Commissioner of Main Roads v Jones [2005] HCA 27

HIGH COURT OF AUSTRALIA

GLEESON CJ,

McHUGH, GUMMOW, HAYNE AND CALLINAN JJ

COMMISSIONER OF MAIN ROADS APPELLANT

AND

LLOYD RUSSELL JONES RESPONDENT

Commissioner of Main Roads v Jones [2005] HCA 27

20 May 2005

Amended Order made 25 May 2005

P31/2004

AMENDED ORDER

1. Appeal allowed.

2. Appellant to pay the costs of the respondent of the appeal.

3. Set aside orders 1 to 4 of the Full Court of the Supreme Court of Western Australia made on 20 November 2002 and in their place order that the appeal to that Court be dismissed.

On appeal from the Supreme Court of Western Australia

Representation:

B W Walker SC with G R Hancy for the appellant (instructed by Corser and Corser)

D F Jackson QC with K J Bradford for the respondent (instructed by Bradford & Co)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Commissioner of Main Roads v Jones

Negligence – Standard of care – Breach – Respondent driver injured after car collided with wild horse on highway – Appellant a body corporate upon which care, control and management of highways was conferred – Whether appellant should have been aware of attraction of animals to water sources near accident site and exercised power to reduce speed limit and to erect warning sign.

Courts – Appeals – Whether Full Court of the Supreme Court of Western Australia justified in overturning findings of trial judge on danger posed by animals straying on highway.

Negligence – Causation – Whether, if speed limit reduced or warning sign erected, respondent's injuries would have been prevented.

Practice – Discovery – Material discovered by appellant between trial and appeal – Whether availability at trial would have warranted different result.

1. GLEESON CJ. The facts are set out in the reasons for judgment of Callinan J. 2. The respondent sued the appellant for damages for negligence. The respondent suffered serious personal injury when a car he was driving collided with a horse on a stretch of unfenced road on the Great Northern Highway about 6 km south of Turkey Creek in Western Australia. The principal allegations of breach of duty of care on the part of the appellant were failure to erect road signs in the locality warning of the danger of animals on the highway, and failure to impose in the locality a speed limit lower than the general limit of 110 km per hour. The extent of "the locality" was rather imprecise. The argument concentrated on that part of the highway extending for a distance of about two or three kilometres either side of the point of impact. The trial judge rejected both allegations, holding that a reasonable response by the highway authority to the danger constituted by straying animals did not require either of those steps. The trial judge also found for the appellant on the issue of causation, holding that the conduct of the appellant before the accident showed that he would not have slowed down or driven more cautiously even if there had been a warning sign, or a reduced speed limit. Both of those findings were reversed, by majority, in the Full Court of the Supreme Court of Western Australia. The question before this Court is whether the Full Court was justified in reversing the trial judge's findings. 3. As to the issue of negligence, a central, and in my view persuasive, aspect of the reasoning of the trial judge was that the evidence did not justify a conclusion that the risk of animals straying onto the road in the place where the collision occurred was materially different from the risk that extended over hundreds of kilometres of the highway. Murray J, who dissented in the Full Court, said[1]: