Supreme Court New South Wales Medium Neutral Citation: John Curtis v Harden Shire Council [2012] NSWSC 84 Hearing dates: 13-15 February 2012 Decision date: 16 February 2012 Jurisdiction: Common Law Before: Fullerton J Decision: Evidence is admissible Catchwords: PROCEDURE - road accident - Council roadworks - whether evidence of the fact and detail of a car accident involving another driver on the same stretch of roadway is admissible - relevance of evidence Legislation Cited: Evidence Act 1995 Cases Cited: Washer v The State of Western Australia [2007] HCA 48; 234 CLR 492 Category: Interlocutory applications Parties: John Curtis (Plaintiff) Danielle Paterson (2nd Plaintiff) Harden Shire Council (Defendant) Representation: H Marshall SC / R Taylor R Sheldon SC McCabe Partners DLA Piper Australia File Number(s): 2007/293512 2007/293513 Judgment 1HER HONOUR: Just before midday on 20 August 2004 Ms Debbie Paterson was driving a Commodore sedan south on Kingsdale Road at Kingsdale when she lost control of her vehicle after which it left the road and struck a tree. She sustained head injuries from which she later died. Her surviving partner and children bring proceedings against the Harden Shire Council ("the Council") in negligence. In short, they contend that Ms Paterson was exposed to the risk of foreseeable injury by the Council's failure to warn her of the presence of loose gravel on the road and a failure to warn her of the need to limit her speed in those circumstances which, in combination, caused her to lose control of her vehicle from which she suffered fatal injuries. 2The accident occurred on a stretch of road where the previous day the Council had completed laying five (or six) discontinuous sections of bituminous material surface dressed with loose gravel (or aggregate) as part of its road maintenance works program. Excess gravel remaining on the road surface after the bituminous material is laid is an expected consequence of the method of resealing employed by the Council. The roadworks extended over 500m on Kingsdale Road. The resealed sections covered the full width of the roadway but were of differing lengths which in total extended over about 200m. Unworked sections of roadway separated the resealed sections. The final phase of the roadworks was due to commence on the afternoon of 20 August 2004. This entailed sweeping the residue of loose gravel from the road surface. 3Objection is taken to the plaintiffs leading evidence of the fact and detail of a car accident involving another driver on the same stretch of roadway twelve hours earlier. The driver in that instance was travelling in a southerly direction. The defendant Council maintains that the evidence fails to meet the test of relevance in s 55 of the Evidence Act 1995. That section provides: 55 Relevant evidence (1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. ... 4The definition of relevance embraces two concepts: (a) the logical (ie a rational) connection between evidence and facts; and (b) that the matter on which the evidence ultimately bears is a matter in issue in the trial. 5It is necessary to identify a process of reasoning by which the evidence in question could affect the assessment of the probability of the existence of a fact in issue: Washer v The State of Western Australia [2007] HCA 48; 234 CLR 492. In a civil proceeding the identification of a fact in issue is a question of law (or a question of mixed fact and law) which requires an examination of the factual elements of the cause of action and defence. In this case there is no confinement in the pleadings as to the facts in issue in the sense that, although the defendant Council admits that it owed a duty of care to road users given its care, control and management of roadways and associated works within the Shire of Harden, each particular of negligence in the discharge of that duty is in issue. Statutory defences are also raised and causation is denied. Whether these matters remain in issue when the evidence is closed remains to be seen. 6Kingsdale Road had a designated speed limit of 100kph. It was common ground that Ms Paterson was travelling at, or perhaps slightly under the speed limit on approach to and for at least some distance along the stretch of road under repair before the point of impact. There were no speed reduction signs or pictorial signs indicating the potential for slippage and the need for driver caution. There were signs signaling road works of an unspecified kind and a pictorial sign indicating the potential for windscreen damage from loose gravel. These signs were placed within 60m of the commencement of the first resealed section and at intervals along the stretch of road that had been subject to resealing the previous day. 7No other vehicles were involved in the accident from which Ms Paterson died. There were no eyewitnesses to either the point of impact or any part of the driving sequence that preceded the point of impact. 8The tree Ms Paterson struck was in alignment with the commencement of the third section of resealed road (in a southbound direction). This was approximately 210m from where the first section of resealing commenced. There were distinct tyre marks curving across the centre line from left to right on the immediately preceding unworked second section. The tyre marks commenced about 45m from the point of impact. It is common ground that the appearance of the marks and their arrangement are consistent with her vehicle being in a distinct yaw as it "side slipped" and then rotated in a 180 degree arc towards the point of impact. 9The first section of reseal travelling north extended over 89m and commenced part of the distance around a 230m curve in the roadway to the right. The second section of reseal over which Ms Paterson must also have passed before losing control at the point of impact measured 31m with an unworked 40m section of road intervening between those two segments. There were vehicle track marks of differing density and orientation over both the first and second resealed sections. There were no tyre marks or tracks of any kind on the unworked section in between those two sections. 10The tracks on the first and second sections of reseal, and the tyre marks on the second unworked section leading to the point of impact, were noted on a hand drawn sketch drawn by Mr Curtis, an engineering assistant employed by the Council, on the day of the accident. The sketch was not drawn to scale. Although Mr Curtis was not called on the voir dire I consider his sketch was intended by him to be indicative of the passage of Ms Paterson's vehicle from the left hand side of the road as she entered the first resealed section, towards and then crossing the centre line at the end of that section, and then its position on the right hand of the second resealed section (ie on the incorrect side of the roadway) before the vehicle orients towards the left (ie towards the correct side of the roadway) such as to be in alignment with the distinct yaw marks I referred to earlier that cross the centre line to the point of impact . 11Photographs of the tracks on the first and second resealed sections were taken by Mr Curtis on the same day. The photographs are of variable quality rendering their interpretation for the purposes of fact finding problematic. Their ultimate utility falls to be determined by me when the issue of liability is decided. For the purposes of the interlocutory question suffice to note that the experts are in disagreement as to whether the photographs (either alone or in conjunction with Mr Curtis' hand drawn sketch) of the first resealed section are capable of supporting any working assumptions as to the passage of Ms Paterson's vehicle on that section of roadway (as distinct from the tracks being left by other road users) and, even if they were or might be her tyre tracks, whether at that time she was in the initial phase of losing control of her vehicle. Even if her control of the vehicle at that time was compromised, they are in disagreement as to whether the precipitating cause (or causes) was a loss of traction due to travelling at excessive speed on a gravel surface, or for some other reason, or some other combination of reasons. 12The faint tyre mark on the second resealed section (ie on the incorrect side of the roadway) is less contentious. It is generally agreed between the experts that by reason of its orientation to and alignment with the distinct tyre marks on the adjacent unworked section of roadway as the vehicle went into a yaw, this mark was left by Ms Paterson's vehicle as she approached the end of the second resealed section and before the vehicle returned (momentarily) to the left hand (correct) side of the road before rotating out of control and leaving the roadway on the right. 13The question that survives this analysis of the evidence highlights one of the identified facts in issue in the proceedings (and perhaps the central fact in issue on the issue of causation), namely why and how Ms Paterson's vehicle came to be on the incorrect side of the roadway in the second resealed section, 150m from where she entered the first section of reseal and within 60m (or thereabouts) of what ultimately proved to be the point of impact, if control was lost due to a loss of traction when she first encountered the reseal under speed in the first section. 14At or just after midnight on 20 August 2004 (ie 12 hours earlier) Ms Laura Skorulis was travelling on the same stretch of road but in a northerly direction. She was also involved in an accident where the vehicle she was driving left the road and struck a tree. She was also alone in her vehicle and there were no eyewitnesses. She survived the accident unharmed. Her account to police at the scene was largely consistent with her evidence on the voir dire. She returned to the scene the following day with her father and photographs were taken. This evidence allows the following conclusions to be drawn. 15At about 30 - 40m into either the first or the second resealed sections of Kingsdale Road travelling north, with the roadway at that point curving to the right and slightly uphill, Ms Skorulis felt the steering wheel moving back and forth in her hands. She was at that time travelling at the designated speed of 100kph. She was a regular user of the roadway and had not previously encountered difficulties traversing that stretch of road, neither had she encountered any road maintenance works in that stretch which involved the resealing and laying of surface aggregate. She attempted to correct the steerage but the vehicle veered to her left ultimately leaving the road, travelling in loose dirt and gravel for some distance before veering further left into open country and striking a tree. She travelled a further 300m before the vehicle came to rest. The attending police observed that the pictorial sign showing the potential for damage from loose gravel was positioned close to the commencement of the resealed section leaving Ms Skorulis little reaction time. They concluded that the accident was a result of loose gravel on the roadway and that Ms Skorulis was not at fault. 16In his evidence on the voir dire the defendant's expert said that having regard to photographs and his understanding of the fundamental mechanics underlying Ms Skorulis' vehicle leaving the roadway, her trajectory (which he said was typical for a vehicle that has failed to take a curve to the right) was best explained by her either entering a patch of inadequate friction (because of loose gravel), travelling at excessive speed for curvature of the road, over steering, or some combination of those three factors. He considered that there were few similarities and marked dissimilarities with what apparently happened in Ms Paterson's case. In particular, he saw no evidence in the Paterson case of any lateral displacement of gravel in the tyre tracks on the first sealed segment of the roadway consistent with a loss of traction, unlike the photographs showing the track of Ms Skorulis' vehicle along the shoulder of the roadway as she deviated off the sealed section. In addition, he drew attention to the fact that Ms Skorulis left the road within the curve, and on the outside of the curve, which is a typical path of a vehicle that has failed to take a curve for one or a combination of the reasons that he had identified. By contrast, in Ms Paterson's case it was his view that: ... she clearly succeeded in rounding the curve because in fact she left the road on the opposite side to the outside of the curve, she left the road on the same side as the inside of the curve but in fact she left the road some one hundred and fifty metres or one hundred metres after the curve on the righthandside of the road which is the same side as the inside of the curve so quite different, quite different vehicle dynamics involved. 