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SHIRE OF TOODYAY -v- WALTON [2007] WASCA 76 (10 April 2007)

Last Updated: 12 April 2007

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION :  SHIRE OF TOODYAY -v- WALTON  [2007] WASCA 76

CORAM : STEYTLER P

PULLIN JA

BUSS JA

HEARD : 19 DECEMBER 2006

DELIVERED : 10 APRIL 2007

FILE NO/S : CACV 145 of 2005

BETWEEN : SHIRE OF TOODYAY

Appellant

AND

LUCINDA WALTON

Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : COMMISSIONER ARCHER

Citation : WALTON -v- SHIRE OF TOODYAY [2005] WADC 209

File No : CIV 1265 of 2002, CIV 1266 of 2002

Catchwords:

Appeal - Torts - Negligence - Motor vehicle accident - Road curve with inadequate guide posts, misleading driveway marker and imperfect camber - Authority with statutory powers in relation to construction and maintenance of road - Duty of care to road users - Failure to take reasonable steps to inspect for dangers and avoid them - Causation - Contributory negligence - Respondent drove with insufficient attention and at excessive speed - Liability apportioned equally

Legislation:

Fatal Accidents Act 1959 (WA)

Result:

Appeal allowed in part

Category: B

Representation:

Counsel:

Appellant : Mr M H Zilko SC & Mr J Eller

Respondent : Mr K J Bradford

Solicitors:

Appellant : John Eller

Respondent : Bradford & Co

Case(s) referred to in judgment(s):

1 STEYTLER P: The respondent was seriously injured and her husband was killed in a car accident on 17 June 2001. The respondent was the driver of the car at the time. She blamed the appellant for the accident and consequently brought an action against it. The action was one for damages arising out of her own injuries and also under the Fatal Accidents Act 1959 (WA) in respect of the death of her husband. The action was heard by a Commissioner in the District Court who dealt with the issue of liability only. She found that the appellant was solely liable for the accident. The appellant appeals against that decision.

The evidence at trial and the Commissioner's findings of fact

2 The evidence led at the trial established that, on 17 June 2001, the respondent and her husband had visited the respondent's husband's parents. They had done so fairly regularly over a period of 16 years. Usually, the respondent's husband did the driving (some four to five times a year). Sometimes, the respondent drove (once or twice a year over the 16-year period). In recent times they had driven to the home of the respondent's in-laws more frequently. They had been there on each of the two weekends preceding the accident. On each of those occasions the respondent had done the driving. Their return journey took them along Woodendale Road in Toodyay. The respondent was consequently familiar with that road. She said that, when driving in Toodyay, she relied on the trees and the guide posts alongside the road as indicators of the direction of the road.

3 At the time of the accident, the respondent was approaching a right-hand bend. As the road begins to curve, it is intersected by a driveway from an adjoining farm. The driveway is on the left-hand side of the road when looked at from the direction in which the respondent was travelling. At the time, the curve was marked by two white guide posts. There was also a white driveway marker. All of these were on the respondent's left-hand side. The first of the guide posts was placed adjacent to, but slightly set back from, the road shortly before the start of the curve. Next came the driveway marker. This was 45 metres further on. It was set further back from the road than would have been the case if it had been intended to function as an additional guide post marking the curvature of the road. Then came the second guide post. This was 37.2 metres away from the driveway marker.

4 The respondent estimated that she was driving at a speed of between 60 to 80 kilometres per hour as she approached the curve (the speed limit was 110 kilometres per hour). The road is made of gravel. She described the circumstances leading up to the accident as follows (transcript 43):

"As I drove towards this curve I realised as I came up on the driveway that I had lined my vehicle up with the guide posts and I was concerned at the direction I was headed so I slightly adjusted my steering to the right. I felt the car slide, I took my foot off the accelerator and the car seemed to be out of control after that."

The respondent was unable to regain control of the car. It slid into a tree.

5 The guide posts with which the respondent had lined up her car were, as the Commissioner found, the first of the two guide posts to which I have referred and the driveway marker post. The respondent was adamant that she did not apply the brakes of the car. She said also that she made only a minimal adjustment to the steering of the car. There was no evidence that she was under the influence of drugs or alcohol or that she had been distracted in any way. The weather was fine. The car was in good condition.

6 Evidence given by an attending police officer, Senior Constable Hickey, established that the car had left a 45 metre skid mark to the left-hand side of the road and, after a break, a further 22 metre skid mark to the tree. These began from opposite the driveway. The marks showed that the wheels of the car had been on the correct side of the road, but close to the centre. Constable Hickey said that the skid marks travelled in a straight line, from which he inferred that they had been caused by the car braking. However, he conceded that he did not have the expertise to distinguish between a brake mark and one left by a car that had lost traction. A civil engineer, Mr Grant Johnston (who gave evidence on behalf of the respondent), expressed the opinion that the marks were "slide" marks rather than "skid" marks. The Commissioner found that Mr Johnston was better qualified than Constable Hickey and preferred his evidence in this respect.

7 Much of the evidence at the trial focussed on the positioning of the guide posts and on the geometry of the road where the accident occurred. Evidence upon which the Commissioner appears to have placed particular reliance was given by an engineer, Mr Geoffrey Cocks. He had substantial experience in the construction and design of roads, particularly gravel roads. He had attended the scene of the accident in December 2004. He said that the bend in the road had a curve radius of 380 metres. Under the Australian Standards, the recommended guide post spacing in such a case is 20 metres. The distance between the guide posts that were present was over 80 metres. If the driveway marker was to be treated as a guide post, and assuming that it had been placed on the correct line for that purpose, Mr Cocks said there would have been approximately twice the recommended spacing between it and the guide post on either side. Mr Cocks said that when he drove around the bend in the road in a four-wheel drive vehicle, he felt safe doing a speed of about 60 kilometres an hour (transcript 155).

8 Mr Cocks also said that the driveway marker looked like a guide post. He said that this, coupled with the fact that it was not in the correct line for a guide post, created some confusion and "difficulty in interpreting the road geometry coming up ahead". The Commissioner said that this observation accorded with common sense and was consistent with the evidence of the respondent, which she accepted in its entirety (at [24] and [23] respectively). The Commissioner also relied upon Mr Cock's opinion that the spacing of the guide posts was not safe (at [25]) and upon evidence that, for the length of the farm driveway, there was no vegetation lining the side of the road. She said (at [26]) that this last factor could have impaired the ability of the driver to gauge the curve of the road. The evidence had also established that the width of the driveway was 8 metres at the entrance to the farm gate but 40 metres where it met the road. Consequently, the Commissioner found (at [27]) that guide posts could have been placed within the 40 metre width of the driveway. She also said (at [27]) that, in any event, the placement of a guide post in the correct alignment on either side of the driveway would have been a significant improvement at a minimal cost.

9 The evidence at the trial established that the camber of the road was deficient at the site of the accident. A number of witnesses gave evidence in this respect. However, the Commissioner relied, in the end, only upon evidence given by Constable Hickey and Mr Johnston in this regard. Constable Hickey said that, as a car drove around the curve in the direction in which the respondent had been travelling, the road "comes off into what is called a negative camber, which means it leans away from the middle of the road". Mr Johnston said that, when a curve is correctly cambered, it leans into the curve with the consequence that, on a right-hand bend, the right wheels of the car should be lower than its left wheels. This allows part of the upward force brought about by the turn to be counter-balanced by the effect of gravity. That means that less frictional capacity is needed to keep the car from losing traction than in the case of a road where there is either no camber or a negative camber, in which event the car is significantly more likely to lose traction. He explained that a change in camber from positive to flat or to negative would cause a transient force that would make the car feel as if it were pulling upwards. He said that this might cause an overcorrection in steering.

10 Having reviewed all of this, and other, evidence, including a videotape of the scene filmed on the day of the accident and identified by Constable Hickey, the Commissioner made the following finding (at [41]):

"I find that at the point of the driveway, where the plaintiff lost control, the camber was flat instead of positive. That would have increased the chances that a correction in the direction of the curve would cause the vehicle to lose control as there would be less counter opposing force (namely gravity) than would exist if there was a positive camber. Further, the short space of negative camber, once the car had lost control, would have inhibited the plaintiff's ability to regain control. Again, that is because the plaintiff would not have been assisted around the curve by gravity, but rather there would have been an additional force pulling the car off the road."

