Commissioner of Main Roads v Jones [2004] HCATrans 114 (2 April 2004)

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Commissioner of Main Roads v Jones [2004] HCATrans 114 (2 April 2004)

Last Updated: 8 April 2004

[2004] HCATrans 114

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P133 of 2002

B e t w e e n -

COMMISSIONER OF MAIN ROADS

Applicant

and

LLOYD RUSSELL JONES

Respondent

Application for special leave to appeal

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 2 APRIL 2004, AT 2.31 PM

Copyright in the High Court of Australia

MR B.W. WALKER, QC: If the Court pleases, I appear with my learned friend, MR T.G. DARGE, for the applicant. (instructed by Trevor Darge)

MR W.S. MARTIN, QC: If it please, I appear on behalf of the respondent. (instructed by Bradford & Co)

McHUGH J: Yes, Mr Walker.

MR WALKER: Your Honours, this is a case where matters which have been the subject of dicta, even powerful dicta in this Court, became important for an actual decision in a way which, in our submission, has not been the subject of decision in this Court.

McHUGH J: Yes, but what is the point in the case? What is the special leave point?

MR WALKER: The special leave point is a combination of two matters, both turning on the clear factual finding, contrary to what my learned friend puts in written submissions, that the driver in this case, the unfortunate Mr Jones, was aware of wild animals on the unfenced long stretches of lonely road which he was used to driving. The special leave point has to do with the notion that replacing a trial judge’s well-ordered and orthodox approach to finding facts concerning what was reasonable to have learned of, in light of the knowledge of a plaintiff and the grave risk that wallpapering highways with signs of all risks which are obvious, which in this case will include straying cattle as well as wild animals and which may have well, to be serious warnings, required discrimination between times of day and seasons of the year and the quality of the wet season, for example.

McHUGH J: But these are questions of fact.

MR WALKER: No, with respect, on the basis of those findings of fact, which were made in orthodox fashion at trial, whether the Full Court was correct in reversing that so as to find that there had to be, as a reasonable response, a warning of that which a plaintiff well knew and, in our submission, that is a special leave point because were it true - - -

McHUGH J: But how, how is it a special leave point? The Court of Appeal, exercising its appellate jurisdiction, simply substituted its own view there was negligence of the trial judge.

MR WALKER: The first thing to be said, and this is only the beginning of the special leave question, is the fact that the Court of Appeal simply substituted its view does not make that substitution correct. Indeed, it is commonplace that in itself a mere substitution without demonstration of error is itself appellate error. But that does not answer your Honour’s question as to why this is a special leave point. What the majority finds is that a risk of which the driver was aware and which, on the findings made both in the Full Court and below at first instance, could not possibly have been subject of specific warning because of the vagaries, literal and figurative, of the problem. They have found that warning is required, notwithstanding that degree of awareness, and, in our submission, that cuts across all the indications in the jurisprudence of this Court.

McHUGH J: But why? Why does it have to do with whether a particular person knows? Does that mean the duty is owed to one driver and not another?

MR WALKER: No, the duty requires acting reasonably, which involves taking into account a reasonable range of known or possibly appreciated users of the road.

McHUGH J: It has nothing to do with the knowledge of the respondent?

MR WALKER: In this case, it did clearly have a lot to do with his knowledge because his knowledge was shown to be of an ordinary kind, that which, to paraphrase the trial judge, anybody who had driven along the road and seen the carcasses of wild and domesticated animals would have appreciated - - -

HAYNE J: That then becomes a causation point, does it not?

MR WALKER: Your Honour, yes, and with all the problems for a special leave applicant that that involves in terms of it being intensely factual. May I try and elevate it out of that field. It is a causation question. It is elevated into a special leave question because the way in which the decision making proceeds in the majority is to say quite simply that there needed to be a warning, notwithstanding all the factual material about the disadvantages of the kind of warnings posited, and there needed to be a warning notwithstanding the plaintiff, as would have been usual for somebody in his position - - -

McHUGH J: The more you concentrate on this plaintiff, the quicker your chances of getting special leave recede.

MR WALKER: Can I drop the plaintiff and there refer to notwithstanding that any ordinary user with a reasonable degree of appreciation of ordinary risks of driving would have appreciated.

McHUGH J: Can I suggest to you that if there is going to be a grant of special leave in this case it could only be under the visitorial jurisdiction, that the decision of fact has such consequences for the general community and it is sufficiently, arguably, wrong that this Court ought to take it up in the exercise of what some of us call the visitorial jurisdiction.

MR WALKER: Your Honours have seen from the affidavit evidence we have put on in this Court concerning the general public importance and from the use we have made of that in our written summary, of course we do embrace that as a reason why there ought to be special leave. The ramifications for road authorities, who take seriously the pronouncements of an intermediate appellate court having relevantly the last word on a matter of its duty of care, is spelled out in that affidavit.

In our submission, this Court is faced either with the entirely unwholesome prospect of road authorities not paying regard to what has been ruled upon in private litigation to which they are party concerning their duty of care, which is not to be contemplated, or else contemplating that there will need to be an approach to so-called “road audits” and that is a grandiose title for finding out what the talk is about where the emus, kangaroos, wild horses and camels congregate from time to time depending upon time of day, typography, climate and weather.

In our submission, that is a most extraordinary imposition to impose upon road authorities when we have ordinary people - and if I may dare mention him, and the plaintiff’s case does not lift him out of that class, so it is just for his case to be dealt with as a member of that class - ordinary people well appreciating the kind of risk which fell in for him. As Justice Murray points out, in our submission powerfully, in relation to causation towards the end of his reasons, it is, of course, the clear fact that it was the coincidence of the wild horse and his car that has caused his terrible physical state to have occurred.

That brings me then to the second point, which, in our submission, whether it be the visitorial jurisdiction in relation to the wrong form of conclusion and result in the Full Court, or whether it be because it cuts across statements of this Court dicta which now need, in our submission, to be considered as possible ratio, is a special leave point.

That second point is this. There was a reversal of a carefully reasoned and objectively plausible, convincing finding by the trial judge of what would have happened in the hypothetical position that a warning at the particular locality on this long stretch, all of which was held by Justice Steytler to be a particular risk, that if, in this particular locality, there had been a warning and a lowering of a speed limit to 80 - and I stress 80 kilometres an hour – that that would have had, as a matter of commonsense, a measurable effect as a matter of likelihood on the outcome of what did occur, given that what occurred had nothing to do in physical causation to do with warning signs, but had everything to do with the coincidence of a speeding car and a galloping horse.

Now, in our submission, that is an area where the commonsense of the matter and the weighing up of the objective probabilities in a case which happens to provide an excellent vehicle because there is no subsequent subjective protestation in this case - the man unfortunately being able to give evidence - that is a matter which gels with the first of the matters to which I have drawn the Court’s attention because together they combine to raise, in relation to an ordinary activity of life in this country, with very large engineering, administrative and financial ramifications for taxpayers in this country - that is by road authority funding - the question of the proper balance which ought to be struck, particularly in intermediate appellate courts, concerning those outcomes of a negligence claim where the responsibility of the plaintiff to take reasonable care for his or her own position looms large.

Now, that looms large certainly in relation to warnings, what warnings were appropriate and it certainly looms large in relation to what would have happened if there had been a “Danger, wild horses, 80 kilometres an hour” sign on a stretch which, according to the evidence, was just one part of a very long stretch of road where presumably the next plaintiff says there should have been another warning at the next place where an accident occurs.

To return to the question of the visitorial jurisdiction, may we add this as a factor which makes this an ideal case factually to examine those matters which till now remain, in our submission, dicta in this Court. This is a case where the trial judge carefully considered both statistical and anecdotal material - your Honours have seen references to that in our written submissions - with one, we would argue, immaterial omission to deal with one of the anecdotal witnesses whose evidence does not add appreciably at all to the body of evidence which he did have regard to.

Nothing is said in the majority decision in the reasons of Justice Steytler as to why, in reality, that was not the entirely appropriate way to proceed, bearing in mind, as your Honours will bear in mind, that the expert evidence before the trial judge included a reference to the method by which road authorities go about identifying where there should be specific signs put up so as to avoid the desensitising influence of signs about everything, everywhere. That, what might be called “black spot” approach, is, of course, one that the Full Court simply did not deal with at all.

In short, notwithstanding their duty under Warren v Coombes and the powers that come with that, this was an appeal by way of rehearing where
error is not identified in the court below by the majority. In our submission, the powerful reasons of Justice Murray in dissent indicate that as a matter of the commonsense informing the reasonable response of the road authority beforehand, and the commonsense of the causal reasoning with respect to this particular accident and what a warning might or might not have done, that the Full Court has simply got it wrong in a way which leaves on foot a dangerous precedent so far as a road authority is concerned, where there is a choice as to whether one desensitises by putting up all manner of signs that would be in conflict with a reasonable performance of one’s duty of care, or run the risk that every time there is an accident it will be argued that that indicates that there should have been a sign at that place.

In our submission, the universal solvent to all of this was to remark that this is a case which throws up ideal facts to demonstrate that a plaintiff cannot succeed who fails to have taken a reasonable degree of care for his or her own position.

McHUGH J: I notice that you not only seek special leave in the allowing of the appeal, but you want the costs of the appeal, costs in the courts below. If leave were granted, why should you not pay not only the costs of the appeal irrespective of the result, but give an undertaking not to interfere with the costs orders in the courts below. After all, this is just not litigation between - - -

MR WALKER: No, I have argued it as a test case on a matter of institutional importance, from which it follows that there is no reason why what your Honour has raised should not occur. So that if your Honours were minded to make a grant, I could not possibly argue against conditioning it. May it please, your Honours.

McHUGH J: Yes, Mr Martin.

MR MARTIN: If it please, your Honours, if I could go straight to the visitorial jurisdiction question. The three issues which arose in this appeal were: firstly, what was the level of risk to motorists posed by straying animals on this particular section of highway; secondly, what would a reasonable person in the position of the current applicant have done in response to that risk and, in particular, would that person have erected warning signs on the particular section of highway or reduce the speed limit in regard to that level of risk; and, thirdly, did the respondent, by failing to erect signs or reduce the speed limit, cause or contribute to the current respondent’s injuries?

Your Honours, in our submission, they are all essentially ultimate conclusions of fact which depend critically upon the primary consideration, which is the particular level of risk posed to motorists on this particular section of highway. That is why, with respect, there is a fundamental flaw in the proposition that this is some kind of case of general application or of general principle.

HAYNE J: Well, if it is liable to the plaintiff who was doing, what, 130?

MR MARTIN: Between 130 and 140 on the findings.

HAYNE J: On a highway when a brumby runs into the side of the car. There is no answer to a claim for liability, is there, in almost any other circumstances?

MR MARTIN: The Full Court reduced the plaintiff’s damages by 50 per cent to reflect his contribution to the - - -

HAYNE J: So, if the road authority bears half the responsibility for the driver’s injury in those cases - - -

MR MARTIN: The evidence below was to the effect that the plaintiff below was ordinarily a careful driver who responded to the danger of the circumstance from which the Full Court inferred that had he been warned, or had the speed limit been reduced, he would have taken care to respond to the particular risk posed by this particular section of highway upon which an animal strayed because it was in the vicinity of good feed and water and in which, in the previous year, the owner of the property had lost some 50 cattle in the course of the year on that section of highway alone.

Your Honours, I come back to the point that the reason this case is of no general significance is that the question of whether a sign should be erected or a speed limit imposed, depends critically upon that evaluation of the level of risk and the degree of efficacy of the sign in that particular circumstance. Now, whatever be the outcome of this case, either below or in this Court, highway authorities will have to erect signs and do erect signs where the particular level of risk and the efficacy to be anticipated from the sign make that a reasonable course of action. Nothing that is said in the Full Court, or that could be said in this Court, will alter that basic statement of principle.

