New South Wales Supreme Court CITATION : Fell v Blue Mountains City Council [2003] NSWSC 17 HEARING DATE(S) : 16-18 December 2002 JUDGMENT DATE : 5 February 2003 JURISDICTION: Common Law Division JUDGMENT OF : Studdert J DECISION : See paras 126-127. CATCHWORDS : Personal injury claim - action by injured motorcyclist - claim against council conducting road works - whether breach of duty by defendant - if so, whether contributory negligence. LEGISLATION CITED : Motor Accidents Act Brodie & Anor v Singleton Shire Council (2001) 206 CLR 512 CASES CITED : TNT Management v Brooks (1979) 23 ALR 345 West v Government Insurance Office (1981) 35 ALR 437 Bitupave Limited v Bollington (1998) 28 MVR 223 PARTIES : Bruce Michael Fell (Plaintiff) Blue Mountains City Council (Defendant) FILE NUMBER(S) : SC 20530/01 COUNSEL : J. Glissan QC/J. de Berg (Plaintiff) M. Bozic SC/G. Grogin (Defendant) SOLICITORS : Astley Thompson Cox (Plaintiff) Phillips Fox (Defendant) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION STUDDERT J Wednesday 5 February 2003 20530/01 BRUCE MICHAEL FELL v BLUE MOUNTAINS CITY COUNCIL JUDGMENT 1 HIS HONOUR: Bruce Michael Fell has brought these proceedings against Blue Mountains City Council seeking to recover damages in respect of injuries suffered in an accident in February 1999. The defendant has denied negligence and has also raised the defence of contributory negligence. 2 The accident occurred at approximately 10.30 pm on Thursday 11 February 1999 in Railway Parade, Warrimoo. Whilst the evidence is not entirely consistent as to compass points, counsel agreed at the outset that for convenience Railway Parade was to be regarded as running east-west, and I adopt that for the purposes of this judgment. 3 Railway Parade is described as a two-lane, semi-rural collector road, and for a motorist travelling east it runs beside the railway line to the immediate north of that line. The Great Western Highway runs beside the railway line to the immediate south of the line. 4 The plaintiff has no recollection of the accident, having suffered a head injury, and no witness was called to give direct evidence as to how the accident happened. However, Constable Comber attended the scene shortly after the accident and through him a number of police photos were introduced into evidence (Exhibit B). On arrival at the scene Constable Comber saw the plaintiff lying on the roadway near his motorcycle and he also observed a small white station sedan beside the road facing west, with some skid marks behind it. There was damage to the station sedan and to the motorbike evidencing their collision, and the objective evidence placed the plaintiff's motorbike on its incorrect side of the road at the point of the collision. No occupant of the station sedan was called to give evidence and the evidence did not identify who had been travelling in it. 5 At the time of this accident work was being done in Railway Parade, and the defendant admitted on the pleading that it was the relevant roadway authority for that road. The hearing proceeded upon the basis that there was no issue but that the defendant was responsible for the work being done. This involved kerbing and gutter work on the northern side of the road and the construction of a footpath there. On the southern side of the road there was drainage work in progress. It is the plaintiff's case that there were features of the roadway and of the work in progress which created a danger in respect of which the defendant ought to have given, but failed to give, to the plaintiff due warning, consistently with the discharge of the defendant's duty of care as recognised in Brodie & Anor v Singleton Shire Council (2001) 206 CLR 512 at 580. It was claimed that the combination of these features of the roadway and of the work being done caused the plaintiff's accident. 6 Fred Schnerring is a civil engineer whose expertise includes the principles of roadwork construction and traffic engineering, as well as accident investigation. I am satisfied that Mr Schnerring has expertise relevant to the evidence he gave and I was generally impressed by his evidence. 7 Mr Schnerring attended the accident site on 19 April 1999. In his report dated 28 April 1999 (part of Exhibit M) he described the road for eastbound traffic leading up to the accident as "slightly undulating and winding. The road commenced curving left about 75 to 80 metres before the approximate impact point. The curve radius tightened significantly about 30 metres before the approximate impact point. A steep downgrade of about nine percent started about 35 to 40 metres before the approximate point of impact. The curve at the crash site consisted of three curves – a transition curve into and out of a central circular curve. The central curve was about 30 metres long with a deflection of about 20 degrees and a radius of about 85 metres. The tighter radius central curve was therefore partly obscured by the crest of the roadway." 8 Mr Schnerring described the roadway as varying in width from 5.8 to 6.5 metres. For westbound traffic the road surface was approximately 2.8 to 2.9 metres wide with an unsealed shoulder. For eastbound traffic, the road surface varied in width from 3 metres to 3.6 metres and adjacent to that surface was an unsealed shoulder approximately 0.6 metres wide. Adjacent to that shoulder was the kerb and gutter construction in progress. 9 The features of Railway Parade are shown in many photographs tendered in evidence: plaintiff's exhibits C, D, E, F and N and defendant's exhibit 1. 10 In evidence Mr Schnerring described the curve as a complex one, and I accept that description. He also said (T 104-105) that the road geometry disguised the nature of the bend. 11 Mr Schnerring considered that a combination of elements was causative of the plaintiff's accident and he summarised these elements (T 109) as being: "The combination of the alignment horizontal and vertical, the signposting that was absent, and the gravel." 12 I accept, as Mr Schnerring opined, that the presence of loose gravel on the roadway could result in loss of traction for a motorbike and loss of control by its rider, but the question arises as to whether on the road surface encountered by the plaintiff as he made his approach to the scene of the accident there was loose gravel in sufficient quantity for loss of traction and loss of control to occur. 13 Mr Bozic submitted, having regard to the evidence of Constable Comber, that the presence of loose gravel on the roadway was not established. Mr Glissan submitted that the evidence of the plaintiff's brother and his brother-in-law established that there was. It is necessary to look closely at the evidence in point. 