Wells v Council of the City of Orange (No 2)

HIS HONOUR:

At approximately 10.30pm on that date the plaintiff was riding a motorcycle north along Jilba Street when he collided with a barrier. As a result of the collision the plaintiff was thrown forward over the barrier and suffered serious injuries particularly to his head. The plaintiff has brought proceedings against the defendant alleging negligence on its part.

The particulars of negligence include a failure to provide adequate lighting, delineation and using a Traffic Control Plan (TCP) of which the barrier formed part which failed to comply with the relevant Australian Standard (AS 1742.3 (2009)).

On 12 May 2016 in Wells v Council of the City of Orange [2016] NSWSC 589 the Court made an order pursuant to Uniform Civil Procedure Rule 28.2 (UCPR) that there should be a separate hearing as to liability. This is the judgment in respect of liability.

Unless otherwise stated I find the facts to be as follows.

Agreed Facts were put before the Court by the parties.

Three engineers gave evidence and prepared reports for use in the proceedings. They also prepared a Joint Experts’ Report setting out the issues upon which they agreed and disagreed. The engineers were Mr McDonald, retained by the defendant, who had expertise in traffic engineering and accident reconstruction; Mr Lawson, retained by the plaintiff, who had expertise in traffic control and the use of the Australian Standard relating to traffic control; Mr Johnston, retained by the plaintiff, who like Mr McDonald had expertise in traffic engineering and accident reconstruction.

The Joint Experts’ Report was dated 25 January 2017 and was part of Exhibit A being Tab 8, pp 355–368. At p 361 the joint report stated:

The Project Co-ordinator/Site Supervisor on behalf of the defendant was Mr Swain. He left the work site at 3.45pm on 16 November 2009. As at that point in time he had checked that all the barriers and signs were set up in accordance with the TCP (Exhibit A, Tab 1, p 1). He was not the author of the TCP and was not qualified to prepare such a document. Another person not identified in the evidence prepared the TCP and gave it to Mr Swain to implement.

Mr Swain gave evidence that generally the defendant did not put lights on barriers in built up areas because residents would complain about the flashing lights in their windows and because flashing lights would also be a magnet for children to come onto the work site at night and throw rocks. He said that following the accident on the morning of 17 November 2009 he did not see any Council officers putting up additional signs or moving the existing signs. He said that he had never had a job where signs were put on both sides of a barrier. It was his experience that signs would face the direction from where the traffic was coming. He was unaware of persons taking motorcycles across the pedestrian foot bridge over Blackmans Swamp Creek.

It was common ground that the barriers used were interlocking Triton barriers constructed of a light weight polyethylene plastic shell. Each barrier had a length of 2.1m, 530mm in width and 810mm in height. Each barrier held 550 litres of water. When three barriers were linked together, the combined weight of all three would be 1,650 kilograms. There was no issue that these barriers were designed to provide rigidity during impacts and were resistant to tensile forces generated during high severity impacts.

In relation to his decision to use water-filled barriers when implementing the TCP Mr Swain said:

In his second statement (Exhibit 1, Tab 9, p 54, par 6) Mr Swain said:

I accept that as of 10.30pm on 16 November 2009 the signs and barriers in respect of Margaret Street, Jilba Street and Mirral Way were in position as set out in the TCP. The contrary was not suggested in the proceedings.

It was common ground that shortly before the accident the plaintiff had negotiated a water-filled barrier in Jilba Street to the south of that with which he subsequently collided. That barrier is depicted in Exhibit A, Tab 4, p 178. Further to the south of that barrier can be seen orange mesh surrounding the work site as it was then.

At the time of the collision there was a street light on Jilba Street about 10.6m to the north of the barrier with which the plaintiff collided. It was accepted by the parties that this street light was operating that night. If there were any doubt on that issue, it is resolved by the photographs taken by the police officers who attended the accident (Exhibit A, Tab 4, pp 163,168 and 170). As was pointed out by Mr McDonald the 10.6m distance is from the pole on which the street light was fixed. The photographs show that in fact the street light is suspended some distance from the pole over Jilba Street.

I am also satisfied that the other street lights in Jilba Street were operating at the time of the collision. Mr Sammut gave evidence that had a street light not been operating, he would have noted that fact. In addition Mr Thorpe, who was the defendant’s Works Manager at the time of the accident, attended Jilba Street three nights later on 19 November 2009 and noted that all of the street lights in Jilba Street were operating (T.72.9). The location of those other street lights is set out in the report of Professor Dain (Exhibit 1, Tab 16, p 210).

There was an issue between the parties as to whether the photographs taken by the police officers on the night of the collision and by Mr Thorpe on 19 November 2016 accurately depicted lighting levels at the time when the collision occurred.

The plaintiff relied upon the evidence of Mr Sammut. Mr Sammut was a police constable at the time of the accident but in the intervening years had left the Police Force and was working as a school teacher when giving evidence in the trial.

The plaintiff also relied upon the evidence of Mr Thorpe:

The plaintiff relied upon the evidence of the accident reconstruction experts as follows:

It was the plaintiff’s submission that the level of lighting at the collision site was accurately depicted by the photographs taken by the attending police officers and Mr Thorpe. If that submission is accepted, and if the motorbike had no headlamp, the barrier would have been shrouded in darkness and almost impossible to see until the driver was very close to it.

The defendant’s submission was that the level of lighting at the location of the barrier was much better than that depicted in the photographs and that the human eye would have been able to see much more than that which is depicted in the photographs.

The defendant relied upon the evidence of Mr McDonald and Professor Dain.

The Joint Experts’ Report identified the following issue:

I accept that the illustrations (Figures 5 and 6) in the Appendix to the Joint Experts’ Report and the discussion by Mr McDonald clearly illustrate the limitations of flash photography when compared with the human eye. There Mr McDonald said:

Additional evidence was given at trial:

The evidence of Mr Sammut as to the camera used by him and his colleague on the night of the accident was:

Professor Dain was an expert on optometry and vision science. He had frequently given evidence on vision related matters arising from occupational and road accidents. In his report of 30 March 2016 Professor Dain said in relation to the photographs in his report:

In relation to the visibility of the barrier, Professor Dain said in his report:

Professor Dain set out a summary of the conclusions in his report as follows:

In evidence at trial Professor Dain said:

I have concluded on the basis of the evidence of Mr McDonald and Professor Dain that the photographs taken by the attending police officers and by Mr Thorpe do not accurately depict the level of lighting at the time of the accident. Because flash photography was used, I am not satisfied that the photographs can even be said to approximate lighting levels and to indicate what was capable of being seen by the human eye. In reaching that conclusion, I am mindful of the evidence of Mr Sammut to contrary effect. In that regard, the scientific evidence needs to be taken into account as well as the fact that the observations made by Mr Sammut occurred over seven years ago. Having had his recollection assisted by being shown the photographs, it is natural that he would regard them as being accurate as to light levels. The photographs may also have caused a degree of contamination of his recollection. I have concluded that despite Mr Sammut doing his best to assist the Court, he was simply mistaken in that evidence. I am also satisfied that Mr Thorpe was mistaken in his evidence. In addition, it is not clear that Mr Thorpe understood the question.

I am, however, satisfied that Mr Sammut and his colleague had no difficulty observing the presence of the barrier on the night of the accident when they approached it with the headlights of their vehicle operating. That evidence is consistent with the opinions of Messrs Johnston and McDonald. I find that the barrier with which the plaintiff collided would have been adequately visible to an approaching car or motorcycle with its headlights or head lamp operating.

Given that state of the evidence, it is simply not possible to be satisfied as to the level of lighting which prevailed at the time of the accident. What I am prepared to find is that the human eye would have been able to observe more than is depicted in those photographs. How much more cannot now be accurately established. This creates a significant problem for the plaintiff because he is not able to establish that lighting levels in respect of this barrier were inadequate and that more should have been done in that regard. This is particularly so when regard is had to what was originally said by Mr Johnston in his report of 5 May 2014:

I am, however, satisfied by the evidence of Professor Dain and Mr McDonald based on their examination of the accident site at night, that the ambient light at the accident site was sufficient to reveal the presence of the water-filled barrier to an approaching motorcycle rider who was keeping a proper look out. The presence of a functioning street light above the roadway where the barrier was located and its effect by way of creating a silhouette in relation to the barrier is an important factor in reaching that conclusion.