McHUGH J: I do not know about that. If people know generally that dingoes, kangaroos, emus and brumbies are likely to wander onto the road, they are aware of it and they drive accordingly. I mean, I was brought up in North Queensland and country roads and that was what happened all the time. You would be lucky to drive a mile without seeing a horse or cow or dingo cross the road in front of you.

MR MARTIN: Your Honour, the evidence was that in this particular section of road that likelihood was very much increased because of the presence of food and water, thus creating an increased degree of risk and thus rendering the sort of speed at which the plaintiff was driving unsafe, so that had he been warned of this particular level of risk, it is reasonable to infer that he would have reduced his speed to accommodate - - -

HAYNE J: Did not obey the speed limit, but would have reduced it in light of the danger. Is that the way it runs?

MR MARTIN: Yes, your Honour. Of course, these are remote areas of the country in which driving habits are basically a reflection of the apprehension of risk. The significance of the speed limit is that it would tell the driver that this is an area in which he or she is at a particular level of risk. Now, your Honours, in our submission, too much can be made of the proposition that desensitisation arises from signs because, of course, road authorities erect signs all the time in response to perceived level of risks so I come back to the proposition that the outcome of this case turns critically upon whether the facts give rise to the conclusion that the level of risk was such that a sign ought to have been erected.

In our submission, there was ample evidence from which the Full Court could have arrived at that conclusion and your Honours find it at page 55 of the application book and following where his Honour Justice Steytler reviews the evidence of the local residents. He refers to some nine of them, this is commencing at the middle of page 55. I will not take your Honours through it, but could I mention page 57, in particular at line 20, where his Honour refers to Mr Hobbs. Mr Hobbs was not a witness to whom the trial judge referred and he refers to:

the area between Turkey Creek and Halls Creek . . . was a particularly bad spot -

and identified the problem posed by the presence of food and water and the prevalence which that gave to straying animals. His Honour continues to review that evidence through to page 58, and then at the bottom of 58, at line 50, refers to Mr Riggs’ evidence to the effect that:

on the stretch of the Great Northern Highway . . . he would lose about 50 cattle per annum through collisions.

Now, that is an extraordinary accident rate. His Honour then concludes at the bottom of page 58 that the road from the two particular spots was -

a dangerous stretch of road - - -

and at the top of page 59 -

The evidence also established, conclusively in my opinion, that the danger was at its greatest in areas such as those around Mabel Spring Creek and Rocky Creek -

which is exactly where the accident occurred -

where animals wandered nearby and where water and good food were to be found.

Then his Honour refers to the failure of the trial judge to make mention of the evidence of Mr Hobbs. Then at line 25 on page 59 refers again to:

What the evidence of the local inhabitants established was that that danger was at its most acute, as I have said, in areas such as Mabel Spring Creek and Rocky Creek in which water and good food were to be found.

Now his Honour then goes on to deal with the statistics. The problem, of course, with the reference to statistical evidence was the undisputed fact that in this area, this remote area, very few of the accidents are in fact reported and none of the near misses.

His Honour’s reference to the local evidence, to which we have just been looking, as anecdotal or, in his Honour the trial judge’s view, based on perception, overlooks the fact that these were witnesses who lived in the area and came and told the court what they had actually seen with their own eyes. So to disparage it as anecdotal or that of perception is, with respect, quite incorrect. To prefer, as his Honour the trial judge did, the evidence of the accident report statistics was quite inappropriate in a circumstance in which there was no dispute that those statistics are simply unreliable because of the failure to report, the failure to identify near misses and the exchange of property damage required to identify the report and so on and so forth. His Honour Justice Steytler makes that point at line 45 on page 59 where he says that it is clear:

that the reported accidents are only a fraction of those which actually occurred. So much appears from the evidence of Mr Riggs –

that is the 50 cattle per year.

