New South Wales Supreme Court CITATION : Davies v Roads & Traffic Authority & Anor [2002] NSWSC 101 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 11867 of 1993 HEARING DATE(S) : 26 - 30 November, 3 - 6 December 2001 JUDGMENT DATE : 28 February 2002 Rohan Godfrey Davies by his tutor Leonard Davies (Plaintiff) PARTIES : v Roads & Traffic Authority of New South Wales (First Defendant) Sydney Electricity (Second Defendant) JUDGMENT OF : Master Malpass Mr P Webb QC/Mr R C Tonner (Plaintiff) COUNSEL : Mr J E Maconachie QC/Mr P R Sternberg (First Defendant) Mr P Morris (Second Defendant) Haviland Lawyers (Plaintiff) SOLICITORS : I V Knight - Crown Solicitor (First Defendant) Minter Ellison (Second Defendant) CATCHWORDS : Plaintiff's vehicle travelling in wet conditions with heavy rain - goes out of control in or about intersection - collides with power pole - plaintiff attributes accident to water on highway - first defendant's liability for negligence in and about design of the roadway. LEGISLATION CITED : N/A Brodie v Singleton Shire Council [2001] 75 ALJR 992. David Jones Limited v Bates [2001] NSWCA 233. CASES CITED : Sabatino v The State of New South Wales and Others [2001] NSWCA 380. Seltsam Pty Ltd v McGuiness [2000] NSWCA 29. The Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Kondrajian [2001] NSWCA 308. DECISION : See Paragraph 107. IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Master Malpass Thursday 28 February 2002 11867 of 1993 Rohan Godfrey Davies by his tutor Leonard Davies v Roads & Traffic Authority of New South Wales & Anor JUDGMENT 1 Master Malpass: The plaintiff suffered serious personal injury in a motor vehicle accident that apparently took place at about 2.50 am on Sunday 4 February 1990. Prior to the accident, he was driving a 1976 Holden Kingswood Sedan along a southbound section of the Pacific Highway near Turramurra and approaching traffic lights at its intersection with Fox Valley Road. The highway curved to the left in the area of the approach. There were traffic lights at the intersection. There was high-pressure sodium street lighting in the area north of the intersection. The speed limit was 60 kph. 2 He was driving in wet conditions in an area known for intense thunder storms (the Mona Vale Ridge). It was raining. There were inconsistencies between recorded rainfall and the evidence given by witnesses. There were also different versions given by witnesses concerning the conditions. 3 Significant aspects of the accident itself were not observed by any witness. What happened is a matter for deduction in circumstances where direct evidence is limited and the evidence that is available is plagued by conflict. It is alleged that his vehicle encountered a concentrated flow of water on the road surface and went out of control. It is known that his vehicle went to the left of the highway, mounted the kerb and collided with an electricity pole. The evidence has seen inter alia the concepts of aquaplaning and yawing considered in the course of attempting to explain the accident. 4 Areas of evidence usually provided by police were not available to the court in this case. There was no evidence of expert examination of the vehicle following the accident. Apparently, no photographs were taken of the damaged vehicle. There was limited examination of the roadway (inter alia it was not examined for skid marks). 5 At the scene of the accident, the highway is divided by a median strip. It is known as an SF back-to-back mountable kerb. There were three southbound through lanes and a right turn lane for vehicles entering Fox Valley Road. There were two northbound through lanes and a left turn slip lane for vehicles entering Fox Valley Road. 6 Changes have been made to the original design of the highway at about the scene. Knowledge of what has been done has not been assisted by loss of relevant documentation. There have been changes associated inter alia with the introduction of "S" lanes and the provision of traffic signals at the intersection. There has also been modification to provide one of the few right turn facilities for southbound traffic. 7 There is evidence of work having been done at or about the relevant section of the highway during 1965, 1977 and 1989. Plans were approved in 1962. In 1965, the road was widened and a new gully pit (also called a median drainage inlet pit) was constructed (Type F or SF). It seems that in 1977, the median strip on the northern side of the intersection was shortened (in the order of 14.4 metres) and the gully pit located near the nose of the median strip was removed. In 1989, the median strip was relocated to the extent of about one lane width towards the west and the right hand lane for turning into Fox Valley Road was accommodated. It seems that no major road works have been undertaken at the intersection since that time. It was re-sheeted or resealed in about August/September 1989. 8 Accordingly, at the time of the accident, there was no drainage pit adjacent to the median strip having the purpose of disposing of water that flowed from the northbound lanes towards the median strip and being then diverted around its nose. Also, there were no slots in the median strip to disperse the water across the southbound lanes. 9 The total catchment area draining to the intersection is 2.34 ha (of which 50% is impervious area). The area had been reduced with the removal of the northbound lane. The area contributing to the end of the median is now 0.037 ha. 10 Water contributions came from a wide area (not just the median catchment) and there were a number of sources for the water flow in and about the intersection. There was a flow of water from Fox Valley Road. There was a flow of water from gutters. In the circumstances of this case, there was also the rain falling both before and at the time of the accident. 11 Traffic material kept for the last eleven years shows that the intersection has a very good safety record and that this accident is the only one of its type. 12 There is material (a statement) which throws up some doubt as to the lane in which the plaintiff was travelling prior to the collision. However, it seems to have been accepted that he was in the middle lane. There is evidence which leads to the conclusion that the driver's side of the vehicle collided with a pole. The identity of the pole became an issue. Also, there is conflicting material as to the precise point of impact between pole and vehicle. The evidence is that the vehicle became stationary in a position where it was at about right angles to the kerb with its rear wheels on the highway. 