Reported Decision : (2000) 110 LGERA 44 (2000) 32 MVR 218 New South Wales Court of Appeal CITATION : BRITO v FAIRFIELD CITY COUNCIL [2000] NSWCA 215 FILE NUMBER(S) : CA 40098/99 HEARING DATE(S) : 8 August 2000 9 August 2000 JUDGMENT DATE : 9 August 2000 MARIO BRITO PARTIES : CHANNON REFRIGERATION PTY LIMITED FAIRFIELD CITY COUNCIL ROADS & TRAFFIC AUTHORITY OF NEW SOUTH WALES JUDGMENT OF : Handley JA at 1; Powell JA at 28; Stein JA at 36 LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT 18586/93 FILE NUMBER(S) : LOWER COURT Maconachie AJ JUDICIAL OFFICER : Appellants - P W Taylor SC/S C Dowling COUNSEL : Respondent 1 - D L Davies SC/S A Woods Respondent 2 - M Cashion SC/T H Barrett Appellants - Malcolm Johns & Company SOLICITORS : Respondent 1 - Phillips Fox Respondent 2 - I V Knight, Crown Solicitor CATCHWORDS : NEGLIGENCE - TRAFFIC AUTHORITY - driver failed to comply with give-way sign at intersection - sign obstructed by bus - whether adequate signage - driver with benefit of give-way sign injured - whether Council as traffic authority in breach of duty of care to injured driver CASES CITED: Wyong Shire Council v Shirt (1980) 146 CLR 40 DECISION : Appeal dismissed with costs - orders made THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40098/99 CLD 18586/93 HANDLEY JA POWELL JA STEIN JA 9 August 2000 MARIO BRITO & ANOR v FAIRFIELD CITY COUNCIL & ANOR NEGLIGENCE - TRAFFIC AUTHORITY - driver failed to comply with give-way sign at intersection - sign obstructed by bus - whether adequate signage - driver with benefit of give-way sign injured - whether Council as traffic authority in breach of duty of care to injured driver The defendant drove his vehicle into an intersection and collided with the plaintiff after failing to see and comply with the give-way sign facing him. The plaintiff sued the defendant and his employer (the appellants) and they joined the Fairfield Council, the traffic authority responsible for the signage, as cross-defendant seeking contribution or indemnity. The proceedings between the plaintiff and the defendants were settled but the defendants continued with their claim against the Council. The trial Judge dismissed the defendants' case against the Council based on alleged deficiencies in the signage and other warnings facing the first defendant as he approached the intersection. The defendants appealed arguing that the Council should have foreseen that buses could obscure the give-way sign facing traffic approaching the intersection and additional precautions were required and therefore the Judge erred in finding that there had been no breach of duty. HELD : Dismissing the appeal: (1) The accident occurred because the first defendant's conduct in approaching the intersection was reckless in the circumstances. (a) Although a give-way sign facing the first defendant in the second lane could be temporarily obscured by a large vehicle in the kerb side lane, this possibility did not require additional precautions to be taken by the traffic authority. Drivers in the position of the first defendant had no justification for proceeding at speed past a large vehicle when their view to the left for any control sign or approaching traffic was obscured. (b) The Council neither knew, nor should have known, of the practice of the bus stopping where it did and this, combined with the reckless conduct of the first defendant in proceeding, meant that this particular accident was beyond the range of the reasonable foresight of the Council. Wyong Shire Council v Shirt (1980) 146 CLR 40 applied. (2) The fact that the Council took action to upgrade the signage at the intersection after the accident did not bespeak negligence. The fact that additional precautions can be identified after the event which could have been taken to avoid the accident does not establish that there has been a breach of duty. Wyong Shire Council v Shirt (1980) 146 CLR 40 applied. ORDERS (1) Appeal dismissed with costs. (2) Cross-appeal dismissed with costs. (3) No order as to respondent recovering costs of its unsuccessful cross-appeal from the unsuccessful appellant. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40098/99 CLD 18586/93 HANDLEY JA POWELL JA STEIN JA 9 August 2000 MARIO BRITO & ANOR v FAIRFIELD CITY COUNCIL & ANOR JUDGMENT 1 HANDLEY JA: This is an appeal by Mario Brito and his employer, Channon Refrigeration Pty Ltd, from a judgment of Maconachie AJ in a motor vehicle case. The proceedings arise out of an accident which occurred at 12.45 pm on 9 March 1993. 2 Professor Mahariswan was driving a car in a northerly direction in Montgomery Road Bonnyrigg and Mr Brito was driving a panel van in a westerly direction in Brown Road. The two roads intersect at a right angle intersection. The intersection was controlled by give-way signs which faced traffic going in both directions in Brown Road. Mr Brito did not see and failed to comply with the give-way sign facing him at the intersection. He proceeded into the intersection at a speed in the vicinity of 60 kms an hour where his vehicle collided with that being driven by the Professor who sustained serious injuries. The Professor sued Mr Brito and his employer and they joined the Fairfield City Council and the Roads and Traffic Authority as cross-defendants alleging that they were concurrent tortfeasors in breach of duties of care they owed the Professor and seeking contribution or indemnity from them on that basis. 