Roads and Traffic Authority v Royal

• Jurisdiction: Australia Federal only
• Court: High Court (Australia)
• Judge: Gummow,Hayne,Heydon JJ.,Kirby J.,Kiefel J.
• Judgment Date: 14 May 2008
• Neutral Citation: [2008] HCA 19,2008-0514 HCA B
• Docket Number: M139/2014
• Date: 14 May 2008

[2008] HCA 19

HIGH COURT OF AUSTRALIA

Gummow, Kirby, Hayne, Heydon And Kiefel JJ

M139/2014

Roads And Traffic Authority

Appellant

and

Grant Royal & Anor

Respondents

Representation

J E Maconachie QC with T F McKenzie for the appellant (instructed by McCabe Terrill Lawyers)

S J Harben SC with S B Lowe for the first respondent (instructed by Rankin & Nathan Lawyers)

Submitting appearance for the second respondent

Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5.

Supreme Court Act 1970 (NSW), s 75A.

Roads and Traffic Authority v Royal

Torts — Causation — Motor vehicle accident — Whether design of intersection a cause of the accident.

Negligence — Causation of damage at common law — Causation in fact — Whether multiple causes of damage exist — Whether highway construction and design a material contribution to collision — Whether foreseeable risk of harm to persons such as the plaintiff — ‘But for’ test in causation — Considerations relevant to deciding contested questions of causation — Whether correct approach taken to question of causation by Court of Appeal in reversing conclusion of primary judge — Whether existence of Law Reform (Miscellaneous Provisions) Act 1946 (NSW) providing for contribution by tortfeasors relevant to causation in fact.

Appeal — Advantages enjoyed by primary judge in deciding contested question of causation of motor vehicle collision — Decision on question of fact — Whether Court of Appeal erred in giving effect to its own conclusion about causation — Whether Court of Appeal fulfilling duty to conduct an appeal on disputed questions of fact by reaching its own independent conclusion on the facts — Whether advantages of primary judge ought to have restrained Court of Appeal from substituting its own conclusion — Whether Court of Appeal applied incorrect legal test for deciding question of causation of motor vehicle collision.

Words and phrases — ‘a result of a tort’ — ‘the extent of responsibility for the damage’.

ORDER

1. Appeal allowed with costs.

2. Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales made on 4 April 2007 as varied by the further order made by consent on 1 August 2007, and in their place order that the appeal to that Court be dismissed with costs.

Gummow, Hayne And Heydon JJ.

The background

1 At about 8.40am on Monday 12 March 2001, Grant Royal, the first defendant and first respondent in this Court (‘the defendant’) was driving north along the Pacific Highway in a rural area near Wauchope. His car struck a car driven by George Smurthwaite, the plaintiff and second respondent (‘the plaintiff’). The weather was fine. The light was good. Although the road was slightly damp in places from overnight rain, that played no role in the collision. The plaintiff was driving from the west to the east along a road which intersected with the Pacific Highway. To the west of the intersection it was called ‘Bago Road’, and to the east it was called ‘Boyds Road’.

2 The plaintiff brought proceedings in negligence against the defendant and the Roads and Traffic Authority of NSW (‘the appellant’). Both the defendant and the appellant denied negligence and alleged contributory negligence by the plaintiff. They also cross-claimed against each other.

3 The trial was conducted in the District Court of New South Wales (Phelan DCJ). The trial judge found that the ‘primary cause’ of the collision was the defendant's breach of his duty of care to the plaintiff. He also found that the damages payable to the plaintiff should be reduced by one-third on account of the contributory negligence of the plaintiff. He gave judgment for the plaintiff for $871,019.50. He appeared to find that the appellant was not in breach of its duty to the plaintiff. Accordingly he said nothing about the causative role of the appellant, and dismissed the defendant's cross-claim against it.