The plaintiff was born in January 1977. He was diagnosed with epilepsy when he was 14 and left high school in year 8. He engaged in a number of labouring occupations but by the date of the accident had been in receipt of a disability support pension for many years. He was working sporadically at the time of the accident mainly in the motor industry. The main inhibitor to employment for the plaintiff was the onset of crippling gout which he developed quite early in life. This precluded him from manual work which is the work for which he was suited.

At the time of the accident the plaintiff did not hold a driver’s licence having previously been disqualified from driving until November 2021. The motorcycle which he was riding at the time of the accident was an unregistered Suzuki 250 cc vehicle described as “a motor cross style of motorcycle”. The motorcycle did not have a head lamp fitted to the front. Illumination was provided for the plaintiff by what the police described as a “small ‘camp style’ light which was normally affixed to the head by a strap”. There was no evidence as to the illuminatory capacity of this small ‘camp light’. All that we know is that the ‘camp light’ was powered by three AAA batteries. Messrs Johnston and McDonald agreed that such a device was “highly unlikely to have been as effective as a normal motorcycle head lamp. This applies in terms of direct illumination of objects and illumination from retro reflective signs”.

Messrs Johnston and McDonald agreed that the motorcycle speed was in the order of 50 – 60 km/h. The speed limit in the area was 50 km/h. There was no evidence that the motorcycle had braked before striking the barrier. The distance between the position of the barrier and the position of the plaintiff after the accident was 19.3m. At a speed of 50 km/h the motorcycle would have covered 13.8m in one second. At a speed of 60 km/h it would have covered a distance of 16.6m in one second.

To travel from the pedestrian bridge to his friend’s residence at Tasha Place at about 7pm, the plaintiff must have passed from the south of the two barriers on Jilba Street, including the one with which he collided. When returning from his friend’s place at approximately 10.15pm he must have again passed from the north of the barrier with which he collided before making the U-turn. It is not known how far he had progressed past that barrier before making the U-turn.

It follows, and I have concluded, that the plaintiff had successfully negotiated this barrier in darkness when approaching from the northern side before making the U-turn. He must therefore have been well aware of its presence and precise location. This is because he had negotiated this barrier from the northern side, not long before he made the U-turn. It was the U-turn which caused him to approach it from the southern side on the occasion of the collision.

At the time of the collision, the plaintiff was not wearing a helmet having loaned it to a friend some days previously. In evidence he accepted that he was aware that he might suffer serious injury if he did not wear a helmet and hit his head (T.32.15) and that the purpose of a helmet was to protect him from getting a head injury (T.32.21). Dr McIntosh, an expert retained by the defendant, said in his report that “had the plaintiff been wearing a standard motorcycle helmet at the time of the collision (but all the other circumstances of the collision remained) he would have suffered fewer and considerably less severe head injuries” (Exhibit 1, Tab 17, p 249 para 48). Dr McIntosh also opined “he would not have suffered any skull fractures and related local intra-cranial injuries” (Exhibit 1, Tab 17, p 250 par 51).

A blood sample was taken from the plaintiff at the Orange Base Hospital at 11.15pm on 16 November 2009. The sample was found to contain not less than .059 grams of alcohol in 100 millilitres of blood, i.e. a reading of .059 (Exhibit 1, Tab 30, p 546-47). The evidence of Dr Ogden, an expert medical practitioner and pharmacologist, retained by the defendant was that the plaintiff’s alcohol concentration would not have been materially different at the time of the collision (Exhibit 1, Tab 18, p 315). The plaintiff’s evidence was that he had consumed part of a bottle of tawny wine on the afternoon/evening before the collision. He gave evidence that it was “common sense” that drinking the amount that he drank and then trying to ride a motorcycle would make him less able to control the motorcycle (T.33.19). No challenge was made by the plaintiff either to the blood alcohol reading or to the opinion of Dr Ogden.

There was an issue between the parties as to whether the plaintiff had consumed an amount of marijuana and an amount of sleeping pills on the afternoon of the collision. The defendant submitted that he had.

In support of that submission the defendant relied upon what was recorded in the medical records of the Orange Base Hospital and the Nepean Hospital. The record in the Orange Base Hospital was “ETOH/marijuana/sleeping tablets this pm”. The defendant submitted that this information likely came from the plaintiff given that the medical records showed that he was initially alert and conscious with a Glasgow Coma Scale (GCS) of 14 before a subsequent deterioration (Exhibit 1, Tab 29, p 520 and 525).

The defendant submitted that such a finding would be consistent with the plaintiff’s evidence that he would smoke marijuana with his friend at Tasha Place from time to time and that he took sleeping pills “sometimes, every afternoon, night” including on the previous evening (T.31.11). The defendant submitted that such a finding would also be consistent with police records which referred to alcohol and sleeping tablets as a factor contributing to the crash (Exhibit A, Tab 4, p 156).

The defendant submitted that there was no evidence to the contrary. The defendant submitted that because the plaintiff’s friend was with him that afternoon but was not called by the plaintiff to provide contrary evidence, the Court should draw a Jones v Dunkel inference that the friend’s evidence would not have assisted the plaintiff on this issue and that as a result, the Court could be more confident in drawing an inference as to the accuracy of these records. The defendant noted that the plaintiff’s evidence was that he was aware that mixing alcohol with sleeping pills would enhance the effect of the alcohol and make him more drunk than he would be otherwise (T.31.27).

The plaintiff submitted that it was not clear where that information had come from and that it could not necessarily be inferred that it had come from him. On that issue the plaintiff relied upon Lithgow City Council v Jackson [2011] HCA 36; 244 CLR 352 where the High Court held that an ambulance record was so ambiguous as to have no probative value. Alternatively, the plaintiff argued that s 78 of the Evidence Act 1995 (NSW) did not apply in the absence of a clear identification of the person who held the relevant opinion.

The decision in Lithgow City Council v Jackson is readily distinguishable from the facts under consideration. The specific reference to “this pm”, when taken with the plaintiff’s own evidence, allows me to draw an inference that the likely source of the information was the plaintiff (there being no evidence of anyone else having witnessed the accident or having accompanied the plaintiff to hospital). Accordingly, I accept the defendant’s submission that the plaintiff had consumed some marijuana and sleeping pills on the afternoon of the day on which the accident occurred.

That having been said, the finding does not significantly assist the defendant. In the absence of any information as to the quantity of marijuana or sleeping pills consumed, little use can be made of that finding. It cannot be safely inferred that the consumption of these substances contributed to or explained how the collision occurred. It does no more than form part of the general background to the incident.

The finding as to the level of alcohol consumption, however, is in a different category. Dr Ogden in his report said:

Later in that report Dr Ogden said:

That opinion by Dr Ogden was not challenged at trial. Accordingly, I have concluded that the plaintiff’s ability to control the motorcycle was impaired by the alcohol which he had consumed. I am, however, unable to assess the level of impairment.

The experts agreed that the normal or prescribed process for traffic control of worksites was to prepare a TCP. A TCP was intended to protect workers and provide for the safe passage of road users, either through, past or around road work. Australian Standard 1742.3 (2009) provides guidance for the development of TCPs. A copy of that standard was before the court (Exhibit A, Tab 2, pp 2-134). The TCP prepared by the defendant was Exhibit A, Tab 1, p1. A more sophisticated version of that TCP can be seen in the report of Mr McDonald of 5 April 2016 (Exhibit 1, Tab 14, p123).

The experts accepted that the TCP prepared by the defendant (dated 16 November 2009) was based on figure 4.14 of AS 1742.3 and TCP 54 of Traffic Control at Work Sites and the relevant associated provisions or clauses within each document. Traffic Control at Work Sites was a document prepared by the Roads and Traffic Authority, which provided guidance on the development of TCPs and included a number of standard TCPs.

The experts agreed that AS 1742.3 and Traffic Control at Work Sites allowed for modification of standard TCPs to accommodate specific site conditions. They noted that the subject TCP differed from a standard layout, such as TCP 54, in that barrier boards (or other portable barricades) had been substituted with plastic Triton water-filled barriers as the device placed partially across the roadway.