His Honour then deals with the question of the knowledge of the individual driver at page 60, between lines 25 and 30, and rejects the proposition that merely because he had travelled in the region he would have been aware of the extent of the risk posed by straying animals, drawing attention to the distinction between a general awareness of that risk and an awareness of the particular risk posed by the presence of good food and water in this particular area. That is the point his Honour makes at line 35 where he says:

there was nothing to suggest that he knew which areas along his chosen route were particularly dangerous.

Then his Honour deals with the question of causation at the bottom of page 62 of the application book, at line 55, where his Honour observes there was evidence and he refers, of course, to the fact that he was driving at very high speed, but then at line 55 says:

there was also evidence that the appellant was an experienced and ordinarily responsible driver. His wife, in the course of her evidence, said that, while he was not a “slow” driver . . . he did pay great attention to the particular conditions. She said that it was his practice to heed warning signs.

The passenger in the car:

said that the appellant was a very competent driver who adapted his driving to warning signs.

So, your Honours, it comes back to the particular risk at this particular level of road. The Full Court accepted on the evidence there were reasons for concluding that there was a particular level of risk. The appropriate response to that was a sign to which the plaintiff would have responded.

Now, your Honours, could we just go to the so-called special leave questions. Your Honours will find them at page 70 of the application book. The first question said to be a special leave question was:

Whether, in connection with a known risk of collision on a road, the duty of care -

et cetera. Your Honours, that is a question that is simply incapable of being answered in any general terms because it depends, of course, upon the particular level of risk posed by the particular area of road and balancing that risk against the effectiveness of the installation of the sign. So it is not a question - - -

McHUGH J: No, it goes beyond that, does it not, because what evidence was there that this defendant knew of these accidents? The theory of the majority in the Court of Appeal seems to be that they have to go out and search. That would mean that they would have to explore the countryside on both sides of the road, find out where there are watering holes. Do they have to put special signs up early in the morning or late in the evening because that is when animals tend to go to the waterholes?

MR MARTIN: Your Honours, the decision in the court below did not depend upon the proposition that there had to be search and inquiry to ascertain the circumstances. It was remarked that that may have been one way of proceeding. The proposition below was that there was abundant evidence by the side of the road, to somebody who was charged with the responsibility of maintaining that road, to identify that this was an area of particular risk to which there should have been response.

HAYNE J: So there is abundant evidence to the risk monitor, but not to the driver.

MR MARTIN: Because, your Honour, the driver was not charged with the responsibility of maintaining the road.

HAYNE J: I understand that, but here is a driver who is driving down the road with road kill everywhere, apparently.

MR MARTIN: Of course, on the particular night, in the dark although he had, of course, driven in the day before. But, your Honours, the degree of road kill can be overstated. It is a matter of, perhaps, passing interest to a motorist, but it is a matter of discharge of duty, with respect to the road authority, to identify the level of risk that is posed to motorists in the vicinity. Your Honours, in our submission, question 1 is not a question that could ever be answered by this Court one way or other. The answer must always be, well, of course, it depends upon the level of risk in the particular circumstances as to which all this Court could do is evaluate the evidence that was before the particular court. In relation to the second - - -

McHUGH J: You may be right on that, but it is at least a possible view that road authorities owe no duty in respect of straying animals.

MR MARTIN: With respect, your Honour, if there were a particular level of risk posed, for example, by a regular crossing of cattle from one paddock to another by a farmer known to do that every afternoon of the week, with respect, the road authority would arguably owe that duty, but that is - - -

McHUGH J: There are particular areas of road where there are a lot of accidents because drivers are driving on the wrong side of the road at furious speeds. The road authority is under a duty to put up signs “Beware of speeding drivers” in those areas where there have been a lot of accidents.

