Allianz Australia Insurance Ltd v Roads and Traffic Authority of New South Wales; Kelly v Roads and Traffic Authority of New South Wales [2010] NSWCA 328

New South Wales Court of Appeal

CITATION: Allianz Australia Insurance Ltd v Roads and Traffic Authority of New South Wales; Kelly v Roads and Traffic Authority of New South Wales [2010] NSWCA 328

HEARING DATE(S): 26 October 2010

JUDGMENT DATE: 9 December 2010

JUDGMENT OF: Giles JA at 1; McColl JA at 154; Sackville AJA at 155

DECISION: In each appeal the appeal is dismissed with costs. *** [The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

CATCHWORDS: TORTS – negligence – motor accident – water over road sign placed 924 metres east of water hazard where accident occurred – finding of negligence because water over road sign should have been placed 150 to 300 metres away from hazard – small dip with some water near where water over road sign placed – car drove through water hazard at least 90kph – car aquaplaned – whether negligence in not placing reduce speed sign as well as water over road sign – on evidence negligence in not placing reduce speed sign not established – whether negligent placement of water over road sign was within s 43A of Civil Liability Act – consideration of "so unreasonable that no authority having the special statutory power could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power" – provision imposes a Wednesbury unreasonable standard – consideration of Wednesbury unreasonableness in negligence context – high threshold before Wednesbury unreasonableness found – substitution of "irrational" as test undesirable – test is objective and not focused on decision-maker's subjective thought processes – placement of water over road sign near understandable – placement may not have been preferable course but not Wednesbury unreasonable – CAUSATION – whether failure to place water over road sign 150 to 300 metres east of hazard caused accident – sign placed 924 metres away must be taken into consideration – driving not changed by that sign – no admissible evidence of effect of sign on driving behaviour – effect of sign on driving a jury question – existing sign would have alerted driver even if hazard 30 seconds away – no inference that sign 150 to 300 metres would have changed driving – causation not found.