Commissioner of Main Roads v Jones [2004] HCATrans 407 (25 October 2004)

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Commissioner of Main Roads v Jones [2004] HCATrans 407 (25 October 2004)

Last Updated: 1 November 2004

[2004] HCATrans 407

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P31 of 2004

B e t w e e n -

COMMISSIONER OF MAIN ROADS

Appellant

and

LLOYD RUSSELL JONES

Respondent

GLEESON CJ
McHUGH J
GUMMOW J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON MONDAY, 25 OCTOBER 2004, AT 2.26 PM

Copyright in the High Court of Australia

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR G.R. HANCY, for the appellant. (instructed by Corser & Corser)

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR K.J. BRADFORD, for the respondent. (instructed by Bradford & Co)

GLEESON CJ: Yes, Mr Walker.

MR WALKER: Your Honours, the issue at trial, which was determined by the judgment at first instance, has as its essential elements matters contained in the pleading and particulars. Whether the case is remarkable in that regard or not does not matter. What does matter is that it provided the point of departure between the minority and majority in the Full Court. As your Honours know, Justice Murray in the Full Court thoroughly endorsed the approach of the trial judge, Judge Charters, in relation to the finding on the pleaded and particularised aspect of negligence.

Can I take your Honours to volume 1 of the appeal book, page 2, where that issue first is introduced in the litigation. Under paragraph 6 on page 2, starting at line 37 and thereabouts, appear the particulars of negligence in their first guise; not really moved away from, but refined. It refers to the knowledge of wild animals being attracted to what are called “nearby watering holes” and then a simple failure “to warn motorists of the hazard thereby created”. The word “created” may or may not be intended to suggest that that is the responsibility of my client, the road authority. Presumably, if one looks down at particular 6.4, there is some flavour of that approach being suggested.

Particular 6.2 is a simple failure to erect warning signs; 6.3 would appear to be that which became the most pointed in the dispute between the parties:

failed to erect speed limit signs to prescribe a speed which was safe in the area in the circumstances –

“in the area” is one of those matters that became refined. Particulars 6.4 and 6.5 do not really add much, although, as your Honours can see, they are clearly an attempt, as it were, to blame as the creator the roads authority for the fact that there would be wild animals, including feral exotic animals, in this area.

Particular 6.6 is what became known in the case as a local audit approach. That is that matter that introduced in particular the distinction that your Honours heard about at the time of the special leave application. I will not be pressing it as a distinction of any precision, but there are useful labels in the evidence between the statistical evidence – that is the tendentious expression applied by our side to our material – and the anecdotal evidence, local evidence, which was equally tendentious, to describe witnesses who lived in the area of the accident site. That is where 6.6 eventually came down to in the way the trial was fought.

Could I ask your Honours in the same volume to turn to page 6, where there are further and better particulars supplied of the allegations in relation to the allegation in paragraph 7 of breach. At line 45 or thereabouts, one sees first that 80 kilometres an hour is introduced as the speed limit for what the relevant legislation calls a “speed limit zone”. That is done by the erection of signs and that is what you see in answer 1(a)(ii) at line 50 and following. One sees that there is the area there localised.

In our submission, as a precursor of the fallacy avoided by the trial judge but committed by the majority in the Full Court, that is a zone in which the accident is the centre point. Why on earth it would be, as it were, magically, the centre point of that speed limit zone is not clear, but one sees that that is the way the pleader and the particulars makes the matter, to a point at least 1 kilometre north and at least 1 kilometre south of the accident scene. So you have your accident and then construct a case in negligence by saying that that accident occurred right in the middle of what should have been a speed limit zone to no more than 80 kilometres an hour.

Your Honours, the way in which, in the Full Court, the findings of the trial judge were overthrown was simply to reverse the comparison carried out by the trial judge who surveyed the same evidence as that which the Full Court considered with one immaterial exception, a Mr Hobbs, to whom we can come in small detail later. The gist of the same evidence was reviewed by the trial judge. There were no credibility findings of a kind that went to anything in the nature of personal honesty or reliability of testimony in a way which would have prevented the Full Court from re-examining the matter. However, as we have put in our written submissions, the re-examination or review in an appeal by way of rehearing by the Full Court, in this case, in the majority, simply does not point out error at all except by itself committing the error of two factual assumptions.

I will come to those in just a moment, but they may be summarised thus. The majority in the Full Court found itself struck, that is, impressed, by the very large volume of accidents that our statistical evidence revealed for the 350 kilometre stretch Kununurra-Halls Creek. There was absolutely no evidence whatever, no attempt by the plaintiff, no challenge which the defendant needed to meet at trial, to show whether or not this was, to use the parlance of suburban traffic regulation, a so-called “black spot”, if you could even contemplate calling a 350 kilometre stretch of outback highway a spot. As a stretch, it had been studied in a way to which we will come, and it had been studied producing figures to which Justice Steytler added for the majority the anecdotal – that word again – figures from a Mr Riggs, who lost, he thought, about 50 head of cattle to road strikes per annum.

All that was added up to create this impression, which involved, of course, an assumption that there was something about the area where the accident took place, or, more accurately, something about the area where hypothetically the plaintiff might have slowed down so as to avoid the accident, which enabled any comparison to be made at all. Certainly, the figures which Justice Steytler found impressive enabled no such comparison, no such statement of relativity.

The second factual assumption which was made was one which was quite a serious error by the Full Court majority, namely, without confronting one of the important facts that the trial judge had dealt with in his careful weighing up of the actual response of the highway authority, left completely out of account that matter without giving any reasons for doing so. That matter is the one that says that in considering whether to place signs, how many signs to place and in particular where to place signs, the technical advice to and from within the Commissioner’s resources was that you have to take into account the counterproductive – we could gloss that as the dangerous – effect of placing too many signs for dangers which are relatively very well understood.

One can imagine, for example, bearing in mind what most drivers, by far the majority of drivers, know about the dangers of small children and their capacity to do things which are both unlawful and sudden and the fact that they tend to be small, one knows that in any suburban street where there are residences, there is a real possibility of children darting out. However, obviously enough, as your Honours appreciate, there is a large difference between the relatively new regime which obtains by signs and special time-limited and space-specific speed zones for schools and what applies generally throughout residential communities in which it is notorious that there may well be children who want to visit their friends across the road, et cetera, et cetera.

The notion that one, as it were, guided by the arbitrary pattern of decisions that arise in trial courts, puts up a sign in a zone which has an accident or near miss with a child wherever a court has either opined that that should have happened or where by analogy with court decisions that would follow is, in our submission, to be rejected. It is an absurdity that that would answer the requirement for a reasonable response by a roads authority to have, as it were, wherever there is a concentration from time to time and generational demographic shifts of children, to say, “This is an area where children may dart out. Watch out for children”.

Now, that is not to say that it may not be capable of being reasoned in a particular case. Had this particular driver seen that particular graphic road sign about the danger of children, then the particular collision with a child may not have happened. One may actually accept as a trial judge the self-interested after the event assertion with sincerity by a driver, for example, that “Had I seen the sign I would not have driven in that fashion in that area and maybe would not have hit the child plaintiff”. In our submission, that does not prove that there was negligence in the failure to have had a sign.

To prove that there may have been a different effect had something different from the fact been the case may be a contribution to the question of reasonable response and is certainly very important to the question of causation, but does not answer, of course, the whole question of reasonable response at all, and thus does not answer the negligence question.

Could I take your Honours by way of illustration of the kind of difficulty which the so-called local evidence which loomed so large in Justice Steytler’s reasons in the majority of the Full Court provides for a defence of the outcome in the Full Court. As your Honours know, both the trial judge and Justice Steytler, and, for that matter, Justice Murray, review in short summary form the effect of the evidence of the procession of witnesses who were familiar, more or less, with this stretch of road Kununurra-Halls Creek and with various particular parts in between.

Take, for example, Mrs McKenzie, whose evidence starts at paragraph 68 in volume 1 of the appeal book. She was at the relevant time a joint manager of Harry’s Place at Turkey Creek close by, passing the Great Northern Highway. At page 70, she gives her evidence coming from the fact that she had a house, a residential property, in Halls Creek and so she had fairly frequent trips between Turkey Creek and Halls Creek, “165 kilometres”, line 12. The Rocky Creek area at line 23 is, of course, the area near the accident. That is about 10 kilometres, called “klicks” at line 26, away from Turkey Creek. Then there is Little Mabel Creek, the other of the two creeks on either side of the accident site, just before Rocky Creek, and she is also familiar with that.

So the questioning in-chief has brought this witness – this is not a criticism – immediately down from the 350 kilometres Kununurra to Halls Creek and got her right to the few kilometres in question. The kilometres, as Justice Steytler says – there was conclusive evidence of it being of special danger, picking up the word “extraordinary” in the particulars in the statement of claim. Line 40, however, is the non-leading question which, having brought the witness to the actual location, counsel then asks:

Were there any particular spots where you encountered animals more frequently than others?

