Reported Decision : 140 LGERA 333 New South Wales Court of Appeal CITATION: Copmanhurst Shire Council v Watt [2005] NSWCA 245 HEARING DATE(S): 12 July 2005 JUDGMENT DATE: 26 July 2005 JUDGMENT OF: Giles JA at 1; Tobias JA at 74; Brownie AJA at 75 DECISION: Appeal dismissed with costs. CATCHWORDS: Plaintiff's car skidded on road - hit embankment and overturned - council road works - whether loose gravel on bitumen surface - varied evidence from plaintiff's witnesses to support yes - defendant's witness said no - evidence that had previously said he could not remember - whether admissible as prior inconsistent statement - admissible - evidence of plaintiff's witnesses not put to defendant's witness - was put to defendant's witness that he had no real recollection - whether failure to comply with rule in Browne v Dunn - no failure - whether judge's finding of loose gravel on road appealably in error - not in error - whether causation of loss of control established - causation established - whether erred in apportionment for contributory negligence - no error. D Allianz Australia Insurance Ltd v G S F Australia Pty Ltd (2003) 57 NSWLR 321; Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 1 NSWLR 1; Bennett v Minister of Community Welfare (1992) 176 CLR 408; Betts v Whittingslowe (1945) 71 CLR 637; Browne v Dunn (1894) 6 R 67; Chappel v Hart (1998) 195 CLR 232; Commissioner for Main Roads v Jones [2005] HCA 27; Fox v Percy [2003] 214 CLR 118; CASES CITED: Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18; Knight v Maclean [2002] NSWCA 314; March v E & M H Stramare Pty Ltd (1991) 171 CLR 506; Naxakis v Western General Hospital (1999) 197 CLR 269; Payless Superbarn (NSW) Pty Ltd v O'Gara (1990) 19 NSWLR 551; Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529; Reid v Kerr (1974) 9 SASR 36; Scalice v Bezzina [2003] NSWCA 362; Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219. Copmanhurst Shire Council - Appellant PARTIES: Jon Watt - Respondent FILE NUMBER(S): CA 40107/05 M T McCulloch SC & N E Chen - Appellant COUNSEL: B Toomey QC & S Mayburn - Respondent Phillips Fox - Appellant SOLICITORS: MBP Legal - Respondent LOWER COURT JURISDICTION: Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S): SC 20186/01 LOWER COURT JUDICIAL OFFICER: Studdert J IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40107/05 SC 20186/01 GILES JA TOBIAS JA BROWNIE AJA Tuesday 26 July 2005 COPMANHURST SHIRE COUNCIL v WATT Judgment 1 GILES JA: The respondent was severely injured when his car skidded, hit an embankment at the side of the road and rolled over. Damages were agreed at $6,500,000, subject to reduction for contributory negligence. The appellant was carrying out roadworks. Studdert J held that the respondent skidded in loose gravel on the bitumen roadway, that the appellant was in breach of its duty of care in failing to clear the loose gravel off the roadway and to warn of its presence, and that the appellant's negligence was causative of the accident. He reduced the respondent's damages by one-third for contributory negligence. 2 For the reasons which follow, in my opinion, the appeal from his Honour's decision should be dismissed. The accident 3 The respondent was just short of his twentieth birthday at the time of the accident. He held a provisional drivers licence. He had owned and driven for some six months a 1981 Holden Gemini sedan. The car was in good working order. 4 As part of a journey which began on 23 March 1998, on 24 March 1998 the respondent was driving on the Summerland Way from Casino to Grafton. The Summerland Way runs approximately north-south. At the time the roadway had a bitumen surface with gravel shoulders, but in the area of the accident roadworks were being carried out. 5 The respondent, travelling south and approaching a gradual right hand bend on a moderate downhill grade, was about 33 kilometres north of Grafton when a kangaroo jumped in front of his car. He braked heavily. The car skidded across to the western side of the roadway and onto the shoulder, travelled along the shoulder for some 98 metres, then went back onto and across the roadway for about 19 metres to the eastern shoulder and across the shoulder for about 14 metres until it hit the embankment. The car rolled over and came to rest on its wheels a further 22 metres to the south. 6 The accident occurred at about 4 pm. Weather conditions were fine. The general speed limit for the Summerland Way was 100 kilometres per hour. The respondent was driving at about 80 kilometres per hour. On the respondent's case, there was loose gravel on the roadway at the point where he reacted to the appearance of the kangaroo, and the loose gravel caused him to lose control of his car. The roadworks 7 The appellant was undertaking reconstruction of two lengths of the Summerland Way. One was known as the 30 kilometre job, and the accident occurred within that area of the roadway. The other, further to the north, was known as the 40 kilometre job. 8 The roadworks of the 30 kilometre job began, as one travelled south, about 1300 metres to the north of the intersection of the Summerland Way and Gurranang Road running to the east, and ended about 700 metres south of that intersection. The reconstruction involved the widening of the batters, then the excavation of the shoulders on either side of the bitumen roadway and replacement of excavated material with suitable material, then removal of the existing pavement and placement of a base layer over the whole surface including the shoulders, and finally placing a seal over the base layer. 9 The respondent's car hit the embankment approximately 200 metres to the north of Gurranang Road, and therefore approximately 1100 metres from where the roadworks commenced as the respondent travelled south. 