13 The plaintiff's pleadings had identified a wooden electricity pole having the number T232 as that which was struck by his vehicle. It was positioned at the intersection (on the eastern boundary of the highway). It had a sodium light and was located close to the kerb (about 0.3 metres east of the kerb). At the time of the collision, it carried a set of lanterns which formed part of the traffic signals. It has since been replaced with a pole that has been erected about 1 metre to the north. This pole is not vertical. It leans to the east (apparently this has been done to reduce hazard). 14 On the third day of the trial, without objection, the plaintiff filed a Further Amended Statement of Claim. This put a case in the alternative. The plaintiff was then saying that his vehicle collided with either a power pole which was about 20 metres to the south of the intersection (which has been referred to as T234) or the power pole which has been referred to as T 232. 15 At or about the same time, the court was informed of certain matters which had been the subject of agreement between the parties. Firstly, there had been a settlement reached between the plaintiff and the second defendant. Secondly, there had been a consensus reached between the plaintiff and first defendant concerning quantum (should the plaintiff succeed on the question of liability). The trial then continued with a hearing of the question of liability between the plaintiff and the first defendant. 16 There has been a lengthy trial. The hearing has proceeded over about nine days. The court has received a formidable body of oral evidence and documentation. I shall now refer to certain of the evidence. The reference is not intended to be exhaustive. 17 Both the plaintiff and his mother gave short oral evidence. The accident injuries have left the plaintiff with some speech difficulty. Where necessary, and without objection, he was assisted by his mother in the giving of evidence. This took the form of clarifying on occasions what had been said by the plaintiff. Largely, it was restricted to instances where the plaintiff saw it necessary to give a lengthy response to a question. The plaintiff has called Mr O'Connor (the only eye-witness available in respect of the accident). 18 The first defendant has called two police officers. The officers were Senior Constable Williams (who was then Constable Williams) and Sergeant Learmonth (who was then Constable Learmonth). The first defendant also called Mr Sullings (the Urban Road Design Manager employed by the first defendant). 19 A number of experts have been called also on the question of liability. The plaintiff relies on the reports and other evidence given by Professor Ball and Mr Joy. Similarly, the first defendant relies on Mr Fishburn and Dr Webb. Further, it has tendered a report on the phasing of the traffic control signals (Exhibit 9). 20 Firstly, I shall briefly refer to the evidence given by the plaintiff and his mother. The plaintiff has no memory of the accident itself. His last recollection prior to the accident is putting petrol in the vehicle at Wahroonga. He says that at the same time he checked the tyres. 21 At the time of the accident, he was not living with his parents at Asquith. He was living with his grandmother at Turramurra. The vehicle was owned by both parents and was on loan to him at the time of the accident. It seems that he had been using it during the period of two to three months preceding the accident. 22 The plaintiff had an interest in cars. As a hobby he "did up cars" (Holden Toranas in particular). He did mechanical work on cars. 23 It appears that on the day preceding the accident, he had been with his parents in the afternoon. Later, he had attended the slot car track at Waitara. It appears that he was on his way home to Turramurra at the time of the accident. 24 The plaintiff was blood tested following the accident. The testing returned a negative reading in relation to alcohol. 25 The registration of the car had been renewed during August 1989. The evidence led on behalf of the plaintiff is that it was well maintained (in particular, the brakes and tyres were in good condition). 26 Mr O'Connor was very familiar with the intersection and accustomed to driving in the early hours of the morning. He had proceeded to the intersection (travelling in an easterly direction) along Fox Valley Road. As he approached the intersection the traffic lights were displaying the red signal. He stopped at the lights to abide a change of signal. He was intending to turn right into the Pacific Highway and travel in a southerly direction. He was in the traffic lane closest to the centre of the roadway. 27 He has given evidence as to the weather conditions. He describes them as being one of continuous heavy rain. He said that for two days prior there had been very heavy continuous rain. In cross-examination, he said that he had not seen rain of such intensity or water of such depth during a preceding period of 25 – 30 years. He said that there was a lot of water on the road. He said that the water on the roadway remained in much the same condition for the duration of the time spent by him at the scene of the accident. 28 As he waited for the lights to change, he observed the headlights of a vehicle approaching the intersection from the left about 150 metres away. This turned out to be the vehicle being driven by the plaintiff. He observed two vehicles or the headlights of them on his right (about 300 – 400 metres away). He may have waited at the intersection for about five seconds. He said that the Pacific Highway curved in front of where his vehicle was stationary. He saw the headlights of the plaintiff's vehicle as it approached the intersection. He said that he was "aware" of the vehicle passing in front of him. He then saw the red tail-lights. For a short time there is a gap in his observation of the plaintiff's vehicle (the reason for which is not entirely clear). He then became aware that the red tail-lights had disappeared. He then heard a loud noise (a bang or a crash). He saw the sodium light pole swaying. There was then an explosion which lit up the area. He then saw that the plaintiff's vehicle had impacted with the pole. He has identified the pole as being about 20 metres south of the intersection (this is not the position of pole T232). For completeness, it may be added that the plaintiff's process was amended following the giving of Mr O'Connor's evidence. 29 He drove through the intersection and parked in the kerb lane of the Pacific Highway (so that his lights were shining on the plaintiff's vehicle). After going over to the vehicle, he reversed his vehicle a few car lengths so that other traffic coming south would see it. He put on his hazard lights. The police and ambulance were called by a taxi driver. Mr O'Connor proceeded to take steps to direct traffic around the accident scene. The police arrived about ten minutes after the accident. After the police and ambulance had attended the scene, he approached a police officer informing him that he was able to give information concerning the accident. He was directed to sit in a police vehicle that was at the scene. He was later interviewed by another police officer. Following that interview, he took the policeman into the intersection. He said "I took him around to the rear of his car in the middle of the intersection". He pointed to how the water was flowing south in the northbound lanes and turning around the end of the concrete median strip and then flowing across the southbound lanes. 30 He made observations about water on the roadway. He did not measure the water depth. He described the running water as appearing to be flowing over his shoes. He gave a depth of about 50 mm or 2 inches when standing at about the edge of the second southbound lane in the middle of the intersection. He said that the water was deeper near the median strip. It tended to spread out. The stream could have been 5 to 6 metres in width (the middle lane). It was not as deep as it spread out. He said "There was a lot of water other than that on the road, too, right down as far as the car". He said that there was also a lot of water coming down Fox Valley Road and that would have carried on further south. He said that he did not see water flowing over the median strip. Whilst it is not entirely free from doubt, the evidence suggests that these observations may have been made prior to the arrival of the police. 31 He said that the plaintiff was not travelling very fast prior to the accident. He gave an estimate of being less than the 60 kph speed limit (could have been 50 kph). His oral evidence is that the plaintiff was travelling in the middle of the road. 32 He did not proffer evidence as to whether or not he was having difficulty controlling his vehicle in the conditions. 33 There is documentation which came into being in 1990 which purports to record material relevant to his version of the accident (including police documentation and a statement made in October). I have earlier referred to the statement. It was not tendered in evidence. A copy of it was given to Mr Joy and he relied on it as evidencing that the plaintiff was travelling in the kerb lane (or lane 1). 34 Senior Constable Williams had attended the scene of the accident together with Sergeant Learmonth. They had been on patrol duties. Sergeant Learmonth was driving the police vehicle and they travelled from the north along the Pacific Highway to the accident scene. She couldn't say whether he had any trouble driving down the highway. 35 She did not recall making any notes concerning the accident. She had not refreshed her recollection. She had been first asked to give evidence during the early part of the week in which the trial had commenced. 36 She conveyed a weather picture of constant very heavy or extensive rain. It was quite hard to see. A few hundred metres north of the scene she observed that there was a lot of water on the road and that it was lapping at the tops of the gutters. It was running from one side to the other. Whilst she was at the scene, she did not notice any change in the intensity of the rain or the depth of the water. 37 She recalled that there was water on the roadway at the intersection. It was flowing from the Fox Valley Road side directly across the road. The police vehicle was driven through the intersection. It was brought to a halt on the highway in the lane closest to the kerb in Hayden Avenue. This positioned it in front of the plaintiff's vehicle (which she positioned at a light pole adjacent to the driver's side door). 38 When she got out of the vehicle, the water was up to her ankles. She walked on the bitumen about 10 metres straight to the driver's window. On the bitumen road surface it was up to her ankles. Her feet were under water the majority of the time that she was there. The water was at the top of the gutter. She spent some time in the plaintiff's vehicle. 39 She had no recollection of another vehicle (other than a rescue vehicle) being down near the pole south of the intersection. However, she accepted that it was possible that the presence of such a vehicle may explain why they parked in front of the damaged vehicle. 40 She identified the pole which she said was struck by the plaintiff's vehicle. The pole was identified by a marking made on Exhibit A. It was not the pole at the intersection, but a second pole that stood at a distance from the intersection to the south of the traffic lights. 41 She thinks that she drove the police vehicle away from the scene. She can't remember leaving with Sergeant Learmonth. She remembers that she had to turn the vehicle around towards Hornsby, that it was raining and that it was hard to see (the windows fogged up). 42 The version given by Sergeant Learmonth differs significantly from that given by Senior Constable Williams (also, it differs significantly from evidence given by Mr O'Connor). The evidence of the police officers suggests little interaction between them at the scene. He prepared the police documentation relating to the accident (there was a notebook entry, an occurrence pad entry together with the motor collision report). 43 According to his version, they were at the Hornsby Shopping Centre when the call was received to attend the scene. At that time, he said that there was a light drizzle of rain. The rain became extremely heavy on the approach to Pearce's Corner and continued until they reached the accident scene. The further they went there was more water on the road and the worse it became. These conditions continued for some time whilst they were at the scene (probably for about one half an hour) and then gradually eased off with the water dissipating quite quickly. 