Appeal Outcome: Leave application referred to the Full Court - 13 June 2008; Appeal allowed - 16 October 2008 - Lujans v Yarrabee Coal Company Pty Ltd [2008] HCA 51 New South Wales Court of Appeal CITATION: Yarrabee Coal Co Pty Ltd v Matina Lujans [2007] NSWCA 342 HEARING DATE(S): 27/6/07, 28/6/07, 29/6/07 JUDGMENT DATE: 4 December 2007 JUDGMENT OF: Ipp JA at 1; McColl JA at 2; Handley AJA at 3 DECISION: 1. Appeal allowed with costs; 2. Judgment for the plaintiff for $8,759,510.55 and costs set aside; 3. In lieu thereof there should be judgment for the defendants in the action with costs; 4. The respondent is to have a certificate under the Suitors' Fund Act 1951 for the costs of the appeal. CATCHWORDS: APPEAL - Findings inconsistent with incontrovertible facts and compelling inferences - NEGLIGENGE - Road accident - Motor vehicle runs off road - Accident - Evidence of negligence - Res ipsa loquitur LEGISLATION CITED: Suitors' Fund Act 1951 Davis v Bunn (1936) 56 CLR 246 CASES CITED: Fox v Percy (2003) 214 CLR 118 Government Insurance Office of NSW v Fredrichberg (1968) 118 CLR 403 Yarrabee Coal Company Pty Ltd (ACN 010 849 402) (First Appellant) PARTIES: Jalgrid Pty Ltd (ACN 010 398 428) (Second Appellant) Matina Luise Lujans (Respondent) FILE NUMBER(S): CA 40089/07 COUNSEL: CT Barry QC with J Davidson (Appellants) B Toomey QC with A Bartley SC and S Longhurst (Respondent) SOLICITORS: McCabe Terrill Lawyers (Appellants) Russell McLelland Brown (Respondent) LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): SC 20785/01 LOWER COURT JUDICIAL OFFICER: Cooper AJ LOWER COURT DATE OF DECISION: 6/10/06 - 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40089/07 SC 20785/01 IPP JA McCOLL JA HANDLEY AJA Tueday 4 December 2007 YARRABEE COAL COMPANY PTY LIMITED & ANOR V MATINA LUJANS APPEAL - Findings inconsistent with incontrovertible facts and compelling inferences NEGLIGENGE - Road accident - Motor vehicle runs off road - Accident - Evidence of negligence - Res ipsa loquitur The respondent became a quadriplegic when the car she was driving to work at 100 kph along an unsealed private road ran off the road on a right hand bend, turned around and rolled on its side. It was daylight, the weather was fine, and there was no other vehicle, large animal, or large object on the road which could have caused the accident. There was no evidence of any mechanical defect or damage to the tyres. She sued the occupier of the road, her employer, and its road maintenance contractor alleging that the road surface was defective. The trial judge rejected all but one of her allegations, but found that the appearance of the road was deceptive because a careful driver could not tell where the hard centre section ended and the softer shoulder began. This had caused or contributed to the respondent driving onto the shoulder at the bend and loosing control of her vehicle. He held that the defendants had been negligent and awarded substantial damages. The defendants appealed. Held: (1) The movement of the respondent's vehicle was evidence of negligence on her part on the res ipsa loquitur principle: Davis v Bunn (1936) 56 CLR 246; Government Insurance Office of NSW v Fredrichberg (1968) 118 CLR 403; (2) The Judge's findings and inferences were inconsistent within controvertible facts and compelling inferences: Fox v Percy (2003) 214 CLR 118; (3) The respondent would have had no difficulty in avoiding the left shoulder if she had been keeping a proper lookout. She had to avoid the left shoulder and remain in the 7.8 to 8.2 metres wide central section as she approached the right hand bend or she would run off the road. The bend was obvious and well marked. Orders 1. Appeal allowed with costs 2. Judgment for the plaintiff for $8,759,510.55 and costs set aside 3. In lieu thereof there should be judgment for the defendants in the action with costs 4. The respondent is to have a certificate under the Suitors' Fund Act 1951 for the costs of the appeal. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40089/07 SC 20785/01 IPP JA McCOLL JA HANDLEY AJA Date YARRABEE COAL COMPANY PTY LIMITED & ANOR V MATINA LUJANS Judgment 1 IPP JA: I agree with Handley AJA. 2 McCOLL JA: I agree with Handley AJA. 3 HANDLEY AJA: At about 6.20am on Friday 18 September 1998 the respondent was driving to work alone when her car crossed to the wrong side of an unsealed private road (the road), left the carriageway, travelled a further 40.6 metres, dropped five feet and came to rest on its side facing the wrong way (blue 2/231). She had been driving north along the road which links the Capricorn Highway in Central Queensland to the Jellinbah mine operated by the first appellant where she worked. She suffered catastrophic injuries which left her quadriplegic. 