New South Wales Court of Appeal CITATION : Puzicha v. Evans Shire Council [2004] NSWCA 345 HEARING DATE(S) : 7 September 2004 JUDGMENT DATE : 7 September 2004 JUDGMENT OF : Beazley JA at 35; Hodgson JA at 1; Bryson JA at 36 DECISION : Appeal dismissed with costs. CATCHWORDS : TORT - Negligence - Plaintiff injured when car washed off causeway - Whether Council negligent in signage of causeway PARTIES : Michelle Colleen Puzicha - appellant Evans Shire Council - respondent FILE NUMBER(S) : CA 40238/03 COUNSEL : Mr. L. King SC with Mr. J. Kernick for claimant No appearance for opponent SOLICITORS : Higgins & Higgins, Lithgow for claimant LOWER COURT District Court JURISDICTION : LOWER COURT DC68/01 FILE NUMBER(S) : LOWER COURT Judge Williams JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40238/03 DC 68/01 BEAZLEY JA HODGSON JA BRYSON JA Tuesday 7 September 2004 PUZICHA V. EVANS SHIRE COUNCIL Judgment 1 HODGSON JA: On 9 October 2002 Judge Williams in the District Court found a verdict for the respondent Council in proceedings brought against it by the appellant and ordered the appellant, to pay the respondent's costs. However, against the possibility that he be found incorrect on the question of liability, the primary judge went ahead and assessed damages at $79,250. 2 The appellant sought leave to appeal from this decision, and was granted leave on 23 September 2003; and this judgment is a determination of her appeal brought pursuant to that leave. 3 The circumstances giving rise to the proceedings can be summarised as follows. 4 On 5 August 1998 the appellant, who was a dog and stock control officer employed by the Oberon Shire Council and who was on call twenty four hours a day, was telephoned at about 6pm and asked to go to attend to some black cows on the road near Jack Molloy's Bridge, close to Rockley Township. She had not been to that location before. 5 She travelled in her own car, a new Ford Laser, with her daughter and a friend Ms Leanne Finch and her son. It was dark and raining, and en route to her intended destination the appellant passed through causeways in respect of which there were signs giving the name of the creek, depth markers and advisory signs like "Road subject to Flooding". She also crossed a bridge. 6 On approaching Campbell River at Sewell's Creek Road, the appellant encountered a sign which in fact consisted of two signs one on top of the other. The top sign had the word "causeway" on it and the bottom had the words "do not cross if water over causeway". The top sign was a yellow diamond shape and the bottom a rectangular yellow shape. The appellant saw the bottom sign clearly with her headlights on high beam. 7 Immediately following the sign there was a curve to the left and the road then gently descended. The appellant gave evidence that she saw a gate to her right giving access to a private property, and that in front there was then water over the road which she said looked "very sheer", and her impression was that the area looked like a paddock. This was one hundred metres or more from the sign. 8 The water was assessed by the appellant and Ms Finch as being shallow water over something like a paddock, and the appellant proceeded into it. 9 Her evidence was that, after travelling a short distance, the vehicle was washed off the causeway and the appellant suffered injuries in respect of which she brought the proceedings. 10 In cross-examination the appellant said she used water depth indicators, such as were in places before the location of the accident, to decide whether to proceed or not. She said what she understood from the sign to which I have referred was that there was going to be a causeway which ought not to be crossed if there was water on it. The appellant said she was expecting a further sign to indicate that she had reached the causeway. 11 The appellant's companion, Ms Finch, also gave evidence. She too had not been to the area before, and she also said that preceding causeways had been negotiated using the depth markers. She saw the sign to which I have referred, saying it was before the bend leading to the location of the accident - "way before where the causeway was on the river." She agreed that the car continued after the gate observed to the right, because they had not realised they were then on a causeway. 12 There was a report tendered in support of the appellant's case from an engineer, Mr Brown, who expressed the view that the appropriate sign would have been in accordance with the Australian standard which recommended, amongst other things, depth markers. He expressed the view that the type of sign adopted at this particular location was not appropriate, particularly because safety varies with vehicle type. Mr Brown did not give oral evidence and there was no evidence directly challenging his evidence. 13 For the respondent Council, evidence was given by its director of engineering of three and a half years standing as at the date of trial, Mr Swan. He conceded there was an Australian standard applicable to crossings like the one in question and, although he could not remember its exact provision, his understanding was it was something along the lines that there should be flood markers showing depth. 