HAISMAN v ALBURY WODONGA DEVELOPMENT CORPORATION and ANOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SHELLER, BEAZLEY JJA and STUDDERT AJA 19, 20 March 1997, 18 April 1997 [1997] NSWCA 134 NEGLIGENCE — Design of bicycle pathway and absence of warning signs — No design fault proven APPEAL AND NEW TRIAL — Conflicting versions of events — Duty of trial judge to make express findings of fact The appellant sustained severe head injures when, whilst riding a bicycle, he collided with another cyclist coming from the opposite direction on the Lincoln Causeway commuter/cycle pathway linking Albury and Wodonga. He brought an action in negligence against the first and second respondents, who had been responsible for the design and construction of the pathway, alleging breach of duty of care for failure to construct a dual pathway and failure to erect warning signs. At trial, Master Greenwood found that the appellant's wife (the appellant having no memory of the accident) had in her evidence and in pre-trial statements given conflicting versions of the circumstances surrounding the accident. The Master held that the appellant had failed to establish that the accident was due to any design fault in the construction of the pathway. HELD: (1) Appeal dismissed (2) It was incumbent upon the Master to make appropriate findings of fact, including as to which version of the facts he preferred and to determine, on those findings, whether the appellant had established negligence. (3) However, as the Master had considered the matter on a number of alternative bases, including his preferred version of the facts, his findings were open, and were supported by the evidence. (4) The appellant had failed to establish negligence and in particular, had failed to establish that the 1st and/or 2nd respondents were negligent in having failed to design and construct a dual pathway at the underpass where the accident occurred. (5) Further, the absence of signs were not causative of the accident as the appellant was previously aware of the sharp bend in the pathway. (6) Although the Master had wrongly drawn a Jones v Dunkel (1959) 101 CLR 298 inference against the appellant, the trial had not thereby miscarried. Sheller JA I agree with Beazley JA Beazley JA This is an appeal from the dismissal of a claim for damages brought by the appellant in respect of severe head injures which he sustained in a bicycle accident on 5 February 1992 whilst cycling along the Lincoln Causeway commuter/bicycle pathway between Albury and Wodonga. The causeway is part of the Murray River flood plain about 200 metres south of the Murray River. At this point, the Murray River is crossed by the Union Bridge. The Hume Highway continues south and passes over a bridge, Number One Bridge, over the Lincoln Causeway. The Lincoln Causeway itself is located in Victoria and is under the control of the first cross respondent, the Road Corporation, trading as Vic Roads (Vic Roads). 2 UNREPORTED JUDGMENTS The pathway, which provided a much needed pedestrian and bicycle link between Albury and Wodonga, was constructed between late 1986 and late 1987. Funding for the pathway was provided by way of a Federal government grant to the first respondent, the Albury Wodonga Development Corporation (the Corporation). Approval for the construction of the pathway was required and granted by Vic Roads. The Corporation prepared the plans for the pathway and was initially responsible for its construction. The funds provided by the Commonwealth grant were fully utilised before construction was complete. However, the second respondent, the rural city of Wodonga (the City of Wodonga) obtained further funding and took over construction of the pathway. The pathway is 2.4 metres wide. It runs along the eastern boundary of the Lincoln Causeway and passes under Number One bridge. Number One bridge has four rows of concrete support columns which had the effect of dividing the area under the bridge into two complete spans. The row of supports on the northernmost side of the bridge abutted a steep embankment. The original plans prepared by the Corporation provided for the pathway to be constructed between the northern abutment and the first row of supports, that is, on the embankment side of the underpass. However, during the course of construction, the City of Wodonga's deputy civil engineer, Mr Pooley, considered that the alignment of the pathway on the embankment side of the bridge was inappropriate for two reasons: first, because of insufficient head clearance and secondly, if travelling from Wodonga to Albury, the section of the embankment to the east of the bridge would impede visibility. He also considered that the construction of the pathway adjacent to the embankment would involve a major side cut on the buttress of the embankment, carrying with it a risk that the embankment would be destabilised unless substantial reinforcement work was undertaken. This would have added significantly to the cost of the project relative to the overall cost of the work. Mr Pooley decided therefore to vary the position of the pathway so as to locate it between the first and second spans of the bridge at a lower level than appeared on the original plans. Mr Pooley did not consult Mr Nally, the Corporation's engineer who had prepared the plans for the pathway, about the change in location. Mr Nally gave evidence that he considered that the original siting of the pathway was "a more effective compromise" than the position in which it was built. The original location, he said, was "the safest". As I have said, the accident occurred on 5 February 1992. I will refer more fully to the circumstances in which the accident occurred shortly. However, it is convenient at this point to refer to two