The answer, notwithstanding the tendency of that line of questioning to focus on that particular small passage of highway:

There was one occasion I nearly got run off the road just past Turkey Creek going to Halls Creek.

That one occasion would be what is called elsewhere in the evidence a “near miss”, one assumes. Line 50:

What did you encounter there?---A horse.

Had you seen horses in the area before?---Yes, I had.

presumably, “the area” means the area of that near miss –

How frequently?---Periodically.

which, I think, with respect, is a somewhat grandiose way of saying “from time to time”, because the next question –

Where was it that you were seeing these horses –

a non-leading attempt to get this localised relative statement –

Well, they were all along the road from Halls Creek to Kununurra –

That, of course, ties in with some very important evidence in this case of a kind which does permit the trial judge, as he did, to reconstruct what the reasonable response was of a highway authority, a highway authority not working backwards from the site of an actual accident, but looking forwards and being judged by the reasonableness of its response looking forwards for the whole highway.

GLEESON CJ: This refers to horses and then cattle. I presume there are animals of all kinds that get onto this unfenced road. Kangaroos, just for a start.

MR WALKER: It is not a Garden of Eden, so there is not all kinds, but there are kangaroos, cattle – that is bovine creatures – and horses.

GLEESON CJ: I am prepared to accept there were not any lions and unicorns, but there would be a generality, I suppose.

MR WALKER: There are those three at least. I do not know that it is camel country, but we have three beasts of a kind known to be very dangerous to drivers of sedans. Without any doubt, this is cattle station country. It is known as cattle station country. It is clear from the evidence that your Honours have seen summarised – and I am not going to take you to it in detail – that everybody who drove here either professionally or in a way that showed they were not just a passing ignorant tourist – and, mind you, by the time you have driven there as a tourist, one expects that your ignorance has been pretty much rubbed away – knows that this is cattle station country, in the sense that people, for a living, permitted by law, have cattle running in the country, being watered either at natural holes or by the bores about which there is so much evidence, pasturing on the country without fences.

This is not a case where we were sued for failing to tell people leaving Kununurra or leaving Halls Creek, “You are now entering unfenced cattle country. Beware at dusk horses, kangaroos, et cetera”. We are not sued for failing to have that informative placard, as it were, as one set out from either side on this journey. One of the reasons clearly we were not sued for that is because, if there is one thing the evidence seems to make crystal clear, it is that the unfortunate plaintiff, of course, knew just that. So there would be a dire problem of causation, were that the foundation of his allegation of negligence.

What we are sued for is not having had an 80 kilometre an hour sign, apparently in conjunction with a verbal sign – I think it would have to be verbal rather than graphic – to the effect that there may be animals, either straying cattle – when I say “straying”, perhaps that is unfair to the cattle - cattle at large or wild animals on their ordinary range. The whole difference between the trial judge and the majority in the Full Court came down to whether or not, discharging their appeal by way of rehearing powers and duties, they were able to detect error in the way the trial judge dealt with this evidence about how the roads authority could have or should have perceived that the area on which, amazingly, the accident was the centre place should have been an 80 kilometre an hour zone.

GUMMOW J: The answer at page 72, lines 10 to 15 - - -

MR WALKER: Is one which I was about to lead up to. In between, what your Honour Justice Gummow has noticed – could I, if your Honours will forgive me, dwell briefly on how typical Mrs McKenzie is of the justified approach to which the trial judge came. At the foot of page 70, after all, “the same as cattle”, she says of horses:

It’s nothing to see animals on the road –

meaning thoroughly well expected –

It’s one of those things that you expect.

The examiner has another go at the top of 71:

Were there any sections that were worse than others for animals?---Rosie’s Yard is pretty bad but that’s a yarding place, so you always saw them there.

Now, that is the yarding not of brumbies, but of cattle. There is evidence, of course, that where there were designed collection points for cattle, with maybe a thousand head at a time crossing the road, there were signs. Mr Riggs, to whom Justice Steytler makes such reference, after all, was talking about losing 50 valuable beasts, not brumbies. He did not say anything about the road kill of brumbies:

Mabel – many of the stations.

Mabel is a station. All of them are large. Mabel was a station. Mr Riggs gave evidence about his 50 a year loss – one could be forgiven for thinking that 50 was a pretty round figure by way of an estimate – where there was 70 kilometres of this highway traversing it, 70 kilometres. Justice Steytler had no evidence enabling him to locate the 50 at a watering place for cattle, a yarding place for cattle, a bore for cattle. He did not have anything for the 50; it just popped out in-chief, no location at all.

That is another way, compared with what Mrs McKenzie was saying at this stage, of demonstrating how right the trial judge was to see that overall the evidence could not support a differential location of differential risk, bearing in mind the climactic seasonal and purely arbitrary questions to do with the conjunction of motor car and animal:

Every station you would come to –

said Mrs McKenzie –

there was always a yard that you would see them around.

Counsel gives up at that point in terms of the non-leading way and focuses back on the accident:

Did you become aware that there had been an accident on 2 May . . .

Between Little Mabel Creek and Rocky Creek on the Great Northern Highway?

So now we are back on the spot, as it were. We get down to skid marks and, down at line 50, the colour of the dead horse. Then he has another go at line 53:

Had you encountered – I’m looking here at the area of the creeks, Rocky Creek and Little Mabel Creek.

that is the particularised area for the litigation –

Had you encountered animals in that section?---Yes.

one interpolates, that follows from what she had said before, of course –

How often had you encountered animals in that section of the highway?

she has already told him what her answer is going to be to that –

Well, it’s periodical, you know. Sometimes you could go past and you wouldn’t see any animals, and other times you could drive past there and you could see animals. So you always had to be aware on the stretches of road that you drove that there were animals.

Which stretches are you talking about?

This is, I think, the fifth go counsel had invited her to say this was a real danger spot. She says:

From Halls Creek to Kununurra.

All the other so-called local evidence backs that up. Even Mr Chulung, whose evidence formed such an important part of the case on the other side which succeeded in the Full Court, never said anything to suggest that Halls Creek to Kununurra was not what Mr Hobbs, the truck driver, had said: a notorious, dangerous stretch, the whole 350 kilometres of it, because it was cattle station country, unfenced, country where there was, as well, the infestation of feral horses:

Were there any signs that you saw, in the years that you travelled those roads, of dead animals at the roadside?

One would have thought, if there was any question that did not need to be asked at this stage in this litigation, it was that one. She talks about:

[the] joke at the roadhouse . . . “Why do the animals die at the side of the road?” –

as if this was a sort of equivalent of the elephant’s resting place phenomenon, and she talks about:

There was always green grass at the edge of the verges.

There was another empirical way that one might have, if setting out to assemble in a court, if you were setting out to show that this was a particularly bad patch which ought to have been predicted as such by the road authority, so as to justify the risk of the counterproductive effect of having a sign to warn people of what everybody already knew, there was a clue. There is no pasturage relative greenery exercise in this case at all.

Your Honours, in our submission, once one sees the kind of detail of this supposed local evidence which, it is said, the trial judge unjustifiably devalued, it is, for the reasons we have put in our written submissions about each and every one of the relevant witnesses, quite impossible to say that it ever permitted a comparative statement of the kind ventured by Justice Steytler.

Could I take your Honours to the particular passage where we say error was committed. It starts in volume 3 of the appeal book at page 618 in paragraph 90, where his Honour records the nine local witnesses. Bearing in mind that this all culminates in the notion of conclusive evidence of a localised, specially heightened danger, it is an unpromising start. Paragraph 91:

Constable Tysoe . . . based at Kununurra . . . travelled frequently on the Great Northern Highway –

in other words, a bit like a highway authority, a rather less localised view than locals –

he “quite often” saw animals . . . “all up and down the highway”.

That means from Kununurra to Halls Creek, not regular near Turkey Creek. Then we had Mr Chulung. In paragraph 92:

He was asked about how often he saw animals in the area of Rocky Creek and Mabel Spring Creek –

that is the very small stretch on which the accident is centred –

on a conservative assessment, he would have seen animals on six out of every 10 occasions . . . in particular, “around Little Mabel Creek . . . [and] around the Six Mile Bore between Mabel Downs and five kilometres north of Turkey Creek”, although he added that he had seen cattle and horses and, to some extent, donkeys –

that is another answer to your Honour the Chief Justice –

on most of the highway between Kununurra and Halls Creek.

Now, that is not evidence that Justice Steytler is able to use to localise or relativise the intensity of risk. Then he says:

the main stretch of road that he was “very careful about . . . in terms of cattle and horses, was the stretch between Turkey Creek and Mabel Downs.” He said that that was a distance of about 25 to 27 kilometres.

A question would arise, had the case been pleaded differently, as to whether that is evidence on the basis of which Justice Steytler’s approach to second-guessing the highway authority would say that whole 25 to 27 kilometres was a candidate for 80 kilometres an hour – 80 kilometres an hour in roads where I think your Honour have seen in coloured photographs are of a kind, of course, you would expect. It may be from where I come, but we are castigated for using the word “outback” in the first of the ways which we state the issues in our written submissions, but it – your Honours do not have it?

GLEESON CJ: No, I have not seen any coloured photographs.

MR WALKER: I am sorry, your Honours. I have been given one which has been prepared by the plaintiff’s solicitors. I had understood - - -

HAYNE J: At 252 to 291, we have black and white repros of what I suspect were colour photos.

MR WALKER: Yes. Most of that black and white repros are as useless as usual, I am afraid, your Honour. They are very, very difficult to see. May I hand up the colour reproductions which had been originally prepared, as I understand it, for the plaintiff’s case?

GLEESON CJ: These were in evidence, were they?

MR WALKER: Yes, and they are contained in black and white uninformative version in the appeal book. Some of them are black and white night shots.

GLEESON CJ: Did you say “green verge”?

MR WALKER: I did not. I think it is all relative, depending upon what the Turkey Creek roadhouse looks like.

CALLINAN J: Mr Walker, the accident happened at about 7.00 pm, did it?

MR WALKER: 7.00 pm, yes.

CALLINAN J: What was the evidence about the light?

MR WALKER: The evidence about the light from Mrs Stewart, the passenger, was that as they left on the trip it was getting dark, but the sun was not completely down. 7 o’clock is - - -

CALLINAN J: It was May, was it not?

MR WALKER: Yes, it was May. It is accepted that 7 o’clock is after dusk and it is also, as your Honours have read, dusk – for some reason 6 o’clock is assigned for that. The two hours after 6 o’clock is the worst time for hitting animals attracted by water.

Now, if you just start then with the first two photographs, A1, A2, I am not going to dwell on the photos at all, but what they show, your Honours, is the kind of road where the likelihood, one could be forgiven for thinking bearing in mind the expert evidence about how speed limits are selected, of people, I venture to say, crawling along at 80 kilometres an hour for a 25 to 27 kilometre stretch of the kind identified by Mr Chulung is clearly a dangerous use of signs, a use calculated to destroy their credibility and bearing in mind that one could readily expect that for the whole of that time and length of road for many people traversing it, they would not see anything that troubled them particularly.

When one sees in the evidence the concentration of accidents to the time of day, 6 to 8, when one sees the concentration in month of the year, it is November, I think, it is the worst, in our submission, the notion of a response of the kind that Justice Steytler’s reasoning would suggest to Mr Chulung’s 25 to 27 kilometres would be rejected. If that is rejected, that is really the end of any evidence even given any weight being appropriate to be applied to his impressionistic version of what was worst.

He too, in paragraph 92 lines 15 to 20, backs up what he says by referring to a single occasion. Well, single occasions are all very well, but they do not permit anybody ever, with any cogency, to say to a roads authority, that is a particularly bad spot.

CALLINAN J: Mr Walker, photographs G which show some signs - what was the evidence about how far those signs were from where the collision occurred?

MR WALKER: They are quite a way away. They are, as your Honours see in G1, that was an example of the attempt made where you knew there was an artificial work next to the highway which was calculated to attract cattle, Tickalara Bore. I will get your Honour the exact kilometres that Tickalara Bore is from the accident sign but it is – everything is relative, of course, but it is not just nearby.

CALLINAN J: Anyway, there was a bore and that is an artificial water source.

MR WALKER: Yes, that is right. Now, I will come back to water sources later but, of course, it was May, there had been good rain in 1992 and better rain than when the trial was had because the trial judge observes that there were hundreds of watercourses in this rough country at the time, hundreds of them, that is, for the brumbies.

I have already told your Honours about Mrs McKenzie. She is referred to by Justice Steytler in paragraph 94 on page 619. Again, difficult to see why this is adding up to a conclusive indication that 1 kilometre on one side, 1 kilometre on the other side of this accident site, should have, before the accident had occurred, been singled out, perhaps not alone, but been singled out, identified, as an 80 kilometre an hour zone on the basis of reports of livestock.

Mr Carter is next at paragraph 95. He as well said the obvious:

cattle or horses might be found anywhere along the journey between Halls Creek and Turkey Creek.

Cross-examination did not make that any worse for us –

watering points from Turkey Creek north to Kununurra.

Then there was Mr Purdie. He had lived at Turkey Creek since 1966:

always horses and cattle on the road, all the way between Turkey Creek and Halls Creek.

No one has suggested, nor could they sensibly suggest – that is an observation that means you could slice this 350 kilometres up into, as it were, broad zones and that that was one, on Mr Purdie’s evidence, that should have been this arbitrary 80 kilometres an hour. Then he refers to the fact:

there was always water in Mabel Creek.

That, of course, highlights an important matter. That means even in a dry season, but May 1992 had not been and every year there is something in the nature of a wet. So it is going to alter, according to the quality of the season as well as to the movement of the planet. He too adds that which could only ever be properly called anecdotal, not useless evidence, but evidence incapable, treated in a commonsense way, of giving rise to the comparative statement which drives the overturning of the trial judge by Justice Steytler. At the foot of paragraph 96 on page 619:

He said that he had himself once had a “near miss” –

That really does not support any of the vehement disagreement with the trial judge that one sees culminates this progression of dealing with the evidence. Paragraph 97 on page 620 – Dallas Purdie, and he identified watering places including three bores as well as Rocky Creek:

all of these were bad spots for animals. He said that, “being a local you slow down in these spots . . . because of the hills and the winding road. You slow down because you know there’s animals around them areas.”

That did not enable any of this localising of the kind that the Full Court majority came to in their reasoning.

Then we come to Mr Hobbs. He is a professional driver and being a truck driver, of course, he is driving the kind of vehicle that might not bother to try and avoid any of Mr Riggs’ cattle, for example:

Kununurra and Halls Creek was one of the most dangerous roads for animals that he encountered, when compared to other places in the Northern Territory or the Kimberleys. He said that “that particular 300 or 400 kilometres of road” was “sort of notorious”. He said that the area between Turkey Creek and Halls Creek (a distance of about 160 kilometres) was a particularly bad spot –

Here he has used the word “spot” –

and that there were certain areas where animals would come down to water or cross the road to their watering points.

Well, yes, but they varied from season to season, place to place, presumably the thirst of individual animals and where they were at the time. Then he refers to another spot which is difficult to ascribe a distance to, but it is not the two or so kilometres that the plaintiff’s case depended on.

Then we have Mr Mahoney, departmental engineer. He talked about what we grandiosely dub the statistical material, including reference to some audits having been conducted. At page 621, paragraph 100 in Justice Steytler’s summary:

When asked whether the road between Kununurra and Halls Creek –

I have been calling it 350, it is just over, I think –

was notorious for animal hazards, Mr Mahoney said that it was no worse than other areas and that there were other similar areas between Fitzroy Crossing and Derby. He also said that the Department had not been getting “a lot of feedback that the animals . . . were anything out of the ordinary”.

That is not surprising because the evidence discussed to this point shows that it was ordinary, that is what one would expect. You are driving, after all, through cattle stations -

He said that warning signs, indicating cattle crossing, were put up in areas where there was permanent water -

which can be treated as a reference in particular to the artificial bores.

Then we have Mr Riggs who came up with the 50 head a year road strike loss. He, of course, was talking about a responsibility as in animal husbandry for a large expanse of land which contained about 70 kilometres worth of this highway. You see that in about line 27 or so. The brumbies had been:

“running up there” for years. The range in which they were to be found –

that is not the expanse of where they run but I think the upland –

was only about a mile away from the Great Northern Highway. He said that horses and mules and donkeys were attracted to a nearby spring. He said that, in May, pools of water could be found in Rocky Creek and Mabel Spring Creek and that good food for the horses was to be found in that region.

That is scarcely the stuff of localising to a 2 kilometre 80 kilometre an hour stretch.

He said that the locals avoided night travel in that area if they could do so.

We know the plaintiff wanted to as well. The evidence that has been drawn to your Honours’ attention in the written submissions includes their fateful, perhaps, choice to delay when they could not get the ordered four-wheel drive at the car hire and eventually a taking of the Falcon sedan and leaving later than they had intended so as to avoid leaving even later so as to avoid night driving in this area.

Mr Riggs had another of these single events, no doubt important by way of impression but not adding anything to the quantitation approach finally taken by the majority in the Full Court, line 43:

He had himself collided with a bullock in the area. He did not report the accident. He said that it was well known by the locals that animals could be found around the Rocky Creek junction area, although he also said that he frequently saw animal bodies by the side of the road elsewhere between Kununurra and Halls Creek.

Now, if the court is making findings in those general terms, “frequently saw”, and the evidence does not permit anything more precise as you would expect, it really is a self-confessed inadequacy of the material before the court to have isolated this zone with the accident site in the middle of it for the 80 kilometre an hour.

Then paragraph 102, the stretch that is there talked about – at least that is not a spot, that stretch is the approximately 70 kilometre’s worth and again, nobody has ever suggested that approximately 70 kilometres should have justified anything in the nature of an 80 kilometre an hour permanent speed limit for the whole of that time, especially losing about 50 cattle per anum through collisions there.

Now, one thing to be interpolated here as a matter of reasoning from the Bar table is this. When we come to the so-called criticisms of the statistical material, there is the important description of it as not counting certain things. In particular, however, one has to say it does not count that which was not countable because it was never reported. If a vehicle strikes an animal and it caused someone to be in hospital, that is going to be reported. If it caused somebody to need medical assistance, that is going to be reported. If it caused damage to the vehicle, using the arbitrary greater than or less than $1,000, that also appears to have been reported, although it may not have always been reported.

But if the vehicle was of a kind that, as your Honours know, does travel in that part of the country, a behemoth, as it were, with what is called a bull-bar on the front, what is to say that the phenomenon of one of Mr Riggs’ cattle being killed by such a vehicle comes about because, unlike a sedan, the calculus of risk a truck driver carries out is quite different from the calculus of risk a motorist in a sedan carries out. He may not be travelling as fast in the first place, not as manoeuvrable, more dangers with sudden manoeuvres and the capacity simply, as it were, to swat them out of the way causing either no or not much damage to the vehicle.

We do not know, but that is the kind of thing which before embarking upon the criticism, quite scathing as it happened, by Justice Steytler of the reliance on statistical material, would need to have been explored at trial and taken into account in the Full Court. None of that happened, hence error in the Full Court in simply substituting a different view, a weaker view, with great respect, for that taken by the trial judge about all of this material.

GUMMOW J: Is there any consideration in the Full Court of any analysis of the relevant legislation? After all, this is a case about negligent failure to exercise a statutory power, is it not?

MR WALKER: Yes. Your Honour asked about analysis. I think the answer is no.

GUMMOW J: There was not any in statement of claim, it must be said.

MR WALKER: None in the statement of claim – we have given your Honours the authorities, including that material. Could I take you to it now.

GUMMOW J: Was this a highway or a main road within the legislative regime?

MR WALKER: This is a main road.

GUMMOW J: Main road.

MR WALKER: Now, in the definitions section you will see on page 3 of the first extract from the Main Roads Act 1930, that the meaning of “road” is a very broad one and includes:

other things appurtenant thereto or used in connection with the road –

and “road construction” is equally very broad. The provisions which have been extracted in at least one of the sets of reasons below start with section 13 on the foot of page 6 of that first printed extract. Not a great deal turns on the terms of section 13. There is, of course, there a - - -

GUMMOW J: But this was a main road.

MR WALKER: Yes, but section - - -

CALLINAN J: There is a nonfeasance provision, is there not?

MR WALKER: Your Honour Justice Gummow, I have just been told that I cannot vouch for that last answer I gave you about main road or highway, but I will have inquiries made.

GUMMOW J: All right.

MR WALKER: Apparently, I am told by my learned junior, that was not explored. I think the word “explored” may be - - -

GUMMOW J: It is not a question of exploring it, it is a question of knowing where you start.

MR WALKER: I know, but I will have that ascertained. I do not think that there is - - -

CALLINAN J: Is there a nonfeasance provision?

MR WALKER: In the answers to interrogatories at volume 2, 195, it is “a gazetted main road” - line 25 on that page.

GUMMOW J: Thank you.

MR WALKER: We then have section 14 which is the political power to enliven the statutory provision by the Commissioner of Main Roads and then section 15(2), vesting the:

care, control and management of the land over which a highway or main road is declared.

Subsection (3), doing that in some detail in relation to certain matters and then, although I do not think this was set out in any of the reasons below, section 16(1)(a), among other things:

improve and maintain all highways or main roads, and do all things necessary for or incidental to the proper management thereof –

The Road Traffic Code 1975 which was in effect at the relevant time, contains in the next extracted passage in the bundle of authorities regulation 301(1):

The Commissioner of Main Roads may erect, establish or display, and may alter or take down any traffic sign or traffic-control signal.

What is relevant for present purposes, of course, is that that is a power and, in our submission, the same considerations as this Court concluded in Brodie applied to the exercise of such power, meant that adapted to the exigencies of a road authority the common law, as stated and restated by this Court in Brodie, of negligence applies to hold my client liable if its response judged against the standard of a reasonable person in his position was not such as this Court would regard as reasonable, taking into account the interests of persons such as the plaintiff, which they undoubtedly had to take into account.

McHUGH J: But why not? You provide roads, people go on those roads. You come under an obligation to take reasonable care for the safety of those roads.

MR WALKER: Yes.

McHUGH J: There is not a single sign concerning animals along the whole of the highway, is there?

MR WALKER: No, that is not correct, there are - - -

McHUGH J: Well, apart from the “Cattle Crossing” signs.

MR WALKER: Those are very important because - - -

McHUGH J: Of course they are, but this is a main road used by people who may not be familiar with the area, tourists, perhaps people from overseas, and you know of the risk. Why does not the exercise of reasonable care require you to erect signs?

MR WALKER: It well may be it requires us to have the kind of informative placard that I referred to earlier when opening the matter, and in particular for tourists or people who might be understood never to have been there before, although I do stress the country you would have to cover in order to get there suggests that you know something about what is happening. It may well be that if there were a plaintiff who could say credibly, “I had no idea that as I drove along this road” - 110 kilometres an hour being the maximum that is permitted - I did not take your Honours to that, but that is contained in clause 1001 of the Road Traffic Code at page 49 of the print we have given you.

If there is a plaintiff who could say, “Look, I knew 110 kilometres an hour along this road – there is nothing to say it is not 110 kilometres an hour so that is my limit, never dreamed it was possible that I would be driving along at that pace and suddenly a horse or a donkey or a group of cattle would be actually on the carriageway”, and if they came from Europe or Japan or something, that might be a very credible, if rather unimaginative thing for them to say. If one is talking about subjective inference, that might be credible. That would give rise to a question as to what was a reasonable response by that highway authority looking ahead to that kind of contingency, and will include - - -

GLEESON CJ: It would also give rise to a question of what language you put the sign in.

MR WALKER: That is exactly what I was going to come to. It would certainly include having thought about, as a matter of reasonableness, who it is that such a thing would be guarding, whose safety would require such a placard. You would certainly come up with a need to consider something other than familiar black and yellow signs, particularly if they were familiar black and yellow signs which were asking people to do something which is calculated to be counterproductive. The evidence was unchallenged and Justice Steytler simply, with respect, does not deal with it, does not confront it. The evidence is that you have got to be careful as a highway authority about warning excessively about matters which are within ordinary driver expectation.

When one couples that with a speed limit which is most unlikely to be observed, then one has, whether you call it “Wolf, wolf” or any other commonsense possibility, you have something which means that if you are thinking about people – of whom the plaintiff is a great example – people who are familiar with the area, then the problem of the naïve Japanese or the ignorant Dutchman, assumes an entirely different way. It may be that you will co-operate with all hire car operators, for example, to make sure that whenever they hire cars to tourists, there is a Commissioner of Main Roads handout to warn them of hazards.

GLEESON CJ: What did the evidence show? I think it is a very interesting topic. What did the evidence show as to what highway authorities do set out to warn people about? Is there some kind of standard?

MR WALKER: Yes and no. There is evidence of a standard, there is evidence of – I will call it a principle, though really it is – they use abstract nouns. They talk about driver expectations, usual driver expectations, and how signs should relate to those. There was no evidence adduced in this case of what might be called an accepted, orthodox or standard approach to warning of hazards such as this kind of hazard. There was no relevant Australian standard, for example, at the time. So what we have in the expert evidence, and it is unchallenged, is that a decision is made knowing of the risks – and this is not a latent risk case, this is a blatant risk case – as to the way to deal with it.

So Justice McHugh’s question to me, I accept, raises a matter which needs to be taken into account by the roads authority in a country committed to tourism. There is no question about that at all. But this plaintiff, with respect, cannot complain about not having been informed, either by a handout from Avis or by a placard as he left Halls Creek or Kununurra, that there is the risk of straying stock.

McHUGH J: No, but there is the question of inadvertence. I mean, people - - -

MR WALKER: Well, your Honour there is raising the question which, in our submission, puts on a warning light about judges assuming more expertise than the evidence before them would justify them in assuming. In particular - - -

McHUGH J: Well, this notion that by repetition you do not drive a message home seems to be contrary to everything that you know about advocacy and about advertising.

MR WALKER: I do not know about advertising, your Honour. Repetition has rarely been said to me to be a merit.

McHUGH J: I mean, if you want a message to sink in, you have to raise consciousness, and the more you repeat the message the more it sinks in.

MR WALKER: I am not quite sure that is always true, your Honour.

McHUGH J: You have only got to look at the last election campaign to see - - -

MR WALKER: I will say nothing about that one at all, your Honour, but in this Court, although I undoubtedly repeat myself, I have never noticed that the more I do it, it becomes more effective. The contrary seems to be the case.

GLEESON CJ: But there must be a lot of expertise in this area.

MR WALKER: Yes.

GLEESON CJ: It just cannot be the case that individual managers of road authorities in various parts of the world sort of lick their finger and put it up in the air and see which way the wind is blowing. There must have been a lot of thought and experience gone into the principles according to which you warn motorists of hazards.

MR WALKER: Yes, that is exactly right. That is why the material, if I can take your Honours back – perhaps the best place to go is in fact the trial judge. If I could take your Honours to volume 2, page 326, starting at about line 35. This is a somewhat tangential answer to the Chief Justice’s question. Your Honour, in answer to your question more directly, undoubtedly, that must be so. Whether it is called industrial psychology or whatever, there must be a great deal of material. Equally undoubtedly, the plaintiff did not assemble material in this case which amounted to any substantive challenge at all to the glimpse – I suppose it was only a glimpse – of this kind of learning or study which Mr Holdsworth, as well as Mr Mahoney, was able to give.

He is an engineer whose expertise is in transport planning, development design, road planning and traffic control, which would appear to be on point. He goes to the statistics from that subclass of events, which is the reported accidents, and his Honour notes how the area of the accident is embraced by the two bridges with “No Overtaking or Passing” signs on them. Then the statistics start at the foot of that page 326: 50 accidents over 7.33 years prior to the accident between Kununurra and Halls Creek. They are broken down into relevant classes, one would have thought, for trying to ascertain, in a Shirt’s Case approach, the seriousness of the matter: 36 only property damage, 9 involving an occupant medical treatment, 5 off to hospital, 6.82 accidents per year.

“There was a concentration of accidents in the vicinity of Halls Creek” – if you go in the same volume to pages immediately before the judgment, page 316, your Honours will find a fold-out map. It is the one with an “Inset A”. That inset A is designed to show what his Honour observed, namely, the concentration of accidents around Halls Creek. One assumes that is as much a question of human settlement as animal wandering. You can see the plot along the stretch from Halls Creek to Kununurra.

Going back to the reasons at 327, it will have at about line 30 the time of the day and the time of the month as being special, 6.00 pm in the month of November. Then at 35, nothing in Australian standards at the time, “warn[ed] of the possibility of wild or unattended animals other than kangaroos in a road environment”. There was a provision for “Temporary Hazard Signs”. Now, that is because normal driver expectations necessarily involve that the dairy herd is going to cross the road from paddock to dairy, but we are all used to the road signs that warn of the dairy crossing.

Then there is the “stock” warning sign, introduced two years after the accident. Then – this is a paraphrase of Mr Holdsworth’s evidence, line 50:

Too frequent warning signs are discouraged for the reason that they tend to “detract from the effectiveness of warning signs in instances of particular importance”.

A sign “will command attention if it has either meaning or novelty such that the reception of its sensory stimulus –

presumably, that means sensory in cognitive stimulus –

in the driver’s mind will lead him to give it cognitive priority within his mind” – a quotation from a publication.

Now, the parties simply did not take this on in any more sophisticated fashion than that. That was a pretty good throwing down of a gauntlet by the defendant, “Look, what we did was in accordance with the state of the art”.

GLEESON CJ: Was there any evidence as to how far you would have to drive on a journey from Halls Creek to Kununurra, or from Kununurra to Halls Creek, before you would be bound to see stock of some kind grazing alongside an unfenced road?

MR WALKER: No, no quantitative evidence, but the impressionistic and verbal evidence would be strongly to the effect that you would never expect to do so. Not the 350 kilometres. You would never expect to drive it without seeing animals. That is from the words of – the intensives used when they talk about “very likely”, “you see it all the time”, et cetera. So I cannot answer your Honour’s question in terms of a rate of encounter, if that is what your Honour is asking me about, either in terms of time or distance.

I remind you of Mrs McKenzie’s evidence at the top of page 72. Before she talks about the joke at the roadhouse, “Why do the animals die at the side of the road?”, her answer started, “Always, always”, in answer to the question of seeing dead animals at the roadside. Now, that is not quite the same as seeing a live animal - - -

GUMMOW J: You would drive over a number of cattle grids, would you not?

MR WALKER: Yes, your Honour, observed by Mr Holdsworth in his evidence, considered carefully by the trial judge at 327, 328. Now, just finishing off what Mr Holdsworth was saying, at the top of page 328, a view accepted by the judge and really not contested by the plaintiff – so if this is only a tip, a very small tip, of an iceberg of learning, then it is certainly one that the plaintiff did not suggest did not represent the quality of the ice beneath:

“The effectiveness of warning signs in instances where they are important can only be maintained if the use of warning signs is limited to instances where the road environment is likely to present a hazard which is outside the probable driver expectation.”

We are not dealing with Japanese tourists or Dutch tourists.

GLEESON CJ: Was there any evidence of a warning sign having been erected after this accident?

MR WALKER: In this vicinity, no. Not in the record as I have seen it, your Honour, no. Now, there is – perhaps this is as good a time as any to mention it – the material which was the subject of argument in the Full Court.

McHUGH J: This is the new evidence, fresh evidence?

MR WALKER: New evidence arising from – I will call it, against ourselves, “belated discovery”. There is a debate, not appropriate to this Court, as to whether it was truly discoverable material, et cetera, et cetera, but this is not a Quade’s Case point. The majority in the Full Court said of the material, “We don’t have to look at it because it does no more than we’ve already done on the material before the court at trial level”. The minority in the Full Court, Justice Murray, says, “Look at the material. It doesn’t help”. We maintain that. Were we to succeed in this appeal, it ought not to be remitted to deal with that material. There is simply no smoking gun in that material.

Could I take your Honours, by way of illustration, to the closing lines of my learned friend’s written submissions. In paragraph 36, the second last paragraph on page 10 of the written submissions, speaking of this material, it says:

The material, if earlier discovered, might have been used:
. . .
(d) to show the existence of additional complaints about animals on the roads in the Kununurra-Halls Creek area.

Now, one imagines that if there was, in any of that material, anything such as – if you will forgive the language – “Oh my goodness, we should’ve had a sign there”, the usual post-accident response beloved of plaintiff lawyers, then that would be drawn to attention. There is none, so far as I have been able to understand that material. Similarly, one observes about 36(d):

additional complaints about animals on the roads –

in the plural, in the whole Kununurra-Halls Creek area is simply not going to answer in relation to the - - -

GUMMOW J: Where are you reading from, Mr Walker?

MR WALKER: I am reading from 36(d) in the respondent’s written submissions.

GUMMOW J: I see.

MR WALKER: Is simply not going to answer the questions raised by the plaintiff’s pleaded and particularised case.

GLEESON CJ: Mr Walker, you may have been coming to this, but on page 622 in paragraph 105 there is what I understand to be the critical finding. I would like to understand, a little better than I do at the moment, what it means. Paragraph 105.

MR WALKER: Yes, that is the culmination of the matter I have been addressing.

GLEESON CJ: It says:

there was a need . . . to place signs . . . on those parts of the road in which animals were more frequently to be found.

More frequently than what?

MR WALKER: Quite. The comparator is never said. By implication, it means more frequently than in places where the signs did not have to be placed. Now, we do not know anything about how one scales a count, whether one ascribes significance to a slight excess or a great excess or does it need to be a multiple of three or four? One does not know whether you are counting by reference to time, that is, how many reports in that general location counted over time, or whether you simply historically score for a location whenever it is reported.

Much more importantly, you do not know what unit of distance they are talking about. Are they talking about stretches which would be susceptible sensibly of a lowered speed limit, stretches where it would be sensible to say special or extra risk of straying stock without saying anything about the speed limit? Because, after all, most of the time the whole stretch of road is subject to this same risk. So it would appear that in terms of speed limit, it would be most odd to single out, from reports of near misses and the like. You are never given the comparison or how it should have been counted, let alone how it was counted by the Full Court majority in this case to produce negligence on the part of my client.

Now, your Honour, in reading from 105, to make your Honour’s point, left out a phrase, of course, which we will ourselves emphasise separately, and that is the phrase in the second and third lines:

throughout the length of the road between Kununurra and Halls Creek –

Now, there is the seed of destruction, in our submission, of Justice Steytler’s reasoning.

GUMMOW J: What is that mileage again?

MR WALKER: 350 plus kilometres. Because, with respect, his Honour is right, as a road engineer. As a road engineer, his Honour is right in saying, “You’d be looking at the whole length”.

HAYNE J: Does his Honour identify what sign, as distinct from a speed limitation sign, should have been put?

MR WALKER: Not really.

HAYNE J: Which brings me to - - -

MR WALKER: Can I – 112, I do not think, is identification, but I need to draw it to attention.

HAYNE J: Well, that brings me to - - -

MR WALKER: Do your Honours see the reference:

had there been a warning sign as to the particular danger presented by straying animals in the area –

Now, I do not know what that means the sign would say.

HAYNE J: What was the status, if any, of the report of Mr Holdsworth, which appears from pages 219 and following and appears to have been received as an exhibit, Exhibit Q? There appear to have been sections blocked out, presumably not admitted. In particular, I have in mind what appears at 225 and following. At 226, we find the source of the quote that the trial judge made about sensory stimulus, et cetera, but at 225 we find, at least as I read it, the then current Australian standard, at line 44:

did not define a permanent sign to warn of the possibility of wild animals or unattended animals (other than kangaroos) - - -

MR WALKER: Yes. You have got “Stock Crossing”, “Stock Droving” and “Kangaroos”.

HAYNE J: Then there were some other permanent signs in regular use in other States, not in the standard, referred to as “supplementary” signs, “koalas and wombats”.

MR WALKER: Koalas and wombats, yes.

HAYNE J: Now, is there any other material that bears on this conclusion that his Honour Justice Steytler reaches in 105 about “to place signs warning of the danger of straying animals”?

MR WALKER: No, and the way in which the plaintiff undertook to prove the case really left the field for an expert such as Mr Holdsworth.

HAYNE J: Who called Mr Holdsworth? Which side?

MR WALKER: We called him. Our point is that – and I say this with the greatest of respect to the exercise of judicial power – there comes a point, even in, perhaps especially in, the trial of a negligence action at common law in relation to the exercise of statutory powers involving considerable and sophisticated expertise such as traffic engineering, where an intermediate appellate Bench should be very slow indeed to overturn a finding below based upon virtually unchallenged expert material, where the trial judge has not committed anything that can be seen to be an error – it seems to be a matter of appellate disagreement only – and where, one way or the other, whether you are the trial judge or the intermediate appellate court, you are in grave danger of appearing to second guess in an area of expertise where, by definition, the burden placed on the defendant is to contemplate a large class of persons with a huge range of capacities to appreciate risks and to look out for themselves.

In other words, where you know as a defendant you are not going to get it right for everyone. For some people, you are going to run a risk of being counterproductive by warning signs; for other people, you will run a risk that you will fail to inform them of something which, very surprisingly, they did not know.

GLEESON CJ: But to return to Justice Hayne’s question, the warning in question on the theory against you, which I do not think your opponents resile from at all, was not “Stock may cross this road”.

MR WALKER: No.

GLEESON CJ: Almost everybody knew that stock may cross this road, and certainly the plaintiff knew that stock may cross the road. The warning and the need for the 80 kilometre road sign was, “This is an area” – query extent of area – “in which there is an unusually high risk of stock crossing the road”.

MR WALKER: That is right. Paragraph 107, page 623, between lines 40 to 45 makes that very point. That is the point, and that is why I have laid the emphasis I have on the great inadequacy of the evidence and its treatment in the Full Court by the majority to show the trial judge erred in saying you could not single out in advance, before the accident, you could not say to the defendant, “You should have singled out that zone, 2 kilometres or thereabouts, for 80 kilometres an hour”. We entirely accept that the plaintiff’s theory of the case almost starts with the premise, “I knew about straying stock”. If it did not start with that premise, that was fairly readily established.

It is all about a special extra degree of risk, but the comparisons in question are entirely spurious on the basis of the material before the trial judge, considered by him. As I say, I think he leaves out Mr Hobbs, but that does not make any difference that helps the plaintiff.

When your Honours go back, then, to page 105 in Justice Steytler’s reasons, pages 622, 623, one sees that from a traffic engineering point of view there is consideration, his Honour said, of the whole length of the road. It is at that point, of course, that the incapacity of the evidence to single out the accident zone as something which would have, on such a consideration, produced 80 kilometres an hour “Slow Down” signs, emerges all the more terminally against the plaintiff.

Now, we are also taken to task in the written submissions for suggesting that one way to see the issues is whether there was a need for us repeatedly to warn along this stretch of road. The fact of the matter is that when one looks at paragraph 105, that is what the majority view in the Full Court does require. Repeatedly, that is, wherever one finds that which is described generally here as:

those parts of the road (including that in which the accident occurred) in which animals were more frequently to be found –

there is no attempt whatever in the reasoning to grapple with the difficulties identified by the trial judge. How do you describe and know such a place? Do you, for example, differentiate according to seasons – either the quality of the season or the time of the year – when you are counting?

McHUGH J: Why could the Full Court not rely on Mr Mahoney’s evidence? He said, “If there is a place where it is specifically known that there are animals, then we are obliged”.

MR WALKER: That evidence does not permit the plaintiff to say the accident zone is one of them. Your Honour is asking - - -

McHUGH J: But if you knew animals along the - - -

MR WALKER: That is the whole 350 kilometres.

McHUGH J: Maybe.

MR WALKER: Worse around Halls Creek.

McHUGH J: Maybe. I mean, you have not put a single sign up. Not a single sign. It is unbelievable.

MR WALKER: Your Honour, there are no signs throughout suburbia, “Children”. They are only outside schools.

McHUGH J: Yes.

MR WALKER: Why should somebody not complain along the same lines as what your Honour has just raised with me by way of argument? Why should someone not complain? There is not a single sign in the whole of Killara, the whole of Woollahra, whatever, about children.

McHUGH J: Well, there are all sorts of hazards. One does not have to have a sign about every one of them.

MR WALKER: And there are - - -

McHUGH J: But these are specific – if there is something that is going to cause an accident on this highway, it is straying cattle.

MR WALKER: Or other people speeding.

McHUGH J: You have had 50 accidents, not to mention the unreported ones or the near misses or those that cause less than $1,000 damage.

MR WALKER: Your Honour, the statistics, by categorising in that fashion, at least avoid the gross selection bias produced by evidence of the kind led by the plaintiff through the so-called “local evidence”, which is worthless evidence, in order to identify the site of the accident as anything special. What you do get is various ways, all entirely impressionistic and thoroughly inexact for the placement of signs. You have to have a chainage for a sign. You cannot just say a general place. You have to send your gang out and say, “Put it in there, and put in the remove limit somewhere else”. You have got to make it precise. You have to have some science to it.

McHUGH J: But there is a risk – one tendency that seems to have grown up of late in negligence doctrine is the idea that if people know about a risk, then those who owe a duty of care cannot be in breach by failing to give warnings about it or to take steps to eliminate it. Now, that is contrary to basic negligence doctrine.

MR WALKER: Your Honour, it all comes down - - -

McHUGH J: It eliminates the whole notion of contributory negligence in this area.

MR WALKER: It all comes down to the question of reasonableness - - -

CALLINAN J: It is also relevant to causation.

MR WALKER: Yes.

CALLINAN J: Whether the absence of a sign is causative or would have been likely to have been causative.

MR WALKER: I have not come to that yet, but this case is raised with particularly striking facts in relation to the plaintiff.

McHUGH J: And that is another point, and perhaps one of the most favourable points in your favour, but this notion that there is no evidence of breach of duty, or that the Full Court could not take the view that there was a breach of duty, seems to me to be in a different category.

MR WALKER: Well, can I deal with those two matters separately in this way. As to the notion, if it be abroad, and it may be, that a known risk, by its quality of being known, renders it impossible for a defendant to be negligent by not warning about it, we do not embrace that and I do not argue that. It is not in our written submissions and it is in nothing I have said this afternoon. Indeed, I have spent some time talking about the decision which would have to be made, judged against the retrospective standard of reasonableness, as to whether the nature of this danger, the nature of the range of possible road users, required the kind of sign that we were sued for. We were not sued for a sign of a different kind. We were sued for not having a “Slow Down” just before the accident.

Now, in our submission, for a start, I am entitled to observe that has all the hallmarks of fallacy. Start with the spot of the accident and build yourself a “Slow Down” zone around it. In our submission, that is completely arbitrary. If you are talking about where animals roam, this notion of straying is a bit odd. They do not have fixed tasks, they can go wherever they like. This notion that where animals roam could or should be capable of being localised in the fashion that the plaintiff’s case required is exploded by the evidence.

Now, that does not mean that we do not, in the discharge of our duty of care, have to consider whether to do it. We were not sued for failing to consider simpliciter, we are sued because, whether we considered or not, the outcome of that consideration on the ground is disagreed in by the majority in the Full Court, as it happens now, and was the subject of allegations of negligence against us at trial, dismissed.

GLEESON CJ: I thought you were. I thought there was an allegation against you, and I thought one of the findings of negligence by the majority was that you had not carried out an audit.

MR WALKER: It is the word “simpliciter” that I stress. It is not actionable that we failed to do something in an office. We failed to think about something. What is actionable is – and that resulted in an absence of signs. It cannot possibly be causative of an accident that we did not carry out an audit. An audit is just a count. If we had had even more information about near misses, the colour of cattle, et cetera, it would not have helped this man at all. That is an inartistic particular. It must mean, and had there been an audit, most likely it would have had such and such a result and most likely acting reasonably, that result would have produced, lo and behold, “Slow Down” signs just before this accident. That is the only way in which a failure to consider, a failure to find out becomes relevant in this case.

The failure to find out is presumably based upon paragraph 150 in Brodie, but in our submission it is not really a live issue in this case. Everybody knew, including my client, of the problem along the whole stretch- Kununurra, Halls Creek. The question is what did that require to be done – the negligence question - and then had that thing been done – the causation question - would it most likely, that is more likely than not, have prevented the plaintiff suffering this terrible accident?

Now, I have not touched on the second yet, but as to the first, in our submission, the whole of the evidence which I have drawn to attention so far shows that correctly the Full Court saw the question involved singling out the accident site, along perhaps with others as well, but then incorrectly assumed, because there is no factual demonstration here, that that had somehow been achieved by the kind of evidence in question. The only evidence which avoided selection bias, the only evidence which actually counted rather than recounted anecdote and had impressionistic estimates was that which my client actually had in discharge of its duty of care, and that simply did not add up to, as you have seen in our written submissions, any singling out of this general area as worse.

Now, if you talk about the area in relation to watercourses and you allow for the appropriate foraging radius of horses and the like then you come up with something which is rather larger than what the statement of claim and particulars talked about. We do not know what it comes up with because the plaintiff did not assume to prove it but, in our submission, that is a fatal error in the plaintiff’s approach simply to say “I had an accident in this zone. If I had been able to slow down beforehand I would not have had the accident and therefore you’re negligent not having done so.”

First they have to show, with what we knew or, if you want to apply the standard of reasonableness, assume that information was inadequate, show what else we should have known, even take this giant step against the defendant of assuming they should have been having the kind of conversations with all these so-called locals of a kind which would have produced apparently the kind of content that the carefully crafted questions of which I have given an example for Mrs McKenzie produced in court. Let us assume all of that against us. Our first point is that that material simply did not ever show that this area in which the accident site is the centre was anything special.

GLEESON CJ: That is the fundamental question, is it not, because if you look at paragraph 106, Justice Steytler refers to areas in which the danger “was most acute” and in paragraph 107, at line 36, he refers to areas along the route that were “particularly dangerous”. So there was a finding of fact, right or wrong, by the majority in the Full Court that this locality, whatever its extent might have been, was one in which the danger was most acute or one which was particularly dangerous.

MR WALKER: Yes, well that is most certainly the inevitable implication of that language given the finding but as a finding of fact it is bereft of evidentiary support. That is why I have gone to the evidence. It is simply incapable of being supported by any of the material to which his Honour went.

McHUGH J: But why was not the Full Court entitled to take the view that there was a reasonably foreseeable risk of injury from animals straying on this long section of road?

MR WALKER: They were and that is correct.

McHUGH J: Of course, and the question is what should they reasonably have done about it, and you stand at the Bar table and you say they were acting perfectly reasonably in not putting up a single sign.

MR WALKER: Well, your Honour, the question is - - -

McHUGH J: Warning about straying animals or the danger.

MR WALKER: No, it is not a question in the abstract. It is not, as it were, a parliamentary committee’s examination of the efficiency of departmental work. It is a judicial adjudication on a case raised by a plaintiff who says that the particular of negligence I allege and go to trial on is a slow down just before the accident, not anything else at all and that means that your Honour’s rhetorical question to me may well, with great respect, have real force outside a court and outside a case between parties on issues joined on pleadings and particulars whereby one could say it is simply not worth dicing with – people’s deaths like this, all roads like this should have a really impactful sign of a particular kind and then leave it to the engineers and the psychologists to work out how many and where; but that is not this case.

McHUGH J: Yes, but you have control of the road.

MR WALKER: Without any doubt, there is no question about relevant control. We have drawn to attention the statute.

McHUGH J: You have power under regulation 301 of the Code.

MR WALKER: All of that and there is vulnerability if one needs to throw that in, but we do not doubt duty of care. We do not say that there is nothing left in the budget. We did not run any case like that. The case was, looking ahead, before the accident, why was it reasonable – why did reasonableness require, I should say, as a response to what was known and we know what was known from a mixture of the statistics and the locals, known or knowable, why did reasonableness require this particular spot to have a “Slow Down”, a slow down which is pretty drastic.

McHUGH J: I suppose just as in Joslyn v Berryman, there was a requirement that there should have been a sign, a warning sign, on that particular corner.

MR WALKER: “Curve” signs are absolutely stock standard, if you will forgive the expression, in this case. “Curve” signs are totally different from a “Slow Down”, a speed limit change, on road that appears just before the 80 kilometres an hour to be indistinguishable in its invitation to the reckless. Clear, relatively straight, long, lonely roads. The evidence of the policeman that your Honours may have seen is that surprisingly there is not a lot of speeding but where there is speeding it tends to be massively over the limit.

McHUGH J: You seem to have shifted ground a bit since the special leave application. On the special leave application you were arguing leave ought to be granted because this was a matter of great importance and you had to look at this - - -

MR WALKER: And so it is.

McHUGH J: - - - from the point of view of the Commissioner and motorists generally. Now, you want to bring it down to a case between party and party.

MR WALKER: It is a large matter because the approach taken is, in effect, to treat the occurrence of an accident as something which singles out a spot as a black spot. Now, you do not actually find that reasoning anywhere in the Full Court, obviously because it is indefensible as an approach, but that is where it tends. There is no count attempted here at all. We get 27 kilometre brackets, we get 70 kilometre brackets, we get 165 kilometre brackets, we get 350 kilometre brackets – none of which answers the purpose of the plaintiff in this litigation, the 80 kilometre sign that he says he would have slowed down on; it is said on his behalf it would have saved him from injury.

Now, that is of great importance that there not be an approach to occurrences of this kind that treats them after the event as some self-evident black spot and that is why we have taken care to contrast the way in which the records show the material had been understood by my client. For the purposes of argument, take on board the much less reliable material gathered by counsel in court, the so-called locals’ evidence, and even giving that full value, observing that the trial judge was plainly justified in the approach she took. This is Justice Murray’s point and it is one we would respectfully adopt.

Justice Steytler does not say what the error is. He expresses very clear disagreement but he does not identify anything in the nature of error at all. In particular, he does not demonstrate how you would single out this two or so kilometre stretch, whether it is the only one in the 350 kilometres, whether it is one of 95 such spots. If one of 95 such spots there would be a whole new and important question as to whether it really was appropriate to have this patchwork of 110, 80, et cetera.

Where the evidence, relevantly uncontradicted, was to the effect that a lively factor in the exercise of a reasonable standard of care by someone in my client’s position was to think about numbers, to think about recurrence, to think about repetition, to think about likely or probable driver expectations and then to make an assessment, rather better than simply wetting your finger and holding it up, but then to make an assessment on which reasonable minds might even differ – Justice Steytler might do something different as a road engineer and that approach, upheld by the trial judge, is not shown in any way by any of the evidence to have been wrong in the majority in the Full Court.

CALLINAN J: Mr Walker, what is the statutory provision about appeals here in Western Australia?

MR WALKER: It is section 58, I think, your Honour.

GUMMOW J: Do we have it in these materials?

MR WALKER: Yes, I have sighted it, I think, your Honours. No. I know I am in a position to tell your Honour this tomorrow, but I think it is 58(3) of the Supreme Court Act, your Honour, and some rules.

CALLINAN J: Well, if we can get a copy of it.

MR WALKER: Yes, and it achieves an appeal by way of rehearing.

CALLINAN J: Like the provisions in the other States, which we have discussed from time to time - - -

MR WALKER: It achieves the like result. It does not have the same wording though. It is not as simple as that. It is not as simple as “shall be by way of rehearing”.

CALLINAN J: You had better tell us something about that because we have spoken about that recently, not always as one voice.

MR WALKER: Yes. It is against that background in particular that I started this afternoon by accepting that the Full Court here was entitled to look at the record. That does not mean there is nothing due by way of deference, however, to the trial court’s finding of fact as this Court has said, for example, in Rosenberg v Percival.

McHUGH J: Yes, but Rosenberg v Percival is a question of credibility.

MR WALKER: Yes, it is, but the deference due to a trial judge is not only in credibility areas at all.

McHUGH J: Well, I do not know that you could reconcile that with Warren v Coombes. After all, as the court pointed out in Fox v Percy, it is a duty to rehear the case and that means the Court makes its own decisions, and it can be guided by what the trial judge has said, but they have to, of course, make its own decision.

MR WALKER: Yes, still the question is whether the decision below should be overturned on appeal.

McHUGH J: Well, that depends on the view that the Full Court takes of it. You seem to be trying to get in by the backdoor – Sir Garfield Barwick’s approach in cases like Edwards v Noble.

MR WALKER: I do not think so, your Honour.

McHUGH J: It seems to have come close to it.

MR WALKER: No, all we are saying is there should be reason shown to overturn the decision below. In a case of this kind where it is reasoning to factual conclusions from evidence which does not enjoy any particular credibility - - -

McHUGH J: Well, that is what Sir Garfield said in Edwards v Noble. You have to show error in the trial judge.

MR WALKER: Your Honour, we are entitled to say - - -

McHUGH J: But I thought Fox v Percy said it is up to the intermediate Court of Appeal to look at the matter itself.

MR WALKER: And finally decide should it be overturned. That is the issue, that the first order sought an appeal, set aside, overturned, and, in our submission, when doing that there should be a reason to do so and, in our submission - - -

McHUGH J: Yes, the reason is the court thinks that in a case like this the plaintiff should have won.

MR WALKER: Your Honour, and you can localise it here. There is a disagreement or a different decision reached in relation to the singling out of the accident site for a “Slow Down” sign and that is why all of my argument, both in written submission and on my feet this afternoon, has been to this effect, that there is no evidentiary support in this appeal by way of rehearing for the conclusion reached by Justice Steytler, none at all.

Justice Murray’s approach, in our submission, has two virtues: one, it analyses the same material with superior logic; two, it observes that the trial judge had also analysed the same material to the same cogent effect and we rely on both of those, if one likes, ignoring where they are in an appellate or judicial hierarchy and simply saying, look at these two approaches - there are two judges for each of them - and the one that happens to be dispositive of the case at the moment is one which is bereft of support in the evidence from which it ostensibly claimed support. It is not possible to look at these locals’ evidence and say that requires as a matter of reasonableness, in advance of this accident, a “Slow Down” sign just before this site.

GLEESON CJ: Was Mr Holdsworth the only expert witness who was called?

MR WALKER: Well, I do not know whether you would call Mr Mahoney an expert or not. He was a bit of both, I suppose. They are the only two.

GLEESON CJ: Who called him?

McHUGH J: You did.

MR WALKER: We did, he is in-house.

GLEESON CJ: So there was no witness called by the other side who said proper practice or proper engineering factors or whatever, requires an 80 mile - - -

MR WALKER: No, the plaintiff simply did not assume to say that the approach - that is the method - or the outcome – that is no sign here - was contrary to sound practice.

GLEESON CJ: I am not sure about that because, as I read the judgment of Justice Steytler, “the locals”, if I can use that expression, expressed opinions which were received and, indeed, adopted by the majority in the Full Court that there should have been a speed limit below 110 there.

MR WALKER: I think that is a bit different between “should have been a sign for a speed limit”. I do not think any of them became that specific as engineers, and “one should drive more slowly in the evening in that area”; that there is a lot of the latter. But, again in our submission, your Honour, paragraph 105 correctly has, according to Justice Steytler this is correct, that you need to look at this:

throughout the length of the road between Kununurra and Halls Creek –

and the idea of putting up against the material adduced by the defendant informal suggestions that a sign might be useful here and saying that that constituted an appropriate way to brand my client’s response as not reaching a reasonable standard of care is, in our submission, to be rejected when you go to the evidence.

In fact, Justice Steytler does not use the locals’ evidence as evidence about how a power to put up signs should have been exercised. He uses it to talk about an area of localised elevated or more acute risk. He happens to do that, notwithstanding it is a comparative statement, without any evidence that the comparison is a fair or appropriate one along the relevant length about which the real risk, a dangerous risk was well known. It is for that reason that the pleaded particularised issue of the “Slow Down” signs at that spot assumed, as it has to assume in a negligence action against a highway authority with the responsibility for all the roads it has responsibilities for, such significance. How can one look backwards and say that is the spot where a sign should have been.

So in paragraph 105, line 5, you have again this expression “animals were more frequently to be found” without any figures to back it up at all. The best the local evidence would come up with would be zones which were quite beyond and outside the 2 kilometre-odd zone which was suggested for the 80 kilometre an hour slow down in this case. In the second-last line on page 622 in paragraph 105, the locations which ought to have been determined, says his Honour:

were the areas of highest risk and to have placed signs accordingly.

In our submission, that again shows that this was - he undertook, in effect, to make good the finding that this was an area of highest risk and there is no evidence that supports it.

GUMMOW J: I will be able to recite paragraph 107 soon, Mr Walker.

MR WALKER: Paragraph 105, your Honour.

GLEESON CJ: You were coming to causation, I think.

MR WALKER: Then I will stop taking advice from Justice McHugh as to repetition and I will move on, your Honour.

GLEESON CJ: That is the problem.

GUMMOW J: was entrapping you.

MR WALKER: Yes. But can I, at the risk of making things worse, go to page 623, paragraph 106. That very much goes to the question that Justice McHugh did raise with me, particularly the last sentence of it:

The fact that some motorists might have ignored that speed limit does not, in my opinion, absolve the respondent of the need to impose it.

Now, that is a lapped up, quite complex conclusion rejecting without any demonstration that which had come out through Mr Holdsworth. He does not say and cannot say, as a judge would be entitled to say, regardless of credibility or challenge or contrary evidence, that this so-called expert material is nonsense. He does not say that, it is not one of those rare cases. What the Full Court had before it as the record upon which it was having the appeal conducted by way of rehearing was material which, to all intents and purposes, was entirely respectable and thus, for common law purposes, reasonable for my client to rely upon in vindicating no string of signs - it would have to be a string of signs - in the so-called areas of highest risk along this 350 kilometres. That last sentence in 106, in our submission, really demonstrates yet again the fallacious approach which has been taken in the Full Court.

Can I then move to the second and last point which is related to somewhat different evidence, all of which is collected in the written submissions. This is a case where the rather important issue arises which will always be factual, of course, but which is clearly critical for a client such as mine faced with claims which retrospectively, in effect, say if only there had been a sign in relation to a danger understood by a driver.

Now, we accept that it is not only in employment or industrial contexts that a defendant must, when being judged as to reasonable response, take into account what is sometimes called inadvertence, it might be called simple human imperfection or fallibility and not only that might be caused by long work hours; we accept all of that, that all goes into the mix on reasonableness. But it becomes a highly particularised factual question as to whether the particular plaintiff would not have been injured in the way complained of had the something different, omission to do which has been held to constitute negligence occurred and this case is one which stands out as a particularly clear example where the Full Court simply did not have the capacity on its review of the material to have substituted its own view for the trial judge bearing in mind this quality of that evidence. The trial judge used – the Full Court had – the evidence of how the man had behaved that very night in very close temporal proximity to the accident. Justice Steytler preferred the evidence of his wife - - -

CALLINAN J: Was that objected to? I saw that. I mean, I know there are some occasions where that sort of evidence has been allowed but it is often controversial.

MR WALKER: No, it was not. So the evidence of his wife and the evidence of his passenger, his passenger from one previous trip, about adapting his driving to the conditions including those indicated by signs. How on earth could one substitute a view based on that for the view the trial judge had come to and which was compelling to the Full Court as well, had it been approached properly, namely, that the proof of the pudding being in the eating this is a man who, when warned by “Slow Down” sign 90 kilometres an hour, that he was about to travel to a place where there were people – the witness in question who describes the car going so fast that it sort of hovered up and down, referred to children – the Aboriginal children in these settlements not being very traffic savvy - not only did he not slow down to 90, he seems to have gone through at something well in excess of the State-wide limit, well in excess, and there is an attempt in the respondent’s written submissions somewhat to attenuate the force of the findings including, in essence, concessions at the time of opening of the trial about the average speed this unfortunate plaintiff travelled. They are very high speeds and when one considers that they are an average and takes into account curves and the like such as you might see in the photographs, it means that there must have been on the straighter stretches some extremely high speeds reached indeed. There is pure speculation raised, unfortunately not able to be rendered evidentiary because of the plaintiff’s tragic state and because his passenger was asleep, concerning what might have been the case in relation to these single-lane bridges – but you have seen photos of the relevant single-lane bridges.

GLEESON CJ: How was the average calculated? They took the time he left his point of departure to the time of the accident?

MR WALKER: Yes.

GLEESON CJ: And what was the average over that distance?

MR WALKER: It was about 135, which is fast.

GLEESON CJ: Well, did anybody make any attempt to calculate what maximum speed he must have achieved to have an average of that?

MR WALKER: No.

GLEESON CJ: Is that a convenient time?

MR WALKER: Yes.

GLEESON CJ: I am only asking this question for the benefit of the people in the next case. How long do you think you will be, Mr Jackson?

MR JACKSON: About an hour and three-quarters, your Honour.

GLEESON CJ: We will resume at 10.00 am and we will take the next case not before 11.30.

AT 4.15 PM THE MATTER WAS ADJOURNED
UNTIL TUESDAY, 26 OCTOBER 2004