14 I referred earlier to Constable Comber's attendance at the scene shortly after the accident. Constable Comber said that he made some examination of the road and he gave the following evidence (T 11): "BOZIC: Q. At the scene of the accident did you make any observation about whether there was any loose dirt or gravel on the bitumen section of the road? A. At the time I wanted to make sure that there was none on the road on the approach side, or the motorcycle approach side of the road. That's the reason I walked 20 metres back up the road, to make sure there was nothing on the roadway, and to ascertain what had actually caused the accident. Q. You say you walked back 20 metres. That's about to the crest of the hill, is that right? A. No, 20 metres from the crest of the hill. Not from where the actual accident happened. HIS HONOUR: Q. I am a bit confused. From where the motorcycle was, how far to the west did you walk? A. From where the motorcycle was, your Honour, it was about I'd say 10 to 20 metres to the crest of the hill. Then I've gone from the crest of the hill back around 20 metres. Q. So you walked 30 to 40 metres? A. That's correct, yes. BOZIC: Q. Just so I'm clear on what you are saying, is it 30 to 40 metres from where the motorbike was, or 30 to 40 metres from the crest of the hill? A. No, it was 30 to 40 metres from where the motorcycle and the car, the actual accident scene. Q. Is it the case that you observed no loose dirt or gravel on the road? A. Not on the actual bitumen roadway, no. HIS HONOUR: Q. Did you have a torch? A. Yes, I did have a torch, your Honour. Q. Did you have a close look? A. I walked back up along the roadway in a westerly direction on the motorcycle approach side and had a look along the road." 15 On the morning after the accident the plaintiff's brother, Gary Fell, attended the scene. He said that he arrived there about 9.30 am. There was no roadwork going on and Mr Fell said that he saw a lot of gravel on the road at the top of the corner (T 14): "HIS HONOUR: Q. Was there any work going on when you got there? A. No, no, there was no work up there at the time I was there. Q. What day of the week was this? A. It was the day after the accident. Q. A mid weekday? A. No, I think the 14th was the end of the week. A Thursday I think it was. Q. It was a working day? A. Yeah, it was a working day, because I had to take a day off work. GLISSAN: I am informed by Mr de Berg that 11 February was a Thursday, so the 12th was a Friday. Q. At the time you took the photographs, did you make any observations of the road surface yourself as well as taking photographs? OBJECTION. QUESTION ALLOWED. Q. What did you observe? A. There was a lot of gravel on the road from where the - they had replaced the new gutter, and between the new gutter and the old tar they had left a foot of gravel there. There was a lot of gravel on the road at the top of the corner before the accident, and there wasn't much saying that there were roadworks going on." 16 Mr Fell took photos (Exhibit C) and also enlargements of those photos were introduced into evidence. Those photos, in particular the enlargements, evidence the presence of gravel on the roadway at the time Mr Fell attended and support his oral evidence to that effect. 17 Having visited the accident scene on Friday, 12 February 1999, Mr Fell returned to it either on the Saturday or the Sunday next following and this time his attendance took him back further west along Railway Parade to the point where it intersects with Spurwood Road. That street assumes relevance because the plaintiff had set off from his girlfriend's home in Spurwood Road, turning left on to Railway Parade before proceeding to where the accident occurred. On his second visit the plaintiff's brother noticed that there were barriers not on the corner of the bend but further west in Railway Parade. He said from memory these barriers were not actually on the road but "were just sort of stacked all along the side of the footpath". He observed that they were held in place with sandbags. 18 Mr Fell also made some observations about road signs and I shall return to this issue presently. 19 The plaintiff's brother-in-law, Kenneth Wassell, attended the accident scene on Sunday, 14 February 1999 and took video film starting at Spurwood Street. That video evidence was introduced as Exhibit G. Mr Wassell noted, and the film evidences, broken sandbags along the road. It is to be inferred that these sandbags had been used to keep barriers in place, although the video film shows some open bags on the ground without any barriers nearby. Mr Wassell examined the contents of a bag, or bags, and found that content to be a mixture of gravel and sand. It is a reasonable inference, and to my mind a probable inference, that the gravel Mr Fell saw on the roadway on 12 February 1999 was present as a result of the disturbance of the terrain in the course of the defendant's work and as a result of gravel having spilled out from the mixture in the burst sandbags that the defendant had introduced into the area. Exhibits C and D show burst sandbags to the north of the bitumen. 20 The evidence of the plaintiff's brother, Gary Fell, satisfies me that there was a significant amount of gravel on the road surface in the location depicted in Exhibit D at 9.30 am or 10.00 am on 12 February 1999. Mr Bozic submitted that such a finding would not be inconsistent with Constable Comber's observations made some eleven hours previously. There were vehicles that had attended the scene of the accident, including the ambulance and the bush fire brigade, and there was evidence that traffic had to be diverted around the immediate accident scene. 21 Whilst I do not doubt that Constable Comber was a witness of truth, it is to be observed that the only contemporaneous record of the police officer was his accident report, Exhibit A. This document incorporates a sketch by Constable Comber and one of the features recorded on the sketch to the west of the point of impact and on the bend is the following: "Some gravel on roadway". Constable Comber was not cross examined about that entry but the entry is not consistent with his oral evidence. No doubt Constable Comber has attended many accident scenes since February 1999 and his contemporaneous record is, to my mind, to be preferred to his oral evidence nearly four years later. My overall impression of Constable Comber was that his recollection of this accident investigation was hazy. 22 Having reflected upon the evidence and the competing submissions, whilst it is possible that the gravel was scattered on the bitumen in the hours between the accident and the arrival of the plaintiff's brother, I consider it to be more probable than not that the gravel shown in the photographs (Exhibit D) was present as the plaintiff proceeded along the road before his accident some eleven hours before the photos were taken. 23 In his report dated 28 April 1999 Mr Schnerring considered the impact of the presence of gravel on the bitumen on the "critical speed" for a motorcyclist encountering it. The "critical speed" he defined as the speed at which sliding across the road would start. Mr Schnerring wrote (at 8.3): "…with loose gravel present on the surface, the co-efficient of friction could be reduced to about 0.1. The critical speed would then be about 35 km/h. However, once over the centreline the negative crossfall of the road could reduce the critical speed to about 25 km/h, provided that loose gravel was also present on the northbound side of the road. For a car, loss of traction on one wheel can be compensated by traction on the other wheel on the same axle. On a motorcycle, if one wheel loses traction then the motorcycle is out of control… With loose gravel on the road at the crash site, loss of control is highly probable for a motorcycle at any speed over about 35 km/h." 24 Mr Schnerring was asked to consider the significance of the gravel shown in the photographs Exhibits C and D: "Q. Can I show you photographs, particularly Exhibit C and E. (Shown.) I invite you to consider those photographs, and also the video which you saw earlier in portions of which there was gravel present on the road? A. Yes. Q. Looking at those photographs, are you able to express a view as to whether or not the quantity or concentration of gravel depicted in those photographs would be or would not be sufficient to cause a motorcycle to lose direction or control? OBJECTION. QUESTION ALLOWED. A. There is the, this one I'm holding up here, are they numbered? Q. They have a red number on the front. A. One, down the bottom. In the middle picture in the middle of the road there is a board of gravel there, but I would not like to lean my motorcycle over any substantial portion at all. On that, I mean that's, it's, I find that of concern to have to ask or require any reasonable degree of friction to negotiate. It is the sort of thing that I would approach upright, travel substantially