10 From early February 1998 until 13 March 1998 the batters were widened and the shoulders graded to the edge of the existing bitumen over the length of the 30 kilometre job. The work was done with the use of a grader. From early March 1998 to 16 March 1998 further work was performed at the Gurrangang Road intersection and to the north of that intersection for some 300 to 400 metres. The shoulders were excavated and the excavated material was in part used to put in the toe to the batters, in part used for widening opposite the intersection, and otherwise disposed of at a deposit area near Khan Road, which ran off the Summerland Way to the west approximately 500 metres to the north of the intersection. Some of the excavated material was also taken by trucks to the site of the 40 kilometre job, about half a dozen trucks per day. 11 From 16 to 26 March no work was done on the Summerland Way north of the Gurrangang Road intersection. The work continued at the southern end of the 30 kilometre job, with trucks continuing to take excavated material to the site of the 40 kilometre job. 12 The appellant placed signage for the road works for the 30 kilometre job. A driver travelling south first encountered a sign for "Roadwork One Kilometre Ahead", then a "Roadwork Ahead" sign, then a "Reduce Speed" sign, then a "60 Ahead" sign, and then a "60" sign. The signage did not fully comply with the relevant Australian Standard, which called for two additional "60" signs prior to the point where the respondent lost control of his car. The judge considered that that non-compliance was not causative because he was not satisfied that, having driven at 80 kilometres an hour notwithstanding the signage which had been provided, the respondent would have reduced his speed because of the additional signs. However, there was no sign such as "Loose Stones" or "Loose Gravel" or otherwise warning of gravel on the roadway. The issues in the appeal 13 The principal issue in the appeal was whether the judge had erred in finding that there was a deposit of loose gravel on the bitumen surface where the respondent braked upon the appearance of the kangaroo. Particular sub-issues within this were whether the judge had erred in admitting evidence of a prior inconsistent statement by Constable Carroll, whose evidence that there was no loose material on the bitumen surface was important in the appellant's case, and in declining to accept Constable Carroll's evidence in the face of what the appellant said was the respondent's failure to observe the so-called rule in Browne v Dunn (1894) 6 R 67. 14 The further issues in the appeal, arising if the appellant was unsuccessful on the principal issue, were whether the appellant had fulfilled its duty of care because the reduction in the speed limit to 60 kilometres per hour was a sufficient response to the hazard presented by the presence of loose gravel; whether the appellant's negligence was not causative of the accident because the respondent would have lost control of his car in any event; and whether the respondent should have been found contributorily negligent to a greater extent. Gravel on the roadway 15 There were no direct witnesses to the accident. The respondent's evidence included some observations of the roadway, but the judge thought it inconsistent and lacking useful detail; neither side relied on it in the appeal. 16 There was evidence going to the state of the roadway from a number of witnesses other than Constable Carroll. Studdert J considered all the evidence with great care. The appellant accepted that overturning his Honour's findings was subject to the appellate restraint recently restated in Fox v Percy [2003] 214 CLR 118, but submitted that the finding of loose gravel on the roadway was appealably erroneous. 17 I will return to the evidence of Constable Carroll, and to the sub-issues earlier mentioned, after describing the evidence of the other witnesses as to the state of the roadway. The respondent called Mr Cameron, Ms Mitchell, Mr Wesslink, Mr Watt and Mr Ingram, in that order. The appellant then called Mr Perriott and Constable Carroll, in that order. (a) The evidence of the other witnesses 18 Mr Cameron lived on the property at the corner of Summerland Way and Gurranang Road. He heard the sound of the accident, and went to the scene. He said he noticed the condition of the road surface, and that the roadway was gravel where the car came to rest and for about 200 metres to the north. But he also said that shoulder widening had taken place and the old bitumen had been torn up and replaced with new bitumen, indeed that at the time tar and gravel was being laid to the north of where the accident occurred. Mr Cameron was incorrect in his recollection of the extent to which the roadworks had progressed. The judge said that he was not assisted by Mr Cameron's evidence in determining the state of the roadway at the northern end of the skid marks. 19 Ms Mitchell, Mr Cameron's partner, also attended the scene of the accident. She described the roadway as "like dirt and they put road base on the top of that and then like loose gravel, gravelly stuff which was mixed in the road base I suppose" across the whole of its width. She was uncertain whether the bitumen had been torn up, but thought the material looked as if it had been placed prior to something else happening to it; she also said that the old bitumen surface was not there on the day of the accident. Ms Mitchell said that she walked 150 metres to the north from where the respondent's car came to rest, and saw skid marks starting on the correct side of the road for a south-bound vehicle and crossing to the western shoulder, along the shoulder for 100 to 130 metres, and then back across the roadway to the embankment. She said that a covering of "gravelly stuff" extended to the north at least as far as to the point where the skid marks began. The judge thought that Ms Mitchell was wrong in her perception that the dirt, road base and gravel had been deliberately deposited prior to further work, but took her to be describing a surface comprising a mixture of dirt, road base and gravel. 