14 In his decision of the case, the trial judge dealt principally with the contention that the Council had failed to provide adequate signing of the causeway, this being the primary contention both before the primary judge and on appeal. He noted the contention that the Council should have placed additional signage by markers showing the depth of the water above the causeway, and a sign indicating that the road user was approaching a river, as opposed to a creek. He noted that depth markers would have indicated the possible depth of the water, though not the rate and volume of flow of the water across the causeway. He noted that the distinction between creeks and rivers was not clear cut, and concluded that he was not satisfied that the lack of signage as to there being a river was a breach of the Council's duty to road users. 15 He noted that the existing sign was pre-emptive to the effect that if water was across the causeway, motorists should not proceed; and he was not satisfied on the balance of probabilities that not placing depth markers in the vicinity amounted to a breach of the Council's duty to road users. 16 The primary judge said he was unaware of the distance between the sign and the causeway, but he was not satisfied, having regard to the geography of the road as depicted in the photographs tendered in evidence, that the sign should have been placed in a different position, in particular, any closer to the causeway where its warning purpose may have come too late. On that basis, he considered that the appellant had not established that the Council had failed to provide adequate signage of the causeway. 17 He then considered a number of other particulars of negligence, some included in that primary head of negligence and others not included. In respect of the other particulars not included it is not necessary to canvas them, as they have not been pursued on appeal. 18 The appellant relies on the following grounds of appeal: 1. The Decision was against the balance of the evidence. 2. His Honour erred in taking into account matters not in evidence. 3. His Honour erred in law as to duty of care owed by the Defendant to the Plaintiff. 4. His Honour erred in finding no breach of duty of care by the Defendant to the Plaintiff. 5. His Honour erred when finding the Plaintiff ignored warning signs. 6. His Honour erred when finding the signing was adequate. 7. His Honour erred when finding that the absence of depth markers in the vicinity of the causeway did not amount to a breach of duty of care. 8. His Honour erred when he failed to find that the sign should have been placed in another position and/or additional signage should have been placed closer to the causeway so as to alert the Plaintiff to its position in the roadway. 9. His Honour erred when concluding that the warning sign signalled to a driver to desist with their forward movement on the road. Rather the sign calls upon the driver to make an assessment of the causeway when it is later encountered. 10. His Honour erred when he failed to consider the evidence of the Plaintiff and Ms Leanne Finch that they had not recognised the water as containing the causeway. 11. Having found that the road previously travelled by the Plaintiff was inundated with water at the same level as the surrounding fields, his Honour failed to consider the Plaintiffs contention and evidence that she again considered that in the absence of other matters or signage she was encountering another such example of the water covering the road at the same level as the surrounding fields. 12. His Honour erred in failing to consider that the depth marker or other signage in close proximity to the causeway would have additionally identified the location of the causeway. 13. When considering the principle in Brodie -v- Singleton Shire Council his Honour erred when he failed to consider the evidence of the Director of Engineering, Mr Swan, to the effect that there are only three causeways in the Shire that are so inadequate in dealing with the local rainfall that signs are incapable of permanent erection. 14. His Honour erred when finding that if the sign had been complied with the incident would not have occurred. 15. His Honour erred when finding the Plaintiff had specialist knowledge in respect of how a river or creek behaves, given that she lived in the geographic area. 16. His Honour erred when he considered how one might expect a river or creek to behave, not having found that the Plaintiff did appreciate she was confronted with a creek or river, or having rejected the evidence of the Plaintiff and Ms Leanne Finch that they did not appreciate the locality of the causeway, river and/or creek. 19 The appellant's written submissions essentially set out the circumstances as I have outlined them and elaborated slightly on the grounds of appeal. 20 In oral submissions, Mr King SC for the appellant submitted that the case should be approached on the basis that the signs needed to be appropriate for all road users, including first time users of the road, and including persons using the road in situations of emergency where they would feel the need to press on if at all possible. The sign should be such as to accommodate a wide range of possibilities including different kinds of vehicle. The sign used was, in his words, inconsistent with the signs previously encountered on her journey by the appellant, in that it did not involve depth markers showing the depth of water on the road and, in that respect, not complying with the Australian standard. 