Negligence and Causation Overturned in NSW Court of Appeal

The Court of Appeal allowed the appeal in part, overturning the lower court's decision on causation. The Court found the respondent liable for damages due to inadequate safety measures at the detour site.

OUTCOME: Allowed in Part

[ADDRESS] of Appeal

CITATION: [NAME_1] v [NAME_3] Authority & Ors [2006] NSWCA 229

HEARING DATE(S): 17 & 19 May 2006

JUDGMENT DATE: 17 August 2006

JUDGMENT OF: Beazley JA at 1; [NAME_5] JA at 156; Basten JA at 157

DECISION:

1. Appeal allowed in part and dismissed in part;

2. Set aside the verdict for the second respondent ([NAME_6]);

3. Verdict and judgment for the appellant against the second respondent ([NAME_6]), for damages in an amount to be assessed;

4. As against the second respondent ([NAME_6]), remit the matter to the District Court for rehearing, limited to damages;

5. Otherwise confirm the verdicts in favour of the first and third respondents ([NAME_7] and [NAME_9]);

6. In respect of the claim between the appellant and the second respondent ([NAME_6]), order the second respondent to pay the appellant's costs of the appeal and at first instance;

7. Order the appellant to pay the third respondent's ([NAME_9]'s) costs of the appeal;

8. The appellant and the first and second respondents ([NAME_7] and [NAME_6]) are to file written submissions as to the costs of the first respondent at trial and on appeal.

CATCHWORDS: NEGLIGENCE – causation – failure of trial judge to appreciate extent of claim – failure of trial judge to appreciate evidence presented – findings on causation wrong in law - CONTRIBUTORY NEGLIGENCE – appellant not contributorally negligent -

JUDGMENT – findings on causation based on credit finding – credit finding misplaced – appellate intervention not warranted -

JUDGMENT – failure to deal with aspect of appellant's submission – no substantial wrong or miscarriage – appellate intervention not warranted

LEGISLATION CITED: [NAME_2] Act 1993 (NSW) ss 7(4), 61(1)(a), 145(3), 207 Supreme Court Rules 1970 (NSW) Pt 51 r 23

Abalos v Australian Postal Commission (1990) 171 CLR 167 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 CASES CITED: James Hardie & Co Pty Limited v Seltsam (1998) 196 CLR 53; [1998] HCA 78 Palmer v RTA [2001] NSWSC 846 [NAME_8], Council of the Shire of Evans & Pioneer Road Services Pty Ltd v Palmer (2003) MVR 82; [2003] NSWCA 58

[NAME_11] (Appellant) PARTIES: [NAME_2] & [NAME_4] Authority (First Respondent) [NAME_6] (Second Respondent) [NAME_14] (Third Respondent)

FILE NUMBER(S): CA 40744/05

H J Marshall SC; [NAME_16] (Appellant) COUNSEL: [redacted] D Davies SC; [NAME_20] (Second Respondent) [NAME_22]; [NAME_24] (Third Respondent)

[NAME_26] (Appellant) SOLICITORS: [redacted] [NAME_28] (Second Respondent) [COMPANY_29] (Third Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 2269/02

LOWER COURT JUDICIAL OFFICER: Armitage DCJ

LOWER COURT DATE OF DECISION: 25 May 2005

- 18 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40744/05

BEAZLEY JA [NAME_5] JA BASTEN JA

17 August 2006 [NAME_11] v [NAME_3] AUTHORITY & ORS Headnote Facts

The appellant was injured when her vehicle collided with a vehicle being driven by the third respondent. The accident took place on a two-way portion of the old [ADDRESS] which was being used as a detour while the second respondent, under contract with the first respondent, was carrying out road works on the new section of the Highway. The appellant had been driving southbound along the Highway and was of the belief that the detour was one-way.

The appellant brought proceedings against each of the respondents alleging negligence against the first and second respondents due to inadequate [NAME_4] control measures at the detour including the absence of a barricade for [NAME_4] travelling north, and against the third respondent for driving at a speed that was too fast in the circumstances. The trial judge found in favour of each of the respondents. His Honour determined that the appellant was not confused by the absence of a barricade for [NAME_4] travelling north, and as that was the basis upon which she had conducted her case, any negligence of the first and second respondents did not cause the appellant's accident. As against the third respondent, his Honour held that although he was travelling too fast in the circumstances the speed of the third respondent did not causally contribute to the accident which would have occurred in any event.

The appeal is brought on the grounds that the trial judge's findings in relation to causation as against each of the respondents were wrong in law.

Held in relation to the first and second respondents per Beazley JA ([NAME_5] agreeing):

(i) The trial judge's findings on causation were wrong in law due to the failure of his Honour to appreciate both the extent of the claim made by the appellant and certain aspects of the evidence.

(ii) The design of the [NAME_4] control plan for the detour was adequate at the time it was prepared. (iii) The [NAME_4] control measures in place on the night of the accident were inadequate. (iv) The second respondent was responsible for the [NAME_4] control measures and was liable in negligence to the appellant. The first respondent had no responsibility for those measures as at the date of the accident and was thus not liable. [NAME_8], Council of the Shire of Evans & Pioneer Road Services Pty Ltd v Palmer (2003) MVR 82; [2003] NSWCA 58

(v) The trial judge's findings on causation relied in part on a credit finding. However, as the trial judge failed to appreciate the nature of the case and certain evidence, the credit finding was misplaced and does not protect the trial judge's finding on causation from appellate interference. Abalos v Australian Postal Commission (1990) 171 CLR 167; Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 (discussed)

(vi) The appellant was not contributorally negligent. The circumstances were not such that she ought to have seen the headlights of the third respondent's vehicle, nor that she ought to have kept to the left-hand side of the road.

Held in relation to the third respondent per Beazley JA ([NAME_5] agreeing):

(vii) The third respondent was negligent in failing to observe the advisory speed sign, however the accident would have happened even had he done so and therefore the third respondent's speed did not cause the accident. (viii) The trial judge erred in failing to deal with the case put by the appellant that the collision and resulting injuries to the appellant were more serious because of the speed at which the third respondent was travelling. However, as there was no evidence to support that case there was no substantial wrong or miscarriage, and appellate intervention is not warranted.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40744/05

BEAZLEY JA [NAME_5] JA BASTEN JA

17 August 2006 [NAME_11] v [NAME_3] AUTHORITY & ORS Judgment 1 BEAZLEY JA: The appellant was injured on 18 April 1999, when her vehicle collided with another vehicle driven by [NAME_14] ([NAME_9]) whilst the appellant was driving in a southerly direction on an unsealed portion of the old [ADDRESS] which was being used as a detour whilst work on a new section of the Highway was being carried out. The detour, which wound through a thick bush area, was two-way. The construction work on the new section of the Highway was being carried out by [NAME_6] under contract with the [NAME_3] Authority ([NAME_7]). 2 The accident occurred on a winding section of the road and shortly after [NAME_9], driving in the opposite direction to that of the appellant, had come around a large left-hand curve in the roadway. It was approximately 8pm at night and completely dark, except for the headlights of the respective vehicles which were both on low beam. At the point of the collision, the appellant's vehicle was partially on the wrong side of the road. There was a 35km per hour advisory speed sign prior to the curve. The trial judge found that [NAME_9] was travelling 40-45km per hour on the corner of the curve. 3 The appellant brought proceedings in negligence against [NAME_9], [NAME_6] and [NAME_7]. 4 The appellant contends that her case against [NAME_6] and [NAME_7] was that she was confused by the set up including the signage at the point where she was required to turn onto the unsealed portion of the old [ADDRESS] and believed it was a one-way section of the road. Part of her case was that there was a barrier on her side of the road that prevented her driving on the new section of the Highway but there was no barrier on the opposite side of the road preventing [NAME_4] travelling north from using that part of the new roadway. She thus believed that the detour was one way for [NAME_4] travelling south. His Honour accepted that the appellant believed that the roadway on the detour was one-way in her direction. 5 However, the trial judge understood the appellant's case against [NAME_6] and [NAME_7] to be confined to a case based on negligence due to the barrier set up at the commencement of the detour, and in particular the absence of a barrier on the opposite side of the road. His Honour found that the barrier set up involved negligence on the part of [NAME_6] and [NAME_7]. However, his Honour was unconvinced that the barrier set up caused the appellant's accident, because he was not satisfied that the appellant was confused by the absence of a barrier on the opposite side of the road. He reached this conclusion because he found that she had not alleged that was the source of her confusion in two pre-trial statements. Rather, he considered that the source of the appellant's confusion was the presence of arrows on either side of the detour directing [NAME_4] onto to the old [ADDRESS] and there was no negligence in the manner in which that signage was laid out. 6 His Honour found that [NAME_9] was negligent in failing to observe the advisory speed sign but likewise found that [NAME_9]'s negligence did not cause or contribute to the accident, because even had he been travelling at 35km per hour, the accident would have happened in any event. 7 His Honour's finding in relation to causation resulted in a verdict being entered for each of the respondents. 8 The appellant appealed against the verdicts entered in respect of each respondent. At the commencement of the hearing of the appeal, senior counsel for the appellant informed the Court that the appeal was not being pursued against [NAME_7] and sought leave to withdraw against that respondent. Leave was refused because if the appellant succeeded against [NAME_6], [NAME_6] still had outstanding its cross-claim against [NAME_7] for consideration. The trial judge had not determined that claim despite being urged by the parties to do so. [NAME_7]'s liability in negligence thus remained in issue as between [NAME_6] and [NAME_7]: see James Hardie & Co Pty Limited v Seltsam (1998) 196 CLR 53; [1998] HCA 78 at [9]. 9 [NAME_7] and [NAME_9] have filed Notices of Contention. [NAME_7] contends that it did not owe a duty of care to the appellant: [redacted] 10 As there are no common factual matters in the case against [NAME_6] and [NAME_7] and that against [NAME_9], the appeal against [NAME_9] will be considered separately. It is convenient first to deal with the appeal against [NAME_6] and [NAME_7].

Appeal against [NAME_6] and [NAME_7] 11 The essential issue on the appeal is whether his Honour's findings on causation were wrong. There is a prior question in relation to the appeal against [NAME_6] and [NAME_7], namely whether the appellant had confined her case to one of confusion being caused by the absence of a barrier on the opposite side of the road or whether she based her case more generally on the [NAME_4] control measures at and leading up to the detour, including the absence of a 'two-way' sign. 12 His Honour's finding that the appellant had failed to prove that the absence of a barrier on the opposite side of the road caused her confusion was based upon his interpretation of two statements the appellant had given prior to trial about the circumstances of the accident. The first was her statement given to the police at the scene of the accident. The second was a statement made nearly a year later to the [NAME_4] Commission (the [NAME_30]).

The appellant's evidence

Statement to police 13 A police officer, [NAME_31], attended at the scene of the accident and took a statement from both the appellant and [NAME_9]. The statements were written by [NAME_31] and signed by the appellant. In her statement the appellant said: "About 8pm on Sunday the 18th of April 1999, I was driving a hire car no. PLV-837 along a road. I was barely going 30, 35 we [sic] I first started on the track. I saw the arrows to come down and they were on both sides of the road so I naturally way [sic] it was a one-way thing with another bit for other [NAME_4] coming along. So I thought I could travel in the middle and I didn't see any cars until the truck came along and then it's suddenly came [sic] around the corner. I didn't see any lights or anything and then when I did see it I tried to get out of it's way. It came around fairly quickly and fairly wide and it came around and it made it hard for me to get out of the road and we hit." (Emphasis added) 14 The appellant's sister, [NAME_34], who was a passenger and aged 16 at the time, also gave a statement to [NAME_31] in which she said: "We were driving along the road and I thought it was a one-way road the same [sic] because of the arrows. We were only travelling 30, 35 because I had a look and we were travelling in the middle of the road and we got to the bend and we didn't see the truck's lights because [sic] a metre before the lights and we went bang."

Statement to the [NAME_30] 15 In a more detailed statement given to the [NAME_30] almost 12 months later, the appellant set out the circumstances of the accident. After giving a general description of the scene of the accident and the speed at which she was travelling, the appellant said: "I had come across road work signs. The signs were worded 'Detour ahead'. Directly ahead, a barrier was across the road . This barrier would not allow me to continue straight ahead but to veer left onto what was like a side track. There were other signs that gave me the impression that I was entering a one-way track . I can't remember the wording or description of these signs. I never saw any signs that showed it was a two-way section of the road. On entering into this road work area there were no other cars around at this time. I saw another section of road that was running parallel to the road I was on and to my right. It gave me the impression that this road was for vehicles to travel the opposite direction to me." (Emphasis added)

The appellant then gave a description of the actual collision. 16 His Honour made the following comments about these statements. First, in relation to the statement to [NAME_31], his Honour said: "It is notable that neither [the appellant's] own statement … nor that of [her sister] … mentioned anything about the barriers by which [the appellant] said she was deceived in her evidence before me".

In relation to the statement to the [NAME_30], his Honour said: "What is notable about this statement is that again [the appellant] does not anywhere mention the existence or otherwise of barriers facing [NAME_4] coming in the other direction from herself at the point of the detour."

His Honour concluded that the appellant: [redacted]

The appellant contends that this finding is erroneous and that there was no inconsistency between her evidence and the two statements.

Evidence at trial 17 In her evidence in chief the appellant described what she saw as she came up to the detour. She said that she saw a 'detour' sign on the left hand side of the road, a 'road works ahead' sign and a speed reduction sign indicating that the speed had reduced to 60km per hour. She said that there was "a barricade across her lane of the road". She was asked further questions about the "barricade or barricades". She said the "the barricades" did not extend across into the right-hand lane (that is the lane for north bound [NAME_4]). 18 She then gave this evidence: " Q : Did the barricades have – do you know what chevrons are? Like arrows? A: Like arrows? Yeah.

Q: Did the chevrons light up when you shone your headlights on them? A: Yes.

Q: So they reflected the light back to you? A: Yes.

Q: In which direction were the chevrons pointing? A: To the left.

…

Q: What did you see to your left-hand side as you saw the barricades? A: There was a dirt track.

…

Q: At the point where you were to turn left onto the dirt road, what impression had you as to the [NAME_4] that was to be travelling along the dirt road? A: I believed that it was a one-way detour … in my direction.

…

Q: … [W]hat matters led you to that conclusion? A: The barricades across my lane, and the fact that there was no barricade from the new freeway coming off."

(Emphases added)

The appellant described the " barricade " as being " several posts with the actual signs on them ". 19 The appellant was cross-examined about the absence of any mention of a "barricade" in her statement to the police. The appellant said that the "arrows were the barricade". The appellant confirmed that she had told the police officer that she thought she was on a one-way road because "there were some arrows on the track on both sides of the road". She then gave evidence that: "there was one [arrow] on the left-hand side of my lane as I turned, and the rest that were in front of me in my lane [sic]". She denied that she had not told the police officer about the barricade although she stated that she may have worded matters differently in her statement to him. 20 The appellant also said in cross-examination that her statement to the [NAME_30] that "[d]irectly ahead a barrier was across the road" was something that she saw on the night of the accident and was not something she remembered later. The appellant was further cross-examined about her statement to the [NAME_30] that "there were other signs that gave me the impression that I was entering a one-way track". She confirmed that she meant "the arrows that were going in my direction" as well as "a funny drawing-shaped thing". The appellant then drew a diamond-shaped sign with what appeared to be two [NAME_2] merging into one. This became Exh 2. 21 She was then asked: "Q: Is it your evidence that that sign that you have just drawn [Exh 2], together with the detour sign and the arrows, gave you the impression that you were entering a one-way track? A: Yes." 22 The cross-examination continued as to what Exh 2 depicted. She said that immediately prior to the detour, she was driving on a single highway, not a divided carriageway, that Exh 2 depicted two separate sections of road joining together and becoming an undivided section. She was then cross-examined to the effect that the sign could not have led her to the impression that she was going onto a one-way road. She made a number of responses to that proposition. First, she said that the sign did not depict what the condition of the road was in any event. She was then asked the following two questions: "Q: The sign that you have drawn, does that suggest to you, does it, that you were going onto a one-way section of road? A: No.

Q: That's right. In fact it suggests the very opposite, doesn't it? It suggests that you are going onto a two-way section of road. A: No, I don't agree with that either."

The cross-examiner did not pursue that line of cross-examination further. I will return to the sign depicted in Exh 2 later.

Layout of barriers and signs at the scene of the accident 23 The design for signage and [NAME_4] control measures at the detour was contained in a [NAME_4] control plan – [NAME_35]. The responsibility for the design of [NAME_35] and its implementation is relevant to the question whether [NAME_7] owed a duty of care to the appellant and to questions of contribution. For present purposes, I refer to it to explain the [NAME_4] control measures that were supposed to operate at the site. The explanation is necessary to understand the evidence, especially that of the appellant and [NAME_31], and also to put in context certain findings of the trial judge.

[NAME_35] 24 The old [ADDRESS] is depicted on [NAME_35] by way of broken lines, curving to the left. Prior to coming to the curve, new alignment work had been done as depicted by the words 'NEW ALIGNMENT' written within the outline of the road. The new construction is depicted as a continuation of the 'NEW ALIGNMENT', going off in a more vertical direction than the old highway, and extending up to the words 'END OF STAGE 1'. 25 On the upper side of the left hand curve there are four dots underscored by a small straight line. These depict where signs were to be placed on the roadway. The arrows depicted to the right of those symbols indicate that the type of signs to be installed at those points were those referred to in the evidence as "chevrons". Two chevrons were to be placed on the right hand side of the new construction work and two were to be placed on the left hand or south-bound section of the new work. 26 Above these first four chevrons, another three chevrons were to be placed, again following the alignment of the old [ADDRESS]. As they would be positioned according to the [NAME_4], they would be on the old unsealed part of the [ADDRESS] and on the right hand side of the road facing [NAME_4] travelling from [NAME_6] in a southerly direction. Two chevrons were also to be placed on the left hand side of the road, also governing [NAME_4] heading south.

Evidence of [NAME_31] 27 One of the factual questions in the case was whether the four chevron signs on the upper left hand curve were in place on the night of the accident. Evidence of the layout of the signage and [NAME_4] control measures on the night of the accident was given by [NAME_31], the police officer who attended the scene of the accident. 28 [NAME_31], travelling from [NAME_6], had to take the detour south along the old [ADDRESS] in order to reach the scene of the accident. He returned to [NAME_6] via the same route. He was sufficiently concerned about the possible confusion caused by the layout of the barriers at the detour that he returned to the scene the next day with two senior officers. He said that the layout of the barriers was the same when he returned as it was on the night of the accident. 29 The confusion, in [NAME_31]' opinion, was caused by there being a barrier across the side of the road for [NAME_4] going south, effectively blocking [NAME_4] from continuing along the new portion of road, but there was no barrier extending across the other side of the road. [NAME_31] said that that there were also directional arrows pointing to the left which advised [NAME_4] travelling in a southerly direction to go left, preventing [NAME_4] from going straight head onto the new road works. 30 The trial judge questioned [NAME_31] to clarify what he meant by his reference to "a barrier": "Q: While we're on that subject, by a 'barrier', to make it clear, you are not speaking of a fixed chevron sign on the post; you're talking about a movable barrier. Is that right? A: No, your Honour. Facing eastbound [NAME_4], there was an obstruction, a barrier or something there of some sort – whether it be temporary or permanent, I can't recall – with directory arrows pointing the [NAME_4] to go left onto the dirt road. " (Emphases added)

(The reference to 'eastbound' is a reference to the road travelling south which curved to the left so as to then go in an easterly direction.) 31 [NAME_31] said that: "Police were convinced that the situation that was presented in April 1999 to vehicles travelling east, that is, to Victoria, was most confusing. Drivers were being misled". 32 [NAME_31] was asked in re-examination what it was that he felt created confusion or was misleading. He said: "The fact that east-bound [NAME_4] was driving along a perfectly good section of bitumen road, and on approaching the roadworks there is directional arrows for east-bound [NAME_4] to go left. It created the impression that east-bound [NAME_4] was going onto a bypass, when in actual fact it was the highway. The lack of any two-way [NAME_4] signs created the impression in my mind that it could well be perceived that it was a one-way road, a bypass around the section of highway.'' (Emphasis added)

He was further asked: "Because oncoming [NAME_4] appeared to have freedom of passage?"

He responded: "Yes, just by the mere existence of the road being there." 33 [NAME_31] also observed a barrier off to the far side of the road situated, in effect, parallel to the roadway. 34 [NAME_31] prepared a COPS report on the 21 April 1999 in which he recorded that: "About 2000 on Sunday 18.04.99 Vehicle PLV-837 (V) was being driven East along the [ADDRESS], Rockton and when about 5 kilometres East of Imlay road the driver has detoured onto a gravel section of the road as per directional signs due to roadworks in progress. As the driver entered the gravel section she observed another road facing her which she believed was for oncoming [NAME_4] and as such the road was divided. As there were no signs in place to state that she was entering a 'two-way [NAME_4]' road she proceeded along the detour.

…

Whilst police were examining scene on 190499 it was observed that [NAME_4] was being driven West on the closed West bound lane of [ADDRESS] …

[NAME_8] and [NAME_6] informed of situation and arrangements have been made for 'Two-Way' signs to be installed."

Evidence of [NAME_36] 35 [NAME_36], a Foreman employed by [NAME_6], commenced working on the new section of the [ADDRESS] in about 1997 and at some stage became responsible for checking signage throughout the works. To the best of his recollection, that was in about 1998 or early 1999. He disagreed with a suggestion put to him in cross-examination that he could have become Foreman as late as April 1999. [NAME_36] remained responsible for checking the layout of the [NAME_4] control measures up until the time the road was opened in late 1999. 36 [NAME_36] confirmed that the signs depicted in [NAME_35] were chevrons. He described these as being a sign placed upon a pole, the pole itself being embedded in cement in 4WD tyres. They were moveable with the use of a front end loader. He said that the chevrons had to be moved when the new bitumen went in (and which had been laid at the time of the accident). 37 [NAME_36] said that when he first became responsible for the signage, the signs specified in [NAME_35] were positioned roughly equivalent to their placement on the plan. He said that the signs were checked each morning and afternoon. It is clear, however, that he did not check the signs on the night of the accident as he "never worked on Sunday". He denied that at any stage chevrons were placed in a direct line across the southbound lane. 38 [NAME_36] explained that the chevrons were there to divert the [NAME_4] onto the old [ADDRESS], but denied that at any time 'barricades' or 'barrier boards' were ever used at the detour to divert the [NAME_4]. [NAME_36] said that, although he did not recall a barrier board being used on this part of the highway, there was at some stage a barrier board used to block another road near this location. He said that that barrier board was used near the end of stage 1 where there was a 'road closed' sign. [NAME_36] also stated that the barrier placed near the 'road closed' sign was at the end of the block of the new alignment, some distance past the turnoff onto the old [ADDRESS]. He said it was placed there so that anybody who went down that portion of the road could see that it was a road closed. He identified the positioning of the barrier board as being "practically in behind the fourth chevron sign". 39 [NAME_36] denied that barrier boards or barricades were used to direct [NAME_4] onto the old [ADDRESS] it appears that barriers were used, at least sometimes, at this spot. He said that if work vehicles needed to drive onto the new section of the highway, they could go outside the barrier. He said that there was a gap that enabled this to be done and that at night time, "plastic jersey-type barriers" were placed across the gap to stop unauthorised persons driving along the road. He said that the "two middle ones" were opened up in the day to allow the work vehicles through. 40 The trial judge elicited further evidence about the existence of these gaps. He said: "What I understand you've told me … is that on the right-hand side of the road, that's the right-hand side of what you see there as the new alignment, just as you approach those chevrons, there was a gap, so that equipment for use on the job, like … trucks coming from [NAME_6] … could get through onto the new work."

[NAME_36] confirmed that that was so. He said that the movable barrier was placed near the seventh chevron. 41 [NAME_36]'s evidence is somewhat confusing at this point. It seems that he was saying that work vehicles went off to the far side of the right hand side of the roadway to get onto the new work. However, that is a little strange, because he also spoke about a "gap" and about the placement of a barrier across the gap and that the "middle two" used to be opened up in the day so as to allow vehicles across. This evidence doesn't evoke a picture of a gap or a barrier on the far right hand side of the road, but rather through chevrons on the right hand side of the road. 42 [NAME_36] also said that a 'wide road verging into a narrow road' sign was installed at some stage. It is likely on the whole of the evidence that that was the sign that the appellant said she saw but which she misunderstood. 43 On the morning after the appellant's accident, [NAME_36] was asked to go and check the signs. He said that when he did so, everything appeared to be in order, the signs being positioned in accordance with [NAME_35]. [NAME_36] said, however, that he did not know whether he was at work on the morning of Monday 19 April 1999, the day after the accident, nor could he be precisely clear that he had responsibility for the signage as at that time.

The expert evidence 44 Two [NAME_4] engineers, [NAME_38] and [NAME_40], gave evidence in relation to [NAME_35] and the adequacy generally of the [NAME_4] control measures at the site.

[NAME_38]'s evidence 45 In his report dated 22 December 2004, [NAME_38] stated that [NAME_35] was adequate for the circumstances. He also considered that it would be most unusual to have provided an advisory 'two-way [NAME_4]' sign, noting that the Australian Standard AS 1742.3-1996 (AS 1742.3), made no mention of the use of two-way [NAME_4] signs on gravelled [NAME_2], or indeed on any [NAME_2]. 46 [NAME_35] cited AS 1742.3 as the appropriate standards reference for the design of the [NAME_4] control measures at the detour. Section 2 of AS 1742.3 sets out the requirements for the development, installation and operation of a [NAME_4] Scheme and applies, relevantly, to the planning, design, installation and operational stages. Clause 2.2 provides by way of general precept that careful consideration must be given to the signage of a construction site: "(a) to provide adequate warnings of changes … in driving conditions …; and

(b) to adequately instruct and guide road users safely through, around or past the work site." 47 "Basic principles" are then specified. Relevantly for this case, those principles provided: "(ii) Signs and devices should be regularly checked for effectiveness…". 48 AS 1742.3 states that two-way advisory signs "should be erected on both sides of the road at the beginning of each section over which two-way conditions temporarily apply" (emphasis added). The text to the Standard then states that two-way advisory signs should be used in the following situations: "(a) On lengths of road consisting of a series of divided sections interspersed with sections of undivided two-way roadways.

(b) Where a roadway designed or normally used for one-way [NAME_4] is temporarily being used for two-way [NAME_4]." 49 The detour did not fall into either of those circumstances. That lead [NAME_38] to conclude that "the usage of such signs is not good practice at this site (or at any sites on unsealed [NAME_2])". 50 [NAME_38] agreed that the Australian Standard was not meant to be an exclusive prescriptor of signposts and that its purpose was to provide a minimum standard. [NAME_38] also agreed if there was no barrier on the opposite side of the sealed section of the roadway, a driver could get confused, in the sense that such a driver might believe that the diversion to the left was for [NAME_4] travelling southwards and that vehicles travelling north would be coming along the new section of the roadway. He accepted that in circumstances where a road user might be confused, the road authority might erect appropriate signage but said that any signage needed to be effective and that there was a problem with having too many signs. He said that they were only good for the purposes of drawing the attention of motorists "to things that are quite out of the ordinary". 51 In this regard, it should be noted cl 2.4 of AS 1742.3 has some relevance. It provides: "Device selection. Signs and devices should be selected to give the appropriate warnings, guidance and instructions and, other than in exceptional circumstances, should be selected from this standard."

52 [NAME_38] concluded that the usage of a two-way sign was not good practice at that site or at any sites on unsealed [NAME_2]. He was not directly cross-examined on this conclusion. Nor was he specifically asked in cross-examination whether, given that there was a barrier across one side of the road and not across the other, it would have been appropriate to install a two-way sign. However, he conceded that there could be a potentiality for confusion in that circumstance. Earlier, [NAME_38] had been cross-examined on the need for effective signposting where the road conditions were confusing. In that cross-examination [NAME_38] agreed that it was "very desirable" to eliminate potential confusion in the mind of a motorist upon approaching a section of a roadway, and that one means of alerting motorists to changing conditions was by signposting. He agreed with counsel cross-examining that "it is a good thing for [a] road authority to warn motorists of [a potentially confusing] impending situation", with the qualification that excessive use of signposts compromised or even negated their effectiveness. 53 In my opinion, [NAME_38]'s conclusion that the usage of signs was not good practice at that site, or at any sites on unsealed [NAME_2], was significantly undermined by this cross-examination, and although there was no direct cross-examination on it, it ought not be given the same weight as is usually accorded unchallenged evidence.

[NAME_40]'s evidence 54 In his report dated 16 June 2003, [NAME_40] concluded that in the usual course of events, as major road works get closer to completion and if the new alignment closely matches the alignment of the existing road, it would be "natural" for vehicles to use the new alignment. He pointed out that it was for this reason that AS 1742.3 required rigorous signposting and placement of barricades in order to give an unambiguous message to approaching motorists as to the route they needed to take. He considered that if, in this case, some or all of the barricades were not in place particularly at the northern "tie point" of the construction (that is at the point of the detour), then the impression would be that the side track, which was in fact the old [ADDRESS], was one-way. He considered that, given the potential for ambiguity, the road works authority should have taken steps to ensure that all barricades were in place and also should have reinforced the [NAME_4] controls on the old alignment by the erection of two-way [NAME_4] signs. 55 In his oral evidence, [NAME_40] agreed that the design of the [NAME_4] control measures in [NAME_35] was appropriate and satisfactory at the time when it was approved. He reiterated his view, however, that as the construction proceeded, such that it increasingly took on the appearance of being an extension of the existing highway, close attention should have been given to ensuring that motorists were provided with unambiguous guidance in and around the road works as required by AS 1742.3. [NAME_40] was of the opinion that a driver travelling on a two-lane bitumen road, who encountered a narrow dirt track, would be likely to assume that the dirt track was a diversion or deviation from the main road, and not part of an official roadway as it was in this case. If there was a barrier across the lane in which the driver was travelling, but not across the opposing lane, the ambiguity would be reinforced. 56 [NAME_40] also expressed the opinion that, between 1996, when [NAME_35] was first approved, and the time of the accident, he would have expected that the scene of the intersection and the road conditions would have "fundamentally changed". He said that he would have expected that updated TCPs would have been prepared to take account of those fundamental changes. However, no subsequent [NAME_4] was prepared in respect of the detour. 57 [NAME_40] agreed that the indications in AS 1742.3 for a 'two-way' sign did not expressly apply to the detour. He explained, however, that Australian Standards provided minimum design and construction requirements and that each site has to be assessed on its own merits.

Did the trial judge err in his finding on causation 58 In my opinion the trial judge, in concluding that the negligence of [NAME_7] and [NAME_6] was not the cause of the appellant's accident, failed to appreciate the extent of the claim made by the appellant, and also failed to appreciate certain aspects of the evidence in the case. 59 The appellant, in her Statement of Claim, had alleged negligence against [NAME_7] and [NAME_6] on a number of bases including: failure to properly warn motorists of the road works: para 8(a); failure to warn or advise motorists of the [NAME_4] conditions during the course of the road works: para 8(b); failure to install two-way signs: para 8(c); failure to barricade the road works: para 8(e); and failure to adequately prepare a [NAME_4] plan relevant to the road works: para 8(i). These particulars embraced not only a failure to properly or adequately barricade the road works, but also a failure to erect adequate signage to warn of the road conditions, including that the old section of the Highway used as the detour was two-way. 60 Senior counsel for the appellant informed the Court that the appellant's case at trial was not confined to confusion caused by the absence of barriers on the new section of the road for [NAME_4] travelling north. Rather, it was the appellant's case that she was confused by the [NAME_4] control layout and signage at the detour on the road, including the placement of a barrier across the south bound section of the new work only and by the fact that there was no two-way sign. This was not contradicted by senior counsel for either [NAME_6] or [NAME_7]. 61 That this was so is confirmed by the appellant's evidence at trial. The appellant's evidence was that she was confused by the combination of [NAME_4] control measures at the detour. The appellant explained that her reference to a barrier or barricade was a reference to arrows to which she had referred in her statement to [NAME_31]. The reference to arrows was itself a reference to chevrons on the roadway at the point of the detour which directed her to the left. Thus, she said that the barricades were "like arrows" which counsel interpreted as chevrons. 62 Questioning followed thereafter with the words "barricades" and "chevrons" being used interchangeably, without objection and without any subsequent challenge to that usage in cross-examination. She also said in her cross-examination that the "arrows were the barricade" and she specifically described the barriers as being signs on posts. And, in any event, there was no suggestion that there were any other directional arrows that might have answered that description. 63 The appellant also told [NAME_31] that she saw arrows on both sides of the road directing her to the left so that she "naturally [thought] it was a one-way thing with another bit for other [NAME_4] coming along". This statement only makes sense if there was no barrier on the other side of the road. This understanding is reinforced by [NAME_42]' comment in the COPS report that the appellant "observed another road facing her which she believed was for oncoming [NAME_4] …". 64 In her statement to the [NAME_30], the appellant referred both to a barrier and to signs. In particular, she said that she never saw any signs that showed it was a two-way section of the road. 65 [NAME_31]' evidence, that there "was an obstruction, a barrier … with directory arrows pointing the [NAME_4] to the left onto the dirt road" corresponds with the appellant's evidence that the "arrows were the barricade". 66 If there was a barrier, or chevrons, placed on the opposite side of the road, it is unlikely the appellant would have had a belief that the detour was one-way. Certainly, there would have been no reasonable basis for that belief. However, the evidence does not permit that conclusion. It is apparent both from the statement contained in the police report and from the COPS report there was something about the other side of the road that made her believe that it was open for [NAME_4]. On the evidence that could only have been the absence of a barrier on that side of the roadway. She said in cross-examination that she was sure that there was no obstruction in the path of northbound drivers. Otherwise, the cross-examination focussed upon the language used in her earlier statements as opposed to that used in evidence and in particular upon the absence of any use of the words "barrier" or "barricades". However, as the appellant explained, "the arrows" were the "barricades". 67 I have already referred to his Honour's conclusion that the cause of the appellant's confusion was the existence of arrows on either side of the road. His Honour considered that the arrows to which the appellant was referring were the chevrons depicted in [NAME_35]. His Honour said that: "These signs are of the a type one familiarly sees on roadways erected in order to indicate that the roadway curves to the right or left hand side, in order to prevent vehicles travelling straight ahead in the belief that the roadway does not curve where in fact it does". 68 This observation, upon which his Honour subsequently based a finding against the appellant, appears to derive from his Honour's own experience. It was not part of the evidence and was not in accordance with the evidence. A judge, as part of the fact finding process, is entitled and often required to make a value judgment in respect of matters of fact adduced in evidence. Such evaluation will be based on many factors, including the judge's life experiences as an individual in society and the judge's training and experience as a lawyer or judge. The evaluation, however, must be in respect of proved facts. A trial judge is not entitled to use personal experience to make findings of fact or to draw inferences unless that personal experience satisfies the prescription for the use of matters of common knowledge. 69 The use of common knowledge is governed by s 144 of the Evidence Act 1995 (NSW). That section provides: "144 Matters of common knowledge

(1) Proof is not required about knowledge that is not reasonably open to question and is: (a) common knowledge in the locality in which the proceeding is being held or generally, or (b) capable of verification by reference to a document the authority of which cannot reasonably be questioned."

Neither of these conditions was satisfied in this case. But in any event, if his Honour was purporting to rely upon common knowledge, his Honour did not comply with s 144(4), which provides: "(4) The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced." 70 Not only was there no evidence upon which his Honour could make such comment or finding, his Honour's observation was contrary to the evidence. The appellant, [NAME_31] and [NAME_36] each gave evidence that, in addition to indicating the direction of the detour, the chevrons were used as a barrier or barricade to prevent [NAME_4] accessing the new section of the Highway. This was also clearly shown in [NAME_35]. His Honour's observation failed to appreciate this. Indeed, his Honour's comment reveals that he did not understand that the barrier or barricades of which the appellant gave evidence were the first four chevrons depicted in [NAME_35] positioned on the upper left hand curve of the roadway. 71 Whilst his Honour appreciated that the appellant's evidence was that there were chevrons on both sides of the old [ADDRESS], and that she was confused by them, he based his finding that a reasonably prudent driver would not have been confused upon his own impermissible understanding of what the signs depicted.

Accordingly, his conclusion that "these signs were [not] capable of confusing a prudent driver to the extent of believing that he or she was on a one-way road" is not sustainable. His Honour also failed to appreciate that the appellant's confusion was caused by a combination of factors relating to the [NAME_4] control measures and the appearance of the roadway. 72 His Honour next said that there was no evidence that enabled him to conclude the signs were in the position shown in [NAME_35] at the time of the accident. Although this passage in his Honour's judgment is not particularly clear it appears to be another reason why his Honour considered that the appellant should not have been confused. But whatever his Honour intended to convey, there are problems with the finding. 73 In the first place, the finding replicates his misunderstanding as to what [NAME_35] depicted. His Honour did not understand that the first four chevrons on [NAME_35] were not only directional arrows, but were also intended to be placed on the road so as to form barriers to prevent the passage of [NAME_4] along the northbound section of the road. 74 Secondly, even if his Honour's understanding that all of the chevrons merely constituted directional arrows was correct, there was no suggestion that the directional arrows across the southbound lane were not in position. The issue related to the first four chevrons.

Accordingly, nothing can really be made of his Honour's finding and with respect it should left to one side. 75 This leads immediately to the next finding of his Honour, namely that he was not satisfied about the absence of a barrier on the opposite side of the road. He said: "To conclude, therefore, that a barrier was absent across [the northbound lane] at the time of the accident, one would have to conclude that the situation observed by [NAME_31] on the day after the accident was that which prevailed at the time of the accident, for no other reason than the proximity in time of [NAME_31]' examination of the scene the day after the accident.

The difficulty one faces is this. True it is that [NAME_31] observed the state of affairs which the plaintiff described in her evidence the day after the accident, but to accept that the plaintiff observed this same state of affairs at the time of the accident, one would have to accept that her two earlier statements, both at the scene of the accident and to the [NAME_4] Commission but again, at a time much closer to the time of the accident, were given erroneously, in that they did not mention the absence of barriers in the lane for [NAME_4] travelling in the opposite direction to herself.

The only other evidence, apart from the plaintiff's own, tending to prove that this was case at the time of the accident is that of [NAME_31], who observed that state of affairs the day after the accident. In the nature of things, of course, it is perfectly possible that the barriers could have been moved at some time earlier in the day before [NAME_31] arrived at the scene of the accident and after the plaintiff had her accident, because construction work was proceeding at the time [NAME_31] made his observations." 76 For reasons I have already given, his Honour's finding in relation to the appellant's evidence failed to appreciate what the appellant in fact meant in her statements. As was the case with the cross-examination, and perhaps beguiled by it, his Honour's finding focuses on the absence of any use of the words "barricade" or "barrier" and failed to appreciate or remember that the appellant had given evidence that by "arrows" she meant "barricades" or "barrier" and her evidence was consistent with the independent evidence of [NAME_31]. 77 Further, [NAME_31] specifically gave evidence that the barricades had not changed from the preceding night to when he went back the following day. In fact, in response to a question from his Honour, [NAME_31] stated that he had observed there had been a barrier on the side of the road upon which the appellant was travelling and another barrier off to the right on his way to the accident and that he observed that to be the position again when he was travelling back after the accident. 78 There was the contrary evidence of [NAME_36]. However, his Honour did not find [NAME_36]'s evidence helpful because he was unable to remember satisfactorily whether the position the day after the accident was as [NAME_31] had said. His Honour's assessment of [NAME_36]'s evidence is well-founded. [NAME_36] had no clear recollection of events at the time. Further, it is not clear whether he had seen [NAME_35] other than in connection with giving evidence in the trial. 79 That only left the evidence of [NAME_31] and the appellant. There was no suggestion that [NAME_31]' evidence suffered from the same lack of reliability as did [NAME_36]'s. In circumstances where [NAME_31] had observed the scene, taken a statement from the appellant that she was confused, and was sufficiently concerned about the [NAME_4] control measures to revisit the scene of the accident the next day, recommend the installation of a 'two way sign' and prepare a COPS report that was consistent with the appellant not having seen any barriers on the opposite side of the road, the evidence was effectively overwhelming that there was no barrier on the opposite side of the road on the night of the accident. 80 His Honour's conclusion to the contrary cannot, in my opinion, be sustained. 81 His Honour also made a finding in relation to Exh 2, stating that that sign should have signified to the appellant a situation where two [NAME_2] were merging into one. That was a reasonable interpretation of Exh 2. However, it was apparent from the whole of the evidence that Exh 2 did not depict the sign that was in place. [NAME_35] depicted a 'road narrowing' sign. [NAME_36] also gave evidence that there was a 'road narrowing' sign before the turn-off. And the appellant's evidence was that Exh 2 as she had drawn it did not correctly depict the road conditions. That, on all the evidence, was clear. 82 However, his Honour did not analyse the whole of the evidence relating to Exh 2. If his Honour considered that Exh 2 was relevant, as he apparently did, he was obliged to consider all of the evidence that related to it. The most obvious, and indeed only probable conclusion was the appellant was mistaken as to what the sign depicted. This might have added weight to his assessment that there were important aspects of the appellant's evidence that were unreliable. But there was no point in making a finding that the appellant could not have been confused by Exh 2 if, on all of the evidence, Exh 2 did not depict what was in place. 83 Even if it was open to his Honour to conclude that the appellant's recollection of the sign was correct, as he appears to have done, then the evidence established that the sign did not depict the road conditions. In that case, that would have been a relevant consideration in determining whether the signage at the detour was confusing. His Honour did not appear to have any regard to that evidence. 84 His Honour also found that the only criticisms of [NAME_6] and [NAME_7] made by the experts as to the management of the site relied upon the absence of barriers facing [NAME_4] travelling in the opposite direction to the appellant. He considered that the expert evidence "[did] not incriminate in any way the arrows on both sides of the road which the [appellant] said she observed at the detour in her statement given to [NAME_31]" and which his Honour found represented the "true source of her confusion". 85 The difficulty with his Honour's conclusion in relation to the expert evidence is that it was based upon the premise that the appellant had confined her case to confusion caused by the absence of a barrier. As I have already explained, I consider that that was not the case. His Honour's conclusion is also based upon his own misapprehension in relation to the signage to which I have already referred. 86 The appellant's main complaint in relation to this part of his Honour's reasoning is that his Honour failed to give any consideration to that part of her case that asserted that there was negligence in failing to erect a two-way sign. For the reasons that I give below, that was a relevant part of the case and required consideration by his Honour. The failure to consider it also involved error. 87 In my opinion, the trial judge erred in his understanding of the extent of the claim made by the appellant and in his interpretation of the two statements upon which he based his ultimate conclusion that [NAME_7] and [NAME_6] were not liable. His Honour expressed the opinion that if he were to accept the appellant's version that she was confused by the barrier set up, she would have been entitled to a verdict. His Honour was correct in this assessment. The barrier set up at the scene of the detour involved negligence such that, of itself, it was sufficient for the appellant to succeed against either [NAME_7] or the [NAME_6] or both. That negligence was most likely a casual act of negligence in that chevrons were removed and not put back in place. Otherwise, there would have been two chevrons on the opposite side of the road in accordance with [NAME_35]. Another possibility, arising from the evidence of [NAME_36], was that [NAME_35] was not complied with and for a period a movable barrier was used on that part of the roadway. 88 In this regard, [NAME_36]'s evidence as to the existence of barriers other than the chevrons, being used at or near the turn-off, helps to explain [NAME_31]' evidence that he saw a barrier board off to the right of the road and parallel to it. It is known from [NAME_36]'s evidence that there were two barrier boards, other than the chevrons, in the vicinity of the detour. [NAME_36]'s evidence also lends support to there being a casual act of negligence by the Council at some stage during the construction. If the chevrons were moved from their position, as is apparent from his evidence that they were, then, if the evidence of the appellant and [NAME_31] is correct, the ones on the opposite side of the road had not been repositioned or repositioned correctly at least on the night of the accident, and it would appear, the jersey-type barriers were not in place so as to provide a barrier across the opposite side of the road or to otherwise fill in a gap on the opposite side of the road. Whatever barrier was on the other side of the road, it was positioned so as to be parallel to the alignment of the roadway, and thus was not blocking it. 89 However, in order for the appellant to establish liability, it is not necessary for her to establish precisely how the negligent set up on the night of the accident came about, except to the extent that she needs to attribute the responsibility for that set up to one or both of [NAME_7] or [NAME_6]. In that respect there has been no dispute. Senior counsel for [NAME_6] acknowledged, as I understand his submission, that if the Court found that the absence of a barrier on the opposite side of the road caused the appellant's confusion, then it would be liable as it was its responsibility to put the chevrons in place and maintain them in place. That much was established on the evidence. 90 I am also of the opinion that there was negligence in the design of the general [NAME_4] control measures including chevrons being placed on both sides of the road in circumstances where there was no 'two-way' sign at the detour. This is considered further below as it is related to the question whether [NAME_7] owed a duty of care to the appellant. 91 Before determining whether the appellant has established negligence against either [NAME_7] or [NAME_6], there is another issue to which reference should be made. [NAME_7] contended that his Honour's finding on causation was credit based and was thus protected from appellate review by the Abalos principle: see Abalos v Australian Postal Commission (1990) 171 CLR 167; Fox v Percy (2003) 214 CLR 118; [2003] HCA 22. 92 His Honour's credit finding was based essentially upon the appellant's unreliability as opposed to any untruthfulness. As his Honour said, he had not concluded that the appellant was devoid of credit and not to be believed on other subjects. Nonetheless, a finding based upon unreliability or inconsistencies in evidence is as much governed by the Abalos principle as is a credit finding based on untruthfulness. 93 In this case, however, I am of the opinion that his Honour's finding on causation is not so protected. As I have explained, his Honour's failure to appreciate both the extent of the appellant's case and certain aspects of the evidence means that his credit finding was itself misplaced.

Contributory negligence 94 [NAME_6] contends that the appellant was contributorally negligent, in that she ought to have seen the headlights of [NAME_9]'s vehicle coming towards her and taken steps to avoid a collision. [NAME_6] further contends that the appellant should have kept to the left-hand side of the road in any event. Both arguments can be disposed of shortly. It is convenient first to deal with the second of these arguments. The appellant believed she was on a one-way road. That belief was induced by the negligence of the Council. As the appellant believed she was on a one-way road, there was no need to move to the side. 95 So far as the failure to sight [NAME_9]'s headlights is concerned, there was no evidence upon which the Court could find that the appellant should have observed them. The headlights of both vehicles were on low beam and the area was heavily wooded. The appellant said the road was winding so that no inference could be down that the headlights of a vehicle coming from the opposite direction ought to have been visible. [NAME_9] did not assert that he saw the appellant's headlights. 96 In my opinion, the defence of contributory negligence should be rejected.

[NAME_7] owe a duty of care to the appellant? 97 The question of whether [NAME_7] owed a duty of care to the appellant is very much involved with the relationship between it and [NAME_6].

Relationship between [NAME_7] and [NAME_6] 98 [NAME_7] contends that whatever the barrier set up at the detour on the night of the accident, and regardless of whether that set up was negligent, the signage and barrier placement was not a matter in the care and control of [NAME_7]. Rather, [NAME_6] was the relevant [NAME_2] authority for the construction of the new section of the Highway. [NAME_7] contends that its involvement with the road works and in particular with the detour arrangements was limited to the approval it gave to the works in 1996. 99 There is in fact no dispute that [NAME_6] was the [NAME_2] authority for the Highway: [NAME_2] Act 1993 (NSW) (the [NAME_2] Act) s 7(4). The fee simple of the Highway was also vested in it pursuant to s 145(3) of that Act. However, pursuant to s 61, it was exclusively the function of [NAME_7] to make decisions as to what road work was to be carried out on the Highway: s 61(1)(a). It would appear that the decision to undertake the new road works was made under this section. 100 The new works were being constructed by [NAME_6] pursuant to an $8m funding advanced by [NAME_7] under s 207 of the [NAME_2] Act. That section provides: "207 [NAME_8] may provide financial and other assistance to [NAME_2] authorities for road work on classified [NAME_2] (1) [NAME_7] and a [NAME_2] authority may enter into, and may perform their obligations under, an agreement under which [NAME_7] provides financial or other assistance to the [NAME_2] authority to enable it: (a) to carry out specified road work or specified [NAME_4] control work on a specified classified road, or (b) to carry out road work or [NAME_4] control work generally." 101 The contract for [NAME_6] as the [NAME_2] authority to carry out the work was entered into with [NAME_7] in 1995. The contract comprised relevantly an acceptance of [NAME_6]'s revised cost estimate, [NAME_7]'s Schedule of Works and Specifications for the project and its 'Arrangements with Councils for Road Management'. This latter document apparently is referred to generically within [NAME_7] and local Councils as the 'Yellow Book'. 102 Clause G1.10(c) of the Specifications provided that the contractor was responsible for constructing the project in accordance with the specification and drawings. The key players for the works were also specified in cl G1.10. [NAME_7] and [NAME_6] were the principal and contractor respectively. The Superintendent was an [NAME_8] employee and the Supervisor, Project Engineer and Foreman were [NAME_6] employees. The Foreman was responsible for the day-to-day co-ordination and site control of direct labour, plant, sub-contractors and suppliers: 'Quality Plan' cl 2.2.1. 103 Clause G2.4 provided that control of [NAME_4] shall be in accordance with Part G10. Clause G10.1 provided relevantly: "G10.1.1 Extent of work

The work to be executed under this Part of the Specification consists of all work necessary to provide for the safe movement of [NAME_4] and the protection of persons and property through and/or around the work site.

The extent of work includes the design, construction, maintenance and removal of temporary roadways and detours, the provision of [NAME_4] controllers, signposting, road markings, … barriers and any other items required. All temporary [NAME_4] arrangements required by works under this Contract are included under this Part of the Specification except where specified otherwise .

Control of [NAME_4] shall be in accordance with AS 1742.3, this Part of the Specification, and the Drawings.

Wherever the word 'should' occurs in AS 1742.3 the word 'shall' applies and the required action is the contractor's responsibility." (Emphasis added) 104 Clause G10.1.3 provided that four weeks prior to undertaking any work that would involve any obstruction to [NAME_4], [NAME_6] was to submit for the Superintendent's approval a [NAME_4]. The Plan was required to include a "signpost layout" showing location, size and legend of all temporary signs. 105 Clause G10.2.7 provided that temporary roadways and detours shall not be opened to [NAME_4] until inspected and approved by the Superintendent. 106 Clause G10.4.3 made provision for the maintenance of [NAME_4] control devices and required that they be maintained in accordance with AS 1742.3 "so that they are in good order and in the correct positions day and night" (emphasis added). Clause G10.4.4 further provided that where [NAME_6] fails to provide and maintain adequate [NAME_4] control devices, the Superintendent may arrange to have such items provided and maintained. 107 Part Q-DC made provision for the submission of 'Quality System' documents by [NAME_6]. These documents were required to include a 'Quality Plan' containing "quality procedures for the quality assurance of all project activities". [NAME_6]'s Project Engineer was responsible for (among other tasks), "surveillance of the quality system to ensure the system is functioning …". 108 [NAME_6] submitted its 'Quality Plan' on 27 February 1995. The 'Quality Plan' specified that Control of [NAME_4] was included in the scope of works. The preparation of a [NAME_4] was the responsibility of the Project Engineer, subject to approval by [NAME_7]. 109 The responsibility, authority and resources for the project were specified in cl 2.2.1 of the 'Quality Plan'. Under cl 2.2.3, the Supervisor of Works, in conjunction with the Project Engineer, was required to review the quality system at regular intervals to ensure its continuing suitability and effectiveness. 110 The Project Engineer was also required to conduct internal quality audits on the effectiveness of the quality system and to submit the audit report to the Supervisor of Works: 'Quality Plan' cl 5.13. [NAME_6] was responsible for training all employees undertaking activities affecting quality: 'Quality Plan' cl 5.14. 111 Clause 5.8 required the Foreman or the Project Engineer to observe the [NAME_4] "from the perspective of a driver, who it is assumed is not familiar with the site". 112 Part A of the 'Quality Plan' was an 'Activity Plan'. 113 Clause A1 dealt with [NAME_4] management. It set out six activities and nominated the persons responsible for undertaking the activity as well as the acceptance criteria for each activity. The specified activities and the relevant responsibilities were: Activity Responsible Person Acceptance Criteria 1 Preparing the [NAME_4] ([NAME_4]) [NAME_8] with Specification "Hold Point" 2 Implement Scheme Supervisor of Works, Project Engineer, Foreman Compliance with approved [NAME_4] "Hold Point" 3 Monitor Scheme Project Engineer, Foreman Inspection by Foreman conforms to [NAME_4] 4 Change Scheme Project Engineer, Foreman Inspection by Foreman 5 Reinstate Damage Foreman Inspection by Foreman 6 Remove Scheme Foreman Inspection by Foreman

