GRAMS and ANOR v ROADS & TRAFFIC AUTHORITY OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SHELLER, BEAZLEY JJA and SHEPPARD AJA 3 September 1997, 3 September 1997 [1997] NSWCA 130 Negligence — personal injuries — road accident cases — liability — whether contributory negligence-interference with trial Judge's findings of fact — whether correct approach Sheller JA At about 3pm on 18 December 1991 a small campervan driven by the first appellant, Ernest Gordon Grams, and owned by the second appellant, Budget Rent A Car Systems Pty Ltd, collided with the rear of a truck owned by the respondent, Roads and Traffic Authority of New South Wales (RTA), on the Pacific Highway at O'Sullivans Gap near Bulahdelah. Mr Grams was travelling north on the highway. The respondent's truck was stationary on the western side of the highway. Mr Grams' wife, who was a front-seat passenger in the campervan, was severely injured in the collision. Mrs Grams sued the appellants in negligence to recover damages for the personal injuries she suffered. The appellants cross-claimed against the RTA. The proceedings were heard by his Honour Mr Justice Grove at Newcastle. On 29 August 1996 his Honour gave judgment for the plaintiff, Mrs Grams, against each of the appellants in an amount of $660,000. On the cross-claim his Honour gave judgment for the cross-defendant, RTA. The appellants appeal against the judgment on the cross-claim in favour of the RTA. I summarise Grove J's findings as follows. The accident occurred on one of the relatively level areas at O' Sullivans Gap. There was a slight upwards incline for north-bound traffic and an obvious sweeping right-hand curve. The conditions were fine and clear. There was an applicable speed limit of 80 kilometres an hour. The road surface was divided into four relatively wide lanes. At the time the central division was marked by separate unbroken lines. When the accident occurred, two RTA employees, Mr Maurer and Mr Cooper, were using the truck, which was a tabletop Ford Trader, to place chevrons upon poles located just outside the traffic barrier on the western extremity of the carriageway. The chevrons were designed to assist drivers in navigating the wide, sweeping curve. The task was apparently carried out by moving forward to place each of the poles at intervals of about five to eight minutes. The two employees placed the truck as close as possible to the extreme of the available space beyond the carriageway. The vehicle was left stationary with its running-board on the near-side touching the barrier. This resulted in an encroachment onto the western lane of the carriageway, of what his Honour described as something in the order of half a metre. The truck was equipped with flashing amber strobe lights which were illuminated at the time of the collision. His Honour found that the first appellant was driving too fast for the conditions and his driving skills. The first appellant said that he was driving at 40 to 45 miles per hour. His driving was such as to provoke Mrs Grams concern and she had asked him to slow down. 2 UNREPORTED JUDGMENTS Mr Grams had lived, at least since 1989, in Peru and was apparently Canadian. His Honour said that he would have been relatively unfamiliar with the practice of driving on the left-hand side of the road. Mr Grams said that at, or shortly before, the time of the collision he was being overtaken by at least one other vehicle. Apparently some time before he had moved from the centre, or right- hand lane, to the near-side or left-hand-lane. His Honour, however, was satisfied that any overtaking vehicle did not inhibit Mr Grams' use of the western lane on the highway. In the position where it was, the RTA truck had been comfortably passed by other vehicles travelling in the western-most lane. Such passing vehicles included large vehicles such as trucks, and semi-trailers. These vehicles were able to use the trafficable portion of the western lane without encroaching onto the adjacent lane. His Honour said that any overtaking vehicle was irrelevant except as a possible distraction. Grove J posed the question as to why, if there was sufficient space for the campervan to pass the stationary truck the collision occurred. He said: "T deduce that by reason of speed and failure to attend sufficiently to his task of driving, the first defendant simply collided with the truck. He was unable, because of the position in which he found himself, and the momentum of the vehicle under his control, to prevent its collision with the back of the truck." In his Honour's opinion it was obvious that if the first appellant felt that he was not competent safely to negotiate past the stationary truck then he should have kept his vehicle sufficiently in hand to bring it to a halt, or at least to a very slow pace so that he could "snail" by, as it were. This he failed to do and, in fact, contrary to the exhortations of his passenger, he continued to drive at a speed which at least she assessed as unsuitable in the circumstances. Turning to the issue of the cross-claim, his Honour referred to a number of matters upon which the defendants relied to claim some contribution from the RTA. He said it was accepted that the first appellant would have had a view of the stationary truck for something in excess of 100 metres, but it was put that this would not enable him to assess the circumstance that his way was impeded when he was at that distance. Although there was a small encroachment onto the carriageway, trafficability was not impeded to the extent that a reasonably careful driver, of even a larger vehicle, would not safely make passage. It was submitted that the RTA, by its negligence, contributed to the damage suffered by the plaintiff because it failed to put in position, either a warning sign or a human being carrying an appropriate warning, telling oncoming traffic of the danger. His Honour said the situation was that this vehicle was performing a task taking something in the order of five to eight minutes. As a truck engaged in road maintenance it had illuminated two flashing warning signs. Grove J said: "To the reasonably prudent motorist that would indicate that caution should be taken and, in my view, that was a reasonably prudent step for the cross-defendant to take through its employees. It was suggested that the RTA could have closed the lane. As a matter of power, I agree such could have been done but I reject the contention that would have been reasonable in the circumstances. As counsel for the defendant asserted, this was a busy major thoroughfare. The need to close the road would be balanced against the degree of risk involved. The degree of risk involved may be perceived most readily by the ease with which volumes of traffic to the exclusion of the first defendant were able safely to pass the stationary truck." \RAMS and ANOR v ROADS & TRAFFIC AUTHORITY OF NEW SOUTH WALES (Shells JA) His Honour was unpersuaded that any negligence on the part of the cross- defendant caused, or contributed to, the damage suffered. Accordingly, he gave judgment in favour of the cross-defendant. In its notice of appeal, the appellant