21 Mr King submitted that the signs were also unclear as to the location of the causeway, and left the road user in a situation where the road user could well expect some further indication of the location of the causeway further along the road. It was a situation where the Council had taken a positive step, so it was not a case where questions of priorities and lack of funds could become involved. The Council had recognised there was a risk, and it was plainly a risk that could not be obviated in so far as it was created by circumstances of nature. The obligation on the Council was to take steps to minimise it, and Mr King submitted that, in the circumstances, the Council enhanced the risk by creating a confusing and ambiguous sign. 22 Mr King submitted that, in assessing the reasonableness of the steps taken by Council, it was appropriate to take into account that the appellant and Ms Finch were reasonable people, plainly taking care in circumstances where there were children in the car, the car was a new one, and they had previously proceeded having regard to the indications given by depth markers. He submitted that the depth markers would have had the added advantage of showing movement of the water by something in the nature of a bow wave. 23 In the circumstances, Mr King submitted the trial judge was in error in holding that the Council was not in breach of duty in failing to provide depth markers and in setting up an ambiguous and confusing sign. 24 In so far as the trial judge also based his decision on a view that the appellant would not have had regard to depth markers because she did not have regard to the sign that was put up, Mr King submitted that this ignored her evidence that she took account of the previous depth markers. 25 In my opinion, the central question before us, as before the trial judge, on the question of whether there was a breach of duty, is whether the steps taken by the Council in response to a risk reasonably perceived by it were shown to be unreasonable. 26 As I have indicated, the primary contention of the appellant was that the steps were unreasonable in particular in two respects: in that the Council failed to provide depth markers so drivers could be informed of the depth of water on the causeway and make an assessment of whether to proceed; and in that the notice failed to indicate the position of the causeway and was such as to lead to confusion, as occurred in this case, where the appellant and her passenger were looking for a further sign. 27 On the former matter, as I have indicated, there was evidence of an Australian standard recommending use of depth markers, and there was an expert report to the effect that blanket advice not to go ahead was inappropriate because safety varies with vehicle type. 28 However, in my opinion, it was not shown that the use of a blanket direction not to proceed was inappropriate in this case. The Council could well have made a judgment that the conditions at the causeway were such that there was less risk in giving a blanket advice than in leaving it to individual discretion as to whether to proceed. The circumstances of the accident, and also the circumstances given in evidence that the particular sign itself was later washed down, suggest that there are very strong flows at this causeway making it possible that there could be a significant risk of being washed away, even in relatively low levels of flooding. There is no evidence which establishes this matter one way or the other, but the onus was on the appellant to show that the judgment that a blanket sign was appropriate was an unreasonable decision and, in my opinion, that onus was not discharged. At least, it is not shown that the primary judge's view to this effect was an error. 29 On the latter matter, the appellant gave evidence that the vehicle proceeded for at least one hundred metres from the sign before encountering the water, that she did not know where the causeway was, and in effect that the water looked like still water over a paddock. 30 However, the sign in question announcing the existence of the causeway was placed just before a left hand curve and, on the basis of the evidence given and photographs put in evidence, it is clear that the road descended gradually down towards the causeway immediately after the curve. In those circumstances, in my opinion the Council could reasonably consider that a person reading the sign would appreciate that the causeway was shortly after the bend and was being approached as the road descended gradually from the bend. In my opinion, the Council could reasonably have considered that, in circumstances where the causeway was covered by water, it would be reasonably apparent to drivers that the causeway, which was announced by the sign, was under the water to which the road was then descending. 31 In those circumstances, in my opinion the trial judge was not in error in reaching the view that he did that, having regard to the geography of the situation as illustrated by the photographs, there was nothing in the placing of the sign that was in breach of the Council's duty of care. 32 There is force in the appellant's submission that the appellant was acting under difficult circumstances in an emergency, and that signs should be appropriate for those circumstances, as well as other circumstances; but, in my opinion, that does not overcome the considerations to which I have referred. 33 There were submissions as to question of causation, that is, whether, even if there had been a sign as suggested by the appellant, this would have been effective. In the circumstances it is not necessary to consider this matter further. 34 For those reasons in my opinion the appeal should be dismissed with costs. 35 BEAZLEY JA: I agree. 36 BRYSON JA: I agree. 37 BEAZLEY JA: The order of the Court is as Hodgson JA has announced. ********** Last Modified: 09/23/2004 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.