notice either the fog and centre lines on the carriageway, or the curve and advisory speed signs on the post at the side of the Highway. The appellants submitted that the painted lines and signs were sufficient to discharge their duties of care and that the accident was caused by Mr Fletcher's fatigue and his failure to keep a proper lookout. In the alternative they submitted that his contributory negligence was not properly reflected in the apportionment of 10% made by the trial Judge. 34 I have not been persuaded that the trial Judge fell into any error on these issues. A motor cycle rider has to keep a look out for approaching traffic, and Mrs Winkler's car was not far away. Both riders were acting reasonably in keeping her car under observation, naturally supposing that by doing so they were also keeping their motor cycles on their correct side of the Highway. Mrs Winkler did not say in her evidence that Mr Fletcher's headlight was on high beam, and the evidence of Mr Clarke that he saw the webbing in Mr Fletcher's headlight immediately before he crashed through would indicate that his light was on low beam. This would be appropriate in view of the approach of Mrs Winkler's vehicle. A motor cycle has only a single headlight, and it is not surprising that Mr Fletcher and Mr Clarke failed to notice the curve and advisory speed signs. It appears from the photographs that the post with these signs was some distance from the edge of the gravel verge where the Highway was still straight. It was not established that this post was near the line of sight of a motor cycle rider. 35 Before Leighton commenced construction work, drivers approaching this bend at night from the north were warned by the red reflectors on the guide posts in front of them that the Highway made a substantial curve to the right. A driver looking ahead at night and seeing a car approaching along Benangaroo Road also had the reflectors in front of him and was made aware of the right hand bend. Mr Jamieson, the traffic expert called for the plaintiff, whose evidence on most issues was accepted by the Judge, said (Black 158) that these reflectors can be seen at night at long range "much further than 60 metres" and that at night they "define the curve". This would account for the absence of previous accidents of this type over a long period and explains the occurrence of the present accident within a short time after the guide posts and reflectors had been covered by the webbing. 36 I agree therefore that the appeals from the findings of the trial Judge on negligence and contributory negligence should be dismissed. I also agree that the appeals from the Judge's assessment of damages should fail and substantially for the reasons given by Meagher JA. 37 The remaining issue arises on the RTA's appeal against the contribution ordered as between it and Leighton. The Judge apportioned two thirds of the responsibility for this accident to the RTA and one third to Leighton. Leighton was carrying out the road construction work under a written contract with the RTA dated 16 March 1984 and her Honour reviewed the relevant clauses. 38 The RTA employed a Mr Kensit as Works Inspector responsible for supervising Leighton's performance of the contract over the section 52-57 kms south of Yass. During the period leading up to the accident, he was on duty between 7 am and 5 pm daily while work was in progress and it was his practice to drive the 5 kms length of the Highway adjacent to the works each day. He was available but was not called by the RTA as a witness. The RTA also employed an Inspector at its Maintenance Office Yass, whose duty it was to inspect all the roads in the Yass area, including this part of the Hume Highway, but he was not called either. 39 The RTA had decided that the access to Benangaroo Road in its existing configuration should remain open during the carrying out of the works. The Judge found that it then knew or ought to have known that additional signage in the form of retro-reflective chevron markers was necessary at night to prevent a driver being misled by the alignment of Benangaroo Road, particularly when a substantial excavation was to occur in close proximity to the Highway. She found that the webbing on the bend erected by Leighton did not provide adequate warning for southbound motorists, but had obliterated or partially obscured the red reflectors on the guide posts. 40 The RTA, as a highway authority which had authorised the carrying out of work on or near the highway, had what has been referred to as a non-delegable duty to users of the highway and could not avoid this duty by delegating its performance to a competent independent contractor. A highway authority is therefore vicariously responsible for the negligence of its independent contractor. See Hardaker v Idle District Council [1896] 1 QB 335 CA. An innocent employer vicariously liable for the negligence of an independent contractor is entitled to be indemnified by the contractor against his liability to a third party. See Lister v Romford Ice & Coal Storage Co Ltd [1957] AC 555; FAI General Insurance Co Ltd v A R Griffiths & Sons Pty Limited (1997) 71 ALJR 651. 