11 Evidence was given on behalf of the appellant by Mr Andrew Smith, who had, at the relevant time, been the Chief Executive Officer of the appellant. He said that the appellant's budget was approximately $4.5 million per annum. Of that sum, an amount of just under $1 million was allocated to roads. The appellant received reports in respect of road conditions from maintenance grader operators and other employees and also complaints from the public. A "weighting" was put on each road as regards the need for required works. Roadworks were then carried out in accordance with the allocated weightings. Mr Smith said that, if the appellant was aware of anything that was inherently unsafe, it "generally reacted". He had had no report of any accident in the location when this accident occurred during the three years in which he had been Chief Executive Officer prior to the accident. He accepted that guide posts were not "overly expensive" and that the appellant kept a small supply in stock. When asked about the Australian Standards concerning guide posts, he said that these provided a general guideline only and that, while a new road would accord with those standards, an existing road might be left with unchanged guide posts for 30 or 40 years unless the road was "physically shifted, realigned or something occurred".

12 Mr Rodney Lloyd, who was, in 2001, a maintenance grader driver employed by the appellant, regularly graded Woodendale Road, amongst others, most recently about two weeks prior to the accident (transcript 105). He said that he had been provided with no training as regards the appropriate degree of camber for a road bend, or even as regards the direction in which the camber should go, but said that he had learned this from previous operators. He said that, if he had found a stretch of negative camber, he "would have had to have ... looked into it, maybe reported it ... " (transcript 110).

The Commissioner's conclusions

13 Relying upon the evidence and findings to which I have referred, the Commissioner reached the following conclusions.

14 She said (at [59] - [60]):

"In my view, the plaintiff primarily lost control of the vehicle due to the inadequacy of the guide posts. A significant contributing factor was the misleading effect of the driveway marker. I accept the plaintiff's evidence that she felt she was too far over and corrected slightly in the direction of the curve. At the same time that she made that adjustment, the car lost control. Accepting as I do the evidence of Mr Johnson, the need for the plaintiff to correct the path of the vehicle would have increased the outward force opposing the frictional force of the tyres on the road. I am satisfied on the balance of probabilities that that is what caused the plaintiff's vehicle to lose control. While not the primary cause, I am satisfied that the original driveway marker materially contributed to the cause of the accident. However, as I have noted, in my view the primary cause was the inadequacy of the guide posts. I am satisfied that, had there been a guidepost on either side of the driveway, this accident would not have occurred.



In addition, the flattening and then negative camber of the road on the curve would have made it more difficult for the plaintiff to regain control of the vehicle ... "

15 Next (at [62]), the Commissioner found that the curve posed a risk to road users because of the inadequacy of the guide posts, the misleading effect of the driveway marker and the imperfect camber. She said (at [63]) that the risks so created were reasonably foreseeable and (at [65]) that the appellant was obliged to take reasonable steps to ascertain the existence of the dangers posed. She said (at [66]), in this last respect, that the magnitude of the risk created by the inadequate guide posts was extremely high and that the magnitude of the risk in respect of the imperfect camber, while less, was still significant. She found (at [67]) that there was a high probability that a serious accident would occur.

16 The Commissioner then dealt with a submission that it was unreasonable to expect a Shire to inspect every corner and every road surface in its control and also with a submission that, because roads were graded three or four times a year, the appellant could reasonably expect that any problems would be reported by the grader drivers or, for that matter, anyone else who encountered a problem with a road. She said, in this respect (at [70]):

"However, there was no evidence that any of the grader drivers or staff members received training or instruction in what dangers to look out for, and how to detect them. It is true that some of the dangers would have been obvious regardless of training. A person driving around a bend with negative camber would be able to feel it. Similarly, inadequate guide posts would have been obvious to the ordinary motorist. However, if those matters are not specifically in mind, it is possible that they will be overlooked. Further, the chances of them being overlooked by the staff and the locals may be even greater. A person may not notice an absence of guide posts if they know precisely how the road bends due to experience."

17 Next, the Commissioner pointed out (at [71]) that there was no evidence of any competing or conflicting responsibility or commitments on the part of the appellant and that the evidence had established that the expense, difficulty and inconvenience to the appellant in taking steps to alleviate the danger would be relatively minimal. She accepted evidence given by Mr Lloyd to the effect that there were 300 kilometres of gravel roads in the Shire controlled by the appellant. She also accepted evidence given by Mr Cocks that to check the safety of these roads would require the availability of two people in a vehicle for two days. She said (at [73]) that the dangers to which she had referred were obvious and (at [74]) that four working days per year was not an unreasonable burden to impose upon a local authority.

18 She went on to find (at [77] - [78]) that the appellant ought to have placed additional guide posts and that its failure to do so showed a want of reasonable care for the safety of the respondent. As to the camber, she said (at [79]):

"In relation to correcting the camber of the road, there was evidence that that would take one or two days to achieve. While it is a little more difficult to conclude that this would be a reasonable thing to ask of the Shire, I am persuaded that it would be. However, in view of my finding that the accident was primarily caused by the inadequacy of the guide posts, it is unnecessary to determine that issue."

19 Finally, so far as the liability of the appellant was concerned, the Commissioner said (at [80]) that, if a two day inspection was considered to be unreasonable, the appellant would have been obliged, at the very least, to give its employees specific instructions to look out for imperfect camber and inadequate guide posts. She said that, if it was necessary to decide this, she would have found that action of that kind would have prevented the accident. However, she considered it unnecessary for her to make that decision.

20 On the issue of contributory negligence, the Commissioner said (at [92] - [93]):

"I find that the plaintiff's manner of driving was not in any way dangerous. It appears she was going between 60-80 kilometres per hour. When she realised that she had mistakenly aligned herself with the driveway marker instead of a guide post, she made a slight correction. At that time, the wheels lost their traction and she took her foot off the accelerator. She did not brake. Further, as I have previously indicated, she did not have such a degree of familiarity with the road that she ought to have known she should slow down. Further, I accept the plaintiff's evidence that she was looking at the guide posts and at the road, and was keeping a reasonable lookout.



Accordingly, I do not find the plaintiff to have been contributorily negligent."

Grounds of appeal

21 There are six grounds of appeal. These are prolix and argumentative. They run to six pages. Essentially, they come down to the following five propositions:

(1) The Commissioner erred in finding that the appellant owed to road users, including the respondent, a duty to erect guide posts on either side of the driveway, or to remove the driveway marker post or to alter the camber of the road (ground 4).

(2) If any such duty was owed, the Commissioner erred in finding that the appellant breached it (ground 5).

(3) The Commissioner erred in finding that the inadequate guide posts and position of the driveway marker were causative of the accident (grounds 1 and 2).

(4) The Commissioner erred in admitting, or placing any weight upon, the evidence of Mr Cocks, who lacked any relevant expertise (ground 3).

(5) The Commissioner erred in failing to find that the respondent's negligence was the sole cause of the accident or at least that she was guilty of contributory negligence (ground 6).

22 The respondent has lodged a notice of contention by which she contends that the Commissioner should have found, in addition to the findings of negligence made by her, that the appellant was negligent "in allowing a flat camber to exist opposite the driveway followed by a negative camber which developed on the road and [in] failing to remove such camber".

23 The most logical sequence seems to me to be that of addressing, first, ground 3, which impacts upon other grounds, then to deal with grounds 4 and 5 and the notice of contention before dealing, finally, with the issues of causation and contributory negligence raised by grounds 1, 2 and 6.

Ground 3 - Mr Cocks

24 The appellant contends that Mr Cocks had expertise only as regards the design and construction of roads, in particular the suitability of gravel material for road construction, and that he had no relevant experience in respect of the placement of guide posts or in respect of the length of time it would take employees of the appellant to inspect its road system for defects.