3 The proceedings between the Professor and the defendants were compromised but the defendants proceeded with their claims for contribution and indemnity. The claim against the Roads and Traffic Authority was later abandoned but the claim against the Council was pressed. The Council was the relevant traffic authority for this intersection at least for some purposes. It in turn joined the Roads and Traffic Authority as a cross-defendant to a further claim for contribution. 4 The Judge dismissed the claim for contribution by the defendants against the Council with the result that the Council's claim for contribution or indemnity against the Roads and Traffic Authority also failed. The case for the defendants was that the Council had failed to take reasonable care for drivers who were approaching this intersection from the south along Montgomery Road. As I have indicated, such drivers had the benefit of the priority afforded by the give-way signs facing each east and west on Brown Road. 5 The defendant's case against the Council was based on alleged deficiencies in the signage and other warnings in the eastern section of Brown Street as one approached the intersection as Mr Brito did on the day in question. At the time the signage and other warnings included, in addition to the give-way sign on the left hand side of the road as Mr Brito approached the intersection, a pedestrian warning sign further back in the direction from which Mr Brito was coming and the standard painted holding line across the intersection indicating the point at which vehicles approaching as Mr Brito was, should bring their vehicles to a halt if it was necessary to do so to give way to traffic in Montgomery Road. 6 The defendant's case was that a second give-way sign should have been erected on the right hand corner of the intersection and that the failure to repaint worn and indistinct sections of the holding line at the intersection represented a further failure of reasonable care on the part of the Council. They also relied on the absence of the standard intersection sign. 7 Shortly after the accident the Council took action to upgrade the signage at this intersection. Stop signs were inserted on both corners of the intersection facing the section of Brown Road along which Mr Brito had travelled, an intersection sign was added to the pedestrian sign some distance back from the intersection, and the holding lines were repainted. The cost of these further steps in the order of some $3,000 was modest and Mr Taylor SC, who appeared for the appellants, relied strongly on the fact that this work was carried out so quickly after the accident and its moderate cost to establish the steps that could and should have been taken prior to the accident which might have avoided the Professor's injuries. 8 The trial Judge held that the Council owed a duty of care to the Professor but there had been no breach of duty, and causation had not been established. Mr Taylor opened the appeal by identifying his three principal submissions which were: 1. That the Council should have known that buses could obscure the give-way sign facing traffic approaching this intersection along Brown Road. 2. That the Judge was in error in finding that there had been no breach of duty. 3. That the Judge was wrong to find that Mr Brito would have ignored the give-way sign if he had seen it. 9 Although the Court invited Mr Taylor to address first on the third proposition, he has been fully heard on all issues. There is no difficulty about the first of his propositions which is self evidently true as a matter of commonsense. It is necessary however to deal with his other submissions. 10 Mr Brito, the driver of the vehicle, did not appreciably slow his vehicle as he approached the intersection and he entered it at a speed of about 60 kms an hour. As I have said, he did not see the give-way sign which was obscured by a bus which was stationary some metres back from the holding line on the same side of the road setting down or picking up passengers. There was no bus stop at this point. The bus stop was further back in the direction from which Mr Brito was travelling, but for some reason, perhaps as a courtesy to passengers, the bus stopped some 40 metres or so closer to the intersection in order to set down or take up passengers. The exact location of the bus at the time of the accident was not established and the Judge made no finding on this question. However Mr Brito did not notice or did not heed other indications that he should slow his vehicle as he approached the intersection. He said, both to the police and in evidence, that he thought that he was on a main road and had priority at the intersection. 