Zraika v Walsh

Supreme Court of NSW|2014-06-27|Before: Campbell J

6; 160 CLR 112; Curtis v Harden Shire Council [2014] NSWCA 314; 203 LGERA 354; 68 MVR 1; Derrick v Cheung [2001] HCA 48; 181 ALR 301; Gorringe v Calderdale Metropolitan Borough Council [2004] 2 All ER 326; [2004] UK HL 15; Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151; Henderson v Hassel (1986) 3 MVR 359; Henwood v Municipal Tramways Trust (1938) 60 CLR 438; Janesch v Coffey [1984] HCA 52; 155 CLR 549; Joseph Eva Limited v Reeves (1938) 2 K.B. 393; Lee v Carlton Crest Hotel (Sydney) Pty Ltd [2014] NSWSC 1280; Makawe Pty Ltd v Randwick City Council [2009] NSWCA 412; 171 LGERA 165; MM Constructions (Aust) v Port Stephens Council [2012] NSWCA 417; 191 LGERA 292; Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254; Mt Isa Mines Limited v Pusey (1970) 125 CLR 383 Nagle v Rottnest Island Authority [1993] HCA 76; 177 CLR 423; Neindorf v Junkovic [2005] HCA 75; 80 ALJR 341; Newcastle City Council v GIO General Ltd [1997] HCA 53; 1997 191 CLR 85; Port Macquarie Hastings Council v Mooney [2014] NSWCA 156; 201 LGERA 314; Pyrenees Shire Council v Day [1998] HCA 3; 192 CLR 330; Roads & Traffic Authority v Dederer [2007] HCA 42; 234 CLR 330; Rosenberg v Percival [2001] HCA 18; 205 CLR 434; Sermon v Commissioner of Railways (1907) 5 CLR 239; Shaw v Thomas [2010] NSWCA 169; Aust Tort Reports 82-065; Sibley v Kais (1967) 118 CLR 424; South Australian Ambulance Incorporated Limited v Wahlheim (1948) 77 CLR 215; Stovin v Wise [1996] AC 923; Sutherland Shire Council v Heyman [1985] HCA 41; 157 CLR 424; Tame v New South Wales [2002] HCA 35; 211 CLR 317; The Mayor of the City of Essendon v McSweeney (1914) 17 CLR 524; Turkmani v Visvalingam [2009] NSWCA 211; 53 MVR 176; Turner v Ku-ring-gai Municipal Council (1990)72 LGRA 60; 12 MVR 321; Tromp v Liddle (1941) 41 SR (NSW) 108; Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422; Vincent v Woolworths Limited [2015] NSWSC 435; Warren Shire Council v Keuhne [2012] NSWCA 81; 188 LGERA 362; Wallace v Kam [2013] HCA 19; 250 CLR 375; Wentworth Securities Limited v Jones [1980] A.C. 74; Category: Principal judgment Parties: Sharif Zraika (by his next friend Halima Zraika (Plaintiff) Rebecca Jane Walsh (First Defendant); John Bernard Walsh; (Second Defendant) Roads & Maritime Services (Third Defendant); Bankstown City Council (Fourth Defendant); Ali Zraika (Fifth Defendant) Representation: Counsel: Mr D Higgs SC with Mr T Boyd (Plaintiff) Mr K P Rewell SC (First and Second Defendants) Mr M Fordham SC with Mr H Chiu (Third Defendant) Mr R Sheldon SC with Mr P M Knowles (Fourth Defendant) Mr G J Smith (Fifth Defendant)

Solicitors: Kheir Lawyers (Plaintiff) McInnes Wilson Lawyers NSW (First, Second and Fifth Defendants) Hicksons Lawyers (Third Defendant) Mills Oakley Lawyers (Fourth Defendant) File Number(s): 2011/00052630

judgment

The plaintiff, Sharif Zraika, brings these proceedings by his mother, Halima Zraika claiming damages for injuries allegedly suffered by him in a motor accident on 16th November 2002. Sharif (in using his given name I intend no disrespect) was then en ventre sa mere. His pregnant mother was travelling as a front seat passenger in a Ford Laser driven by his father, Mr Zraika, the fifth defendant. The Laser was involved in a collision with a Holden utility driven by the first defendant, Mrs Walsh, and owned by the second defendant, Mr Walsh, at the intersection of Woodville Rd and Tangerine St, Villawood.
The intersection is a T-intersection controlled by traffic lights. Tangerine St is the terminating Rd and enters Woodville Rd from the west. There is a driveway to a factory complex on the eastern side of Woodville Rd, more or less opposite the entry to Tangerine St. Entry and exit to the factory complex via the driveway is not controlled by the traffic lights. In November 2002 there was a sign on the boundary of the factory complex to the left of the driveway, of a familiar type indicating a "left turn only" for exiting vehicles.
Mrs Walsh has remarried and is now Mrs Meehan. For clarity I will continue to refer to her by her name at the time. She left the driveway contrary to the sign, which she did not see, by driving straight across the intersection, intending to enter the west bound lane of Tangerine St. Before she got there she collided with the Ford Laser driven by Mr Zraika. Mrs Walsh and Mr Walsh have admitted breach of the duty of care owed by a motorist to other road users. They dispute whether Sharif's apparent disabilities were acquired in the collision. They argue that his difficulties are congenital in nature.
Sharif also sues his father. There is evidence that his father drove the Laser through a "left turn only lane" to head north on Woodville Rd overtaking vehicles in lanes 2 and 3 which were stationary at the lights as he approached. He is said to have driven contrary to the traffic lane arrow marked on the roadway directing traffic in the left lane to turn left (r 88(2), Australian Road Rules 2008 (NSW); now repealed and replaced by Road Rules 2014 (NSW)) by entering the intersection from that lane with the intention of proceeding north, and not into Tangerine St. Mr Zraika denies this.
The fourth defendant is Bankstown City Council and the third defendant is Roads & Maritime Services. I have dealt with them in this order to reflect the chronology of their involvement.
Bankstown City Council (BCC) is the local government authority responsible for town planning in the area. On 16th April 1997 in the exercise of its statutory powers as a consent authority it approved a factory re-development on the land adjacent to the eastern side of Woodville Rd (Exhibit 1D25). This approval included conditions relating to the configuration of the driveway. Other developments on the same site were approved, before the accident, between 23rd February 2000 and 15th October 2001 (Exhibit 1D26). In the broadest, introductory terms the case against it is that the conditions it imposed failed to make adequate provision for the safe control of traffic leaving the factory complex by the driveway.
Roads & Maritime Services (RMS) is the statutory successor to the Roads & Traffic Authority which, at all material times, had statutory power over traffic management and control on Woodville Rd. It also had statutory authority over traffic lights generally. The case against it, again in the broadest introductory terms, is that it failed to exercise those powers, when it had the opportunity, to include vehicle movements into and out of the driveway within the phases of the traffic lights which controlled all other traffic movements in the intersection. To put it another way, the case is that it should have signalised, or caused the signalisation of, the driveway as a fourth leg of the intersection. Alternatively, the RMS should have taken steps before the accident to make plain that vehicles leaving the premises by the driveway were to turn left only.
Sharif has the benefit, as I have said, of the admission of breach of duty of care by Mrs Walsh and Mr Walsh. Although the other claims are brought on his behalf, they are mainly propounded by Mrs Walsh and Mr Walsh, at least so far as BCC and RMS are concerned, by way of cross-claim. Sharif does not disavow the claims, but has left the carriage of them to Mrs Walsh and Mr Walsh.

Separate questions for decision

Given the number of parties, Sharif's age, and the possible complexity of the medical issues, orders were made for a decision on separate liability questions before any other question in the proceedings. These questions were somewhat refined during the course of the hearing. They are 9 in number in the following terms: 1. Did RMS owe the plaintiff a duty of care? 2. Did BCC owe the plaintiff a duty of care? 3. If RMS owed the plaintiff a duty of care, was it breached? 4. If BCC owed the plaintiff a duty of care, was it breached? 5. Was RMS's breach (if any) a legal cause of the collision between the vehicles driven by Mrs Walsh and Mr Zraika on 16th November 2002? 6. Was BCC's breach (if any) a legal cause of the collision between the vehicles driven by Mrs Walsh and Mr Zraika on 16th November 2002? 7. Did Mr Zraika breach the duty of care he owed the plaintiff on 16th November 2002? 8. Was Mr Zraika's breach (if any) a legal cause of the collision between his vehicle and the vehicle driven by Mrs Walsh on 16th November 2002? 9. If more than one defendant is negligent, in what proportions should legal responsibility be shared?

The issues

I will not deal with the questions in the order in which they are posed. It seems more logical to deal first with the primary facts surrounding the accident which will involve the determination of any legal responsibility of Mr Zraika; I will then deal with the legal responsibility, if any, of BCC; and finally I will consider the legal responsibility, if any, of RMS.

The accident

The 16th November 2002 was a Saturday. Mrs Walsh attended the factory complex in the course of her work to pick up the uniforms for office staff she had previously ordered from a company which carried on business in the factory complex (28.45T). She had been there only once before when she ordered the uniforms. She approached the premises travelling south on Woodville Rd and entered the driveway, which the evidence disclosed was the southern of two driveways servicing the factory complex. Photographs tendered in evidence (Exhibit 1D1.8) show that that business operated from the building closest to the driveway. Mrs Walsh reverse-parked her utility opposite the entrance to the business. She identified this spot by reference to a silver BMW car shown in photographs (Exhibit 1D2.4 and .5; 27.45 - 28.5T). This must have put her very near the left turn only sign. She left her car and entered the premises.
Having made her purchases she left the premises and approached her parked car. As she did so, she was rummaging through her handbag to find her car keys so she was not looking up to see the sign. She entered the vehicle and executed a leftward U-turn to the driveway, halting at the edge of its vehicle crossing and the gutter of Woodville Rd. I infer from her evidence that she was in something of a quandary. Her most direct route back would have been to turn right into Woodville Rd and head north, but she had a sense that this was not permissible. She knew that if she turned left and proceeded south, there was an underpass a short distance away which would have enabled her to cross under Woodville Rd and re-enter its north bound lanes. Instead she decided to cross the intersection into Tangerine St where she would find a place to turn around, and then turn left into Woodville Rd to head north.
Apart from missing the left turn only sign, Mrs Walsh could not recall that there was a median strip separating entering from existing traffic in the driveway (Exhibit 1D1.8; 30.30 - .45T). Of course, she knew that the intersection was controlled by lights, but from her position she could see "virtually nothing" of the traffic light colours (31.5T). This may be a little different from what she later told police that she saw the lights for south bound traffic "outside McDonalds…were red."(Exhibit 1D3.) She knew that there was no traffic light controlling her entry to the intersection. When the traffic in Woodville Rd stopped, she gave way to traffic "coming out of Tangerine St" (31.5T). To the best of her recollection she gave way to five cars. When "the coast was clear" (31.30T) she proceeded into the intersection "very slowly" and "proceeded very cautiously across the intersection, all the time keeping in mind that there are traffic lights that are timed". From previous experience she knew that the furthest lane (north bound lane 1) from her was a left hand turn lane, but because of the traffic stationary in north bound lanes 2 and 3 she "didn't have a good view of that lane". She said at (32.35T): So I continued extremely cautiously and then I thought well I'll just be ready to brake in case when I do get a view of the left‑hand view lane (sic), I can stop. As to the best of my recollection, I had crossed both of those stop lanes and just ‑ just ‑ had a view of the left‑hand lane, and then I saw the car coming at me and, yeah, it hit me. She thought she was "well and truly" in alignment with the left hand turn lane. She told Snr Constable Moloney, the police officer who investigated the accident at the scene, (Exhibit 1D3) that she had been "inching" across lanes 2 and 3 and when she got to the gutter lane "this car came flying into me". She said it collided with the passenger door of her ute.
After Snr Constable Moloney had taken her statement, Mrs Walsh saw the police officers cross the intersection and look at the sign. This was the first time she had noticed a sign, and then only the back of it. When they returned, the police officers asked her if she had seen "the left turn only sign". She replied "no". She said she "was astonished it was there" (33.20T).
Mrs Walsh also told Snr Constable Moloney that she had looked for signs and seen none (Exhibits 1D3 and 19). In her subsequent report (Exhibit 1D19) Snr Constable Moloney recorded that she noticed "that the sign is within the fenced off area of the complex, back of the kerb of Woodville road…[and] it isn't very clearly erected for drivers to see."
Snr Constable Moloney recorded a rough sketch of the scene of the accident in her notebook "to record the vehicles in situ and any debris" (102.5T). She explained: The aim of the time for the police officers is we get there, draw a site diagram very quickly, so we don't lose any positioning. We then move the vehicles from the roadway to clear the traffic (103.5T). She measured the distance from the outside edge of the eastern unbroken line delineating the pedestrian crossing across the mouth of Tangerine St to the point of impact as 1.5 metres. She recorded debris here.
Snr Constable Moloney returned to the scene on Sunday, 17th November 2002 to complete a "proper" site diagram (107.5T; Exhibit 1D4, p 39). The original site diagram and the amplified version depict the vehicles opposite lane 2 for east bound traffic in Tangerine St. Debris is again depicted there.
I interpolate that there is no issue that when Mr Zraika entered the intersection he had a green light (Exhibit 3D1[5]).
Mr Zraika was adamant that he approached the intersection travelling north in the middle lane, or lane 2. He was adamant that he was not in the left hand turn lane, or lane 1. He approached the intersection at around 65 kilometres per hour (70.5 - .15T) (the speed limit is 70) and the traffic lights were green from about when he was 20 to 30 metres short of the lights. No one challenged him about his speed or the green light. He did not see Mrs Walsh's car until it was directly in front of him and he had no time to stop or avoid the collision. He described the impact as a "T-bone" (69.45T). The cars came to rest in the middle of Tangerine St in a location which was "between lanes 1 and 2" for northbound traffic on Woodville Rd (70.20T).
A statement he made to the police was admitted as Exhibit 5D1. Mr Zraika was adamant again that that statement was made on 16th November 2002 when he was at the hospital with his wife. However, it is dated 9th December 2002. He accepted that what he told the police officer was "probably" accurate (76.10T).
Mr Zraika's police statement is broadly consistent with his evidence. He said that he was travelling in lane 2 as he approached the lights. The lights had just turned green as a truck which had been stationary in lane 3 was just starting to move off. He did not see Mrs Walsh's ute until it was too late to do anything to avoid the collision.
To the extent to which there were discrepancies, he was prepared to accept, as I have said, the accuracy of what he told the police officer. I accept that the statement was made more than 3 weeks later as dated. It follows that Mr Zraika is mistaken about the date.
Mrs Zraika gave evidence of being a front seat passenger in the motor vehicle being driven by her husband as it approached the intersection. I formed the impression that her recollection of the details, understandably, was very hazy. She frequently could not recall matters she was asked about. She was and remained adamant that they approached the intersection in lane 2 and were not at any time during that approach in lane 1. She specifically denied that her husband entered lane 1 for the purpose of overtaking vehicles in front that were stationary at the lights (98.40 - .45T). There were some inconsistencies between her and her husband's account. For instance, she remembered the truck in lane 3 as being a furniture removalists van, rather than the large semi- trailer described her husband. She also had that vehicle slowing down rather than moving off (93.5T; 98.5T). She did not remember the details of the collision, only the fact of the "impact" (93.35T).
Two other lay witnesses gave evidence. Mr Giuseppe Natale was the driver of the third or fourth car in a stationary line of traffic south bound in lane 3 of Woodville Rd, waiting to turn right onto Tangerine St. He first noticed what must be Mrs Walsh's utility after it had crossed the midway point of Woodville Rd and onto the northbound side of the carriage way (he was shown to have been wrong about the colour of the utility and of the Laser.) He said the utility was travelling straight across the intersection towards Tangerine St. It was "just crawling" (126.35 - .40T). His evidence was that a "red" Laser came through the lights from the left-hand lane (lane 1 northbound) and "T-boned" the utility. The impact took place "in the middle of the intersection, virtually between the left-hand lane which is turn left only and the second lane" (127.15T). He estimated the Laser's pre-impact speed at 50 or 60 kilometres per hour and said that when the Laser emerged, there was stationary traffic in lanes 2 and 3 of Woodville Rd northbound. In cross-examination, he strongly denied that the Laser was in lane 2 northbound. He accepted that "some part of the Laser was in the middle lane" at the point of impact (130.15 - .35T).
After the best part of 12 years, Mr Scott Bernard had no recollection about "the circumstances of [the] accident" (79.20T). A statement made by him on 29th January 2004 was tendered (Exhibit 3D1). He was stationary in lane 1 in Tangerine St at the stop line, waiting to turn left. The light facing him, it goes without saying, was red. He described stationary traffic in lanes 2 and 3 of Woodville Rd northbound. He saw a white Laser in the northbound left hand turn only lane of Woodville Rd approaching the intersection. The Laser was not showing a left indicator, and he formed the impression that it was going to pass the stationary vehicles and continue northbound.
After he had seen the Laser he saw a silver Holden utility come into view. He wrongly assumed that it must have been turning right southbound from Woodville Rd into Tangerine St. He estimated the utility was travelling at about 15 kilometres per hour and was crossing the northbound lanes of Woodville Rd heading for Tangerine St.
When "it started to cross into the left hand turn lane only … the front driver's side of the ute smashed into the front right wheel area of the Laser" (Exhibit 3D1[7]). He had not heard any screeching of brakes. He rendered assistance to Mrs Walsh who appeared unconscious initially. He erroneously formed the view that Mrs Zraika was the driver of the Laser. His statement included a diagram broadly consistent with Snr Constable Moloney's site diagram. He did not make the measurements shown on his diagram (82.35T), presumably an investigator did. In cross-examination, he confirmed that he had no recollection of any of the details surrounding the accident. Specifically he was unable to say from his own recollection whether the Laser was travelling in the middle lane of the traffic when it came into collision with the utility (83.30T). I accept he now has no memory of these events.
Snr Constable Moloney recorded in her notebook (Exhibit 1D4, p 31) that Mr Barnard told her that the Laser was travelling in the northbound "left lane" on Woodville Rd.

