Terry Turner v Australian Associated Motor Insurers Ltd & The Roads and Traffic Authority of NSW

Terry Turner v Australian Associated Motor Insurers Ltd & The Roads and Traffic Authority of NSW - [2006] NSWSC 1292 - NSWSC 2005 case summary — Zoe

[14]

5 The first defendant denies Ms Clarke was negligent and claims that the plaintiff's injuries were entirely due to his own negligence, or were materially contributed to by his negligence, in that he failed to inspect the vehicle and ascertain the condition of the tyres, drove at an excessive speed in the circumstances and failed to comply with the relevant speed signs. The first defendant disputes that Ms Clarke was in a better position than the plaintiff to appreciate the condition of the rear tyres. Thus, the issues in relation to the first claim are the extent of Ms Clarke's and the plaintiffs knowledge of the condition of the tread on the rear tyres, and the contribution, if any, of the speed of the vehicle, together with the condition of the road's surface, to the vehicle's loss of traction. 6 Substantially the same issues arise on the plaintiff's second claim, in so far as the second defendant also denies negligence and alleges contributory negligence on the part of the plaintiff. The second defendant contested the plaintiff's claim that the condition of the relevant stretch of road was inherently dangerous and denied actual knowledge of the risks posed by the road, assuming they existed. The plaintiff's argument was premised upon certain physical features of the road and its accident history. The first defendant joins with the plaintiff on this aspect of the plaintiffs case. 7 Heggo's corner was the site of a number of motor vehicle accidents since 1996, some of which were constituted by vehicles sliding off the roadway, mostly when the surface was wet. This stretch of road was well-known to local police and submissions had been made by a local police officer to the Shoalhaven Traffic Committee in February 1999, detailing that history. The plaintiff's accident was the second fatality. The second defendant was aware of SCRIM readings (a measurement of skid resistance) taken in the vicinity of the corner in 1997, 1999 and 2000 but had determined that those readings alone did not call for any remedial action. The second defendant relied primarily on its own accident statistics to rebut any suggestion that Heggo's corner constituted a priority "black spot" in the State. 8 However, after the plaintiff's accident, the second defendant caused the road to be re-surfaced and reconstructed, and the general speed limit was reduced to 80 kph. Thus, the plaintiff maintains that the objective evidence points to actual knowledge in the second defendant of the features of the road that rendered it unsafe. Moreover, according to the plaintiff, the second defendant effectively acknowledged as much by its remediation of the road after the plaintiffs accident.

[17]

11 Ms Clarke purchased the vehicle for $500 ($400 according to the plaintiff) from a Mr McIntosh who had owned the car for approximately 8 or 9 months. He had purchased the vehicle in late 1999 in an unregistered state but had registered the vehicle in February 2000 after carrying out some minor mechanical repairs. At no stage during his ownership did he replace the rear tyres of the vehicle. He did however replace the front tyres at some time prior to the sale to Ms Clarke, because they appeared to him to be a "bit bald". He maintained that all tyres were 'in good condition in July 2000. 12 According to the plaintiff, Ms Clarke did not service the vehicle or carry out any repairs during the six months of her ownership. Ms Clarke primarily drove the vehicle in the course of her job as a domestic cleaner, in addition to social visits in the South Coast area. Mr McIntosh thought that she did not own a vehicle whilst he knew her in Scotland, although she did regularly drive a vehicle that was supplied to her by her employer, a restaurateur. The plaintiff gave evidence that Ms Clarke was employed in that capacity over a 13 year period. 13 Senior Constable Stone, Senior Constable Cooper and Det Sgt Benny all attended at the scene of the accident. Senior Constable Stone measured the tread depth on the rear tyres in the presence of Senior Constable Cooper. Senior Constable Cooper's evidence was that Senior Constable Stone had measured, using an instrument for that purpose, a tread depth at 1 mm on the passenger side rear tyre and that the driver's side rear tyre was "smooth", that is, there was so little tread depth that the measuring tool was incapable of giving a reading. 14 It is not in dispute that both of the rear tyres had less than the legal limit of tread, although one or both may have had some tread pattern which was visible to an observer. Both Snr Const Cooper and Det Sgt Benny described the rear tyres in terms of having visible tread pattern, although Snr Const Cooper's own observations of the rear tyres led him to the view that they were in an unroadworthy condition. Det Sgt Benny saw the vehicle and the tyres after sunset, so that the weight to be attached to his assessment is questionable (Mr Jamieson, the plaintiff's expert traffic engineer, discounted Det Sgt Benny's view on that basis, preferring the measurements taken by Sen Const Stone). According to Mr Keirnan, a consultant civil engineer and an expert witness on behalf of the first defendant, the appearance of tread on the outer edge of a tyre is nonetheless consistent with the dissipation of tread down the middle of the tyre, that is, on its running surface. Exhibit 2, a photograph of the rear of the vehicle at the scene of the accident, depicts some tread on the rear driver's side tyre, but the distance of that wheel from the camera and the debris and paint adhering to the tyre (Mr French's vehicle was carrying paint) make it difficult to draw any reliable conclusions. Const Charlton gave evidence that, generally speaking, a tyre would be described as "smooth" or "bald" where there was a complete absence of tread.