20 Mr Wesslink was an ambulance officer who attended the accident. He said that where he parked the ambulance half off the roadway close to the respondent's car there was gravel, which extended right across to the western side of the road. It appeared to him that the old bitumen surface had been ripped up. He came from Grafton, and said that the bitumen colour of the roadway seemed to have ended 100 metres south of the bend at the Gurranang Road turnoff. (This was not further identified; from one of the plans, it would have been well towards but not necessarily as far south as the southern end of the 30 kilometre job.) He travelled further north from where the car came to rest only 30 to 40 metres, to turn the ambulance, and could not say what the surface of the roadway was like further to the north. The judge said that Mr Wesslink was wrong in thinking that the road was ready for bitumen to be laid, but that he was particularly impressed by Mr Wesslink's evidence, and that it was "in the context of his general impression about the appearance of the road surface" and was reliable evidence of the condition of the road surface in the immediate vicinity of the respondent's car. 21 Mr Watt, the respondent's grandfather, went to the scene on the day after the accident. He identified from debris the point where the respondent's car had hit the embankment. He said that there was a light level of white gravel right across the road, with signs of bitumen showing through it. The gravel extended for about 200 yards in each direction and appeared to be about an inch thick; bitumen could be seen in small areas as if disturbed by traffic. It appeared to him that the material had been deliberately placed. The road from 200 yards south was a "good bitumen road", and there was not a clean line indicating a change from a bitumen surface to the light gravel. Mr Watt returned to the scene on 9 April 1998 and took a video, but by then more work had been done and the roadway was in a different condition, with newly laid bitumen over the gravel surface he had earlier seen. The judge said that Mr Watt was wrong in his perception that the gravel had been deliberately laid, but that his evidence was "consistent with that of Ms Mitchell in tending to establish a substantial deposit of gravel in the vicinity where the plaintiff lost control of his vehicle". 22 Mr Ingram was driving north from Grafton and stopped when he saw the respondent's damaged car. He said that the roadway near the car had a bitumen surface with patches of dirt on the road and at that point deeper gravel, possibly 20 millimetres deep, extending right across the road; it was "mostly gravel". The gravel was the same colour as the shoulders of the road. He estimated that the patches of dirt and gravel extended at least 100 metres in either direction from the car. He did not walk to the north of the car, but saw tyre marks from the western side of the road to where the car stood. The judge said he was impressed by the evidence given by Mr Ingram also, in particular the specific evidence that when he walked across the road from his car to the respondent's car he did not walk across any bitumen but rather across brown material which crunched underfoot and was small pieces of rock interspersed with dirt. 23 Mr Perriott was the appellant's supervising engineer for the 30 kilometre job. He went to the accident site on the day. He said that the bitumen surface "looked fairly normal". When it was put to him that there was a light covering of gravel or dirt across it, he said that he did not remember. He accepted that it was possible to get material across the road surface, including from carriage of materials by trucks. He made no contemporaneous note and took no photographs, but at the time was not aware that the accident had been serious. The judge said that while Mr Perriott was honest his evidence of his observations was uncertain and unconvincing, and that he thought the evidence unhelpful on the issue of the condition of the roadway. 24 Mr Ward was the appellant's ganger for the 30 kilometre job. He gave evidence of the progress of work on the 30 kilometre job but, although Mr Perriott gave evidence that he was accompanied by Mr Ward on 24 March 1998, Mr Ward gave no evidence of the condition of the roadway on that occasion. The judge drew a Jones v Dunkel inference that he was unable to give evidence which would have assisted the appellant. 25 In addition to the video, a great many photos were in evidence. None was of the relevant area of the roadway at the time of the accident. Some of the witnesses were asked to relate their recollection to the appearance of the roadway in the video or photographs. 