matters which occurred post-accident. The first is that sometime after the accident, the City of Wodonga erected two warning signs on each side of the underpass, that is, the portion of the pathway passing under Number One Bridge, bearing the words "Beware Blind Corner Ahead". The second is that in late 1995, almost four years after the accident, a dirt pathway was constructed approximately in the position originally planned for the pathway, so as to form, in a fashion, a second or dual pathway at this point. The appellant's case, in essence, was that the respondents breached their duty of care to the appellant in having failed to construct a dual pathway and in having failed to erect warning signs similar to those installed by the City of Wodonga after the accident. The Court had the benefit of detailed and well argued oral and written submissions on behalf of all parties in which the facts, many of which were technical and the issues were thoroughly canvassed. In the result, I find it unnecessary to review all of this material. It is sufficient, in my opinion, given UAAISMAN v ALBURY WODONGA DEVELOPMENT CORPORATION and ANOR (Beazle9 JA) that there is no attack on the Master's statements of principle, to review his findings to determine whether they disclose any appealable error. The Master approached the matter on three bases. I will deal with each in turn. The First Basis On the first approach, the Master found that the plaintiff "had failed to discharge the onus of establishing the facts upon which the nature of the track could, in any way [have] contributed to the accident". His reasons for this conclusion were contained in the following passage: "The evidence on behalf of the plaintiff is that of the plaintiff's wife [the appellant had no recollection of the accident]. The plaintiff's wife has given two versions of the accident. She has the collision occurring at different places on the pathway. She has the collision occurring at different positions in relation to the overhead bridge. She originally gave the speed of her husband's bicycle at five to ten kilometres per hour, but qualified that in the witness box to being the speed immediately prior to the collision. In addition, the plaintiff "s evidence was that it was about 20 minutes after the accident before the ambulance arrived. She admitted in cross examination that only 8 minutes had elapsed I do not believe that the plaintiff is deliberately trying to mislead the court, but lam of the view that the plaintiff is confused about precisely what happened and how and when it happened " Because the Master then dealt alternatively with the matter on the basis that he preferred the second version of events given by the appellant's wife, it is not necessary to determine whether the Master was correct in concluding that there were in truth, two versions and that therefore the appellant had failed to discharge the onus or whether the differences were in part not substantiated as to compel a conclusion that there were two versions. It was incumbent upon the Master to make appropriate findings of fact, including as to which version he preferred and to determine, on those findings, whether the appellant had established negligence in the respondents. Second basis According to what the Master described as the second version, the appellant and his wife were travelling along the pathway in the direction of Wodonga at about 17 to 19 kilometres per hour, one bicycle behind the other, with the appellant's wife being about a bicycle length behind the appellant. Just before the underpass, the pathway takes a sharp righthand bend. The pathway then travels under the bridge and turns, again sharply, to the left. There is a one metre runoff path on both sides of the pathway. As the appellant went around the bend leading into the underpass, his wife saw him react suddenly by swerving violently to the right. There were two cyclists travelling in the opposite direction. The appellant missed the cyclist immediately in front of him but collided with the cyclist to the right. Counsel for the appellant had submitted at trial that the oncoming cyclist was unsighted because of the inadequate sight distances around the curve, the inadequacy being due to negligent design of the pathway. The Master rejected this as the only cause for the two cyclists not having seen each other. He considered it was equally possible that neither cyclist was keeping a proper lookout or because, given the 2.4 metre width of the pathway and the runoff the cyclists approaching on a collision course may have accepted that one of them would move out of the way. 4 UNREPORTED JUDGMENTS There were other factors upon which the Master relied to support his rejection of the appellant's claim based on the second version. First there was no evidence of the speed at which the other cyclist was travelling. The Master inferred that he was travelling about half of the speed of the appellant's wife. He also assumed that the appellant had a faster than average reaction time given that he was the Australian 125cc motorcycle champion. The Master adopted the concession of Mr Kiernan, consultant engineer called on behalf of the appellant, that given those factors, the appellant could well have had sufficient time to manoeuvre to avoid the accident. The Master concluded therefore that on this basis also, the appellant had failed to establish that the accident was due to any design fault in the construction of the pathway. In my opinion it was open to the Master to come to this finding. Notwithstanding that the path went through a sharp bend just before the bridge on the approaches from both Albury and Wodonga, Mr Kiernan's evidence was that if a cyclist, travelling from Albury to Wodonga on the left hand side