Expert evidence concerning the crash

Two consultant traffic engineers, Mr John Jamieson and Mr Grant Johnston, gave evidence about crash dynamics. Mr Jamieson's report of 14th May 2014 is Exhibit 3D3 and Mr Johnston's report of 7th April 2014 is Exhibit 1D20. There are two important expressions of opinion by Mr Jamieson: first, the forensic evidence (such as it may be) supports no conclusion other than that the point of impact was in alignment with the kerb side lane on Woodville Rd (Exhibit 3D3, p 17); and secondly, the speed of Mr Zraika's car "appeared to be less than 35 kilometres per hour".
In oral testimony, it emerged that the forensic evidence referred to was the police evidence about the resting position of the vehicles, 1.5 metres from the outside line marking the pedestrian crossing in alignment with westbound lane 2 in Tangerine St; the location of debris around the rest position of the vehicles; the absence of any record of any gouge or other marks on the surface of the roadway suggesting movement of the vehicles after impact in a north-westerly direction; and the degree of intrusion on the nearside passenger door of the utility that could be estimated from a poor-resolution photograph of the utility.
But it also became apparent that the two opinions were interconnected. In effect Mr Jamieson's evidence was that "had the utility been travelling at 20 kilometres an hour, for example, and the Laser been at 60, the vehicles would have vectored off and probably ended up on the footpath on the north western corner" (218.15T).
Mr Jamieson also explained that "the sensitive variable … in all physics is velocity". Kinetic energy is calculated by multiplying half mass by half velocity squared. Accordingly small changes in speed attract "the squared effect". At 60 kilometres per hour, the Laser "would have had much more energy … and would have pushed [the utility] to the north" (218.10T).
Mr Jamieson thought that "the way the vehicles are plotted" on Snr Constable Moloney's site diagram "suggests a lower speed event" (219.5T). However, he accepted that the forensic evidence he described was "not [completely] inconsistent" with an impact in the alignment of northbound lane 2 on Woodville Rd with the Laser travelling at about "50 kilometres per hour" (221.35T).
Figure 1 in Mr Jamieson's report is an aerial photograph of the crash site from 2012 with some images superadded by Mr Jamieson to illustrate his opinion. It is interesting to note that if the utility travelled from the driveway towards Tangerine St in a more or less straight line, it would cross the alignment of the northbound left turn lane some distance north of the stop line for northbound traffic in Woodville Rd. I interpolate that Mr Johnston measured the distance from the stop line to his probable point of impact as 15 metres.
At (pp 25 - 27) Mr Johnston recorded his assumptions as follows: ….The vehicles came to rest a distance of 1.5 metres away from the marked crossing across Tangerine Street, approximately perpendicular to each other and each angle at approximately 45 degrees to the alignment of Woodville Road. I have also assumed that they have come to rest in contact at a point approximately opposite the middle of eastbound lane 2 within Tangerine Street (p 25 [7.6]). These assumptions accord with Snr Constable Moloney's evidence about what she observed of the post-impact rest position of the vehicles. From this admittedly scant material, Mr Johnston calculated the post-impact speed based on distance to rest by applying the principle of conservation of momentum.
Admittedly, working backwards, Mr Johnston assumed a point of impact in alignment with the northbound left turn lane in Woodville Rd and the westbound side of the carriageway in Tangerine St, just to the south of the dividing line (Figure 7.2, p 27). His diagram shows the vehicles in a T-bone configuration at impact. This point of impact accords with what is shown on Mr Jamieson's Figure 1, as discussed at [34] above. Mr Johnston then calculates that to reach the point of rest as documented by Snr Constable Moloney "the centre of mass of each vehicle has moved approximately 8 metres post impact at an angle of approximately 35 degrees to the northwest." This indicated a pre-impact speed of around 68 kilometres per hour for the Laser (Exhibit 1D20 [7.11], p 28). At that speed the Laser would have covered the distance between the holding line and the point of impact (15 metres), in 0.8 seconds, too quick for either party to have reacted to the imminent collision by braking.
In cross-examination, Mr Johnston accepted that his calculations did not "rule out the possibility that the Ford Laser was in [alignment with] the middle lane at the point of impact" (my emphasis) (376.30T).
In answer to questions which I asked, Mr Johnston said that even if Mr Zraika had been turning left into Tangerine St "a collision was potentially still imminent" (377.20T). If turning left, the Laser would have been approaching at a speed diminishing to something in the order of 20 to 25 kilometres an hour at the intersection "to make the left turn" (376.45T). Then, the stopping distance would have been much less. At 68 kilometres per hour, the Laser would need 20 metres to stop; at around 20 kilometres per hour, 3 metres. This would provide more opportunity to "respond and avoid" (377.5T). Factoring in the consideration that neither driver appears to have seen the other until immediately prior to impact, Mr Johnston said: "[i]t's therefore improbable that there would have been sufficient time even at the lower speed to still respond - perceive and react and then stop prior to impact." It was these considerations which led him to express the view that "a collision was potentially still imminent" (376.35 - 377.20T).

Traffic movement evidence

Mr Lysaught, a senior employee of RMS gave evidence relevant to the question of Mr Zraika's legal responsibility. In the late nineteen-nineties Mr Lysaught worked out of RMS's Blacktown regional office as the "State Network Leader". He had been with RMS and its predecessors for 35 years when he gave evidence. Evidence of recorded crashes (Exhibit 3D2) and a traffic count (Exhibit 1D17), both relating to the intersection, were introduced through Mr Lysaught. The 5 pages of Exhibit 1D17 suggest the count was taken over two days, 2nd and 3rd April 2002, but more likely it was carried out on a single day (196.20 - .40T).
Exhibit 3D2 showed a total of 18 crashes, 7 involving injury, in the intersection between 1st July 1998 and 30th June 2002. One of those crashes probably involved a vehicle exiting the driveway, turning right into Woodville Rd to head north (167.15 - .45T). Subsequent crash information (Exhibit 1D16) covering the three years from 1st January 2002 to 30th September 2005 showed 16 crashes, 9 of which involved injury. These "injury crashes" includes the case at hand (accident number 024764796), although it is somewhat misdescribed, and two subsequent collisions each involving a car exiting the driveway, heading across the intersection colliding with a car travelling north on Woodville Rd. These crashes occurred in 2003 and 2005 respectively. It was not suggested that the crash history made the intersection a "black spot".
The traffic count, in broad terms, demonstrates that slightly more than one-quarter of all vehicles exiting the driveway, cross the intersection to either enter Tangerine St or turn right into Woodville Rd to head north. Most drivers in this group turn right into Woodville Rd. Mr Lysaught was not unduly concerned by these numbers which represent a very small proportion of all vehicles using the intersection. But because traffic exiting the driveway uncontrolled by lights was entering a controlled environment he agreed that there was a "potential for crashes" (191.40T; 192.40T; 207.35T).
Mr Lysaught made it clear that he was not very concerned by that potentiality. His expectation was that the motorists exiting the driveway to enter Tangerine St or head north on Woodville Rd would be doing so during a "gap" when all lights were red. He said at (207.15 - .25T): Motorists, from my observation, are very good at picking gaps in that dead time because of motorists that will be sitting in the driveway would have vision to the traffic signal lanterns and the fact that it would be stopping traffic on Woodville Road. So, there is a 4‑second opportunity for those people to select a gap where traffic at the intersection stopped, to go straight across or to turn right. So, the low numbers, and why I'm saying from a traffic network management point of view, is that these people are selecting those gaps within that all red period of time within the traffic signal operation. [sic] I reiterate, in passing, that Mrs Walsh said she couldn't see "the lanterns". However the contrary contemporaneous statement to police is probably more reliable.
The traffic count also counted "illegal" movements for vehicles travelling north on Woodville Rd. There was some discussion in the evidence that these might represent motorists running the red light (212.5 - 20T). However, this appears to be a wrong assumption. The traffic count report makes clear what this refers to: "vehicles travelling straight through in the left lane northbound on Woodville Rd are shown separately". This is what is shown as "illegal". I disregard the designation "illegal", but the manoeuvre of "travelling straight through in the left lane" is a reference to the left turn lane which Mrs Walsh, Mr Bernard and Mr Natale say Mr Zraika came from. The traffic count showed, for example, that between 3 pm and 7 pm on the day of the count, 33 drivers proceeded north from the left turn lane. This needs to be kept in perspective, there was a total of 14,858 movements through the intersection. In this context, 33 is a tiny number.

Factual findings relevant to the legal responsibility of Mr Zraika

The judgment called for in this case, depends upon an evaluation of the lay and expert evidence. Neither is unblemished. The quality of the recollection of all lay witnesses suffered by reason of the effluxion of time, nearly 12 years, between the accident and the hearing. As I have pointed out Mr Bernard had no useful recollection whatsoever; Mr Natalie was demonstrably wrong about some details; and Mrs Walsh struck me as hesitant and lacking in confidence in giving her evidence, which I thought may be due to this. Mrs Walsh's evidence about not being able to see the lights was inconsistent with her police statement, which contemporaneous version I prefer. As I have pointed out, Mrs Zraika could remember few details at all, but was adamant that her husband was driving in lane 2 and the traffic light was green. Mr Zraika was equally adamantine about those details. But there were demonstrable inconsistencies in detail between his oral evidence and his statement to police made on 9th December 2002, which may be understandable given the lapse of time.
I think there were also other forces playing upon the recollection of Mrs Zraika and Mr Zraika. They have the firm belief that their then unborn son acquired serious injury in the collision. The nature and extent of any injuries and disabilities caused by the collision is a matter for another day. However, their parental concern is a possible factor which may subtly influence their powers of recall, erasing from their mind anything which may suggest that Mr Zraika had even the slightest responsibility for the collision. I think this a perfectly understandable psychological phenomenon. I am not suggesting everyone would react in the same way; others might be wracked by guilt by the thought of any possibility, that they may be involved.
The experts had precious little objective material to work with. Essentially it comes down to the reliability of Snr Constable Moloney's record of the rest position of the vehicles, the post-impact debris, and intersection geometry. I accept Snr Constable Moloney's evidence. At the same time, both experts accepted that it was possible that Mr Zraika approached the point of impact from northbound lane 2 on Woodville Rd.
Evaluating evidence is not about counting heads. But I am impressed that each of Mrs Walsh, Mr Bernard and Mr Natalie say that Mr Zraika approached from the left hand turn lane. Of the lay witnesses, then, only Mrs Zraika and Mr Zraika disagree.
This evidence, that Mr Zraika was in the left hand turn lane, also seems to accord with the probabilities, such as they are. There is no question that Woodville Rd is, and was, a busy, major arterial road in Sydney's west. In the way of things, I would expect that it would have been busy around the middle of a Saturday. Accepting this, the evidence of the other lay witnesses that as Mrs Walsh crossed the intersection there was stationary traffic in lanes 2 and 3 ready to move off once the lights changed to green better accords with the probabilities than Mr Zraika's account that there were a few vehicles in the left hand turn lane, none in front of him in lane 2, and only a semi-trailer in lane 3 starting to move off as the lights changed.
The better view of the expert evidence also accords with the version of Mrs Walsh, Mr Bernard, and Mr Natalie, especially Mr Johnston's evidence. His estimate of an approach speed of 68 kilometres per hour for the Laser accords with the evidence of all of the lay witnesses including Mrs Walsh who had the perception that the Laser was "flying". I should not be taken as suggesting that the Laser was exceeding the speed limit of 70 kilometres per hour. Moreover, Mr Johnston's estimate of a post impact movement of the vehicles of about 8 metres to the northwest, coming to rest in the position described by Snr Constable Moloney, also accommodates Mr Jamieson's expressed view that, at a speed of around 60 kilometres per hour he would have expected a movement to the north of about 8 metres (215.15T). This provided Mr Jamieson with a reason for adopting a lower estimate, but only if he underestimated the area of the intersection. Mr Johnston's measurements demonstrate the intersection is large enough to accommodate a collision at around 65 kilometres per hour for the Laser and a rest position of the vehicles as recorded by Snr Constable Moloney.
I find that most of Mrs Walsh's movement across the intersection occurred during "that all red period of time within the traffic signal operation" referred to by Mr Lysaught (207.20T). She told police that the lights for southbound traffic on Woodville Rd were red, and she waited for the cars turning right from Tangerine St to clear. She probably: started when the lights facing Tangerine St were still green; continued her slow and hesitant progress through the intersection during the all red period; and was still not across when the lights changed to green for northbound traffic on Woodville Rd. Indeed, then, she had not yet reached a point in line with the left turn lane.
Mr Jamieson (Exhibit 3D3, p 8, Figure 5) reproduces the signal design plan showing the phase arrangements for the operation of the traffic lights at the time of the crash. If Mrs Walsh waited until traffic turning right from Tangerine St cleared and she was struck by Mr Zraika when the lights for northbound traffic were green, her movement across the intersection straddled the end of "C" phase, the all red period, and the start of "A" phase. Moreover, during "C" phase northbound traffic in the left hand turn lane has a green arrow (Exhibit 1D1.9). This makes it more likely that the left turn lane was clear as Mr Zraika approached the intersection towards the end of "C" phase.
For these reasons, I accept the evidence of Mrs Walsh, Mr Bernard, and Mr Natalie, and I find that Mr Zraika approached the point of impact from the northbound left hand turn lane of Woodville Rd. I find also that he was travelling at a speed around 65 kilometres per hour and was favoured with the green light as he entered the intersection.