The experts agreed that the primary function of a safety barrier was to absorb the energy of impact and in doing so, re-direct an errant vehicle without penetration of the barrier or unacceptable deceleration levels or intrusion risk to the vehicle occupants. They noted that the selected barriers could be used as an approved safety barrier when interconnected and filled with water. Alternatively, when not filled with water or interconnected, the barrier modules could not be used as a safety barrier but could be used for other purposes such as delineation or containment fencing (AS 1742.3, cl 3.10.2).

The experts were of the opinion that in this instance the relevant barriers were not placed to act as a safety barrier system, as there was no hazard being protected beyond the line of the barrier. The devices were, in the experts’ opinion, installed to act as a physical impediment in support of the road closure, in place of the devices specified by the Australian Standard, being a row of barrier boards or other portable barricade devices.

Messrs Lawson and Johnston were of the opinion that the subject barriers could have been placed across the road if they were not interconnected, not filled with water and appropriately identified by a line of delineating devices (AS 1742.3, cl 3.9.2) either in front of or attached to the face of the barriers. Mr Lawson noted that clause 3.8.3(b) identified “an absolute requirement” in that the word “shall” was used with regard to the placement of delineating devices in front of stand alone non-interconnected lightweight modules (i.e. the subject barriers if they were not interconnected and were not filled with water). He also noted that clause 3.9 identified a range of delineating devices – cones, bollards, road work delineators and temporary hazard markers – none of which were installed.

Mr McDonald was of the opinion that the subject barriers could be used because they were obvious during the day and at night adequate illumination of them made further delineation of limited benefit and need. He was of the opinion (report 23 December 2016, Exhibit 1, Tab 15, p 173, 177-181) that Triton barriers without water in them and barrier boards would have caused the rider of a motorcycle to be flung forward in any event if a collision occurred.

The experts agreed that the standard was silent on the use of interconnected water ballasted barriers in the manner applied at the location of this incident, i.e. installed across a roadway as a means of road closure. They agreed that because of this, their use necessitated that a written risk assessment of the device as a specific deviation from the standard should have been undertaken before its implementation. This was the requirement of clause 2.1(ii) of the standard.

Mr Johnston and Mr Lawson were of the opinion that it was likely that such a risk assessment would have identified the increased risk of placing the subject water-filled barriers across the roadway without any supplementary delineation. The risk assessment would have recommended a suitable solution to eliminate the additional risk or would have identified an alternative solution where the risk was eliminated by choosing not to use the water-filled barriers in the first place. It was Mr Lawson’s opinion that the standard was silent on the use of interconnected water ballasted barriers installed across a road because they were not intended to be used in that manner. This was because to do so created a serious hazard.

Mr McDonald was of the opinion that the subject barriers were appropriately delineated by their appearance in contrast with their surrounds, preceding sign posting and because the barriers were lit (by direct illumination on the northern approach and predominantly by silhouette illumination on the southern approach). This was despite the fact that no formal risk assessment had been made. Mr McDonald considered that the barriers were substantial enough to create a collision hazard to a motorcyclist, regardless of whether water-filled or interconnected, as would any other type of barrier placed across the road. He considered that use of the subject barriers was in accordance with the provisions of the standard which allowed for modification and adaptation of TCPs.

Mr Johnston was of the opinion that the available photographs suggested that the barriers were not appropriately delineated as they were barely discernible in the photographs. He further noted that even if the street light was present and working, it provided no direct illumination of the inside face of the barrier, i.e. the southern side, (which was also devoid of any retroreflective devices) and no discernible silhouette illumination of the barriers themselves. He agreed that the prescribed alternative devices, if impacted, would still constitute a potential collision hazard but that such a hazard would not be as severe as that created by the water-filled barriers. Mr Lawson agreed with Mr Johnson on that issue.

Messrs Lawson and Johnston were of the opinion that interlinking and/or water filling the barriers created a hazard that did not otherwise exist and in circumstances where it was not needed to protect road users or workers from a greater hazard. All three experts agreed that the barriers in place were not marked with any retroreflective markings, except for the “road closed” sign on the outside face, i.e. northern face. Mr Lawson was of the opinion that the subject barriers should have been delineated with temporary hazard markers in accordance with cl 3.9.3 of the Standard. An example of such a marker was at p 9 of the Joint Experts’ Report of 25 January 2017 (Exhibit A, Tab 8, p 363).

Mr Johnston was of the opinion that the standard did not anticipate the use of such devices in this specific manner. Accordingly, there was no prescriptive methodology to adequately identify the presence of the barriers as a potential hazard to road users. As a result he considered that it was a fundamental requirement under cl 2.1(ii) of the standard that a formal risk assessment of the scheme and specifically this variation, be undertaken. This was because it created an additional risk for road users in that it became itself a potential impact hazard and because it did not provide the level of inherent retro reflective delineation which was afforded by the use of standard barrier boards.

Mr Johnston opined that the primary issue which should have been identified by a proper risk assessment was the need to appropriately delineate the barriers. Since there was no prescriptive method set out in the standard, any method that adequately identified the presence of the barriers and the actions required by a road user in sufficient time to respond to the presence of the barriers, would be a suitable method.

Mr Johnston noted that the requirement to conduct a risk assessment was a prospective requirement to identify future potential risks before formulating an appropriate TCP. It was not a retrospective requirement to be checked after an incident. It was agreed at trial that there was no evidence of any written or formal risk assessment having been made by the defendant in relation to the use of the subject barriers. I am satisfied that no written risk assessment of the use of the subject barriers was carried out by the defendant.

Mr McDonald accepted that cl 3.8 of the standard specified the use of a “Road Closed” sign together with barriers boards to bar access. He noted that rather than barrier boards, the water-filled barriers were used to bar access and that the subject barriers were delineated by lighting and contrast.

The experts agreed that the use of the subject barriers was a potentially acceptable application of professional judgment noting that the alternative barricades (barrier boards or lightweight modules) might have been subject to interference and relocation (vandalism). Mr Lawson believed that a risk assessment process should have considered alternatives to using the subject barriers such as opening the road to traffic overnight. Once a decision was made to utilise the subject barriers, the experts agreed that an appropriate risk assessment was required to ensure adequate delineation of the barriers.

The above opinions were set out in the joint experts’ report of 25 January 2017. Those opinions were tested in cross-examination at the trial.

Despite his agreement to the proposition in [69] hereof, it was clear from Mr Lawson’s evidence that he did not regard the use of the subject barriers as involving an acceptable application of professional judgment (T.89.32-90.10, T.95.48-96.11).

Mr Lawson said that even if the subject barriers were not filled with water, they would still have required delineation and he recommended the yellow and black barriers such as were set out at p 9 of the joint experts’ report (see [64] hereof). He also suggested the use of traffic cones and temporary bollards (T.96.32-97.6). He disagreed with Mr McDonald’s opinion that adequate illumination was already provided for the barriers by the street light. Mr McDonald’s response was that while the standard did talk about delineating barriers at night, providing adequate illumination so that the barriers could be seen achieved the necessary level of delineation (T.98.18).

Mr McDonald made the following general observation in relation to the standard:

There was no issue between the experts that the standard required that where signs and other delineation aids were to be used at night, their night time effectiveness would be best assessed by viewing the signs by vehicle headlights in dark conditions. I am satisfied that this did not occur in relation to these road works before the accident.

It was common ground between the experts that it was not practicable to drain and refill the water-filled barriers so they could be moved off the roadway at night. This was because a substantial amount of water was involved and at the time when the accident occurred, drought conditions prevailed. The experts agreed that it was not a “trivial exercise filling and emptying these barriers”. It was also agreed that if the purpose of filling the barriers was so that they were not displaced or removed by unknown persons, or otherwise vandalised, it would be pointless to empty the water out of them.

Mr McDonald gave evidence that before preparing his first report (5 April 2016) he went to the accident site at approximately 10.30pm and observed that there was sufficient lighting on Jilba Street at the intersection with Mirral Way for a motorcyclist to be able to identify the subject barriers and avoid a collision independent of the lighting available from the motorcycle. Mr McDonald accepted under cross-examination that there were no barriers set up at the time of his inspection. He did, however, place traffic cones on the roadway in a similar location and he was able to see those without any difficulty as a result of the ambient light. He did not take any photographs at the time because of the difficulty of reproducing by photographic means, the lighting levels prevalent at the time.