26 Ms Mitchell was shown Ex A, a photo taken on or before 12 March 1998, which showed what appeared to be a graded shoulder with brown gravel intruding into the bitumen but reasonably clean bitumen for most of its width. She said that it was not as the roadway looked on the day of the accident, and that there was brown or road base right across the road. Mr Watt said that Ex A was not as he saw the roadway, and Mr Ingram said that the shoulder as shown in the photo was very close to what he was trying to describe – that is, his description of what extended across the road. Mr Watt was also shown Ex E, a similar photo, and said that there was more gravel on the roadway than in the photo. Mr Ingram was also shown the video, which showed brown material intruding a short way into the bitumen. He said that the brown extending from the shoulder looked like compacted dirt and that he had seen loose gravel as well, extending as he had described by reference to Ex A. (b) The evidence of Constable Carroll 27 Of the foregoing witnesses, only Ms Mitchell gave evidence of direct observation of the condition of the roadway where the respondent's car first skidded, about 130 metres to the north of where it came to rest, as distinct from speaking of the appearance of the roadway further to the north as seen from in the vicinity of the car. Constable Carroll's evidence included his direct observation of the state of the roadway further to the north. 28 Constable Carroll attended the scene on the day of the accident. He walked to the north and saw tyre marks veering from the eastern side to the western side of the road, off the road onto the dirt shoulder, and back onto the bitumen and to the eastern side of the road. He saw the sign of the impact with the embankment, and then the final location of the car. He paced out the distances, and sketched the path of the car in his notebook. He said that there was no loose material on the road surface other than the rubber from the tyres of the car; the effect of his evidence was that there was no loose material even where the car was located. 29 Constable Carroll then drove the police vehicle about 1500 metres to the north, to the "60" sign, and drove back at 60 kilometres per hour. At the northern end of the tyre marks he applied the brakes heavily. He said that the police vehicle stayed in a straight line and came to a stop within 20 metres. 30 Constable Carroll's evidence was significantly at odds with that of the other witnesses, and the judge said that if it were accepted, it would be difficult, if not impossible, to attribute the respondent's loss of control of his car to gravel deposited on the roadway. However, the judge did not accept Constable Carroll's evidence. (c) Prior inconsistent statement 31 One reason for the judge declining to accept Constable Carroll's evidence was the evidence of Mr McNabb, a private investigator who had interviewed Constable Carroll in June 1998. 32 Nothing in Constable Carroll's notebook, or in the COPS record which he made within a few days, recorded whether or not there was gravel on the roadway, so that Constable Carroll was giving evidence as to the condition of the roadway from unaided recollection. He was asked in cross-examination whether he remembered being interviewed by Mr McNabb, and said that he could not recall. The cross-examination continued - "Q. Do you remember saying to Mr McNabb that the road was bitumen, that you had no specific recollection of whether or not there was gravel or sand on the road? OBJECTION MCCULLOCH: Unless my friend intends to call Mr McNabb as a witness. HIS HONOUR: You can put the matter to him surely. MCCULLOCH: Your Honour has heard my objection. The question is being put in a positive way with respect. HIS HONOUR: I will allow it. TOOMEY: Q. Do you remember saying that to Mr McNabb, Mr Carroll? A. No, I do not. Q. Was it the truth? OBJECTION. QUESTION REJECTED Q. Was it the truth that as at 26 June 1998 you had no memory of whether or not it was gravel or sand on the road? A. I don't recall saying that to Mr McNabb. HIS HONOUR: You are not being asked that now. TOOMEY: Q. I am asking you was it the truth that as at 26 June 1998 you couldn't remember whether or not there was dirt or gravel on the road? A. I can't answer that." 33 At a later time Mr McNabb was called to give evidence. The appellant took an objection before Mr McNabb entered the witness box, but the judge correctly said that the objection was premature. Mr McNabb gave evidence that he interviewed Constable Carroll and prepared a detailed file note. When he was asked to "have a look at this document", plainly enough with a view to evidence that Constable Carroll told Mr McNabb that he could not remember whether or not there was gravel or sand on the road, the appellant objected. After argument, the judge ruled that evidence to that effect would be admissible because, contrary to the appellant's submission, what Constable Carroll said to Mr McNabb would be a prior inconsistent statement and in the judge's view Constable Carroll had denied its substance. 34 Mr McNabb gave the evidence. In cross-examination it was suggested to him that Constable Carroll had said that he could not remember there being any gravel on the bitumen at the scene of the accident (it is not easy to see how this would have assisted the appellant). Mr McNabb did not agree. The file note was tendered in re-examination, but was rejected. 35 The judge went through the evidence of Constable Carroll and Mr McNabb in some detail. In the course of making his findings, after saying that he thought Constable Carroll was mistaken in his recollection of the state of the roadway, he said that he accepted Mr McNabb's "account of his conversation with Constable Carroll". He did not more specifically relate that acceptance to the view he took of Constable Carroll's evidence, but it must have played a part. 36 It was common ground that the evidence was relevant only to Constable Carroll's credibility. Subject to exceptions, s 102 of the Evidence Act 1995 ("the Act") provides that such evidence is not admissible ("the credibility rule"). Amongst the exceptions, s 106(c) of the Act provided that the credibility rule does not apply to evidence that tends to prove that a witness has made a prior inconsistent statement, if the evidence is adduced otherwise than from the witness and the witness has denied the substance of the evidence. There is a precondition to admission in that, by s 43 of the Act, if the witness has been cross-examined about a prior inconsistent statement alleged to have been made by the witness, and does not admit the making of the prior inconsistent statement, the cross-examiner cannot adduce evidence of the statement otherwise than from the witness unless, in the cross-examination, the witness has been informed of enough of the circumstances of the making of the statement to enable the witness to identify it and the witness' attention has been drawn to so much of the statement as in inconsistent with the witness' evidence. A party may reopen the party's case for the purpose of adducing evidence of the statement: s 43(3). 