4 She was living at Blackwater and to get to work would drive a company vehicle eastwards along the Capricorn Highway to Boonal where she would turn left and drive north along the road. This was held by the first appellant under a special lease and it was responsible for its maintenance. The distance from Boonal to the turnoff at the mine was nearly 22kms. 5 The accident happened at a gradual right hand bend about 5.9kms along the road. It was daylight, the weather was fine but overcast, and there was no other vehicle in the vicinity. There was no evidence of any mechanical defect or damage to the tyres (red para172), there was no evidence that an animal had been present (para 171), or of any large object on the road (para 173). The speed limit was 100kph and there was evidence that the respondent had been driving at that speed. 6 There were no eyewitnesses other than the respondent. She did not know what happened after she passed a coal truck near Boonal apart from a vague recollection that at some stage she felt uncomfortable about her speed and slowed down. Two other drivers who were following her, Mr Geoffrey Routledge, a truck driver and Mr Baxter Smith, a mechanical fitter, arrived almost immediately and were able to provide some assistance and summon help. 7 The respondent sued the appellant and its road maintenance contractor for damages alleging negligence on their part in the maintenance of the road. Her case depended on proof of some defect in the road surface or its appearance which caused or contributed to the accident. 8 The action was heard by Cooper AJ in 2006 and he gave judgment in October that year in favour of the respondent, found her responsible to the extent of twenty per cent for contributory negligence and assessed her damages at $10,802,989.43. He rejected all but one of the allegations of negligence but found that the appearance of the road was deceptive because drivers such as the respondent could not readily distinguish where the centre ended and the shoulder began. 9 The Judge drew the inference that the deceptive appearance of the road at this boundary caused the respondent to drive off the centre until her nearside wheels were on the shoulder when she lost full control of her vehicle. She found herself approaching a guidepost standing in a pile of soil and gravel on the side of the road in the bend. She swerved to avoid the guidepost, lost control of her vehicle and ran off the road. The Judge held that the deceptive appearance in that part of the road was due to its negligent maintenance. The defendants have appealed against the finding of negligence but did not challenge the apportionment for contributory negligence or the assessment of damages. The respondent did not cross-appeal or file a notice of contention. 10 The appellant's essential submission (at trial) and on appeal is that the accident was caused by driver error and not the road. 11 Prior to the accident the respondent had passed one driver, Mr Routledge, and a Mr Smith had driven behind her vehicle, albeit at a distance. Neither observed her to have been exceeding the speed limit, or that her vehicle had behaved in an abnormal or erratic fashion prior to the accident. Since there was no evidence of any defect in the vehicle or its tyres or of the presence of anything else on the road surface, the movement of her vehicle off the road was some evidence (res ipsa loquitur) of negligence by the respondent in her control and management of the vehicle: Davis v Bunn (1936) 56 CLR 246, 260, 272, 276; Government Insurance Office of NSW v Fredrichberg (1968) 118 CLR 403, 412, 418. It was not, per se, evidence of negligence on the part of those responsible for the construction and maintenance of the road. 12 The road was 10.8 metres wide from rill (or windrow) to rill measured where the tyre marks of the respondent's vehicle began to move onto the left hand shoulder and 11.2 metres wide near the guidepost where the tyre marks suddenly veered to the right (red para 164). The respondent drove with her left hand wheels on the shoulder and her right hand wheels on the compacted centre surface for about 33 metres. She then steered sharply to the right, but her passenger side rear wheel lost traction in the turn and slid sideways causing her to lose control of her vehicle. 