25 Mr Cocks holds a Bachelor of Civil Engineering Degree from the University of Western Australia and a Master of Science Degree in Civil Engineering from Purdue University in Indiana in the United States. He has been qualified for 30 years. For a substantial part of that time he was employed by the Main Roads Department of Western Australia (transcript 128 and 129). He has worked on the design and constructions of roads (transcript 130). He said that it had been necessary for him to be familiar with Australian Standard 1742.2, which, he said, was the general guide on road signs. He was also familiar with the "Unsealed Roads Manual and Guidelines to Good Practice" which, he said, he used quite regularly. He said that his knowledge and training equipped him to express opinions on various road surfaces (transcript 132). In the course of answering questions put to him, Mr Cocks mentioned that he had attended seminars on matters relating to road signs and road skid resistance (transcript 149). He had personal knowledge of road inspections in country areas, primarily from his work in the Kimberley Division of the Main Roads Department (transcript 149). He had, as I have said, attended the scene of the accident and driven around the curve in the road.

26 In these circumstances it seems to me to be plain that Mr Cocks was qualified to give evidence concerning the appropriate spacing of guide posts, including those on Woodendale Road. It also seems to me (contrary to a submission advanced on behalf of the appellant in this respect) that it was entirely proper for him to say, as he did, that his opinion in this respect was based "primarily" on the Australian Standard (transcript 154). It was obvious from this that he regarded the Standard as a reliable document (presumably resulting from collective experience and expertise) and that he also relied, at least to some degree, upon his independent experience. He was also qualified, by his training and experience coupled with his own assessment in driving around the curve, to express an expert opinion as regards the consequences, for safety, of the inadequate siting of the guide posts. Finally, he was qualified by his experience, particularly that in the Kimberley Division of the Mains Roads Department, to give evidence as regards the time it would take for employees of the appellant to inspect its roads in order to identify defects. I should add that no question was put to Mr Cocks in the course of cross-examination to the effect that he lacked the expertise to express the opinions that had been offered by him.

27 There is no substance to this ground.

Grounds 4 and 5 and the notice of contention - duty and breach

28 As I read her judgment, the Commission did not formulate a duty of the kind identified in ground 4. Rather, (at [56]) she quoted part of par [150] and the whole of par [151] of the judgment of Gaudron, McHugh and Gummow JJ in Brodie v Singleton Shire Council (2001) 206 CLR 512 at 577 - 578. Those paragraphs read, in full, as follows:

"The duty which arises under the common law of Australia may now be considered. Authorities having statutory powers of the nature of those conferred by the [Local Government Act 1919 (NSW)] upon the present respondents to design or construct roads, or carry out works or repairs upon them, are obliged to take reasonable care that their exercise of or failure to exercise those powers does not create a foreseeable risk of harm to a class of persons (road users) which includes the plaintiff. Where the state of a roadway, whether from design, construction, works or non-repair, poses a risk to that class of persons, then, to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk. If the risk be unknown to the authority or latent and only discoverable by inspection, then to discharge its duty of care an authority having power to inspect is obliged to take reasonable steps to ascertain the existence of latent dangers which might reasonably be suspected to exist.



The perception of the response by the authority calls for, to adapt the statement by Mason J in Wyong Shire Council v Shirt ((1980) [1980] HCA 12; 146 CLR 40 at 47 - 48), a consideration of various matters; in particular, the magnitude of the risk and the degree of probability that it will occur, the expense, difficulty and inconvenience to the authority in taking the steps described above to alleviate the danger, and any other competing or conflicting responsibility or commitments of the authority. The duty does not extend to ensuring the safety of road users in all circumstances ... In the application of principle, much thus will turn upon the facts and circumstances disclosed by the evidence in each particular case. "

29 Of course, the fact that harm is reasonably foreseeable, while a necessary condition for the existence of a duty of care on the part of the appellant, is not of itself sufficient: Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 at 555 [9] per Gleeson CJ; Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at 268 [35]; Sullivan v Moody (2001) 207 CLR 562 at 572 - 573 [25], 576 [42], 583 [64]. Other issues may intrude, such as the expense or difficulty inherent in taking remedial measures and competing or conflicting responsibilities or commitments: Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47 - 48 per Mason J; Mulligan v Coffs Harbour City Council [2005] HCA 63; (2005) 223 CLR 486 at 501 [50] per Hayne J. Moreover, the questions posed by Mason J in Shirt (at 47 - 48) are to be answered "not ... by looking back at what has in fact happened, but by looking forward from a time before the occurrence of the injury giving rise to the claim": Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 at 456 [105], [126] - [129] per Hayne J; Mulligan at 501 [50] per Hayne J.

30 It seems to me to be plain enough that the appellant, being an authority with statutory powers of the kind identified by the High Court in Brodie, owed the duty to which that court referred. The more relevant question, for present purposes, is whether it breached that duty. It is apposite, in that respect, to bear in mind what was said by Gaudron, McHugh and Gummow JJ in Brodie at [165] (in a passage also quoted by the Commissioner):

"Where the danger could not reasonably be suspected to exist, or could not be found except by taking unreasonable measures, generally there will be no breach of duty by the authority. On the other hand, there will be a breach of duty where an authority fails to take reasonable steps to inspect for such dangers as reasonably might be expected or known to arise, or of which the authority has been informed or made aware (Hodgson v Cardwell Shire Council [1994] 1 Qd R 357 at 362 - 363), and, if they are found, fails to take reasonable steps to correct them."

31 The particulars to each of grounds 4 and 5 essentially contend that there was no breach of duty. These assert that Woodendale Road was constructed before the appellant came into existence and that the appellant's system of inspection of roads under its authority, and repair of those roads, was reasonable in the circumstances (which include the fact that it has more than 300 kilometres of gravel roads within its boundaries). They also assert that there was no evidence that the appellant knew or could reasonably have suspected that there was a risk to road users arising out of inadequate guide posts, the position of the driveway marker or the camber of the road. This last proposition is said to be supported by the fact that there was no evidence of any previous accident on the curve or of any report by any person of the existence of a danger to road users.

32 In my respectful opinion, the Commissioner was right to find that the condition of the road at the scene of the accident was such as to create a foreseeable risk of harm to road users. I have mentioned that she accepted the evidence of Mr Cocks concerning the inadequate spacing of the guide posts and also concerning the confusion liable to be caused by the driveway marker post, which was offset from the line at which a guide post would have been placed. There was no evidence identifying precisely how far the guide post was offset and the photographs of the scene are not as helpful as they might be in this respect as the road widens near the entrance to the driveway so as to expand the turning circle into the driveway. However, it seems to me from the photographs, particularly exhibit P5.8, that the marker post may have been around one metre further offset than would have been the case if it had been a guide post marking the curve of the road. Whatever may be the position in that respect, the evidence of Mr Cocks (who had viewed the scene) was clear that the offset marker post, when coupled with the absence of sufficient guide posts, would have created confusion and some difficulty in interpreting the road geometry. He said, in this respect, that a motorist would not analyse whether the white post seen by him or her was a timber guide post or a white PVC post (which the marker post was). That opinion is supported by the evidence of Mr Brendan Watson, a technical officer employed by the Main Roads Department of Western Australia, who took some photographs of the accident scene. He said in effect that, when first shown the driveway marker post, he assumed that it was an older style of guide post. He mentioned that in some locations such guide posts were still in use.

33 Importantly, Mr Cocks' opinion that the positioning of the guide posts and the marker post was unsafe was, as I have said, derived in part from his own experience in driving on the road where it curved. He said, in this respect, (transcript 155) that the guide posts did not provide him with the visual clues that he would have got had there been an appropriate spacing. He also said (transcript 163) that the absence of additional guide posts, taken with the confusion created by the offset market post, "doesn't give the driver the information that the curve is going right".