Mr McDonald accepted that in a formal risk assessment of the barriers erected at the intersection of Jilba Street and Mirral Way, consideration would have to be given to persons moving from inside the area where barriers had been erected, i.e. local residents and persons visiting local residents, such as the plaintiff, and service vehicles, including the police, pizza delivery persons etc. Mr McDonald’s position was effectively set out in his first report at paragraph 6.20 (Exhibit 1, Tab 14, p 148) as follows:

In evidence Mr McDonald expressed an opinion to similar effect when he said:

Mr Lawson agreed that the standard did not provide for the placement of reflective signs inside a work site or on the internal side of a barrier located at the site. Mr Lawson was unable to give any direct evidence as to his observations of the accident site at night since he had not visited the site.

When answering questions about his report Mr Lawson said that if the subject barriers were to be used, i.e. that there was a good reason for them to be used, then flood lighting should have been provided to make sure that their presence was known. This opinion was based on his understanding that the photographs taken on the night of the accident accurately depicted light levels at that time. His principal position was, however, that it would have been better not to put the subject barriers into position in the first place.

Mr Lawson accepted that the standard assumed that vehicles approaching a barrier would be using headlights otherwise there was no point in having retro reflective strips or other material to indicate the presence of barriers. Mr Johnston agreed with that proposition (T.115.17).

Mr Lawson (Exhibit A, Tab 7, p 351) was of the opinion that the placing of water-filled barriers at the intersection of Jilba Street and Mirral Way was so unreasonable that no authority, having the special statutory power to do so, could properly consider them a reasonable exercise of the power. He based that opinion on the following analysis “The use of these water-filled barricades in this situation introduced a serious hazard”. He considered that the subject barricades were “unwarranted” in that they were not installed in order to protect something. Residents were permitted access to the other side of them. If the defendant had a reason for using such barriers, it could have installed them but not filled them with water. This would have made them easier to move and far less of a hazard. Another reason was that the water-filled barriers were not used in accordance with the standard because no risk assessment had been made of the consequences of their use. His final reason was that having created an additional hazard by using the subject barriers, the defendant had failed to install signs, devices and/or reflectors to make the barriers visible to road users.

Under cross-examination Mr Lawson accepted that movable barricades and other objects used for delineation gave rise to a risk of them being moved or taken. He accepted that this particular area was notorious for vandalism of that kind. He also accepted that in assessing how to best protect the site and to protect members of the public driving to and from the site, it would be appropriate to take steps to prevent such vandalism. Mr Lawson agreed that using the subject barriers was the most efficient way of ensuring that work could start the next morning in that there was much less chance of signs and the barriers themselves being moved, damaged or taken.

Mr Lawson agreed that if the work was going to take a number of weeks, it would be necessary to have the barricades in position during the whole of that time. This would be seriously frustrated if the barricades were of a portable kind and were being moved, damaged or taken on a regular basis. Despite that agreement, Mr Lawson was not prepared to go the further step and accept that in those circumstances there was a good reason for using water-filled barriers as occurred. He maintained his position that there had been a failure to comply with the standard in that a written risk assessment in relation to the water-filled barriers had not been carried out. He was of the opinion that as an alternative, the road could have been opened each night until work was being carried out at that actual location, even though this would require the road work being backfilled each afternoon. Mr Lawson accepted that this would be less efficient and would significantly lengthen the time during which the work would be carried out. He maintained this opinion despite the fact that he had agreed in the joint experts’ report that the most efficient method of carrying out these works was to close the road.

It was clear that Mr Lawson appreciated the problem when he said:

The following exchange between Senior Counsel for the defendant and Mr Lawson is instructive. The background to the question was the suggestion by the defendant of an available line of reasoning leading up to the use of the subject barriers.

The proposition was put to Mr Lawson that if warning signs and movable barricades were taken or tampered with by members of the public this would also create a danger every bit as serious as having immovable water-filled barriers in position. If the warning signs were removed, serious injuries could occur. Mr Lawson’s response was that even with the water-filled barriers, you could still have signs being taken by members of the public.

Mr Lawson said that the start point for any TCP had to be the standard and it was only if that was unsuitable that you would look for an alternative (T.130.43). That opinion was significantly qualified by Messrs Johnston and McDonald as follows:

Later, on this same issue, the following evidence was given by Messrs Johnston and McDonald.

In his Amended Statement of Claim, the plaintiff’s particulars of negligence were essentially as follows:

The defendant accepted that it owed a duty of care to the plaintiff and articulated the duty of care as follows:

While that is an appropriate statement of the duty of care and the plaintiff did not dispute it as a statement of the duty of care, regard should also be had to the statement of duty in Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512:

In relation to breach of duty, the observations of Basten JA in Rankin v Gosford City Council [2015] NSWCA 249 are of assistance in that they highlight the overlap between the duty of care and breach of duty in this kind of matter:

On the issue of breach of duty, the provisions of ss 5B and 5C of the Civil Liability Act 2002 (NSW) (CLA) need to be kept in mind:

When considering ss 5B and 5C of the CLA it is necessary to identify the relevant “risk of harm”. As Gummow J (with whom Heydon J agreed) pointed out in Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 at [59], it is only through the correct identification of the risk of injury that a court can assess what a reasonable response to the risk might be. It is, of course, not necessarily easy to identify the nature of the risk of harm in a particular case. The relevant risk of harm for the purposes of s 5B is the risk which materialised when the plaintiff was injured (Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 at [7] (Basten JA).

The risk of harm identified by the plaintiff was:

The defendant identified the relevant risk of harm as follows:

There are problems with both identifications of the risk. In the plaintiff’s case there is an element of hindsight and it relies upon factual matters which have not been established. Similar criticism can be directed at the defendant’s identification of the risk of harm in that it also involves elements of hindsight and is overly fact specific.

In my opinion, the risk of harm was that a motorcycle rider would collide at night with a water-filled Triton barrier which extended across two-thirds of the width of Jilba Street. It is that risk which needs to be assessed by reference to the general principles set out in ss 5B and 5C CLA.

The requirement that a risk of harm be foreseeable is generally regarded as undemanding (Koehler v Cerebos (Aust) Ltd [2005] HCA 15; 222 CLR 44 at [33] (McHugh, Gummow, Hayne and Heydon JJ) and at [54] (Callinan J). Nevertheless, in assessing foreseeability, one needs to take into account what a motorcycle rider would do who was exercising reasonable care for his own safety.

An important part of the plaintiff’s case was the defendant’s failure to comply with the relevant standards when preparing the TCP. The failure was identified as not preparing a written risk assessment before altering the standard TCP (TCP 54) by replacing barrier boards with water-filled Triton barriers. Implicit in that criticism is the proposition that had such a formal risk assessment been carried out, it would have resulted in a conclusion that water-filled Triton barriers were inappropriate and that portable barrier boards should have been used because they were visually more obvious at night and would not constitute an impenetrable barrier if a collision occurred between a motor vehicle and such a barrier.

While it is clear that no formal risk assessment was carried out before the water-filled Triton barriers were placed in position, it is by no means clear that had such a formal risk assessment been carried out, the result asserted by the plaintiff would have been the outcome. That some risk assessment was carried out (albeit not of a formal kind) is clear from the evidence of Mr Swain when he gave his reasons for why barriers of this kind were chosen.

There was a respectable body of opinion, as explained by Mr Swain, to the effect that because this was a location where vandalism was common, if portable barriers had been used they might well have been moved or taken which could have created a different kind of hazard. The factual scenario, which was the background to the decision in Rankin, demonstrates clearly what could happen if portable barriers were used. In that case, although Triton barriers were used on the side of a road, the water was removed by persons unknown and they were placed across a roadway, also by persons unknown. This led to a motor cyclist colliding with one of them and suffering serious injury. Accordingly, had a formal risk assessment been carried out, the result may well have been to use water-filled Triton barriers as in fact occurred.

As part of that failure to comply with the Australian Standard, the plaintiff submitted that the presence of the subject barriers should have been identified with signs and/or reflectors for vehicles, not only approaching the road works (i.e. on the northern side), but also on the internal (southern) side of the barrier to assist vehicles departing from the area where road works were being carried out.