13 The central heavily compacted part of the road was between 7.8 and 8.2 metres wide and each shoulder was 1.5 metres wide (paras 243, 293). The respondent's vehicle was only 1.8 metres wide (para 168). Thus there was plenty of room for her vehicle in the centre of the road and the Judge found that there was nothing unsafe about the centre which caused or materially contributed to the accident (para 233). 14 The Judge reviewed the evidence about the condition of the left hand shoulder at this bend, considered whether it was soft or not, and whether there was dust and loose gravel on its surface. He concluded (para 261) "that a reasonably prudent driver travelling along [the road] at the same time and place as the plaintiff was, could not readily distinguish where the hard compacted surface of the roadway ended and the relatively softer shoulder began" and "that this state of affairs could materially contribute to the plaintiff so manoeuvring her vehicle that the left wheels ended up in the shoulder". 15 The Judge found that the respondent had been paying attention when she allowed her left hand wheels to move onto the shoulder (para 266), and when this happened "she experienced a different 'feel' in the passage of her vehicle as well as in the steering. … this … caused her to feel unsafe and … slacken … her speed. … she [also] had to get to her right to avoid the guidepost which was … about 1.5 seconds away. She turned her steering wheel to the right but, due to the difference between the adhesion of her right wheel(s) … and … her left wheels, … the vehicle slid out of control" (para 267). 16 Accordingly he concluded that the appearance of the road surface at the boundary between the centre and the shoulder was deceptive and this caused or materially contributed to the respondent driving with her left hand wheels on the shoulder which caused or materially contributed to her losing control (para 268). 17 These were the crucial factual findings which underpinned the Judge's ultimate finding on liability. It will be convenient to first consider the second and third of those findings (paras 266-8) before returning to the first (para 261). 18 The respondent's evidence (supporting the second and third findings) that she felt unsafe and slackened off her speed repays close consideration. The Judge quoted (para 41) only part of this evidence (black 1/22-3). The whole of her evidence on this matter was as follows: "Q Do you remember actually overtaking [Mr Routledge]? A Yes. Q Do you remember what speed you had been travelling at whilst you were behind the truck waiting for his clearance to allow you to go? A No. Q Can you say what speed you reached during the overtaking manoeuvre ? A It was between 100 or 110 … Q And was there a reason why you apparently exceeded the speed limit during the overtaking manoeuvre? A I was told that you had to get around the trucks as quickly as you possibly could and I was getting scared because it was such a large thing. I wanted to get past it quickly. Q Now do you recall what happened after you had overtaken the truck? A No, I pulled back in quite safely. Q Do you remember that? A Yes. Q About how long did it take you to overtake the truck? A I'm not sure. Q Was he travelling at a speed appreciably less than the speed that you were travelling at to overtake him? A Yes. … Q Do you recall what happened with your speed after you had finished overtaking. A I remember lowering my speed as I was feeling unsafe for whatever reason I don't recall. I just recall feeling unsafe and dropping my speed back down to between 80 and 90. Q And after that what's the next thing that you can remember? A Hitting my head on the window and then hanging upside down in the car." 19 The respondent overtook Mr Routledge's truck just after she turned onto the road (Routledge black 2/487 q). In its context her evidence about reducing her speed "after" she had overtaken the truck meant shortly afterwards, rather than afterwards in the right hand bend several kilometres away (red para 9). 20 Other evidence about her speed supports this. Mr Routledge said that he was travelling at 80 kph (2/499 k) and after overtaking him the respondent disappeared from sight (black 2/488 f). He was then passed by the vehicle driven by Mr Smith (2/488 j). Mr Smith saw the respondent's vehicle about 500 metres ahead but did not gain on it although he was travelling at 100 kph (black 3/593). 