upright, and then once into cleaner pavement lean over. I would not like to - it is not guaranteed I would lose control, but I would not like to deal with that unexpectedly in anything other than a mostly upright manner. It would concern me that central portion there was there. Q. Are you able to answer the question whether or not it is a sufficient concentration? A. Yes, given that preamble, yes. That is why I made the preamble. Q. Looking at any of the other photographs, is a similar concentration to be seen? A. To the right edge of the darker part of the pavement in the middle of photograph 3 it seems less concentrated than in - it is actually different, the same sort of view. The view there seems to be, it is the same position on the road I think. No, it is not. Q. They are about 10 metres apart? A. In some ways there are some similarities. There is less concentration. Probably I would expect that to cause some initial slip which could then be self corrected as the cyclist slid through. You would get an initiated unwanted steering, a bit of rolling around the front wheel. How a rider responds to that if he wasn't aware it was there, is a matter for the individual rider. There would be some slipping and then recovery. Q. The third of the enlarged photographs? A. A similar comment again. That could cause some rolling around if it gets under the tyre. It certainly - there would be a change in friction, and there would be some steering or unwanted steering input in terms of the cycle not following the intended line precisely. It could be sufficient to lead to upset. It is not necessary, a rider could get through it." 25 Mr Schnerring was then asked (at T110-111): "Q. Would there be a difference if it was met during the day or at night? A. I'd - well, during the day there is an opportunity to see more of the road. Probably have a preview of the grid on the roadway, choose a slightly different line of approach. At night there is less chance of seeing it, and more surprising. Also there would be less of a view of the overall roadway where it was and where it went. The rider might have less opportunity to choose a path around it or through or whatever. Q. Do the photographs support the conclusion that you advanced a moment ago, that one of the causes in combination would be the presence of gravel on the road? A. Yes." 26 Mr Schnerring was asked to consider the photographs in Exhibit 1 and he did not find there any quantity of loose gravel but those photographs were taken further to the east and they actually show the marks which the police put on the road surface referable to the impact area. Moreover, those photographs are to be considered having regard to the agreed fact that the road surface was hosed clean in the vicinity of the accident point by the bush fire brigade after the accident and that hosing could have removed any gravel on the road surface in that area. 27 I find on the evidence that the loose gravel which I am satisfied was present on the roadway at the time of the plaintiff's accident presented a foreseeable risk of harm. This was a risk about which the defendant knew or ought to have known. 28 There was no road sign for road users travelling east specifically warning of the possible presence of loose gravel. What signs were there in place to alert a road user approaching the bend where this accident happened? 29 Mr Bozic submitted that there was a chevron facing an eastbound motorist as he approached the bend and there was also a yellow curve sign. It was submitted these signs were sufficient to discharge the defendant's duty of care, and in addition it was further submitted I would find that there was a sign indicating the presence of roadworks and that there were barriers with flashing lights. 30 I consider firstly the evidence as to the signs of a more prominent nature, namely the chevron and the yellow curve sign. 31 By the time Mr Schnerring made his site visit in April 1999 there were two chevrons in place on the curve facing eastbound traffic (see photos 8 and 9 attached to his April report). However only one of those chevrons was in place when the plaintiff's brother visited the scene in February 1999. That was the chevron further to the west. Exhibit N shows its location. There is a post further east which that photo shows but no chevron sign is attached to it facing eastbound road users. What is attached to the post is bent and facing the wrong way. The single chevron visible in Exhibit N is partly obscured by long grass. 32 Mr Schnerring took photos in April 1999 showing curve warning signs, the first less than 150 metres from the accident site and the other less than eighty metres from the accident site. The closer warning sign was accompanied by an advisory speed sign of thirty-five kilometres per hour. I am satisfied that latter sign and its accompanying advisory speed sign were not in place at the time of the accident and were erected after 14 February 1999. The sign further back, simply displaying a directional arrow to indicate a bend, was in place on 11 February 1999 but I do not find on the evidence that it was then facing eastbound road users. When photos and video film were taken on 14 February 1999 that sign was facing south, not west, and it was not in a position to provide any warning for a person travelling east. 33 The remaining sign of a permanent nature in February 1999 was a sign warning of concealed driveways to the north of the road but that sign was not then displayed in an upright position as it was when Mr Schnerring took his photos in April. Rather, it is shown to have been lying on the ground in the video film, Exhibit G. 34 Mr Bozic submitted I should not infer because the curve warning sign was facing the wrong way on 14 February 1999 that it was not in its proper place on 11 February 1999, nor should I infer, it was submitted, that the damaged chevron was damaged at the time of the accident. Mr Bozic submitted that the evidence simply did not establish when the chevron was damaged or when the curve warning sign was displaced. This may have been the activity of vandals at any time. 35 I consider it reasonable to infer that the curve warning sign and the concealed driveways sign were disturbed during the work being carried out by the defendant. I so conclude having regard to the location of that work and of the signs disturbed. This I regard as a more likely inference than that their positioning was the act of vandals. The work had proceeded some distance past the location of the signs by the time the accident occurred and I think it more probable than not that those signs were disturbed some time before 11 February 1999 but that they had not by then been correctly restored. 36 Moreover, it seems to me that the exercise of due care required of the defendant that it follow some reasonable procedure of inspection of those signs erected for the benefit of road users, and the defendant has called no evidence of any such procedure, or indeed any evidence at all directed to the issue of liability. Of course, it is for the plaintiff to prove his case but the very circumstance of the nature of the roadworks that were in progress should have alerted the defendant to the condition of its signs during the progress of that work. 37 I find on the balance of probabilities then that it was the defendant which displaced the left curve warning sign and that having done so it failed to put it back in its correct position. 38 The damaged chevron was damaged at the time Mr Fell took his photos on the morning after the accident. Its damaged condition is apparent in the enlarged photo, Exhibit D1. I consider it unlikely that it was damaged in the short time that elapsed after the plaintiff was injured and before the photo Exhibit D1 was taken, although the evidence does not permit me to determine precisely when or how the damage occurred. 