[20]

17 At the outset, I would reject the contention that the plaintiff's knowledge and/or experience of motor vehicles generally, and of this vehicle in particular, assists in determining Ms Clarke's knowledge or imputed knowledge of the condition of the rear tyres. At the end of the day, she was the owner of the vehicle and responsible for its maintenance. She had purchased it for a relatively paltry amount from her own funds, without the plaintiff's knowledge, seemingly on impulse. No doubt, she did so in order to preserve a measure of independence from the plaintiff. It appeared that she was entirely capable of managing her own affairs, having emigrated from Scotland to live with the plaintiff, whom she had come to know in about 1995 whilst travelling in Germany and through later correspondence. She had lived with the plaintiff since early 2000, and there was no evidence to suggest that she had come to rely upon him in such matters as the maintenance of her vehicle within that time. Indeed, the evidence suggested to the contrary. 18 The presence of visible tread on a tyre says nothing about the capacity of the tyre to maintain traction with the surface of a road under various conditions. The setting of minimum standards regarding tread depth is designed to ensure, as far as possible, that vehicles driven within the prevailing speed limits, which are otherwise mechanically sound, do not pose a threat to others on and near the road through loss of traction with the roadway. The obligation upon the owners of vehicles is to ensure that tyres meet those minimum standards, regardless of how the tyres might appear upon a cursory inspection. 19 Ms Clarke must have been aware of the need to periodically check the condition of the tyres, particularly in circumstances where she had purchased a cheap second-hand vehicle from a friend who had used it as his primary mode of transport over a period of at least 6 months. As at the date of the accident, Ms Clarke had been driving the vehicle for approximately 6 months. According to Mr McIntosh, they had no discussion about the tyres on the vehicle when Ms Clarke bought it. In those circumstances, it may be inferred that Ms Clarke made no inquiries as to the precise condition of the tyres at that time. She was not entitled therefore to disregard her obligations as the owner of the vehicle and assume that the tyres would continue to be roadworthy over a period of six months. 20 The vehicle was to be re-registered on 28 January 2001, that is, 3 weeks after the accident (Ex 11). It is reasonable to conclude that Ms Clarke would have turned her mind in late 2000 or early 2001 to the need to ensure that the vehicle was roadworthy. She must have known that the tyres were subject to wear and tear, and ought to have known that the absence of serviceable tread on a tyre potentially rendered the vehicle unroadworthy and therefore, unable to be registered and unsafe. If she was not able to determine whether the tyres complied with minimum standards, it was incumbent upon her to consult someone who could provide that advice. A proper inspection of the rear tyres, that is, one that was more than a cursory glance at the outer edges of the tyres, would have readily revealed the relatively smooth surface of that part of the tyres in contact with the road and the absence of legal tread. There was nothing hidden or obscured in the nature of the defect. 21 Regardless of the pending re-registration, the ordinary prudent owner of a motor vehicle has an obligation to ensure that his/her vehicle is in a roadworthy condition and therefore safe for the transport of him/herself and others : Meth v Moore (1982) 63 FLR 309. A reasonable person in Ms Clarke's position would have undertaken or caused to be undertaken regular inspections of the vehicles tyres in order to satisfy herself that the vehicle was safe to drive. Such inspections imposed no great burden upon her, as the owner of the vehicle, and there was no obstacle to the replacement of tyres exhibiting insufficient treat, other than financial cost. The potential consequences of a failure to maintain the vehicle far outweighed any such cost. The risk that the absence of "legal" tread on the vehicle's rear tyres might affect the management of the vehicle, thereby leading to a collision with other road users and resultant harm to those within and outside the vehicle, was foreseeable and not insignificant. 22 The plaintiff has established negligence in Ms Clarke for which the first defendant is liable. However, whether that negligence caused or contributed to the harm suffered by the plaintiff as a result of the accident is more problematic. The resolution of that question lies within a body of evidence touching upon the interrelationship between the speed of the Mazda, the poor condition of the tyres and the skid resistance of the road surface. Given that the issue of causation is common to the plaintiff's claims against the first and second defendants, it is appropriate to deal with the question of negligence on the part of the second defendant before returning to a consideration of that issue.

[23]

