Commissioner of Main Roads v Jones

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,McHugh J,Gummow,Hayne JJ,Callinan J
• Judgment Date: 25 May 2005
• Neutral Citation: [2005] HCA 27,2005-0520 HCA A
• Docket Number: P31/2004
• Court: High Court
• Date: 25 May 2005

[2005] HCA 27

HIGH COURT OF AUSTRALIA

Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ

P31/2004

Commissioner of Main Roads

Appellant

and

Lloyd Russell Jones

Respondent

Commissioner of Main Roads v Jones

Negligence — Standard of care — Breach — Respondent driver injured after car collided with wild horse on highway — Appellant a body corporate upon which care, control and management of highways was conferred — Whether appellant should have been aware of attraction of animals to water sources near accident site and exercised power to reduce speed limit and to erect warning sign.

Courts — Appeals — Whether Full Court of the Supreme Court of Western Australia justified in overturning findings of trial judge on danger posed by animals straying on highway.

Negligence — Causation — Whether, if speed limit reduced or warning sign erected, respondent's injuries would have been prevented.

Practice — Discovery — Material discovered by appellant between trial and appeal — Whether availability at trial would have warranted different result.

1 Gleeson CJ. The facts are set out in the reasons for judgment of Callinan J.

Gleeson CJ

2 The respondent sued the appellant for damages for negligence. The respondent suffered serious personal injury when a car he was driving collided with a horse on a stretch of unfenced road on the Great Northern Highway about 6 km south of Turkey Creek in Western Australia. The principal allegations of breach of duty of care on the part of the appellant were failure to erect road signs in the locality warning of the danger of animals on the highway, and failure to impose in the locality a speed limit lower than the general limit of 110 km per hour. The extent of ‘the locality’ was rather imprecise. The argument concentrated on that part of the highway extending for a distance of about two or three kilometres either side of the point of impact. The trial judge rejected both allegations, holding that a reasonable response by the highway authority to the danger constituted by straying animals did not require either of those steps. The trial judge also found for the appellant on the issue of causation, holding that the conduct of the appellant before the accident showed that he would not have slowed down or driven more cautiously even if there had been a warning sign, or a reduced speed limit. Both of those findings were reversed, by majority, in the Full Court of the Supreme Court of Western Australia. The question before this Court is whether the Full Court was justified in reversing the trial judge's findings.

3 As to the issue of negligence, a central, and in my view persuasive, aspect of the reasoning of the trial judge was that the evidence did not justify a conclusion that the risk of animals straying onto the road in the place where the collision occurred was materially different from the risk that extended over hundreds of kilometres of the highway. Murray J, who dissented in the Full Court, said1:

‘[T]he [respondent's] case failed because he was unable to establish any unusual concentration of wild animals in the area where the accident occurred. The risk was not materially different from that which applied at any number of places over the whole area traversed by the highway between Kununurra and Halls Creek. There was no particular requirement, therefore, for a reduction in the speed limit or a sign or signs in some way warning of the possibility that wild animals would be encountered on the road. The findings to that effect by the trial judge were well warranted by a body of evidence which his Honour was entitled to accept and rely upon.’

4 The difference of opinion between the majority in the Full Court, on the one hand, and Murray J and the trial judge, on the other, was largely concerned

with the proper inferences to be drawn from a body of evidence about the comparative risks of straying animals along the Great Northern Highway, and at particular locations.

5 In this respect, the case provides another example of the danger involved in considering warnings without making due allowance for the distorting effect of litigious hindsight. The matter was discussed inRosenberg v Percival2. When a foreseeable risk has eventuated, and harm has resulted, the particular risk naturally becomes the focus of special attention. Yet, if it was only one risk among many, there may have been no reason, at the time of the allegedly tortious conduct, to single it out. The Great Northern Highway extends, unfenced, for long distances, through cattle stations. The respondent knew that, all along the highway, there was a risk of colliding with animals. His case was not that there should have been a warning sign, or a reduced speed limit, covering the entire length of the road. His case was that there should have been such a sign, and a reduced speed limit, covering the place where the collision occurred. Yet the evidence accepted by the trial judge showed that there was nothing so unusual about that locality as to warrant the measures for which the respondent contended.