(A " hold point " appears to have been a point in the project where the matter could not proceed until the relevant activity was approved.) 114 The Foreman was required to monitor the [NAME_4] on a daily basis to ensure that signposting and [NAME_4] control devices were in place: Procedures Manual Part P cl 5.7. 115 The 'Quality Plan' also included an Inspection Plan and Hold Point Schedule, which included the [NAME_4] Management arrangements. The requirements for each of these was as follows: Activity Inspection Frequency Request by Inspect. by Acceptance Criteria 1 [NAME_4] Submit [NAME_4] Prior to commencement [NAME_8] with Spec. 6 [NAME_4] Management Control Plan Daily Foreman Conforms to [NAME_4]

116 The only requirement for inspection by [NAME_7] under the Quality Plan, other than submission of the [NAME_4], was at the point of the opening of the completed work, with the inspection to be undertaken by [NAME_7] ten days prior to the opening. 117 The [NAME_4] control measures for the detour were designed as part of [NAME_35]. On 24 June 1996, [NAME_6]'s Project Engineer, who had responsibility for the initial preparation of the [NAME_4] forwarded a fax to [NAME_7] enclosing, inter alia, [NAME_35], commenting that it had been amended to include [NAME_7]'s recommendations. The Project Engineer advised that the "special sign 'Reduce Speed/Road Narrows' is currently being designed …". The Project Engineer sought the release of [NAME_35] in accordance with cl G10.1.3 of [NAME_7] specifications. [NAME_7] responded on the same date by advising that [NAME_35] was released.

[NAME_7] owe a duty of care? 118 [NAME_7] contended that once it had approved the plan it had no ongoing responsibility for the [NAME_4] control measures at the site unless any change was proposed by [NAME_6]. Its point, in short, was that if [NAME_35] was properly implemented, there would have been a barrier across the oncoming or north-bound section of the new work. It followed on its submission that it did not owe a duty of care to the appellant. 119 [NAME_7] submitted that, in circumstances where its role did not extend beyond providing the funding for the works and relevantly approving the design drawing for the [NAME_4], it did not owe a duty of care to the appellant. It submitted that, in this regard, it was in no different position to that which applied in Palmer (see at [9] above). 120 In Palmer, Spigelman CJ considered whether, in similar circumstances, [NAME_7] owed a duty of care to the plaintiff who suffered catastrophic injuries when she lost control of her car and went over the edge of the road and down an embankment. The accident occurred at a point where road works were being undertaken by contractors pursuant to an agreement made with the local Shire Council. The project was one that was funded by [NAME_7]. As in this case, the Council was, under s 7 of the [NAME_2] Act, the road authority, although in [NAME_7] had overall responsibility for the road: see Palmer at [4]. 121 Spigelman CJ held at [153]-[154] that [NAME_7] did not owe a duty of care to the plaintiff in that case. His Honour observed that [NAME_7] had funded the particular project and also undertook a range of interventions to ensure the proper execution of the project. However, it was not responsible for execution of the works. That task was solely reposed in the Shire Council and its sub-contractors. Pursuant to those arrangements, it was a Council officer who attended the site each day whilst the road works were being undertaken. There was no requirement or expectation that an officer of [NAME_7] would undertake inspections. The Chief Justice thus concluded: "[154] In my opinion, the terms and conditions of [NAME_8] funding, detailed as they are, do not involve [NAME_7] in the actual carrying out of the work. [NAME_7] is not an authority which does 'carry out works or repairs' upon the road here in issue (cf Brodie at [150]). Nor did it have 'physical control over the object or structure which is the source of the risk of harm' ( Brodie at [103]; Barclay Oysters at [151]), i.e. the combination of gravel and the 75 km/h sign. [NAME_7] did not 'exercise control' over this 'direct source of harm' to drivers ( Barclay Oysters at [152]). The relationship between [NAME_7] and the Plaintiff was 'indirect … it [was] mediated by intervening conduct' on the part of the Council and [the contractors] ( Barclay Oysters at [153]; see also at [154]). [NAME_7] did not, in my opinion, control in a sufficiently proximate way the 'relevant risk of harm' ( Barclay Oysters at [150] and [152]). The carrying out of the works extending to the installation of appropriate speed advisory signs in the circumstances, was not a matter which it ever had the capacity to control under the arrangements in place. [NAME_7] did not, therefore, owe a duty of care to the Plaintiff with respect to the gravel and the 75 km/h sign." 122 [NAME_6] accepted that the negligence of [NAME_7], if any, was in its approval of [NAME_35]. Subject therefore to the factual question of whether [NAME_35] provided for adequate [NAME_4] control measures at the detour and the question of inspections by [NAME_7], his Honour's reasoning in Palmer applies directly to this case. 123 The question of inspection can be dealt with shortly. [NAME_36] gave evidence that [NAME_7] did inspect the construction site. He said that it did so once a month or less. However, there was no evidence that [NAME_7] inspected the signage or [NAME_4] control measures at the point of detour or at any relevantly proximate time to the accident or at all. In those circumstances, there is insufficient evidence to infer negligence due to a failure to inspect. In any event, no case was run at trial of a systemic failure, such as a failure to inspect in breach of a contractual requirement to do so or contrary to some established practice. 124 Senior counsel for [NAME_6] postulated three possibilities as to why the [NAME_4] was not adequate. First, because of the failure to provide for a two-way sign; second, because the chevrons were not adequately positioned on the plan; and third, because no provision was made for a solid barrier to block off the road more fully. 125 The second and third of these propositions can be disposed of immediately. Both experts expressed the opinion that [NAME_35] was adequate at the time it was approved. [ADDRESS] does not have to accept that evidence. However, there was no dispute between the experts on the point so that it would be unusual for the Court not to accept the uncontested expert evidence. Indeed, there would have to be good reason for it not to do so in that circumstance. There was no other evidence that [NAME_35] was, when first implemented, inadequate for either of these reasons. 126 It will be remembered that [NAME_31] was of the opinion that there should have been a two-way sign at the detour and recommended that that be attended to. His concern was that the directional arrows created the impression that [NAME_4] travelling south was going onto a bypass. However, his concern related to the fact that the chevrons gave the impression that the road to the left was a one-way bypass in circumstances where there appeared to be a free right of passage on the northbound lane. [NAME_40] also supported the placement of a two-sign in that circumstance. 127 Accordingly, if there was negligence in failing to have a two-way sign, it was negligence that arose during the course of the construction work and was not related to the original design of [NAME_35] that was approved by [NAME_7]. As I have already pointed out, the Australian Standards did not indicate that a two-way sign was required and both experts agreed that the two matters specified in AS 1742.3 did not apply to the circumstances that operated at the detour. Although the Australian Standard in cl 2.2 "Basic principles" required that signs and devices should be regularly checked for effectiveness, that was the responsibility of [NAME_6]. 128 In my opinion, the evidence did not establish that there was any inadequacy in the design of [NAME_35] at the time of its approval. Nor was [NAME_7] responsible for checking compliance with it, or initiating changes as the work progressed. It follows that [NAME_7] did not owe any duty of care to the appellant. 129 I consider, however, that [NAME_6] was negligent in failing to assess the [NAME_4] control measures at the detour and provide for a two-way sign. The chevrons were moveable and must have been moved. The work being carried out at and near the detour created a dynamic situation. As [NAME_40] said, the conditions at the detour would have changed fundamentally from the time that [NAME_35] was approved. Both he and [NAME_31] considered that a two-way sign was necessary to avoid confusion.

The indemnity 130 Having regard to my conclusion that [NAME_7] did not owe a duty of care, it becomes unnecessary to deal with the question of indemnity. However, should I be wrong and as a matter of completeness, it is appropriate that I should do so. 131 [NAME_7] submitted that the relevant indemnity clause was that contained in Section G, cl F.01 of the Yellow Book. That clause provided: "COST OF LEGAL EXPENSES AND DAMAGES Any damages, costs, charges or expenses of any nature whatsoever paid, suffered or incurred by Council in respect of any action, claim, suit or proceeding taken by or against Council in respect of any work, is to be paid or borne by Council and is not to be charged to the cost of the work, and Council is to indemnify and save harmless and keep indemnified [NAME_7] from and against all such damages, costs, charges and expenses." 132 Senior counsel for [NAME_6] submitted that the relevant indemnity clause was in fact to be found in the [ADDRESS] Agreement between [NAME_7] and [NAME_6] for the years 1998-1999. Under that agreement, the relevant release and indemnity provisions did not extend to any claim or proceeding based upon the negligence of [NAME_7]: see cls 3.19, 3.20 and 3.21 of the [ADDRESS] Agreement 1998-1999. 133 In making this submission, senior counsel for [NAME_6] had assumed that the [ADDRESS] Agreement for 1998-1999 formed part of the relevant contractual arrangements between the parties. In my opinion, that was not so. [ADDRESS] Agreement was in respect of the whole of the Highway within [NAME_6]'s boundaries and was for ongoing maintenance work. It was entered into approximately three years after the contract that governed the construction of the new work. 134 The work that was being undertaken here was the construction of a new section of the Highway, which, when finished and opened, would result in the old [ADDRESS] being bypassed. The new section of the roadway was not opened until November 1999.

Accordingly, the new road works being undertaken did not fall within the approved work programme for ongoing maintenance of the Highway under the [ADDRESS] Agreement. 135 [NAME_6] accepted, as I understand it, that if the relevant indemnity clause was that contained in the Yellow Book, then that indemnity clause would require it to indemnify [NAME_7]. This submission is clearly correct. The same indemnity clause was held to cover a like situation in Palmer, in the decision of Wood CJ at CL at first instance: see Palmer v RTA [2001] NSWSC 846 at [416].

Case against [NAME_9] 136 The appellant's case against [NAME_9], the driver of the vehicle with which she collided, was that he was negligent in driving at a speed that was too fast in the circumstances. 137 In his evidence at trial, [NAME_9] said that he was driving at 30-35km per hour at the time of the accident. The trial judge did not accept this evidence. He found that the probability was that he was driving 40-45km per hour on the curve, which was the speed that he had informed [NAME_31] that he was driving at when he gave his statement at the scene of the accident. 138 His Honour further found that his failure to keep to the advisory speed sign of 35km per hour constituted negligence. His Honour found, however, that that negligence did not causally contribute to the accident. He found that the accident was bound to occur anyway, even if [NAME_9] was travelling at the advisory speed. In this regard, his Honour noted the concessions that had been made by both [NAME_40] and [NAME_38] that the accident would, in all probability, have occurred had [NAME_9] been travelling 35km per hour. His Honour was not prepared to find that, had [NAME_9] been travelling at 35km per hour, the severity of the accident and the extent of injuries suffered by the appellant would have been less. 139 The appellant complains that his Honour failed to deal with that part of the her case in which she alleged that had [NAME_9] been travelling more slowly, the appellant might have been able to avoid the collision. 140 The crash occurred on a tight right-hand curve as the appellant was driving along it. The curve was signposted at 35km per hour for vehicles travelling in both directions. The curve had an approximate radius of 50m which restricted the sight distance at the centre line to about 37m. 141 The impact to the appellant's vehicle was on her right-hand front corner and down the right hand side of the car. The front off-side wheel was bent transversely. The off-side front mudguard was severely damaged and there was also some damage on the leading edge of the off-side front door. There was damage to the bonnet, but this was caused by the damage to the off-side front of the vehicle. 142 In her statement to the police the appellant said that she had tried to get out of the way of the truck, but that it came around fairly quickly "and fairly wide", making it hard for her to get out of the way. In her cross-examination she agreed that if she had moved even a metre to her left, the collision would not have occurred. She said that she had tried to get out of the way, but did not have sufficient time, as she only saw [NAME_9]'s truck moments before the impact. 143 [NAME_40] gave evidence that a speed of 40-45km per hour around that curve "would be hazardously high". [NAME_38] was of the same opinion. He said that the speed [NAME_9] adopted: "[W]as too high at a location where he knew that sight distance was restricted … He was a regular user of this road and he knew the conditions at this curve and the possibility of on-coming [NAME_4]." 144 [NAME_38] also stated that "the available sight distance around this curve is insufficient for vehicles on a collision course to see each other and to stop". [NAME_38] also agreed that depending upon the speed of the truck and the appellant's own speed, there was not much time to stop. 145 [NAME_38], in his report, stated that if both vehicles were travelling at 30km per hour they may have been able to stop before colliding. If both were travelling at 35km per hour, he considered there would have been a minor impact. He also stated that the seriousness of a collision increases as speed increases, so that at a closing speed of 80km per hour (the appellant at 35km per hour and [NAME_9] at 45km per hour), a more serious impact was likely. 146 During cross-examination by counsel for [NAME_9], [NAME_38] reinforced his opinion that speed was an important consideration in determining the extent of damage. He was asked: "Q: [D]o you agree, as far as relative seriousness or impact, the difference between the truck travelling at either 45 or 35 would make very little difference? A: No, I don't agree with that. You've got a scenario painted about where she was on the road, and what speed she was travelling at; and you're asking me if the truck came towards her at a speed of 30 or a speed of 45, it wouldn't have made much difference. I would say the speed of the truck was quite a critical issue."

[NAME_38] was then asked whether it made any difference to that opinion if he assumed that [NAME_9]'s vehicle was travelling close to the embankment on its side of the road. In dealing with that assumption, [NAME_38] explained that the evidence he had just given was based upon the assumption that [NAME_9]'s vehicle was straddling the centre line. If, as his Honour found, the truck was tucked into the embankment, [NAME_38] said that: "Given that the angle of impact was the same, under those circumstances, probably the damage wouldn't change either; because most of the damage that's occurred to the vehicle is due to the bullbar of the truck going across the mudguard, but doesn't really hit the frame of the truck … on the proviso that [these assumptions do not mean] that the truck hits further towards the front of the vehicle, yes, I agree that the speed then doesn't make a great deal of difference ." (Emphasis added) 147 In his report, [NAME_40] considered that a reasonable reaction time at the curve was about 1.5 seconds. On an assumption that the appellant's vehicle was approaching the curve at 30km per hour, it would be travelling at about 8.3m per second. On the assumption that [NAME_9] was approaching at 35km per hour, he was travelling at 9.7m per second. On those assumptions, the "closing speed" of the two vehicles was about 18m per second. [NAME_40] stated that, given that the maximum sight distance through the curve was about 37m, the maximum time between first sighting and collision was about 2.1 seconds. On those assumptions, if one or both vehicles was straddling the centre line, then there was insufficient time or distance to successfully avoid the oncoming vehicle. 148 [NAME_40] also gave evidence that there was an exponential relationship between velocity and potential for injury. He said that if there was a unit of 5 increase in speed, there would be a unit of 25 increase in injury potential. However, [NAME_40] did not give any evidence relating to the relative position of the cars. 149 Further, neither expert gave evidence that the appellant's injuries were more serious because of the speed at which [NAME_9] was travelling. 150 It appears from the cross-examination that the appellant did seek to make out a case that the collision, and therefore her injuries, were more serious because of the speed at which [NAME_9] was travelling. His Honour failed to deal with that case. In such circumstances, the usual course is that the matter is remitted for retrial, at least on the issue not dealt with, unless the evidence is such or of such a nature that the appellate court is able to deal with it. That can occur where the evidence is uncontested or is documentary. 151 However, this Court will only order a new trial if there has been some substantial wrong or miscarriage: Supreme Court Rules 1970 (NSW) Pt 51 r 23. In this case there was no substantial wrong or miscarriage. The evidence was that the speed at which [NAME_9] was travelling caused a more serious crash than would have been the case had he been travelling at the advisory speed. However, there was no evidence that the appellant's injuries were thereby worse. In those circumstances, even though the trial judge erred in failing to deal with this part of the case as advanced by the appellant, it is not an error calling for appellate intervention. 152 It follows that his Honour's verdict in favour of [NAME_9] should be upheld. 153 Strictly, that makes it unnecessary to deal with [NAME_9]'s Notice of Contention. However, if it became necessary to deal with it, I would not uphold it. The evidence clearly was that taking the curve at 45km was dangerous. A person driving dangerously is not exercising reasonable care. 154 The result of my conclusion is that the appellant has been partially successful and is entitled to a verdict against [NAME_6]. Unfortunately, his Honour did not assess damages. [ADDRESS] has consistently urged upon trial judges the need to determine damages in the event that the Court of Appeal does not uphold the primary decision on liability. This was a case where that ought to have been done. Because damages have not been assessed the matter will have to be remitted for a further hearing in relation to damages. 155 There may be costs questions that arise in relation to the dismissal of the appeal as against [NAME_7]. I would expect that the appellant would seek a Bullock Order against [NAME_6] in respect of the costs that it will be ordered to pay to [NAME_7]. There will also be costs issues arising from the fact that the appellant sought to discontinue its appeal against [NAME_7] but was prevented from doing so because of the question of contribution that [NAME_6] sought to maintain against [NAME_7]. I would thus propose making the principal orders disposing of the appeal as set out below and give directions for the filing of written submissions in relation to the costs of [NAME_7].

ORDERS

1. Appeal allowed in part and dismissed in part;

8. The appellant and the first and second respondents ([NAME_7] and [NAME_6]) are to file written submissions as to the costs of the first respondent at trial and on appeal. 156 [NAME_5] JA: I agree with Beazley JA. 157 BASTEN JA: I agree with Beazley JA. **********

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