25 In addition to the general principles relating to the existence, scope and breach of a duty of care on the part of the second defendant, it is necessary to consider the principles set out in s 42 of the Civil Liability Act, namely :- (a) the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions, (b) the general allocation of those resources by the authority is not open to challenge, (c) the functions required to be exercised by the authority are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate), (d) the authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceedings relate. 26 The above considerations reflect the majority judgment (Gaudron, McHugh and Gummow JJ) in Brodie v Singleton Shire Council (2001) 206 CLR 512 at 577-8 and 580-581 :- Authorities having statutory powers of the nature of those conferred .... upon the present respondents to design or construct roads, or carry out works or repairs upon them, are obliged to take reasonable care that their exercise of or failure to exercise those powers does not create a foreseeable risk of harm to a class of persons (road users) which includes the plaintiff. Where the state of a roadway, whether from design, construction, works or non-repair, poses a risk to that class of persons, then, to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk. If the risk be unknown to the authority or latent and only discoverable by inspection, then to discharge its duty of care an authority having power to inspect is obliged to take reasonable steps to ascertain the existence of latent dangers which might reasonably be suspected to exist. The perception of the response by the authority calls for ...'a consideration of various matters; in particular, the magnitude of the risk and the degree of probability that it will occur, the expense, difficulty and inconvenience to the authority in taking the steps described above to alleviate the danger, and any other competing or conflicting responsibility or commitments of the authority. The duty does not extend to ensuring the safety of road users in all circumstances. In the application of principle, much thus will turn upon the facts and circumstances disclosed by the evidence in each particular case. ........................................................................... The discharge of the duty involves the taking by the authority of reasonable steps to prevent there remaining a source of risk which gives rise to a foreseeable risk of harm. Such a risk of harm may arise from a failure to repair a road or its surface ... In dealing with questions of breach of duty, whilst there is to be taken into account as a "variable factor" the results of "inadvertence" and "thoughtlessness", a proper starting point may be the proposition that the persons using the road will themselves take ordinary care. ...........................................................................The formulation of the duty of care includes consideration of competing or conflicting responsibilities of the authority. In the circumstances of a given case, it may be shown that it was reasonable for an authority to deal in a particular priority with repairs in various locations. The resources available to a road authority, including the availability of material and skilled labour, may dictate the pace at which repairs may be made and affect the order of priority in which they are to be made. It may be reasonable in the circumstances not to perform repairs at a certain site until a certain date, or to perform them after more pressing dangers are first addressed. Even so, it may well be reasonable for the authority to exercise other powers including, for example, by erecting warning signs, by restricting road usage or, in extreme cases, by closing the road in question. 27 The second defendant does not dispute the existence of a duty of care, rather it is the scope of that duty which is at issue : Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431. The second defendant contends that the risk of an accident on a section of wet road, marked with signs warning of a slippery surface and advisory speed signs, for a vehicle with inadequate tyre tread exceeding that speed, is an obvious risk that the plaintiff has not rebutted. 28 I turn to the question whether the condition of the road posed a danger to vehicles and their occupants as alleged by the plaintiff and, if so, whether the second defendant had actual knowledge of that danger. In the event that the statutory immunity is unavailable to the second defendant, the findings in relation to these issues become relevant to a determination of the extent to which the danger was obvious or latent and therefore, to the extent of the breach of duty, if any, by the second defendant in failing to take remedial action at an earlier time, regarding the surface and geometry of the road. Those findings are in any event relevant to the extent of the breach of duty alleged by the plaintiff in terms of the failure to ' erect appropriate warning signs and the failure to impose appropriate speed limits.

[24]

The Condition of the Road at the Time of the Accident - Curve Geometry, Signage and SCRIM Data. 29 The relevant section of the Princes Highway at Jerrawangala consisted of single lanes for south and northbound traffic, separated by double unbroken lines. There was no speed limit sign in the area in January 2001, however it was common ground that the posted speed limit was 100 kph. The area was classified as rural. Senior Constable Stone (Ex B) described the surface of the road as bitumen, "in very good condition". The edges of the road were marked with painted white lines, commonly referred to as a "fog line". There was no street lighting. 30 Senior Constable Stone further described the geography of the road for traffic travelling in a northerly direction. Her statement of 27 April 2001 included the following, "the road commenced a fairly steep incline. There was a moderately sharp right-hand bend, with a clearly posted 65kph advisory sign before a short straight and then a sharp left-hand bend." 31 According to the report of Mr John Jamieson of 9 July 2003 (Ex A) and the police photogrammetry plan, the grade of the incline was approximately 6% (7.5% according to RTA drawings), whilst the approximate curve radius of the right-hand bend was 140-150 m, with a superelevation of about 8% (variable). The incline prior to the right-hand bend was significant, in so far as northbound vehicles would generally accelerate up the hill and into the curve, thereby increasing friction demand between the vehicle and the road surface. The traffic volume on the road was about 6000 vehicles per day. 32 Whilst there was some variation in the measurement of the curve radius as between Mr Jamieson, Mr Keirnan and Mr Fishburn (a road engineering consultant called on behalf of the second defendant), Mr Keirnan agreed that it was a "tight curve" and Mr Fishburn accepted that a major road with a design speed of 100kph required a minimum curve radius of 460m, that is, more than three times less than the curve under consideration. 33 On 12 December 2000, that is about three weeks before the accident, the site was included in a stretch of road between Twelve Mile Road and Sussex Inlet Road which had undergone friction testing by the second defendant using a SCRIM truck (an acronym for Sideways-force Coefficient Routine Investigation Machine). The machine measures the sideways friction co-efficient (SFC) under wet conditions with smooth tyres at a speed of 50kph. The readings obtained demonstrated that for northbound traffic, there were adequate friction supplies (SFC x 100) to both the left (58) and right (66) wheel track at the Yerriyong service road, about one and a half kilometres north of Twelve Mile Road. However, 100 m further north and approximately 50 m before the entrance to the right-hand bend, the friction supplies dropped significantly in both the left (39) and the right (52) wheel track. A further 100 m on and about 50 m prior to the point of impact, the friction supply was seen to drop a further three points in each of the left and right wheel track, giving a reading of 36 and 49 respectively. 34 According to an August 1995 joint publication of the RTA and Victorian Roads and Traffic Authority, "A Guide for the Measurement and Interpretation of Skid Resistance Using SCRIM" (Appendix 5 to Mr Jamieson's report of 9/7/03), the accident site was a Category 2 site, that is, one with curves of a radius equal to or less than 250 m, gradients equal to or in excess of 5% and equal to or more than 50 m in length. Given the volume of traffic (for a primary road with more than 2500 vehicles per day), investigation of the skid resistance of the site was indicated where readings fell at or below 0.50. The corresponding risk rating (accident risk) for such a site, assuming a SCRIM reading of 0.50, was 5 (on a descending scale of 1 - 7), increasing in risk to 4 for SCRIM readings of 0.45, to 3 for SCRIM readings of 0.40, and increasing to a risk rating of 2 for SCRIM readings of 0.35. Thus, the site had a risk rating of between 2 and 5 on the basis of the SCRIM readings alone.