37 The appellant submitted that the precondition was not satisfied because the circumstances of making the statement were not sufficiently stated; the judge said that he was "not attracted by that submission", and in my opinion was correct to reject it. 38 The appellant further submitted that there had not been a denial of the substance of the evidence to be given by Mr McNabb. The judge said - "On my reading and overall impression of the police officer's evidence, I come to a contrary view. It seems to me that the provisions of s 43 have been enlivened. Mr McCulloch submitted that under s 106 of the Evidence Act what was required as a foundation for the evidence now sought to be elicited is that the witness has denied the substance of the evidence which Mr McNabb is expected to be about to give. In my opinion, he has denied that substance." 39 This part of the ruling should be understood in the light of the judge's observation, made in the course of final submissions, that his impression of Constable Carroll's response of non-remembrance was that it amounted to "I didn't say that". The judge said in the ruling that, in his opinion, Constable Carroll denied the substance of the evidence Mr McNabb was expected to give. Material to the opinion was the way Constable Carroll gave his evidence. The judge was in an advantageous position in so concluding, and in my opinion no error has been shown in the ruling. (d) Browne v Dunn 40 Apart from the interview with Mr McNabb, Constable Carroll was principally cross-examined to establish that he had no contemporaneous record other than his notebook and the COPS record and on what he meant by the entry in the COPS record "Structure on Road: Roadworks". "Structure on Road" was a field requiring completion, the options including roadworks and nil. Constable Carroll said that by completion with roadworks he meant to convey that it was a roadwork area, referring to the 60 kilometre per hour speed limit. 41 The cross-examination concluded - "Q. And do you say there was a sign of road works? A. Yes. Q. What was the sign? A. The erected signs, "road work 60 kilometres". Q. But what about the area itself. Was there anything to indicate road works at all? A. Not that I recall. Q. No work of any sign, any sort which you remember as indicating --- A. That's correct. Q. --- Road works? You really have virtually no memory of this, do you? A. I remember the road work area. Q. You remember the sign? A. That's incorrect." 42 It was not more specifically put to Constable Carroll in cross-examination that, rather than there being no loose material on the bitumen surface, the roadway had been in the state, or one of the states, described by the witnesses called for the respondent. The concluding answer in the cross-examination is unclear, but the substance was that Constable Carroll did not recall any roadworks as distinct from the "60" sign indicating a roadwork area. 43 The appellant submitted that compliance with the rule in Browne v Dunn required that there be put to Constable Carroll the state or states of the roadway described by Mr Cameron, Ms Mitchell, Mr Wesslink, Mr Watt and Mr Ingram, and that failure to observe the rule in Browne v Dunn meant that the judge "should not have entertained submissions which sought to undermine Constable Carroll's evidence by reference to the evidence of the witnesses called by the respondent". It submitted that it was therefore not open to the judge to reject Constable Carroll's evidence concerning the absence of loose material on the roadway. 44 It was agreed that a submission to this effect had been made to the judge. He did not expressly address it in his reasons. That is perhaps not surprising, since there was and is no substance in it. 45 The rule in Browne v Dunn flows from considerations of fairness; to the witness in providing the opportunity to deal with contradictory evidence or the inferences to be drawn from it, and to the opposite party in giving it the opportunity to call evidence in support of the witness or to controvert the case revealed by the challenge to the witness. It is a rule of practice, and if failure to comply with it might bring unfairness the judge has a discretion as to how best to remedy the unfairness; see generally Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 1 NSWLR 1. 46 The discretionary armoury includes precluding the party in default from submitting that the witness' evidence should not be accepted. The appellant invoked that outcome, with reference to Reid v Kerr (1974) 9 SASR 36 at 375; Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 at 236; Knight v Maclean [2002] NSWCA 314 at [34]; Scalice v Bezzina [2003] NSWCA 362 at [97]; and a case in which the discretion was so exercised, Payless Superbarn (NSW) Pty Ltd v O'Gara (1990) 19 NSWLR 551. 