TORTS – negligence – breach of duty of care – respondent suffered catastrophic injuries when he crashed his motorcycle on a median strip – whether the installation of a “Keep Left” sign at the recommencement of a median strip after an intersection was required by the relevant Australian Standard – whether the appellant’s failure to install such a sign was a breach of its duty of care to road users such as the respondent motorcyclist

TORTS – negligence – causation – whether, had a “Keep Left” sign been installed, the respondent’s motorcycle would not have come into contact with the nose of the median strip

TORTS – negligence – public and other authorities – whether the appellant was immune from statutory liability in the exercise of a special statutory power – Civil Liability Act 2002 (NSW), s 43A

AUTHOR:                               BRETT WATTS, SOLICITOR

DECISION DATE:                  21 MAY 2015

NEW SOUTH WALES COURT OF APPEAL

BEFORE:                               McCOLL JA, BASTEN JA, EMMETT JA

SOLICITORS:                        HENRY DAVIS YORK (APPELLANT)

                                                LEITCH HASSON & DENT (RESPONDENT)

Background

The respondent was catastrophically injured in a motorcycle accident on 1 January 2009, at the intersection of Longueville Road, Epping Road and Parklands Avenue, Lane Cove, NSW.

The respondent’s version of events was that he was riding his motorcycle in the third of four eastbound lanes when his motorcycle collided with the nose of the concrete median strip dividing the eastbound and westbound lanes of Longueville Road. This collision caused the respondent’s motorcycle to become out of control and collide with the pedestrian barrier on the median strip approximately 29 metres east of the intersection.

The respondent sued the appellant in the Supreme Court of New South Wales, alleging that the appellant was negligent for, inter alia, failing to install “Keep Left” signs on the median strip, which the respondent said would have alerted road users to the presence of the median strip and thereby avoided the accident.

The respondent obtained judgment against the appellant in the Supreme Court for approximately $2.6 million, with his damages reduced by 30% on account of his contributory negligence[1].

The appeal

 The appellant appealed the decision of the primary judge on 13 grounds. Broadly speaking, the appellant said that the primary judge erred in accepting the respondent’s version of events, erred in finding that the appellant breached its duty of care to the respondent and erred in failing to correctly apply s 43A of the Civil Liability Act[2].

Version of events

The appellant disputed that the front wheel of the respondent’s motorcycle collided with the nose of the median strip as alleged.

The liability expert qualified by the appellant concluded that the respondent’s motorcycle could not have collided with the nose of the median strip. One of the lay witnesses specifically denied that the respondent’s motorcycle collided with the nose of the median strip as alleged, and the evidence of two further lay witnesses was inconclusive on this issue[3].

Emmett JA (with McColl JA agreeing[4]) concluded that the reasons given by the primary judge were insufficient to explain why the evidence of the respondent’s liability expert was preferred over the appellant’s expert in circumstances where the lay evidence appeared to support the hypothesis presented by the appellant’s expert. His Honour concluded that the primary judge erred in accepting the evidence of the respondent’s expert, and in particular, accepting the respondent’s allegation that his motorcycle first collided with the nose of the median strip[5].

Breach of duty of care

The respondent alleged that the appellant was negligent in failing to install a “Keep Left” sign on the nose of the median strip. Both experts agreed that the intersection should have been signed with a “Keep Left” sign in accordance with the relevant Traffic Standard[6], however Emmett JA did not accept that the standard mandated such a sign at the intersection[7].

There was no suggestion that the design of the intersection was defective. Emmett JA (with McColl JA agreeing[8]) concluded that the fact that the roadway leading up to the intersection had a similar median strip, and the lack of other similar accidents at the intersection, did not support a conclusion that “the absence of a “Keep Left” sign at the nose of the intersection constituted a not insignificant risk of injury to a motorcyclist who was exercising care for his own safety”[9]

Causation

Emmett JA (with McColl JA agreeing[10]) also concluded that there was insufficient evidence to support the proposition that, had a “Keep Left” sign been installed at the intersection, the accident would have been avoided[11].

Section 43A of the Civil Liability Act

Section 43A of the Civil Liability Act (“the CLA”) provides that in proceedings against public or other authorities, any exercise (or failure to exercise) a ‘special statutory power’ does not give rise to civil liability except under exceptional circumstances.

A ‘special statutory power’ is defined by the CLA to mean a power that is conferred by statute and that is of a kind that persons generally are not authorised to exercise without specific statutory authority[12].