MR MARTIN: Your Honours, if there were a recurrent problem then it may well be that the road authority’s response would be to put in traffic calming devices to reduce speed, as is, of course, commonly done, so that the road authority then takes steps to reduce the speed of those drivers and prevent them posing threats to other road users or pedestrians, as is, of course, commonly done in suburbs. There are steps that are well known and well recognised and adopted by road authorities to respond to particular circumstances of risk. All this case concerned was the factual question of the level of risk posed by this particular section of highway and the appropriate response of the road authority to it.

McHUGH J: But, you see, Mr Martin, vulnerability is now coming in as a key criterion of duty of care and breach, not only in economic loss cases, but as the highway cases show, even where physical injury is involved. If the risk is obvious people can avoid it themselves. It may be that, in this particular area, one has to take into account what one did not, until fairly recently, that the fact that the plaintiff in a physical injury case can take steps to avoid potential dangers.

MR MARTIN: Your Honour, the point about this case is that there is a general level of risk throughout the Kimberly, but there was a particular level of risk on this particular section of highway as a consequence of the presence of feed and water. Now, this driver, as Justice Steytler found, had no way of knowing of this particular level of risk. Of course, he could not see the road kill by the side of the road because he was driving in the dark. So the question is not one of general application - - -

McHUGH J: One would have thought that was a further reason why you should not have been driving at 135, 140 kilometres per hour at 7 o’clock at night in the dark on a country road.

MR MARTIN: Of course, that is why his damages were reduced by 50 per cent. But, your Honour, the point is there was a special level of risk of which he could not have been aware because he was not aware that there were waterholes in this vicinity and that there was good food that would attract the stock. That is, essentially, a question of fact limited to the peculiar circumstances of this case which would deprive any decision of this Court of any application beyond the particular factual circumstances of this case were the Court to embark upon a review of those circumstances.

Your Honour, I will just finish by referring to the second special leave question. The relationship between the intermediate appellate court and the court of first instance is an issue that has been well raked over by this Court in recent years and would not attract a grant of leave, in our submission. The proposition that there is some general principle relating to anecdotal versus statistical evidence is not one that could be sustained and,
of course, suffers from the flaw that the disparagement of the local witness evidence as anecdotal is inaccurate, the preference to the statistical evidence flawed because it was, as everybody recognised, quite unreliable because of the failure to report from this remote area.

Your Honours, in our submission, neither of the special leave questions gives rise to any issue that would be of any enduring significance beyond the circumstances of this particular case and this is not, therefore, an appropriate case for the grant of leave. If it please, your Honours, those are our submissions.

McHUGH J: Yes, Mr Walker.

MR WALKER: Your Honours, there are a number of matters of fact which, in our submission, require answer and they demonstrate that this is an appropriate vehicle to test the matters to relation to personal responsibility, reasonableness of a requirement to warn and a finding of fact objectively as to a response to a hypothetical warning.

First, as to Mr Hobbs who was not considered at trial - his material is found at 57 of the application book to which my learned friend took you - his evidence goes to the full 300, 400 kilometres of the Halls Creek/Kununurra stretch. That does not add anything to this case about what I will call a “black spot”. This is a black spot that evaded the intelligence-gathering, none of which was ever attacked as being unreasonable or inadequate, by the road authority.

We now have, in defence of an intermediate appellate decision which, without identifying overtly error, simply substituted a different version of the facts, an argument in this Court against special leave which comes down to this proposition, that anecdotal evidence should have been preferred on the grounds of better reliability to flawed statistical evidence as if the anecdotal evidence would not have at least - - -

HAYNE J: That is an argument that depends entirely on the content that you are giving to “anecdotal” and “statistical”. One is a “hooray” word; the other is a “boo” word.

MR WALKER: Quite, and my point is that you cannot possibly, in our submission, disqualify this as a case which raises the facts in an appropriate fashion to examine whether or not this was unreasonable conduct by my client by reference to those labels, with all the baggage they carry, anecdotal and statistical.