21 In the light of this evidence it seems that after overtaking Mt Routledge at a speed of up to 110 kph and reducing her speed to 80-90 kph she increased it to 100 kph and maintained that speed until the accident. 22 There was also expert evidence that the respondent's vehicle was travelling at 100 kph when it veered to the right and started to yaw. The yaw was apparent from the tyre marks across the road observed by Constable Turner and Mr Rawlins, and plotted by Mr Ross, a surveyor. Mr Kerimidas, the respondent's expert, said the respondent was travelling at 101 kph when she suddenly veered to the right, and he explained how this was calculated (blue 1/144). The appellant's expert, Mr Stewart-Smith, agreed (blue 3/358) and calculated her speed on alternative bases at between 95 and 105, or between 95 and 100 kph. Neither was cross examined. 23 Accordingly the Judge's conclusion that the respondent reduced her speed from about 100 kph to between 80 and 90 kph after her left hand wheels crossed onto the shoulder is inconsistent with Mr Smith's observation and the expert evidence. It is also inconsistent with the tyre marks seen by Constable Turner, Mr Rawlins, and others, and plotted by Mr Ross, and the expert evidence based on those marks. 24 The Judge found that the respondent veered suddenly to the right when the guidepost was in front of her only 1.5 seconds away (para 267). Her tyre marks on the shoulder were 33.3 metres in length, measured by Mr Ross to the point where they veered to the right (red para 167, blue 2/231). 25 The evidence of Mr O'Loughlin, which the Judge accepted, was that the maximum distance of the tyre marks from the smooth central surface was 75 cms (red 92 m). Constable Turner and Mr Ross said that the tyre marks were straight until the sudden veer to the right (black 2/407 p, 440 u). The marks were consistent with the vehicle drifting onto the shoulder as the road began to move to the right in the bend (2/407 p). Constable Turner said that the road was straight until the start of the right hand bend (red 118) and this is confirmed by photographs in evidence. In other words the tyre marks indicate that the respondent's vehicle ran onto the shoulder because it maintained its course when the road was bending to the right. 26 If the respondent was travelling at 100 kph when her vehicle commenced to drift onto the shoulder it would cover the 33.3 metres in 1.2 seconds (red 168). If she was travelling at 80 kph it would cover the distance in 1.5 seconds. The respondent said that she felt unsafe and slackened off her speed (red 267) slowing down to "80 or 90" (red 223). She did not say that she applied her brakes and the tyre marks do not indicate that she did. It is difficult to understand why, if she felt unsafe, she would not have applied her brakes. 27 Moreover it was physically impossible for the respondent in the 1.2 seconds available while she travelled 33.3 metres to react to feeling unsafe and reduce her speed. This is further support for the conclusion that the respondent's evidence about slowing down must relate to a time shortly after she passed Mr Routledge's truck back near Boonal. The Judge's finding (red 267) that she reduced her speed as she approached the guidepost is inconsistent with incontrovertible facts and compelling inferences: Fox v Percy (2003) 214 CLR 118. 28 The Judge found (red 167) that after travelling with her left hand wheels on the shoulder "she found herself approaching the guidepost". The distance between the guidepost and the tyre marks where they suddenly veered to the right was not measured by Mr Ross, or Constable Turner, but their estimates of 10 - 12 metres (red 166) were the most favourable for the respondent. At 100 kph her vehicle would travel this distance in .43 of a second. 29 The other factual finding which supported the Judge's conclusion on liability was that a reasonably prudent driver "could not readily distinguish where the hard compacted surface of the roadway ended and the relatively softer shoulder began" (red 261). This depended, in part on evidence given by witnesses of their recollection of the state of the road that morning, but principally on their interpretations, and those of the Judge, of photographs of the scene of the accident taken that day, a week later, and a month later. None of the witnesses who drove on the road that morning said that they had any difficulty in avoiding the shoulders, and no one else ran off the road. 30 The shoulders on each side were 1.5 metres wide (red 243). In the centre there was a hard smooth surface between 7.8 and 8.2 metres wide. The outer edges of the road were marked by the rills which were 15 to 30 cms high (red 242) with green grass beyond. Whatever difficulty there may have been in distinguishing the boundary between the hard smooth surface in the centre and the shoulders every driver on a dirt road knows that there is more loose material on the shoulders than in the centre. 