44 Initially they had proceeded towards the scene at a speed of between 100 and 120 kph. Because of the weather conditions, he slowed the vehicle to between 40 to 50 kph. He said that the windscreen wipers could hardly handle the water. The rainfall was torrential. He had not seen rain like that in this area. There was water covering the road (inter alia at Knox Grammar School the road was virtually under water). The gutters were full. He said that generally he travelled in the middle of the three lanes and that the vehicle was sliding and losing traction. As they neared the scene, there was impaired vision through the windscreen. He gave some conflicting evidence as to the extent of this problem. At one stage he said he couldn't see beyond the end of the bonnet. Later he said that he couldn't see far past the end of the bonnet. He first saw the crashed vehicle when he was about two or three car lengths away. 45 He said that the northern side of the median strip was covered with water. The water was at a level of the median strip on both sides of the road. He could see in front of him a lake of water across the road. The gutter could not be seen. 46 He said that when the intersection came into view, he saw the Kingswood at the intersection. It "was up against the telegraph pole with the back end facing out onto the road". 47 He has the police vehicle parked at the start of the intersection (on the northern side) and at the start of the curve ("so the lights could be seen from up the street"). This placed the police vehicle to the rear of the crashed vehicle. He said that he parked the police vehicle in the middle of the three lanes with the rear wheels close to the stop line of the intersection. He cannot remember the position of the vehicle being changed. 48 He alighted from the police vehicle and went to the crashed vehicle. He described the water as being of a depth to the top of and running into his boots (about 8 inches or 200 mm). He said there was no change in the depth of the water as he proceeded towards the crashed vehicle. 49 Sergeant Learmonth has the crashed vehicle and the pole positioned at a point towards the middle of the intersection (two or three car lengths in front of the parked police vehicle). This was a stance that had been presented on a number of occasions by him and one which he persisted with during his evidence. He did this despite what appears to the contrary in the traffic collision report and the occurrence pad. He said that there were no traffic lights on the pole. 50 The notepad contains a version of what he recorded as being said to him by Mr O'Connor. He described its contents as being brief notes taken in difficult conditions. Initially, he said that "it has been rain obliterated a little". Later, he conceded that there was no evidence of any moisture and that his writing was the problem. There are differences between the contents of the notebook and what appears in the subsequent occurrence pad entry. The traffic collision report and the occurrence pad entry were prepared later at the Hornsby Police Station. The occurrence pad entry positions the pole at 20 metres south of the intersection. This description is consistent with what appears from the sketch on the traffic collision report. 51 Sergeant Learmonth seems to have little recollection of Mr O'Connor. He does not remember seeing him or his vehicle when police arrived at the scene. He spoke to a gentleman. He does not remember being taken to the intersection and being shown water flowing across the highway. 52 Mr Joy is an expert in the area of traffic engineering. He has attended the scene. He has prepared two reports. He brought Professor Ball into the matter. He underwent a lengthy cross-examination. 53 He had been provided with certain documents. I shall mention certain of them. He had been given a copy of a report from Professor Yandell (which has not been tendered). He had been shown the police traffic collision report. It showed that the plaintiff had approached the intersection in southbound lane No. 2. He had been given a statement said to have been made by Mr O'Connor which indicated that the plaintiff had been travelling in the "outside lane" (which Mr Joy understood to be southbound lane 1, that is the lane nearest the eastern kerb). 54 Mr Joy's investigation led him to the view that the collision probably took place with pole T232. For this to happen, the plaintiff's vehicle needed to be in lane 1 (otherwise it was highly improbable). He attributed the accident to a loss of adhesion, after encountering water in the intersection (partial aquaplaning), which brought about a loss of directional control. 55 In cross-examination, he agreed that he had assumed the causative effect of the water on the road (he assumed that the plaintiff's vehicle encountered a concentrated flow of stormwater and that it was the cause of the loss of directional stability and the rotation to the left). His brief was to explain that it could be a cause of the accident. He accepted that there were other possibilities. He was not able to determine the point at which the vehicle lost adhesion. 56 Professor Ball is a hydrologist. He is an Associate Professor at the University of New South Wales. His Curriculum Vitae is in evidence. He is not an expert in road design. His expertise is in the area of drainage. He has provided two reports. 57 He was of the opinion that the drainage system was inadequate due to the concentration of flow from the northbound traffic lanes on to the southbound carriageway. He said that he would normally expect that a pit should have been installed at the south western corner of the median strip to collect stormwater from the northbound lanes. In oral evidence, he described it as a grated kerb inlet. He said that for some design periods you are probably looking around the seventy to eighty percent collection efficiency. He put forward an alternative. This involved the spreading of the flow by the installation of drainage holes in the median strip. This would have the effect of spreading the run-off over a wider area and reduce the flow depth on the southbound carriageway. Initially he took the stance that this was a lower standard of drainage but an effective means of improving the drainage in the area. 58 He was concerned as to the inadequacy of the material had as to the amount of water on the roadway. There was no pluviometer at the location and the extrapolation of data from other sites is prone to potential and large errors. In any event, he took the view that a pluviometer was only an inaccurate guide. 