of the pathway, at the point where the pathway turned right before passing under the causeway, would have been able to see a cyclist coming in the opposite direction approximately 40 metres away. The stopping distance for a bicycle travelling at 30 kilometres per hour was 36 metres with a reaction time of 2.5 seconds. The stopping sight distance for a cyclist travelling at 20 kilometres per hour with the same reaction time was 26 metres. Mr Hughes gave evidence that in circumstances where a pathway was designed with a runoff; sight distances became irrelevant. His evidence was that "there was a full view, that is complete - through under the causeway and a full view of the Wodonga curve - an uninterrupted view of both sides of the track". Likewise the appellant's wife agreed that if travelling on the pathway towards Wodonga one could see straight through to under the bridge from a point just before the apex of the corner. In any event, the Master had found that the appellant was travelling at slightly less than 20 kilometres per hour and the cyclists approaching in the opposite direction were travelling considerably more slowly - about half that speed. There was evidence upon which the Master was entitled to rely to find that the sight distances were adequate and that the underpass with a sight distance of approximately 40 metres satisfied reasonable design criteria. In my opinion, therefore, save for one matter, there was no error in the Master's rejection of the claim on this basis. The exception to the above is in relation to the Master's application of the rule in Jones v Dunkel to the appellant's failure to call the other two cyclists. The rule in Jones v Dunkel, involves the question of "the weight which can be given to inferences to support evidence already available to them in the trial": per Hutley JA in Payne v Parker (1974) 1 NSWLR 191 at 194. At 197, Hutley JA cautioned about the application of the principle, stating: "A Jones v Dunkel direction should not be given, unless there is actual evidence before the jury that the witness whose absence is to be the subject of comment is not available to the party seeking the benefit of inferences from his absence. Otherwise the opportunities for grave injustice will be open. " In this case, it could not be said that the two cyclists were "in the camp of" the appellant. Thus if any Jones v Dunkel inference was to be drawn it was one which was appropriately drawn against both parties. However, this error is not sufficient to cause this Court to interfere with the Master's finding. WENSMAN v ALBURY WODONGA DEVELOPMENT CORPORATION and ANOR (Studdefi AJA) Third Basis Finally, the Master considered whether there was negligent design of the pathway. It had been argued at the trial that the later construction of the dirt pathway was proof that a divided or dual pathway should have been constructed from the beginning. This was the issue upon which counsel for the appellant placed primary reliance on the appeal. The Master found that the sole purpose of the dirt pathway was to enable it to be used at times when the pathway was under water - which was frequently the case during the wet season. It will be recalled that the dirt track goes under the Number One bridge between the embankment and the first row of columns, approximately where the pathway was originally planned. This location had been rejected by Mr Keogh for the reasons previously stated. The Master accepted Mr Keogh's evidence and there was no evidence to contradict him. The Master found that: "the present dirt path is just that, a path to be availed of at times when the portion of the path under Number One bridge is flooded. It is not constructed to the standard of the commuter path and I am satisfied on Mr Pooley's evidence that a proper safer separate path could not be constructed. Thus I am of the view that there were no practical answers to the commuter pathway other than the building of the pathway in the position it was built. " Once Mr Keogh's evidence was accepted, and there was no other evidence that the location of the pathway under the first span was inappropriate or unsafe or that it failed accepted design standards in relation to sight distances, then, leaving aside for the moment the erection of warning signs, the Master's conclusion was both open and inevitable. Further, there was evidence not referred to by the Master, but which supports his conclusion that according to the Planning and Design of Bicycle Facilities Guidelines prepared by the State Bicycle Committee Victoria, Ministry of Transport, dual pathways "are rarely successful as two way movement (on each leg of the pathway) is difficult to prevent". Counsel for the appellant argued however that warning signs of the kind actually constructed after the accident should have been erected from the time the pathway opened. This argument can be dealt with shortly. The warning signs which were erected warned of the blind corners ahead in the pathway. The appellant was well aware of this. Therefore the absence of such signs at the time of the accident was not causative of the collision. It follows that the appeal should be dismissed with costs. Studdert AJA I agree with Beazley JA Appeal dismissed with costs. Counsel for the appellant: DB Milne QC and DR Conti. Solicitors for the appellant: McClellands. Counsel for the first respondent/second cross-respondent: CE O'Connor QC and RL Ingram. Solicitors for the first respondent/second cross-respondent: Minter Ellison. Counsel for the second respondent: ML Williams and PJ Brereton. Solicitors for the second respondent: Cutler Hughes and Harris. 6 UNREPORTED JUDGMENTS Counsel for the first cross-respondent: DL Davies SC. Solicitors for the first cross-respondent: Phillips Fox.