34 In my respectful opinion the Commissioner was entitled to accept this evidence, coming as it did from an expert who had himself viewed the accident scene and driven through it in his car. While the suggestion was made during argument on the appeal (but not in any ground of appeal) that it would not have been practicable to have had additional guide posts as these would necessarily have narrowed the entry to the farm driveway, the Commissioner found, as I have said, that the driveway was only eight metres wide whereas the entrance was 40 metres wide, and that it was practicable to have placed additional guide posts on either side of the driveway entrance. That factual finding seems to me to have been open to her on the evidence and it has not been made the subject of any ground of appeal. She was also entitled to accept the respondent's evidence, which was essentially to the effect that she had been misled by the positioning of the posts, necessitating an adjustment of the car's steering to the right, which caused the car to slide. I have said that the Commissioner accepted and relied upon the evidence of Mr Johnston, to the effect that the need to adjust the steering would have increased the outward force opposing the frictional force on the tyres on the road.

35 The Commissioner was also entitled to accept evidence that the flattening and then negative camber of the road on the curve would have made it more difficult for the respondent to regain control of her car. Mr Edward Cooper, a technical officer employed by the Main Roads Department of Western Australia, said in evidence that the curve had a "fairly tight" radius with a "fairly substantial drop-off to the inside of the curve" and an inconsistent or irregular "tilt" or camber. I have mentioned that Constable Hickey said that, as the road moves into the right-hand bend in the direction in which the respondent had travelled, it comes off into a negative camber which, he said, meant that it leant away from the middle of the road towards the left-hand side of the road. I have also mentioned the evidence of Mr Johnston in this respect. However, it is worth quoting, in full, the following passage from his evidence (transcript 175):

"If you're driving along and you have superelevation or camber, part of the outward force is being accommodated by the effect of gravity ... If you suddenly lose that camber and you go into a level or a reverse camber section, you have a transient force applied to the vehicle which will tend to make the vehicle feel like it's pulling outwards because the effect of gravity is now gone and the entire effect of the lateral cornering is taken by the vehicle and the friction. What often happens is that force is transient. If you do testing, you see a spike where that force builds up and applies and then drops off again back to a static level. What often happens is a driver will respond to that instantaneous force; they will feel an outward movement, they will steer to the right. The force though is transient. A driver takes time to react. They might have reacted in a second, a second and a half. When they have reacted, the transient force has now gone but they have corrected to the right. So what happens is it becomes an over-correction and they effectively over-correct one way or the other, and that's what we see a lot of times. That's how over-corrections occur: they're in response to a transient force. The transient force dissipates. Our reaction means we react at the end of the transient force and suddenly we have over-steered."

Mr Johnston was asked whether or not there had been an over-correction in this case. He responded by saying (transcript 176):

"There was [sic] certainly steering manoeuvres that initiated in loss of traction."

36 Mr Johnston also said (transcript 197) that crashes are very rare events and that it was obvious that most vehicles successfully negotiated the bend in the road where the accident occurred. However, he said that locations could be identified in which the probability of an accident increases because of the surprise element. He plainly regarded the accident location as one of these.

37 In his evidence, Mr Cocks said that, while he accepted that Woodendale Road had been in existence for a very long time, it would have been re-sheeted with gravel many times since it was first constructed. He said that it was evident that gravel had been placed on the road at some time in the last five years, but he could not identify when that had happened during that period. He said that, when re-sheeting was done, that process can encompass a reshaping of the road so as to provide a better running surface. He also said (transcript 166) that "at the same time the grader driver is spreading ... [the gravel] and shaping it ... the expectation is that he would use that opportunity to correct the cross-fall or camber and the superelevation". He went on to say (transcript 168) that to make a significant alteration to the camber on the bend would have taken approximately two days from the time at which the gravel was delivered.

38 Next, in my respectful opinion, it was open to the Commissioner, on the available evidence, to conclude, as she did, that the magnitude of the risk created by the inadequate guide posts, particularly when coupled with the imperfect camber, was high. It was especially important, on a gravel road, to ensure that no sudden steering corrections were needed (even small ones) in circumstances in which, because of the bad camber, a slide or skid was likely to result in an accident: see, in this respect, McIntyre v Ridley District Council [1991] SASC 3009; (1991) 56 SASR 343.

39 It was also open to the Commissioner to accept that the inadequacy of the guide posts and the absence of positive camber would have been obvious on a road check. That being so, and having regard for evidence, accepted by the Commissioner, that the expense, difficulty and inconvenience to the appellant in taking steps to alleviate the danger would be relatively minimal, and also for the fact that there was no evidence of any competing or conflicting responsibility or commitments on the part of the appellant, it seems to me that the appellant breached its duty by failing to take reasonable steps to inspect for dangers of this kind and to avoid them. I have mentioned, in this respect, that, while grader drivers were expected to report problems, they received no training or instruction in respect of the dangers to be looked out for, or how to detect them. The Commissioner said, in this respect, (rightly in my respectful opinion) that if dangers of the kind that existed were not specifically in mind, it was possible that they would be overlooked. I should add that in my opinion there is no substance to the contention, advanced on behalf of the appellant, that, because Mr Smith was not cross-examined in respect of Mr Cocks' evidence concerning the steps that should have been taken to check and ensure the safety of roads under the appellant's control, that evidence should not have been relied upon. Mr Cocks expressed his opinions before Mr Smith gave evidence. It was open to counsel for the appellant himself to have sought Mr Smith's response to these opinions, had he considered it helpful to do so.

40 I am consequently not prepared to uphold either of grounds 4 or 5. Moreover, I would accept the contention advanced in the respondent's notice.

Grounds 1 and 2 - causation

41 In contending that the Commissioner erred in her findings on the issue of causation, the appellant submits that the respondent's evidence did not establish that she had been misled or confused by the driveway marker or by the absence of additional guide posts.

42 The respondent's evidence was, as I have earlier mentioned, that, when driving in Toodyay, she relied, in assessing the "shape" of the road ahead, on the trees and guide posts along the side of the road. She said that, on the day of the accident, she had been driving at a speed of between 60 and 80 kilometres per hour when approaching the curve and, as I have said, that she "had lined ... [her car] up with the guide posts and ... [that she] was concerned at the direction ... [in which she] was headed", with the consequence that she adjusted her steering to the right, at which point the car began to slide. She said that the guide posts to which she had referred were those "that are prior to the driveway and just after the driveway and going round the bend" (transcript 54). In my opinion, the Commissioner was right to infer from what the respondent said that she was referring to the two guide posts and the marker post, which she had treated as if it was a guide post. There is otherwise no sensible way in which her evidence that she had been obliged to adjust her steering because she had lined her car up with the posts can be understood. She went on to say, in this respect, (transcript 56) that, probably, "the main concern, the reason for adjusting my steering, was the guide post that I had been looking at going round the bend" and that "I realised that I had followed the guide posts and so I adjusted any steering because I wasn't going to make it around the bend". In my opinion, having unreservedly accepted this evidence, it was open to the Commissioner to find that the respondent had been misled or confused by the positioning of the guide posts and the driveway marker post, causing her to misread the geometry of the curve in the road. In my opinion it was also open to her to find that it had been practicable to place an additional guide post on either side of the farm driveway and that the omission materially contributed to the accident.

43 The respondent said (transcript 52) that she adjusted her steering at the point at which the farm driveway intersected Woodendale Road. She also said (consistently with the evidence concerning the slide marks) that she was then "more towards the centre of the road' and that she "felt the back of the car slide" (transcript 54). When the respondent's evidence is taken together with that of Mr Johnston as regards the effect of a steering correction on traction, it provides the necessary support for the finding that the element of causation has been satisfied, in the sense that the appellant's negligence, as found by the Commissioner, materially contributed to the accident: March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 at 514.

44 I should add, in this respect, that it seems to me also to have been open to the Commissioner to accept, as she did, that the inadequate camber of the road would have made it more difficult for the plaintiff to regain control of her vehicle. She went on to say (at [80]) that, if it was necessary for her to decide upon this basis, she would have found that an instruction to look out for imperfect camber, leading to the remedying of that defect at the accident site, would have prevented the accident in this case. In my opinion, in the light of the evidence to which I have referred this omission also materially contributed to the accident: see McIntyre at 349.

