The appellant's submissions on the appeal
43 The appellant submitted that her Honour had made no specific finding as to the distance the appellant was from the fence when he first saw it. True it is that she had noted his evidence that he first saw the fence after he had rounded the gum tree and that he was either 70 to 80 metres or 100 metres from it. However, it was submitted that this was only the appellant's estimate and there was nothing in her Honour's findings to indicate that she accepted that evidence.
44 With respect, I disagree. It is patently clear that her Honour accepted the appellant's estimate, corroborated, as it clearly was, by his acknowledgment that the skid marks to be seen in the photographs reproduced at Blue 2/386 were those of his motorcycle and that they commenced some 50 metres from the plum tree and, therefore, some 81 metres from the fence.
45 It was next submitted that applying the test of causation articulated by Mason CJ in March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at [19] and the observations of Ipp JA with whom Handley AJA and Hoeben J agreed, in Flounders v Millar [2007] NSWCA 238, her Honour had erred insofar as she had regarded the appellant's conduct, constituted by the manner in which he sought to avoid colliding with the fence as somehow providing an intervening cause when it was clear on the evidence that whatever the appellant was doing was in response to the serious risk presented by the respondents' breach of duty of care in failing to warn of the presence of the fence.
46 In oral argument, the appellant elaborated upon these submissions by asserting that, on the evidence, there was no break in the chain of causation. In other words, the decision of the appellant to lay the bike down rather than remaining upright and attempting to stop before reaching the fence did not break the chain of causation between the failure of the respondents to erect an appropriate warning sign (at a distance from the fence which would have enabled a person in the appellant's position and travelling at the speed he was, to safely stop before reaching the fence) and the appellant's injuries.
47 The difficulty with this submission, as was pointed out in argument, was that the basis of her Honour's conclusion that the respondents' breach of duty was not causative of the appellant's injuries, was her findings first, that the respondents' duty to provide an adequate warning would have been satisfied, based upon Mr Joy's evidence which she accepted, with the erection of a sign some 50 metres from the fence which would be visible 75 metres from the fence; and second that on the appellant's own evidence, he became aware of the existence of the fence when he was some 80 metres from it so that the existence of such a sign would not have warned him of anything that he was not already aware of.
48 These findings and her Honour's conclusion at [50] of her judgment that she did not consider that the accident would have been avoided had there been a warning sign at the location identified by Mr Joy, is supported by the well-known statement of principle by Gaudron J in Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408 at [14] where her Honour said:
"…[G]enerally speaking, if an injury occurs within an area of foreseeable risk, then, in the absence of evidence that the breach had no effect, or that the injury would have occurred even if the duty had been performed, it will be taken that the breach of the common law duty caused or materially contributed to the injury."
49 In Naxakis v Western General Hospital [1999] HCA 22; (1999) 197 CLR 269 at [31] Gaudron J stated the principle in similar terms:
"…[T]he trier of fact ... is entitled to conclude that the act or omission caused the injury in question unless the defendant establishes that the conduct had no effect at all or that the risk would have eventuated and resulted in the damages in question in any event."
50 Both of these statements were cited by Ipp JA in Flounders at [5] and [7] respectively but must be read subject to his Honour's conclusion that the onus of establishing that the plaintiff's injuries occurred because of the defendant's negligent conduct remains throughout on the plaintiff.
51 As Mason P observed in TC by his tutor Sabatino v The State of New South Wales [2001] NSWCA 380 at [59], in a passage approved by Ipp JA in Flounders at [22],
"[a] defendant who exposes a plaintiff to a risk of injury or who, by omission, fails to take reasonable steps to avoid or minimise that risk is not liable unless the risk comes home in the sense that the Court is ultimately satisfied on the balance of probability that the defendant's breach caused or materially contributed to the harm actually suffered."
52 Accordingly, to succeed on the appeal the appellant had to establish that a proper sign would have brought the existence of the fence to his notice at a point in time earlier than when he said that he first became aware of its presence. It was apparent on the appellant's own evidence that any attempt to establish that proposition was doomed to fail.
53 The appellant sought to counter the conundrum he was in by submitting that her Honour should not have accepted the appellant's estimates of distance. Rather, there was objective evidence in the form of the photographs and, in particular, those reproduced at Blue 2/385 and 386 from which her Honour herself could and should have estimated the distance between the commencement of the skid marks and the shadow of the plum tree and which, had she done so, would have been significantly less than 50 metres, let alone 70 metres - which was the evidence of the appellant (see [34] above).