39 The findings I have expressed mean that the only relevant permanent sign in situ as the plaintiff approached the curve was the single chevron shown in the photo, Exhibit F. 40 So much for the permanent signs. 41 Mr Bozic submitted that the defendant relied upon the presence of barricades, some with flashing lights, to alert road users to the need for caution in the area of the work being undertaken. Constable Comber said there were barricades both to the east and west of the accident site, and as to barricades to the west of the point of impact the constable gave the following evidence: "BOZIC: Q. Just in relation to the road barricades, you were asked some questions a moment ago by his Honour as to whether the motorcycle travelling in an easterly direction would have had to have passed barricades? A. Yes. Q. You said it would? A. Yes. Q. When you attended the scene of the accident did you walk up to the crest of the hill and look back in the direction that the motorcycle would have come from? A. Yes I did. Q. In other words, you looked in a westerly direction? A. That's correct. Q. Could you see road barricades on the side of the road that the motorcycle would have been travelling? A. Yes there were. Q. Were they road barricades that also had yellow lights illuminating them? A. That I can't recall. I just remember the barricades. (Photographs returned to witness.) Q. If you look at photograph number 7 which is the one I've been asking you some questions about? A. Yes. Q. Do you see the road barricade there appears to have a yellow light on it? Would you agree with that? A. That's right, yes. Q. Having seen that does that refresh your memory as to when you looked back whether you could see barricades with those sort of lights on them? A. Look, some of the barricades in the area did have lights and some didn't. So I couldn't positively tell you when I looked back along the road in a westerly direction whether they all or some of them had lights now. HIS HONOUR: Q. If you look at the photographs, for instance I'm looking at the photo 11 which is immediately below my copy of 7, 11 seems to have a light on the right-hand side of the photograph but the barricade on the left-hand side does not? A. That's correct, yes. BOZIC: Q. When you walked back and stood on the crest of the hill looking back, looking west, you would have been able to have seen for a distance of about 100 metres would. You agree with that? A. Yes, I would. Yes. Q. And so is it correct that for about 100 metres you could see roadside barricades? A. That's correct, yeah. HIS HONOUR: Q. I don't follow that. Do you mean there were a series of barricades for those 100 metres? A. No. I could see 100 metres and I could see a series of barricades. I couldn't tell you if they went for the full 100 metres or not but there was a series of barricades that went all down the northern side of the road. BOZIC: Q. When you say the northern side of the road, that's the side of the road that the motorcycle would have been travelling on? A. Yes, correct. Q. And you could see barricades at a distance of, what, every 20 metres or so? Would that be about right? A. I couldn't tell you the exact distance they were apart but, yeah, they were probably about 10 metres or a little bit more apart. Yes." 42 Constable Comber said those barricades did not encroach on to the bitumen but they came as far as the edge of it. 43 The photos taken by the police on the night of the accident (Exhibit B) do not assist in showing what barricades were in place approaching the accident scene from the west. Constable Comber made no note about barricades in his report, Exhibit A. When Mr Fell took his photos on 12 February there were no barricades positioned as described by Constable Comber in the area to the west of the point of impact depicted in Exhibit D. The only barricades depicted are well back from the new gutters. Mr Fell did not go back far to the west on his first visit but said this as to his recollection concerning barricades: "GLISSAN: Q. Within the area that you went back on the first day, did you notice any barriers? A. Not right on the corner, no. Q. Were there any in the area? A. There was some further up the street, but they were on the footpath as far as I can remember. Q. So they were barriers on the footpath? A. They were not actually on the road, they were just sort of stacked all along the side of the footpath. Q. How were they held in place, did you observe? A. With sand bags." 44 When the plaintiff's brother and the plaintiff's brother-in-law made their visit to the area on 14 February 1999 and went back as far as the Spurwood Road intersection, they did not observe barricades positioned at ten metre intervals. Indeed, the video film taken by Mr Wassell proceeds from the intersection of Spurwood Road and Railway Parade down to where the accident occurred. It shows broken sandbags, which, according to Mr Wassell, "were all along the actual roadway" (T 29). The video does show one barricade being held down by a sandbag and that is located at a point where the roadwork is complete and what appears to be a fresh bitumen surface has been laid. However, that is a very considerable distance from the commencement of the curve in question. The only other barricades that the video film shows in position on the Sunday morning after the accident were those same barricades shown in Exhibit D1 well away from the road surface and indeed further north from the freshly constructed gutter. 45 If Constable Comber is correct in his evidence as to his observation of barricades on the night of the accident, they must have all been removed by the following Sunday. That strikes me as being curious, since I am satisfied, as the plaintiff's brother's evidence indicated, that no work was being done at ten o'clock on the morning after the accident. It does not seem to me to be likely that work would have been done over the weekend nor, indeed, that work would have started as late on Friday as at some time after Mr Fell had made his inspection, taken his photos and left the area. 46 I have considerable reservations about the accuracy of Constable Comber's recollection, either as to the number or location of any barricades to the west of the point of impact on the night of the accident. I also have considerable reservations as to whether there were barricades that were equipped with lighting in that area. However, even if there were barricades in position as described by Constable Comber, they would not have drawn the plaintiff's attention to the difficulties which I am satisfied the curve presented. 47 Were there signs warning specifically of roadwork in progress? 48 Mr Fell observed no signs warning of roadwork on 12 February 1999 and said there were none down near the accident scene. On his second visit he saw a sign which he placed some 200 to 250 metres west of the point of impact. Mr Wassell's film shows the position of a sign indicating roadwork several hundred metres before the point of impact and there is a second sign asserting there is roadwork ahead but that second sign is well back from the road and is in a position mainly obscured by a telegraph pole located north of the roadway. There is between those signs a third sign in red which appears to be a flagman sign. 49 Assuming those signs were in position on 11 February, again it does not seem to me that their location and presence adequately addressed the hazard at the curve. 50 Mr Schnerring conducted observations by night on 21 April 1999. I accept he is an experienced motorcyclist and he rode his motorcycle east towards the curve the plaintiff had failed to negotiate. Mr Schnerring opined that a rider unfamiliar with the road "would have no information about the correct lateral placement of their vehicle as they negotiated the crest. Drivers or riders could be expected to run wide on the curve." 