45 I am consequently not prepared to uphold either of grounds 1 and 2.

Ground 6 - contributory negligence

46 As will be apparent, the respondent's evidence established that she was reasonably familiar with Woodendale Road, having herself driven along it once or twice a year for 16 years and having herself driven on it on each of the two weekends that preceded the accident. It will also be apparent that, in addition, she had been a passenger in vehicles driven along that road some four to five times a year over the 16 year period. Having previously negotiated the curve successfully on each of the prior occasions upon which she had herself driven along the road, and having had many opportunities to take note of its course and geometry notwithstanding the siting of the guide posts and the marker post, the inference seems to me, with due respect, to be overwhelming that the respondent had not been sufficiently attentive on this occasion. Although, as I have said, the Commissioner was entitled to accept her evidence that she had lined up her car with the marker posts, the respondent should have appreciated, from her prior experience with the road, that the curve was more acute than was indicated by those posts. Her failure to bear that in mind upon this occasion can only be ascribed to inattention.

47 It also seems to me that the speed at which the respondent had been travelling at the time of the accident was excessive. I have said that Mr Cocks considered that a safe speed, for his four-wheel drive vehicle, was around 60 kilometres per hour but that the respondent said that she had driven her car at between 60 and 80 kilometres per hour. It is noteworthy, in this respect, that when the respondent was interviewed at the hospital by Constable Hickey, she told him that she believed that she had been travelling at about 80 kilometres per hour.

48 In these circumstances, I consider that, while the absence of additional guide posts and the deficient camber of the road each played a part in causing the accident, the respondent's own negligence in failing to keep a proper look out and in driving too fast was a contributing factor. In my respectful opinion, the respondent was sufficiently familiar with the bend not to have mistakenly aligned her car, had she been paying due attention. She was also sufficiently familiar with it to know that she should turn the corner at a more moderate speed.

49 The making of an apportionment of responsibility in a case such as this involves a comparison of the respective culpability of the parties, in the sense of their respective degrees of departure from the standard of care that would have been adopted by a reasonable person, and also of the relative importance of the acts of each of them in causing the damage:

Pennington v Norris (1956) 96 CLR 10 at 16; Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 at 494. In my opinion, the whole of the conduct of each of the parties was such that their degrees of culpability and the relative importance of their acts in causing the damage are difficult to separate. I would accordingly have apportioned liability between them equally.

50 I would consequently uphold ground 6.

Conclusion

51 It follows that I would allow the appeal and set aside the judgment of the Commissioner, but only upon the ground that she erred in failing to apportion liability between the parties. I would consequently substitute for the judgment of the Commissioner one to the effect that the appellant is liable for half of the damages that are properly claimable by the respondent.

52 PULLIN JA: On 17 June 2001, between midday and 1 pm, the respondent drove too fast on a winding gravel road. The car left the road and crashed into a tree. Her husband, who was a passenger, was killed and the respondent was injured. The respondent was familiar with the road because her late husband's parents lived in Toodyay, and for 16 years before the accident the respondent and her husband had visited his parents and driven on the road on a regular basis. The respondent estimated that she had driven on the road once or twice a year for 16 years and, on the two weekends before the accident, she had driven along the road. The respondent sued the appellant Shire, alleging that it was negligent and was liable for the respondent's injuries. The Commissioner found for the respondent.

53 In my opinion, there was no negligent act or omission on the part of the Shire which caused the respondent to lose control of her vehicle or caused her injuries. In my opinion, the Shire's appeal should be allowed and the action should be dismissed.

Evidence of speed

54 The respondent gave evidence that she was travelling between 60 and 80 kilometres per hour when she lost control of the car.

55 Constable Hickey was called by the respondent. He prepared three documents regarding the accident. The first was a set of notes made on the day of the accident when he attended the accident site. The second was a memorandum to the acting sergeant in charge of the investigation

which was dated 19 August 2001 and the third was an attending officer's report which has a date at the foot of the second page "1-9 to 30-9-01" which means that the report was prepared or at least completed on or after 30 September 2001.

56 By the time Constable Hickey had completed his memorandum dated 19 August 2001, he had interviewed the respondent at the Northam Hospital. His report reads:

"Lucina Walton when interviewed at the hospital by myself stated she thought she was travelling at about 80 kilometres per hour."

57 Then, in the attending officer's report which was prepared or completed over a month later, there is a portion which reads:

"Speed travelled not known. Driver states remembering doing 60 kmh."

58 Constable Hickey was cross-examined about this discrepancy. He said that he interviewed the respondent only on one occasion and, after having the documents put to him, finally agreed that he was "happy" with the conclusion in the 19 August 2001 report that the respondent did state at the hospital that she was travelling at 80 kilometres per hour, meaning, in the context of the cross-examination, that the respondent did tell Constable Hickey that she was driving at 80 kilometres per hour. The attending officer's report prepared later and referring to 60 kilometres per hour was therefore incorrect. There was no re-examination on this point.

What was a safe speed for the conditions?

59 The respondent gave evidence that she felt that she was travelling at a safe speed. It is hardly likely that she would say otherwise if she were to maintain the action. The evidence to which I will refer under this heading and the next heading reveals that it was self-evident that she was not driving at a safe speed.

60 The respondent retained an expert engineer, Mr Geoffrey Colin Cocks. He had worked for the Main Roads Department for several years. He was retained to examine the site and to report on it. He gave evidence that, as part of his examination, he drove the road and formed a view about what was a safe speed to drive through the section of the road where the accident happened. He expressed the opinion that 60 kilometres per hour was a safe speed to drive through the area. His evidence was not contradicted or challenged. I would therefore conclude that 60 kilometres per hour was a safe speed to drive through the area where the accident happened.

At what speed was the respondent travelling and was it unsafe for the conditions?

61 This Court is required to review the evidence and to form its own view if there is no particular advantage which the trial Judge had at the trial. In my opinion, this Court is in as good a position as the trial Judge to draw conclusions from what was entirely uncontradicted evidence.

62 As well as evidence of speed from the respondent and Constable Hickey, it is necessary also to take into account the fact that the vehicle skidded for 67 metres (45 metres on the road and then 22 metres off the road) during which it rolled over and collided with a tree. The car evidently struck the tree with considerable force. This is revealed by the video of the car and the scene taken shortly after the accident and which became an exhibit. The force of the impact with the tree and with the ground while rolling badly buckled the whole chassis of the car and crushed the roof of the vehicle down onto the occupants. Constable Hickey confirmed this in his August report. The video shows the impact mark on the trunk of the tree. What is evident therefore, is that after a 67 metre slide, the vehicle was still travelling with sufficient force to damage the tree and the vehicle.

63 All this leads me to conclude and that the respondent was driving closer to 80 kilometres per hour rather than 60 kilometres per hour. She was therefore driving too fast for the conditions; conditions she was entirely familiar with. The conditions were revealed in photographs, the evidence of Constable Hickey, a Main Roads Department officer and reports from experts who later examined the site. The photographs of the site were taken by an articled clerk employed by the respondent's solicitors in 2004. An engineer, Mr Grant Johnston, inspected the site in January 2003. Mr Cocks also examined the site well after the date of the accident. His inspection was on 7 December 2004. Constable Hickey's observations were made on the day of the accident and Mr Ed Cooper, the Main Roads Department employee, saw the road within three weeks of the accident. His evidence is referred to below. There was evidence that the road was graded up to four or five times a year and this could have affected the road geometry. As a result, the photos and the evidence of Mr Johnston and Mr Cocks must be examined with care. I note, however, that there is no evidence of any substantial change in road geometry.

The respondent's pleaded case

64 There were a number of allegations of negligence levelled at the Shire. It is not necessary to set them all out because only two are now relevant. One of them, which was the allegation upheld by the Commissioner, is sufficiently captured by quoting the particulars of negligence appearing in par 6 of the statement of claim. They relate to the guide posts and a driveway marker post. These particulars read:

"6.9 [the appellant] caused, allowed or permitted a white marker to be placed and/or remain along the outer curve of the right-hand bend, misaligned with other guide posts along the right-hand bend ...



6.14 failed to place sufficient guide posts on the road to warn of the right-hand bend; ...



6.15 placed insufficient guide posts on the road to warn of the right-hand bend ..."

65 The other allegation was about allegedly deficient camber, or "super-elevation", on the curved section of the road near where the accident occurred, and after the place where the respondent lost control of her car.

The Commissioner's reasons

66 The Commissioner upheld the allegations concerning the guide posts. The Commissioner's reasons concerning the camber are confusing, but in my view the Commissioner did not ultimately find that the appellant was liable for the injuries because of the allegedly deficient camber. However, the issue concerning the camber remains live on this appeal because of a notice of contention filed by the respondent.

Duty of care to road users exercising reasonable care for their own safety

67 There is no doubt about the formulation of the duty of care which the appellant owed to road users. An authority having statutory powers to design or construct roads, or carry out work or repairs on them, is obliged to take reasonable care that their exercise of, or failure to exercise, those powers does not create a foreseeable risk of harm to road users. Where the state of a roadway, whether from design, construction works or non-repair, poses a risk to that class of persons, then to discharge its duty of care an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk: Brodie v Singleton Shire Council (2001) 206 CLR 512. This duty is not, however, unqualified. The duty does not require that the road be safe in all circumstances. The duty is owed to "users exercising reasonable care for their own safety": Brodie at [163]; Vairy v Wyong Shire Council (2005) 223 CLR 422 at [80].

Guide posts and driveway post

68 In determining whether the appellant breached its duty of care in relation to the guide posts, the Commissioner was obliged to determine what, in the particular circumstances, a reasonable roadway authority would do by way of response to the alleged risk. See Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47. It is hard to accept that a driver as familiar with the road as the respondent was would be watching only the guide posts and not the road, or that it was reasonable to do so. However, I will proceed by accepting the finding that this is what she did and that it was reasonable to watch the posts. Accepting that the posts were misleading to a driver, the question then is what the appellant could have done in the circumstances.

69 There is no doubt that the Australian Standards specify as "best practice" guide posts at 20 metre intervals. The Australian Standard does not purport to require guide posts at 20 metre intervals regardless of the circumstances, and Mr Cocks conceded that to be so. In this case there was a difficult conjunction of circumstances. The road, viewed from the direction the respondent was travelling at the time of the accident, contained a right-hand curve. At some point in that curve there was a crest of a hill. Joining the road on the left-hand side was a farm track belonging to farmer Mackay.

70 As a practical and entirely sensible safety measure, someone - presumably the appellant - had widened the road on the side leading to the farm track. In the city, with concrete kerbs and bitumen and white lines, this widening would be clearly delineated and called an off-ramp. An off-ramp allows traffic, leaving the road and about to make a turn off a road to the left, to move into the off-ramp and slow down before making the turn. By slowing down in the off-ramp, traffic travelling behind is not impeded in its movement along the road. The road widening in this case may be called an off-ramp even though there were no lines to precisely delineate its boundaries. The existence of the off-ramp was particularly important in the circumstances because, if there had been no off-ramp, then the driver of a car travelling on the road behind a person slowing to turn left into farmer Mackay's driveway, may have been tempted to overtake the slowing vehicle. To overtake in circumstances where there was a curve and a crest concealing oncoming traffic would be to risk a head-on collision. The existence of the off-ramp or road widening was therefore a very important safety feature.

71 The outer or left-hand border of the road viewed from the north did not run in a smooth or regular arc. The arc was interrupted and enlarged by the off-ramp. Travelling from north to south, there was a guide post before the start of the off-ramp, then 45 metres further south was the driveway post marking the northern boundary of farmer MacKay's driveway and 37.2 metres further south again was another guide post This last guide post was therefore installed as soon as possible past the southern boundary of farmer MacKay's driveway. A photograph looking back in a northerly direction, from about farmer MacKay's driveway and towards the first guide post (ie to the north of the driveway post), suggests that the first guide post was about at the commencement of the off-ramp. That being so the off-ramp was about 45 metres in length. Farmer Mackay's driveway was about 40 metres wide (or 37.2 metres wide if regard is had to the distance between the driveway post and the next guide post). The driveway post was naturally located on the outer curve of the off-ramp and not in the same curve as the guide posts. There was no evidence about how far off that curve it was set, but it is fairly obvious from the photographs that it was on the edge of the off-ramp and therefore about the width of the off-ramp from the arc made by the outer left hand curve of the road (assuming the off-ramp did not exist).

72 From this it is clear that it was impossible for the appellant to have installed guide posts at 20 metre intervals in the arc formed by the outer left hand curve of the road (assuming the off ramp did not exist). Mr Cocks agreed that this was so. To have put guide posts at 20 metre intervals would have been to put guide posts in the off-ramp and in the middle of or at least in some location within farmer Mackay's driveway. Not only would that impede ordinary cars or trucks from using the off-ramp or farmer Mackay's driveway to some degree, but it would substantially impede typical farm machinery such as headers or spray equipment attempting to travel into the driveway. (The gateway some distance off the road was eight metres wide (see [27]) which suggests that the driveway was set up in order to permit access to farm machinery).

73 It would have been impossible or rather impractical to relocate the driveway post so that it was in the same curve alignment as the guide posts. To have done so would have been to put it in the notional boundary between the off-ramp and the road itself. Given that the road was simply widened with no marked lanes, the post would then appeared to have been installed in the roadway and have been a hazard for traffic (keeping as far left as possible) when rounding the dangerous curve in the road.

74 The Commissioner's reasons read (at [22] and [25] - [27]):

"22 Further, the original driveway marker had the appearance of a guide post. Unfortunately, it was not in line with the previous guide post, nor where it should have been placed were it a guide post. Rather, it was set back from the road. A driver approaching the right hand bend could be misled by that marker into thinking the road went slightly to the left, and it could also disguise the fact that the bend was there at all. It is clear from the plaintiff's evidence, which I accept, that the plaintiff was misled by that marker. While she had previously been on that road and had driven it on occasions herself, I do not think that the frequency over that period of time was sufficient to give her such a degree of familiarity with the road that would mean she should not have been misled by the guide posts or that she in fact wasn't.



...

25. Mr Cox expressed the opinion that the spacing of the guide posts was not safe. He drove the road himself and said 'the guide posts simply didn't provide me with the visual clues that I would have got if there had been an appropriate spacing'. He said that was his opinion based on what he saw leading up to the curve, and that his opinion was not influenced by the camber of the road at all. That was significant in light of the fact that the camber may have changed between the date of the accident and the time that Mr Cox saw the scene, but the spacing of the guide posts had not (apart from what appeared to be the addition of a second driveway marker). However, in light of the plaintiff's evidence, which I accept, that she was misled, it is unnecessary to rely on this opinion.
26. I should also note that, for the length of the driveway, there was no vegetation lining the side of the road. This could also have impaired the ability of the driver to gauge the curve of the road.
27. While the width of the driveway when it met the road was 40 metres, it was 8 metres at the entrance to the gate. Accordingly, guide posts could have been placed within the 40 metre width of the driveway. In any event, even placing a guide post in the correct alignment on either side of the driveway would have been a significant improvement. The cost would be minimal."

75 The Commissioner does not seem to have appreciated that it was not possible to put a guide post "in the correct alignment" on the side of farmer Mackay's driveway where the off-ramp existed. The learned Commissioner erred in her finding and also erred in concluding that "guide posts could have been placed within the 40 metre width of the driveway". With respect this was entirely impracticable. In my opinion there was no negligence on the part of the Shire in failing to do what was impracticable for it to do. I would therefore uphold ground 4.

Camber

76 The respondent contends that the Commissioner should also have found that the appellant was negligent in "allowing a flat camber to exist opposite the driveway followed by a negative camber which developed on the road and failing to remove such camber".

77 The Commissioner found that a risk of injury was posed due to the imperfect camber [62]. The Commissioner concluded that the risk of injury was foreseeable [63]. She concluded that the Shire was obliged to take reasonable steps to ascertain the existence of the dangers posed by the imperfect camber [65]. The Commissioner concluded that the expense, difficulty and inconvenience to the authority in taking steps to alleviate the danger would be relatively minimal [71]. However, the Commissioner's further conclusions were confusing.