Force and effect of the left turn only sign

The left turn only sign at the driveway assumed significance for a number of different issues to be decided in this case. This is partly because there is no direct evidence of who erected it, or when it was erected. The only thing that can be said with certainty is that it was present on 16th November 2002 when Mrs Walsh left the driveway.
It is said by Mr Zraika, BCC and RMS that in driving contrary to the direction provided by the sign Mrs Walsh committed "an illegal" act, or was on the intersection "illegally". The Walsh parties say that in the absence of evidence that the sign was lawfully erected by an authority having the requisite statutory power, the sign was of no force and effect and Mrs Walsh was not negligent in failing to observe it, or drive in contrary to it, notwithstanding other ways in which she breached her duty of care.
As I will later explain, the questions of who installed the sign, when it was installed, and its legal effect, if any, may be important questions in deciding whether BCC and RMS have any legal responsibility. The question of the legal force and effect of the sign has relevance also to the question of Mr Zraika's legal responsibility so it is convenient to consider that question now.
The legal regime relating to traffic signs as at November 2002 starts with the provisions of the Road Transport (Safety and Traffic Management Act) 1999 (NSW). Signs, signals and markings to direct or warn traffic on a road or road related area are referred to as "prescribed traffic control devices" (s 50). Only RMS or others directed by it may install a prescribed traffic control device (s 51). It is an offence for an unauthorised person to install one (s 52). By s 55, in proceedings for an offence for contravening a direction by a prescribed traffic control device, the device "is conclusively presumed to have been lawfully installed".
Under s 50, the regulations prescribe the traffic control devices for the purpose of the Act. Clause 131 Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999 (NSW) (repealed)) prescribed "any traffic control device of a kind mentioned in the Australia Road Rules that has effect for the Rules and under rule 315 of the Rules".
Rule 315 of the Rules provides "[a] traffic control device of a kind mentioned in the Australian Road Rules has effect for the Rules if" (my emphasis) inter alia, the device is on a road and it complies substantially with the rules. Road in this context includes a road related area. Rule 11 of the Rules provides that a reference to a road includes a reference to a road related area "unless otherwise expressly stated in the Rules". By Rule 13, a road-related area includes "an area that is not a road and that is open to or used by the public for driving, riding or parking vehicles". For present purposes, without deciding, I will assume that the parking area inside the factory complex is a road-related area. Clearly the driveway itself where it crosses the footpath is a road-related area.
The left turn only sign is within the curtilage of the factory complex. There is no doubt that in form and content it complies substantially with the rules.
Rule 88 provides: 88 Left turn signs (1) If there is a left-turn only sign at an intersection, a driver must turn left at the intersection. This is said to be an "Offence provision". By Rule 10, that phrase indicates "that a contravention of the rule (or sub-rule) [bearing it] is an offence". Clause 37 of the Regulation prescribes a maximum of 20 penalty units.
But Rule 88 does not apply to this sign. The dictionary to the Rules defines intersection as meaning "the area where two or more roads meet". The definition, twice, expressly excludes "any road-related area". Whether one considers the area within the curtilage to the factory complex or the driveway itself, Rule 88 does not apply because the area where a road-related area and a road meet is not an intersection as defined.
Rule 74 is also relevant. I will set it out in full as it appears on the Office of Parliamentary Counsel website (s 45C Interpretation Act 1987 (NSW)): 74 Giving way when entering a road from a road-related area or adjacent land (1) A driver entering a road from a road-related area, or adjacent land, without traffic lights or a stop sign, stop line, give way sign or give way line must give way to: (a) any vehicle travelling on the road or turning into the road (except a vehicle turning right into the road from a road-related area or adjacent land), and (b) any pedestrian on the road, and (c) any vehicle or pedestrian on any road-related area that the driver crosses to enter the road, and (d) for a driver entering the road from a road-related area - any pedestrian on the road-related area. Offence provision. Note 1. Adjacent land, give way line, stop line and traffic lights are defined in the dictionary, and road-related area is defined in rule 13. Note 2. Adjacent land or a road-related area can include a driveway, service station or shopping centre - see the definitions of adjacent land and road-related area. Some shopping centres may include roads - see the definition of road in rule 12. Note 3. Part 6 applies to the driver if there are traffic lights. Rule 68 applies to the driver if there is a stop sign or stop line, and rule 71 applies to the driver if there is a give way sign or give way line. Note 4. For this rule, give way means the driver must slow down and, if necessary, stop to avoid a collision - see the definition in the dictionary. (2) In this rule: road does not include a road-related area. Note. A road-related area includes any shoulder of a road - see rule 13. Example. Driver entering a road from a road-related area giving way to a pedestrian on the footpath and a vehicle on the road In this example, vehicle B must give way to the pedestrian on the footpath and to vehicle A. The rule makes no reference to a left-turn only sign. It does not say "without … left turn only sign". Using the notes as an aid to interpretation, one sees that each traffic control device mentioned after "without" is the subject of another specific rule. If another specific rule covers the circumstance it is to be obeyed. But there is no other specific rule covering a left hand turn only sign when entering a road from a road related area.
I interpolate that if the factory complex, its internal carriageways and parking areas do not form a road related area, they are undoubtedly part of "adjacent land" for the purpose of Rule 74.
There appears to be a lacuna in the Rules which applied as at 16th November 2002 (the lacuna may have been filled in the Road Rules 2014 by the current version of Rule 26). The lacuna is surprising given the interplay between Rule 43(1) and Rule 29 requiring a driver turning left from a road related area onto a road to comply with any road markings, which are defined as being "on the surface of the road". It seems strange that road markings apply, but left turn only signs do not. However, the Australian Road Rules and indeed the legislative system of traffic regulation generally as in force in 2002 were highly prescriptive and detailed, making it difficult to adopt any remedial mode of construction: compare Wentworth Securities Limited v Jones [1980] A.C. 74; Newcastle City Council v GIO General Ltd [1997] HCA 53; 1997 191 CLR 85 at 116; especially as this would require the adoption of a construction which imposes a penalty not clearly expressed in the statutory language.
I am driven to the conclusion that the left turn only sign within the curtilage of the factory complex was merely directory or advisory, rather than mandatory. Entering the intersection contrary to its "advice" did not expose Mrs Walsh to any penalty for contravention of any of the Australian Road Rules. It was not unlawful for her to cross the intersection to Tangerine St, as she attempted to do, by reason of the presence of the left turn only sign. Whether the factory complex is a road related area, and the sign installed by either BCC or RMS would make no difference to this conclusion.

Decision on Mr Zraika's legal responsibility

Every driver on a public road owes a duty to exercise reasonable care in the control and management of her or his vehicle to avoid unnecessary risks of injury to other road users. In common with other well established categories of duty, the duty of the driver is owed not only to other road users as a class, but to each member of that class individually. It is important to bear in mind that the particular duty in question in the present case, is not a duty owed to Mrs Walsh, but rather a duty owed to Sharif, Mr Zraika's then unborn son.
In assessing the question of breach of duty, Divisions 1 - 4 of Pt 1A Civil Liability Act 2002 (NSW) ("CLA") apply: s 3B(2)(a) CLA. (Division 8 dealing with contributory negligence has no application in the circumstances of the present case).
As with all cases of negligence, the starting point for the purpose of s 5B must be the correct identification of the risk of harm against which the plaintiff says precautions ought to have been taken: Roads & Traffic Authority v Dederer [2007] HCA 42; 234 CLR 330 at 337[18] and 351[59]. It is a mistake to over define the risk of harm with considerations of great specificity drawn from the particular circumstances of the case at hand: Chapman v Hearse [1961] HCA 46; 106 CLR 112 at 120 - 121; Rosenberg v Percival [2001] HCA 18; 205 CLR 434 at [64]; Shaw v Thomas [2010] NSWCA 169; Aust Tort Reports 82-065 at [43]. In Vincent v Woolworths Limited [2015] NSWSC 435 I said at [26] - [27]: It is difficult, however, to correctly identify the risk of injury without knowing something of what in fact happened. Gummow J spoke of the need to "accurately identify the actual risk of injury" faced by a plaintiff: Dederer at [59]. As I have said, correct identification of the risk seeks to elucidate "the true source of potential injury" (Dederer at [60]). In my judgment, these objects cannot be achieved without knowing what happened to the plaintiff. Indeed, every court always knows from the time the pleading is filed what the plaintiff said happened and what specific act or omission (failure to take precautions) she or he relies upon as constituting negligence. It should be recognised that there is an implicit degree of artificiality in assessing breach, after the event, prospectively. But the air of artificiality becomes overwhelming if one eschews all hindsight when correctly, or accurately, identifying the risk of injury at the outset. In putting it this way I am not attempting to defy authority binding on me rather, I am attempting to apply it in the ordinary, everyday business of the trial court. It seems to me, reading Gummow J's judgment in Dederer, especially from p 351 to 355, as a whole, the question of the proper identification of the risk is a precursor to the assessment of breach. That is to say it is a question logically anterior to, and separate from, the assessment of breach. At that preliminary point it is permissible, indeed necessary, to know what happened and what act or omission the plaintiff says constitutes negligence. These matters involve hindsight. When these things are known, one then embarks upon (returns to, as Gummow J put it: Dederer at [65]) "to the inquiry into the assessment of breach". From this point on, all hindsight reasoning is impermissible because hindsight diverts attention from what reasonable care required in foresight, to whether in hindsight the defendant could have prevented the accident which befell the plaintiff: Dederer at [65]; Vairy at [128]; Neindorf at [97]. The requirement to have some regard to what happened to the plaintiff for the purpose of correctly identifying the risk of harm arises because the relevant risk is that which materialised: Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 at [7]; Port Macquarie Hastings Council v Mooney [2014] NSWCA 156; 201 LGERA 314 at [53]. Applying this approach, I identify the risk of harm as a risk of Sharif being injured in a collision with a vehicle already in the intersection. The relevant acts or omissions said to constitute negligence, that is to say the failure to take precautions relied upon, are: overtaking the vehicles stationary at the stop line in lanes 2 and 3 by travelling through the left turn lane; failing to keep a proper lookout; failing to give way to Mrs Walsh's utility; failing to take evasive action; and failing to apply his brakes to avoid the collision.
In assessing breach prospectively it is important to bear in mind that a driver is, generally speaking, entitled to expect that other road users will exercise ordinary care. At the same time, the inattention, inadvertence and even carelessness of others is almost always within reasonable prospect: Nagle v Rottnest Island Authority [1993] HCA 76; 177 CLR 423 at 431. The interaction of these competing considerations has received the frequent attention of the courts, perhaps, in this field of discourse, starting with Joseph Eva Limited v Reeves (1938) 2 K.B. 393.
There, the Court of Appeal for England and Wales held that a driver entering an intersection with the green light owed no duty of care to a driver present in the intersection in disobedience to a red light even if the former drove in breach of traffic regulations by overtaking "at cross-roads". Their Lordships were of the view, however, that the former would owe a duty "to anyone lawfully on the crossing" (p 404).
In Trompp v Liddle (1941) 41 SR (NSW) 108, Sir Frederick Jordan CJ giving the judgment of the Court said (at p 109): A driver is entitled to assume that other drivers will observe the rules of the road. This does not mean that he may drive at any pace he chooses so far as roads coming in on his left are concerned, or with complete indifference to the possibility of a car suddenly emerging from a side road as a result of accident, miscalculation, ignorance or recklessness. It means that it is not unreasonable for him to act on the assumption that other drivers are obeying the rules, unless there is something which should make him realise that they are not.
In Henderson v Hassel (1986) 3 MVR 359 Wood J (as the Chief Judge then was) said: While it may be accepted that a defendant who enters an intersection with a green light in his favour will not always be blameless if he collides with another vehicle in the intersection, the traffic control signal is a powerful factor in his favour. His Honour's judgment provides a full, but succinct review of the relevant authorities including Sibley v Kais (1967) 118 CLR 424 at 427 where a unanimous Court said: What amounts to "reasonable care" is, of course, a question of fact but to our mind, generally speaking, reasonable care requires each driver as he approaches the intersection to have his vehicle so far in hand that he can bring his vehicle to a halt or otherwise avoid an impact, should he find another vehicle approaching from his right or from his left in such a fashion that, if both vehicles continue, a collision may reasonably be expected. Sibley did not involve an intersection controlled by traffic lights.
In another uncontrolled intersection case, South Australian Ambulance Transport Incorporated v Wahlheim [1948] HCA 32; 77 CLR 215 at p 228, Dixon J (as the Chief Justice then was) said: … it does not follow that the driver of what may be called the right-hand vehicle always behaves reasonably in assuming without looking that in view of the common behaviour of motorists in consequence of this provision he may safely drive over the intersection. In any given case that must depend upon the circumstances. Whether a particular act or omission is unreasonable and amounts to contributory negligence will doubtless often depend upon the rules, conventional or statutory, which other traffic may safely be expected to observe. What traffic uniformly does may be dictated by statute; but whether conduct arising from reliance on the expectation that all traffic will so behave is reasonable must depend less upon the state of the law than upon the practice which is in fact set up by the law. For laws may speak in vain.
Wood J was clearly of the view that intersections controlled by traffic lights were covered by a particular rule derived from Reeves. Whilst acknowledging the many cases which had distinguished Reeves case his Honour concluded: Whether there is a breach of the duty of care by the party with the right of passage will depend on all the other circumstances and prevailing conditions. This will include whether or not the other vehicle should have been seen by the driver with the green light, whether he ought reasonably to have anticipated that it would carry on, and whether once it was seen he could have done anything useful to avoid the accident. Wood J observed that it is for the plaintiff to prove negligence in the defendant not seeing the other car.
Finally, the questions posed by s 5B for the assessment of breach of a duty of care are questions of fact "but they are questions of impression and degree which cannot be directly proved by evidence of what is too remote and what is not, or what is reasonably foreseeable and what is not": Janesch v Coffey [1984] HCA 52; 155 CLR 549 at 571. These matters of impression and degree are informed by the normative standards embodied in the law of negligence, including the statutory purposes of the Civil Liability Act: compare Neindorf v Junkovic [2005] HCA 75; 80 ALJR 341 at [8] - [10]. Of these normative standards, in a case involving an intersection controlled by traffic lights, Hodgson JA said: One relevant effect of those [normative standards] is that a person driving a motor vehicle on a public road should, as a reasonable person, appreciate that there is a significant risk of causing serious and perhaps catastrophic injury to other persons; and for that reason should, as a reasonable person, exercise quite a high degree of vigilance, especially in the presence of other traffic and in the vicinity of intersections. (see Turkmani v Visvalingam [2009] NSWCA 211; 53 MVR 176 at [28]). I do not understand his Honour's reference to "a quite high degree of vigilance" as applying any standard different from the standard of the reasonable person in the circumstances. What reasonable care requires may vary according to the magnitude of the risk: Bernie Port Authority v General Jones Pty Ltd [1994] HCA 13; 179 CLR 520 at 554.
Returning then to the assessment of the breach of duty, I reiterate that the relevant duty in question was not the duty that may have been owed to Mrs Walsh rather; it was the duty that was owed to the other occupants of the car Mr Zraika was driving. In deciding whether the risk was foreseeable, and incorporating the risk of harm I have identified at [68] above, the question becomes was there a reasonably foreseeable risk of Sharif being injured in a collision with a vehicle already in the intersection. I am satisfied that the risk was foreseeable in the sense discussed by Mason J (as his Honour then was) in Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 at 47 - 8.
The evidence establishes that Mr Zraika was familiar with this stretch of roadway. On the day of the accident, he and his wife were on their way to visit his parents (92.35T). His description of the topography of the roadway shows Mr Zraika's familiarity with it (74.50 - 75.15T). In "A" phase northbound traffic on Woodville Rd receive a green light after the completion of "C" phase favouring traffic exiting Tangerine St. Although the numbers were small, a person familiar with the road ought to have known that vehicles exiting the driveway sometimes crossed to the westbound lane of Tangerine St or, more frequently, turned right into the northbound lanes of Woodville Rd. Moreover, Mr Zraika ought to have known that those movements out of the driveway tended to occur during the gap provided by Mr Lysaught's "all red period of time within the traffic signal operation" (207.20T), that is, in the seconds before the re-ignition of the green light for northbound traffic. When he crossed into the left-hand lane to overtake the stationary vehicles ahead in lanes 2 and 3, he ought to have had in mind that any vehicle exiting the driveway could still be in the intersection at the moment the lights facing him turned green and may have been unsighted to him because of the larger vehicles ahead. I am satisfied the risk of collision was foreseeable to Mr Zraika when he crossed into the left hand lane to overtake the stationary traffic.
Section 5B(1)(b) requires me to consider whether the risk I have identified is "not insignificant". With respect, I agree with Garling J that this primarily involves an assessment of the probability of the occurrence of the risk: Benic v State of New South Wales [2010] NSWSC 1039 at [101]. At the same time, the well-nigh inevitability of the materialisation of a trivial, transient injury may fall short of the statutory requirement of "not insignificant": a risk of catastrophic injury having a very low probability of occurring may be not insignificant. However in general terms, a risk that is extremely unlikely to occur is insignificant; a risk that is very unlikely to occur may well be "not insignificant". As with all matters going to the assessment of breach, matters of degree and impression, indeed judgment, will be important.
Bearing in mind what I have said about the facts informing my decision on foreseeability, the crash data information in Exhibit 3D2 and Exhibit 1D16 demonstrates that crashes, many involving injury, do occur notwithstanding that the intersection is, mainly, controlled by traffic lights. As Hodgson JA pointed out in Turkmani, it is the experience of ordinary people that driving a motor vehicle on the public road involves a significant risk of crashes causing serious, and perhaps, catastrophic injury. Notwithstanding the green light in his favour, the risk of a collision in the intersection causing injury to his passengers was not insignificant.
Section 5B(1)(c) involves the same type of balancing exercise required by the common law test expressed in Shirt. This balancing exercise must be carried out by reference to the content of the particular duty of care owed. This brings into play the considerations identified by Wood J in Henderson; the green light is a powerful factor in Mr Zraika's favour. Mr Zraika had "the right of passage", and the s 5B(1)(c) balancing exercise permits me to consider the matters identified by Wood J, as set out at [74] above as "other relevant things" within the meaning of the words in parenthesis in s 5B(2).
As there was no rule prohibiting Mrs Walsh crossing the intersection she was not a person "unlawfully" on the intersection like a person who enters it in disobedience to a countervailing red light, or a stop sign. As I will demonstrate at [82] below Mr Zraika's mode of entry to the intersection from the left turn lane was contrary to an "Offence provision" of the Australian Road Rules then in force. These considerations must necessarily attenuate whatever clear approach arises out of the reasoning in Reeves and Henderson.
Neither claim nor cross-claim brought against Mr Zraika alleges that he was travelling at an excessive speed in the circumstances. Rather the case against him, as I have indicated previously, is that he drove straight through the left turn lane in contravention of a traffic marking; failed to keep a proper lookout; failed to give way to Mrs Walsh's utility; failed to take evasive action; and failed to apply his brakes to avoid the collision. Mr Zraika did indeed drive through the left turn lane. This was in contravention of Rule 92 of the Australian Road Rules which was an "Offence provision" within the meaning of Rule 10. Clause 37 of the 1999 Regulation made it an offence (see [60] above).
It is clear law that breach of a road rule is not always completely consonant with negligence. In Sibley v Kais (at 427), the Court said: These regulations in nominating the vehicle which has another vehicle on its right as the give way vehicle are undoubtedly salutary and their breach is deservedly marked with criminal penalties. But they are not definitive of the respective duties of the drivers of such vehicles to each other or in respect of themselves: nor is the breach of such regulations conclusive as to the performance of the duty owed to one another or in respect of themselves. The common-law duty to act reasonably in all the circumstances is paramount. The failure to take reasonable care in given circumstances is not necessarily answered by reliance upon the expected performance by the driver of the give way vehicle of his obligations under the regulations; for there is no general rule that in all circumstances a driver can rely upon the performance by others of their duties, whether derived from statutory sources or from the common law. (See also Wahlheim at 228 - 9) On the other hand, breach of a road rule may be evidence of negligence: Trompp at [110]. But, in Reeves Sir Wilford Greene MR (at 403) said: It is to be observed that failure to observe a provision of the [Highway] Code does not in itself necessarily constitute negligence and that the effect to be given to such failure must necessarily depend upon the circumstances of the case. In some circumstances such failure may be sufficient to establish civil liability. In other such cases the fact of failure may have little, if any, relevance to the actual cause of the accident.
In Reeves, the defendant, a police officer driving a police car, was shown to have broken as many as 3 provisions of the code (see Scott LJ at 409). But he was adjudged not negligent because he had the green light and the vehicle with which he collided, which was unsighted to him because he was overtaking other vehicles as he entered the intersection, had run a red light and was therefore unlawfully in the intersection. In these circumstances there was no negligence and in the opinion of each member of the Court the breach of regulations had no relevance. That the other driver had run the red light was the decisive consideration in Reeves.
The traffic count (Exhibit 1D17) shows a small number of people engaged in the same manoeuvre of driving straight through the left hand turn lane. And Mr Johnston's evidence (recounted above at [35]-[38]), which I accept, suggests that a slower left turning vehicle may yet have collided with Mrs Walsh's utility as neither could see the other.
It may be argued that Mr Zraika was not entitled to proceed north from the left hand turn lane, just as Constable Reeves was not entitled to overtake at the cross-roads. Not all road rules have road safety as their primary purpose. Efficiency of traffic movement is another important purpose of the road rules, and to my mind, is the primary purpose of Rule 92. Designation of a left turn lane permits traffic to turn left into Tangerine St during both "A" phase where northbound traffic has a green light, and "C" phase when northbound traffic has a red light (Exhibit 3D3, p 8, Figure 5). Having regard to its purpose remaining stopped at the lights in the left turn lane during "C" phase would be a more significant breach of Rule 92, than Mr Zraika's conduct.
Given the small number of vehicles proceeding to Tangerine St from the driveway, the probability that the harm would materialise was low, although if it did, it could well be serious. The burden of remaining in lane 2 and coming to a halt while the traffic in front got moving was insignificant. And breaking the road rules has no social utility. The balance of these factors may suggest negligence, but other relevant "things" must be added to the mix. Mrs Walsh had put herself in a position where her vehicle could not be seen by Mr Zraika until it was too late, not by failing to heed the guidance of the sign she did not see, but hastening so slowly across the intersection when she must have known she had very limited time to complete the crossing safely. She knew that she could not see whatever traffic might be in the left turn lane. Even if she expected any such traffic would turn left, she rightly anticipated a risk of collision with any turning vehicle which may emerge as she crossed the alignment of that lane. That is why she decided to "inch" across it. She ought to have known that it was possible that a car would proceed through.
Mr Zraika had the green light and, in the ordinary course, one would expect the intersection would be clear when "A" phase commenced. There was reason to suppose that he should have seen Mrs Walsh's ute before entering the intersection. Even allowing for the high degree of vigilance at intersections that reasonable care requires of drivers, I am not persuaded that it was negligent of Mr Zraika to pass the vehicles at the stop line in the left turn lane when the lights turned green. That is to say, reasonable care did not require him to remain in lane 2 as he approached, in all circumstances.
I am not satisfied that Mr Zraika failed to take the precaution of keeping a proper lookout. Mrs Walsh said that although she was looking towards the left hand lane, she did not see Mr Zraika until it was too late for her to do anything, and she was travelling very slowly. I find that at all material times, at least until it was too late, Mrs Walsh and Mr Zraika were unsighted to each other, and could not have reasonably seen each other. But I am not persuaded Mr Zraika did not maintain that high degree of vigilance reasonable care requires as he approached and entered the intersection. He did see Mrs Walsh when she was there to be seen, but then it was too late.
From Mr Johnston's calculations, which I have referred to above, I am not satisfied that taking evasive action or applying the brakes were precautions that were available to be taken by Mr Zraika when Mrs Walsh's utility was first there to be seen. A reasonable person in his position would not have taken those precautions because they were simply not available when Mrs Walsh's utility was first there to be seen by an approaching driver.
As I have said, no party has raised excessive speed as a particular of negligence. Nor is there any evidence before me considering the matter prospectively, and not retrospectively, from which I could find that a reasonable driver in Mr Zraika's position would have approached the intersection at a specified lesser speed. There was no dispute that he was travelling within the speed limit on a major arterial road. Mr Johnston's evidence is that even at 20 to 25 kilometres per hour, the collision was "probably imminent", because of the shortness of the available perception and reaction time, when Mrs Walsh was first there to be seen by Mr Zraika. I appreciate what the High Court said in Sibley about the need to keep one's vehicle so far in hand so that accidents can be avoided, but this is done by the exercise of reasonable care. It is not to be expected in the modern traffic conditions prevailing since Sibley was decided, that a driver approaching an intersection at which she or he has the green light and travelling within the speed limit in good driving conditions must reduce the vehicle's speed to a level where it can be stopped in all eventualities: Derrick v Cheung [2001] HCA 48; 181 ALR 301.
The "principles" that Wood J has distilled from his review of the authorities in Henderson, always bearing in mind that the facts of previous cases have no precedential value, form part of the normative standards which inform the law of negligence in this area, likewise the considerations referred to by Hodgson JA in Turkmani. Applying those principles to this case, and bearing in mind that Mrs Walsh did not enter the intersection "unlawfully", I am not persuaded that Mr Zraika breached his duty of care. No question of legal causation of any breach by him therefore arises. If it had, the evidence of Mr Johnston at [38] above persuades me that Mr Zraika's driving was not a necessary condition of Sharif's injuries.