We have, after all, in relation to the plaintiff in this case, the preference for four-wheel drive frustrated by unavailability of the rental car. That is said by the passenger to have demonstrated his understanding of the inherent risks. In our submission, this is not a case where one can suppose that, as it were, a hapless motorist, shielded by the night from the carnage on either side of the road; was unaware of the risk. It was a common finding at both levels below that he had an awareness of the possibility of straying animals, wild and grazing.

So far as the second aspect of the factual matter is concerned, this is a driver whose wife described him as not a “slow” driver, to which Justice Steytler at page 62 of the application book, not unnaturally commented that appeared “to have been something of an understatement”.

But, we had comparable conduct on the very day, the very trip in question. The Turkey Creek evidence, page 49 of the application book, has a posted 90 kilometre an hour limit reflecting the well-known risk of motor vehicles going through, I should not call it a built up area, but an inhabited area in what is otherwise an uninhabited stretch, a 90 kilometre an hour sign for that at a location that one can infer he must have driven through in the past and there are various estimates of what speed he went through, but he did not comply with 90, he did not comply with 110 and he was probably going over 130. That is the township. In our submission, whether it be a visitorial jurisdiction or not, that is a most inauspicious aspect of the Full Court’s finding of fact in this case.

Finally, in relation to the matters of fact, my learned friend laid understandable weight on the majority’s finding of an increased risk in this particular zone, though the exact extent of this zone is, of course, never described. It said that the driver could not have been aware of the level of risk. Well, apart from repeated reference to Mr Riggs’ suspiciously round estimate of 50 cattle lost in a season in a particular area, which is not described in the evidence but which traverses his particular run - I do not think any properties in that area are small - we do not know what, even in estimated terms, an increased level of risk is supposed to have been held as by the majority. There are only words of comparison without any quantitation at all.

In our submission, for those reasons one returns to the question which should excite a grant of special leave, namely, what was unreasonable about the road authority going about its business in its many thousands of kilometres of road in unfenced remote areas in the fashion it did, bearing in mind that the material it had not unreasonably gathered did what - - -

McHUGH J: What is the negligence alleged against the road authority - failing to exercising its powers?

MR WALKER: No, if only. No, it is a failure to warn. That ultimately means, in the way the case was run, a failure to have a particular sign in a particular place. There may be a plurality of signs, though there is no condescending to that detail.

HAYNE J: And that is based on - is it based on a finding they should have known that this was a black spot?

MR WALKER: Well, yes and no. They should have known this was a more acute magnet for animals seeking feed and water than other parts of the road, though I hasten to say the evidence does not support that in anything other than the most impressionistic terms. To have stories by observers about a particular part of a road says nothing about its comparison with other parts of the road about which they are not asked to tell stories.

HAYNE J: And so far as the evidence went, the road authority presumably is taken to have had access to the accident statistics, whatever their infirmities may be.

MR WALKER: Yes.

HAYNE J: Is there any other evidence of them having actual notice of what were said to be the particular conditions that were relevant?

MR WALKER: Not the ones upon which the plaintiff founded, no. There is material in their files about reports of livestock and the like, but not giving colour to the plaintiff’s particular complaint about this particular vicinity, no, your Honour.

McHUGH J: Yes, there will be a grant of special leave in this matter upon the condition that the applicant will pay the respondent’s costs irrespective of the result of the appeal and the applicant will give an undertaking that it will not seek to disturb the costs orders in favour of the respondent in the court below. Do you give that undertaking, Mr Walker?

MR WALKER: I do not have instructions to give it now. I was going to ask could your Honour direct that the Registry be informed of the giving of that undertaking within a short number of days.

McHUGH J: Yes.

MR WALKER: I am obliged to your Honour.

McHUGH J: There will a grant of special leave in this matter conditional upon the applicant paying the costs of the appeal irrespective of the result and providing to the Registry of this Court within seven days an undertaking not to disturb the costs orders in the court below.

MR WALKER: May it please the Court.

McHUGH J: The Court will now adjourn.

AT 3.10 PM THE MATTER WAS CONCLUDED