17The plaintiffs' expert gave evidence that when comparing car accidents the enquiry is to look for sets, or subsets, of precipitating factors. He went on to say: In this case, in my opinion, both crashes were precipitated by a vehicle travelling at about the prevailing speed limit, entering a new section of seal, experiencing a reduced level of friction, losing control and no longer following their intended path, and ultimately crashing. From a crash point of view, how long an attempted recovery or loss of control occurs is not part of the crash cause. It is part of the drivers attempts to regain control. I have no doubt these crashes are identical precipitating factors. 18Senior counsel for the plaintiffs submitted that in circumstances where the experts disagreed as to whether there was evidence (or sufficient evidence) that Ms Paterson lost control or commenced to lose control upon encountering loose gravel in the first section of reseal whilst travelling at or near 100kph, and where she is not available to give evidence of her subjective experience of her loss of control at any point in the driving sequence from that point leading to the point of impact with the tree and, in particular, where it is the defendant's case that neither the presence of gravel nor the speed at which Ms Paterson was travelling or the adequacy of signage warning of the risks of speed can be shown to be precipitating causes of Ms Paterson's ultimate loss of control, then Ms Skorulis' experience of loss of control in similar if not identical circumstances on the same stretch of roadway could rationally affect (whether alone or in combination with other evidence) an assessment of the probability of those facts in issue. 19Senior counsel for the plaintiffs submitted that the two accidents are completely autonomous events in the sense that the mechanics of each and, in Ms Skorulis' case, her subjective experience of the loss of traction and whatever might be surmised to be her driver import, cannot inform in any rational sense the reconstruction of Ms Paterson's accident, much less whether there was any driver import on her part such as might explain her presence on the incorrect side of the road some distance from the end of the first section of reseal. He submitted that the reason that Ms Skorulis lost control of her vehicle and left the roadway is not contentious. He accepted that she experienced a loss of traction due to the presence of gravel on the roadway upon which she was travelling under speed (he made it clear however that it was not conceded that that the speed at which she was travelling exceeded a safe speed in the given circumstances). He also accepted that the evidence establishes that Ms Paterson experienced a loss of traction, as evidenced by the tyre mark at the end of the second section of reseal oriented as it is to the distinct tyre marks left in the adjacent unworked section travelling south. It is of course not the plaintiffs' case that gravel on the second patch was the initiating cause of the fatal loss of control but rather that control was initially lost in an earlier segment of the driving sequence, namely when she first encountered gravel upon entering the first section of resealed road. Senior counsel for the defendant submitted that nothing in Ms Skorulis' evidence, or the objective facts bearing upon her accident, could inform in any rational way how and why it was that Ms Paterson was on the incorrect side of the road some 150m from the commencement of roadwork when on the plaintiffs' case she lost control of her vehicle due to a loss of traction much earlier. 20The plaintiffs rely upon inferences arising from the evidence to ground a finding on the probabilities that there must have been driver input from Ms Paterson to explain the driving sequence which resulted in her being on the incorrect side of the road at the end of the second section of reseal after losing control in the first section of reseal. In the absence of evidence of any tyre tracks or marks on the intervening unworked section this must be so. The defendant's counsel submitted that to the extent that Ms Skorulis described some attempt to correct or retain control of her vehicle, it is entirely irrelevant to proof on the probabilities that Ms Paterson did the same, and that for this reason the evidence ought not be admitted. 21I am not persuaded that the relevance of Ms Skorulis' evidence is limited to proof of how and why Ms Paterson came to be on the incorrect side of the road at the end of the second segment of reseal. At a more fundamental level, the critical facts in issue include the extent to which gravel on the road coupled with a lack of speed restriction and inadequate signage were contributing or precipitating causal factors in both drivers losing control of their respective vehicles. 22I am satisfied that the fact that within twelve hours of Ms Paterson's accident another road user lost control of her vehicle because she experienced loss of traction in the presence of surface gravel under speed on a right hand curve has the capacity to bear upon proof of the probabilities of whether Ms Paterson's accident is capable of being explained by that mechanism. The fact that the dynamics of both accidents have points of dissimilarity does not render the evidence irrelevant to the purposes of admissibility. The test of relevance requires a broad interpretation resonant in the fact that the test is whether the challenged evidence could rather than would rationally affect probabilities of a fact in issue and the further recognition that it is sufficient that the connection to a fact in issue be indirect. The weight that might be afforded Ms Skorulis' evidence as the facts in issue crystallise in the course of the hearing remains an open question. ********** 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. Decision last updated: 24 February 2012