11 The Judge's primary findings as to the situation at the intersection were not challenged. The painted holding line across Brown Road facing Mr Brito was worn in parts, but the Judge found that parts of it were "pretty white, or more conspicuous" and were not obscured by anything as Mr Brito approached the intersection. He also found that even the feint segments or some of them could and should have been seen by Mr Brito as he approached. The Judge was not prepared to accept Mr Brito's evidence that he thought he was on a main road. As the Judge said why Brown Road should just look like a main road was not immediately self-evident. Although at this section it could accommodate three vehicles, there was no marked centre line and the right hand side of the road as Mr Brito approached was not kerbed or guttered. Mr Brito's movements earlier before entering Brown Road should in themselves have indicated to a reasonable driver that he was on a suburban road and not a main road. 12 The Judge found that Mr Brito had a number of cues for caution as he approached the intersection. He listed the pedestrian warning sign; the stationary bus which was at least possibly, as far as Mr Brito was concerned, setting down potential pedestrians; the total obstruction by the bus of the view left and south into Montgomery Road, and the total obstruction for a significant time of the very place where one might expect to find a traffic control or warning sign; the holding line, two or three segments of which must have been obvious and clearly in view and others which were discernible as Mr Brito got closer to the intersection; and the absence of a marked centre line. I would add the fact that Mr Brito said in evidence that he looked to his right as he approached the intersection where he had a clear view across vacant land for traffic approaching from that direction. This action was quite inconsistent with any conscious belief that he would have the right of way over vehicles approaching from that direction. 13 Earlier the Judge had said that Mr Brito's evidence indicated to him that he had undertaken a process of rationalisation and reconstruction and he gave an example which involved a comparison of part of his evidence at the trial with part of his statement to the police. Mr Taylor criticised the Judge's reasoning in this respect but in my judgment the finding was open and the Judge himself acknowledged that the difference was minor in itself and unimportant, but in his view pointed towards a process of reconstruction being undertaken by the witness. 14 Mr Taylor also criticised the Judge's finding that Mr Brito's evidence changed in the course of his cross-examination by Mr Davies SC. We were taken to this evidence in cross-examination but, when proper allowance is made for the advantage enjoyed by the trial Judge, it is clear that this finding was also open. The change in Mr Brito's evidence occurred at an early point in his cross-examination but that does not establish that the Judge fell into error in finding that such a change had occurred. The Judge's finding on causation was as follows: "Because he failed to look to his left at any time prior to the collision, failed to brake and failed to react in any prudent way to the several cues for caution referred to above, I am unable to be satisfied that Brito would have seen and responded to the give-way sign even if it had been unobscured by the bus". Later he said: "It would be facile to consider that those cues for caution would have been observed and responded to when other, to my mind, powerful cues for caution were not. It would be speculative in my opinion to conclude that Brito's conduct would have been any different. Of course those extra cues for caution may have acted upon his mind and then on his conduct - but Brito has the onus of proof on that issue and I judge him as having fallen short of the mark". 15 Mr Taylor challenged these findings and this was his third proposition. I have already upheld the Judge's subsidiary findings rejecting Mr Brito's evidence that he believed he was on a main road, and rejected other criticisms of the Judge's reasoning. This being so I have reached the firm conclusion that the finding on the lack of causation was fairly open to the Judge and cannot be disturbed. It is of course a finding that is protected by the Abalos principle. 16 This would be sufficient to dispose of the appeal but since we have heard full argument on the question of breach it is appropriate that I should also deal with that part of the case. 17 This accident occurred because of Mr Brito's reckless conduct in approaching this intersection along a notional second lane in addition to that occupied by the stationary bus at a speed which was reckless in the circumstances, bearing in mind the cues for caution referred to by the Judge and the fact that his vision to the left for any control sign at the intersection and any approaching traffic was obscured by the bus. 18 The bus should not have been stationary where it was back from the holding line. It seems that a practice had grown up of buses stopping at this point, but the Judge said that there was no evidence that the Council knew or should have known that buses were doing other than stopping at the bus stop 55 metres east of the intersection and then proceeding to and entering the intersection as would other traffic. Had the bus been stationary at the holding line or moving at an appropriate speed along the kerbside lane towards the holding line, Mr Brito's view of traffic coming from the left and the give-way sign would have been obstructed just as they were on this occasion. 