6 In my view the trial judge's conclusion on the issue of breach of duty should not have been disturbed. There was, however, a substantial basis for the difference of opinion. It related to the significance of the evidence of a number of local residents as to their appreciation of the risk in the locality. If the present appeal had turned only upon this first issue, it would have been necessary to deal with that evidence in more detail. However, on the issue of causation, the outcome is more clear-cut, and turns upon facts that can be stated shortly.

7 The evidence showed that the respondent's average speed, over a distance of more than 200 km before the collision, was between 135 km and 140 km per hour. The road was not entirely straight and clear. There were places where the respondent would have been forced to reduce speed. To achieve that average, his maximum speed must have been significantly greater than 140 km per hour. He drove through Turkey Creek, a settlement only 6 km from the place of the accident, where the speed limit was 90 km per hour, at such a high speed that he attracted local attention. The trial judge accepted the evidence of a witness who estimated the respondent's speed through Turkey Creek at about 140 km per hour.

8 The trial judge said:

‘Having regard to the [respondent's] knowledge of the risks of travel at night, he would not have heeded warning signs had they been erected; nor would he have decreased his speed to a safe speed had the speed limit been reduced — this is illustrated by his travelling at a dangerously fast speed through Turkey Creek where the speed limit was 90 km/h and at a dangerously fast speed in the vicinity of two narrow bridges upon a two lane highway with cattle grids.’

9 The respondent, by reason of his injuries, was unable to give evidence. In reversing the finding of the trial judge on the causation issue, the majority of the Full Court relied upon evidence of the respondent's wife, who was not in the car when the collision occurred, and of a passenger, who was asleep. They both said that it was the respondent's usual practice, when driving, to adapt his speed to warning signs.

10 The finding of the trial judge was not based on the respondent's credibility. It was based on objective evidence of the conduct of the respondent in the course of the journey in question and, in particular, over the period immediately before the collision. The trial judge was satisfied, on the evidence, that the respondent was aware of the danger constituted by animals, both wild and domestic, along the whole length of the road on which he travelled at very high (and legally excessive) speed. He did not slow down on account of the danger to people at Turkey Creek. He ignored a sign reducing the speed limit. In fact, he appears to have ignored speed limits altogether. The likelihood that he would have responded to another sign reached a few minutes after he passed through Turkey Creek seems remote. The trial judge heard the evidence of the respondent's wife, and the passenger, and did not regard it as of sufficient weight or cogency to displace the inference clearly available from the objective evidence of the respondent's behaviour on the occasion in question. The Full Court was not justified in substituting its own view for that of the trial judge on the point. The reversal of the finding on causation was unwarranted.

11 I agree with what is said by Callinan J concerning the new evidence.

12 I would allow the appeal, set aside orders 1 to 4 of the orders of the Full Court, and order that the appeal to the Full Court be dismissed. In accordance with the undertakings given at the time of the grant of Special Leave to Appeal, the appellant must pay the costs of the appeal to this Court.

13 McHugh J. In my opinion this appeal should be allowed. The respondent, Lloyd Russell Jones, suffered serious injuries on the night of 11 May 1992 when his car collided with a horse that had strayed onto the Great Northern Highway in the Kimberley district of Western Australia. The accident occurred between Mabel Spring Creek and Rocky Creek, two creeks over which the Highway passes. The accident site was 5.8km south of the town of Turkey Creek, situated 194km south of Kununurra.

McHugh J

14 Mr Jones sued the appellant, the Commissioner of Main Roads, for damages for negligence in the District Court of Western Australia alleging that the Commissioner had breached the duty of care that he admittedly owed to Mr Jones. Mr Jones' Further Re-Amended Statement of Claim alleged that, within 500 metres of the accident site — at Rocky Creek and at the junction of Rocky Creek and Turkey Creek — were watering holes and that about 1.5 to 2km from that site was a water bore. It also alleged that the...