41 The Judge referred to a number of the clauses in the contract but in my judgment the only relevant provisions were cl 15 "Protection of Persons & Property" and cls 23 and 24 dealing with the authority of the RTA's Superintendent and his representatives, in the General Conditions of Contract. Clause 15 provided, so far as relevant: "The contractor shall provide, erect and maintain all barricades, guards, fencing, … signs and lighting … … necessary … for the safety and convenience of the public … The contractor shall avoid interference with or damage to property on or adjacent to the site …". 42 Clause 23 provided that the work should be executed in accordance with the contract, and any directions from the Superintendent pursuant to its provisions and cl 24 enabled the Superintendent to delegate his powers, duties, discretions and authorities to representatives. 43 The Judge referred to special condition 20 which dealt with the opening of works to traffic, cls B4 and B5 in Part B of the Technical Specification "Provision for Traffic" and clauses in the Specification for Control of Traffic at Road and Bridge Works. Special condition 20 was not relevant because no question of opening works to traffic at this bend had arisen before the accident. The scope of Part B of the Technical Specification was defined in cl B 1.01 as covering "the requirements for staging of the works for continuity of traffic flow, the design and construction of sidetracks and the provision of flagmen, sign posting, control devices, lights, barriers and the like to facilitate safe traffic movement and protect persons and property". It seems that Part B did not apply because the works did not directly affect traffic flow on either the Highway or Benangaroo Road. Clause B4 itself only applied to side roads and private access and was not relevant in any event. Clause B5 gave the Superintendent power to order the contractor to provide "additional traffic control devices". 44 The Specification for Control of Traffic at Road and Bridge Works provided in cl 1 that such works "require the provision of warning and control devices to inform drivers of hazards, to guide traffic safely past temporary obstructions and to protect workmen". A further provision in this clause specifically directed the Contractor's attention "to his responsibilities for the protection and regulation of traffic under cl 15 of the General Conditions of Contract". Clause 11 provided that signs to be used for the warning and guidance of traffic at night shall be reflectorized and the reflecting material should provide a high standard of reflectance and durability. Clause 14 provided that all traffic control devices shall be maintained in good order and in the correct positions day and night and signs shall be clear and legible at all times. This specification appears to have no application as the work near this bend was not being undertaken "on roads or bridges". 45 Clause 39 of the General Conditions conferred a relevant power on the Superintendent to issue directions to Leighton. It provided that if at any time the Superintendent "determines that any remedial, protective … or other like work is urgently necessary … to prevent personal injury to or the death of any person the Superintendent shall, as soon as practicable thereafter, notify the contractor of that determination and the contractor shall carry out the work immediately on receipt of that notice …". 46 The Superintendent and his representatives did not exercise this or any other power either to require Leighton to provide additional warning devices on this bend for the protection of southbound traffic or to move the webbing behind the guide posts. The RTA did not rely on the contractual indemnity provided for in cl 18 of the General Conditions or Leighton's obligation under cl 19 to maintain public risk insurance for the benefit of the RTA as well as itself. 47 The RTA's cross-claim against Leighton which sought contribution or indemnity did not plead the terms of the contract and their breach, but simply sought relief pursuant to the Law Reform (Miscellaneous Provisions) Act 1946 (the 1946 Act). However at the trial it was permitted, without objection, to tender the contract and rely upon the relevant clauses. 48 Clause 15 of the General Conditions made the contractor responsible for the provision of all signs and lighting necessary for the safety of the public, and the contractor was also required to avoid interfering with property on or adjacent to the site. This included the existing white guide posts with red reflectors which faced southbound traffic on this bend. Leighton interfered with these posts by erecting webbing in front of them facing the oncoming traffic. Even if this part of the clause did not apply, the erection of the webbing between the guide posts and the traffic certainly created a need for other signs or lighting to be provided for the protection of southbound traffic at night. 