4 The defendant appealed to the Court of Appeal, Supreme Court of New South Wales (Santow, Tobias and Basten JJA). The defendant's appeal against the trial judge's orders in favour of the plaintiff, apart from complaints about damages and costs orders, contended that the plaintiff was 80 percent responsible for the collision. This aspect of the defendant's appeal was unanimously rejected. However, the Court of Appeal by majority (Basten JA dissenting) allowed the defendant's appeal against the trial judge's dismissal of the defendant's cross-claim against the appellant. The majority considered that the appellant was in breach of its duty of care: it knew that there had been crashes at the intersection, it should have moved a Stop sign so as to improve the vision of drivers in the position of the plaintiff, and instead of the existing cross-intersection constructed in 1993, it should have constructed ‘a staggered T-intersection and not a cross-intersection which was pregnant with avoidable risk’ 1. After discussing causation questions in a manner complained of by the appellant in the present appeal, the majority concluded that the appellant should bear one-third of the judgment ordered against the defendant. Basten JA, on the other hand, considered that the issue of breach of duty could not be dealt with until one had identified what the cause of the collision was 2. While he displayed some scepticism about the contention that the appellant was in breach of duty 3, he did not deal with the question of the appellant's breach of duty beyond saying: ‘whatever the faults of the design of the intersection, they did not materially contribute to the accident in any relevant sense’ 4. He found the cause of the collision to lie in the negligent driving of the defendant and the plaintiff.

5 The appellant was not given special leave to challenge the majority's conclusion that it was in breach of duty. The grant of special leave was limited to the question whether that breach caused the plaintiff's loss. The plaintiff, whose interests will not be affected by the outcome of the appeal either way, was joined in the appeal as second respondent, but filed a submitting appearance.

The division in the Court of Appeal

6 Basten JA described the background of the collision as follows. For drivers proceeding over the cross-intersection from west to east, the cross-intersection was controlled by a Stop sign. At that point, the Pacific Highway had two lanes for through traffic proceeding north, a left turn lane for traffic turning into Bago Road, and a right turn lane for traffic turning off the highway to the east down Boyds Road. The plaintiff stopped his vehicle at the Stop sign on Bago Road, and then proceeded to cross. At that moment there were four vehicles on the highway in the vicinity of the cross-intersection. Two were in the left-hand turn lane turning into Bago Road. A third was a vehicle driven by the defendant. The fourth was a Telstra van, which was a little

distance behind the defendant's vehicle, and was driven by Mr Anthony Relf. The plaintiff crossed the two through lanes, and reached the right-hand turn lane before being hit by the defendant's vehicle.

7 Basten JA described the cross-intersection as being set in a State forest, on the crest of a hill. For drivers coming from the west on Bago Road, there was a ‘reasonably steep inclination’ 5 approaching the Stop sign. For drivers going north on the Pacific Highway, the inclination was gentle. Although there was a dip in the Pacific Highway to the south of the cross-intersection, which meant that a driver at the Bago Road Stop sign could not see the road surface at all points, there was no interference with the vision of traffic approaching along the Pacific Highway. However, the Pacific Highway curved to the east on either side of the cross-intersection. As the plaintiff moved along Bago Road from the west and looked to his right, the Pacific Highway curved away from his side of the road and he was required to look across a grassy shoulder in order to see traffic approaching from a distance of more than 200 metres. His sight line of traffic up to 280 metres from the intersection was ‘reasonably unrestricted’ 6. (There was, however, according to the Court of Appeal majority, a visibility problem, to be discussed below 7.) The speed limit on the Pacific Highway was 100 kilometres per hour, but there was an advisory speed sign 300 metres before the cross-intersection showing 85 kilometres per hour as the appropriate speed for negotiating the bend. The right-hand lane on the Pacific Highway for traffic wishing to go down Boyds Road in an easterly direction commenced 210 metres before the cross-intersection. The left turn lane for traffic leaving the Pacific Highway and travelling to the west along Bago Road commenced 150 metres before the intersection. Each of the lanes on the Pacific Highway was marked with arrows. Thus each of the turn lanes had arrows indicating that they were for turning traffic only and the two through lanes had arrows indicating that they were through lanes only.

8 Basten JA then turned to the conduct of the plaintiff and the defendant. He found that although the plaintiff was unable to recall the events leading up to the collision because of his injuries, it was clear that he had stopped at the Stop sign. Basten JA inferred from the plaintiff's familiarity with the cross-intersection that he looked to the south, in which case he would have seen the defendant's vehicle. He found that if the plaintiff had accelerated across the

intersection in a normal manner, he would have taken no more than 3.5 seconds to cross the Pacific Highway.

9 The defendant was travelling with his vehicle set on cruise control for fuel economy reasons at 105 kilometres per hour, and, like the plaintiff, had travelled the road on many occasions. He accepted that he was about 150 metres away from the intersection...