[29]

39 It was in this context that the prevailing speed limit, the advisory speed sign and the presence of other signs assumed particular significance. The second defendant essentially sought to minimise the relevance of the SCRIM data and the curve geometry by placing particular emphasis upon the signage. In brief terms, whatever the failings of the road itself, those shortcomings were said to be addressed by appropriate signage which was adequate to notify drivers of the risks of negotiating the curve at excessive speeds in less than optimal conditions. The nature and placement of the signage therefore calls for scrutiny. 40 At approximately 250 m south of the right-hand curve upon which the accident occurred, at the Yerriyong service road, there was a standard black on yellow advisory speed sign indicating 65 kph with a vertical wavy arrow indicating the right and left bends ahead. Three well-spaced black on yellow chevron signs (arrows pointing to the right), erected from the beginning of the curve itself, appeared on the western side of the road, facing northbound traffic. There was no dispute about the existence of these signs on the day of the accident. The presence of a temporary pictorial "slippery surface" sign in this vicinity before the plaintiffs accident was asserted by the second defendant but disputed by the plaintiff. 41 A deal of conflicting evidence was given about this sign. Mr Vidler, a retired RTA Operations Manager, who had lived in the Mollymook area since early 2000, had undertaken about ten trips by motor vehicle along the Princes Highway to and from Sydney in October, November and December 2000. Mr Vidler paid particular attention to Heggo's corner after a fatal accident at the site in early November 2000 (the first of two fatalities). He noticed "temporary slippery when wet" signs, one on each side of the highway at Heggo's corner at this time, although he could not recall seeing those signs during a journey two or three days before the plaintiff's accident. The northbound sign was said to be close to the Yerriyong service road. Mr Vidler could not say how the signs were secured but they were fixed to a board or post about one metre above ground level. Significantly, Mr Vidler did not recall seeing any speed advisory signs. (Exs 9 and 10) 42 Mr Vidler's evidence was curious in one respect, namely that the location, according to him, of the temporary sign on the western side of the road was at or almost immediately after the speed advisory sign, about which there was no dispute. Mr Vidler's failure to note the speed advisory sign was somewhat inconsistent with the attention he said he was devoting to the features of the road. He acknowledged that he saw the slippery surface sign after the plaintiff's accident, but rejected the suggestion that he was mistaken about having seen the sign before then. 43 One feature of the sign described by Mr Vidler and by counsel for the second defendant as a "slippery when wet" sign should be noted. It was agreed that the temporary sign to which he referred was in place after the plaintiffs accident, it being rectangular, depicting a car "fishtailing" along the road surface. A series of wavy lines underneath the wheels of the car, which is tilted slightly upon one side, indicate that the surface is slippery. There are no words appearing on the sign itself and nothing about the sign to cause a necessary association with a wet surface. The sign is appropriate for use when a slippery surface is caused by ice, water or loose material (T3-3, AS 1742.3 1996 and "Interim Guide to Signs and Markings" RTA). It is strictly incorrect to refer to the sign as other than a "slippery surface" sign. Distinct signs, such as the same pictorial representation with the words "when wet" underneath, or a rectangular sign with nothing but the words "slippery when wet", were also available for use, although the latter was not recommended for main roads. 44 There was evidence of the placement of such a pictorial slippery surface sign on the western edge of the road, propped against a white guide post on the shoulder of the road, approximately 10 m south of the first chevron marker, after the plaintiffs accident. A photograph taken on 8 January 2001 (Exhibit 8) shows the sign in situ, together with a rectangular sign bearing the words "slippery surface" placed immediately south of the second chevron marker on the right hand bend. 45 It appears that the second defendant understood that temporary "slippery surface" signs were in place as at 19 December 2000 and that consideration had been given to the installation of permanent signs (Ex J). That did not occur. Mr Gough, a team leader with the second defendant, attended the scene of the accident to install "additional" signs at the request of the police. Mr Gough maintained that there was a "slippery surface" sign attached to a guidepost south of the speed advisory-sign when he arrived at the scene (Ex 7). He did not know who had put it there and there was no record of who had done so. The location of this sign was consistent with Mr Vidler's evidence, although Mr Gough's evidence suggests that, at most, the sign was simply wired to the guide-post, not attached to a separate pole one metre above the surface of the road. Mr Gough said that he had seen the sign "three or four dozen times" over a one month period before the day of the accident. Mr Gough was responsible for the placement of the sign depicted in Ex 8 on the night of the accident. 46 Mr Gough further acknowledged that the temporary sign placed near the service road junction, assuming that it had been placed there shortly after 6 November 2000 (the date of the first fatality), ought to have been replaced with a more permanent sign, and that it was not uncommon for temporary signs to go missing through vandalism, or be blown over by heavy vehicle traffic. 47 None of the police officers attending the scene of the accident noted the presence of the temporary slippery surface sign referred to by Mr Gough and Mr Vidler, despite noting the presence of the speed advisory sign. Sen Const Cooper thought it unlikely that he would have overlooked it, given that he and Sen Const Stone walked down the road in a southerly direction to the advisory speed sign and returned. No such sign was recorded on the police photogrammetry plan. 48 I accept that a temporary sign was placed in the vicinity of the speed advisory sign at some time after 6 November 2000, but I am unable to find that it was there on 5 January 2001 or, if it was, that it was sufficiently affixed or mounted at an appropriate height to ensure that northbound drivers would see it and understand its significance. Apart from the two persons who were both familiar with RTA practice and the nature of the signage used in such locations after accidents, no-one gave evidence of seeing the sign before 5 January 2001. The plaintiff did not see it, although neither did he remember seeing the speed advisory sign, despite being familiar with that stretch of road.