49 Her Honour, in finding that the RTA should have known, when letting the contract, that additional signage was required on this bend at this stage of the work, appears to have overlooked the fact that the existing signage and reflectors had proved to be perfectly adequate. In my judgment reasonable care on the part of the RTA did not require that it direct Leighton, at this stage of the work, to provide signage and reflectors in addition to those already in place to warn southbound traffic of the existence of the bend. As Mr Jamieson said the existing reflectors on the guide posts were visible at night at long range and defined the curve for southbound motorists. 50 Her Honour was therefore in error in finding that the RTA had been at fault in this respect and that this was the primary cause of the accident. Her Honour found that Leighton had also been at fault in covering the guide posts and reflectors with the webbing and perhaps in demolishing some of the guide posts and failing to replace them. She considered that in this way Leighton had "contributed" to the accident. However in my judgment the covering up of the guide posts was the relevant and critical change in the existing arrangements for warning southbound traffic at night and was the major cause of Mr Fletcher's accident. 51 The Judge did not in terms rely on the failure of RTA's inspectors to notice that the guide posts and reflectors had been obscured by the webbing and to direct Leighton to make appropriate arrangements to warn southbound traffic either by moving the webbing, or by other means such as the provision of retro-reflective chevron markers. She had however noted that the RTA's works inspector was available but was not called. This Court should draw the inference that the works inspector could and should have noticed that the guide posts and reflectors had been obscured by the webbing and directed Leighton to do something about it. 52 However there was no basis for a further inference that either or both of the RTA's inspectors had actually noticed that the webbing obscured the reflectors and, although aware of the consequent risk to southbound traffic, had failed to take any action to remove the risk. The RTA was at fault but Leighton were responsible under the contract for providing and maintaining the signs and lighting necessary for the safety of the public and was in breach of its contract. 53 As the RTA was not free from personal blame, it was not entitled under the Act to an apportionment from its contractor which indemnified it against all liability to Mr Fletcher. See Voli v Inglewood Shire Council (1963) 110 CLR 74, 110 per Windeyer J. If the RTA had included a claim for breach of contract in its cross-claim, it may well have been entitled to recover damages which would have indemnified it against its liability to Mr Fletcher. Its contributory negligence would not have been a defence in whole or in part to such a claim. See Astley v Austrust Ltd (1999) 197 CLR 1. There is no need to consider the effect of the subsequent legislation which has some retrospective operation. 54 A tortfeasor who does not claim damages for breach of contract against a concurrent tortfeasor, but only seeks contribution or indemnity under the Act, is confined to its claim under the Act. See RTA v Scroop & Ors (CA u/r 30/9/98 per Fitzgerald JA at par 14.) However the contract remains relevant in assessing the responsibility of both tortfeasors, as between themselves, for the damage suffered by the plaintiff. In my judgment the responsibility of Leighton was significantly greater than that of the RTA. Leighton was guilty of misfeasance in the form of positive acts which interfered with the existing arrangements for warning southbound traffic. The white guide posts and the reflectors must have been obvious to those involved in the erection of the webbing. The reflectors faced southbound traffic and it should have been obvious that the webbing would prevent southbound motorists seeing the reflectors at night. 55 RTA's negligence was by way of omission in that its inspector failed to notice the negligence of Leighton and do something about it. However he had to supervise road works being carried out by Leighton over a distance of up to 5 kms, and one may infer that he knew that Leighton were contractually responsible for ensuring by signage or otherwise that their activities did not create risks for the public. 56 The Judge referred at some length to the decision of this Court in RTA v Scroop (u/r 30/9/98). The RTA had employed Bitupave, an independent contractor, to carry out resurfacing work on the Hume Highway north of Wagga. This created a danger at night for vehicles travelling on the Highway and Bitupave failed to make adequate provision to warn such traffic. The Court found that Bitupave lacked the competence or experience needed for assessing the risks to traffic created by its work, and the measures required for their elimination, that the RTA had this competence and had been directly involved in material decisions and activities. Moreover as Fitzgerald JA said (par 14): "Its culpability was exacerbated by its failure to respond to the police request to improve the markings on the edge of the road following an earlier accident". The RTA had been told by the police about an accident of the same kind as that later suffered by Mr and Mrs Scroop but had done nothing. The RTA's culpability was therefore significantly greater than in this case where the RTA received no such warning. The decision in Scroop does not support the Judge's apportionment. 