51 Mr Schnerring further observed that the double centre separation lines were worn and on his nightime journey hard to detect. Mr Schnerring's observation was that the centreline, especially near the area of the crest, was "very hard to see". He was asked to consider the significance of this (T 107): "GLISSAN: Q. What impact does that have on a motorcycle rider travelling along a road? A. Can't see, you generally can't see where the middle of the road is, and can't see that the line that would be to the right of the rider is swinging to the left, and that he or she needs to swing left as well. The rider could follow the impression gained by the radius of the curve, that would then continue over the crest on that line, without having some other marking contradicting that perception. Q. So we understand that, the motorcycle rider in the ordinary course of events isn't riding on the centre line? A. No. Q. But somewhere in the lane to the left of the centre line? A. Yes, the idea is the centre line indicates where the middle of the road is, and the rider places the vehicle to the left of it and keeps it to the left." 52 Mr Bozic put to Mr Schnerring that the provision of the barricades, the sign indicating the left hand curve (assuming it was facing the driver) and the single chevron afforded reasonable warning for a driver exercising reasonable care proceeding along that road at night (T 96). Mr Schnerring disagreed, opining from a road safety point of view such provisions were inadequate. I am persuaded by the evidence that that expression of opinion is correct. Moreover, I have found that the sign indicating the left hand curve was not facing the correct way in any event. 53 Mr Bozic submitted there was no evidence upon which a finding of negligence could be made against the defendant by reason of the design and construction of the road as such. The evidence does not establish when the road was designed or constructed or what the appropriate standards were at that particular time or those particular times. I accept that submission and, indeed, I do not understand Mr Glissan to contend to the contrary. However, it is the features of the road that afford the setting in which it is necessary to consider whether the defendant was negligent, particularly bearing in mind the setting of the work that was in progress. 54 It emerges from the second of Mr Schnerring's reports that the defendant qualified an engineer in this matter but that person was not called to give evidence. I infer that it was perceived had he been called that that expert would not have advanced the defendant's case. In any event I accept the evidence which Mr Schnerring has given. 55 Having done so, I conclude that the exercise of reasonable care required of the defendant the provision at the very least of those warning signs which were in place when Mr Schnerring made his inspection, that is the two left curve warning signs and the advisory speed sign, together with a sign appropriately located to alert motorists as to the risk of loose gravel and a possible slippery surface and that the failure to make such provision was negligent. I am also persuaded by Mr Schnerring's evidence that the repainting of the centreline around this curve to provide guidance under conditions of darkness should have been undertaken in the exercise of reasonable care. In so finding I do not lose sight of the fact that the road was probably going to be resurfaced after work in the vicinity of the curve had been completed. 56 This brings me to the difficult issue of causation. Did the negligence I have found cause the plaintiff's accident? Mr Bozic, in his thorough submissions, emphasised the need to distinguish between inferences that could properly be drawn from the evidence and speculation or theorising as to what might have happened. He cited TNT Management v Brooks (1979) 23 ALR 345, and in particular the dicta of Gibbs J at 349-350, and West v Government Insurance Office (1981) 35 ALR 437. In the latter case in the joint judgment of Stephen, Mason, Aickin and Wilson JJ their Honours said (at 440): "It is well to recall what was said by Dixon CJ in Jones v Dunkel (1959) 101 CLR 298 where he said, at 304-5: 'In an action of negligence for death or personal injuries the plaintiff must fail unless he offers evidence supporting some positive inference implying negligence and it must be an inference which arises as an affirmative conclusion from the circumstances proved in evidence and one which they establish to the reasonable satisfaction of a judicial mind.' His Honour went on to say that the law 'does not authorize a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied', and see also TNT Management Pty Ltd v Brooks (1979) 53 ALJR 267 per Gibbs J at 269; 23 ALR 345 at 349-50." 57 This accident happened because the plaintiff crossed on to the incorrect side of the road. Why did this occur? 58 The plaintiff has no recollection of the accident, his last recollection being as he set off from his girlfriend's home in Spurwood Road. He did however recall earlier events that day. He had worked during the day before travelling to his friend's home. He and his friend went out on the motorcycle, then returned to her home for dinner and they then watched television until the plaintiff's departure. The plaintiff said, and I accept, he had consumed no alcohol. 59 The distance travelled to the point of impact was short, and it seems to me to be unlikely that the plaintiff would have lapsed in concentration over this short distance. 60 The plaintiff was an experienced motorcyclist whose evidence indicated that although he had several offences as a younger man he had been a responsible motorcyclist since he joined Coca Cola as an employee in 1993. 61 The evidence does not support a finding that the plaintiff was travelling in excess of the speed limit. Mr Schnerring examined the plaintiff's motorcycle and observed the damage to it, concluding (T 74): "There is little energy involved in this crash. It is essentially a side-swiping nature, displaced the head lamp, the instruments, taken indicators off the side…and dented the tank. That damage does not require a lot of energy." 62 The witness went on to say (T 75): "On the basis of the damage to the motorcycle alone, it is a low speed impact." That evidence was not challenged and I accept it. The evidence does not support a finding then that the plaintiff was travelling in excess of the speed limit as he entered the bend. 63 Nor does the evidence suggest any pre-collision failure in the motorcycle. 64 The evidence does not invite any inference that the driver of the white station sedan was at any time on his incorrect side of the roadway, or that his manner of driving may have accounted for the plaintiff crossing to the incorrect side of the centre line. The photos Exhibit B4, B5, B6 and B10 indicate that the driver of the sedan applied his brakes at a time when that vehicle was well to the correct side of the centre lines. 65 It seems to me, having regard to the plaintiff's lack of familiarity with this road, and the gravel upon it, that it is reasonable to conclude, consistently with Mr Schnerring's evidence, that the plaintiff found himself unable to control his motorcycle so as to remain on its correct side of the roadway by reason of the very combination of elements identified by Mr Schnerring and referred to in para 11 above. 