78 At [79] the Commissioner said:

"In relation to correcting the camber of the road, there was evidence that that would take one or two days to achieve. While it is a little more difficult to conclude that this would be a reasonable thing to ask of the shire, I am persuaded that it would be. However, in view of my finding that the accident was primarily caused by the inadequacy of the guide posts, it is unnecessary to determine that issue."

79 Then at [80] the Commissioner said:

"I agree that if the two day inspection was considered to be unreasonable, the Shire would have been obliged to, at the very least, give such instructions as part of the reasonable steps it ought to have taken. The issue that would then arise is whether those steps would have prevented the accident in this case. This would, of course, depend on whether the staff and grader operators actually followed those instructions. If it was necessary to decide, I would find that that action would have prevented the accident in this case, albeit with some hesitation. However, in light of my earlier findings, it is not necessary to reach a view in relation to that issue."

80 The concluding sentences in those two passages indicate that her Honour was not making a finding that this deficient camber caused the accident. The uncertainty created by what preceded each of those sentences gave rise to some uncertainty in the minds of the parties. In case the reasons were read as meaning that the court found the appellant was negligent in relation to the camber, the appellant appealed against that finding. In case the reasons were read as meaning the appellant was not negligent in relation to the camber, the respondent filed a notice of contention.

81 The respondent's notice of contention read:

"Kindly take notice that the Respondent contends that in addition to the findings of negligence by the Learned Commissioner, the Learned Commissioner should also have found that the Appellant was negligent in allowing a flat camber to exist opposite the driveway followed by a negative camber which developed on the road and failing to remove such camber."

82 What the Commissioner said about the camber (set out above), and what the respondent says in its notice, contains an implicit assumption that the deficient camber on the road caused the respondent to lose control. That is not what the evidence reveals. In view of the uncertainty in the reasons, I will consider the evidence on the point.

83 Constable Hickey observed that there were marks on the road, which he described as skid marks, which were 45 metres long, and then further skid marks 22 metres long leading to the tree with which the vehicle collided. He was asked about his observations concerning the shape of the road and particularly the shape of the road following the entry into farmer Mackay's farm. The transcript reveals the following:

"BRADFORD, MR: The road goes from north to south direction ?---Okay.



that the vehicle was travelling?---If you're travelling south, then the entrance runs off to the left hand side.



Were there any observations of the road surface? Without getting into any measurements - which I will take you to in a minute - that you made, at the point where the driveway joins the bend?---The only observation from memory there was - it was harder. It was a hardened area, obviously where vehicles had been going to and from the property.



Yes?---It wasn't gravel on the road there, or much gravel.



After that were you able to observe the shape of the road following this entry?---Again, as you come southbound, the road - as you're going around the right-hand bend, it comes off into what's called a negative camber, which means it leans away from the middle of the road.



Yes, towards which side of the road?---Towards the left hand side of the road.



So the camber of the road, you are saying, leans towards the left?---That's correct.



Leading up to where the accident occurred?---That's correct."

84 The question "leading up to where the accident occurred?" seems to be a reference to the point where the vehicle collided with the tree rather than where the vehicle first went out of control. This became clear at t/s 89 from the following exchange concerning the skid marks that Constable Hickey observed:

"And to the best of your recollection can you remember where approximately they started and where approximately they finished in relation to the driveway you mentioned earlier?---Okay. The skid marks basically went from the driveway



From opposite the driveway?---From opposite the driveway more into - close to the middle of the road, to the centre of the road.



While you are there, when you say 'more to the middle of the road,' if we had an imaginary line in the middle of the road where would the right hand wheels have been?---Okay, very close to the centre of the road but they weren't over to the incorrect side of the road, so they were on the correct side of the road very close to the middle.



And you say that's where they commenced?---That's correct.



And then ended up - in what direction did they go? Did they go in a haphazard or straight direction towards the left?---I've got here '45 metre skid to left hand side of the road,' so they've gone from the middle of the road basically going directly to the left hand side of the road. There's obviously a break in the skid mark because then I've got '22 metre skid mark to the tree.'



Okay. Now, if I ask you about the 45 metre skid mark and ask you in relation to your previous comment about the negative camber, where was the 45 metre skid mark in relation to the negative camber?---The 45 metre skid mark would actually go into the negative camber. I'm not sure - I don't actually have a distance as to the break in skid marks but the 45 would go into the negative camber and then the 22 metres obviously goes from a point that would be still in the negative camber to where they finish at the tree."



THE COMMISSIONER: I take it from that, senior, that you're saying the 45 skid mark started before the negative camber?---Yes."

85 It is therefore clear that, based on Constable Hickey's evidence, the respondent lost control of her vehicle before she reached the section of "negative camber". Mr Johnston, an engineer, gave evidence. His inspection was not made until January 2003 (with a further inspection in June 2005). His evidence was that the camber was correct up until farmer Mackay's driveway; that it was incorrect at the location of the driveway and then correct again after the driveway. If the conditions were not much altered by grading between 2001 and 2003, then this corroborates Constable Hickey's evidence that the camber was not deficient before farmer MacKay's driveway.

86 A Mr Ed Cooper was a technical officer employed by the Main Roads Department and who happened to be in the area on 6 July 2001. He was with a traffic officer looking at another and unrelated issue, but also attended the scene of the accident and prepared a memorandum for the departmental file. His memorandum read (excluding material not relevant to the allegations of negligence in the appeal):

"Observations of this section of road and in particular the southern [second] curve involving the accident revealed:-



...

• excessive and inconsistent crossfall of pavement through the southern curve."

87 He explained this further by explaining that there was "a fairly substantial drop off to the inside of the curve". His complaint was therefore that there was more camber than he would expect on the inside lane of the curve. The camber of the right-hand side of the road was "excessive". He gave no evidence of observing a negative camber. The road was not unusual for a country road according to Mr Cooper. He was an experienced Main Roads Department surveyor.

88 However, even if the evidence of Constable Hickey that there was some negative camber on a small section of the road is accepted, this does not constitute negligence on the part of the Shire. To require the camber to be perfect on all sections of a gravel road, which has to be regularly graded, is an unreasonable standard to impose on the appellant. Although the grader driver was not trained, it appears that he did install the camber as would be expected save for one section. The road had been in existence for many years. No accident had ever occurred at this location. This means that road users for many years, exercising reasonable care for their own safety, were able to safely negotiate the curve in the road. The respondent had done so many times before the accident. She did so on the two weekends before the accident. The only explanation for the accident was the respondent's excessive speed. The appellant was not negligent because it did not provide road conditions for a driver who drove too fast and ignored the known conditions. The respondent's knowledge of the conditions included knowledge of the camber. Her Honour twice said that the absence of a positive camber was "obvious" (see [70] and [75]). At [70] she said that "A person driving around a bend with negative camber would be able to feel it": This was said in the context of whether or not a grader driver who had received no training or instruction would be able to detect the lack of camber, but it must apply equally to a driver familiar with the road.

89 However, if that conclusion is wrong, then the negative camber did not cause the accident. According to Constable Hickey, the vehicle was out of control before the portion of road that had negative camber was reached.

Could the camber have been a material contribution to the continued motion of the vehicle once the respondent lost control?

90 At [60] the Commissioner said:

"In addition, the flattening and then negative camber of the road on the curve would have made it more difficult for the plaintiff to regain control of the vehicle. In McIntyre v Ridley District Council [1991] SASC 3009; (1991) 56 SASR 343, King CJ said at 121 "It was not proved that the dangerous camber contributed to the initial loss of control but, to my mind, its tendency to take the vehicle off the road rather than to keep it on the road, must have materially contributed to the failure of the vehicle to stay on the road after the initial loss of control and the vehicle leaving the road and tumbling down the embankment. However influential the other factors in the complex might have been, I feel unable to treat the unfavourable camber as having no causal connection with the final result. It seems to me that where so significant a hazard forms part of the complex of factors producing the final result, a just and reasonable application of the principle of causation requires that that factor be regarded as a contributing cause." With respect, those comments are equally applicable to the facts in this case. However, it is strictly unnecessary to make that finding, as, in my view, the inadequacy of the guide posts materially contributed to the accident. If, therefore, that inadequacy was due to the negligence of the defendant, the plaintiff has established causation."