[33]

the original design criterion for curve advisory speed [signs] .. related to 1960s designed vehicles with unrestrained occupants. The resultant 'comfort factor' of such unrestrained occupants is significantly lower than a modern occupant who is typically restrained with a lap sash seatbelt and is seated in a fabric bucket seat. A modern occupant's 'comfort threshold' is significantly higher than the original ' design occupant' would have experienced. (p 4) 52 Mr Keirnan gave evidence of having comfortably negotiated the curve in question at 75 km per hour in a Volvo sedan in dry conditions. Mr Fishburn was prepared to acknowledge that streams of traffic will generally travel at speeds in excess of advisory speed signs in dry conditions. Sen.Const. Charlton had negotiated the curve in dry conditions whilst on duty at a speed in excess of 100 kph. 53 Accepting that northbound vehicles would generally negotiate the righthand curve in excess of 65 kph, and that an advisory speed sign represents one of many factors taken into account by drivers approaching the entry to the curve, I do not regard the presence of such a sign as significant for the purposes of assessing the road as hazardous. The evidence established that, objectively, there was nothing unusual or remarkable about the curve, such as might put a reasonable driver, even one familiar with the road, on notice of the need to negotiate the curve at substantially less than the prevailing speed limit. Mr Keirnan agreed that the curve was "fairly innocuous looking". 54 The plaintiff had travelled that section of road on many occasions and had experienced no difficulty, even in the Mazda. He had no reason to think that the road was inherently problematic. A prudent driver would, of course, take account of weather conditions in negotiating the curve, but in so far as the road appeared objectively normal, the advisory speed sign did nothing to notify drivers, including the plaintiff, of the fact that the road surface was slippery. The risk of loss of traction was not an obvious risk.

[34]

55 The question of the actual speed of the plaintiff's vehicle on 5 January 2001 is of course relevant to the issues of causation and contributory negligence. Its additional relevance to a finding of a breach of duty of care on the part of the second defendant resides in determining whether the plaintiff was exercising due regard for his own safety by entering the curve at that speed in wet conditions : Burwood Council v Byrnes [2002] NSWCA 343 ; Sutherland Shire Council v Henshaw [2004] NSWCA 386. 56 Mr Jamieson and Mr Keirnan (Mr Fishburn agreeing with the latter, although his expertise on this issue was of lesser weight) calculated the plaintiff's speed by reference to a recognised formula relating to "slide-off' speed. Their calculations used the SCRIM data and hence incorporated the fact that the rear tyres were unserviceable and the wet conditions. The loss of traction was generally agreed to be at a point 50 - 100 m prior to the point of impact, with the lower end of that range being the most likely (hence the significance of the SCRIM data). Mr Jamieson concluded that the Mazda was travelling at 75-80 kph shortly before impact, based upon SCRIM readings at 50 m before the point of impact, whereas Mr Keirnan (although he initially agreed with that estimate) thought that the Mazda was travelling at 80-90 kph, having used an average of the SCRIM readings over a distance of 300m. It is noteworthy that Mr Keirnan commented that "if SCRIM values had been at or above the SFC of 0.50, there would have been adequate smooth tyre friction supply for speeds of 90 kph." (report of 18/3/05 at p 22) 57 The evidence of Mr Booth, a mechanical engineer called on behalf of the second defendant, was relied upon to support the proposition that the plaintiff was travelling at about 95 kph prior to loss of traction because, primarily, the speedometer was observed by police to have "frozen" at that speed. The police themselves discounted that fact as a reliable indicator of the plaintiff's actual speed. Mr Jamieson, who was more appropriately qualified in my view to express opinions of this nature, agreed with the police position. Mr Booth never examined the speedometer from the Mazda (its whereabouts were unknown), regarded that speed as indicative only, conceded that the speedometer needle reflected the speed of the wheels of the Mazda at the time of the collision but not necessarily the speed of the Mazda itself and conceded that his opinion assumed damage to the speedometer, the precise nature of which he was unable to ascertain. For all of these reasons, I prefer Mr Jamieson's and Mr Keirnan's opinions on this topic. 58 In the absence of more reliable information, I have concluded that the Mazda was travelling at a speed in the vicinity of 85 kph, probably on the lower side of that estimate. This appears to me to be the best estimate available from Mr Jamieson's and Mr Keirnan's evidence, given that each would not have disagreed with such an estimate (and nor would Mr Fishburn) and given Mr Jamieson's reliance on the SCRIM readings at the point where the Mazda probably lost traction. 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 (see par 56). I can see no basis for concluding that the plaintiff was not taking care for his safety in the circumstances as he found them. The Accident History of the Site, the SCRIM data and the RTA's Response