59 One area of dispute between Professor Ball and Dr Webb related to the matter of flow depths. He addressed this matter both in oral evidence and in his second report. It is a matter of some complexity. I shall return to it in due course. 60 He thought it was possible that it may be very difficult to make an observation as to depth of water, when the water is running quickly and the person's feet are in it. Estimates may be due to the damming effect of rushing water against the feet. He said that he had not had the opportunity to work out the dimensions of the grated inlet pit proposed by him. He said that he was not hired as an expert in road design. He would have to defer to people with more expertise. 61 In oral evidence, he accepted that his alternative would put water over the southbound lanes over an extended length and potentially make the situation more hazardous. It was not a good idea, which is why he would not recommend it. 62 Mr Fishburn is a professional engineer. For most of his professional career, he has worked for the first defendant. He left it in 1998. He is now a senior highway engineer in private practice (presently, he is the design manager of a project involving rebuilding the central motorway junction south of Auckland). He has had extensive field experience, especially in the motorway/freeway area. He was a project manager of sections of most of the major motorways around Sydney. He was appointed the road designing engineer for the first defendant in 1984. He has produced the "Road Design Guide" (it has a section dealing with road drainage). He has prepared a lengthy report. It has been prepared on the basis that pole T232 was the pole with which the plaintiff's vehicle had collided. 63 He gave supplementary evidence concerning pole T234. He took the view that if the loss of control took place either in the intersection or slightly north thereof it was difficult if not impossible to hit T232 and that it was more likely that the plaintiff's vehicle would have hit T234. If the loss of control had taken place further to the north, the vehicle could have hit T232. 64 He said that a gully pit is intended to catch part of the flow (take some water out of the gutter system itself) and reduce the width of the flow against whatever the kerb happens to be. 65 He explained that it was practically impossible to install either an SF gully pit or any other gully pit in the circumstance where such a mountable median strip had been used. He explained the problems that could follow from the use of slots in the median strip. He also explained the problems that would follow from the installation of grates as contemplated by Professor Ball (inter alia they restrict efficiency). Further, he took the view that the installation of a gully pit would have afforded inconsequential benefits in the conditions encountered on the day of the accident. 66 He gave this evidence:- "Q. Water that falls on the western side of the carriageway at this intersection and to the north of the traffic lights will fall to some extent or reticulate against the western side of the median strip? A. That is correct. Q. Where does it go? A. It then flows to the south because that is the way the road is graded and then once it leaves the constriction or the barrier that is created by the median strip, it would then flow around the nose and across the road, the southbound carriageway. Q. From a design and road safety point of view, is there anything wrong with that? A. Well it depends on a number of factors. The first one is how much water is going down there. The second one is what is the operating speed of the traffic. Now under most urban designs you do accept the fact that water is going to leave the median noses at some locations and stream across the road but what you try to do is to keep the amount of that water to a minimum and also to take into account that where pedestrians are involved that you make sure that they don't get water in a substantial depth over their feet. Q. You have looked at the intersection? A. I have. Q. And in the configuration in which it is presently to be found does it accord with good practice? A. It not only accords with good practice, I am most impressed with some of the mechanisms used at this intersection to take into account the fact that the volume of water on a super elevated kerb, that means the road is cambered transversely to help vehicles around the corner, you always run into trouble with water flowing from the ultimate northbound carriageway all the way across the number of lanes involved. What they have partially done here is to, what I have referred to in my report, is break the back of the super elevated section in order to deliberately tilt part of the super elevated road back the other way to the west so that that water goes into the gutter on the western side, instead of flowing all the way across the road. Q. If you accept that a judgment was made that a right turn lane for Fox Valley Road traffic was necessary and that a back to back SF kerb was necessary because of space constrictions as it were, from a road engineering design construction point of view was there any other drainage solution available other than the one that is there to be seen? A. I don't think there is." 67 He said that Mr O'Connor's vehicle would have activated the traffic control signals so that it was highly likely that the plaintiff was approaching either an amber or a red signal. 68 He discounted the application of the concept of "aquaplaning". He saw it as merely one area of loss of adhesion which had application where there was high speed. He expressed the view that loss of control could have been due to other factors (such as braking and acceleration). He mentioned that the brakes can be affected by water and stressed the importance of high tyre pressure. 69 He described the process of yawing (Transcript pp189 – 190). He was of the opinion that the loss of control might have commenced north of the stop line of the intersection. It takes some time for a yaw to be discernible to the outside observer (see inter alia Transcript p238). It takes some time for a vehicle to yaw to 120 degrees. 