19 However in that situation the function of the give-way sign would have adequately been discharged because drivers in the position of Mr Brito would have no justification for proceeding at speed past either a slowly moving bus or a bus stationary at the holding line when his view to the left of any control sign or approaching traffic was totally obscured. The slow movement of the bus as it approached the intersection or its position stationary at the holding line should have alerted a driver behaving with any degree of caution to the existence of some control sign or pedestrian or motor vehicle traffic which would require the approaching driver to bring his vehicle firmly under control if not to a halt. 20 The practice of the bus in stopping where it did, which was not known to the Council, combined with the reckless conduct of Mr Brito in proceeding as he did, means in my judgment that this particular accident was beyond the range of reasonable foresight on the part of the Council. It was far fetched or fanciful within the principles stated by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 and following. 21 This too would be sufficient to dispose of this appeal but the Court heard argument on the meaning and effect of standards contained in documents prepared by the Department of Main Roads, the National Association of Australian State Road Authorities, and the Australian Standards Association. 22 There is no occasion in these reasons for dealing at length with the particular provisions of these documents to which the Court's attention was directed. In many cases the submission made by Mr Taylor was disposed of adequately during argument. 23 Mr Keirnan, the expert traffic witness called by the appellants, conceded in his evidence that no standard or guideline required an additional warning sign on the right hand corner of the intersection as Mr Brito approached it. Mr Taylor relied upon the accident history at this intersection which demonstrated a significant number of accidents over the period prior to September 1992, eight between 1989 and 1991, and five in the first nine months of 1992. However the evidence does not enable any conclusions to be drawn from these bare statistics. The circumstances of the accidents were not elucidated in evidence and the effect of other possible causes is a matter of mere speculation. Mr Keirnan conceded that it would be necessary to know what were the causes of these accidents in order to know whether any additional signage ought to be erected at this intersection but that he had not undertaken this exercise. Mr Keirnan also conceded that the existence of the de facto double lanes in Brown Road on the eastern side of the intersection from which Mr Brito was approaching could not be directly related to the history of accidents at the intersection. 24 The standards and guidelines relied on by Mr Taylor are directed to reducing dangers created by static physical conditions on the roads not dangers created by traffic movements which temporarily obscure some of the signs in place at the danger spot. It is obvious that the give-way sign facing Mr Brito as he approached this intersection could be temporarily obscured by any large vehicle such as a pantechnicon, truck, petrol tanker or bus. This possibility is not, in my judgment, something which requires additional safety precautions to be undertaken by a traffic authority. The presence of a large vehicle obstructing both the view to the left and any control sign for approaching traffic is itself a sufficient indication for approaching traffic to slow down. Mr Brito did not act in this way. 25 Mr Taylor's final submission was that the cost of the additional work undertaken shortly after the accident, namely some $3,000, indicated that there was every reason why the Council as a responsible traffic authority acting reasonably, could and should have undertaken this work before the accident with the result that it might well have been avoided. It is always possible after any accident for an expert, or indeed frequently a lay person, to identify additional precautions which might have been taken which might have avoided that accident. This can even be done where the accident involves deliberate action such as suicide on the part of a prisoner. The fact that additional precautions can be identified after the event which could have been taken which would or might have avoided the accident does not establish that there has been a breach of duty. As Mason J pointed out in Wyong Shire Council v Shirt (above), it is also necessary to consider where a risk is reasonably foreseeable what response would be undertaken by the reasonable man. As he said at p 47: "It is for the tribunal of fact to determine what a reasonable man would 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". 