31 The respondent must have known this because she had been driving along this road for eight months before the accident (red 44). The photographs show that the rills were obvious. There was no crown to mark the centre line but there was ample space in the centre section and there was no other traffic. The respondent should not have been driving anywhere near the left shoulder when she was approaching a right hand bend marked by a guidepost. Both are clearly shown in photographs. 32 Even if the appearance of the road at the boundary between the shoulder and the smooth central surface was deceptive this could only be relevant and causative of the accident if the respondent was attempting to drive close to the left shoulder. There was no good reason for her to do this. She could and should have kept her vehicle well away from the left shoulder wherever it began. 33 The Judge found that there was nothing unsafe about the central section of the road which could have caused the respondent to drive close to the left shoulder (red 233). She would have had no difficulty in driving well clear of the shoulder if she wanted to and was keeping a proper lookout. She would need to keep well clear of it as she approached the right hand bend. 34 The most probable explanation for the respondent finding herself approaching the guidepost is that she was not keeping a proper lookout. She was only 45 metres and 1.6 seconds away from the guidepost when she began to drift onto the shoulder. She should have been aware of the guidepost and the right hand bend for some considerable time before that. Her failure to apply her brakes and the sudden veer to the right provides compelling evidence that she only became aware of the guidepost when it was immediately in front of her. The compelling inference is that it was inadvertence rather than the deceptive nature of the road's surface where the shoulder began which caused the respondent's accident. 35 The Judge's finding (red 266) that the respondent allowed the left wheels of her vehicle to enter the shoulder because she was paying attention, but was misled by the deceptive nature of the road's surface where the shoulder began (red 261) was inconsistent with incontrovertible facts, and contrary to compelling inferences. 36 The appeal must therefore be allowed. It is not necessary to consider the appellants' challenge to the findings that the appearance of the road was deceptive at the boundary of the left shoulder at this bend, and that the shoulder was relevantly soft and contributed to the accident. Had it been necessary to do so I would also have reversed these findings. 37 The photographs taken at the scene on the day of the accident show a clear difference between the left shoulder marked by gravel and the smooth central surface (blue 1/97, 3/473, 475, 476, 496, 497, 499, 502). This Court is not bound by different interpretations of these photographs by witnesses giving evidence eight years after the event, or by the interpretations of the trial Judge who was not in a position of advantage. 38 There was evidence, as one would expect, of the presence of gravel ("marbles") and dust on the shoulder where the tyre marks were found. There was much debate and some confusion about whether the shoulder was relevantly "soft". However some things were quite clear - the surface of the shoulder had not been broken, the tyre marks were only in the fine material, and up to the sudden deviation to the right they were straight. The respondent did not lose control of her vehicle until she abruptly steered it to the right. 39 Unfortunately for the respondent she did not prove that the appellants were legally responsible for the tragic injuries she suffered when her vehicle ran off the road. 40 The following orders should be made: 1. Appeal allowed with costs 2. Judgment for the plaintiff for $8,759,510.55 and costs set aside 3. In lieu thereof there should be judgment for the defendants in the action with costs 4. The respondent is to have a certificate under the Suitors' Fund Act 1951 for the costs of the appeal. ********** 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. 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