47 The appellant's submission should not be accepted. The respondent's case had been fully exposed through the evidence of his witnesses, and the contest over the state of the roadway was out in the open. The appellant had called Mr Perriott to say that the roadway looked fairly normal. Through the evidence of Constable Carroll, it was putting a stronger contrary case. No compelling considerations of fairness required that there be put to Constable Carroll what would be, in the light of his evidence in chief, a ritualistic invitation to deny that the roadway was in a condition other than as he described. Instead, the respondent took the course of contesting the reliability of Constable Carroll's recollection, unaided as his recollection was by a relevant contemporaneous record, including by putting to him a prior inconsistent statement. That Constable Carroll had no realistic recollection of the occasion was squarely enough put to him at the conclusion of his cross-examination. 48 It may be appropriate to decline to receive a submission to the contrary of a witness' evidence if, due to failure to cross-examine, the witness' evidence must be taken to have been accepted by the opposite party. The present case is nothing like that. As Mahoney JA pointed out in Seymour v Australian Broadcasting Commission at 236, the course of the trial will not be unfair if it is clear from the manner in which the case has been conducted that the witness' evidence is in contest. In the present case, it was not incumbent on the respondent to put to Constable Carroll the state or states of the roadway as described by the respondent's witnesses, and there were no Browne v Dunn reasons against the judge declining to accept Constable Carroll's evidence in that respect. (e) Resolution of gravel on the roadway 49 The judge carefully considered the evidence, with assessments of the evidence of the respondent's witnesses as I have noted. He was well aware of differences in the various descriptions. 50 The judge said he was "persuaded by the evidence of Mr Wesslink and Mr Ingram that the bitumen surface in the area adjacent to where the plaintiff's car came to rest, and where the ambulance and Mr Ingram's car were parked, was substantially covered by loose gravel". He considered the McNabb evidence and expressed his view that Constable Carroll was mistaken in his recollection. He said - "144 Moreover, the evidence of Mr Cameron, Ms Mitchell and Mr Watt Snr also conflicts with the evidence of the police officer concerning the condition of the bitumen surface adjacent to the final position of the plaintiff's vehicle." 51 The judge then said that what was critical was not the condition of the bitumen so far south, and noted that the only witnesses who gave evidence of the state of the road as far north as the point where the respondent lost control of his car were Mr Cameron, Ms Mitchell, Mr Watt and Constable Carroll. He put Mr Cameron aside, and referred again to the evidence of the other witnesses; this included his statement as to tendency to establish a substantial deposit of gravel in the vicinity where the respondent lost control of his car. Detailing the conflict with the evidence of Constable Carroll, he said that he preferred the contrary evidence he had reviewed, and that he was persuaded on the balance of probabilities that there was a deposit of loose gravel on the bitumen surface at the location where the respondent sought to change direction and brake in order to avoid the kangaroo, and that the car continued to cross loose gravel as it crossed over the bitumen to the western shoulder. The judge was satisfied that it again encountered loose gravel on its return to the bitumen, and that it remained out of control until it finally came to rest after striking the embankment. 52 The appellant submitted that the evidence of the respondent's witnesses was in a number of respects unreliable, in Mr Cameron's recollection of the extent to which the roadworks had progressed and the varied impressions of Ms Mitchell, Mr Wesslink and Mr Watt that the road surface had been ripped up or the gravel had been laid deliberately. The recollections of the linear extent of the gravel-affected roadway differed, and while other witnesses said that no bitumen was apparent Mr Ingram said that it showed through. Apart from Constable Carroll, only Ms Mitchell went to where the skid began and could speak of direct observation of the roadway at the point where the respondent lost control of his car. 53 These points were validly made, and were recognised by the judge, but for reasons by now apparent the reliability of Constable Carroll's evidence was also open to question. Mr Cameron and Ms Mitchell may well have telescoped their remembrance of the course of the roadworks, but the judge was entitled to see in Ms Mitchell's evidence a general perception of a gravel-covered roadway; so also in the evidence of Mr Wesslink and, even allowing for his recollection of white gravel when all else suggested brownish material, Mr Watt. The evidence of Mr Ingram deserved the weight given to it by the judge, particularly when given content by what he said of Ex A and the video. 54 The appellant submitted that there was inconsistency in the judge's reasoning because, although he had recognised the difficulties in the evidence of Mr Cameron, Ms Mitchell and Mr Watt, he said that it conflicted with the evidence of Constable Carroll as to the condition of the bitumen surface where the respondent's car was located. The judge was not saying at that point that he resolved the conflict in favour of the respondent's witnesses. He then focussed on the condition of the roadway further north, put the evidence of Mr Cameron aside, but found assistance in the tendency of the evidence of Ms Mitchell and Mr Watt to establish a substantial deposit of gravel in the vicinity where the respondent lost control of the car. He then referred to the conflict between the evidence of Constable Carroll and that of Ms Mitchell, Mr Wesslink, Mr Watt and Mr Ingram as to the area in which the car came to rest. This weighing of the evidence was well open to the judge, and there was no inconsistency. 