[40]

66 The decision by the second defendant to effectively ignore an experienced and trained highway patrol officer, who had first-hand knowledge of accidents at the site, and the reasons for that decision, were explored to considerable effect by the plaintiff. Mr Benedetti appears to have relied solely upon his visual inspection of the pavement condition at the site. Whilst he acknowledged that he had made a note at the time of the inspection to check the RTA road geometry survey (RGDAS) relating to the site, there was no evidence that he had done so; in fact, in response to the question in cross-examination, "so the RGDAS was not checked as far as you know, is that right?", Mr Benedetti answered "that's right." 67 Mr Benedetti inspected the second defendant's crash database, which disclosed two accidents of low severity over a five-year period, and placed "very little" weight on Sen Constable Charlton's submission. Mr Benedetti went further and proffered the view that "police information [was] often unreliable if it is not in ... an objective format" in terms of the correct location of the accident site. Yet, Sen Const Charlton had accurately identified the site and Mr Benedetti conceded that he had no reason to think that Sen Const Charlton was wrong about the number of vehicle accidents. Ultimately, Mr Benedetti considered that Sen Const Charlton's information was not "objective". 68 Given that the second defendant's database derives from police sources and given that inaccuracies in police reports could be replicated in the RTA database, it is difficult to understand why Mr Benedetti relied on the latter database in preference to speaking to Sen Const Charlton directly. He made no attempt to do so. Mr Benedetti knew of the availability of SCRIM data but did not access it, because he had "inspected the site and all the evidence suggested that the pavement was fine." Astonishingly, Mr Benedetti agreed that, had he known the SCRIM readings for the site were unsatisfactory, his opinion would have altered. Therein lies eloquent proof of the latent nature of the defect in the road surface. 69 On 30 June 2000, Sergeant Hegarty made an entry in the COPS database relating to an accident at Heggo's corner on that day. The entry notes that "the corner has been recorded by police as a black spot within the Ulladulla patrol. Council and the RTA have been notified due to the slippery surface and negative camber. I am of the opinion that these factors are a contributory factor to the accident and no action should be taken against the driver." 70 The inherent risk posed by the road surface at Heggo's corner emerged again at the Shoalhaven Traffic Committee meeting of 21 November 2000. On that occasion, Senior Constable Bateup referred a request from Senior Constable Hawkshaw of the Shoalhaven Highway Patrol at Ulladulla for consideration to be given to reducing the speed limit on a section of the Princes Highway, incorporating Heggo's corner, to 80 kph. Sen Const Hawkshaw's submission was not prompted in particular by the fatality at Heggo's corner on 6 November 2000. It was recommended that the second defendant be requested to review the speed zoning on that section of the Princes Highway, review all advisory and warning signage, and ensure that all appropriate signage was installed. 71 On 30 November 2000, the fatality at Heggo's corner on 6 November prompted Mr Green, an officer of the second defendant, to contact Ms Lyster, the second defendant's Area Maintenance Manager for part of the southern region of NSW. The exchange of information between them was part of a routine system adopted by the second defendant for the investigation of fatalities. Mr Green asked for the SCRIM results for the site. Ms Lyster acknowledged Mr Green's e-mail on 4 December 2000, informing him that she had the "results for the area, and they aren't good. We will plan some resurfacing soon (i.e. before the end of summer) to reduce the risks and increase the skid resistance." 72 On 6 December 2000 Ms Lyster sent an e-mail, marked "high" priority, attaching a work request for a reseal at "Wet Hill" where there was "a skid resistance problem". Ms Lyster indicated that the work should be carried out before Christmas "if possible". On 11 December 2000 Mr Green responded "I think there is more complex geometric problems with these curves and would also like the existing pavement super transitions and curve radii geometry looked (sic) by RGDAS analysis I realise it is a matter of urgency and hope to have answers within the week?" The next day, Mr Green was informed that the RGDAS analysis was complete. 73 As a result of these investigations, it was determined to defer resealing at Heggo's corner, "pending the approval to undertake curve improvement works financed through traffic section." It appears that in the course of Mr Green's inquiries, he had indicated that the installation of permanent "slippery surface" signs was desirable, but other officers of the second defendant determined that the temporary signs at the site were sufficient. (see Appendix 2, Jamieson report 17/8/04, Ex A ; Ex 13) Ultimately, it was determined that, whatever problems arose from the geometry of the road, they did not apply to the curve where the plaintiff's vehicle lost traction. Accordingly, a sprayed bitumen reseal was carried out in April 2001 in order to increase skid resistance and the speed limit was reduced to 80 kph. 74 Much of Ms Lyster's evidence and the evidence of Ms Parrott, Manager of the Planning and Analysis Section of the second defendant in the Wollongong office, was concerned with refuting the proposition that the second defendant was on notice in 1999 of any accident history at the site which might have required further detailed investigation of the site, including reference to the SCRIM data. It is not necessary to outline the limitations of the second defendant's accident database (of which there were many), in view of the fact that it was primarily used as a tool in longterm budgeting and financial planning, not for the purposes of identifying "black spots" on the State's roads. 75 However, that evidence had no substantial bearing upon the fact that officers of the second defendant knew in early 1999 that Heggo's corner (or "Wet Hill" as it was known to them) was considered by local police and regular users of the road as dangerously slippery, and that the SCRIM data, collected by the second defendant, supported that view. The fact that the SCRIM data was described in the course of the evidence from the second defendant's witnesses as a "reactive tool" does little or nothing to excuse the second defendant from failing to have regard to it, when other information suggested that it may be significant. 76 Mr Fishburn agreed that the purpose of SRIM testing was to enable the second defendant to identify sites with an elevated risk of motor vehicle accidents. Moreover, Mr Fishburn acknowledged that, had the second defendant investigated the site in accordance with its own guide (par 34), that investigation would have revealed the fact that the accident rate was higher than RTA guidelines. 77 From the resources perspective, the funds available for resurfacing were devoted to cyclical maintenance, not to identified "black spots". Inadequate skid resistance had to be brought to the attention of the Asset Section by the Road Safety Section (which was responsible for funding and analysing SCRIM data). Then and only then would funds be found for re-surfacing a section of road not otherwise on the works programme. (Ex 13) The second defendant maintains that was what occurred and at the earliest practicable time. It is submitted that the second defendant discharged its responsibility within the constraints imposed by the need to allocate finite resources to a very large network of roads within the region. 78 The second defendant's resources argument does not explain why the inadequate SCRIM readings for Heggo's corner were not identified by the Road Safety Section and brought to the attention of the Asset Section at any time after February 1999. Even if the readings in 1997 excited no interest, the combination of the representations to the Shoalhaven Traffic Committee and the SCRIM readings in 1999 required more serious attention than they received. In my view, the second defendant did not properly exercise its functions in all of the circumstances. 79 In any event, there were several basic and inexpensive tools available to the second defendant to address the identified risk, none of which called for the significant expenditure of resources. Ms Lyster agreed that permanent warning signs and reduction in the prevailing speed limit were relatively simple measures that could have been adopted. They were in fact adopted after the plaintiff's accident, although that cannot of itself give rise to or affect liability on the part of the second defendant (s 5C Civil Liability Act). Breach of the Duty of Care