Liability of BCC

BCC is sued as the consent authority for the re-development of the factory complex at 161-187 Woodville Rd, Villawood. The application was made on 3rd December 1996 (Exhibit 3D7; Tab 3), and conditional consent was granted on 16th April 1997 (Exhibit 1D25). The case against BCC depends upon Sharif (in reality the Walsh parties) demonstrating that BCC was under a duty to use reasonable care in the exercise of its statutory powers under Environmental Planning and Assessment Act 1979 (NSW) (EPA). Specifically it is necessary to demonstrate that the duty is one to exercise reasonable care to avoid an unreasonable risk of personal injury to users of the intersection of Woodville Rd and Tangerine St.
The relationship of consent authority and road user is not one that falls into any recognised or established category of duty for the purpose of the law of negligence. Accordingly, in deciding whether the law imputes such a duty in the circumstances of this case, it is necessary to return to first principles. Thses principles are established both by the common law and statute, in particular Pt 5 CLA. Of these, consideration of governing statutes is of the first importance: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420 at 432 [11]. This involves the provisions of both the EPA and the CLA.
There is no issue before me that the development proposed for the site required approval (s 76 EPA). The powers BCC was called upon to exercise were conferred by ss 90 and 91 EPA. No party called into question the exercise by BCC of its powers to grant building approval (compare Makawe Pty Ltd v Randwick City Council [2009] NSWCA 412; 171 LGERA 165; Lee v Carlton Crest Hotel (Sydney) Pty Ltd [2014] NSWSC 1280).
So far as is relevant the powers to be exercised were conferred in the following terms: 90 Matters for consideration (1) In determining a development application, a consent authority shall take into consideration such of the following matters as are of relevance to the development the subject of that development application: (a) the provisions of: (i) any environmental planning instrument, […] that applies to the land to which the development application relates, […] (i) whether the proposed means of entrance to and exit from that development and the land to which that development application relates are adequate and whether adequate provision has been made for the loading, unloading, manoeuvring and parking of vehicles within that development or on that land, (j) the amount of traffic likely to be generated by the development, particularly in relation to the capacity of the road system in the locality and the probable effect of that traffic on the movement of traffic on that road system, […] (n) any representations made by a public authority in relation to that development application, or to the development of the area, and the rights and powers of that public authority, […] (p1) without limiting the generality of paragraph (a), any matter specified in an environmental planning instrument as a matter to be taken into consideration or to which the consent authority shall otherwise have regard in determining the development application, (q) the circumstances of the case, […] Section 91 relevantly provides: 91 Determination of development application (1) A development application shall be determined by: (a) the granting of consent to that application, either unconditionally or subject to conditions, or (b) the refusing of consent to that application. (2) Notwithstanding subsection (1), the consent authority shall refuse an application where the development referred to therein, being the subdivision of land, would if carried out result in a contravention of an environmental planning instrument or of this Act, whether arising in relation to that or any other development. (3) A condition may be imposed for the purposes of subsection (1) if it: (a) relates to any matter referred to in section 90(1) of relevance to the development the subject of the consent, […] (f) requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 90 (1) applicable to the development the subject of the consent, […] (3B) A consent may be granted subject to a condition expressed in a manner that identifies both of the following: (a) one or more express outcomes or objectives that the development or a specified part or aspect of the development must achieve, (b) clear criteria against which achievement of the outcome or objective must be assessed. The condition may specify the means by which the outcome or objective may be achieved. Section 92 requires the consent authority give written notice of its determination stating reasons for the imposition of conditions, or any refusal.
It was necessary for BCC to have regard to State Environmental Planning Policy No. 11 - Traffic Generating Developments (NSW) (SEPP 11). Clause 2 SEPP 11 was in the following terms: 2 Aims, objectives etc The aims, objectives, policies and strategies of this Policy are to ensure that the Traffic Authority: (a) is made aware of, and (b) is given an opportunity to make representations in respect of, development referred to in Schedule 1 or 2. Clause 7 provided: 7 Development applications to be referred to the Traffic Authority (1) Subject to subclause (2), this clause applies to applications for development consent to carry out development specified in Schedule 1 or 2. […] (4) Where a consent authority receives a development application (other than a development application to which subclause (3) relates) to carry out development specified in Schedule 2, being development on or of land that has direct vehicular or pedestrian access to: (a) an arterial road, or (b) a road connecting with an arterial road, if the access is within 90 metres (measured along the road alignment of the connecting road) of the alignment of the arterial road, the consent authority shall, within 7 days of its receipt of the application, forward a copy of the application to the Traffic Authority. (5) Where a copy of a development application has been forwarded to the Traffic Authority pursuant to subclause (3) or (4), the consent authority shall not determine the application until: (a) it has received a representation with respect to the application from the Traffic Authority, or (b) the Traffic Authority has informed the consent authority that it does not wish to make any representation with respect to the application, or (c) 21 days have elapsed after the date on which the copy of the application was forwarded to the Traffic Authority, whichever first occurs. (6) The consent authority shall forward to the Traffic Authority a copy of any determination of a development application referred to in subclause (3) or (4) when giving notice of that determination to the applicant pursuant to section 92 of the Act.
The 3 traffic engineers who gave concurrent evidence, Mr Johnston, Mr Hallam, and Mr Hollyoak, agreed that the DA as submitted was a SEPP 11 Schedule 2 Development. This was essentially because the DA proposed the extension of a building used for industrial purposes where the extension exceeded 5,000 sq metres (SEPP 11 Schedule 2(f)).
Bearing in mind the purpose of SEPP 11 is to make the RMS aware of, and to give it an opportunity to make representations in respect of, the development, RMS had issued a Guide to Traffic Generating Developments (the guide) (Exhibit 3D7, Tab 2). The purpose of the RMS guide was to deal with the administration of SEPP 11 and to provide procedures to be followed by Councils in exercising their powers "concerning developments listed in SEPP 11". Clause 9.2 of the guide provided: In accordance with the Traffic Act 1909 [now repealed], the [RMS] has the responsibility of: […] Establishing general standards and principles in connection with the design and provision of traffic control facilities; […] Promoting traffic safety. The [RMS] therefore functions as the central point of reference for traffic matters. It has a responsibility to provide advice about the development's impact on traffic generation, and to provide guidelines on vehicular movement and parking requirements for such developments.
The guide established a procedure for consultation which included reference to the Council Development Committee (CDC). The CDC was chaired by BCC's nominee, probably its traffic engineer. Representatives of RMS and the police service were the other members of the CDC.
The guide required BCC to provide certain specified information to the police and RMS representatives. At its meeting CDC was required to "discuss the traffic and safety implications of the proposal" (the guide [9.5.2]) by reference to, inter alia, driveway dimension and location, and "any traffic management measures … required by the proposal". As a member of CDC, RMS was required to evaluate the proposal. This included an evaluation of "the need for new traffic management measures … including whether access control may be required". (the guide [9.5.3]) As a member of CDC the Police Service was required to evaluate "the number and location of driveways (site visit is necessary)" and "any other related matter".
The Committee was required to make a "decision". It and any other oral advice given was to be recorded and provided to Council. After receipt of the CDC's advice, the "Council should consider such advice in the context" of s 90 EPA (the guide [9.5.2]).

Civil Liability Act

Its long been recognised that a public authority may be subject to a common law duty of care when exercising a statutory power or performing a statutory duty: Sutherland Shire Council v Heyman [1985] HCA 41; 157 CLR 424 at 458; Sermon v Commissioner of Railways (1907) 5 CLR 239 at 245 and 254; The Mayor of the City of Essendon v McSweeney (1914) 17 CLR 524 at 530; Caledonian Collieries Limited v Speirs (1957) 97 CLR 202 at 221. The common law also recognised, however, that special considerations applicable to statutory and other public authorities may negative a duty of care which a private individual would owe in apparently similar circumstances: Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1 at [79]; these factors may result in the standard of care owed to a plaintiff by a statutory authority being less than that which would be owed by a private individual in similar circumstances: Pyrenees Shire Council v Day [1998] HCA 3; 192 CLR 330 at 394 - 5. These sometimes conflicting common law principles have been, to some extent, incorporated into, and modified by Pt 5 CLA. Part 5 was enacted by Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW). By Sch 1, Pt 3, Cl 6, Pt 5 extends to civil liability arising before its commencement on 6th December 2002 unless proceedings had been commenced before that date. No such proceedings had been commenced in this case and accordingly, Pt 5 applies whether or not any liability to Sharif accrues at the date of the accident or at the date of his birth.
There is no doubt that BCC is a "public or other authority" for the purpose of Pt 5 because it is a local council: s 41(d) CLA. A number of provisions of Pt 5 are relevant to the present case. First, s 42 which applies both when deciding whether BCC has a duty of care and, if so, in assessing breach. Secondly, s 43A which serves to attenuate the standard of care applicable when deciding whether a public authority is liable for the negligent exercise of "a special statutory power": Curtis v Harden Shire Council [2014] NSWCA 314; 203 LGERA 354; 68 MVR 1. Thirdly, s 46 which abrogates any general application of the principle applied in Caledonian Collieries v Speirs (at 221) "that when statutory powers are conferred they must be exercised with reasonable care so that if those who exercise them could by reasonable precaution have prevented an injury which has been occasioned, and was likely to be occasioned, by their exercise, damages for negligence may be recovered".
In very general terms, it may be said that Pt 5 CLA infuses the law of negligence with some concepts borrowed from public law: compare Pyrenees at 347 [24] - [26] per Brennan CJ. At the same time, it must be borne in mind that the field of discourse is the law of negligence: Curtis at 4[5] per Bathurst CJ.
In the circumstances of this case, a DA having been lodged, BCC was bound to exercise the functions imposed by s 90 EPA and make a determination as required by s 91 EPA. Therefore, the general provisions of s 42 which require the Court to bear in mind BCC's limited resources; its "right" to allocate those resources; and the breadth of the activities it is required to perform, are likely to be of limited significance: s 42(a) - (c), compare Crimmins at 21 [34]. On the other hand, s 42(d) relating to general procedures and applicable standards as evidence of the proper exercise of BCC's functions may remain in play.
In my judgment, s 44 can be put to one side as it applies to liability said to be based upon the failure to exercise or consider exercising a function to prohibit or regulate an activity. With respect, I agree with Beech-Jones J in Lee for the reasons his Honour gives at [389] - [420] that "s 44 is meant to encompass a true non-feasance case at common law" (see [396]). The present case does not raise the difficulties that arose in Lee about "inter-connected statutory powers". Moreover, I agree with his Honour, by reference to Pyrenees at 347[25], that, assuming duty, Sharif is an individual among the class of users of the intersection whose personal security is intended to be protected by the exercise of the s 90 and 91 EPA powers. Accordingly, he would have "locus standi to seek a public law remedy", as artificial as that conclusion may seem in the case of an unborn child: see Lee at [400] - [402].