70 Dr Webb gave his occupation as consulting engineer. He also said that he was a hydrologist. He is an expert in road drainage. He has been involved in the production of a new RTA road design guide ("Stormwater Management and Drainage Design"). The plaintiff raises no issue concerning the qualifications of Dr Webb. 71 In his report he set out the following:- "The relevant design guides for the lane modifications undertaken in 1989, and therefore the relevant design guides for the road geometry and structure at the time of the accident were: 1987 version of AR&R, NAASRA 1986 'Guide to the Design of Road Surface Drainage'." Section 8.1 of the report provides further detail of the design guides and certain of his views concerning compliance with the criteria found in the guide. In oral evidence, he said that the NAASRA guidelines make clear that one of the parameters is cost and benefit. A very large factor against site specific designs is cost. 72 In oral evidence, he also said:- "Q. Why are intersections different from major urban road gutters? A. Intersections, the gutter, hydroplaning and gutters are special parts of the drainage. If we are talking about an intersection we are talking about pipe drainage with pits and other features that enable water to be taken off the road. One thing important to remember about roads is that they are the overflow areas for piped drainage systems. The pipe drainage will carry two year or five year or maybe a ten year flow. The rest of the water has to basically flow along the road. You just can't afford to build pipes under roads that would carry say a 100 year flow. The road becomes part of the drainage system effectively for large storms." 73 In his report, Dr Webb observes that the rainfall intensities which were recorded within 2.5 kilometres of the scene at about the time of the accident may be statistically expected to occur up to eight times a year on average. In his opinion there would appear to be some anomaly between the recorded rainfall data and the volumes of surface water described by the witnesses at the scene. The pluviograph stations are distributed at distances from 2kms and upwards around the intersection. Rainfall intensities are known to vary quite considerably between locations even though the available pluviograph data show a consistent pattern. It is possible that the gauge network missed localised high intensity rainfalls. 74 The report also contains the following:- "As detailed in Section 7.3, the recorded rainfall intensities are inconsistent with those described by witnesses. Previous calculations show the conditions described at and around the accident site relate to a rainfall intensity in excess of 500 years ARI. Such an extreme rainfall event is well beyond any design requirement for road surface drainage as indicated in the NAASRA Table 7.1 (refer Section 8.1). The Statement of Sergeant Learmonth described sections of the Pacific Highway as being ' awash from gutter to gutter ' from Hornsby to the accident site. In such extreme instances it is reasonable to expect a driver to exercise some degree of care and to drive in a manner appropriate to the prevailing conditions, or stop entirely and wait for the conditions to ease." 75 Doctor Webb dealt with the concept of aquaplaning. He described aquaplaning (or hydroplaning) as occurring when the tyres of a vehicle moving at speed become completely separated from the road surface by a film of water. He said that both braking and steering are affected as the water film cannot develop the necessary shear forces (friction supply) to enable such manoeuvres. He said that furthermore, any differential in drag between the two parallel wheel parts can cause a vehicle to spin. In oral evidence, he said that it was virtually impossible to get aquaplaning at speeds below 80 kph. 76 Doctor Webb further said in his report:- "Based on the estimated sheet flow width of around 7.5 m in the centre lane, the depth of flow would be reduced to approximately 4.5 mm for the 2y event. As detailed in Section 8.2, the available literature indicates that the critical depth for aquaplaning is often stated to range from 4 mm to 10 mm depending on tyre and pavement surface interaction and vehicle speed. Research discussed in Section 8.5 has found that for the design speed of 60 km/h, aquaplaning is very unlikely to occur irrespective of the water depth. The depth of 4.5 mm for the 2y design scenario would still be considered to be acceptable as it is only marginally within the lower bound of this range and as NAASRA 1986 states ' water depths in wheel path locations should be kept below about 4 mm '. Furthermore, the longitudinal travel distance over which a vehicle would be subjected to a water depth nominally in excess of the recommended criteria would be relatively short ( 7-8 m) and therefore aquaplaning conditions are unlikely to be instigated. The excess depth must be experienced over some travel distance (reportedly much greater than 10 m depending on speed – refer Section 9.1) before vehicle stability is affected by the build-up of water pressure under the tyres and which is at least partly related to the weight of the vehicle. Concentrated flows of limited width pose little threat to the vehicle stability." 77 What has been referred to as the NAASRA target of about 4mm was further explained in oral evidence. He regarded it as a reasonable value to use (even perhaps 6 mm was still within acceptable range). His calculation for the flow from the median was 4.5 mm. In oral evidence he said:- "Q. I take you to p 31, in particular the last paragraph on that page. There you have written in commenting upon that which is written by Burke and Preston in their publication Road Geometry As It Affects Surface Drainage, 'The value recommended in design manuals are typically around 4.0 millimetres but appropriately qualified to allow the designer some flexibility when considering the numerous other parameters that influence the overall road design adopted'. Do you see that? A. Yes. Q. That is relevant to the issue between yourself and Dr Ball about four millimetres as he would say as an absolute figure and your approach to it as being nothing more than a guide having regard to the four to ten millimetres range of that which you spoke? A. That is correct." 