In relation to these proceedings, the appellant contended that the power to erect road signs (or indeed, the power to decide not to erect road signs) was a ‘special statutory power’ such that the immunity against civil liability was enlivened in this case.

Basten JA described the exceptional circumstances under which the immunity is not enlivened[13]. The immunity will protect the holder of a special statutory power unless the act or omission was “in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power.[14]

This is a very high threshold. His Honour made the following comments in relation to this test:

By contrast with s 5B(1)(c) of the Civil Liability Act, it is not satisfied by evidence of what a reasonable traffic engineer would have done as a precaution against an identified risk. Rather, it is only satisfied by proof that no traffic engineer acting reasonably would have failed to take the precaution identified by the plaintiff. That is, accepting that there will be a range of views amongst reasonable traffic engineers, the omission must be such that no person with the requisite expertise could properly consider the omission to be reasonable. The fact that a high threshold is being prescribed is revealed by the double negative, “so unreasonable that no authority…”[15]

 In the present case Basten JA (with McColl JA[16] and Emmett JA[17] agreeing) held that the decision not to erect a “Keep Left” sign (which was the only ground of negligence upheld by the primary judge and relied on at appeal[18]) constituted an exercise of a special statutory power such that the civil immunity in s 43A of the CLA was enlivened. The exception to this immunity was certainly not satisfied in circumstances where the respondent had failed to establish, even on the balance of probabilities, that the appellant’s decision not to erect a “Keep Left” sign was negligent[19].

Comment

Unfortunately for Mr Grant, he was unable to establish, on the balance of probabilities, that the RMS breached its duty of care to road users, including Mr Grant, by failing to install a “Keep Left” sign at this particular intersection. Part of Mr Grant’s problem was that the evidence did not support his version of events. However, even if Mr Grant’s version of events was accepted, the Court of Appeal was still not satisfied that the RMS was negligent in the circumstances of his accident.

The more notable aspect of this case was the application of the s 43A immunity to protect the RMS against liability arising from its decision not to install road signs at an intersection. This part of the judgment is likely to have more widespread implications for plaintiffs injured in road accidents in New South Wales.

There are many motor vehicle accidents that are caused not by the actions of other road users, but by environmental factors, such as the condition and design of the road. In these accident circumstances, plaintiffs often seek compensation from the authority responsible for the design and maintenance of the road in question, which in NSW is usually either the RMS or the local Council, depending on the type of road.

The interpretation of s 43A adopted by the Court in this case will make it difficult for plaintiffs to do so, as it severely limits the circumstances in which an authority, such as the RMS, will be liable to road users for its exercise of, or failure to exercise, its powers conferred under statute. The authority will be entitled to rely on the s 43A immunity in most cases due to the high threshold set by s 43A(3), as the RMS did in this case.

The only cases in which the s 43A immunity will not protect an authority from civil liability are those cases in which the authority’s exercise or failure to exercise its statutory power was ‘unreasonable’. If this test is to be applied to the same standard as the test of Wednesbury unreasonableness[20] (as implied by Basten JA’s interpretation of the statute) then this creates a very high standard of proof which will effectively require plaintiffs to prove negligence to a standard far beyond the usual civil standard in order to successfully claim compensation against an authority such as the RMS.

[1] [2015] NSWCA 138; Emmett JA at [61]

[2] [2015] NSWCA 138; Emmett JA at [156]

[3] [2015] NSWCA 138; Emmett JA at [164-165]

[4] [2015] NSWCA 138; McColl JA at [7]

[5] [2015] NSWCA 138; Emmett JA at [167]

[6] [2015] NSWCA 138; Emmett JA at [139,172]

[7] [2015] NSWCA 138; Emmett JA at [174-176]

[8] [2015] NSWCA 138; McColl JA at [8]

[9] [2015] NSWCA 138; Emmett JA at [176]

[10] [2015] NSWCA 138; McColl JA at [8]

[11] [2015] NSWCA 138; Emmett JA at [184]

[12] Civil Liability Act NSW (2002) s 43A(2)

[13] [2015] NSWCA 138; Basten JA at [35-37]

[14] Civil Liability Act NSW (2002) s 43A(3)

[15] [2015] NSWCA 138; Basten JA at [36]

[16] [2015] NSWCA 138; McColl JA at [9]

[17] [2015] NSWCA 138; Emmett JA at [185]

[18] [2015] NSWCA 138; Basten JA at [56]

[19] [2015] NSWCA 138; Basten JA at [37]

[20] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223