54 However, as was pointed out in the joint judgment of myself and Beazley JA in Angel v Hawkesbury City Council [2008] NSWCA 130 at [69], the perspective depicted in photographs such as those relied upon by the appellant in the present case can be quite skewed and distances very difficult to assess. In Angel at [70]-[72] Beazley JA and myself made reference to the deceptive nature of photographs in a passage agreed to by Spigelman CJ, Giles and Campbell JJA.
55 I made similar observations in Blacktown City Council v Hocking [2008] NSWCA 144 at [167]-[170]. In essence, where the issue is one of distance between objects, photographs such as those relied upon by the appellant in the present case should not on their own be used by a judge for the purpose of assessing that distance. These views were consistent with those of the Chief Justice in the same case at [8]-[12].
56 Although it is true that photographs may be legitimately used for a number of different purposes, in a case such as the present the authorities establish that a judge is not competent to assess distances solely by utilising photographs unless there is some other admissible evidence to support that assessment. In the present case there is no such evidence except that of the appellant himself. There is nothing depicted in the photographs relied upon by the appellant which, in my view, required her Honour to discount the evidence of the appellant as to how far he was from the fence when he first became aware of its existence.
57 Furthermore, the evidence was that the appellant returned to the site some time after the accident. At neither that time nor before giving evidence did he apparently consider it necessary to measure the distance between the fence and the point at which he first became aware of its existence.
58 As the onus was at all times upon the appellant to establish causation, on the basis of his own evidence he clearly failed to do so. Her Honour was perfectly entitled to accept that evidence in the absence of any other reliable objective evidence which was capable of calling the appellant's estimates of distance into question.
59 I have already referred (at [36] above) to the findings of the primary judge at [45] of her judgment as to the distance travelled, assuming a reaction time of 1.5 seconds. The appellant submitted that one could extrapolate her Honour's figures using a reaction time of two seconds which would result in a distance travelled of 33.3 metres if the appellant was travelling at 60 kph and 38.6 metres if he was travelling at 70 kph.
60 During the course of argument it was suggested that, at best, if one was to assess the commencement of the skid mark on the photographs reproduced at Blue 2/386 at 30 metres rather than 50 metres from the plum tree, then one would need to add to that a reaction time of, say, 35 metres with the result that, given that the plum tree was 31 metres from the fence, the appellant would have first become aware of the existence of the fence when he was some 96 metres from it.
61 Given the primary judge's finding at [49] based on Mr Joy's evidence that the fence was visible from a distance of 125 metres and that the respondents' duty of care would have been satisfied by the placement of a sign 50 metres from the fence which would be visible from about 75 metres from the fence, even accounting for the reaction time and skid mark distance which the appellant acknowledged, it still followed that the appellant had become aware of the fence some 21 metres before he would have otherwise done so as a consequence of seeing a warning sign.
62 Finally, the appellant referred the Court to Mr Joy's evidence where the following exchange occurred:
"Q. Can I put to you this from Mr Northey's report. 'A reasonable expectation of a crash avoidance braking distance on a sealed surface at 60 kilometres per hour would be 23.2 to 26.4 metres.' Would you agree with that?
A. Braking distance only yes.
Q. However on an unsealed surface braking requirements can range from equivalent to double these distances?
A. They can be of the order of double is my response.
HER HONOUR
Q. Sorry, can be?
A. They can be the order of double."
63 On the basis of the foregoing evidence and in the conditions that the appellant faced, it was submitted that the braking distance would be between 46 and 53 metres. To that one would have to add, say, 35 metres of reaction time, which would have placed the appellant between 81 and 88 metres from the fence when he first became aware of it. As Mr Joy considered that 75 metres was a sufficient distance at which users of the track should have been notified of the fence's presence, the braking time relied upon by the appellant does not assist him.
64 In any case, in re-examination the following exchange took place:
"Q. You were asked about Mr Northey's suggestion that on an unsealed surface breaking requirements could range from equivalent to a sealed surface to double the distance?
A. Yes.
Q. Having regard to your inspection of the surface of the wheel tracks on the unnamed lane in question, do you accept that a realistic braking distance on that surface at 60 kilometres an hour would be of the order of 30 metres?
A. Thirty, maybe 35."
65 On the basis of the appellant's own evidence as to braking distance, and assuming a reaction distance of 35 metres (which accounts for the two second reaction time contended for by the appellant), the appellant would have been able to avoid colliding with the fence when he was approximately 70 metres from it. Yet on his own evidence he first became aware of the fence at a distance from it of at least 70 metres. This results in the same outcome on the issue of causation as determined by the primary judge.