91 In my opinion, the camber did not materially contribute to the accident, and there is no evidence that if there had been no negative camber that the vehicle would not have continued on to crash into the tree. The appellant was driving at a speed in circumstances where, by making only a slight adjustment, she lost control of her vehicle and slid on the

gravel. There was no evidence from experts suggesting any different outcome if the camber had been any different. The loss of control and the sliding of the car over 67 metres, and the damage done when the car hit the tree, is testament to a conclusion that in all probability the section of negative camber was irrelevant after the car went out of control.

92 This case is quite different from McIntyre v Ridley District Council [1991] SASC 3009; (1991) 56 SASR 343. In McIntyre's case, there was a newly created bend in the road and negligent failure to erect an advisory speed sign, as a result of which the appellant, who had never driven on the road before, entered the curve at too high a speed and, having done so, the deficient camber was just one aspect of the complex of factors which led to the crash of the car and the injuries. The Ridley District Council's negligence was responsible for the excessive speed at which a driver, unfamiliar with the road, entered the bend in the road.

93 In this case the respondent, who was familiar with the road, drove at excessive speed and lost control at a point where there was no deficiency in the camber. Given the slide marks and the evident force with which the vehicle struck the tree, it is impossible to conclude on the balance of probabilities that, if the road had been perfectly configured, the accident would not have happened. The court said at [80] that "with some hesitation" if steps had been taken (in effect to install the correct camber) that this would have "prevented the accident". The Commissioner had no advantage which this Court does not have on this point. There was no evidence to support the conclusion; the evidence leads inferentially to the opposite conclusion.

94 I would dismiss the notice of contention, uphold that part of ground 4 which contends that the court erred in finding that the appellant breached its duty of care in failing to alter the camber and, in the alternative, uphold ground 2 insofar as it alleges that the court erred in finding that the deficient camber caused the accident.

95 Like the President, I would dismiss ground 3.

96 BUSS JA: I agree with Steytler P, for the reasons he gives, that the appeal should be allowed and the judgment of the learned Commissioner set aside, but only on the ground that her Honour erred in failing to apportion liability between the parties. I also agree with the President that a substitute judgment should be entered to the effect that the appellant is liable for half of the damages that are properly claimable by the respondent. I have some additional observations in relation to the appeal, which are set out below.

97 In Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512, the High Court held that the liability of a highway authority was not to be determined by whether the case involved misfeasance rather than non-feasance, but should be treated as covered by the modern law of negligence. The duty of care of a highway authority, whether the case involves misfeasance or non-feasance, is to take reasonable care that the exercise of or failure to exercise the powers of the authority does not create a foreseeable risk of harm to road users. Gaudron, McHugh and Gummow JJ said, at 577 [150]:

"The duty which arises under the common law of Australia may now be considered. Authorities having statutory powers of the nature of those conferred by the [Local Government] Act upon the present respondents to design or construct roads, or carry out works or repairs upon them, are obliged to take reasonable care that their exercise of or failure to exercise those powers does not create a foreseeable risk of harm to a class of persons (road users) which includes the plaintiff. Where the state of a roadway, whether from design, construction, works or non-repair, poses a risk to that class of persons, then, to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk. If the risk be unknown to the authority or latent and only discoverable by inspection, then to discharge its duty of care an authority having power to inspect is obliged to take reasonable steps to ascertain the existence of latent dangers which might reasonably be suspected to exist."

Their Honours then considered, at 577 - 578 [151], issues bearing upon the standard of care (that is, the measure of the discharge of the duty of care) which may arise in relation to a highway authority:

"The perception of the response by the authority calls for, to adapt the statement by Mason J in Wyong Shire Council v Shirt ((1980) [1980] HCA 12; 146 CLR 40 at 47 - 48), a consideration of various matters; in particular, the magnitude of the risk and the degree of probability that it will occur, the expense, difficulty and inconvenience to the authority in taking the steps described above to alleviate the danger, and any other competing or conflicting responsibility or commitments of the authority. The duty does not extend to ensuring the safety of road users in all circumstances [footnote omitted]. In the application of principle, much thus will turn upon the facts and circumstances disclosed by the evidence in each particular case."

Also see Leichhardt Municipal Council v Montgomery [2007] HCA 6 per Gleeson CJ at [11], [26].

98 A highway authority will be liable in negligence only if the damage which the plaintiff has suffered was caused by the authority's negligent act or omission. It is not necessary that the authority's negligent act or omission be the sole cause of the plaintiff's damage. Causation will be established if the relevant act or omission materially contributed to the damage. See March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 per Mason CJ at 514. A court may infer causation by reference to the objective facts and probabilities. Direct evidence is not essential. See Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 per McHugh J at 449 [44].

99 The learned Commissioner made findings of fact as to causation; in particular, whether:

(a) the alleged inadequacy of the guideposts;

(b) the alleged misleading effect of the driveway marker;

(c) the camber of the road;

(d) the speed at which the respondent was driving; and

(e) the respondent's alleged failure to keep a proper lookout,

caused or materially contributed to the accident.

100 The learned Commissioner found, at [59] - [60], in relation to the causal significance of the guideposts, the driveway marker and the camber of the road:

"In my view, the [respondent] primarily lost control of the vehicle due to the inadequacy of the guide posts. A significant contributing factor was the misleading effect of the driveway marker. I accept the [respondent's] evidence that she felt she was too far over and corrected slightly in the direction of the curve. At the same time that she made that adjustment, the car lost control. Accepting as I do the evidence of Mr Johnson, the need for the [respondent] to correct the path of the vehicle would have increased the outward force opposing the frictional force of the tyres on the road. I am satisfied on the balance of probabilities that that is what caused the [respondent's] vehicle to lose control. While not the primary cause, I am satisfied that the original driveway marker materially contributed to the cause of the accident. However, as I have noted, in my view the primary cause was the inadequacy of the guide posts. I am satisfied that, had there been a guidepost on either side of the driveway, this accident would not have occurred.



In addition, the flattening and then negative camber of the road on the curve would have made it more difficult for the [respondent] to regain control of the vehicle. ... "

Her Honour made these findings, at [92], concerning the manner in which the respondent had driven her vehicle:

"I find that the [respondent's] manner of driving was not in any way dangerous. It appears she was going between 60-80 kilometres per hour. When she realised that she had mistakenly aligned herself with the driveway marker instead of a guide post, she made a slight correction. At that time, the wheels lost their traction and she took her foot off the accelerator. She did not brake. Further, as I have previously indicated, she did not have such a degree of familiarity with the road that she ought to have known she should slow down. Further, I accept the [respondent's] evidence that she was looking at the guide posts and at the road, and was keeping a reasonable lookout."

101 I agree with Steytler P, for the reasons he gives, that the learned Commissioner should have found, and erred in not finding, that:

(a) at the material time the respondent was driving at a speed which was, in the circumstances, excessive;



(b) a safe speed, in the circumstances, was about 60 kilometres per hour;



(c) at the material time the respondent was not keeping a proper lookout; and



(d) the respondent was reasonably familiar with the curve in question and, if she had been paying proper attention to her driving and the road, she would not have misaligned her vehicle as she approached the curve and she would have entered the curve at a more moderate speed.

102 In my opinion, the learned Commissioner's errors in failing to find that the respondent was driving at a speed which was, in the circumstances, excessive, and that the respondent was not keeping a proper lookout, affected her Honour's approach to and evaluation of:

(a) the respondent's alleged contributory negligence; and



(b) causation.

103 I agree with Steytler P, for the reasons he gives, that the learned Commissioner should have found, and erred in not finding, that:

(a) the appellant's negligence, as found by her Honour, materially contributed to (but was not the sole cause of) the accident;



(b) the respondent's contributory negligence, as found by this Court, materially contributed to (but was not the sole cause of) the accident; and



(c) liability should be apportioned equally between the appellant and the respondent.