[43]

85 Applying common sense to the facts as I have found them, and mindful of the plaintiffs obligation to establish that his injuries were "caused or materially contributed to" by the second defendant's negligence (March v E & M H Stramare Pty Ltd (1991) 171 CLR 506), I am satisfied to the requisite standard that the Mazda would not have lost traction and veered into the path of the oncoming vehicle but for the condition of the road surface. Even allowing for the absence of legal tread on the rear tyres, the evidence of Mr Keirnan established that the plaintiff could have safely negotiated the curve at speeds up to 85 kph in wet conditions had the friction co-efficient been at acceptable levels. This proposition was not contested, the first and second defendants' primary submission being that the plaintiff was travelling at a speed of 95 kph. 86 Regarding the second defendant's failure to place appropriate permanent warning signs before the entry to the curve, the plaintiff has demonstrated that the risk of loss of traction materialised. In those circumstances, the plaintiff has established a prima facie causal connection between the second defendant's negligence and his injuries. There is no evidence suggesting that no causal connection existed. The plaintiff was observing the general speed limit in the area and otherwise obeying the traffic rules. There is no basis upon which a conclusion might be reached that the plaintiff would not have paid attention to a warning sign and modified his driving behaviour accordingly, or would not have obeyed a lesser speed limit. 87 It is appropriate that the scope of the second defendant's liability extend to the plaintiff's injuries because of the extent of the breach of the duty of care in respect of a risk known to the second defendant, but unknown to the plaintiff, and not reasonably discoverable by him. 88 The finding of fact in relation to the speed of the Mazda necessarily militates against proof of any material contribution by the first defendant's negligence to the plaintiff's injuries. As noted above, at speeds up to 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. 89 For these reasons, I find in favour of the first defendant and in favour of the plaintiff as against the second defendant. Contributory Negligence

[44]