55 It is necessary also to consider how the roadway could have come to be in the condition described by the respondent's witnesses. The appellant's submissions included that the judge found that the material came from the trucks taking excavated material from the southern end of the 30 kilometre job. I do not think that is so; the judge referred to the trucks "[a]part from shoulder work undertaken … ", and in my view his finding encompassed material from that work. Shoulder work had been undertaken over the 300 to 400 metres to the north of the Gurranang Road intersection, within which length of the roadway the skidding began and the car came to rest, in the period to 16 March 1998. Mr Perriott agreed that it was possible that there would be material across the road surface, as well as implicitly agreeing that there could be spillage from the trucks. 56 It might be thought that spillage from the trucks would have affected more than a fairly short section of the roadway, and that in the period from 16 March 1998 to 24 March 1998 traffic would have resulted in any coverage of gravel on the roadway would have been markedly lacking in uniformity. In my opinion, however, neither such untutored thinking nor the evidence of Constable Carroll is sufficient, within the principles of appellate review, to conclude that the judge's fact-finding was erroneous. Particularly when Constable Carroll's evidence was affected by the evidence of a prior inconsistent statement (and was not given unchallengeable status for Browne v Dunn reasons), there were no incontrovertible facts or uncontested testimony demonstrating error, nor was the judge's conclusion glaringly improbable or contrary to compelling inferences: these well-known phrases are taken from Fox v Percy and the cases on which it drew. More generally, I am not persuaded that the judge's careful resolution of a deal of evidence, evidence with undoubted discrepancies, to a conclusion on the balance of probabilities, was incorrect. Sufficient response 57 The appellant submitted that the reduction in the speed limit to 60 kilometres per hour, in conjunction with the signs warning of the existence of roadworks, was sufficient response to the presence of gravel on the roadway. The submission was rather muted, and became a complaint that the judge had inadequately exposed an assessment of the extent of the risk created by gravel on the roadway and the likelihood of drivers losing control of their cars because of the gravel. 58 Evidence was given by two experts, Mr Hespe called by the respondent and Mr Keramidas called by the appellant. In their written reports, Mr Hespe proceeded on the assumption that the roadway was covered with a loose layer of soil and gravel while Mr Keramidas proceeded on the assumption that there was no loose material on the pavement or the shoulder. As the judge said, it was not surprising that they came to different conclusions as to why the accident occurred. 59 The judge noted Mr Hespe's evidence that loose gravel on a road surface creates a situation of extreme danger, and that even at speeds as low as 60 kilometres per hour only the most experienced driver would be able to recover from a skid on loose gravel. The judge did not accept the particular reduction in the co-efficient of friction at which Mr Hespe arrived, persuaded by Mr Keramidas' criticisms in his oral evidence of Mr Hespe's approach, but noted Mr Keramidas' agreement in cross-examination that, with material on the road surface, a "loss of traction event" would occur earlier than otherwise and that, in comparison with his assessment of the co-efficient of friction for the unsullied bitumen of .7 to .8, the co-efficient of friction could have been well below .4. 60 The appellant accepted that if there were a risk to the driving public created by the presence of gravel on the road, on a relatively straight stretch of road, travelling at or about the regulated speed limit, further precautions should have been taken. In my opinion, the judge was well entitled to find that that situation was made out by the evidence. Causation 61 The appellant submitted that the judge's reasoning on causation was sparse, and did not properly address whether the accident would have occurred even if there had been no gravel or other loose material on the roadway and even if there had been a sign erected warning of the presence of loose gravel. It was said that, Mr Keramidas having given evidence that there could be loss of control of the car on a perfectly good road surface because of the steering or braking of the car or a combination of both, it was for the respondent to establish on the balance of probabilities that, with a reaction to the appearance of the kangaroo, the accident would not have happened in any event. And it was said that, when the judge found that the respondent would not have been caused to reduce his speed by the additional "60" signs, on the probabilities a sign warning of loose gravel would also not have caused him to drive in a slower or different manner. 62 In March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 the discussion of Mason CJ, with whom Deane, Toohey and Gaudron JJ relevantly agreed, favoured a "common sense" approach to causation, referring to the part played by "value judgments and the infusion of policy considerations" (at 515-6). The common sense approach presents its own difficulties, and it is necessary that the purpose of the enquiry into causation be identified, see for example Allianz Australia Insurance Ltd v G S F Australia Pty Ltd (2003) 57 NSWLR 321 at 330-1 per Santow JA; on further appeal (2005) 215 ALR 385 at 394 per McHugh J and at 406 per Gummow, Hayne and Heydon JJ. Causation in the law involves the attribution of legal responsibility, and a value judgment must be made having in mind the occasion for the enquiry into causation. 