66 I consider it to be more probable than not that the plaintiff, being unfamiliar with this curve with its tighter inner curve and encountering the loose gravel, became unable to keep to his correct side of the roadway. Further I consider it to be more probable than not that the accident would have been avoided had the plaintiff been put on notice of what he was about to encounter by the signs I consider should have been in place and by the repainting of the unbroken centreline. In so concluding I am mindful of the findings expressed in para 60 above. The plaintiff impressed me as a responsible person who would have paid due regard to the presence of such signs had they been in place, and also to the presence of a conspicuous unbroken centre line had there been one. I am satisfied on the balance of probabilities that, duly warned, the plaintiff would have entered the bend at a speed and in a position that would have enabled him to keep his motorcycle under control. 67 I have therefore concluded that the plaintiff is entitled to succeed on this claim. 68 The defendant raised the defence of contributory negligence. However I do not find that the plaintiff was failing to pay attention to his driving or that, absent due warning signs, he was travelling at an excessive speed, and I do not find that there was otherwise any lack of due care by the plaintiff for his own safety. That defence therefore fails. 69 I turn to the issue of damages. 70 The plaintiff was born on 6 August 1963 so when the accident happened he was thirty-five years of age and he is presently thirty-nine years old. 71 The plaintiff was taken to the Nepean District Hospital following this accident and he was an inpatient for approximately three weeks. The injuries he suffered are conveniently summarised in one of the many reports included in Exhibit P, namely the report of Dr Davis dated 14 March 2000: "(1) Closed head injury with amnesia. (2) Compound fracture of the right tibia and fibula with vascular compromise of the right leg. (3) Periorbital haematoma. (4) Rupture of the left pectoralis major. (5) Airway oedema. (6) Multiple bruises and abrasions." 72 Photographs introduced in evidence as Exhibit J show some of the bruising sustained. 73 The most serious of the plaintiff's injuries were the injuries to the right leg and it became impossible to save the leg. On 12 February 1999 an above knee amputation was performed and thereafter the plaintiff had a number of procedures under general anaesthetic for change of dressings and for debridement and grafting. 74 Following his discharge from hospital the plaintiff went to stay with his brother and between 4 March and 22 March 1999 there were fifteen visits by the Nepean Outreach Service for dressing of the plaintiff's wounds. In addition, following discharge the plaintiff attended the physiotherapy outpatient clinic at the Nepean Hospital in the period from 9 March until 9 April 1999. 75 He was later referred to the Department of Rehabilitation Medicine at Westmead Hospital and was fitted with an artificial leg. In the period since the amputation the plaintiff has had two artificial legs and four sockets. His evidence was that the socket currently in use now requires replacement. 76 Whilst a very large volume of medical evidence has been tendered in the plaintiff's case and whilst a number of medical reports have been tendered in the defendant's case, there is really no medical issue between the parties. Indeed, the only contentious issues on damages are the quantification of an allowance for the non economic aspects of general damages and the quantification of an allowance for loss of earning capacity. 77 The parties are in agreement that damages are not to be assessed under the Motor Accidents Act, because the injuries suffered were not caused by the fault of the owner or the driver in the use or operation of a vehicle (see s 69 of the Motor Accidents Act and Bitupave Limited v Bollington (1998) 28 MVR 223. Damages are to be assessed in this case in accordance with common law principles. 78 The plaintiff has been left with a very serious disability by reason of the loss of the leg. That loss is accompanied by problems typical of an above knee amputation. 79 Because there is no medical issue in the case I do not propose to record exhaustively extracts from the many medical reports that have been introduced in evidence. I will limit myself in addressing the orthopaedic injuries to some references to the evidence of Dr Barry who first saw the plaintiff on 3 April 2000. At that time the plaintiff's major problem was phantom pains in the amputated leg and pain and discomfort in the stump. He complained also of pain if he stood or walked for too long and he was having difficulty with stairs. By then the plaintiff was able to drive a modified motor vehicle and the plaintiff's evidence was that he acquired such a vehicle after he had spent some five weeks staying with his brother immediately following his discharge from hospital. 80 Dr Berry reported on 5 April 2000 that the above knee amputation was approximately through the lower one-third of the femur and that there was extensive scarring and skin grafting to the stump. At that time the skin was intact but the plaintiff had informed Dr Berry that the skin broke down from time to time. 81 Dr Berry saw the plaintiff subsequently on 19 February 2001 and most recently on 24 October 2002. I propose to refer to the most recent of those reports. When seen on 24 October 2002 the plaintiff told Dr Berry that his amputation stump still tended to blister and that he was only able to wear the prosthesis for about six hours per day. When the stump blistered he had to stop wearing the prosthesis for two days. The plaintiff continued to complain of phantom pains in the right leg. 82 On examination the stump was observed to have multiple scars with some degree of hardening but there was no wound break down. The doctor referred to another injury the plaintiff had sustained, being a rupture of the pec major muscle. The plaintiff had a full range of movement in the left upper limb but there was discomfort on reaching out and reaching upwards. 83 Dr Berry expressed his opinion in the following terms: "On the basis of today's examination this patient is fit for activities that do not require prolonged standing, walking, climbing up and down stairs and ladders. He would also have difficulty with any activities requiring heavy lifting with the left arm and reaching out and reaching up with the left arm. His prognosis remains guarded as he is still symptomatic. There has been no change since I last saw him and I would not expect any major change in the foreseeable future. As previously pointed out the only attention that will be required is modification of high right leg prosthesis from time to time." 84 There are a number of reports addressing the issue of psychological sequelae. I do not propose to detail these. It is accepted that the plaintiff has depression in consequence of his physical injuries, and that is hardly surprising. It is agreed that some provision should be made in the assessment of damages for counselling. 85 The plaintiff has also experienced short term memory loss since this accident and I am satisfied that it is consequential on the accident, and his head injury. 86 The plaintiff gave evidence that prior to the accident he enjoyed physical and outdoor activity. He played rugby over many years. He enjoyed bush walking. He skied and at one time owned a boat for water skiing. He was able to ski barefoot. He enjoyed overseas travel. 87 He was employed by Coca Cola and seemed to be progressing well. He was training as a team leader before the accident and was in the third year of a course at TAFE. 88 Following the accident the plaintiff had to adjust to the loss of his limb and to the loss of his ability to follow the active physical lifestyle he had earlier enjoyed. He said that in hospital he endured extreme pain and that he still experiences phantom pain which he described as like being stabbed in the foot. The plaintiff described his progress from a wheelchair to crutches and then to the use of the artificial leg. The crutches were difficult for a time because of the bruising he had experienced to his shoulders and his hands. 