57 In general a party to a contract is entitled to rely on the warranties and other terms included in the contract for his benefit, and the party in breach cannot rely on a breach of duty owed by the innocent party to another. This principle was established in Mowbray v Merryweather [1895] 2 QB 640. The plaintiff employer had purchased tackle from the defendant with the benefit of the warranties of quality implied under the Sale of Goods Act, and had used the tackle in the course of his business. The tackle broke and an employee who was injured recovered damages from the employer. The defect in the tackle could have been discovered by the employer upon reasonable examination but the employer had not taken this precaution and was found liable to his employee for this negligence. The employer sued the supplier for breach of warranty claiming as the damages the amount he had been compelled to pay to his injured employee and recovered. Lord Esher MR said at 643: "It is true that [the worker] could not have recovered unless, as between himself and the plaintiffs, the plaintiffs had been guilty of want of care; but the plaintiffs say that, as between themselves and the defendant, they were not bound to examine the chain because the defendant had warranted it sound, that they had a right to rely on that warranty, and did rely on it, and that the defendant cannot rely on a duty to use due care which was owed, not to him, but to the workman". 58 This decision was followed by Sugerman J in Mayo v Florida Hotels Pty Ltd (1965) 65 SR (NSW) 41, 49-51, whose dissent was upheld on appeal in Florida Hotels Pty Ltd v Mayo (1965) 113 CLR 588, 597-9 per Barwick CJ, and at 601-2 per Windeyer J. An architect, bound by contract with the building owner to supervise the work of the latter's employees, no builder having been engaged, was held liable for breach of contract in failing to provide that supervision which resulted in one of the employees suffering personal injuries. The measure of damages were the damages payable by the building owner to the injured worker. 59 The decision in Mowbray v Merryweather was approved but distinguished in Lambert v Lewis [1982] AC 225, 275-7. The buyer claimed to be indemnified by the seller against his liability for damages to a third person caused by the breach of a warranty of quality. Lord Diplock held that, although the buyer was prima facie entitled to rely upon the warranty, he could not do so having become aware that the goods were defective. 60 The question of contribution between concurrent tortfeasors depends on the responsibility of each for the damage suffered by the plaintiff, and this raises different questions from those which would arise in an action between them for breach of contract. Thus in Florida Hotels Pty Ltd v Mayo the employer who was indemnified by an award of damages for breach of contract against the architect only recovered 20 percent contribution under the 1946 Act. (Noted without comment by Barwick CJ: 113 CLR at 591-2, and by Sugerman J: 65 SR (NSW) at 53.) 61 In my judgment, for the reasons I have endeavoured to express, the apportionment of the trial Judge as between these defendants miscarried and this Court is entitled to intervene. The major responsibility was that of Leighton in terms of both culpability and causative potency. It had actively interfered with the existing safety arrangements on this bend, without making any provision for other safety arrangements in their place. It was not shown to have been lacking in relevant expertise, as Bitupave had been in Scroop. It had undertaken a contractual obligation to the RTA to provide whatever precautions were needed to safeguard the travelling public. On the other hand the RTA's negligence was by omission, it having failed to notice and respond to the obstruction created by the webbing. 62 In these circumstances appellate intervention in accordance with the principles applied in The McGregor [1943] AC 197, 198-9, 201; and A V Jennings Construction Pty Ltd v Maumill (1956) 30 ALJ 100 is required. I would allow the appeal by the RTA on this issue and substitute an apportionment of 33 1/3 percent to the RTA and 66 2/3 percent to Leighton accordingly. I would make the following formal orders:

(1) Both appeals against the judgment entered in favour of the plaintiff Jeremy Andrew Fletcher dismissed with costs;

(2) Appeal by the Roads and Traffic Authority of New South Wales against the apportionment of responsibility as between it and Leighton Contractors Pty Limited allowed with costs;

(3) Apportionment of responsibility by the trial Judge set aside and in lieu thereof substitute an apportionment of 33 1/3 percent to the Roads and Traffic Authority and 66 2/3 percent to Leighton Contractors Pty Limited, such apportionment to include the plaintiff 's costs of the trial payable by the defendants, but not the costs payable to the plaintiff of their unsuccessful appeals against the judgment in his favour. ******

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