63 For attribution of legal responsibility where there has been breach of a duty of care, there has often been applied the statement of Dixon J in Betts v Whittingslowe (1945) 71 CLR 637 at 649, in relation to a statutory duty, that - "[t]he breach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach … ". 64 This statement has been applied also in cases of breach of common law duty, and it was said of a common law duty by Gaudron J in Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 420-1 that "generally speaking, if an injury occurs within an area of foreseeable risk, then in the absence of evidence that the breach had no effect, or that the injury would have occurred even if the duty had been performed, it will be taken that the breach of the common law duty caused or materially contributed to the injury". See also Chappell v Hart (1998) 195 CLR 232 at [10], [34], [68], [93] and Naxakis v Western General Hospital (1999) 197 CLR 269 at [31], [76], [127]. 65 In Commissioner for Main Roads v Jones [2005] HCA 27 Gleeson CJ observed at [26] that, where the only evidence concerning causation was that the defendant had breached his duty of care and that the injury that occurred was within the scope of the risk of injury arising from the breach of duty, it was "always open to the tribunal of fact to find a causal connection between the breach and the injury even though the exact cause of the injury or conduct of the plaintiff is unknown", referring to Chappell v Hart, Naxakis v Western General Hospital and Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18. In the same case McHugh J spoke at [80] of a case in which "cause could be inferred from the result", referring to Bennett v Minister of Community Welfare and Betts v Whittingslowe. 66 This does not mean that risk of an accident because of gravel on the roadway necessarily meant that the accident was caused by the appellant's negligence. The appellant's submissions proffered reasons why the breach of duty manifested in gravel on the roadway and absence of a warning sign had no causal effect. But I do not think the judge has been show to have failed in his reasoning or erred in the result. 67 The judge said that, mindful of the expert evidence, he was satisfied on the balance of probabilities "that the presence of loose gravel encountered as described caused a loss of traction sufficient to cause the plaintiff to lose control of his vehicle". Immediately beforehand he had referred to the gravel "at the location where the plaintiff sought to change direction and to brake in order to avoid a kangaroo". He was plainly alive to the injection into what occurred of the reaction to the appearance of the kangaroo, and on the balance of probabilities considered that the presence of loose gravel made the difference between retention of control of the car and loss of control. In my opinion, this reasoning cannot be faulted. 68 Although in connection with contributory negligence, the judge also expressed satisfaction that the presence of a sign warning of the danger of loose gravel "should have had the effect of sharpening the perception of a motorist of what lay ahead". No doubt it is possible that the respondent's steering and braking in response to the appearance of the kangaroo were such that he would have lost control of his car even if he had been alerted to the presence of gravel on the road, or even if the road had been free of loose gravel. But that possibility does not conclude matters. It was necessary that the judge make a finding on the balance of probabilities. As a finding on the balance of probabilities, in my opinion the judge's conclusion that causation had been made out was well open, and was correct. Contributory negligence 69 The judge took guidance from the well-known description of a comparison of culpability and the relative importance of the acts of the parties found in Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529 at 532-3. He considered that the respondent was negligent in driving at 80 kilometres per hour despite the signage, which he either did not see or did not comply with, and in failing to observe change in the condition of the roadway before he came to the gravel and to appreciate the need to reduce his speed. He considered that driving at 80 kilometres per hour was an excessive speed in all the circumstances and contributed to the accident "in very real measure". His assessment was that the respondent's damages should be reduced by one third. 70 The appellant submitted that the respondent's failure to observe or obey the signs requiring him to reduce his speed to 60 kilometres per hour should have been regarded as a "significant and … overwhelming contributor to the accident such that apportionment of at least two-thirds was required". 71 Podrebersek v Australian Iron and Steel Pty Ltd also establishes, at 532, that - "A finding on a question of apportionment is a finding upon a 'question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds': British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 201. Such a finding, if made by a judge, is not lightly reviewed." 72 With the same economy as the appellant's submission, I am not persuaded that the judge's assessment was less than that available to him on the appropriate comparison. Orders 73 I propose that the appeal be dismissed with costs. 74 TOBIAS JA: I agree with Giles JA 75 BROWNIE AJA: I agree with Giles JA. ********** 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.