89 When the plaintiff was first discharged from hospital he was dependent upon others. He was unable to cook or clean and he needed assistance to shower and to be transported. After living with his brother for five weeks he was able to go back to the unit where he was living with two other adults but he had trouble with the steps there and had a number of falls. 90 In terms of mobility the plaintiff said that he has trouble with the stump. He can only wear the artificial leg at best for six hours and he said he experiences lots of "wear marks" on his leg. He said that he is able to wear the leg to work on average twice a week only and after six hours he has to take it off because the stump becomes too sore. He said that the socket creates blisters and he said that sweating occurs in the socket. He also said that he experiences back aches because of his unnatural gait. Because of the artificial leg he has to walk with a swinging action and he is unable to jog or to run. He has difficulty walking in grass and he has problems with stairs, both ascending and descending. He also has trouble with wet or slippery services. He has to plan his activities. If, for instance, he wishes to go out using the artificial limb he has to plan any such outing for the morning before the stump swells. 91 I referred earlier to the acquisition of a car with modified controls. The plaintiff has been able to drive the vehicle with modified controls. 92 At the time of the accident the plaintiff was a single man but he has now formed a relationship and his partner gave some evidence as to her observations of the plaintiff and the restrictions on his lifestyle. The plaintiff lives with his partner in his mother's home. Having found himself unable to deal with the steps at the home unit, the plaintiff went to live with his mother in her cottage. 93 The plaintiff's brother and the plaintiff's brother-in-law as well as the plaintiff's partner gave evidence of observations as to the way in which the accident has affected the plaintiff. Reference was made in that evidence to memory impairment and to some change in the plaintiff's personality. Mr Gary Fell said that the plaintiff gets frustrated and Mr Wasell said that the plaintiff's personality has changed. He is not happy-go-lucky as he used to be and he does not relax in the manner in which he used to relax. 94 I accept the above recorded observations as to the way in which the plaintiff's lifestyle has been affected and I accept the evidence that the plaintiff himself gave. I assessed the plaintiff to be a witness of truth and, indeed, the plaintiff was not really challenged on matters going to the issue of damages. 95 I shall deal with the plaintiff's working history when assessing the claim for loss of earnings and loss of earning capacity. 96 Unquestionably the plaintiff sustained very severe injury, the effects of which will remain with him and impede his lifestyle permanently. It is unlikely that the condition of the socket will change and the sort of problems the plaintiff experiences now with his prosthesis will not go way. The plaintiff's ability to enjoy life has been very severely disrupted. He will not be capable in the future of strenuous physical activity. He will be limited in the work he can do and he will be dependent upon others for activities such as gardening or home maintenance requiring agility or the use of two sound lower limbs. 97 Mr Bozic submitted that an allowance for the non economic aspects in the range of $100,000 to $130,000 would be appropriate. Mr Glissan submitted that the case warranted an allowance in the range $180,000 to $220,000. It seems to me that the appropriate allowance falls in between the ranges expressed in submissions, and I have concluded that the sum of $170,000 should be awarded for the non economic aspects of general damages. 98 That allowance attracts interest. I allow interest at the rate of two percent on $85,000 and, rounding the calculation off, I award interest of $6800. 99 The out of pocket expenses are agreed. They are surprisingly modest bearing in mind the treatment that the plaintiff had. Nevertheless the sum agreed upon is $12,820.38, and I include that sum in my assessment. 100 The parties have also agreed upon what ought to be allowed for future out of pocket expenses. For the rest of his life the plaintiff will require replacement of the artificial limb every three years. It is agreed that the capital sum to allow for such replacement is $62,857.96. The socket will require replacement every eighteen months and the capital sum to provide for this is agreed at $54,602.46. Prosthetic maintenance will cost $724 per annum and it is agreed that $17,044.63 should be provided for this. Finally, so far as the prosthesis is concerned, it is agreed that an allowance of $5240.52 should be made for above knee stump shrinkers and some pull through. 101 As I mentioned earlier, the parties are agreed that provision should be made for counselling sessions. It is agreed that there should be allowance for twelve sessions to address psychological aspects and that $1800 should be included in the award for this item. It is further agreed that I should award $10,000 for future general medical supervision and medication. 102 In all then it is agreed between the parties that $151,545.57 should be provided for future out of pocket expenses. 103 Agreement has also been reached as to the provision that should be made for past domestic assistance and for future domestic assistance. This topic was addressed in a report of activities of daily living prepared by Mr Davey. In that report Mr Davey carefully costed what was required for past services for care and assistance in the sum of $9317. 104 For ongoing needs for domestic assistance three hours per week is considered appropriate and one and a half hours per week is considered appropriate for gardening and property maintenance requirements. The capital sum required for these future needs has been agreed at $110,244. 105 Those figures for past domestic assistance and for future domestic and other assistance having been agreed upon, I will include them in my assessment. 106 This brings me to the claim for past economic loss which is the subject of agreement and the claim for loss of earning capacity for the future which is not the subject of agreement. It is now appropriate to review the evidence that bears upon the plaintiff's work history. 107 Having left school after year 10, the plaintiff qualified as a fitter and worked with a number of employers. He also did work with a trucking company and worked as an express courier with Australia Post. His work history was one of fairly regular employment save for time spent travelling overseas and at one time he went into business on his own account conducting an indoor go-cart track. 108 In August 1993 he commenced employment with Coca Cola where he has remained up to the present time. 109 Prior to the accident the plaintiff was employed by Coca Cola as a syrup mixer and, as I remarked previously, he attended TAFE with a view to a management team leader's position. The plaintiff's description of the work as a syrup mixer satisfies me that it is not work which he would be capable of doing at the present time. He was required to ascend and descend stairs in the course of such work and to manhandle heavy objects. He was able prior to the accident to use his trade as a fitter because he was required to do a lot of maintenance repairing parts and valves. 110 Following the accident the plaintiff was off work for approximately twelve weeks and he did not then resume his pre-injury employment. He was given work doing paperwork and assisting the planning department. In his words, the plaintiff was "basically a gopher". The plaintiff found he was unable to walk out on to the factory floor because it was constantly wet and presented trip and slip hazards for him. He found himself unable to walk there either on his artificial leg or with crutches. 