90 I am unable to find that the plaintiff was failing to take reasonable care in his management and control of the vehicle on 5 January 2001. Given the inherently latent nature of the risk of loss of traction, there were no precautions that a reasonable person in the plaintiffs position would have taken, particularly in the absence of an appropriately specific warning sign. The fact that other vehicles negotiated the curve, in both dry and wet conditions, at or above 65 kph (but below 90 kph), and nonetheless lost traction on the road surface, demonstrates that there was nothing objectively reckless or unsafe about the speed of the plaintiff's vehicle. 91 In the absence of a causal contribution to the plaintiff's injuries from the relatively smooth rear tyres, it matters not whether the plaintiff knew or ought to have known of the condition of the tyres. Were it necessary to determine, I would not be prepared to find knowledge or imputed knowledge in the plaintiff. It was not his car, he drove it only on `social occasions and was not responsible for its maintenance. Whatever inspection he carried out on the vehicle when Ms Clarke brought it home, the condition of the tyres had obviously deteriorated over the following months. Damages 92 The evidence of the injuries sustained by the plaintiff is contained largely within the report of Dr Ho of 1 August 2002. The plaintiff had a comminuted fracture in the junction between the proximal third and middle third of the shaft of the right humerus and had no circulation in the whole right upper limb with significant neurological damage. He also had a compound fracture in the midshaft of the tibia and a fracture of the fibula on the right side. He fractured the tibia in the left leg. Initial surgical management attempted to re-establish circulation in the right arm, a procedure which was largely successful, although the plaintiff was left with serious soft tissue damage with significant damage to the multiple peripheral nerves in the area. The plaintiff also underwent surgery for repair of the fractured humerus and the application of an external fixator to the right leg. The fracture to the left leg was treated by the application of a cast. These have since been removed. 93 The most substantial permanent injury to the plaintiff is the damage to his right arm, albeit he is left-hand dominant. He has no control of the movement of his elbow, wrist or hand in the right upper limb. There is no feeling at all around and beyond the fracture in the humerus. It is unlikely that the plaintiff's peripheral nerves in the right arm will recover, so that amputation was a possibility in the future. In the course of the hearing, the plaintiff removed his right arm from his clothing. The extensive scarring and severe muscle wastage to the right arm was apparent. It is not disputed that the plaintiff has been left with a significant and permanent disability which has deprived him of the capacity for employment, either in his chosen occupation as a carpenter, or at all, and it has deprived him of any future participation in his preferred sports. As to the latter, the plaintiff was accomplished in Re Tai Kwon Do at instructor level. 94 By June 2001, the plaintiff was fully weight bearing on his right leg, although the prognosis for the right leg includes ongoing pain because of the significant fractures. In addition, damage to the ligaments in the right knee are likely to lead to the long-term development of osteoarthritic change in the joint, which will occur at a more rapid rate and with earlier onset than otherwise might have been the case. The plaintiff also experienced bladder difficulties due to the fact that the bladder was ruptured in the accident, although these have now resolved. 95 A report under the hand of Dr Stephen Buckley of 30 January 2003 refers to the plaintiffs emergence from traumatic amnesia 12 days after the accident. Dr Buckley's opinion was that post-traumatic amnesia lasting more than seven days is consistent with a traumatic brain injury in the very severe range, giving rise to a significant risk of long-term deficits at higher cognitive function and behavioural deficits. 96 Not surprisingly, the plaintiff experienced considerable pain in the months and years following the accident, particularly in the right shoulder. For some considerable time the plaintiff was unable to feed and groom himself, although he was able to shower independently. He received assistance for some period of time from his brother, with whom he then lived. 97 A report under the hand of Melissa Staples of 29 August 2003 indicates that the plaintiff has sustained formal cognitive impairment of a mild order in the areas of attention and concentration, left-hand motor speed/dexterity, memory and executive functions relating to efficiency of planning, organising and self-monitoring. In the same vein, the plaintiffs consulting psychiatrist, Dr Gertler, reported symptoms of a chronic brain syndrome secondary to head injury, ongoing depression of fluctuating intensity and difficulty accepting the sequelae of the accident. The plaintiffs prognosis in this regard was guarded. 98 To the plaintiffs credit, he has undertaken and completed a number of TAFE courses since his discharge from hospital in April 2001. He currently performs volunteer work in bush regeneration for approximately 10 hours per week. The work involves removal of small plants from tube stock and planting in sand dunes plus removal of weeds. The plaintiff hopes to obtain employment in that area in the future. He is able to drive a motor vehicle fitted with a "spinner knob" on the steering wheel. 99 The plaintiff can now manage domestic tasks such as preparing and cooking light meals, dressing and undressing, washing clothes, shopping and maintaining the garden around his home. His present intention is to travel around Australia by car, either alone or with his present partner. 100 There is no dispute with respect to the amounts to be awarded for past assistance, future domestic assistance and past out-of-pocket expenses. The second defendant does not dispute that the plaintiffs non-economic loss is in the order of 70% of a most extreme case. I regard this assessment as reasonable. 101 With respect to past economic loss, the second defendant disputes the proposition that the plaintiff could have expected to earn approximately $33 per hour or $1320 gross per week as a carpenter. It is true that the plaintiff had a chequered work history prior to the accident and that his tax return for the year ended 30 June 1999 disclosed a gross income of only $16,594, $4817 of which was a Newstart allowance. Accordingly, the plaintiffs net income in that taxable year was $276 per week. In respect of the 2000 tax year, the plaintiffs net income was equivalent to $359 per week. In those circumstances, it is reasonable to allow for an income of approximately $450 net per week over the 305 weeks since the accident. 102 As to future economic loss, and outstanding assessments as to modifications to the plaintiff's home and motor vehicle, I stand the matter over for the parties to make further submissions on these matters and as to costs. 103 I make the following formal orders:-

At a glance

Court

Decision date

Before

Source

Judgment (47 paragraphs)

Parties

Cases Cited (7)

Cited By (2)