78 He also observed that it was worth noting that the physical topography of the scene made it very difficult for the reported depths of water to actually occur. He took the view that collision with pole T232 was in the realm of the impossible. He found it difficult to reconcile that the vehicle managed to lose control as claimed and spin through 90 degrees or more to hit the pole within such a relatively short distance. He regarded collision with T234 as a possibility. He thought it more likely that if the vehicle lost control inter alia due to aquaplaning it would continue in a direct tangential direction rather than veering off to the left and hitting that pole. His conclusion was that the cause of the accident could not be attributed to the road drainage design or its maintenance. 79 He described visibility as a significant factor contributing to reduced safety and an increase in accident numbers during wet weather conditions. He said that whilst it is directly related to rainfall intensity, he referred to other factors which tests had shown may also contribute toward further degradation of visibility. Recorded information showed that intensities of at least 30 mm/h were experienced at the time of the accident and such values would have reduced driver visibility. Further, he took the view, based on information from witnesses, that visibility was very limited and that driver behaviour was in fact probably inappropriate in the prevailing conditions. In oral evidence, he referred to circumstances in which there is virtually no visibility. It was his view that in those circumstances no attempt to drive should be made and that there is no point in designing the road drainage for conditions in which a vehicle cannot be driven. 80 In relation to the accident, he expressed this view:- "A more realistic postulation is that the vehicle initially lost control some distance prior to the intersection and curve tangent point. The loss of control may have been due to the driver falling asleep, excessive or sudden braking or acceleration and/or sudden erratic steering combined with reduced available friction due to the wet conditions. These latter driver responses may have been triggered as a reaction to the traffic light signal or the late realisation of the approaching change in road direction (curvature). The driver awareness or perception of both these factors would have been considerably reduced by the extremely poor visibility conditions and having just come over the crest before the intersection. Such actions would be sufficient to cause the vehicle to spin whilst at the same time drifting left and ultimately impacting with the subject electricity pole. This scenario conforms with the eyewitness statement and is more reasonably justifiable as the vehicle manoeuvre would occur over a comparatively longer distance and time period compared with the alleged account of events detailed in the Statement of Claim." 81 He addressed the issue of whether or not a median kerb inlet pit should have been installed at the end of the northern median to minimise the concentration of flow from the northbound carriageway across the southbound carriageway. He concluded that the inclusion of a median pit would have had a negligible effect on the width of flow across the southbound traffic lanes. He regarded the Dr Ball alternative (the installation of drainage slots in the median strip) as worsening the situation and increasing the potential risk for aquaplaning. 82 He said that the shortening of the median associated with the intersection layout changes required for the 1977 works, led to the removal of the inlet. Where the median was then relocated was to provide the right turn bay, the need for the inlet pit was reduced ever further with the removal of the northbound lane from the contributing catchment area (a reduction of some 41%). 83 For completeness, I should make mention of Exhibit 9. It contains a description of the phasing at the intersection together with information as to vehicle timing. 84 Before leaving these matters of evidence, I should refer to an area of dispute which occupied some hearing time. It arose out of informal discovery and alleged non-production of documents (including files) by the first defendant. Evidence from Mr Sullings led to the view that a construction file and parts of a survey and design file may have been water damaged and destroyed. 85 This is a case in which reliability and credibility of witnesses is a matter of great importance. I have closely observed the demeanour of witnesses during the giving of evidence. In assessing reliability and credibility, I have had regard both to demeanour and evidence. 86 Mr O'Connor is an independent witness. He gave his evidence in a careful and measured manner. He conveyed the impression of endeavouring to do his best to give reliable evidence. He was an impressive witness. There is little issue, if any, as to his reliability and credibility. I regard him as a reliable and credible witness. Largely, I accept his evidence and prefer it where there is conflict. 87 There are areas of conflict in the evidence given by the two police officers. Senior Constable Williams seems to be accepted as an honest witness who did her best to give accurate evidence. Sergeant Learmonth did not present as an impressive witness. He has given and persisted with evidence which is inconsistent with his own documentation and other evidence. Also, there is conflict with the evidence given by Mr O'Connor. He gave evidence which had a flamboyant or overstated quality about it. I formed the impression that generally his evidence should be treated with care and that in particular aspects of his evidence were unreliable. Largely, where there is conflict, I do not accept his evidence. 88 A significant part of the hearing time has been devoted to the matter of evidence from expert witnesses. All experts did their best to assist the court. The material provided by Mr Joy was ultimately of little assistance to the court. It was founded on assumptions which were not established. I found both Mr Fishburn and Dr Webb to be very impressive expert witnesses. Both had extensive experience in their respective fields of expertise. In contrast to the approach taken by them, Professor Ball seems to have had a limited perspective and was not an expert in road design. I am not persuaded that I should prefer the plaintiff's experts to those of the first defendant. Indeed, I prefer what was said by the first defendant's experts. 89 I now turn to the respective cases presented by the parties. At this stage, it is convenient to present an outline of the respective cases. 