111 After spending approximately twelve months as a "gopher" , the plaintiff was sent to the Northmead plant to assist the storeman. It seems that apart from the period when he was off work immediately following the accident the plaintiff lost no time at Coca Cola until he was reclassified in August this year. He is now classified as staff and has lost income as a consequence of this. The actual loss to date, as I have observed, is agreed upon. The plaintiff does not feel secure in his new position. He is subject to review in twelve months. The plaintiff is now the engineering storeman at the Smithfield plant where he attends to paperwork for parts and ensures that there are enough parts available to keep machinery running. When parts are ordered the plaintiff has to see that they are put in their correct positions. In this placement he requires assistance with large parts. 112 To better qualify himself, the plaintiff, having completed the three year course at TAFE, undertook a further course in human resources, again at TAFE. He has applied to Coca Cola and to other organisations for a position in human resources but has not been successful in such applications. Coca Cola informed him, concerning the application to that employer, that he was not suitable because he could not work in the wet area. 113 So far as the past is concerned, it is agreed that the wage loss for the period of total incapacity was $5810.84. Since he was reclassified in the staff position on 1 August 2002, the plaintiff has lost a further $3434.80, with an ongoing loss of $171.74 nett per week. 114 The wage loss for the past then is agreed at $9245.64. 115 That allowance attracts interest. In calculating interest I bear in mind that the loss for the period of twelve weeks was incurred some four years ago. I allow interest for the past in the sum of $2400, rounding my calculation off. 116 The plaintiff has an ongoing loss of $171.74 nett per week. The lump sum presently required to compensate for such a loss to age sixty-five on the three percent tables, with a fifteen percent discount for the vicissitudes, is $136,402.77, but Mr Glissan argued this was not a fair measure of the plaintiff's loss of earning capacity. Mr Glissan submitted that to allow that sum would be to allow too little because of the plaintiff's uncertain future. The plaintiff is now earning more than $600 per week nett and if he was to lose his position he would have difficulty competing with able-bodied men on the market. Moreover, Mr Glissan submitted that I should have regard to the statistical material contained in a vocational assessment report prepared by Mr Spong and dated 16 January 2001. Mr Spong opined that the plaintiff would probably have to retire by age sixty because of degenerative changes, and that in the last ten years of his working life he would only be able to work for twenty hours per week. 117 Mr Spong was influenced in part by statistics in expressing that opinion and he has no medical qualifications. I approach his somewhat pessimistic opinion with caution. Dr Berry's opinion, to which I referred earlier, and this was an opinion formed after three consultations with the plaintiff, was that there will be no major change in the plaintiff's condition in the foreseeable future. On the other hand, I am mindful that Dr Anderson, who was qualified by the defendant and who is a consultant occupational physician, examined the plaintiff on 10 January 2001 and reported on the following day that the plaintiff's condition could not improve and that "it is likely that, if anything, there will be further gradual deterioration as time goes on." 118 The plaintiff impressed me as a likeable, presentable and well motivated person who, as his past employment record indicates, will in the future wish to pursue employment so far as and for so long as his capacity permits. With this impression in mind, and considering the totality of the medical evidence in this case, I consider it to be more probable than not that the plaintiff will remain in employment beyond the age of sixty years, but I take account of the chance that this may not prove possible. I also take into account the possibility that the plaintiff's ability to earn could diminish with the passage of time. 119 I am persuaded that simply to capitalise the ongoing nett difference in the plaintiff's current and pre injury positions to age sixty-five would provide inadequate compensation. The plaintiff cannot be assured that his present position will continue, although he has been in steady employment with his present employer for many years. Provision for future economic loss must acknowledge the problems that the plaintiff would have on the open labour market and the possibility of gaps in employment and of difficulty in maintaining his current earning level in excess of $600 per week if and when the plaintiff is required to find other employment. The allowance I make must also bring into account my assessment of the contingencies that the plaintiff's condition may deteriorate so as to reduce his present capacity for work and the possibility that the plaintiff may be unable to work to age sixty-five. 120 The claim advanced by Mr Glissan on the plaintiff's behalf is for an allowance for future economic loss of $288,212.92. That figure is made up of a lump sum capitalising $171.74 to age sixty-five, plus an added buffer of $150,000. Viewed another way, this claim represents effectively capitalising an ongoing loss on a weekly basis of more than $340 per week to age sixty-five. That effectively gives the plaintiff a residual earning capacity expressed in weekly terms of approximately $450 per week. 121 I accept Mr Bozic's submission that to provide what Mr Glissan seeks would be to provide too much. Mr Bozic has no quarrel with allowing for an ongoing loss of $171.74 per week nett and for some added buffer in recognition of the various contingencies I have identified. 122 Having reflected on the competing submissions as to how I should approach the making of a provision for future loss of earning capacity, I have concluded that an appropriate allowance under this heading is the sum of $215,000. This approximates to measuring the ongoing loss of earning capacity over the next twenty-five and a half years at about $270 per week, and this strikes me as being a fair assessment having regard to all the various contingencies to be taken into account. Testing the allowance I propose another way, it provides the plaintiff with $171.74 per week to age sixty-five, as well as an added buffer of more than $78,000. 123 Looking at the situation overall, I propose to include in my assessment for loss of earning capacity the sum of $215,000. 124 A claim is made for future loss of superannuation benefits, excluding the buffer component, of $15,338.16. That claim is agreed, and I therefore include it in the assessment. 125 I summarise the assessment then as follows: General damages – non economic $170,000.00 Interest on general damages 6,800.00 Past out of pocket expenses 12,820.38 Future out of pocket expenses 151,545.57 Past domestic assistance 9,317.00 Future domestic assistance 110,244.00 Past economic loss 9,245.64 Interest on past economic loss 2,400.00 Future loss of earning capacity 215,000.00 Loss of superannuation benefits 15,338.16 $702,710.75 126 Accordingly, there is to be verdict and judgment for the plaintiff in the sum of $702,710.75. 127 I order the defendant to pay the plaintiff's costs. ********** Last Modified: 02/06/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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