set out seven grounds of appeal. However during the hearing of the appeal, reliance was place only on grounds one, two, four and five. The first point taken by Mr Hoeben SC, who appeared for the RTA, was that his Honour had made a factual error in finding that the intrusion or encroachment onto the western lane of the carriageway was something in the order of half a metre. It was submitted, as I would understand the submission, that his Honour was bound on the evidence to find that the encroachment was somewhat greater than that, perhaps up to one metre. We are asked to interfere with his Honour's finding and make a finding of a greater encroachment. In support of that, we were urged to look at photographs, and, in particular, photograph number 5 of the accident site. Two witnesses gave evidence that the extent of the encroachment was half a metre or something less than half a metre. In accordance with principle, I can see no basis upon which we can interfere with his Honour's reliance upon that evidence to make the finding that he did. For my part, the photograph, which I have examined, is quite unconvincing support for any other conclusion than that to which his Honour came. In my opinion, this ground of appeal should be rejected. The more substantial ground of appeal upon which the appellant relied is that his Honour approached the question of the alleged negligence of the RTA in the wrong way. It is said that in the course of his judgment, his Honour focused on the extent of the negligence of the first appellant, Mr Grams, and seemed to assume that the extent of the negligence precluded any negligence or contribution to what occurred in terms of negligence by the RTA. We were taken to his Honour's judgment and it was pointed out that his Honour did not expressly refer to the general duty owed by users of the highway to other users of the highway or to the question of foreseeability by the RTA of the risk of an accident such as the one which here occurred. Having carefully read his Honour's judgment, I have no doubt that his Honour approached the question of the RTA's negligence by assuming correctly that that Authority owed a duty to other users of the road and that accidents, such as the one that occurred here, were foreseeable. To adopt the language that was used in Wyong Shire Council v Shirt (1980) 146 CLR 40, the risk was not one that was fanciful. His Honour was concerned with the question of the RTA's response to that foreseeable risk. In the passages in the judgment to which I have referred, his Honour in my opinion took the view that the RTA's response was in the circumstances a reasonable and prudent one. The point was made correctly, by reference to what was said by the High Court in March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 519, 520 and 536, that account must be taken, in terms of the duty owed, foreseeability and appropriate response, to the careless, imprudent and unreasonable motorist who uses the highway. It was argued that his Honour in the present case when considering what was an appropriate response paid attention only to the prudent motorist using the highway. I am not persuaded that this was so. However that may be, in my opinion, the response here taken by the RTA was in the circumstances a reasonable one. As was pointed out by Mason J in Shirt at 47 - 48, if the question of foreseeability is answered in the affirmative, it is for 4 UNREPORTED JUDGMENTS the tribunal of fact to determine what a reasonable man should do by way of response to the risk. "The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position." Mr Hoeben pointed to three responses which were available, the placing of witches hats on the road, the setting of a warning notice or sign some 50 or 75 metres south of where the collision occurred or the presence of a person waving a flag to slow oncoming traffic down. The circumstances here were that the intrusion was such as to allow traffic to pass in the lane unimpeded. It was daylight, the conditions were good, there was a traffic limit of 80 kilometres an hour, the highway was a busy highway. The RTA parked its vehicle as far as it could over on the verge against the barrier and there were two flashing lights. In my opinion, this was a reasonable and appropriate response taking account of the likely users and the fallibility of users of the highway. I am not persuaded that Grove J approached his consideration of response in any inappropriate manner. However that may be, I agree with the conclusion that he reached, that the response was a reasonable one and therefore no negligence by the RTA was demonstrated. A large part of the appellants' submissions were directed to what was said by the High Court in March v E & MH Stramare Pty Ltd. I would only comment about that case that it proceeded upon an unchallenged finding by the trial Judge that the defendant had been negligent. The case was concerned with questions of causation. In all the circumstances, in my opinion, the second ground of appeal relied upon by the appellant in its written and oral argument also fails. Accordingly, the appeal should be dismissed with costs. Beazley JA I agree. Sheller JA I agree. I would only say this. Counsel for the appellant sought to say that his Honour had not in any real way turned his attention to the question of the duty which the RTA, through its employees, owed to the plaintiff or to the question of whether there had been a breach of that duty. In my opinion, his Honour clearly did turn his attention to the duty which the RTA owed the plaintiff in the action and to the question of breach. He dealt in passages which have been read by the presiding Judge with the question of the duty owed by the driver of the vehicle to the plaintiff and said that the conduct of the driver was inexcusable. There was no explanation why his vehicle should have collided with the stationary truck given that there was ample room for much larger vehicles to make safe passage by it. He then turned to the question of the liability of the RTA and dealt with that as a separate matter, saying in passages that again have been read, that to the reasonably prudent motorist what was done would indicate that caution should be taken and that, in his view, was reasonably prudent in all the circumstances. I agree with what the presiding Judge has said about suggestions made in the course of the argument by counsel for the appellant about other measures which could have been taken such as witches hats or signs, or even a flagman. But it was \RAMS and ANOR v ROADS & TRAFFIC AUTHORITY OF NEW SOUTH WALES (Shellie JA) a matter for his Honour. He reached a conclusion. I do not detect any error in that conclusion and indeed it is a conclusion to which I think I would have come myself had I been the trial Judge. I agree that the appeal should be dismissed with costs. Sheller JA The order of the Court is that the appeal is dismissed with costs. Appeal dismissed with costs. Counsel for the appellant: CRR Hoeben SC/MN Thompson Solicitors for the appellant: Carroll & O'Dea Counsel for the respondent: HJ Mater Solicitors for the respondent: Crown Solicitor