26 There is evidence that there were 4,500 intersections in the area controlled by the Council at the relevant time. After the accident the Council decided to upgrade the signage at this intersection and undertook the construction of a roundabout there as soon as possible. The latter work was graded fourteen in a priority list of nineteen and the cost of the indicated work and the number and severity of past accidents at the other intersections is also disclosed. There is no such material dealing with the position as it was or should have been appreciated prior to the accident. There is also no evidence of the other demands on the Council's resources and the relative priority of upgrading the signage at this site compared with other possibly more dangerous sites elsewhere in the municipality. In my judgment the appellant's case that a breach of duty by the Council has been made out also fails. 27 For those reasons I would propose that the appeal be dismissed with costs. 28 POWELL JA: I agree but I would wish to add some further comments on the matter last dealt with by Mr Justice Handley. 29 As his Honour has pointed out, Mr Taylor sought to make much of what was said to be a dangerous intersection. For that purpose, he relied (inter alia) upon a traffic accident printout which contained material available to the Council up to September 1992, (Black AB 216, 218; Blue AB 488), two traffic accident diagrams (Blue AB 63, 93) and a traffic count taken in May 1991 (Blue AB 54) recording the total vehicle movements in three periods of one hour of vehicles in both Brown Road and Montgomery Road. 30 If I may say so, far from demonstrating that the intersection was a dangerous intersection, those materials would demonstrate that, on the whole, with the appropriate traffic controls then in existence, it was a comparatively safe intersection. 31 The materials obtained from the Roads and Traffic Authority demonstrate that, in 1983, 1984, 1986, 1988 there were no accidents whatsoever in, or in the vicinity of, the intersection between Montgomery Road and Brown Road. In 1985 there was one accident. It involved no injury to any person. In 1987 there were two accidents. They involved no injury to any person. In 1989 there were three accidents. They involved no injury to any person. In 1990 there were two accidents. Only one involved injury to any person and that, in the whole period of ten years, was the only injury which required the injured person to be admitted to hospital. In 1991 there were three accidents. Only one person was treated at the site. In 1992 to September 1992 there were five accidents. Three people were injured and were treated at the site. See Blue appeal book page 488. 32 Of those accidents, it should be noted that one involved no collision between vehicles in Brown Road and Montgomery Road. The accident in March 1987 involved a vehicle proceeding in Montgomery Road colliding with the rear of a vehicle which is said to have been stopped in traffic in Montgomery Road at the intersection. Two incidents involved vehicles failing to make a right hand turn with safety, one from Brown Road into Montgomery Road, and the other turning from Montgomery Road into Brown Road which collided with a vehicle in Montgomery Road turning left into Brown Road. Of the others, it is not possible to know what was the cause of the accidents. 33 The traffic count to which I have referred would indicate that the total of the vehicle movements proceeding in one direction in Brown Road in the three one-hour periods to which I have referred was 740. The total moving in the opposite direction in Brown Road in the same periods was 480. Vehicle movements in Montgomery Road in one direction for the same three one-hour periods totalled 760 and those travelling in the opposite direction for the same three one-hour periods some 908 vehicles. 34 It will thus be obvious that, if that traffic count is indicative of the traffic passing through the intersection over the periods the subject of the Roads and Traffic Authority printout, despite the fact that both Montgomery and Brown Roads were very busy roads, very few accidents occurred and only one required a person to be admitted to hospital. 35 This is hardly the sort of history which in my view would require the Council to have taken the more extensive measures than they had prior to the accident. Otherwise I fully agree with what Mr Justice Handley has said. 36 STEIN JA: I agree with Justice Handley and with the additional remarks of Justice Powell. 37 HANDLEY JA: The order of the Court then is appeal dismissed with costs. COUNSEL ADDRESSED ON COSTS 38 HANDLEY JA: The cross-appeal will be dismissed with costs. The notice of contention does not arise. 39 We decline to make any order for the Council to recover its costs of the cross-appeal from the unsuccessful appellant. ****** 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.