The difficulty with that proposition is that it assumes some form of appropriate lighting, such as a headlamp, was operating on the motorcycle so as to activate the reflective devices described by Messrs Johnston and Lawson. That was not the case here. The lighting capacity of the “camp light” described as being attached to the plaintiff’s head and powered by three AAA batteries is unknown. Messrs Johnston and McDonald, however, agreed that it would provide much less light than a headlamp such as is normally attached to a motorbike capable of registration.

Implicit in the plaintiff’s submission is the assumption that the ambient light at the accident site was insufficient to reveal the presence of the subject barrier. This submission depends upon an acceptance of the evidence of Messrs Johnston and Lawson that the photographs taken on the night of the accident and some days afterwards, accurately depict lighting conditions as they would have been at the time of the accident. I have already rejected both those propositions. The evidence of Professor Dain and Mr McDonald, and to a lesser extent that of Mr Johnston on this issue, make it clear that lighting conditions at the location of the accident were better than depicted in the photographs and would have appropriately revealed the presence of the subject barrier to a motorcyclist who was keeping a proper look out. It was therefore reasonable of the Council not to place reflective and other signs on the internal/southern side of the barrier.

Accordingly, although the standard was not complied with by the defendant that failure is not determinative on the issue of breach of duty. What was reasonably foreseeable was that a collision between a motorcycle and a water-filled Triton barrier would involve a significant impact which would lead to the rider being thrown forward. What was not foreseeable was that such a collision would occur if a motorcyclist were taking reasonable care for his or her own safety.

No warning signs or retroreflective material was placed on the internal sides of any of the barriers. Such signs were placed on the external sides so as to provide warning to persons entering the area where road works were taking place. There is an obvious reason for this. By definition, persons travelling from within the road work area, be they locals or persons such as the pizza deliverer, would have already passed through at least one if not more barriers in order to be in such a location. They would, therefore, be aware of the presence of the barriers particularly if they had entered under night time conditions. Significantly, neither the Australian Standard nor TCP 54 imposed any requirement for warning or retroreflective signs to be placed on the internal sides of any barriers. In this case the defendant had taken an extra precaution of arranging for a letter drop to residents within the road work area so that they would be aware of the location of road closures and barriers.

I have already found that the photographs do not accurately depict lighting conditions at the accident site on the night of the accident. For the reasons already given, I am satisfied that had the motorcycle been fitted with a headlamp which was operating, the Triton water-filled barriers would have been visible to the plaintiff so that he would have been able to slow down and stop before he came in contact with them. If there were any doubt on this issue, the LUX measurements made by Mr Johnston and the observations made by both Professor Dain and Mr McDonald at the accident site establish that conclusion. I have already found that even without a headlamp, the ambient light was sufficient to indicate the presence of the barrier to a motorcyclist who was keeping a proper look out.

A further difficulty for the plaintiff is that we do not know how the accident occurred. The plaintiff has not proved that the subject barrier could not be seen had he looked, such that greater illumination would have avoided a collision. This is particularly so when there was no attempt to brake before impact even though only minutes before the plaintiff must have driven past the barrier from a northerly direction. The fact of the collision is equally consistent with the plaintiff being distracted or not keeping a proper lookout as with him being unable to see the subject barrier.

Accordingly, I am satisfied that the only foreseeable aspect of the identified risk of harm is that if a collision occurred between a motorcycle travelling at 50 km/h or more and a water-filled Triton barrier, there was a strong likelihood that the rider would be thrown forward a considerable distance over the barrier. What was not foreseeable was that a motorcycle rider would be adversely affected by alcohol, be travelling at such a speed, would not have an operating headlamp and would not see the barrier despite the lighting conditions created by the barrier’s proximity to a street light. This was so when the motorcycle rider was coming from a direction (i.e. from the south) which meant that to have been in that position, he must have already passed through the subject barrier from the north shortly before the collision occurred.

It follows that whereas the consequences of such a collision were foreseeable, the likelihood of such a collision was not. When contemplating what was foreseeable, either for the purposes of a risk assessment or for the purposes of s 5B(1)(a) CLA, the defendant would have had in mind a motorcycle rider exercising reasonable care for his or her own safety. That would be a rider who was travelling at a speed which was safe in the circumstances, on a motorcycle which had an operating headlamp, was wearing a helmet and who was aware of the presence of the subject barrier having, at an earlier point in time, driven past it in order to enter the road works area and be approaching the barrier from the south. When one adds to that the proximity of the street light and the ambient lighting conditions, as described by Mr McDonald and Professor Dain, I have concluded that such a collision between the subject barrier and a motorcycle approaching from the south was not reasonably foreseeable.

For the same reasons, I am satisfied that the risk of a collision with the subject barrier for a motorcyclist travelling north in Jilba Street was not significant. Such a rider would be aware of the presence of the barrier, having already passed through it and would in those circumstances not be expected to be travelling at a speed of 50 km/h or more and would have been able to see the barrier not only because of the ambient light created by the street light but because of the headlamp on his motorbike.

I am not satisfied that a reasonable council in the position of the defendant would have used barrier boards rather than water-filled Triton barriers to block two-thirds of Jilba Street. While the consequences of such a collision would be serious and possibly life threatening, the likelihood of such an outcome depended very much upon the speed at which the motorcycle struck the water-filled barrier and whether or not the motorcyclist was wearing a helmet. There was no basis for why a reasonable council in the position of the defendant would have foreseen or anticipated that a motorcyclist would not be wearing a helmet and would come in contact with the water-filled barrier at a speed of 50 km/h or more. This is particularly so when the movement or removal of a portable device such as barrier boards by unauthorised persons could create another kind of danger.

For the above reasons, I have assessed the probability that harm would occur if water-filled barriers rather than barrier boards were used as low. While it was foreseeable that serious harm could result from a collision between a motorcycle and a water-filled barrier, that would depend upon the speed at which the motorcycle was travelling and whether or not the rider was wearing a helmet. It also needs to be kept in mind that portable barriers such as barrier boards or stand-alone, non-interconnected lightweight modules, could still present a significant hazard to a motorcycle rider travelling at a speed of 50 km/h or more. On this issue, Mr McDonald said:

The burden of taking precautions to avoid the risk of harm, i.e. not use water-filled barriers, was not particularly great in a physical or financial sense but it may well have produced other adverse results to which reference has already been made. If barrier boards and the like were used, they may well have been moved or taken, or otherwise interfered with, so as to create an equally dangerous situation. That consideration also feeds into the social utility of the activity, i.e. to install immovable barriers to prevent vandalism and interference by ill-intentioned persons.

Just because the harm that actually eventuated may have been avoided by the use of a less substantial barrier does not establish breach of duty. To approach the matter in that way involves hindsight reasoning. What has to be considered is the position of the defendant as it was before the accident and what the defendant should have reasonably anticipated was likely to happen so it could appropriately deal with that eventuality. In my opinion, the actions taken by the defendant in this case were a reasonable response to the foreseeable risk and met that test.

The same criticism can be directed at Mr Lawson’s suggestion that the road should not have been blocked but allowed to be open at night. This was clearly a hindsight solution and does not of itself establish negligence. It was but faintly pressed by the plaintiff in submissions. It was contrary to the agreed position in the joint experts’ report (at [8] hereof). Most particularly, no questions were addressed to Mr Swain in relation to it when he gave his evidence. There was also no analysis of how much extra time and expense would have been involved in backfilling the worksite every evening to allow the road to be used. This is in a context where s 42 CLA has work to do and attention has to be paid to the resources of the defendant to be allocated not only to this project but to other projects as well. In those circumstances, I am not satisfied that the plaintiff has established that the defendant was in breach of the duty which it owed him as a road user in failing to keep Jilba Street open at night.

Section 5D CLA sets out the principles relevant to causation as follows:

There is an issue in relation to factual causation. If it is accepted, as I have found, that the Triton water-filled barrier was well able to seen because of the ambient light even without a headlamp on the motorcycle, the only contribution to the accident made by the barrier was to possibly make the consequences of the collision worse. As Mr McDonald explained in his report of 23 December 2016, even a collision with barrier boards may well have led to the plaintiff suffering serious injury. Moreover, the water-filled barrier did not in any active sense cause or bring about the collision. It was merely the object with which the motorcycle collided. It was only in that sense that it could be said that “but for” the presence of the subject barrier the collision would not have occurred.