Other applicable principles

As I have said, the relationship between a consent authority for land adjacent to the highway and the user of that highway is not a relationship recognised by the law of negligence as giving rise to a duty on the part of the former to use reasonable care in the exercise of statutory powers to avoid unnecessary risks of personal injury to the latter. In Makawe at 171 [17] Hodgson JA said that the correct approach to determining whether a duty of care exists where there is no body of precedent establishing the duty is to be undertaken by reference to the principles distilled and explained by Allsop P (as the Chief Justice then was) in Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649 at 646 [102] - [104]; see also 687 - 8 [156] - [160] per Basten JA.
At 676 [102] Allsop P said: If the circumstances fall within an accepted category of duty, little or no difficulty arises. If, however, the posited duty is a novel one, the proper approach is to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by references to the "salient features" or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury. His Honour then identified 17 salient features arising out of his analysis of the authorities. It is not necessary in every case to make findings about all of them, nor is the tabulation exhaustive. "Rather, it provides a non-exhaustive universe of considerations of the kind relevant to the evaluative task of imputation of the duty and the identification of its scope and content."
It is appropriate therefore to consider the facts established by the evidence relating to BCC's exercise of its statutory function in determining the DA. Before doing so, I record that the question of whether, the exercise of the powers the subject of ss 90 and 91 EPA gives rise to a duty of care actionable under the law of negligence has being considered in a number of cases, including Makawe and Lee. In both of those cases it was held that no duty was to be imputed. These decisions are not categorical in the sense of establishing that there may never be such a duty, rather they depended upon the normative evaluation of the salient features which arose out of their own particular circumstances.
In Makawe Pty Ltd v Randwick City Council Hodgson JA said at [43]: I see no reason to disagree with any of these cases, and I would draw the following general propositions from them: (1) General statements such as that of Gibbs CJ in Heyman, to the effect that when statutory powers are conferred they must be exercised with reasonable care, do not mean that in all cases, where a local authority exercises statutory powers in respect of the approval of subdivisions and/or building work, it owes a duty of care in respect of those approvals to developers and/or subsequent purchasers of the property. (2) However, if the approving authority is subject to a statutory requirement not to give consent unless it is satisfied of something, the courts may well find a duty, owed to developers and to purchasers, to exercise reasonable care in considering whether it is so satisfied: Taitapanui, Western Districts. (3) If the approving authority actually knows something seriously detrimental to the subdivision or the building, and is aware that it is likely that developers and/or purchasers do not know this, the courts may well find a duty owed to developers and purchasers to exercise reasonable care in relation to that detrimental feature: Fregnan, Finlayson, Booth. (4) If the approving authority makes a positive requirement that something be done which otherwise would not be done, the courts may well find a duty owed to developers and purchasers to exercise reasonable care in making that requirement: Fregnan. (5) If the approving authority is required to consider or take into account some particular matter which bears on the structural integrity of buildings to be erected, the courts may well find a duty owed to developers and purchasers to exercise reasonable care to avoid risks of property damage arising from this matter: Fregnan, Bamford. (Full citations omitted.)
It is important to bear in mind that Makawe was a claim for damages for pure economic loss. In such cases the law of negligence always errs on the side of caution. Although the matter was "quite finely balanced" (181 [56]), Hodgson JA found no duty of care established.
Like this case, Lee was a claim for damages for personal injury. Beech-Jones J found that the local government authority owed a duty of care in other capacities but not as the consent authority. His Honour summarised his reasons at [355]: One discrete form of statutory power exercised in this case was the power to grant development approval. I have described the criteria involved in the exercise of that power above. It was not suggested that any aspect of the statutory scheme involves any consideration being given to the personal safety of users or occupants of buildings the subject of the proposed development. In my view it was not reasonably foreseeable that a failure to exercise reasonable care in granting development approval could result in physical or psychiatric injury to a user or occupant of any building constructed as a consequence. It follows that the Council did not owe either Mr Lee or Ms Lee or other potential users of the car park a duty to exercise reasonable care in granting development approval under s 91 of the EPA Act.
As I will seek to show, it is mandatory in this case for the consent authority to give consideration to the personal safety of the users of the intersection. The statutory purpose is not inconsistent with the imputation of a duty of care.

Factual considerations

As I have previously stated the DA was lodged on 3rd December 1996. The estimated cost of the development was $2,550,000. It proposed the following: 1. Subdivision of a single lot into lots A and B; 2. Construction on lot A of 16 factory units; and 3. Construction on lot B of a 3,600 sq metre warehouse and 600 sq metre office block. There was to be 8,180 sq metres of new floor space and 94 new car spaces.
In accordance with the regulatory regime I have previously described, the application was referred to CDC which tendered certain advice to Council to which I will return.
Council's responsible officer made a written assessment of the DA (Exhibit 3D7, Tab 4). The assessment process included a site inspection. Relevantly, the council officer recorded that there were "two driveways existing - southernmost driveway opposite set of lights". The Council officer referred to the SEPP 11 referral and that "[p]olice (Bass Hill) suggest a number of amendments to the proposal to effect compliance with RTA guidelines", obviously a reference to the guide. He also recorded, again by reference to SEPP 11, that the local traffic committee considered the proposal and advised no objections. If this is a reference to CDC, as I think it is, then this may not be completely accurate, a memo from the traffic engineer dated 12th March 1997 notwithstanding (Exhibit 4D9). However, when dealing with traffic considerations, the assessor recorded the qualification, "southern driveway to be modified to be exit only" and, the need for some modification of the internal driveway system "to ensure compliance with RTA guidelines as recommended by police". It seems to me that these matters are objections from CDC
Under the heading "Assessment Summary" the following printed matter appears: Following a detailed assessment of the application having regard to the Heads of Consideration under s 90(1) of the Environmental Planning and Assessment Act 1979, the provisions of relevant planning instrument as well as all relevant council DCP's codes and policies, the following matters are considered important to this application. The assessor wrote the following: Condition of consent to address redesign of driveway access points and internal road design to comply with RTA guidelines Addition DA fees ([blank]) required prior to determination.
The police representative was unable to attend the CDC meeting which was convened for 11th March 1997, but by letter dated 7th March 1997, that representative (Snr Constable B.W. Bovill) set out his or her views (Exhibit 1D23). I will not set it out in full, but a general understanding of it is necessary to understand the assessment made by BCC as consent authority. Police concerns about the southern exit were expressed as follows: Due to the utilisation of the north driveway, with access to the units and to reduce conflicts with the traffic flow on Woodville Roadd, the driveway should be an EXIT ONLY, with the reduced width of 4 - 6 metres. The driveway should also be offset, to such a degree as to prevent any attempts to enter off Woodville Road. Amongst other things, the officer suggested modifications to ensure that the internal roadway or driveway was "one-way clockwise only". The officer also recommended that there should be a deceleration lane "to allow a safe access into the development via north entry/exit driveway". This was to avoid interference with southbound traffic on Woodville Rd, which "is a major arterial road for north and southbound traffic". The officer made it clear that the police service did not consent to the application.
A traffic effects statement was lodged with the DA (Exhibit 1D24). It suggested that both driveways should be "in and out". It also referred to "directional arrows indicated on the DA". There was some dispute about which plan was lodged with the DA, either Exhibit 1D25 (formerly MFI 6) or Exhibit 4D8 (formerly MFI 7). It is clear to me that the approved plans are those forming part of Exhibit 1D25. That plan bears a stamp to the effect that it is the plan referred to in "Council's approval". Exhibit 4D8 is a slightly different version of the same drawing. It is clear, however, that it is intended to be the landscaping plan required as a condition of approval in Council's determination notice no 1137 dated 16th April 1997 (Exhibit 1D25). It bears Council's stamp dated 22nd September 1998. The approved plan contains directional arrows signifying that each driveway is both "in and out" and showing the direction of travel in the internal roadway/driveway.
BCC determined the DA by granting consent subject to conditions. The first condition was that development was to be in accordance with the approved plans which contained amendments made by BCC during the approval process. One of the experts said that amendments to the plans made in this way were incorporated in the approval (Mr Hallam 296.45T; 299.45T; Exhibit 4D7 p 10 [2.16]). The amendments relevant for present purposes are that each driveway was shown as "in and out". The in lane was to have a minimum width of 6 metres and the out lane 4 metres. These lanes were to be separated by a raised concrete median "with appropriate sign-posting". Appropriate sign-posting is probably a reference to the "keep left" sign shown in the photographs (Mr Hallam 280.10T); a requirement for a raised concrete median with appropriate signage in a triangular shape to direct traffic into the clockwise one way circuit of the internal roadway.
The dimensional requirements in relation to the driveways were reinforced by Condition 8 which provided for the Council to construct the driveways at the applicant's expense. I bear in mind that there were existing driveways, but I infer from the evidence that they required reconstruction in the dimensions, and to the specifications stated in the consent. I also infer that this was to comply with the guide in relation to industrial property. Indeed the evidence of all the experts was that the dimensions specified were greater than those prescribed by the guides. They met the minimum requirement for a category 3 driveway under AS2890.1 (Mr Hallam 282.10T; Mr Hollyoak 282.30T) which was more than schedule 2 of the guides called for. (The standard has 5 categories.)
From the terms of the determination and a consideration of the approved plan it is apparent that there is no condition requiring that the southern driveway be exit only, and no condition requiring exiting vehicles to turn left only. This is obvious from reading the material, and it is obvious to the experienced traffic engineers who gave evidence: 278.30T; 279.45T; and 280.25T; 283.5 - .10T, Mr Hallam, Mr Hollyoak and Mr Johnston. The landscaping plan (Exhibit 4D8) noted a revision of the plan "requested by council planner, traffic movement restricted", but this probably related to the triangular median strip to direct traffic in the internal roadway into the clockwise one way circuit.

Did BCC owe a duty of care when exercising its power to grant consent in April 1997

The question of the existence, and if one exists of the nature and scope, of a duty of care is a legal question to be determined by reference to common law principle as modified by the provisions of Pt 5 CLA. Notwithstanding the heading to Division 2 of Pt 1A CLA, the general principles established by ss 5B and 5C relate to the assessment of breach not the existence of a duty: Adeels Palace 432 - 3 [13]. The logical starting point and first salient feature is the foreseeability of harm. As Beech-Jones J points out in Lee foreseeability is more than a salient feature, it is an essential prerequisite to the existence of a duty of care: [353]. In Tame v New South Wales [2002] HCA 35; 211 CLR 317 at [12], Gleeson CJ stated that "[a] necessary, although not sufficient, condition of the existence of a legal duty of care is reasonable foreseeability of the kind of injury that has been suffered by the person to whom the duty is owed". As Mason J (as the Chief Justice then was), said in Wyong Shire Council v Shirt (p 47) "the concept of foreseeability in connexion with the existence of the duty of care [involves] a more generalized inquiry" than that apposite to the assessment of breach.
Contrary to the submission of BCC, it is not necessary for the plaintiff to show "the precise manner in which his injuries were sustained was reasonably foreseeable; it is sufficient that it appears that injury to a class of persons of which he was one might reasonably have been conceived of as a consequence": Chapman v Hearse at 120 - 1. As Windeyer J expressed the principle in Mt Isa Mines Limited v Pusey (1970) 125 CLR 383 at 402: Foreseeability does not mean foresight of the particular course of events causing the harm. Nor does it suppose foresight of the particular harm which occurred, but only some harm of a like kind.
At the time BCC was making its determination in relation to consent, it had carried out a site inspection which disclosed that the southern driveway led into a signalised intersection. It also knew that the police representative on the CDC was concerned about the need "to reduce conflicts with traffic flow on Woodville Rd" which may be created by the use of the southern driveway and suggested changes to guard against this. The object of the RMS guide included the promotion of traffic safety. DA's on land adjacent to, or near, major roads were evaluated to assess their possible effect on traffic safety. Traffic safety must be taken in context to be a reference to the personal safety of road users affected by the development. The risk of personal injury arising out of conflicts with traffic entering and leaving the driveway into the otherwise signalised intersection was clearly foreseeable.
Personal injury was the nature of the harm likely to occur if the risk materialised; and personal safety from negligently inflicted harm is an interest which the common law readily promotes.
BCC did not have the capacity to render the intersection completely safe. But it had complete control over the location and dimensions of the driveway, as well as the use to which it would be put. It had the ability to impose conditions which would eliminate "traffic conflicts" caused by vehicles using the driveway in an uncontrolled, or unrestricted, manner.
The plaintiff was vulnerable. He was a "passenger" in a car being driven through the intersection. Any passenger is vulnerable because of the limited ability of passengers to protect themselves against the risk of collision. As an unborn child it was impossible for him to take steps to protect himself.
There could be no question of actual reliance by the plaintiff upon the defendant. The concept of general reliance has been discredited by the judgments in Pyrenees Shire Council. On the other hand, as Hodgson JA pointed out the real question relates to "foreseeability of the plaintiff's reasonable reliance": Makawe at 174 [23]; Heyman at [147]. One may say that it is foreseeable that as a class, road users rely upon statutory authorities to exercise reasonable care in the management of traffic at controlled intersections for the avoidance of the risk of collisions. The emphasis is on actual or constructive knowledge of the defendant: Makawe at 174[26].
The defendant had no option but exercise its statutory function, but it assumed responsibility for exercising them in accordance with the dictates of the statute, SEPP 11 and the guide. There was proximity between BCC and road users travelling through the intersection in the relational sense. The nature of the activity undertaken by BCC had, as one of its purposes when evaluating the DA, and if granting consent, to impose conditions that promoted traffic safety having regard to the potential effect of the development on traffic management in the near vicinity of main roads. No question of indeterminacy of liability arises: the nature of the harm under consideration is personal injury, and the class of potential plaintiffs is limited to persons actually injured in traffic conflicts engendered by the exercise of the statutory power. No additional time, trouble or expense on the part of BCC was required. BCC was required by statute to undertake the assessment of the DA and no additional expense is involved in it performing that task carefully having regard to the foreseeable risk of harm. Imposing a duty of care furthers the purposes of the statute and no question of incoherence "in the structure and fabric" of the law would arise from the imposition of a duty.
Turning to consider the principles expressed by Hodgson JA in Makawe, I bear in mind, by reference to s 46 CLA, that general statements that statutory powers must be exercised with reasonable care made in some authorities do not mean that in all cases, a duty of care will arise. Given that BCC was bound to consider matters arising under SEPP 11 and that CDC advised BCC of the potentiality for traffic conflicts together with the means of avoiding them, a duty to exercise reasonable care in considering whether to impose conditions which gave effect to the advice it had received would further rather than hinder the statutory purpose. The risk of personal injury implicit in the advice about traffic conflicts received by BCC is a factor pointing to a duty to exercise reasonable care in considering whether conditions to avoid them should be imposed.
I have not overlooked the requirements of s 42(d) CLA. Some of the considerations it imposes will need to be revisited if it is necessary to assess breach. However, there is nothing in the evidence in this case which suggests any of the matters it refers to stand decisively in the way of a finding that the BCC owed a duty of care.
In my judgment, BCC owed a duty to road users crossing the intersection to exercise reasonable care in discharging its statutory functions for the avoidance of the risk of personal injury arising out of traffic conflicts engendered by the development.
I should record that BCC invoked the principle expressed in Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254. This argument depended upon the proposition that the accident could not have occurred unless at least one driver drove "illegally", that is contrary to a traffic control device. Either Mrs Walsh drove contrary to the left turn only sign or Mr Zraika disobeyed the road markings in the left turn lane. On my findings both "breaches" occurred. In my judgment there are two answers to this submission. First, it approaches the foreseeability inquiry contrary to the principles I have discussed arising out of Chapman v Hearse, and Mt Isa Mines v Pusey. Secondly, it assumes that breach of a traffic regulation rises to the same level of criminality as the vicious assault inflicted on the plaintiff by strangers to the relationship of proximity in Modbury Triangle. For the reasons discussed in cases like Sibley v Kais a breach of traffic regulations does not rise to the same level of criminality. Breaches by a plaintiff of such regulations do not disentitle her or him to damages: Henwood v Municipal Tramways Trust (South Australia) (1938) 60 CLR 438. Moreover, a purpose underpinning the duty, if one is imputed, is to reduce traffic conflicts. Neither Mr Zraika nor Mrs Walsh was a stranger to the relationship of proximity in this case. They were within the class to whom the duty was owed.

Additional factual matters relevant to breach

Before turning to the assessment of breach, it is necessary to make a number of additional factual findings, the first of which concerns when and by whom the left turn only sign was installed in the factory complex. I have already remarked that there is no direct evidence about these matters. Legal authority for the installation of traffic control devices on a road or road related area rests solely with RMS or its delegate. It is illegal for any other person to erect such a sign. The same situation pertained under s 4D Traffic Act 1909 (NSW) which was in force when consent was granted in April 1997. However, the left turn only sign is wholly within the curtilage of the factory complex. The photographs show that there are large cyclone gates which can be closed to deny entry to members of the public. It is clear that employees and customers like Mrs Walsh are entitled to enter the premises and park, but there is no evidence from which it can be inferred that the internal driveway and parking spaces are open to or used by members of the public, as members of the public, for parking generally. The factory complex is perhaps more accurately classified as adjacent land, rather than as a road-related area. The driveway is clearly a road-related area as defined.
The probabilities are that only one of three parties could have erected the sign: RMS, BCC as the delegate of RMS (see Exhibit 3D7; Tabs 5, 6 and 7), or the developer/occupier of the factory complex. It cannot be a contravention of the traffic legislation for the occupier of private land to place a sign wholly within his, her or its land advising invitees leaving by the driveway to turn left. And Mr Lysaught gave evidence that such signs could be purchased "[f]rom a commercial sign producer. They are a stock standard sign" (180.20T).
Notwithstanding the regulatory framework, it seems to me likely that the sign was installed by the occupier. Had it been installed as a condition of development consent, I would have expected to see an express condition requiring it, or a reference to it on the approved plan. Having regard to Mr Hallam's evidence (280.10T) I am not satisfied that such a sign is covered by the expression "appropriate signage" endorsed on the amended plan, relating to the median strips. This relates only to a "keep left" sign. Had it been erected or installed by BCC pursuant to some other specific exercise of a statutory function or delegation, one would have expected to see some reference to it in the documentation.
Notwithstanding RMS's great statutory powers, the flavour of the evidence was that it was unlikely that RMS would have installed the sign itself. Mr Lysaught said he did not know "who put it in place" (179.40T). Mr Allan Bastable, an engineer employed by RMS from 1975 until his retirement in March 2014 said, his understanding is "it would not be a sign that was maintained by the RTA" (238.25T, see also 237.5T). He doubted whether the RMS would have installed it and thought it more likely that "it would have been installed as part of the determinations of the development application" (238.30T). The difficultly I have with this latter answer, is that had it been installed as "part of the determinations of the development applications" it would have been documented, as I have said. It still remains that neither Mr Lysaught nor Mr Bastable, both credible witnesses, had any appreciation that it was an RMS installation. After the event, RMS decided to install an "all traffic turn left sign" on the median strip. That work was documented in a written authority dated 4th December 2002 (Exhibit 1D18). Had RMS installed the original sign, I would have expected it would have been documented and that such document would be produced.
I am satisfied that neither BCC nor RMS installed the sign. I confess to being far from certain about this matter, but on the balance of probabilities, I am satisfied that it was installed by the occupier.
In my judgment, the developer/occupier probably installed the sign sometime between development consent in April 1997 and about early 1999 for reasons which the evidence does not disclose. I have reached this conclusion because I am satisfied it was not an existing sign as at the date of the development consent. Snr Constable Bovill was required to carry out a site inspection and clearly did. He or she makes no mention of it in the careful recommendation to the CDC. The assessor, who undertook the assessment of the DA also carried out a site inspection, which included an inspection of the existing driveways. He noticed, and noted, the traffic lights. He made no mention whatsoever of the sign. Likewise, the plan which became the approved plan, put in as part of the DA, makes no mention of it.
As I have said, the approved plans required substantial modifications to the existing driveways. I infer that their dimensions were changed. Moreover, Condition 8 required a very substantial reconstruction of each of them by the Council or with its consent. If the developer wanted the works carried out by his contractor, a further written application was required "following building approval" (my emphasis). There is no evidence that such a written application was made and the inference is that the Council carried out this work. Moreover, the amended plans show arrows in and out of each driveway. There is no suggestion at the southern driveway that the intention was that there be a left turn only. Nor is there any condition to this effect imposed in the development consent itself.
The sign was not installed at the time of development consent, there was no condition requiring it to be installed nor was it installed by BCC when it constructed the driveway.
However, it was in place by about the early months of 1999. A proposal was being propounded in 1999 on behalf of the developer that the driveway leg of the intersection should be brought into the system of signalisation which controlled its other legs. The initial approach to RMS by Mr Bridgman, a traffic consultant acting on behalf of the developer, was in October 1998. There may have been some earlier discussions because his letter of 14th October 1998 is directed to a named person (Exhibit 1D5). It refers to "two existing cross-over driveways" and proposes bringing the southern driveway under signalisation. I interpolate that the reference to two existing driveways may suggest that by then Condition 8 had not been complied with, but I think this unlikely, even allowing for the consideration that developments can be slow to get off the ground. By 22nd February 1999, amended plans had been submitted by the traffic consultants incorporating an amendment required by RMS.
At some stage during this process, Mr Lysaught attended to inspect the site. His evidence was that he became aware of the sign "after the opening of the development though one of my staff and his dealings with councils [sic]". He said he attended at a time he no longer remembered and actually saw "an all traffic left" sign at both exits from the factory complex onto Woodville Rd.
Mr Lysaught's evidence, on its own, may suggest that his inspection was at some later time. However, signalisation was one of Mr Bastable's responsibilities and he had been informed of the proposal to signalise the southern driveway. He was aware that the developer had offered to pay. Indeed that was the only basis on which he was prepared to go along with the suggestion (227.15T). He was given a set of drawings and said he was then told "there was a left turn only sign there" (228.10T). This must have been no later than March 1999 when the amended drawings were put in. Whilst I am far from certain, I am persuaded, on the balance of probabilities, I am satisfied that the sign was installed by the developer by that time.
I should record that in his report of 21st May 2004 (Exhibit 3D5), Mr Hollyoak (at [2.6.11], p 59) records seeing a letter the project-managers for the development wrote to BCC on 19th May 2000 stating that "the access points have been designed and constructed in consultation with the council engineer". That letter is not in evidence before me, and on tender of the expert reports I made an order excluding the effect of s 60 Evidence Act 1995. I may not rely upon this hearsay (256.25 - .35T).

Expert evidence

All of the experts were of the view that the conditions subject to which the development consent was granted imposed no restriction on entry and exit from the southern driveway. As Mr Hollyoak put it (Exhibit 3D5, p 17) "all movements into and out of the driveway were therefore deemed acceptable". At [2.4.1] (p 11) of his report he said: In my opinion, the driveway arrangements recommended by [CDC] relating to the 1997 DA were in accordance with the Australian standard in so far as they would have provided "traffic management means of providing for safe and efficient operation of the driveway" as referred to in AS 2890.1 Clause 3.2.3(a)(iii). Had these improvements been secured by planning condition, these would have provided the driveway to an acceptable standard. In my view, a better solution would have been to restrict the driveway to exit only … which could have been supplemented by an island which directed drivers to turn left only. Appropriate signage and line markings would also be required.
In his report of 3rd May 2004 (Exhibit 4D7, p 8[7]), Mr Hallam expresses similar views. He states that BCC should have imposed a restriction on movement that all traffic leaving the site had to make a left hand turn. However, a left hand turn only sign is "the minimum treatment to achieve this". A road marking on the driveway could reinforce the restriction, as would the construction of a sold triangular median island angling exiting traffic to the left.
Mr Johnston's opinion was the same. At p 53, Figure 9.5 of his report (Exhibit 1D20) he provided a photograph of the type of triangular island that he says could have been adopted.
All experts adhered to these views during the concurrent evidence. An alternative solution was a "left in, left out" arrangement using "a triangular island to physically allow only those two movements" (Mr Hollyoak (287.30T); Mr Hallam (287.45T)). Mr Johnston regarded a filter lane as essential if there was to be a "left in/left" out arrangement (228.25T). Mr Hollyoak and Mr Hallam disagreed (289.5T). I understand the filter lane to be along the same lines as the police officer's "deceleration lane". I preferred the evidence of the other experts on this point.
Had the left turn only sign been in place at the time of the consent, contrary to my finding, Mr Hallam and Mr Hollyoak would have been satisfied that the minimum requirement was in place (Mr Hallam 296.45T).
As I have said, however, all agreed that the terms of the consent and the amended approved plans were consistent with unrestricted access through the southern driveway (297.20 - .35T).
The experts agreed that if the southern driveway was to operate as an exit only driveway, it would have been necessary to prohibit a right hand turn from northbound Woodville Rd into the driveway (347.15T). At the time of the consent there was a concern about whether that could be achieved. The Motor Traffic Regulations 1935 (NSW) and General Traffic Regulations 1916 (NSW) then in force stated that the driver of a motor vehicle driving on a public street may make a right hand turn on that street for the purpose of getting access to a "driveway" (Exhibit 4D10).
However Mr Johnston explained that it would be possible to offset the driveway (again as recommended by Snr Constable Bovill) so that entry from the northbound lanes of Woodville Road was not possible (301.5 - 302.10T). I accept this evidence.
All experts pointed out that the median that was required to be constructed has since been removed (presumably with DCC's consent) to permit easier entry by large trucks from the southbound lanes of Woodville Rd. There is now a road marking on the southern aspect of the driveway, indicating left turn only as well as the left turn sign. With the removal of the median strip, the additional left turn sign installed by RMS in December 2002 has also been removed. It has been replaced by the road marking.

Did BCC breach its duty of care

The starting point for the assessment of breach is the correct identification of the risk of harm, as I have said above. The assessment of breach has to be made in accordance with the provisions of s 5B, 5C and 43A CLA. Section 43A applies where a statutory authority's liability is said to be based on the exercise, or failure to exercise, a special statutory power. Section 43A(2) defines a special statutory power as one conferred by or under a statute, which is "of a kind that persons generally are not authorised to exercise without specific statutory authority". There can be no question in the present case that in exercising its functions as the consent authority under EPA, BCC was exercising a special statutory power. Persons are not generally authorised to tell others what they may do with their land.
There is a body of Court of Appeal authority suggesting that s 43A imposes an additional pre-condition to the existence of civil liability based upon the exercise or failure to exercise a special statutory power: Warren Shire Council v Keuhne [2012] NSWCA 81; 188 LGERA 362 at [117]; MM Constructions (Aust) Pty Ltd v Port Stephens Council [2012] NSWCA 417; 191 LGERA 292 at [213]. On my reading of the various judgments in Curtis, the correct position is that s 43A attenuates or lowers the standard of care to be observed by a statutory authority in cases to which it applies from the otherwise universal standard of the reasonable statutory authority in the position of the defendant to a lessor standard derived from Wednesbury, or manifest, unreasonableness: liability will only arise where the act or omission relied upon by the plaintiff as constituting negligence is "so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, of failure to exercise its power"(s43A(3)).
Bathurst CJ at [5] referred to "the standard of care required by the section" (emphasis added). The Chief Justice contrasted that standard with the standard in s 5B of the Act, which usually applies to the assessment of breach. His Honour also said: … it is evident that the legislature was intending to set a different and lower standard. At [6] his Honour said "the standard is set by what a holder of the statutory power could properly consider reasonable."
Beazley P at [221] referred to "the meaning of the standard of care prescribed by s 43A" (emphasis added).
Basten JA dealt with the section at [257] - [279] under the heading "The statutory standard of care". At [266], after referring to Stovin v Wise [1996] AC 923 and the distinction between omissions and positive conduct discussed by Lord Hoffmann, his Honour said "[t]he distinction is apposite in the present context because s 43A picks up both acts and omissions in prescribing a low standard of care" (emphasis added). At [272], referring to the recommendations contained in Review of the Law of Negligence Final Report (Commonwealth of Australia 2002) his Honour said: What is curious about the recommendation is that it appears to assume, … a duty of care and imposes a standard with respect to which liability is to be judged. (emphasis added) Basten JA also pointed out that Lord Hoffmann's approach from Stovin was abandoned (by Lord Hoffmann) in Gorringe v Calderdale Metropolitan Borough Council [2004] 2 All ER 326; [2004] UK HL 15. His Honour described the Gorringe approach as "considering the standard of care as an aspect of breach". In that sense s 43A conformed to the English approach as at the date of its enactment. His Honour expressed the standard as "an act or omission that is "so unreasonable" that no authority acting reasonably could "properly consider the act or omission to be reasonable"": Curtis at [277]. The standard is that, and is to be assessed from the standpoint, of "a responsible public authority having [the] particular expertise and functions"([278]). The section "envisages a range of opinions as to what might constitute a reasonable act or a reasonable failure to act, but asks if no public authority properly considering the issue could place it within that range" ([279]).
The starting point for the application of s 5B is the correct identification of the risk of harm. I will apply the approach I described at [68] above. The relevant risk of harm, of course, must be viewed from the standpoint of BCC or a responsible authority in its position. The relevant risk of harm in my judgment is the risk of personal injury arising from collision occurring in the intersection by permitting unrestricted movement out of the southern driveway into a signalised intersection. The suggested precaution is accepting the recommendation of the CDC and imposing planning conditions giving effect to it. This would have restricted traffic movements in the driveway to "exit only" reinforced by a triangular island directing traffic to turn left into the southbound lanes of Woodville Rd (Exhibit 3D5 [2.4.1] - [2.4.2]).
In my judgment the risk of harm was foreseeable in the sense that it was real rather than remote, far-fetched or fanciful. I ignore entirely the RMS crash data and traffic count from 2002. BCC had the benefit of the views of Snr Constable Bovill which raised this very problem of "traffic conflicts" in the intersection unless movements from the driveway were restricted. This was a matter it was required to consider under SEPP 11 and the RMS guide.
I am of the view that the risk was not insignificant. The probability may have been low in strictly statistical terms, but crashes with vehicles emerging from the driveway attempting to cross the intersection were not very unlikely to occur, and if they materialised serious injury could result.
I turn then to s 5B(1)(c) which must be read as though it incorporated the standard fixed by s 43A(3), and by reference to s 42. In exercising its powers to impose conditions on traffic movement to and from a development on land adjacent to a main road, a consent authority is entitled to expect that drivers entering and leaving the premises will exercise ordinary care for their own safety. At the same time, in the absence of appropriate restrictions it is foreseeable that a proportion of exiting drivers will attempt to cross the intersection to enter Tangerine St or turn right into Woodville Rd in the 4 seconds when all lamps are red. The Council's assessor knew the intersection was otherwise controlled by traffic lights. It was from this proportion of users that the real risk arose.
I bear in mind that in applying the standard of care for the purpose of assessing breach, I must look at the case from the standpoint of the responsible authority as defined by Basten JA, looking forward from when the DA was determined and without knowledge of the accident which has in fact occurred.
It is important to bear in mind that the present case is one involving an alleged omission in the course of exercising a special statutory power, rather than a failure to exercise a statutory power. The omission is a failure to impose traffic restrictions on the southern driveway.
Notwithstanding the memo from BCC's traffic engineer (Exhibit 4D9) that the CDC had no objections, which from Exhibit 3D7, Tab 4, the assessor knew was erroneous, I am satisfied that no consent authority properly considering the traffic movement and safety matters raised at CDC of which it was aware could have decided to leave movements into and out of the driveway entirely unrestricted. Viewed from the standpoint of a responsible authority, a reasonable exercise of the powers conferred by s 90 and 91 EPA required the imposition of conditions restricting traffic movement into and out of the southern driveway. Given the unanimous evidence of the experienced traffic engineers I have set out above, a responsible council would have imposed conditions giving effect to the prescription expressed by Mr Hollyoak. I appreciate that Mr Hallam had no difficulty with traffic entering the driveway from Tangerine St or indeed from the southbound lanes of Woodville Rd. I am also mindful of the perceived difficulty with restricting right turns from the northbound lane 3 on Woodville Rd. But given the material the assessor had available at the time he made his decision, the exit only option would have been selected by the hypothetical responsible authority involving a suitably offset driveway supplemented by an island requiring drivers to turn left into the southbound lanes of Woodville Rd. This option would have overcome the perceived legal difficulty, because the driveway would not, as a matter of practicality, be accessible by a right turn from northbound traffic on Woodville Rd. It would also have excluded traffic heading east out of Tangerine St. I do not fully accept Mr Hallam's evidence that there was no risk with this traffic. Unrestricted movement out of the driveway permitted right turns into the northbound lanes of Woodville Rd. Traffic conflict may arise between a driver exiting the driveway to turn north into Woodville Rd and another proceeding from Tangerine St, straight across the intersection in an attempt to enter the driveway as configured on the approved plans.
I appreciate that Mr Hollyoak's prescription leaves the potential for collisions between traffic turning left out of the driveway and other traffic heading south on Woodville Rd. However, this is an area of conflict that a responsible authority could properly consider ought to be left to the expectation that exiting drivers will exercise reasonable care for their own safety. The manoeuvre does not involve the same magnitude of risk of collision as unrestricted movements across the intersection.
Considering the s 5B(2) matters, the probability that personal injury would arise from a collision if care were not taken was relatively low, given the previous use of the existing driveway albeit in a much smaller development. But it was likely that any resultant personal injury could be serious or even catastrophic. From the standpoint of the responsible authority, there was little or no difficulty, inconvenience or expense involved in imposing appropriate conditions including by simple amendments to the approved plans. The social utility of the work of local government as a consent authority is high, but that consideration is not sufficient, when weighed in the balance with the countervailing considerations to deflect a decision that BCC was negligent in failing to take the precautions I have identified against the risk of personal injury resulting from collisions involving vehicles exiting the premises and driving across the intersection, applying the s 43A standard.

Further contentions as to breach by BCC

I am not satisfied that any of the other contentions advanced against BCC by the Walsh parties have been made good.
It is important to bear in mind that BCC is sued in its capacity as a consent authority. It really had no involvement in the signalisation proposal. It is true that Mr Bridgman, the traffic consultant then acting for the developer, had some discussions with Council officers and from that garnered that if there was to be an amendment of the development consent to permit or require signalisation, a further application would be required (Exhibit 4D1). But no such further application was ever made. Although he could not recall it (143.15T), Mr Bridgman wrote to BCC on 28th May 1999 (Exhibit 1D14) suggesting uncontrolled access from the southern driveway may prove hazardous, promoting the idea of signalisation for the driveway leg of the intersection and seeking a meeting with Council officers to discuss the proposal. It is important to bear in mind that at this time, the plans for signalisation still incorporated a median strip as shown on the approved plans, albeit with an extension to comply with RMS's requirements (Exhibit 1D11). It was not until July 1999 that the requirement for a central median was deleted to provide room for 12.5 metre trucks to turn in to the "access road from wholly within the left lane on Woodville Rd" (Exhibit 1D15).
Council apparently did not respond to Mr Bridgman's letter. However it would be unfair to say that Council did nothing. A Mr Lindsay, the civic approvals officer, referred it to his superior. Mr Lindsay's superior pointed out that RMS controlled Woodville Rd and, given their agreement, he did not consider the consent required modification, provided the access driveway design remained as approved. I repeat at this time, the plans approved by RMS included a central median. Mr Lindsay wrote to the traffic engineer of BCC seeking his comments stating "it has been confirmed that the approved access point to the development is not altered by this proposal" (Exhibit 1D21). The experts were of the view that a change in consent would be required if the median was to be removed: 364.35-367.25T.
One might say that good manners, courtesy, or commercial professionalism required a response from BCC to the traffic consultant. But it remains, that as a professional, the traffic consultant appreciated a further application may be required. In these circumstances, there was no requirement for BCC to do anything. It is impossible to categorise this as a failure to exercise a special statutory power. I formed the impression from Mr Bridgman's evidence that he was not particularly phased by the lack of response from BCC. The later plans deleting the median strip were never sent to the Council (155.35T; 157.10T). He had in mind that RMS "is the road authority for the signals", and had approved the plans. Although BCC was the "consent authority for the development" he did not believe that signalisation was something BCC would have objected to. That was something he was prepared to worry about if and when it arose (157.45 - 158.5T).
Perhaps more importantly, the signalisation proposal was not further advanced by the developer. On 23rd August 1999, RMS wrote to the traffic consultant stating the design had been accepted subject to a further amendment (Exhibit 4D5). The plan was duly amended and the amendment provided to RMS. However, the traffic consultants said "we are not yet engaged to project manage these works" (Exhibit 4D6). In evidence Mr Bridgman agreed that the costs "were starting to blow out" (154.45T). Mr Bastable's evidence was that "depending on capital works, the signalisation of one leg of an existing intersection could have been in excess of $100,000" (Exhibit 3D4 [19]). Additionally, RMS required a bond of $90,000 for completion of the works, which Mr Bridgman said had gone up from $62,000 (154.45T). He accepted that "at the end of the day it is a commercial proposition" (155.5T).
Mr Bastable also made it quite clear that RMS were only prepared to approve signalisation of the access to the factory complex if the developer was prepared to pay (227.5 - .15T, 227.35T, 228.15 - .25T). He said at 227.10: Well, I don't think you can leave aside the costs or who would pay it because that is the basis of our ‑ our programming strategy. We ‑ we have clearly a lot of objectives and a very finite number of dollars available so in the event that the developer had offered to pay that and in the event that the delay to the other three legs was not significant, we would have allowed the developer to pay that money and signalise that leg, but we wouldn't not have actively chosen to signalise that leg either on the basis of our traffic management objectives or on the basis of our safety objectives given the sort of numbers I have seen in the period after that, so‑‑ The reference to numbers is a reference to the crash data and traffic count. I accept this evidence.
I find that the proposal to signalise the access did not proceed beyond September 1999 because the developer lost interest. In all probability, had the developer wished to proceed at its own expense, approval would have been forthcoming not only from RMS, but also from BCC provided, in the latter case an application was lodged in proper form, and in both cases all fees and charges were met.
I am conscious that the cost of signalisation is likely to have been between 5 and 10 per cent of the estimated cost of the development at the time the DA was lodged. However, it is not unknown for developers to operate at the margins and for additional costs in the order of 5 to 10 per cent to significantly drag upon the prospect of a profit.
The Walsh parties have not made a case in negligence against BCC for failing to exercise its powers to amend the consent to permit signalisation.

The subsequent development applications

Between 28th February 2000 and 15th October 2001, there were six development applications in individual industrial lots within lot A, and a proposed strata subdivision of lot A. It is said on behalf of the Walsh parties that the realisation of these developments changed traffic management considerations significantly calling for the April 1997 consent to be revisited by BCC when determining the individual DAs. Mr Hallam agreed that the strata subdivision may have provided an opportunity for review. However, it was his view that the individual developments did not materially change the use of the complex or expected traffic movements. He gave the following evidence (356.30T - 357.10T): To answer the question, I would refer you to page 16 of my statement, where I track through the development consents that I found on the council file for the years 2000 and 2001. So, starting off with D340/2000 for units 14 and 15. If 15 per cent of the total floor area was used for ancillary sale and show room, there would be a small increase in traffic generation over a purely industrial use. D548/2000: "Using unit 4 for light manufacturing of plastic bottles, no retailing". That would not have changed what would have been assumed in the consent. D1013/2000: Strata subdivision, current use light industrial". Without any proposed change in use, there is no suggested increase in traffic generation over what would have been assumed. D1552/2000: "Unit 11 for storage of blocks and forklift driver training". I would say it will be minimal change. If it is just storing concrete blocks that would be a lesser generations than a typical industrial use. Bringing in a couple of people learning how to drive a forklift truck, it is probably no more than getting that industrial unit up to a more typical staffing rate. So, I would not see that unit 11 would have changed a typical generation rate for an industrial unit. D2112/2000: "Construction of a mezzanine floor to units 2 and 3 for storage purposes only, no retailing". That would proportionally increase the warehouse space of that unit, but a warehouse space, storage space, there would be not a lot of change to its traffic generation. At the most, there might be one extra store person, I don't know. But that in itself would not have a major change in the traffic generation over the day. And the final one, D1164/2001: "Construction of the mezzanine floor to units 14 and 15 for lunch room and storage". Well, restricted to lunch room and storage, that does not change the overall generation, other than with a bit more storage. In theory, you might have, maybe one more staff, but probably not. But it does not really change much what you would assume the factory unit to be generating over the day. So, looking at all of those, I do not believe that they suggest a significant change in daily traffic generation to what would have been assumed in the original consent." I accept this evidence.
Mr Hollyoak's evidence was to the same effect: (356.10 - .20T). Mr Johnston was of another view, he believed that there had been material change in that a multiplication of businesses selling to the public introduced visitors who would not be familiar with the traffic arrangements. He said it is not just the number, but the type of user: 357.45T.
I prefer the evidence of Mr Hallam and Mr Hollyoak on this point. I accept that as development progressed the use of the premises, and traffic movements, continued more or less as originally expected. The traffic count in April 2002 (1D17) supports Mr Hallam and Mr Hollyoak, whose evidence I prefer. The traffic count shows about 80 movements into or out of the driveway during each of the morning and afternoon peak periods.
I find that the development applications, which doubtless were dealt with on the papers, did not require a reconsideration of the April 1997 consent. This evidence does not satisfy me that an omission to revisit the conditions relating to traffic access was in the circumstances so unreasonable that no consent authority could properly consider that omission to be a reasonable exercise of its power.

Causation

It is necessary for Sharif, really the Walsh parties, to prove on the balance of probabilities that BCC's negligence caused Sharif's personal injury. This requires the application of s 5D CLA. Causation has two elements as follows: (a) That the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) That it is appropriate that the scope of the negligent person's liability to extend to the harm so caused (scope of liability). Unlike breach, questions of causation are assessed with the benefit of hindsight: The inquiry into the causes of an accident is wholly retrospective. It seeks to identify what happened and why. (Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 at 461 [124] per Hayne J.) On the findings I have made, if I may use shorthand, but for the failure of BCC impose conditions restricting traffic movements from the driveway, including requiring the construction of the island to direct traffic to turn left into the southbound lanes on Woodville Rd, the accident would not have occurred. That is to say, the failure to observe these requirements was a necessary condition of Sharif suffering personal injury.
Certainly one could argue that a driver may have been determined to go into Tangerine St and would have driven across the traffic island or doubled back once she was clear of it to undertake that manoeuvre. However, that argument, quite properly, is not advanced by anybody against Mrs Walsh. I accept, as I have said, Mrs Walsh's evidence that she was looking for a directional sign when exiting the premises, but did not see the sign that was there. Had she seen it, I accept she would have followed it. Had there been an island directing traffic into the southbound lanes on Woodville Rd, I accept she would have followed it, headed south and ultimately turned around by means of the underpass.
BCC, however, submits that there are 5 reasons why I should not be satisfied about causation. The first is that there was a sign actually in place and the joint expert report (Exhibit 1D22) accepts the sign was located in accordance with the applicable Australian standard and was consistent with the minimum planning requirement.
I have not accepted that a left turn only sign represented a minimum planning requirement. At best, a sign positioned as the left turn only sign was for the reasons I have given merely advisory, not regulatory. Moreover, Mrs Walsh looked for a sign and failed to see it and Snr Constable Moloney, I infer, accepts that a motorist might miss the sign as it was positioned position. One may accept that some motorists will choose to disobey traffic control devices. On the other hand, the numbers provided by the traffic count demonstrate that in excess of one-quarter of drivers exiting by the driveway "disobeyed" the sign. This strikes me as a high number and I think rather reinforces the view that the single sign, positioned where it was, could easily be missed. The whole point of the traffic island directing the flow of exiting traffic is to enhance compliance with a left turn only requirement. The position, of course, would be different if Mrs Walsh had seen the sign and drove across the intersection in disregard, or defiance, of it.
BCC's second point is that as Mrs Walsh gave evidence that she did not see the median strip, she would not have seen any additional left turn only sign that was erected upon it as a condition of consent. However, it is not accurate to say that she did not see the traffic island on the day. Rather, her evidence was, 12 years after the event, that she did not believe there was "any kind of traffic island in the driveway". At 57.30T she said that she did not "remember" a concrete median. When asked about the "keep left" sign she said "absolutely no sign". I accept that this is an emphatic statement, but she is clearly wrong about it. In my view she must have seen the "keep left" sign on the median strip which simply directed her to keep to the left of the median. She had simply forgotten about it when she gave evidence years later. For what it is worth had there been a second left turn only sign on the median strip, on the evidence I accept, I find that she would have seen it and complied with its advice.
The third point is that as BCC's control, or involvement ended when it granted consent, a number of factors could have occurred before 16th November 2002 to breach any condition it might have imposed. The RTA might have exercised powers to erect or remove signs, or it may have decided to signalise the driveway. Other examples were given. None of these things in fact occurred before the accident. The driveway remained in the condition required by the conditions of the consent until the accident. The only addition, on my findings, was the occupier installing the left turn only sign. Causation is concerned with what happened and why, not with what might have happened if other events had occurred. I reject this argument.
The fourth argument addresses Snr Constable Bovill's views. It is advanced in two parts. Snr Constable Bovill's letter to CDC was admitted for limited purposes. It was not admitted to prove the truth of her or his opinions, only that they were expressed. In my judgment this makes no difference. This is information that was before the assessor when he was considering the DA and which he applied to his evaluation. The assessor was entitled to rely upon the police views and apparently did; that is the evidential significance of Snr Constable Bovill's views, not whether they were factually correct. The second point is that he was concerned about preventing any attempts to enter the driveway off Woodville Rd, not leave that way. After all, his recommendation was that the southern driveway should be exit only. This was a different risk and the principles discussed in Wallace v Kam [2013] HCA 19; 250 CLR 375 were engaged. I reject the argument. I acknowledge the principle expressed at 385 [24]: A limiting principle of the common law is that the scope of liability in negligence normally does not extend beyond liability for the occurrence of such harm the risk of which it was the duty of the negligent party to exercise reasonable care and skill to avoid. Thus, liability for breach of a duty to exercise reasonable care and skill to avoid foreseeable harm does not extend beyond harm that was foreseeable at the time of breach.
BCC's submission states Snr Constable Bovill's concerns too narrowly. He was concerned about traffic conflicts with the traffic flow on Woodville Rd. That was the very risk which materialised in this case. Moreover, the question is not about the police officer's views. The question is about the duty of the consent authority and I have found it was BCC's duty to exercise reasonable care and skill (subject to s 43A) to avoid the very risk that materialised in this case. There is no question of remoteness in the sense advanced for the purpose of this contention.
The fifth contention relates to the "failure" of BCC to respond to Mr Bridgman's letter of 28th May 1999 (Exhibit 1D14). This question does not arise because I have found that BCC had no duty to respond, and in any event signalisation did not proceed because the developer lost interest.
As this may be seen as a novel category of duty, the question of scope of liability does arise. The statutory scheme for considering traffic movements and road safety in relation to development applications on land adjacent to or near main roads clearly requires consideration of aspects of the safety of road users. It is consistent with the statutory purpose that the powers conferred on BCC be exercised to obviate the identified risk. For these reasons I am satisfied that the scope of BCC's liability should extend to the injuries suffered by Sharif.

The legal responsibility of Roads & Maritime Services

I accept RMS's submission that it is sued in its capacity as a traffic control authority, rather than as a road authority. For what it is worth BCC was also the relevant road authority under Roads Act 1993 (NSW). RMS accepts that the relationship between traffic authority and road user may give rise to a recognised category of duty (submissions p 12[76]). This concession, with respect, seems to be correct - see Turner v Ku-ring-gai Municipal Council (1990)72 LGRA 60; 12 MVR 321 at 328 and the authorities there referred to. Turner was a pre-CLA case. Its continued authority must be considered in the light of subsequent legislative amendments including the provisions of Pt 5 CLA discussed above. RMS relies in particular upon the provisions of s 42 and 43A.
I understood the argument of RMS to accept that the content of the duty it owes may in a general way still be taken to be accurately expressed in the language of Gaudron J in Crimmins at 21[34]: A public body or statutory authority only has those powers that are conferred upon it. And it only has the resources with which it is provided. If the common law imposes a duty of care on a statutory authority in relation to the exercise or non-exercise of its powers or functions, it only imposes a duty to take those steps that a reasonable authority with the same powers and resources would have taken in the circumstances in question. To give content to this statement of law it is necessary to have regard to the terms of RMS's governing statute and the sources of its statutory powers. Before doing so, it is worthwhile setting out briefly the case made against it.

The case against the third defendant

The case against RMS is that through its involvement in the CDC, it was privy to Snr Constable Bovill's concerns; it should have inspected the driveway for itself and taken steps to erect a traffic control device; secondly, from its interaction with Mr Bridgman about the signalisation proposal, it should have made a further inspection to determine for itself whether further action was required, which would have lead it, "at the very least", to erect the additional signage installed in December 2002; and thirdly the information it acquired from the April 2002 traffic count, taken with the other knowledge from its involvement in the CDC and its interaction with Mr Bridgman ought to have lead it to take the December 2002 action sooner and before 16th November 2002. It is not clear that the Walsh parties are maintaining the argument that signalisation of the driveway leg should have been undertaken. By their written submissions, I assume that they contend the required precaution was the installation of additional signage such as that illustrated in Exhibit 1D1.4, before the accident on 16th November 2002 (Walsh submissions p 14 [100]).
Exhibit 1D1.4 shows the concrete median with a left turn only sign and keep left sign on a single pole. That work was authorised by RMS on 4th December 2002 and completed by 16th December 2002 (Exhibit 1D18).

Statutory powers - road signs

At the times relevant to these proceedings, RMS (or its predecessor) was a statutory corporation established by s 46 Transport Administration Act 1988 (NSW) exercising functions conferred under various legislation, including the Transport Administration Act, Roads Act 1993 (NSW) and Road Transport (General) Act 1999 (NSW). As I have already explained, traffic signs and markings are traffic control facilities (or devices) for the purpose of the legislation. I have already referred above to the relevant provisions of the Road Transport (Safety) and Traffic Management Act (1999).
Very wide powers and function are conferred on RMS under s 52 of the Transport Administration Act in relation to traffic management and traffic safety. The functions include the co-ordination of the activities of authorities relating, inter alia, to erecting or affixing traffic control facilities. As defined in the Roads Act traffic control work extends to "any activity in connection with inter alia the erection or installation of a traffic control facility".
As originally enacted s 87 Roads Act authorised RMS to "carry out traffic control work on all public roads and public streets." A public road was one that was opened or dedicated as a public road and declared to be a public road for the purpose of the Roads Act. A public street was separately defined in the Traffic Act 1909. These provisions did not permit RMS to undertake traffic control work or install traffic control devices on private land. They were in force at the time of the April 1997 approval.
The Traffic Legislation Amendment Act 1997 (NSW), which came into force 29th June 1998, amended, inter alia, the Roads Act and introduced the concept of road and road-related areas instead of public road and public street. Section 87 then authorised RMS to "carry out traffic control work on all public roads, all paths or transit ways that are not public roads and on all roads or road-related areas" (surplusage for present purposes omitted). I have set out the material part of the definition of road-related area above at [58].
It follows that between 11th March 1997, when RMS participated in the CDC until 29th June 1998, RMS did not have power to install a traffic control device, or carry out traffic control work, on private land adjoining a road. Accordingly, it had no statutory powers to exercise in respect of the internal roadways of the factory complex before 29th June 1998. No duty could arise to exercise a non-existent power.
In any event, by its participation in the CDC, RMS was aware of the recommendations made to BCC as the consent authority. As site inspections had been carried out by the assessor and by the police representative, no occasion arose for it to carry out its own site inspection.
I reject the argument that RMS had a legal obligation under the law of negligence to erect the signage depicted in Exhibit 1D1.4 prior to 29th June 1998. This conclusion rests upon an absence of power and it is unnecessary to consider the application of the provisions of CLA in this regard.