90 The plaintiff's case is that his vehicle lost traction on the highway due to the level of water. It is said that it was above the dangerous level of 4 mm. It is said that if a gully pit had been installed at the median nose the water level would have been reduced by some 70 – 80% and brought below the dangerous level. The alternative of slots in the median was not ultimately pursued. It is said that the loss of traction was followed by conduct of the driver which contributed to the yawing of the vehicle. 91 The plaintiff contends that the first defendant has not discharged the onus of demonstrating any contributory negligence. It is said that the plaintiff accepts that the first defendant need not establish precisely what was done by the plaintiff to bring about a failure to take care for his own safety. 92 The first defendant says that the duty of care must be viewed in the light of the statutory powers and was conditional on the plaintiff taking reasonable care for his own safety. This submission was not disputed. 93 The first defendant denies that there was any breach. It says that what was done was done in accordance with good practice. It is further said that a failure to install a gully pit did not lead to any breach because such an installation was impractical. 94 It is further said that if a breach of duty was found, there was no causal connection between that breach and the damage suffered by the plaintiff. It is said that the installation of a pit would not have made any difference. 95 The case in contributory negligence is founded on the allegation that the plaintiff was driving at a speed that was too fast in the circumstances of this case. 96 The court is faced with a prodigious body of material and large areas of conflict concerning an event that took place more than 11 years ago. It is an event of which the plaintiff has no memory and there is a gap in the observation of it by the only eye-witness at a significant time. There is less than what is usually provided by the police. Despite the presentation of such a volume of material, the cause of the accident remained to the end in the area of conjecture or speculation. 97 The plaintiff bears the onus (on the balance of probabilities). I am not satisfied that this onus has been discharged (inter alia I am not satisfied that breach of the alleged duty and causation has been so demonstrated). 98 In submissions, the first defendant has presented the weather conditions of the nature of either being appalling or exceptional. Despite the differences in the observations made by witnesses and the recorded data, it is clear from the evidence of those who were at the scene at or about the time of the accident that it was very wet. There was rain of high intensity and there was a lot of water on the road surface of the southbound lanes at or about the intersection. Water depth could be expected to be variable depending on location. The depth of water coming around the median strip could have been expected to decrease as it spread out as sheet-flow over the roadway. I prefer the observations made by Mr O'Connor as to water depths. However, I am not satisfied that precise findings can be made as to water depth relevant to the plaintiff's accident. 99 This is not a case where the plaintiff had suddenly come unexpectedly upon water on the road at the intersection. For some time prior thereto he would have been driving in conditions of heavy rain with water at various depths over the roadway. The evidence is that he was travelling in the middle of the road as he approached the intersection. 100 In my view, it is not possible to make any positive finding as to where it was on the roadway that the plaintiff's vehicle first began to experience difficulties. It could have been either north of the intersection or in the intersection itself. If a view needs to be expressed, I favour the encountering of problems prior to the intersection. There are a number of possibilities which may explain how it came to be that the plaintiff's vehicle collided with a pole (including driver error). They were canvassed in evidence and it is unnecessary to recount them. In my view, it would be a matter for conjecture or speculation to identify any one or other of them as the cause or explanation for the accident. 101 The plaintiff's submissions identified T234 as the pole which was the subject of impact. The first defendant's submissions did not eliminate T232 as a possibility. In my view, the evidence establishes that the collision took place with T234. 102 I shall now mention certain other findings that flow from the evidence. I am not satisfied that water on the roadway (be it at the intersection or elsewhere) caused the plaintiff's vehicle to leave it and or collide with a pole. Leaving aside the matter of water on the road, he was (and had been) driving in difficult conditions. I am not satisfied that water was of a depth that would cause problems for a driver taking reasonable care for his own safety. Further, I am not satisfied that the installation of a gully pit at the nose of the median strip was either practicable or would have had other than inconsequential impact in reducing water on the roadway in the circumstances of this case. 103 The first defendant has referred the court to a number of decided cases (including Brodie v Singleton Shire Council [2001] 75 ALJR 992; David Jones Limited v Bates [2001] NSWCA 233; The Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Kondrajian [2001] NSWCA 308; Seltsam Pty Ltd v McGuiness [2000] NSWCA 29 and Sabatino v The State of New South Wales and Others [2001] NSWCA 380). 104 The duty of a highway authority has been expressed to be in terms of a duty to take reasonable care for the safety of persons who are taking reasonable care for their own safety. In this case, I am not satisfied that the plaintiff took reasonable care for his own safety. 105 The authorities establish that the balance of probabilities test is not satisfied by evidence which fails to do more than establish a possibility. A clear distinction is to be drawn between permissible inference and conjecture or speculation. In my view, this is not a case where inferences can be drawn to demonstrate negligence on the part of the first defendant. 106 As has been said during the course of this case, the accident has produced tragic results. The plaintiff's plight attracts great sympathy. Unfortunately for him, he has failed to discharge the onus of proof. 107 There will be judgment for the first defendant. The plaintiff is to pay the costs of the first defendant. 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