There were other factors which undoubtedly contributed to the occurrence of the accident and its severity. The plaintiff was travelling at a speed which was excessive in the circumstances, i.e. 50 – 60 km/h. He does not seem to have applied his brake in that no skid marks were found. He had no headlamp on his motorcycle and his only illumination was provided by a “camp light”, powered by three AAA batteries. His ability to control the motorcycle was adversely affected by the consumption of alcohol. He was not wearing a helmet. But for any one of those considerations, the collision may not have occurred or if it did occur the injuries may not have been as severe. These were the kind of anomalous results referred to by the plurality (French CJ, Gummow, Crennan and Bell JJ) in Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182 at [18].

On this issue, the plurality in Strong restated the requirement of the statute that factual causation necessitates proof that the defendant’s negligence was a necessary condition of the occurrence of the particular harm and that a necessary condition is a condition that must be present for the occurrence of the harm. The plurality went on to say, however:

Given the evidence of Mr McDonald as to the dangers associated with more portable barriers, there is an issue as to whether the presence of the water-filled Triton barriers was a necessary condition for the occurrence of the harm. Even if they were, for the reasons set out above the plaintiff has failed to establish that their presence in Jilba Street was due to breach of duty on the part of the defendant.

The other precautions which the plaintiff submitted should have been taken by the defendant do not establish factual causation. I have already referred to the absence of retroreflective devices and signs on either side of the barrier. These would only have been effective in preventing the collision if the motorcycle had a headlamp which was functioning. The absence of delineation markers would also not have prevented this collision. This is because the plaintiff was well aware of the presence of the barrier having only minutes before passed through it when travelling south before he made the U-turn. The failure to carry out a formal risk assessment did not contribute to the occurrence of the accident since for the reasons previously given, it might still have resulted in a decision to use water-filled barriers. A fundamental problem for the plaintiff is that, having within minutes before the collision travelled through the barrier so as to be well aware of its presence, he has not shown why the collision occurred, particularly when there was no attempt at braking. For the same reason, the absence of better lighting at the location of the barrier might not have prevented the collision since the plaintiff was already aware of the presence of a barrier, having shortly before passed through it from the opposite direction.

When one looks at the issues of breach of duty and causation in a prospective way from the council’s point of view, there is a certain unreality about the plaintiff’s claim. What needs to be kept clearly in mind is that shortly before the accident occurred, the plaintiff had travelled past the barrier with which he ultimately collided when heading south from his friend’s place. Within minutes of that having occurred for reasons unknown, he made a U-turn and travelled north, apparently back towards his friend’s place. Accordingly, he must have been well aware of the presence of the barrier at the intersection of Jilba Street and Mirral Way, yet he was travelling at 50 km/h or more without a helmet, without a proper illuminatory device on his bike and when he was adversely affected by the consumption of alcohol. When he struck the barrier, it is clear that he had not applied his brakes. Looked at as a whole, his conduct involves an almost complete abrogation of responsibility for his own safety.

At a practical level, the formulation of the defendant’s duty in this case and the formulation of the risk of harm, beg the question as to whether there was any measure that could have been taken which would have prevented the realisation of the risk of harm to this plaintiff. There is, of course, no evidence that the plaintiff did not see the subject barrier, apart from the fact that he struck it without applying his brakes.

It follows from the above analysis that I am not satisfied that the plaintiff has established breach of duty on the part of the defendant. I am also not satisfied that he has established causation under s 5D.

Contributory negligence

If I am wrong in that conclusion it is necessary to consider contributory negligence. Section 5R CLA provides:

Leaving aside a difference of opinion in the Court as to whether it is relevant to have regard to the capacity of a motor vehicle to inflict significant damage (which does not apply here), it is accepted that the statements of principle in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 529 inform the application of s 5R. At 494 the Court (Gibbs CJ, Mason, Wilson, Brennan and Deane JJ) said:

Another way of putting that approach is to assess the moral culpability of each party and the causal potency of their actions. Applying that test to the facts of this case results in a significant weighting against the plaintiff.

If the defendant were found to be negligent, it could only be on the basis of its failure to comply with the Australian Standard and to make a formal risk assessment of the use of Trident water-filled barriers at the accident site. The plaintiff on the other hand appears to be substantially responsible for the serious injuries which he suffered. He was riding a motorcycle which was patently unfit for driving at night, not being fitted with a headlamp. He was driving at a speed which was excessive in the circumstances in that he knew of the presence of the barrier having only shortly before the accident, passed through it from the north, yet he maintained a speed of between 50 – 60 km/h. He did not brake before impact. If he did not see the barrier it was because he was not keeping a proper lookout since for the reasons already given, there was sufficient ambient light available to enable him to be aware of its presence, particularly when he was already well aware of its location. He was not wearing a helmet. Finally, he was adversely affected by the consumption of alcohol. While we do not know the extent of that affectation, the evidence of Dr Ogden makes it clear that some reduction in his driving skills would have occurred, even at a blood alcohol level of .059.

When considering causal potency therefore, the balance is decisively against the plaintiff. As already indicated, any one of those failures on the part of the plaintiff, had it been absent, might well have either prevented the accident occurring or have significantly reduced the injuries suffered. Put another way, any one of those failures was sufficient in itself to have caused the accident.

A similar result is arrived at when one considers moral culpability. The defendant’s failure, if there be a failure on its part, was to give too much weight in its considerations to the dangers associated with ill-intentioned persons interfering with portable barriers, either by moving them, taking them or redeploying them, any one of which actions could have increased the danger already created by the partial blocking of Jilba Street. When one comes to consider the actions of the plaintiff, they each involved a significant failure on his part to exercise reasonable care for his own safety. From a culpability point of view therefore he was substantially more responsible for what occurred than the defendant.

In carrying out the balancing exercise required by s 5R and decisions such as Podrebersek, I would assess the contributory negligence of the plaintiff at 90 percent.

Section 43A provides:

The plaintiff and the defendant agreed that s 43A CLA applied to the facts of this case. Despite that agreement, it is necessary that I satisfy myself that the section is in fact engaged.

As the Local Council, the defendant was a “public or other authority” as defined in s 41 CLA. The defendant’s power to close a public road with barriers and signs by way of a TCP derived from:

Section 7(4) of the Roads Act determines that the defendant is the “roads authority” for public roads within its local government area. Jilba Street was subject to the “functions as are conferred on” the defendant by the Roads Act, or any other Act or law. The Dictionary in the Roads Act defines “carry out road work”. It includes:

“Road work” is defined to mean:

“Traffic hazard” is defined in the Dictionary as a structure or thing that is likely to “cause inconvenience or danger in the use of a public road” or “to likewise be hazardous to traffic”. It was the plaintiff’s submission that the defendant had created a “traffic hazard” within the meaning of the definition.

It follows that the construction of the Bowen Bridge and the re-alignment of Jilba Street and Margaret Street amounted to “road work”. Therefore the road closure and the detour implemented in connection with that road work, amounted to “carry out road work”, but were themselves probably road works in their own right, in that they facilitated the use of the road as a road.

The fact that the power to regulate traffic in connection with road work is of a kind that persons generally are not authorised to exercise without specific statutory authority (for the purpose of s 43A(2)(b)) can be seen in the statutory restrictions to that power in the Roads Act.

Alternatively, if the defendant’s activities did not amount to “carry out road work”, then they must have amounted to “carry out traffic control work”. “Traffic control facility” is defined in the Roads Act by reference to its meaning in Part 6 of the Transport Administration Act 1988 (NSW) (as then applicable). Section 45E of that Act defines “Traffic control facility” to mean relevantly:

There was no issue that the subject barrier was a “traffic control facility” such that any act or omission in relation to the deployment of that barrier amounted to “carry out traffic control work”. The fact that the power to carry out traffic control work is of a kind that persons generally are not authorised to exercise without special statutory authority (for the purposes of s 43A(2)(b) CLA) can be seen in the statutory restrictions to that power in the following provisions:

An analysis of the power to “carry out traffic control work” can be found in Roads and Maritime Services v Grant [2015] NSWCA 138 at [31] – [32]. It was also considered in Curtis v Harden Shire Council [2014] NSWCA 314 where Basten JA said at [254]:

For those reasons, whether by way of “carry out road work” or “carry out traffic control work”, the defendant’s power to close Jilba Street and deploy barriers and signs for that purpose was a “special statutory power” as that expression is defined under s 43A(2) CLA. Accordingly, I accept that the provisions of s 43A CLA apply to the facts of this case.

The plaintiff’s submission was that the defendant both created the hazard and failed to engage in mandatory risk management designed to identify hazards, assess them and take steps to avoid them. He submitted that the defendant’s failure caused the collision. The plaintiff’s case was that the exercise of power under s 43A was so unreasonable that no reasonable authority would have acted as the defendant did or failed to do.

The plaintiff relied on the following observation of Bathurst CJ in Curtis v Harden Shire Council as follows:

The process followed by the plaintiff was to identify what the defendant did and then test it against the standard set out in [6] of what the Chief Justice said in Curtis. The matters relied upon by the plaintiff were:

In summary, the main points made by the plaintiff were that the defendant had created a hazard where there was none previously and before doing so, had failed to carry out a risk management assessment which would have resulted in an outcome which did not involve the placing of water-filled Triton barriers across Jilba Street. The plaintiff identified the specific breach of s 43A as the creation of the hazard by the defendant without taking any steps to minimise or eliminate the adverse effect of the hazard which it had created. The plaintiff submitted that this was an act so unreasonable that no authority could consider it a reasonable exercise of power.

The plaintiff particularised the reasons why the defendant’s exercise of its special statutory power was so unreasonable as follows:

The plaintiff submitted that the combination of those matters meant that the defendant had created a very dangerous situation in circumstances where no reasonable council, having the powers of the defendant, would have done so.

I have already determined that the plaintiff has failed to establish negligence on the part of the defendant. That, of course, disposes of this issue. In case I am found to have erred in that assessment, it is necessary to consider s 43A as though negligence had been found against the defendant. Because s 43A is applicable, the question of breach turns on whether the plaintiff has established negligence by the defendant to the requisite standard under s 43A(3).

The leading case on this issue remains Curtis v Harden Shire Council. The following observations of the Chief Justice provide the context in which his Honour stated the principle relied upon by the plaintiff (stated at [149]).

In Curtin v Harden Shire Council the Chief Justice said:

For completeness, I should set out some relevant observations of the other Judges in Curtis v Harden Shire Council. There Beazley P said:

Basten JA said as to the relevant test:

What emerges clearly from those quotations is that the factual issue being considered by the Court of Appeal in Curtis v Harden Shire Council was significantly different to that under consideration here. In Curtis, the most important sign of those required by the TCP had not been used, there was no explanation for why it had not been used and the failure to use it was described by the senior RTA person who gave evidence as “making no sense”. In this case, Mr Swain gave evidence and explained why it was that he had used water-filled Triton barriers, i.e. to prevent interference with the barriers by them being moved or taken. In the Joint Experts’ Report, far from being described as making “no sense”, it was accepted that such a decision was a “potentially acceptable application of professional judgment noting that the alternative barricades (barrier boards or lightweight modules) may have been subject to interference and relocation (vandalism)”. (Joint Experts’ Report, Exhibit A, Tab 8, p 364)

While it is true that Mr Lawson, both in his report and in evidence, resiled from his apparent agreement to that proposition, both Messrs McDonald and Johnston adhered to it.

It was accepted by the experts that the danger of interference and vandalism of the barriers was real. Not only was there the evidence of Mr Swain to that effect but in Exhibit 1, Tab 23, p 339 it was recorded that signs were vandalised and needed to be replaced on 21 November 2009.

The other matters dealing with the reasonableness of using the water-filled Triton barriers have already been set out and referred to in the analysis of whether negligence against the defendant has been established. In essence, the evidence made clear that barriers were required to be in place for some time while construction proceeded. In those circumstances the lack of permanency and robustness of the barriers had the real prospect of becoming a continuous problem affecting the completion of the project. No doubt on each occasion that barriers were removed or interfered with, it would be necessary to replace them which would result in a direct cost but would also potentially stall work on the project until the barriers were replaced. It might also give rise to a further hazard if the signs became confusing or unclear, or a particular barrier or sign were missing, which would most likely occur at night until its removal was discovered.

I found Mr Lawson’s evidence on this issue to be unpersuasive. Apart from the fact that his agreement in the Joint Experts’ Report was in clear conflict with that part of his report, his justification for resiling from that agreement in evidence was at best unconvincing. Mr Lawson was simply not prepared to entertain the use of water-filled barriers under any circumstances. This included the scenario where there was adequate lighting provided at the accident site which revealed their presence. As indicated earlier in this judgment, the failure on the part of the defendant to comply with the Australian Standard while potentially giving rise to a claim in negligence, was not determinative of that proposition. Such a finding depended upon the whole of the evidence, not just the question of whether the Australian Standard was complied with.

Even on that issue, there were a number of grey areas. The Standard was silent as to the use of barriers of this kind, it was silent as to the use of signs and reflective material on the internal sides of any barriers and it was clear from the evidence of Mr McDonald that portable barriers had the potential to be as dangerous as fixed immovable barriers, depending upon the circumstances of any collision with them. In relation to the Standard, I prefer the approach of Mr McDonald, i.e. that one should look at the purpose of the requirements of the standard to see whether they had been met rather than requiring a strict compliance with the Standard regardless of the particular circumstances of the site. The latter approach was that favoured by Mr Lawson.

Finally, the presence or otherwise of retroreflective signs or strips became largely academic because of the absence of any appropriate light source on either the plaintiff or his bike which would utilise those reflective qualities.

I am satisfied that the defendant has made out the defence under s 43A so that even if I am found to have erred in my assessment of negligence, the plaintiff’s claim would still fail as a result of the application of s 43A. The plaintiff has failed to establish that the use of the Triton water-filled barriers was not a reasonable exercise of its special statutory power by the defendant.

Section 50 relevantly provides:

Section 48 defines “intoxication” as follows:

The defendant submitted that the Court would be satisfied that the plaintiff was intoxicated within the meaning of s 50 CLA and that the provisions of s 50(2) would apply so as to prevent him being awarded any damages.

The defendant submitted that the unchallenged opinion of Dr Ogden was that the plaintiff’s ability to control the motorcycle would have been adversely affected by the alcohol which he had consumed. This is despite the comparatively low alcohol reading of .059 (see [50] – [51] hereof). On the basis of that evidence, the defendant submitted that an impairment of driving skills of this kind was sufficient to establish the notion of “intoxication” as used in s 50 CLA.

The defendant submitted that in those circumstances the plaintiff’s capacity to exercise reasonable care and skill in the control of the motorcycle was impaired so that the provisions of s 50(2) CLA applied to disentitle him to an award of damages. The act or omission relied upon by the defendant was the plaintiff’s collision with the water-filled Triton barrier.

The identification of the collision with the subject barrier as the relevant “act or omission” as distinct from the placing of a water-filled barrier partially across Jilba Street, is supported by Russell v Edwards & Anor [2006] NSWCA 19; 65 NSWLR 373 where Ipp JA (with whom Beazley JA and Hunt AJA agreed) said in relation to the causation element in s 50(1):

There are a number of difficulties with the defendant’s submission on this issue. Although on the basis of Dr Ogden’s unchallenged opinion, I have found that the plaintiff’s capacity to control the motorcycle was impaired by the consumption of alcohol, I am not able to say to what extent. There are a number of unknown matters, including the plaintiff’s experience with alcohol. It is well known that persons who habitually consume large quantities of alcohol are better able to function after the consumption of alcohol than those who do not often consume it.

In this case, although the plaintiff’s capacity to control the motorcycle was impaired, I am unable to say whether that level of impairment was such as to prevent him from “exercising reasonable care and skill” in doing so.

There is also a difficulty in relation to s 50(2). There were so many failures on the part of the plaintiff to take reasonable care for his own safety, apart from the ingestion of alcohol, that the strong likelihood is that the accident was likely to have occurred even if he had not consumed any alcohol.

It follows that I am not satisfied that the defendant’s defence pursuant to s 50 CLA has been made out.