The position after 29th June 1998

I have found that the left turn only sign within the curtilage of the factory complex existing as at November 2002 was not installed by either BCC or RMS. Rather, it was installed by the occupier (or developer) for reasons not disclosed by the evidence and that it was in place in the early part of 1999, when the reconstruction of the driveways was probably complete.
Contrary, to the submissions of RMS, I have found that RMS became aware of the existence of the sign during the course of its dealings with Mr Bridgman over the signalisation proposal. This arises from the evidence of Mr Lysaught and Mr Bastable which I have referred to above. It is important to also bear in mind that RMS would have received a copy of the April 1997 consent in accordance with SEPP 11 and the guide. There is no reason to suppose that the legislative scheme was not complied with. Accordingly it would have been aware that the sign was not installed as a condition of consent. RMS was in a better position than anyone to appreciate that the left had only sign was of no regulatory effect. At best, it was an advisory sign erected by the developer/occupier of private land.
There is a question in my mind about whether the amendments which came into effect on 29th June 1998 made any difference to RMS's power. This is because I doubt whether the internal driveway or roadway within the factory complex was a road-related area. As I have said more than once the driveway certainly was. Rule 74 of the Rules reproduced at [62] above, certainly suggests a source of power somewhere to erect traffic control devices, including traffic lights, governing egress from adjacent land. For the purpose of its submissions, RMS seems to assume against itself that from 29th June 1998 the internal driveway was a road-related area. It knew it was not a public road hence it drew to Mr Bridgeman's attention that it would need to be reconstituted as one if the signalisation process went ahead. It clearly assumed it had the power to erect the additional signage in December 2002 even though the sketch plan it prepared to demonstrate the required work shows that the sign is to be erected within the curtilage of the factory complex. I will treat RMS as essentially conceding, or not disputing, that after 29th June 1998 it had statutory power to carry out traffic control work within the curtilage of the factory complex, to the extent to which it relates to the entry of traffic from the factory complex onto the adjoining main road.

Did RMS Breach its duty after inspecting the driveway in or about 1999

The starting point is to correctly identify the risk of harm that in fact materialised. From RMS's standpoint, the risk is the same as the risk identified from BCC's standpoint. Both were statutory authorities with different powers that may be exercised in relation to traffic movement and traffic safety in the intersection. However, from RMS's standpoint as about March 1999, the advisory sign has to be factored in. The risk of harm then is the risk of personal injury being suffered by other road users due to drivers leaving the complex, disregarding the advisory sign and proceeding across the intersection to enter Tangerine St or turn north on Woodville Rd. No greater degree of particularity is called for.
The precaution contended for by the Walsh parties is installing additional signage such as that illustrated in Exhibit 1D1.4 (which was in fact installed by 16th December 2002).
In assessing foreseeability, RMS is entitled to expect that drivers will generally use reasonable care for their own safety. This will involve following signs. At the same time as Mr Lysaught, himself, acknowledged a proportion of people will disobey signs. Allowance always has to be made for inattention or even carelessness: Nagle at 431. The prospect of a motorist driving in disregard to the sign, or failing to see it was foreseeable (178.35T).
The next question is, was that risk not insignificant. There is no evidence that as about March 1999, RMS had any actual knowledge of drivers disregarding, or even missing, the sign and driving across the intersection; or if it was occurring, the frequency of it. At that time, then, the risk was theoretical. Notwithstanding the concerns expressed by Mr Bridgman for the purpose of promoting the proposal for signalisation, RMS had no actual or constructive knowledge that the theoretical risk was not insignificant, even accepting that traffic collisions when they occur can cause serious or even catastrophic injury.
If I am wrong about s 5B(1)(b), for the reasons explained by Basten JA in Curtis at [245] and [256], the power to install traffic control devices in a road related area is a special statutory power within the meaning of s 43A. Accordingly, the standard of care was the lower standard fixed by s 43A(3). I am not persuaded that failing to erect the additional signage in or about early 1999 was an omission involving a failure to exercise a statutory power which in the circumstances was so unreasonable that no authority having the power to install traffic control devices on road related areas could properly consider the omission to be a reasonable failure to exercise its power.
In reaching this conclusion, I have taken into account the evidence of Mr Bastable as to the breadth of RMS's responsibilities, the limits of its resources and the allocation of the resources decided upon by it for the purpose of carrying out its statutory responsibilities (Exhibit 3D4).
In arriving at this conclusion, I have also taken into account the contents of Exhibit 3D2, the crash data for the intersection between 1st July 1998 and provisionally to 30th June 2002. As Mr Bastable says in Exhibit 3D4 [26] - [27] the only accident involving the driveway appears to have been caused by a vehicle turning right from northbound Woodville Rd into the driveway colliding with a southbound vehicle. No vehicle exiting the driveway was involved. But his evidence is not quite correct. Another incident seems to have involved a vehicle exiting the driveway to head north; see [40] above, 167.15T. However this was not picked up until attention was drawn to it in cross-examination.
Nor do I think it makes any difference that the work performed in December 2002 was likely to have been relatively cheap. Mr Bastable estimated it to be in the range of $1,000 to $3,000 (234.35 - 235.15T). At 234.30 - .40T He said: Q. However, if a traffic management issue can be dealt with, at least to some extent, by a much cheaper solution, such as the installation of a traffic direction sign, then the same budgetary constraints and criteria will not apply, will they? A. I need to concentrate on what my role was. My role was in the allocation of resources. There were operational sections of the RTA that were in the business of prioritising all of the treatments from big to small, and so every project had to be prioritised. And so the presumption that your question has, that this is the next most marginal project that we could be doing with that marginal dollar, is not necessarily true. So, that's what I would say by way of answer, that if one could have done something differently here, that might have made a difference, why didn't we do it, is that there were many other places where it has been that same $1,000, $2,000 or $3,000 might have even more benefit than doing something here. That is the difficulty with the question that I have, is that your question presumes that this was the next most marginal thing we could have done with the marginal $1,000. I can assure you there were many other things we were doing, in terms of redirecting signs or splinter islands or whatever, which [in]volved many, many potential crashes, not just the occasional potential conflict. So, I have to go back to the prioritisation. The whole programming philosophy at the RTA at the time was that you prioritise those works which have the best benefit for even a very small amount of money. (Emphasis added)
I am not persuaded that RMS breached its duty in about the middle of 1999 when it inspected the intersection.

Did the April 2002 traffic count make any difference?

The April 2002 traffic count was arranged in response to complaints made to RMS by a member of the public (Exhibit 3D(6)). Mrs Mills raised her concerns with RMS by letter dated 25th September 2001. They were threefold: first, the traffic turning right into Woodville Rd from the left eastbound lane of Tangerine St; secondly, traffic northbound on Woodville Rd making U-turns at the lights; and thirdly, traffic northbound on Woodville Rd turning right into the factory complex. She received no immediate response and followed up with a further letter on 16th April 2002. It was in response to her complaint however that the April 2002 traffic count was commissioned.
As I have already pointed out, the traffic count was carried out by external contractors on 3rd April 2002. As I said at [41] above, the traffic count demonstrates slightly more than one-quarter of all vehicles exiting the driveway across the intersection to either Tangerine St or turn right into Woodville Rd to head north. In the context in which the traffic count was organised, this must be regarded as an incidental finding. I reiterate, Mr Lysaught, who was the RMS officer who dealt with this matter said he was not concerned by the numbers because they represented a very small proportion of all vehicles using the intersection. But he acknowledged a "potential for crashes".
Mr Lysaught replied to Ms Mills by letter dated 4th July 2002 (Exhibit 3D6). He informed her that RMS was "proposing to make changes to enhance safety at the intersection". These included designating the left lane eastbound on Tangerine St, left turn only and installing no right turn signs for northbound vehicles in Woodville Rd, preventing them turning into the factory complex. The previous legal concerns having been overcome. It was decided not to install any No U-turn signs because such a manoeuvre was prohibited in any event and the installation of signs may engender confusion.
I infer that this work might have taken some time because Mr Lysaught wrote that RMS "is currently preparing to notify the owner/tenants of [the factory complex] of the proposed right turn ban".
It is not apparent from this whether any express consideration was then given to the potentiality for crashes because of the relatively high proportion of vehicles exiting the driveway in disregard of the advisory sign of which RMS aware. True enough, Mr Lysaught, in common with Mr Hallan and Mr Hollyoak thought the numbers were small. But the proportion of drivers exiting that way, I have already found, was higher than one would expect if they were simply disobeying an obvious sign.
It is important to highlight this evidence of Mr Lysaught (192.35 - 193.5T): Q. Now, given that the appropriate traffic management arrangement in your view was left out of this site, that is left turn only from this site, it would be a matter of concern, wouldn't it, that more than one quarter of vehicles observed to exit the site over a four hour period, which included the peak hours, did not do so? A. It presents that potential for crashes, yes. Q. And given that this is an observation of traffic made during the afternoon and evening peak hour, it would be likely that the traffic proceeding in both directions along Woodville Road would be heavy? A. That's correct. Q. And therefore the potential for crashes greater than at other times of the day? A. I suppose it would be greater. Mr Lysaught accepted that one explanation was that a proportion of the motorists did not see the sign (192.25 - .30T). Mr Lysaught also said there were discussions about this matter arising out of the traffic counts (198.5T). When asked if anything was done "rather than there being talk" Mr Lysaught replied (198.35T): A. Well, the driveway access changed. Q. When? A. I don't know
When pressed about what might have been done between April and November 2002, it became very apparent that Mr Lysaught was talking about the work that was done in December as depicted in Exhibit 1D1.4. At 200.10T he said: What I am saying is that as part of my role within RMS, as part of the background to the issues being raised, that intersection was under surveillance, we were monitoring it, and that there was an arrangement within the driveway which showed a raised concrete island with a supplementary sign‑posting, at the front of that island or the leading edge of that island, which supplemented the sign for all the traffic arrow to the left only. (sic) He made it clear he was not talking about the painted road marking that was added later (200.35T).
Mr Lysaught identified the sign from Exhibit 1D1.4 (201.5T). He could not remember when the work was done (202.25T). I regard this as important evidence.

Assessment of breach after April 2002

A number of significant things changed after April 2002. The first is that the foreseeability of the risk of harm was clearer. Clear evidence is provided of the risk of crashes by the traffic count. Given the numbers the risk went from the theoretical to the real notwithstanding Mr Lysaught's views about the adeptness of drivers at picking the "all red period". Accepting that the numbers were low, the risk in my judgment had become, to the knowledge of RMS, not insignificant.
The balance required by s 5B(1)(c) has to be determined in the light of the lower standard fixed by s 43A(3). Moreover it is fundamental that this stage of the assessment of breach be undertaken looking forward as though the accident had not happened. Looking at the matter through the eyes of a responsible authority, having the traffic control powers conferred upon RMS, it was clear that there was an actual risk that the apparent traffic control measure of the single sign on the left was ineffective; that the numbers involved as a proportion of total users of the driveway suggested that it was not through sheer disobedience of what might have appeared to the drivers to be a traffic control device; that the risk was such that discussions were undertaken with other interested parties in relation to the matter; and a decision was made to take the steps that were not then taken until 16th December 2002.
Bearing in mind the lower standard, it is clear that RMS had made a decision to act to avert the risk by exercising its special statutory powers. Notwithstanding the s 42 considerations, it is clear that the decision must have been made around July 2002 when this matter was "on Mr Lysaught's desk".
Notwithstanding the persuasiveness of Mr Bastable's evidence, given the apparent modest amount involved, and the some capacity to do smaller jobs quickly, I am satisfied that no authority having RMS's traffic control powers could properly consider the omission to implement its decision over a period of 7 months, a reasonable exercise of the power. As I have said the decision was probably made in July 2002. Given the potential for what were in fact further crashes which could have involved serious injury no authority having RMS's powers could regard waiting months rather than weeks to implement its decision a reasonable exercise of its powers.
To the extent they remain relevant, the s 5B(2) considerations favour a finding of "negligence". The degree of probability of the risk occurring was not great, but the consequences may have been serious or catastrophic injury. The difficulty, inconvenience and expense of implementing its decision to act were even with its limited resources, modest. The social utility of RMS's governmental functions does not serve, in the balancing exercise to displace these conclusions. I find that RMS was "negligent" in not erecting the additional sign within a few weeks of making its decision in July 2002 to exercise its powers.

Causation

I am satisfied on the balance of probabilities that RMS's failure to implement its decision to erect the additional sign on the median strip was a necessary condition of the harm suffered by Sharif. As I have said, I am satisfied that Mrs Walsh looked for a sign. Had the second sign been in place she would have seen it and in my judgment she would have followed it (see [185] above).
There is no reason why the scope of RMS's liability should not extend to the harm suffered by Sharif. The purpose of the exercise of its statutory powers it had decided upon was to obviate the risk of traffic conflicts resulting in collisions in the intersection. Mrs Walsh was negligent, but her negligence was not of a degree capable of severing the chain of causation between RMS's breach and the harm suffered by Sharif. The statutory purpose for which the powers were conferred upon RMS are furthered by holding it liable in damages in circumstances where its breach of its common law duty to exercise reasonable care in the exercise of the powers in a necessary condition of the plaintiff's personal injury.

Signalisation

For the reasons I have already given, I am not persuaded that RMS was "negligent" in failing to signalise the driveway leg of the intersection. This was always a proposal promoted by the developer for its own perceived commercial advantage. When it lost interest, it was never going to happen. It was a reasonable exercise of its powers for RMS to insist in the circumstances that the developer pay for any additional signalisation. The evidence of Mr Bastable in Exhibit 3D(4) and orally, which I have already referred to, persuade me that the s 43A(3) test for liability in relation to the failure to exercise its special statutory powers in relation to the installation of traffic signals cannot be satisfied in this case.
I should add that there is no doubt that this is a special statutory power within the meaning of s 43A; no traffic control light can be installed, otherwise than by or with the consent of RMS: s 87(4) Roads Act.
There is a final point in relation to the liability of BCC and RMS which should be mentioned again. At some stage after the accident the median strip, including the signs erected in December was removed. In place of the signs in December 2002, as I have said, a clear left turn only road marking was "installed" on the southern aspect of the driveway. There is no evidence about when this occurred or who authorised it. The inference is clear that it was done, as I have already said, to permit easier entry of 12.5 metre vehicles. I would infer that these changes were made with the consent of BCC as the consent authority. In drawing this inference, I rely upon the presumption of regularity. That this occurred does not detract from my decision on liability. The original left hand turn advisory sign is reinforced by the road marking on the driveway, which from the photographs, is obvious. This is to the same effect as the additional measures taken by RMS in December 2002.

Apportionment for contribution purposes

The principles informing the decision about apportionment for contribution purposes are well known. The relevant considerations relate to the respective culpability of each defendant liable and the causative potency in the circumstances of their respective act or omission constituting negligence.
It seems to me that the proper apportionment in this case should be as follows: 1. The Walsh parties, as to 50 per cent; 2. BCC, as to 25 per cent; 3. RMS, as to 25 per cent. Mrs Walsh's act in driving across the intersection was always fraught with risk. As an experienced driver she must have known she had a limited time to complete such a manoeuvre. If it was to be undertaken, it could not be undertaken hesitantly by inching across the intersection. This was the very type of manoeuvre that would bring her into conflict with any unsighted vehicle in the left turn lane northbound on Woodville Rd. Even if it was understandable that she missed the sign, as so many others apparently did, given her hesitancy about crossing the intersection, a reasonable driver in her position would have taken the easier and safer option of turning left, especially knowing that the underpass was only a short distance to the south.
The statutory powers of each of BCC and RMS were to be exercised, in part for the promotion of road safety, especially on main roads. But the part of each of them was less than the part of Mrs Walsh. They did not have the same degree of control over the circumstances of the collision as Mrs Walsh had. However, I have found that each of them fell short even of the attenuated s 43A(3) standard. This amounts to a finding that their negligence was of a very high degree. The causal of potency of Mrs Walsh's negligence was much greater than that of either BCC or RMS, but their conduct evinces a greater degree of culpability.

Orders 1. Under Rule 28.3 Uniform Civil Procedure Rules 2005 (NSW) I order that the questions ordered to be decided separately be answered as follows: Question 1: Did the third defendant owe the plaintiff a duty of care? Answer: Yes. Question 2: Did the fourth defendant owe the plaintiff a duty of care? Answer: Yes. Question 3: If the third defendant owed the plaintiff a duty of care was it breached? Answer: Yes. Question 4: If the fourth defendant owed the plaintiff a duty of care was it breached? Answer: Yes. Question 5: Was the third defendant's breach a legal cause of the collision between the vehicle driven by Mrs Walsh and Mr Zraika on 16th November 2002. Answer: Yes. Question 6: Was the fourth defendant's breach a legal cause of the collision between the vehicle driven by Mrs Walsh and Mr Zraika on 16th November 2002. Answer: Yes. Question 7: Did the fifth defendant breach of duty of care he owed to the plaintiff on 16th November 2002? Answer: No. Question 8: Was the fifth defendant's breach a legal cause of the collision between his vehicle and the vehicle driven by Ms Walsh on 16th November 2002. Answer: Question does not arise. Question 9: If more than one defendant is negligent, in what proportions should legal responsibility be shared? Answer: The first and second defendants together as to 50 per cent; The third defendant as to 25 per cent; The fourth defendant as to 25 per cent. 1. Under Rule 28.4 Uniform Civil Procedure Rules, judgment for the fifth defendant. 2. Direct the parties to confer to agree upon what order as to costs should be made. Liberty to apply in respect of costs in the event they are unable to reach agreement about what order should follow.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 April 2015

Australian Road Rules 2008(NSW)

Civil Liability Amendment (Personal Responsibility) Act 2002(NSW)

Motor Traffic Regulations 1935(NSW)

General Traffic Regulations 1916(NSW)

Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999(NSW)

Road Transport (General) Act 1999(NSW)

Traffic Act 1909(NSW)

Traffic Legislation Amendment Act 1997(NSW)

Transport Administration Act, Roads Act 1993(NSW)

At a glance

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Judgment (34 paragraphs)

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