Section 54 CLA provides as follows:

The defendant submitted that at the time when the plaintiff was injured, he was riding his motorcycle on a public road and was therefore guilty of:

The evidence of intoxication came from Dr Ogden and from the blood alcohol reading taken at the hospital which was not disputed by the plaintiff. The evidence as to disqualification came from the plaintiff, who made that admission when giving evidence, and also from the plaintiff’s record of convictions provided by the Police Service which showed that as of the date of this accident, he was disqualified from holding a driver’s licence.

In relation to whether these matters amounted to a serious offence, the Court was referred to s 12 of the Road Transport (Safety and Traffic Management) Act which relevantly provided:

Section 25A of the Road Transport (Driver Licencing) Act 1998 (NSW) relevantly provided:

There was no issue that should s 54 be found to apply, the conduct identified by the defendant constituted a serious offence.

I am not persuaded that the defendant has made out that part of the s 54 CLA defence which relies upon the plaintiff riding the motorcycle while intoxicated by alcohol. This is because I am not satisfied that firstly it could be said that the plaintiff was “under the influence of alcohol” for the purposes of s 12 of the Road Transport (Safety and Traffic Management) Act at the time of the accident. Secondly, and most importantly, I am not satisfied that this conduct “contributed materially” to his injuries. The relevant conduct would have to be not only the driving of the motorcycle, but the combination of the two – i.e. driving while intoxicated. There is no evidence that in fact the plaintiff’s ingestion of alcohol “materially” contributed to the accident.

The other serious offence relied upon by the defendant is in a different category. The elements of that offence are riding the motorcycle while being disqualified from holding a licence. The crucial issue is whether it can be said that this conduct “contributed materially” to the plaintiff’s injury.

There are two ways of looking at this question. The first (which is relied upon by the defendant) is that the serious offence was made up of two components – the fact of the disqualification from holding a driver’s licence and the riding of the motorcycle while that circumstance existed. On that interpretation, it was not necessary for the fact of the disqualification to have materially contributed to the injury. It was sufficient if the riding of the motorcycle while in that state of disqualification did so.

The alternative interpretation is that it was not sufficient for the riding of the motorcycle to have materially contributed to the plaintiff’s injury but both factors, i.e. the riding and the disqualification from holding a licence had to do so.

There is no authority directly on point, either in New South Wales or in other States. To the extent that s 54 CLA has been considered by the courts, it has been in relation to matters not directly relevant to the “material contribution” point.

In Presidential Security Services of Australia Pty Ltd v Clinton Joseph Brilley [2008] NSWCA 204; 73 NSWLR 241 Ipp JA at [124] (with whom Allsop P and Beazley JA agreed on this point) said that it was for the defendant to establish the matters in (a) and (b) of s 54(1). Otherwise the decision does not assist on this issue.

Sangha v Baxter [2007] NSWCA 264 concerned an assault which occurred in and around a taxi. Ipp JA (with whom Campbell JA agreed) remitted the matter for retrial on the basis of inadequate reasons having been given by the trial judge. Young CJ in Eq disagreed on the issue of the adequacy of the trial judge’s reasons and went on to discuss joint illegal enterprise at common law. His Honour was concerned to identify the type of action by a plaintiff after commission of an offence that would be sufficiently closely connected with the criminal conduct as to invoke the section. Ultimately his Honour took the view that the injury did not relevantly occur “following the commission of a serious offence”. The reasoning in that case is not of assistance on this issue.

The defendant’s position is relatively simple. It submits that the offence is constituted by driving while disqualified. The plaintiff was driving while disqualified when the accident occurred. The accident would not have occurred, except for the driving by the plaintiff, i.e. the “but for” test of causation has been established. The defendant also submitted that in this case the nature of the driving, i.e. at an excessive speed in the circumstances, and inferentially not keeping a proper lookout, directly caused or in the words of the section “materially contributed to” the occurrence of the accident. The manner of driving of the plaintiff was an indispensable element in the occurrence of the accident. In those circumstances, the defendant submitted that the plaintiff was precluded from receiving an award of damages.

The plaintiff relied upon the analysis by James Goudkamp in “Self-defence and Illegality under the Civil Liability Act 2002 (NSW)” (2010) 18 TLJ 61 as providing the background to the enactment of s 54 CLA. There, the author says:

When introducing the Civil Liability Amendment (Personal Responsibility) Bill the then Premier, the Honourable Mr Robert Carr said:

The plaintiff relied on the line of cases which allowed the use of extrinsic parliamentary material when seeking to interpret a statute. The particular cases to which the plaintiff referred were Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380. In particular the observations of Spigelman CJ at [13] – [14], and Alcan (NT) Alumina Pty Ltd v Commission of Territory Revenue (Northern Territory) [2009] HCA 41; 239 CLR 27. The plaintiff relied upon the observations of the plurality (Hayne, Heydon, Crennan and Kiefel JJ) at [46] – [47]. The plaintiff also relied upon Certain Lloyds Underwriters v Cross [2012] HCA 56; 248 CLR 378 and on what Kiefel J said at [88] – [89].

The plaintiff submitted that a very significant number of offences in New South Wales would be “serious offences” as defined in s 54(3) so that a large number of relatively trivial offences would be capable of activating s 54. The plaintiff gave an example of stealing a dog for which the maximum penalty is a term of imprisonment of six months and stealing a shrub which has the same penalty. The plaintiff referred to stealing a book from a public library and possession of a very small quantity of cannabis, both of which have maximum penalties of imprisonment for 12 months. That being so, the plaintiff submitted that the requirement in s 54(1)(b) that the conduct constituting the serious offence “contributed materially” to the death, injury or damage of a plaintiff was an important limitation on the otherwise very broad operation of s 54(1)(a).

The plaintiff submitted that in circumstances where s 54 effects a very significant diminution of common law rights, the legislation should be construed carefully so as to not unreasonably reduce common law rights.

The plaintiff submitted that the words in a statute are to be given their ordinary meaning so that the word “material” should be given full force and effect as defined in the Macquarie Dictionary, i.e. “of substantial import or much consequence”. In this case, he submitted, questions of legal causation necessarily involved normative considerations of the kind identified in cases such as Wallace v Kam [2013] HCA 19; 250 CLR 375. The plaintiff submitted that the requirement of “materiality” in s 54(1)(b) required something more than “but for” causation to be established. The concept of “materiality” imported normative considerations into the question of causation and thus, it was not sufficient for the conduct constituting the serious offence to be “an indispensable element in the occurrence of the accident”. The conduct must contribute in a way that was “substantial” or “of much consequence”.

The plaintiff set out examples illustrating why Parliament could not have intended that s 54(1)(b) involve no more than “but for” causation. These examples demonstrated situations where if the defendant’s submissions were accepted, there would be no damages awarded.

The plaintiff submitted that it could not have been Parliament’s intention that s 54(1)(b) would preclude recovery to plaintiffs in these scenarios. In that regard, the plaintiff accepted that in the present case the damage would not have been suffered “but for” the “serious offence”, i.e. if it had not been for the commission of the offence (driving whilst disqualified) there would not have been any driving at all. The plaintiff submitted that the concept of “materiality” required satisfaction of a standard more demanding than the bare factual “but for” causation.

The plaintiff submitted that the commission of the serious offence made no contribution to the damage other than to place the plaintiff at the scene of the accident. The real cause of the accident was the absence of adequate ambient lighting and the fact that the defendant had created a hazard and egregiously failed to conduct any sort of relevant risk assessment before doing so.

There is considerable force in the plaintiff’s submissions. What they fail to come to grips with, however, is that even if one gave particular weight to the requirement for “materiality”, that additional test over and above the “but for” test is satisfied by the driving in this case. Whereas the fact of disqualification made no direct contribution to the occurrence of the accident, the driving itself did so.

As already indicated, the speed of between 50 and 60km/h in the circumstances prevailing on the night of the accident, i.e. having passed from the northern side of the subject barrier shortly before the accident was a significant factor. Added to that was the absence of any appropriate headlamp on the motorcycle, rendering any driving at night dangerous. Finally, the absence of any braking before impact inferentially suggested that the plaintiff was not keeping a proper lookout. Taking those matters into account, the fact that the plaintiff was “driving while disqualified” did make a material contribution to the injury and in my opinion, the defence under s 54 CLA has been made out by the defendant.

It follows from the above findings that there must be a judgment for the defendant. Accordingly, the orders which I make are: