McCafferty's Management Pty Ltd v State of Queensland
[1999] QDC 75
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McCafferty's Management Pty Ltd v State of Queensland[1999] QDC 75
McCafferty's Management Pty Ltd v State of Queensland[1999] QDC 75
DISTRICT COURT | Plaint No 518 of 1995 |
CIVIL JURISDICTION
JUDGE McGILL SC
McCAFFERTY'S MANAGEMENT PTY LTD | Plaintiff |
and
STATE OF QUEENSLAND | Defendant |
BRISBANE
DATE 30/04/99
JUDGMENT
IN THE DISTRICT COURT | Plaint No. 58 of 1995 |
HELD AT MACKAY
QUEENSLAND
[McCafferty's Management Pty Ltd v. State of Queensland]
BETWEEN:
McCAFFERTY'S MANAGEMENT PTY LTD | Plaintiff |
AND:
STATE OF QUEENSLAND | Defendant |
JUDGMENT - McGILL D.C.J.
Judgment Delivered: | 30 April 1999 |
Catchwords: | NEGLIGENCE – motor vehicles – collision at side track – whether design or warnings deficient – causation NEGLIGENCE – highway authority – whether road works design deficient – whether warnings sufficient – whether lights maintained – causation |
Counsel for the plaintiff: | K.N. Wilson |
Counsel for the defendant: | D.O.J. North SC and J.B. Rolls |
Solicitors for the plaintiff: | Barron & Allen, town agents for Barry & Nilsson |
Solicitor for the defendant: | Crown Solicitor |
Dates of Hearing: | 31 August, 1,2,3 September 1998 |
JUDGMENT
HIS HONOUR: In this matter there will be judgment for the defendant with costs. I publish my reasons.
IN THE DISTRICT COURT HELD AT MACKAY QUEENSLAND |
[McCafferty's Management Pty Ltd v. State of Queensland]
Plaint No. 58 of 1995
BETWEEN:
<McCAFFERTY'S MANAGEMENT PTY LTD | Plaintiff |
AND:
STATE OF QUEENSLAND | Defendant |
JUDGMENT - McGILL D.C.J.
Judgment Delivered: | 30 April 1999 |
Catchwords: | NEGLIGENCE – motor vehicles – collision at side track – whether design or warnings deficient – causation NEGLIGENCE – highway authority – whether road works design deficient – whether warnings sufficient - whether lights maintained – causation |
Counsel for the plaintiff: | K.N. Wilson |
Counsel for the defendant: | D.O.J. North SC and J.B. Rolls |
Solicitors for the plaintiff: | Barron & Allen, town agents for Barry & Nilsson |
Solicitor for the defendant: | Crown Solicitor |
Dates of Hearing: | 31 August, 1,2,3 September 1998 |
IN THE DISTRICT COURT | Plaint No. 58 of 1995 |
HELD AT MACKAY QUEENSLAND |
BETWEEN:
McCAFFERTY'S MANAGEMENT PTY LTD | Plaintiff |
AND:
STATE OF QUEENSLAND | Defendant |
REASONS FOR JUDGMENT - McGILL D.C.J.
Delivered the 30th day of April 1999
Shortly after midnight on 24 September 1993 a coach owned by the plaintiff was being driven south along the Bruce Highway near Cherry Tree Creek, south of Mackay, when it collided head on with a prime-mover and trailers. At the time the bridge over Cherry Tree Creek was being reconstructed, and there was a side track taking traffic around the bridgeworks. The collision occurred at the point where the northern end of the side track rejoined the highway. By this action the plaintiff claims that damage to its bus was caused by the negligence or breach of statutory duty of the defendant in the design, construction and maintenance of the side track and associated traffic control signs. Liability is in issue, but quantum was agreed at $215,000.00, in respect of which the plaintiff also claims interest: p.2.
The Highway
The Bruce Highway of course is the major north/south highway in Queensland, and runs along the coastal plain north of Brisbane. It is part of National Route 1. This section of the highway has one lane in each direction, sealed with a pavement width of 14 metres for both lanes plus shoulders: Exhibit 10. It is a fairly busy road; about three kilometres to the north of the accident scene there was a traffic measuring site recording northbound traffic (p.301) which on 24,25 and 26 September 1993 recorded a daily average of 23 three-axled trucks or buses, 99 six-axled semi-trailers, and 10 semi-trailers with an additional trailer, referred to as “B-doubles”: p.302, Exhibit 27. The traffic was a little greater on 26 September, which was a Sunday: p.305. That day tends to be busier, but the other periods would be typical of the previous 24 hour period as well. A small majority of the heavy vehicles travel at night rather than the day-time: p.304. Although these figures are for northbound traffic, they give an indication of the general level southbound traffic because traffic in both directions tends to be similar: p.301. Lighter vehicles were not recorded at this site, but Mr Hildrith, the supervisor in charge of Traffic Information Services with the Department of Main Roads in Mackay, expressed the opinion that at the relevant site heavy vehicles would represent about 14 per cent of the total number of vehicles. This suggests a total traffic level in an average 24 hour period of about 940 vehicles: p.305. This was regarded as a high volume of traffic: p.161. Exhibit 26 is a vehicle by vehicle record of the heavy vehicles passing the site between about 5.30 p.m. on 23 September and 2.30 p.m. on 27 September 1993 marked up by Mr Hildrith to show the vehicle classification, and a key to interpreting this classification is Exhibit 25.
The countryside in the vicinity of the collision site is generally flat: p.32. When heading south from Mackay along the highway there is a fairly long straight stretch which ends shortly after the bridge over Duff Creek, followed by a curve to the left which ends shortly before Cherry Tree Creek is crossed: Exhibit 19. The curve to the left is fairly gentle, having a radius of about 700 metres (p.170 and see p.31 of Exhibit 14); to the east of the road there are some tall trees near the curve, which provide a limit to the extent to which a driver can see around the curve. The road became straight again about 100 metres short of the bridge (Exhibit 18) and it continued straight thereafter for some distance to the south. The ordinary speed limit was 100 kilometres per hour.
The Reconstruction of the Bridge
In the early 1990's plans were developed to replace old wooden bridges over four creeks south of Mackay on the Bruce Highway with concrete bridges: p.151-2. These creeks included Cherry Tree Creek, two further to the north and one to the south. A map of this part of the highway showing the four sites is Exhibit 16. The bridges were to be replaced in the existing alignment, which was regarded as satisfactory; it was not suggested by anyone that this aspect of the design was inappropriate. It followed that while construction was underway it was necessary to divert traffic on the Bruce Highway around the construction site. The diversion was to be over a side-track constructed to a standard commensurate with National Highway Operations, which involved geometric standards to provide safe passing for oncoming vehicles (8 metres fully sealed), and drainage standards to provide acceptable immunity and traffic ability; Exhibit 17.
Design of Side Track
The side track involved a floodway crossing which was regarded as the only practical means of traversing the creek; this aspect of the design decision was not disputed as part of the plaintiff's case. It meant that the level of the road at the bottom of the floodway had to be reasonably close to the bed of the creek, and indeed dictated a specific road level, which in turn dictated the vertical alignment of the sidetrack: Exhibit 17, which lists the various design criteria. The position of the side track to the side of the highway, a certain distance away from the normal alignment, was dictated by a number of factors referred to, and this was also not disputed. The length of the side track was determined by the need to remain clear of the bridge works and the works on the approach roads, but to have a side track which was no longer than necessary, to minimise costs.
Essentially the side track involved an S-bend at each end with a straight section in the middle in the course of which the side track dropped into the creek bed where the floodway was constructed, and rose out of it again. However the change of height was not confined to the straight section, which was fairly short; it overlapped about two thirds of the S-bend at the southern end, and almost all of the S-bend the northern end: Exhibit 18. When looking at the plan, Exhibit 18, it must be remembered that although it is to scale the vertical scale is distorted; along the line of the road 1 millimetres = 1 metre, but there is a vertical scale of 10 millimetres = 1 metre. That makes the dip look quite unrealistic; p.156. The S-bend was designed with 150 metre radius horizontal curves, regarded as safe for 75 to 80 kph traffic: Exhibit 17. As constructed the radius was 170 m: Exhibit 14, p.31. As to the vertical alignment, the crest curves had a radius of 500 metres which provided a sight distance of 75 metres from a driver's eye 1.15 metres above the ground, thus allowing safe stopping before the floodway, in the event of water over the road, for a vehicle travelling at 65 kilometres per hour or less: Exhibit 17. The curve at the bottom of the floodway had a tighter radius, 250 metres, which was less than desirable for 40 kilometres per hour, but more than the minimum tolerable at that speed, in terms of comfort limits. Because this element had the lowest speed, a ruling speed for the whole side track of 40 kilometres per hour was adopted. It is apparent however that the 40 kilometre per hour speed was required by comfort criteria rather than safety criteria. There was a length of about 10 metres on each side between the crest curve and the sag curve: p.167.
Mr Crozier, an engineer who had worked for the Main Roads Department for about 30 years, was involved in designing this project. Mr Crozier enlarged in his oral evidence on the matters dealt with in Exhibit 17, but I do not think I need to refer to this in any further detail. In his opinion the important consideration about the co-ordination of the horizontal and vertical alignments was to ensure that the horizontal curve of the side track preceded the vertical curve, so that as one approached the detour one could see the road departing from the through highway: p.166. Because of the large radius of the curve to the north he did not regard the fact that there was a curve in the highway immediately to the north as a significant issue: p.167. The large radius curve in the highway to the north of the side track ended at a point just before the curve into the side track began: p.170. The end point of that curve was marked by Mr Crozier on Exhibit 18; it is the arrows and figures in blue ink, chainage 110666. It follows that any extension of the side track to the north would have moved the entry point back into that curve, but Mr Crozier thought that the only effect of that would have been that the driver would have come to it earlier, since it was a generous radius curve: p.171.
The Warning Signs
The supervising engineer for the construction of the bridge at Cherry Tree Creek was Mr Woolsey: p.247. He qualified as an engineer in 1983 and had worked most of the time since then on the design and construction of roadworks. It was part of his function as the supervising engineer to design the road signs to warn of the roadworks and the detour, and the scheme that he prepared was set out on the form and diagrammatic plan which he signed on 14 May 1993: p.248. That became Exhibit 22, and covers both the construction site at Cherry Tree Creek, and a similar construction site further to the south at Station Creek. Both bridges were rebuilt at the same time, as one project: p.251. Beyond the beginning of the detour, across the highway on the approach to the bridge, were to be erected two signs saying “Road Closed” and “Detour”. The plan also indicates at this point (p.255) “barrier boards” and “lateral shift markers”. Other signs are shown with dimensions from this point, which was actually 30 metres beyond the point at which the curve of the deviation effectively began: Exhibit 14. The effect of the plan was that the rest of the signs were to be as follows, listed in order from the bridge, together with the measurements given for such signs from the point of impact (p.43 - effectively the same place) by Senior Constable Blanchard in Exhibit 10, and those scaled off the survey plan attached to Exhibit 14:
Sign | Exhibit 22 | Exhibit 10 | Exhibit 14 |
40 kph speed limit sign | 50 m | 50 m | 70 m |
“Reduce Speed” | 100 m | 100 m | 120 m |
60 kph speed limit sign | 200 m | 200 m | 170 m |
“Detour Ahead” | 300 m | 300 m | 290 m |
80 kph speed limit sign | 500 m | 400 m | 390 m |
“Roadworks Ahead” | 600 m | 600 m | 580 m |
“Roadworks 1 km Ahead | 1,000 m | 1,000 m | - |
The positioning of the signs is essentially in accordance with the plan, except for the 80 kph, where Mr. Donney appears to have made a mistake in reading the plan, although it is also possible that Senior Constable Blanchard made the mistake and it was repeated in Exhibit 14.
According to the diagram in Exhibit 14, the 40 kph sign is (by measurement and reference to the scale) about 70 metres away from the unidirectional markers which represent approximately the point of impact. According to Exhibit 10, this sign was approximately 50 metres north of the incident. Sergeant Ruller thought that the sign positions shown in the diagram were derived from the measurements taken from Senior Constable Blanchard's notes: p.69. However, I suspect that in fact they were identified on the roadway at the time. This is for two reasons; the first is that the signs do appear to be marked on the diagram in the same position as they are visible in the photographs, particularly the lower photograph on the first page of Exhibit 1, although I am conscious of the fact that it is necessary to be careful when looking at the aerial photographs because of the foreshortening effect. The second reason is that the distances between the signs do not follow precisely the distances given in Exhibit 10. I think that the measurements in Exhibit 14 are probably more accurate.
All of these signs were standard signs referred to in the manual of uniform traffic control devices, a copy of which in force at the relevant time became Exhibit 4. All of the signs to which I have referred were rectangular signs, and the diagram prepared by Mr Woolsey had marks on the signs to indicate that two flashing yellow lights were to be placed on each sign except the speed limit signs: p.259. Although these are shown on top of the drawings in the diagram, the common practice and his expectation was that they would be attached with wire below or at the side of the signs: p.259.
Mr Woolsey attended the site regularly, at least once a week during construction (p.249) and on approaching the site he would naturally be in a position to observe the signs, and would have been able to see if there was anything amiss: p.250. Mr Woolsey was of the view after the signs had been erected that they complied with his diagram Exhibit 22 (p.250) although he did not check measurements. He did not recall any particular problems with these signs prior to the accident. Both of those side tracks had a speed limit of 40 kph in place through them, in each case because of the severity of the dip into the creek; the other two bridges in the overall project had been reconstructed first, and they also involved side tracks with 40 kph speed limits, because of the depth of the creeks: p.251.
Apart from some differences in positioning, there was one discrepancy between the design and what was constructed; in place of lateral shift markers, uni-directional hazard markers were used. Both of these were illustrated in Exhibit 4, the lateral shift marker (Sign T5-4) at p.1-70, and the uni-directional hazard marker (Sign D4-1-1) at p.1-73. At first glance there is little apparent difference between them, but Mr Woolsey explained that the lateral shift markers are regarded as roadwork signs and are generally black and yellow and non-reflectorised, whereas the uni-directional hazard markers would be used as a permanent sign and they are reflectorised: p.252. He approved of this departure from his plan because being reflectorised would have improved visibility at night.
The signs were actually erected by a gang under the supervision of Mr Donney, a maintenance supervisor with the Department of Main Roads, who had been working for the department since about 1974 and had been a supervisor since 1982: p.229. By reference to a work diary he was able to say that the signs on the northern approach to Cherry Tree Creek were erected on or shortly after 27 May 1993: p.229. The diary also recorded the signs that he had obtained for the purpose, and the fact that he used a quantity of pipes for erection of the signs, a standard 50 mm pipe used for signage: p.230. The signs were erected on the left hand side of the highway as one headed south. Holes were dug using a hand auger and the pipe was inserted and packed or concreted in: p.232. The placing of the signs was on the basis of measurements made using a rally meter, a special meter fitted to cars to measure distances to the nearest metre: p.232. The appropriate distances were measured in this way and positions marked by paint on the road, and the signs were then erected by reference to those positions. Mr Donney identified in photograph 25 which is part of Exhibit 3 the marking on the road where the reduce speed sign was to be installed: p.235. He said he followed the plan subject to slight adjustment to avoid any obstructions or local difficulties: p.232. He did not recall any significant discrepancies with these signs: p.233. The detours actually opened while his gang was there, and they painted the centre line and edge markings on the road. The centre line was a double line, as appears in the photographs. The paint was reflectorised, and in addition pavement markers, commonly known as cats eyes, were put in at 12 metre intervals along the centre lines: p.233. Red markers were put on the edge line at 24 metre intervals: p.234. He was not responsible for the guide posts with reflectors on them which appear in the photographs (p.234) but obviously they were put in. Mr Donney said that three uni-directional hazard markers were positioned at each end of the bridge, mounted on galvanised 50mm posts, and the rest of the road was blocked off with barrier boards which were moveable so as to allow access for work vehicles: p.257.
Mr Donney said that after the side track was opened the signs would have been checked by him regularly, since he would check all signs on his section of the road weekly to ensure that they were in place: p.238. He did not make any reports of damage to the signs to the north of this bridge. He installed the flashing yellow lights marked on the plan Exhibit 22, which were operational when put up, but his checks were in the day time when they would not be working anyway: p.238. Responsibility for maintaining the lights lay with the crews doing the work.
By the time this accident occurred, the bridge work was essentially completed, and indeed but for the barriers and some road material it would have been possible for someone just to drive straight across the bridge: p.317. The side track had been in operation for almost 4 months.
The Coach
Although the plaintiff does operate regular timetabled services along this route, the coach involved in the accident was on a charter run taking a group to Brisbane and return, for the weekend: p.97. The coach concerned had the plaintiff's fleet number 311, and was a six-axled coach with a Denning Lancier body (Exhibit 3 photograph 1) 12.2 metres long and 3.8 metres to the top of the air-conditioning unit which was on the roof at the back: p.109. The driver sat at a level below the first row of passenger seats. Mr Barnes the plaintiff's North Queensland manager (p.96) was not able to provide any accurate information about the eye height of the driver: p.109. The coach had air brakes (p.121) and manual transmission (p.122) and was governed to 100 kph: Exhibit 10. Mr. Barnes said that in addition to normal high beam and low beam light the coaches were fitted with two driving lights which gave a more focused beam; these were automatically switched off when the lights were dimmed to low beam, but had a separate switch to turn them on: p.109. Normally on highway driving the high beam and driving lights would be on, but one would expect them to be dimmed if there was any oncoming traffic. There was expert evidence about the illuminating effect of such lights from Dr. Jenkins: Exhibit 12. It was not disputed that this applied to the plaintiff's coach: p.320.
In addition the coach was fitted with a Tripmaster Data Plus recording system, a computerised system with comprehensive vehicle monitoring capacity and a potential to record a number of features: Exhibit 8. The computer was able to determine and record road speed, although wheel slip with the road is not identifiable from the system: Exhibit 8. Recorded speed during an accident event is from wheel movement only. After the collision the equipment was recovered and the record printed out: it became Exhibit 9. The event report provides a second by second record of supplied data, road speed, engine RPM and brake application in the period leading up to the collision, the data being recorded at one second intervals. Data was recorded up to 25 minutes and 22 seconds past midnight. Evidence was given concerning the interpretation of this, to which I shall return.
The Journey
Because this was a charter run the only paperwork provided to the driver was a list of instructions as to who the group were and where to pick them up, where to take them to and where to stop for breaks: p.107. On an ordinary timetabled service he would have a passenger manifest and the paperwork associated with money collected and freight: p.107. The coach left Townsville about 6.30 p.m. heading south (p.221). There was a half hour break near Mackay which was reached about 11.00 p.m. (p.222). This coach left Townsville shortly after a regular service driven by Mr Halloran, a police officer who was also a part-time bus-driver in September 1993: p.126. The two were together again for a short time during the stop at Fairleigh, near Mackay, where their stops overlapped for about 10 minutes (p.127). Mr Halloran's coach, which was of the same type as the coach involved in the accident, left first: p.127.
On approaching Cherry Tree Creek Mr Halloran noticed the roadwork sign which he said was not marked with flashing lights, and he noticed a Detour Ahead sign also unlit, then two speed signs lighting up as he put it “one behind the other, they were in very short succession”: p.128. He was travelling approximately 80 kilometres per hour because of the sign to that effect which he had passed earlier and as he saw the other signs he noticed that there was a barricade across the road, although again as he recalled with no flashing lights on it, and a Detour sign pointing to the left. He said he had to brake more heavily than normal, but he proceeded through the detour without incident at 40 kph or less: p.137. His lights were on high beam throughout, there being no oncoming traffic: p.128. He said that the direction he had to take through the side track became apparent to him between the 60 and 40 kph signs; he also recalls seeing a “Reduce Speed” sign, a red sign with white lettering: p.129. He could not recall the position of the Detour Ahead sign; his recollection was that it was a normal height for any roadwork sign: p.129. His interpretation of this was the bottom of the sign being about a foot off the ground: p.130. His recollection was that the barricade across the road was a yellow and black striped sign: p.130. He did not recall a sign saying “Road Works 1 KM Ahead”: p.132. Of course when he was passing the signs he had no particular reason to be noticing just what signs were where.
Mr Halloran said that the first vehicle he recalls crossing after he passed Cherry Tree Creek was a B-double, which he thinks may have been the vehicle involved in the collision: p.139. He said it was fairly quiet on the road that night: p.140. On most nights of the week most of the traffic at that time of night was heavy vehicles: p.140. His recollection was that there were no flashing yellow lights associated with this side track, although normally there were numerous flashing lights in connection with roadworks in progress or where there was any sort of hazard for traffic at night: p.140.
Neither Mr Halloran nor the driver on the coach involved in the accident, Mr Allan, had been over the road south of Mackay recently, although there were five timetabled services operated by the plaintiff each day in each direction over the road between Townsville and Rockhampton, part of the run between Brisbane and Cairns: p.98. Drivers normally have their regular runs (Mr Allan's regular run was between Townsville and Cairns: p.96) so that most of the coaches driven over this section of the highway would have been driven by drivers who were familiar with the road conditions.
The Driver
Sadly the driver of the coach, Mr Trevor Allan, died in the collision. A post mortem by a government medical officer showed the cause of death as injuries suffered in the accident, and tests showed no evidence of alcohol or other drugs: Exhibit 10. He had been working for the plaintiff since September 1993, usually driving between Cairns and Townsville: p.96. On the Friday, Saturday and Sunday of the week prior to the accident Mr Allan drove a particular service, run 142, from Cairns to Townsville, and returned on run 143: Exhibit 15. On Monday he had the day off, and on Tuesday and the Wednesday before the accident he drove run 146 from Cairns to Townsville and returned to Cairns on run 141: Exhibit 15. Run 141 departed Townsville at about 11.00 a.m., and arrived in Cairns at 4.30 in the afternoon: p.97. On the Wednesday he came home by 5.00 o'clock or soon after (p.90), was in bed at about 8 p.m. and was up early the next morning to leave Cairns about 7.00 o'clock (p.91), but travelling as a passenger on a coach to Townsville: p.97. That arrived about 11.00 a.m., and he was booked into a motel for a rest break until he was due to commence his shift: p.98. Mr. Barnes said that drivers normally do rest during such breaks: p.108.
In the afternoon Mr Allan came over from the motel at about 5.30 p.m. (p.93-4) and had a chat with Mrs Barnes who said that he appeared to be bright and cheerful. Before he left Townsville he was also seen by Mr Halloran, who thought there was nothing out of the ordinary about his appearance, and did not think he looked unwell: p.126. Mr Halloran saw Mr Allan again near Mackay, where he spoke to him for about 10 minutes and did not see any signs that he was unwell or tired: p.127.
Two passengers who were on the bus at the time of the accident, a Mrs McGregor and Mrs Barnwell, were called and gave evidence that when they saw the driver at Townsville prior to the departure of the bus he appeared to be perspiring profusely: p.221, 266. Mrs McGregor thought that he did not seem relaxed, and was rushing about without apparently doing anything. In particular he did not assist in loading the luggage, and her husband had to put their luggage onto the bus: p.221. However, Mrs. Allen gave evidence that it was common for her husband to perspire freely (p.90) and that was confirmed by the observation of both Mr Barnes (p.96) and Mrs Barnes: p.93. In these circumstances there is no significance in the observations of the passengers. Mrs Allan said that prior to the accident her husband was in good health (p.90) and there is no evidence which would cause me to doubt that.
Mrs McGregor said that after the coach left Townsville she thought that the driving was rather erratic, and recalls the driver telling the passengers that that was not his normal route, which was between Townsville and Cairns. She thought that he had said it was the first time he had been to Rockhampton (p.222) but I think it much more likely that he would have said something about his not having been on the road to Rockhampton for some time, which probably would have been right. Mrs McGregor said there were a lot of roadworks and in places there was a bit of drizzle about, and the braking at times seemed to be very jerky: p.222. She thought that at Mackay he seemed tired but jovial: p.223 Mrs Barnwell also recalled the brakes being applied sometimes, which I think must mean applied more heavily than usual: p.266.
The B-double
There was little evidence about the other vehicle in the collision. It was a Scania Prime Mover with a double semi-trailer and their condition prior to the accident appears in Exhibit 24. The prime-mover had headlights mounted above the front bumper bar, and four additional lights set into the front bumper bar; it also had marker lights on the side of the cab and on the roof of the cab, and on the corners and along the sides of the trailers: p.278. From the photograph it looks as though the headlights were about 750 mm above the ground: p.293. Dr. Jenkins gave an estimate, on the basis of his general knowledge, of 650-700 mm: p.215. It was heading northbound and the trailers were laden with unassembled cardboard boxes: Exhibit 10. Photographs 1,3 and 4 of Exhibit 3, which show the position of the vehicles after the collision, suggest that it was struck more on the driver's side of the cab; the cabin was very badly damaged, and twisted around somewhat to its right. The first semi-trailer in turn seems to have been deflected somewhat to its left, particularly at the leading end. The driver of the B-double survived the collision, but was not called as a witness by either party. According to Exhibit 10, he was seriously injured and told police he had no recollection of the incident or the events leading up to it. There is no direct evidence of the speed at which it was travelling, but in view of the fact that it had just negotiated the side track involving a fairly steep climb out of the creek, I think it unlikely that it was travelling very fast Sergeant Ruller thought it would have been stationary by the moment of impact (p.76) and probably doing only 20-30 kph coming out of the cutting: p.85. Mr. Beard thought he would have been stopped or almost stopped at the moment of impact: p.273.
The Collision
The evidence about the actual collision and the behaviour of the coach in the period leading up to the collision comes from three sources: there is evidence of what the police found when they investigated the scene, evidence from the two passengers in the bus, and the evidence of the print-out from the computer on the coach. This evidence was explained by an expert familiar with the equipment, while experienced police accident investigators expressed opinions based on the evidence collected about the scene, as did a safety engineer, Mr. King, and a traffic engineer, Mr. Beard. For reasons I shall come to, I accept some but not all of the evidence of the police investigators, and generally accept the evidence of Mr. Beard in preference to that of Mr. King.
The Police Investigation
Senior Constable Blanchard prepared a report into the accident, part of which became Exhibit 10, the part up to p.25; the rest of the report was excluded because it was contaminated by hearsay: p.21. Some parts of Exhibit 10 refer to photographs which are not in evidence; I have not had regard to such material. Some of the photographs referred to in Exhibit 10 are included in Exhibit 3. The captions on the back of these photographs partly duplicate the comments in Exhibit 10. Senior Constable Blanchard arrived at the scene of the accident about 1.22 a.m. (p.26) and was there until 8 a.m.: p.35. His observations of the signs in Exhibit 10 are set out earlier; the signs corresponded with the plan, Exhibit 22, in terms of what each sign said, but he said that the “Detour Ahead” sign was situated just above ground level and wired between two steel star pickets, as was the “Reduce Speed” sign which he says measured 1200 mm by 900 mm. The report says that after the incident the Department of Main Roads replaced these signs, the “Detour Ahead” sign being similar but in newer condition and mounted on two steel posts about 1.5 metres above ground level, as was the new “Reduce Speed” sign which was also larger, about 1800 mm by 900 mm (and see p.29).
One of the unidirectional hazard markers had been demolished by the B-double as a result of the collision: p.30. Senior Constable Blanchard did not mention the “Road Closed” sign and it may have also been demolished in the collision or mounted on barrier boards moved by emergency vehicles: p.244, and see Exhibit 3 photograph 1. He said that the first two signs did not have any flashing lights attached to them mounted above the signs (Exhibit 10 and p.30), the “Detour Ahead” and “Reduce Speed” signs had two non-operational flashing lights attached to them mounted above the signs (Exhibit 10 and p.30), and the “Detour” sign had two flashing lights attached, one of which was not operating, and the other was “just operational”. These observations were confirmed in oral evidence: p.28-30. He said that he measured the signs himself (p.26), but does not recall whether he actually measured distances above the ground where the various signs were: p.28. He said that the grassed shoulders had recently been mown (Exhibit 10) and grass was not obscuring the signs: p.52.
Senior Constable Blanchard observed at the scene tyre marks terminating at the drive wheels of the rear left side of the coach which were 38.5 metres long and relatively straight and without deviation. There were similar but much shorter marks, about 15 metres in length, to the right hand drive wheels: Exhibit 10. There were no marks to indicate sideways or rearwards movement of the coach at the time of initial impact: Exhibit 10. The only marks in the vicinity of the B-double was one dual tyre mark which had travelled approximately one metre across soil located at the northern edge of the commencement of the cutting, which had been made by a set of rolling tyres, apparently the rear left hand side of the drive wheels of the prime mover. This suggested the driver had attempted to pull to the left to avoid the collision: p.53.
Photograph 23 shows the “Detour Ahead” sign, mounted on two steel posts, and with two flashing lights hanging under it. The photograph was said in Exhibit 10 to have been taken on the morning of the traffic incident, but according to the Exhibit 10 caption the sign was changed and placed on posts before the photograph was taken. The same applies to the “Reduce Speed” sign shown in photograph 24 except that it has no lights in the photograph. Various photographs also show a number of tyre marks in the southbound lane in the approach to the detour, which were said not to relate to this incident. The photographs taken the following morning show some additional signs which were in place because of temporary traffic control lights: p.316. After the accident a quantity of diesel fuel was spilled on the road, and sawdust was spread to soak this up. This appears in Exhibit 13, and the lower photograph on the front page of Exhibit 1. Evidently while this was being done, and subsequently cleaned up, traffic was held up for a time. The additional signs are easily identified as the ones not mentioned in Exhibit 22.
Included in Exhibit 10 is evidence that both the coach and the B-double were inspected after the accident, and no faults were located in either vehicle which could have contributed to the incident. No objection was taken to this evidence and neither side asserted anything inconsistent with it.
Senior Constable Blanchard conducted tests by which he derived the co-efficient of friction for the road surface, and by reference to this and the information from the coach computer that prior to braking it was travelling at 94 kilometres per hour, calculated that over the distance of 38.5 metres, the length of the skid marks, the coach decelerated to a speed of 59.55 kph prior to the impact: Exhibit 10.
On 29 March 1994, Senior Constable Blanchard went back to the scene with Sergeant Ruller of the Accident Investigation Squad, and did a survey using a total station theodolite and a computer program which produced a plan which was shown in the appendix to his report, Exhibit 14: p.42. By the time this diagram was prepared of course, the side track was no longer in use, the bridge having been completed and opened not long after the collision. No doubt the remains of the side track were still there. The position of the vehicles marked on this plan would also involve some element of reconstruction. As far as I can tell from photographs in Exhibit 3, this is accurate; I suspect that there were measurements taken of the position of the vehicles after the accident, and the plan may have been based on those. There was no challenge at the trial to the accuracy of this diagram which I think is very helpful in understanding the circumstances of the collision.
The report of Sergeant Ruller which became Exhibit 14 contains some material which is for my purposes hearsay. Although some of this may have technically gone in without objection, I do not think I should give it any weight: see p.56.
Evidence of Passengers
Mrs. McGregor said that just before impact she saw a sign on the left hand side just briefly which said “Detour”, then she looked up, looked towards the driver, closed her eyes, and then felt the brakes being applied severely and she was thrown forward. She opened her eyes and lights from the truck were dazzling inside the bus: p.223. She could not be sure how long the detour sign was before the collision, but recalled that it had one flashing yellow or orange light on it: p.224. Her recollection was that this sign was quite close to the collision but it was quite late at night and she did say she had her eyes closed after this. When she opened her eyes, she saw the headlights of the truck which were shining very brightly into the coach: p.224-7. It appears that she opened her eyes in response to the severe braking. Her impression that it was something that she saw close to the collision tends to exclude the possibility that this was some other detour sign further north, about which there was no other evidence; the other works at Station Creek were further south. Her recollection was that it was at this site, rather than for example, roadworks north of Mackay: p.225. If it was on the approach to Cherry Tree Creek, the only sign saying “Detour” that went past the left hand side of the bus prior to the collision was the “Detour Ahead” sign.
Mrs. McGregor's evidence was challenged on the basis that she made no reference to seeing this sign in a statement she made to the police on 27 October 1993: p.225. She could not recall why she had not mentioned this statement at the time, since she said she had discussed the sign with other passengers, but she was quite positive that she had seen it and that it had a flashing light on it: p.228. It is clear, of course, that the sign was there, so it is unsurprising that she might have seen it. The evidence about the flashing light is, however, inconsistent with that of Senior Constable Blanchard and Mr. Halloran.
Mrs. Barnwell said that after leaving Mackay she watched a video, and after that finished she looked out the front windscreen of the bus and saw a “Detour Ahead” sign, black writing on a yellow background: p.267. It seemed that the driver was not slowing down in response to it. She could not say how high the sign was off the ground, but recalled seeing what she said were little flashing lights attached to it, although she could not recall whether they were working. The lights would have been to some extent illuminated in the bus headlight and could easily have been visible even if not operating. However, I think it more likely that the presence of such lights would have registered if they, or at least one of them, had been operating. After that she sat back and did not see anything else out the front until she recalls the brakes being applied really hard: p.268. She gave a guess that she saw the “Detour” sign five or ten minutes before the collision which is obviously quite inaccurate. She also said that “it wasn't that long afterwards I saw the sign that he hit the brakes”: p.268. She did not recall the headlights of the truck prior to the accident: p.271.
Conflict of Evidence
There is therefore some conflict between the evidence of Senior Constable Blanchard and the defence witnesses as to the state of the signs on the approach to this accident scene. The defence evidence which I have referred to earlier, was that all of the signs were erected on 50 mm pipes, and that there was no difference between the signs erected and the signs shown in the photographs. As well, Mr. Donney said that the lights were never put on top of the signs: p.239, and see p.308. Mr. Donney's evidence was supported by that of Mr. Jameljanenko, who was one of the workers in his gang in 1993: p.306. He said the signs were erected on 50 mm galvanised steel pipes, none were on star pickets: p.307. At no time did he ever replace any of these signs. The “Reduce Speed” sign in the photograph appeared to him to be the same as the one that was erected in May. The posts were cemented into the ground, and the signs raised to a measured height of 1.5 metres: p.308. He said lights were put on all the signs which were marked with lights in the diagram provided by Mr. Woolsey, that is Exhibit 22: p.309.
There was also evidence from Mr. Bassett, a supervisor attached to the Mackay district who in 1993 was in charge of the roadworks, who said that there were no works done on the signs on the northern approach to the sidetrack at Cherry Tree Creek during the project: p.313. By way of contrast, there were a number of occasions when it was necessary to re-erect the barrier at the Station Creek site, because northbound traffic kept running into it: p.318. This was at the end of 500 metres dead straight road for northbound traffic: p.319. But apart from this accident, nothing ever happened to the barriers on the northern side of Cherry Tree Creek: p.319. Mr. Bassett also said that the “Reduce Speed” sign shown in the photographs was the one that had been in place for at least two months before the accident: p.313. He said that on the morning after the accident he was at the site, but nothing was touched until the inspector, Keith Bradshaw, went around and did a measurement of all the signs and so on, no signs were changed but they did erect the extra traffic light signs which are shown in the photographs: p.314. He denied the suggestion that the “Detour Ahead” and “Reduce Speed” signs were wired between star pickets: p.315.
Mr. Bassett said that the flashing lights were checked once a week to see that they were operational, but this was done by someone else, and that other person did not normally report to him what the result of the inspection was: p.317. No one checked the site at night, since the gang all resided in Mackay: p.315. The “Reduce Speed” sign should not have had lanterns on it, and the “Detour Ahead” sign did not have lanterns attached to the top of it: p.315.
According to Senior Constable Blanchard, changing the signs involved substituting a larger “Reduce Speed” sign for the one that had been there previously, which he measured at 1200 mm × 900 mm: Exhibit 10. According to Exhibit 4, these signs come in two sizes, 1500 mm × 700 mm and 1800 mm × 900 mm: p.1-48. It is apparent from photograph 24 in Exhibit 3 that this is a G9-9 sign, and it appears to have the same proportions as the illustration in the manual. The replacement sign was said to measure 1800 mm × 900 mm which corresponds to the larger size, G9-9B. According to Mr. Donney, the only “Reduce Speed” signs available in the depot were the standard size signs, and he was not aware of a sign 1200 mm × 900 mm being used at all in the Mackay district: p.236. It seems that all the other signs seen by Senior Constable Blanchard corresponded to the dimensions given in Exhibit 4.
I think that the explanation is that the dimensions of 1200 × 900 apparently recorded on the night, or rather the early hours of the morning, were wrong. I also find it curious that none of the photographs which were taken by the police on the morning of 24 September, or the photographs in Exhibit 1 and 2, some of which also appear to have been taken in the morning, could have failed to detect this change in signage. I think it unlikely that some signs would have been erected properly, but others put up on star pickets, and I am prepared to accept the evidence that the signs were all erected properly on pipes. Once signs are in place it is, of course, possible that they might be knocked over and need to be re-erected in a temporary way, but the evidence that this had not occurred was, I think, persuasive, and it is not immediately obvious why the Main Roads people would be concerned to alter the signs in this way before the police had finished their investigation by taking photographs, or indeed why the police would allow them to change the signs before they had taken their photographs. One would not expect Senior Constable Blanchard to record details such as this inaccurately, but once one detail is shown to be wrong, it rather makes me doubt the reliability of his other evidence. His observations were made at night, quite late, and that may help to explain any inaccuracy.
There were other aspects of his evidence which I think are clearly wrong. On p.33, he said that the detour went off from the highway at an angle of about 45°, but it is obvious both from the construction plan, Exhibit 18, and the survey diagram within Exhibit 14, that this is quite wrong. It is apparent from the latter document that the maximum angle between the direction of the line of the side track and the line of the highway is about 25°, a fact which can be confirmed with a protractor. That diagram shows a kink[1] at the point of divergence at the centre line which appears to be consistent with the appearance in the photographs, but the centre line of the side track from the point of divergence to the back of the bus on the exhibit is at an angle of about 12° to the centre line of the highway. That is the true angle at which the side track diverged, not 45°. He also said the creek crossing was 9 metres below the highway formation: Exhibit 10, p.9. Exhibit 18 shows a design difference of only 6.5 metres. I cannot accept that it was in fact 2.5 metres deeper than that.
Senior Constable Blanchard certainly emphasised that the sidetrack diverted relatively sharply from the highway. I think that his evidence in this respect is exaggerated, although examination of the photographs at first sight would tend to confirm it. It is important to bear in mind that a photograph can produce a misleading appearance, particularly when taken with a relatively long lens; this has a foreshortening effect which changes the proportions of things. Photograph 30 which is part of Exhibit 3 makes the angle between the highway and the sidetrack appear quite substantial, but it also makes the new bridge look quite short, whereas in fact it is some 40 metres long, as appears from Exhibit 18. Even in the lower photograph on the front page of Exhibit 1, the bridge looks to be almost square, whereas in fact it is almost four times as long as it is wide. Again, the explanation is this foreshortening effect. For that reason it is necessary to treat the photographs with some caution, and place greater reliance on the diagrams as showing the true shape of this road.
In the circumstances therefore, I am not as confident about the evidence of Senior Constable Blanchard as I would ordinarily expect to be, and this makes me unwillingly to prefer it to the evidence of Mrs. McGregor that there was a flashing light on the “Detour Ahead” sign. It is possible that that light also failed between that time and when it was seen by Senior Constable Blanchard, or this may be another mistake on his part. In any case, I accept her evidence on this point. It does appear however that this and one light on the barrier were the only flashing lights that were operating at the time; there is no reliable evidence to the contrary. There was no evidence of the outcome of the check made the next morning (p.319) so I assume that did not assist the defendant. Mr. Halloran's evidence was, I think, generally reliable as to its overall impression, but he had no reason at the time to note details and one detail he gave, the colour of the unidirectional hazard markers, was wrong: p.130. I find that the signs were all mounted on pipes and about 1.5 metres off the ground, as shown in the photographs, at the time of the collision. In these circumstances, it is unnecessary to resolve the point of evidence reserved at p.62, but if I had to decide it I would rule that in view of the training and experience of the witness (pp59-60), he was qualified to offer an opinion on the likely subjective effect on drivers of a particular sign placement, provided that it was derived in this way, and was not simply a comment about the effect on him of such placement.
The Computer Record
A print-out from the trip computer on the coach became Exhibit 9. This is in three parts; there are two sheets of statistical data which are irrelevant for present purposes, a series of trip reports covering the period from 18 September to 25 September 1993, and a vehicle event report which records what occurred on part of the night of the accident. The trip report covers the journey from Townsville which is shown as commencing at 18.28 and ceasing at 22.51, presumably after the coach arrived at the roadhouse near Mackay. Trip 27 then commenced at 23.37, and concluded at 25 minutes past midnight, after travelling 66.3 kilometres at an average speed of 82.8 kph. By comparison, the journey from Townsville to Mackay was at an average speed of 83.7 kph. I was assisted in the interpretation of these documents by Mr. Wade, an expert witness whose evidence begins at p.112, and who wrote two reports, Exhibit 7 and 8.
The vehicle event report commences at 22.49.40 on 23 September 1993, and records each second the speed of the rear wheels of the bus, the speed in revolutions per minute of the engine, and whether the brakes are being applied. The coach was travelling at about 90 kph when the record commenced, but after a short time the speed began to decline and then slowed more significantly until the bus came to rest at 22.51.32. It remained stationery for 5 seconds and then moved at 10 kph or less for a few seconds before becoming stationary again, and about 22.54.10 the engine was switched off. This event report covers the arrival of the coach at the roadhouse near Mackay.
The second event report on the print out commences at 21 minutes 57 seconds past midnight, with the coach travelling at 96 kph. Speed varied between 92 kph and 98 kph for most of this report, with even less variation in engine speed, the last entry in this pattern being that at 25 minutes and 18 seconds past midnight. One second later the record shows the brakes being applied, the road speed reduced to 82 kph, and the engine speed reduced. After another second the brakes are still being applied, road speed has reduced to 32 kph, engine speed has come down to just over 500 rpm, effectively idling speed, and the next entry has the brakes being applied, road speed of 26 kph and engine speed the same. The following entry, 25 minutes and 22 seconds past midnight no longer records a brake application, and has both road speed and engine speed at zero: this is shown by the 0 in the far right hand column, the symbol of speed and rpm being recorded at the same point. Mr. Wade, who has had some experience in interpreting these things, said that this entry showed that there was no signal showing either wheel movement or engine movement (p.119) although the loss of the recording of brake application may have occurred because of electrical failure rather than loss of pressure in the brake system: p.121. Mr. Wade said it was safe to say that there was a loss of brake signal at the same time as loss of road speed and engine revs: p.122.
The references to road speed need to be understood subject to the limitation that this is measured by measuring the turning of the wheels, so that it will not be accurate in circumstances where the tyre is moving relative to the surface of the road: p.116. If the wheels had stopped, either because the vehicle had stopped or the wheels were locked, road speed would be shown as zero. Of course, the effect of heavy braking may be to slow the turning of the wheels so that they are slipping but not locked up, that is the wheels are still turning, but the tyres are to some extent sliding over the road surface. That would produce a differentiation between the recorded road speed and the actual speed of the vehicle (which would be higher), and account for a skid mark being left on the road. It also explains how the road speed could apparently fall in one second from 82 kph to 32 kph.
There was some questioning as to the correct interpretation of this information, particularly by reference to when the collision occurred. Mr. Wade said he would have expected a brake signal failure before road speed went to zero, but that did not occur: p.121. He also noted that it was apparent from the change in the relative values of road speed and engine speed that the clutch had been disengaged apparently at the same time the brake was applied: p.122. That is, I think, consistent with a driver in an emergency situation hitting both brake and clutch pedals at the same time: p.124.
The brake switch signal comes from a circuit which is right at the front of the coach (p.121) so the loss of that signal is probably the best indication of the moment of impact. The coach would have continued forward a short distance after the initial impact, if only to accommodate the extent of the damage to the front of the coach and the prime mover of the semi trailer; the diagram attached to Exhibit 14 suggests that the distance is about 5 metres, although Sergeant Ruller thought it would only be a couple of metres: p.77. This was, I think, a factor he had not given a great deal of consideration to before I raised it with him. I think it would be reasonable to allow 5 metres or a bit less as the distance travelled by the coach between the moment of impact and the point where it stopped moving. It may be that the road speed in Exhibit 9 came to zero because by 25 minutes and 22 seconds after midnight the coach had completed travelling that further distance, or it may be that the wheels had locked up on impact. If the brake signal was lost because of circuit failure, it does not necessarily mean the brakes, which were air brakes (p.121) were released at that point, and in any case they would not have released instantaneously.
The other point to be kept in mind in interpreting Exhibit 9 is that what it records is like a series of snapshots of these features of the bus taken at one second intervals. It shows the position at those intervals, but does not show when between those points the important events occurred. The application of the brakes would have been at some point between the 18 second and the 19 second lines, but it could in theory be almost anywhere between those times. Similarly, the point of impact was somewhere between the 21 second and 22 second lines, but again it could have been almost anywhere in that period. Strictly speaking therefore, what this reveals is that the time between the point where the driver applied the brakes and the time of impact was less than four seconds and more than two seconds.
Calculations of Braking Time
The fact that there is no reduction in the engine speed between the 17 second and the 18 second lines suggests that by the time of the 18 second line the driver either had not taken his foot off the accelerator or had only just taken it off, and the absence of the brake application indication on the 18 second line shows that he had not actually pushed down the brake pedal at that point. There was, however, a decline in road speed, that is wheel speed, of 12 kph between the 18 second and 19 second lines, which indicates that by the 19 second line the brakes were having some effect. That is a deceleration rate of 12 kph per second, not insignificant but less than the rate of 15 kph per second at which the system would record a heavy brake application. That suggests that there was not a heavy brake application for the whole of that one second period, but there is a take up time lag in the brake system itself of about half a second according to Sergeant Ruller (p.74) so I would expect that there would be about half a second between the time when the brake circuit switch was activated and the time when the brakes took full effect and began to achieve some significant reduction in the speed of the wheel. This period of about half a second was also referred to by Mr. King, although he explained it slightly differently: p.174. On this basis the brake pedal must have been applied within half a second of the 18 second line.
In Exhibit 10, Senior Constable Blanchard did a calculation on p.23 which shows an acceleration rate of minus 5.3 metres per second per second, derived from the coefficient of friction calculated on the previous page. On the basis of acceleration (actually deceleration) of 5.3 metres per second per second, a change of speed from 94 kph to 60 kph would take 1.8 seconds. However, this figure may not be accurate, as it is based on an assumption as to the relationship between the coefficient of friction for car tyres and that for a heavy motor vehicle such as a bus. Sergeant Ruller thought that a bus should obtain a coefficient of friction of about 80% of that of a car: (p.83) rather than the 75% used by Senior Constable Blanchard, but that figure does not greatly change the braking time. These calculations were apparently done using a coefficient of friction for wheels skidding over a road, and the coefficient may well be different if the wheels are still turning, but the tyre surface is slipping relative to the road. It appears from p.21 of Exhibit 10 that Senior Constable Blanchard did his analysis on the basis that during the relevant period the wheels were locked and sliding across the roadway, but it is clear from the evidence of Mr. Wade that the correct interpretation of the computer record is that the wheels were not locked. I think that makes it difficult to accept the reliability of the calculations in Exhibit 10. Mr. King said that if the wheels were still turning this would increase the retarding force: p.191.
It seems to me that the brakes must have been applied in the sense of the brake pedal being pressed at least two and a half seconds before impact, and possibly up to four seconds. This gives rise to the question of whether the bus might have been braking less severely prior to the beginning of the skid mark. I suspect that this is not the case, because I think it likely that when confronted with an emergency situation such as this, the driver would have simply braked hard, and that seems to have been the assumption made by all the experts who investigated this accident. I think therefore that it is probably reasonable to assume, as did Sergeant Ruller in the preparation of the second diagram in Exhibit 14, that for practical purposes the braking started at the end of the skid mark, and at this point the vehicle was travelling at about 94 kph. At this point the driver had certainly reacted to the situation, and the time period between then and the moment of impact is not of great importance. The calculations in Exhibit 10 (although not accurate) suggest that the true braking time was closer to 2.5 seconds than to 4 seconds.
Location of Reaction Point
It is clear from the examination of the diagram in Exhibit 14 that at the beginning of the skid mark the front of the bus was a little under 40 metres past the 40 kph sign. The point at which the driver began to apply the brakes would be about half a second earlier, to accommodate the brake lag time, that is about 13 metres earlier[2], and that means that he would have reacted some time prior to that. Reaction times of two and two and a half seconds were spoken of in the evidence, e.g., in Exhibit 5 and p.74; on the basis of the two second reaction time he registered the hazard (p.75) 52 metres earlier, while two and a half second reaction time would have him registering the hazard 65 metres earlier. That is 27 metres and 40 metres before the front of the bus came to the 40 kph sign, (i.e. 100 metres and 113 metres from the pont of impact, allowing 35 metres skid before impact) but at a point where in either case the sign would have been readily visible. Mr. King said that the reaction point was 120 or 130 metres from the point of impact (p.180) just past the 60 kph sign: p.182. In Exhibit 5, p.16, he gave a position of the vicinity of the 60 kph sign, about 150 metres from the side track entrance. The 60 kph sign is actually 170 metres from the point of impact, or 140 metres from the beginning of the curve into the side track. Mr. King's figures are not correct. The skid marks do not start until about 130 metres past the 60 kph sign, 5 seconds at 94 kph. The driver reaction time plus brake reaction time was not 5 seconds. Mr. King's location of the reaction point near the 60 kph sign is clearly wrong and I reject it. This must cast serious doubt on his explanation of the accident, and what caused it. Sergeant Ruller thought that the reaction point was just over 100 metres from the point of impact, which is consistent with my calculation: p.78.
Why Did the Driver React?
From either 27 metres or 40 metres away the 40 kph sign would have been readily visible to the driver, even if his headlights were on low beam: Exhibit 12. On these calculations, at the closer point the front of the coach would have been just under 100 metres from the unidirectional markers and detour signs and at the earlier point would have been 110 metres from them. On the basis of Exhibit 12, if the lights were on low beam it is unlikely that these would have been seen by the driver at this distance, although they would have been readily visible if the lights had been on high beam, with or without driving lights. Indeed, they would have been visible at a much greater distance if the lights were on high beam, in view of the figures quoted by Dr. Jenkins, who said they would probably have been visible at above 150 metres (p.210). Mr. Beard thought they would be visible in a high beam at 250 metres, well before the 60 kph sign, but Mr. Halloran spoke of seeing them around the time he saw the 60 kph sign: p.128.
However, by the 60 kph sign the driver of the coach would have been able to see either the headlights of the B-double coming out of the side track, or at least glare coming from them. He therefore should have dipped his lights, and even if he did not, this glare might well have reduced the extent to which the unidirectional markers and detour sign would show up.
It may be, of course, that he simply saw the 40 kph sign, which would have been readily visible in either of these positions, and reacted to that. However, there is by this stage a competing cause for a reaction, namely the sight of the B-double coming towards him.
It appears from the diagram in Exhibit 14 that at the point of impact the front of the B-double was at about the point where the side track lane crossed the edge of the southbound lane on the old highway. There would be virtually no difference in height from the highway at this point, probably no more than the amount of the camber of the road. This follows from the absence of any indication of any lowering of the previous highway surface. According to Exhibit 18, the level of the side track was 750 mm below the level of the highway a fairly short distance back from the point of impact, although the actual distance was probably a bit further away, because my impression from the photographs is that the side track did not drop quite as quickly as the design provided for. See in particular the tractor on the side track in photographs 24 to 30 in Exhibit 3. Of course, Mr. Allen was not observing the lights from the surface of the highway; it is not clear what his eye height was above the road, but it probably would have been about two metres. From Exhibit 18, it appears that with an eye height of about two metres around chainage 110725, which is about 100 metres from the point of impact, it should be just about possible to see headlights 750 mm above the road at about chainage 110600 which is about 20 metres past the point of impact. Unfortunately, it is not clear how much faster the bus was going than the B-double, but it is quite possible that the B-double covered only 20 metres in the time it took the bus to cover 100 metres, so it is possible that what Mr. Allen reacted to was seeing the headlights emerge over the crest of the side track.
By the time he was past the “Reduce Speed” sign there would have been no obstacle to his seeing the headlights as soon as they came over the crest of the vertical curve in the side track. It is tempting to conclude (as Mr. Beard did: p.297) that it was this that prompted a reaction from Mr. Allen and caused him to slam on the brakes, but after thinking about the matter further I still find that difficult to understand. The headlights would not have emerged without warning from previous blackness. Apart from anything else, the prime mover had other lights, marker lights, which were higher, including orange lights at the top of the cab which should have been visible a couple of seconds earlier: Exhibit 24 and p.278. Besides, the glow from the headlights should have been clearly visible well before they appeared over the crest: p.278. It should also have been obvious that the glow was coming from somewhere off to the left. Mr. Halloran said that the location of the side trace was visible between the 60 kph and the 40 kph signs, presumably in the general vicinity of the “Reduce Speed” sign, and I would have thought that the fact that the crest was outlined by having the glare of headlights coming up behind it would if anything have assisted in its identification and location, rather than making it harder to locate. Mr. King said that at the reaction point, Mr. Allen perceived the need for an emergency speed correction, but he did not know why: p.182.
Another consideration is that Mr. Allen was not particularly familiar with this road, and I think it follows that he would not have been driving round the corner in the expectation of finding simply a straight stretch of highway on the other side. Even if the was not expecting a side track, he had no reason to be expecting anything in particular. The position was that he just did not know where the highway went once it disappeared out of the range of his headlights, although marker posts and lines would provide some guidance as to where it was going. If his lights had been on high beam, he might have seen the old highway stretching out across the bridge as he came round the latter part of the curve, but in those circumstances he would also have seen the unidirectional markers and detour sign.
If the lights were on high beam, he should have seen that the road was closed well before the “Reduce Speed” sign, the point suggested by Sergeant Ruller: p.73. In Exhibit 13, the 40 kph sign, the “Reduce Speed” sign and the 60 kph signs are all visible, although facing away from the camera, and the camera is positioned to the right of what would have been the position of the third unidirectional hazzard marker, the one demolished in the collision. It seems to me necessarily to follow from Exhibit 13 that a driver at the position of the 60 kph sign would in daylight have a clear view of the unidirectional hazard markers, and would probably have such a view for some distance before he came to that sign. That sign is about 170 metres from the point where they block the highway. The angle between the tangent opposite the 60 kph speed sign and the line of sight to the unidirectional hazard markers, measured from the diagram in Exhibit 14, is about 7°. Dr. Jenkins calculated an angle of divergence of 8° at a distance of 150 m, although that assumed a continuation of the 700 m radius curve: p.214. Either is within the field of view given by Dr. Jenkins of 10° (Exhibit 12), and at either angle there was enough light from a high beam to make the signs visible: p.214.
Although at a distance of 170 metres the driver would probably not have been able to read the “Detour” and “Road Closed” signs, the fact that there was something on the road ahead ought to have been visible to him at least by the time he came to the 60 kph speed sign, if not sooner. I think that Mr. Halloran's evidence should really be understood as his having seen the signs blocking the highway between when he saw the 60 kph sign and when he saw the 40 kph sign, rather than when he came to them. From a point near the centre line of the highway opposite the 60 kph speed sign, the 40 kph sign would actually have been slightly to the left of the line of sight to the unidirectional hazard markers: Exhibit 3, photograph 24. At this point a driver had ample time to react to the obstacle, although if he had ignored the earlier signs and was still travelling at 100 kph, he would have to brake hard. The 60 kph sign was 170 m from the barrier, which is the stopping distance given in Exhibit 4 from 100 kph: para 2.5.22. However, the driver did not have to stop, only reduce his speed to 40 kph, or even the higher speed at which he could negotiate the entry to the side track. So even for a driver who did not reduce his speed until he actually saw a hazard in the road ahead (p.281), this design was reasonably safe during the day (p.83) or at night, so long as the headlights were on high beam. A driver who continues at 100 kph at night with his headlights on low beam until he actually sees a hazard is asking for trouble, since his effective vision of 50 metres (Exhibit 12) is less than his vehicle will travel during a reaction time of 2 seconds. Such behaviour cannot be reasonably accommodated by any design.
It seems to me that that is perhaps the most plausible explanation of how the accident occurred; notwithstanding the various signs, Mr. Allen was not going to reduce his speed until he had immediately in front of him a road condition which required a speed reduction, that is he was driving on the assumption that it was not in fact going to be necessary to slow down, and by the time he realised that that assumption was unjustified he had reached a point where it was too late just to reduce speed and enter the side track without crossing the centre line. That is, it was too late to avoid colliding with the oncoming B-double. If the B-double had not been there, he would have had his lights on high beam and would have seen the obstruction to the highway, and realised that it really was necessary to slow down, in sufficient time for him to have done so, although he might have needed to brake heavily, as he apparently did at other roadworks north of Mackay, according to Mrs. McGregor. I think the most plausible explanation for his behaviour is that, having dipped his headlights to accommodate the oncoming vehicle, he did not then make allowance for the fact that this diminished his capacity to see what was in front, and made it appropriate for him to reduce his speed. He did not brake until he realised, too late, that he was coming to a curve he could not go around at 94 kph. If this is the case, the only way in which these roadworks could have been changed to accommodate his behaviour would be the entrance to the side track had been designed so that it could be taken at highway speed.
Allegations of Negligence
The various particulars of negligence and breach of statutory duty relied on are set out in para. 6 of the further amended plaint. Some of these can be shortly dealt with.
During addresses, counsel for the plaintiff abandoned particulars (i) and (ii) of para. 6(b). Paragraph 6(b)(iii) and (v) are based on the proposition that the “Detour Ahead” and “Reduce Speed” signs were located close to the ground rather than in an elevated position, a characteristic of the other signs. These allegations were supported by the evidence of Senior Constable Blanchard, but in respect of this point I have rejected that evidence and find these signs were essentially the same as the other signs, so that the factual basis for these allegations has not been made out. In any case, in having the signs close to the ground would have improved their illumination by the head lights of the bus, according to Exhibit 12, and I cannot see how the sign would be any less visible because it was a few feet lower or higher. The risk associated with placing a sign too close to the ground is that it would be obscured by grass or something else beside the road, but that did not occur with these signs: p.52. Even if I had been satisfied that the signs were close to the ground, I would not regard that as negligence or a breach of statutory duty, nor could I be satisfied that this was a cause of the collision and damage.
Paragraph 6(b)(vi) is based on the proposition that unidirectional hazard markers rather than lateral shift markers were used to obstruct the southbound lane of the highway where it was closed. In my opinion the reflectorised nature of the unidirectional hazard markers made them a superior warning sign for that purpose, and I do not consider that the fact that they were white rather than yellow would have produced any confusion. The fact that this matter is suggested by Sergeant Ruller (Exhibit 14, p.23) and Mr. King (Exhibit 5, p.14) as being of some significance merely detracts from the weight of their evidence. In any case, it seems to me that the unidirectional hazard markers are irrelevant to the cause of the collision: if the coach's lights were on low beam, Dr. Jenkins' evidence shows that the driver had begun to react prior to the point where they would have been visible in his head lights, and if his lights were on high beam, he failed to react until well past the point where they were first visible in his head lights.
Paragraph 6(e) makes various complaints about the barrier placed across the southbound highway just past the entrance to the side track. Leaving aside the question of whether that barrier ought to have been better lit, that is marked with the flashing yellow lights, in my opinion it is clear that the nature and characteristics of that barrier were really irrelevant to the accident. I am satisfied that there were, prior to this accident, three unidirectional hazard markers which effectively blocked the full width of the southbound lane of the highway (p.37), although if there had not been all three it would, in my opinion, be irrelevant to the circumstances of this accident. As to the proposition that these were inadequate because they did not indicate adequately that there was to be a left turn into the side track, I cannot see that they could reasonably be interpreted as indicating anything else. They required a vehicle to pass to the left of the barrier, which is where the road went. I do not consider that the barrier was inadequate in this respect, or indeed if it was that it had any causal relationship with the accident.
Paragraph 6(f) complains of a failure to maintain duplicate signs on the western side of the Bruce Highway, on the basis that it was more difficult to see the signs on the left because of the curve to the left. The evidence of Dr. Jenkins in Exhibit 12 in my opinion is a complete answer to this allegation; the practical effect of his conclusions, which I accept, is that, whether the lights were on high beam or low beam, the visibility of the signs on the left hand side inside the curve would have been effectively as good as if the signs had been on a straight road. For practical purposes by the time the driver was close enough to the sign to identify and react to it, the sign would have been clearly illuminated by the headlights. There would as well be a tendency for a driver to be looking slightly to the left around the curve: p.296.
The evidence was to the effect that duplicate signs are usually used only in circumstances where there is more than one lane in each direction, and where there is a risk of signs being obscured by traffic in the other lane: pp 250-1. Although there is a possibility that an individual sign might be missed for some particular reason, in my opinion that is adequately guarded against by the fact that a number of different warning signs were provided. It was not consistent with accepted design practice to provide a second set of warning signs on the right hand side of the road, and I am not persuaded that there was a failure to take reasonable care by not providing them. I accept the evidence of Mr. Beard that they were not necessary for a proper warning: Exhibit 11. They are not required by any statute or the manual, Exhibit 4.
Some point was made about the possibility of a driver missing the signs because of the blinding effect of headlights of an oncoming vehicle or vehicles. Because of the curve of the road, the headlights of an oncoming vehicle would have tended to be less blinding than usual and the blinding effect would have been avoided to some extent by looking slightly to the left of straight ahead, towards the signs. In any case, Mr. Halloran's evidence was that the first vehicle he crossed after passing the bridge was the B-double that was involved in the collision, which means that it is unlikely that there was a vehicle travelling the other way that was crossed by this coach while rounding this curve. He also said the traffic was light that night. There is no evidence that there was such a vehicle there, so any blinding effect on Mr. Allen is, I think just speculation and should be disregarded.
Was The Design Deficient?
Neither Mr. King nor anyone else suggested that that was necessary or appropriate to design the side track so that it could be taken at highway speed. Clearly the manual, Exhibit 4, does not require that, because it contemplates a reduction in speed to 60 kph. I do not think that it is reasonable to design and construct side tracks so that they can be used at highway speed, otherwise the cost of doing roadworks would substantially increase, and that would mean that from the resources available fewer works could be undertaken. In my opinion cost minimization is a legitimate consideration when designing roadworks. Since roadworks generally produce a safer situation than the state of the road before the works are undertaken, reducing the number of sites where works are undertaken would be likely to reduce the overall safety of the system. The entrance to the side track was consistent with a speed of 60 kph, and its design was therefore consistent with accepted standards of design for side tracks around roadworks. That is not conclusive of an absence of negligence, because it may be possible to show that in principle something consistent with existing practice nevertheless fails to take reasonable care to avoid injury to road users. However, in the present case I do not think that there was any such failure. Mr. King in his report, Exhibit 5, complained of the use of 40 kph zone by reference to s.4.3.3 of the manual, Exhibit 4, which provides that in rural areas road conditions suitable for travel at at least 70 kph should be maintained through the work site. It does however also note that a lower speed may be necessary at bridges. Mr. King speaks of increasing the speed limit by the provision of larger radius horizontal curves (p.11 of Exhibit 5) but the horizontal curves allowed a design speed of 75-80 kph (Exhibit 17); it was the vertical curve over the floodway which required the particularly low speed, and that would have been a much more difficult and expensive task to remove. Mr. Crozier said that with normal superelevation the 150 metre radius curve was considered safe at 75 to 80 kph traffic: Exhibit 17.
Mr. King's proposition, that the entrance of the side track should have been extended so that it could be taken at a higher speed. may have been influenced by his apparent assumption that it was the horizontal curve which dictated the lower limit of 40 kph, which is not the case. It would therefore only serve to allow a faster entry to a slow side track, something which would have made it more of a hazard, for the reasons given by Mr. Beard, which I accept: p.280, 285. In short, a driver who was not going to slow down until he had to may well not slow down to enter the side track, and there would be fewer visual clues thereafter to encourage him to slow down since speed tends to be governed by horizontal alignment. Changing this aspect of the design would simply move the hazard along the side track, not make it safer overall, so it was not a change required by a duty to take reasonable care for the safety of road users. It may have avoided this collision but may have caused other accidents. I therefore reject Mr. King's proposition, and find that the design was not negligent because of the location or curvature of the entry to the side track.
Another difficulty with Mr. King's analysis was his proposition that, at the speed the coach approached the curve, it could have been negotiated had the driver seen this as an option: p.189, and see p.7 of Exhibit 6. This, I think, is clearly wrong, but may be linked to Mr. King's erroneous view as to where the driver first reacted to what lay in front of him, that is his location of the reaction point. The second diagram in Exhibit 14 shows that at the beginning of the skid mark the front of the coach was about to enter the curve, and at that point it was travelling at 94 kph or something close to that speed. It was certainly travelling too fast to take the corner properly. Although after the heavy braking it had reduced its speed to a point where it could have taken that comer, by the time that had been achieved, the coach had already failed to take the corner, had crossed the centre line of the side track and indeed collided with the B-double. I think that Mr. King is quite wrong in suggesting that the driver had the option of simply turning into the side track at the speed at which he arrived at the beginning of the curve to it, although I think it is correct to say that if he had reduced his speed only a relatively small amount, about 20 kph, that would have been an option for him.
In my opinion, in the present case it was reasonable for the defendant to use a floodway for the side track to cross Cherry Tree Creek. Once that point is arrived at, the depth of the creek and the steepness of the banks dictate the diameter of the sag curve, which required the 40 kph speed limit. Having such a relatively low limit in place should actually make the whole side track safer, because the more vehicles can be persuaded to slow down, the less likely it is that they will get into difficulties while negotiating the side track. The similar design at the three other sites apparently did not produce any problems. The question of whether the side track should have been 40 kph or 60 kph is, I think, really irrelevant in this case; Mr. Allen did not slow down to 60 kph either, and if he had the accident would not have happened. In the context of this accident, the only significance of the 40 kph sign is that it should have been an additional warning that it really was completely inappropriate for him to be continuing at highway speed. Since I place the reaction point on the approach to this sign, it is possible that it was this sign that he reacted to, and if so, if it had not been there (because the side track was designed to accommodate a higher speed by increasing the radius of the sag curve), he would have braked even later and the accident would probably have been worse.
In my opinion, it was not negligent for the defendant to have designed and constructed a side track where the entrance to the side track was by a curve which had a radius such that it was necessary for a driver to slow down to 75-80 kph in order to negotiate the curve. The coach did not negotiate the horizontal curve, and therefore it is in my opinion irrelevant whether the other aspects of the design should have been changed so as to enable a higher speed. It would not have prevented this accident if this whole side track could have been traversed at 80 kph. In the combination of circumstances prevailing this coach still would not have entered it safely and avoided the collision. It seems to me that any deficiency in the design in relation to the vertical curvature is for that reason irrelevant. The coach came to the horizontal curve first, and failed to negotiate it. In any case, in my opinion there is no evidence of negligence in relation to the use of vertical curves.
Were the Signs Adequate?
Given that a speed reduction was necessary, it becomes a question of whether the defendant took reasonable care to give an oncoming motorist proper warning of the need to reduce speed. What was provided was advance warning of roadworks, a “Detour Ahead” sign, three successive signs limiting and reducing the legally permissible speed, and a large and very prominent “Reduce Speed” sign, as well as reflectorised barriers across the highway and “Road Closed” and “Detour” signs at that point. That is a lot of warning, which distinguishes this case from one where there is little or no warning given of the need to reduce speed. Obviously there will be people who do not react appropriately, even though so much warning has been given.
There were a number of tyre marks at this point which it was argued suggested that there were problems with the warning system: p.258, p.289. But the only evidence of people failing to enter the side track and colliding with the signs placed across the highway was that this had occurred at the southern approach to Station Creek, further to the south, where there was 500 metres of straight flat road leading up to the obstruction, so there would have been ample visibility. The fact that some people still ran into it under these conditions merely serves to demonstrate that there are some drivers for whom no amount of warning is going to be enough. There is no evidence as to the circumstances under which these other tyre marks came to be on the road. I think I can take judicial notice of the fact that some drivers on country highways do exceed the speed limit from time to time, so it is likely that on this relatively busy highway from time to time a driver would come along who was driving far too fast. Such a driver may well have to brake severely, particularly if he has not reacted appropriately to the earlier signs. On a road which was carrying something like 1,000 vehicles per day, and given the vagaries of driving habits, a few tyre marks are not surprising. I do not think that reasonable care requires the provision of such a degree of warning that no one fails to respond adequately.
Sergeant Ruller was critical of the distance between the 60 kph and the 40 kph signs, which he said should have been 200 metres apart: Exhibit 14. Mr. Halloran also commented on the fact that these signs seemed to come up quite quickly. In the manual, note 5 to 5.26 in p.3-101 suggests that speed should be reduced in 20 kph steps with approximately 500 metres between successive steps. That seems a long way, and was not achieved by this installation even between the 80 kph and 60 kph signs which were about 220 metres apart. Mr. Halloran did not experience any difficulty with the relative position of those two signs. Mr. Beard, a traffic engineer, expressed the opinion that the signs, although not spaced in accordance with the manual, were considered to be satisfactorily spaced in accordance with good traffic engineering practice: Exhibit 11. He said it was a pretty good design (p.275) and I am not persuaded to the contrary, so I accept this evidence.
Mr. King said that for the 170 metre radius curve actually constructed, 66 kph should have been well within the cornering capabilities of the coach: p.15 of Exhibit 5. He did not say what the maximum safe cornering speed for the curve was, but assuming it was 66 kph the effective warning sign for that curve was the 60 kph sign which was about 140 metres from the point where it began. In my opinion that was a reasonable distance and the defendant was not negligent in placing the 60 kph sign too close to the entry to the curve. The real significance at this point of the subsequent signs, “Reduce Speed” and 40 kph, were that they should have emphasised that it was really necessary to slow down. The 40 kph sign, strictly speaking, did not have to be complied with until a driver arrived at the beginning of the sag curve on the side track. It appears from Exhibit 18 that this was almost 100 metres past the beginning of the curve into the side track, so that the 40 kph sign was about 140 metres ahead of the point where that speed limit really mattered. In my opinion, that was reasonable, particularly in circumstances where the 40 kph speed was dictated by comfort criteria. Once a person began to negotiate the side track, its nature would, I think, be fairly obvious. I am not persuaded that there was any negligence in the spacing of the signs, or their distance from the side track. In any case, unless it was the 40 kph sign that Mr. Allen reacted to, the position of the signs was not a cause of the collision.
Regulation 16 of the Traffic Regulation 1962 requires any official traffic sign to be in accordance with the manual of uniform traffic control devices. Counsel for the plaintiff conceded that it was not the effect of s.16 that any departure from the manual gave rise to an actionable breach of statutory duty, and it seems to me that is plainly correct. The effect of s.16 is, I think, really to pick up the various provisions in the manual defining the various signs, rather than seeking to impose on the traffic authorities an obligation to comply strictly with the manual, a breach of which is actionable in damages.
The next question is whether some additional sign or signs should have been provided. In Exhibit 5, Mr. King suggested that there would have been an advantage in using a curve warning sign (W1-3(L) in Exhibit 4) on the basis that there would have been difficulty in perceiving the curve in the road, that is, where the road went. According to figure 3.11 in Exhibit 4, such a sign is used in conjunction with unidirectional hazard markers for a substandard curve, or where road geometry may prevent perception of the curve, e.g., where a crest precedes a horizontal curve. In the present case, the curve preceded the crest, and clause 3.4.7 suggests that even if the curve follows the crest, unidirectional hazard markers or raised pavement markers are an alternative to the curve warning sign. Pavement markers (cats eyes) were provided. None of this suggests that the manual regards the provision of a curve sign at this point as essential. Mr. Beard thought that, if there was going to be any additional sign to the ones provided, a curve sign was the most appropriate: p.299. However, it was not common practice in 1993 to do so, and he clearly did not regard it as essential to a proper design. He also warned about the dangers of over-signage (see p.274) which seems reasonable and I accept this evidence. It is not the case that more is necessarily better.
It seems to me that the difficulty with the argument of Mr. King, that there was a failure to perceive the curve in the road, is that it largely ignored the presence of the oncoming B-double. There is no obvious reason why the driver would not assume that the B-double was on the road coming towards him. Mr. King seems to have proceeded on the basis that at the time when Mr. Allen began to react, the B-double would have been effectively concealed by the dip on the side track: p.13 of Exhibit 5. See also p.188, where it is suggested expressly by Mr. King that at the point where Mr. Allen made his decision he may not have had any view of the B-double. As I have explained, in my opinion, this is wrong; this error may be partly because of Mr. King's location of the reaction point in the vicinity of the 60 kph sign, which in my opinion is erroneous. Even at that point the headlights of the B-double should have been making their presence felt, and they should have indicated that there was something coming off to the left. I think that his analysis places too little significance on the approach of the B-double.
On the other hand, with further consideration, I think that my question to Mr. King at the foot of p.196 was also unhelpful as a possible explanation for the accident. The driver did not come around the corner and find the B-double in his path, in a position where he could not avoid it. The “corner” was actually a very gentle curve, and the coach came around it, in the sense that it got to the point where it had reasonable line of sight to the obstruction of the highway, about opposite the 60 kph sign, probably before the headlights of the B-double had come over the crest from the dip, and at that point there was not a large truck entering the highway from the left. It also, I think, overlooked the fact that there was nothing to indicate that the truck was entering the highway at that point, instead of just driving along it.
Various other suggestions were made as to the provision of additional signs. In oral evidence, Mr. King suggested a diagrammatic sign or a symbol sign to indicate a side track passing around an obstruction on the normal route. Such a sign is not found in the manual in this context. It is not used in figure 5.20, nor in the modified version of this in figure 1 of Mr. King's report, which provides for the additional speed signs. I accept that it would not have been seriously considered in 1993: p.284. I think that there is a potential for such a sign to be confusing and distracting; if a driver is concentrating too much on working out what a sign means, his attention may be distracted from things which are coming into view further away from him. Warning that it was necessary to divert to the left was, I think, given by the unidirectional hazard markers and the associated “Detour” and “Road Closed” signs. The pavement was marked with reflectorised lines, including a double centre line and “cat's eyes”. Advanced warning of the detour was given by the “Detour Ahead” sign, at night perhaps the most important sign p.87. Had the truck not been present and the coach's lights been on high beam, these would have provided, I think, ample warning of the need to turn left into the side track; because of the approach of the B-double, the glare from its headlights, and its marker lights, should also have provided ample warning of the location of the side track.
In a situation like this, it is always possible to point to some additional sign which could have been put in place. It is always possible to do more, and the issue as to negligence must be whether what the defendant did was reasonable, not whether what it did was everything that could possibly have been done in the circumstances: Hornberg v. Horrobin (unreported, Court of Appeal, Appeal 10477/97, 18.9.98) at para 23 per Chesterman J. A good guide to what is reasonable is what is required by accepted engineering practice, so that if it appears that no reasonably competent engineer would have failed to provide some additional warning, that is a useful indication of negligence. There is no evidence to that effect in the present case. At best, Mr. King suggests that further warning signs could have been provided, and that in his opinion further should have been provided, but that is not, in my opinion, sufficient to prove negligence. For reasons mentioned earlier, I am wary about Mr. King's evidence generally, and am unpersuaded by it. I prefer to accept generally the evidence of Mr. Beard (Exhibit 11) who said that the combination of traffic control devices at the detour was adequate, indeed pretty good: p.275. I also think there is considerable force in his evidence about the importance of the need to avoid over-signage: p.274. Dr. Jenkins also thought the signs gave sufficient warning: p.210. In my opinion, the plaintiff has not shown that a failure to provide some additional sign or signs amounted to a failure to take reasonable care to provide a proper warning to road users, so as to be negligent.
Failure to Maintain Flashing Lights
The remaining issue is as to the provision of flashing yellow lights in conjunction with the signs. The design for the signs made provision for these except on the speed limit signs, and such flashing lights are shown on the “Roadwork 1 km Ahead” and “Roadwork Ahead” signs in figure 5.20 in Exhibit 4. On the other hand, they are not shown on the “Detour Ahead” sign, and para. 3.10.2 dealing with the sort of lamp used in the present case speaks of their use in permissive terms rather than mandatory: “Unidirectional flashing yellow lamps ... may be used to draw attention to a particular sign, barrier or hazard and shall be so located that not more than two lamps are visible to approaching traffic at any one time. They are mounted above the sign.” (emphasis added). That this is the correct interpretation is confirmed by the evidence of Mr. Beard in Exhibit 11, para 3.3.5. The manual suggests that some lamps should be provided, but not too many. In the present case, there is evidence which I am prepared to accept that there was at least one working flashing lamp on the “Detour Ahead” sign, and one on the unidirectional hazard markers, although I think the latter is really irrelevant in the context of this accident. Accepting that the other advance warning signs did not have operational lamps on them, in this respect they did not comply with the design. They also do not comply with the manual in being mounted under the signs rather than on top of the signs, but I think that requirement is simply because they are more likely to be obstructed at a lower level. In the present case they were not obstructed, so that issue is irrelevant. A flashing light is, I think, of no greater significance and no more likely to be seen if it is mounted above the sign than mounted below the sign, and in each case it obviously draws attention to that particular sign.
There is evidence that the flashing lights were put in place in accordance with the design, except that they may well not have been put on the “Reduce Speed” sign. That is a fairly large and quite prominent sign, as appears in the photographs, and would I think have hardly needed flashing yellow lamps to add to its emphasis. In a sense, the most important sign was the “Detour Ahead” sign, because that was the sign that was giving a warning of a hazard which was certainly present: p.87. An approaching driver might have thought that the other warnings of roadworks did not apply in the middle of the night, because it was unlikely that work would actually be in progress at that time, although a reasonably careful driver still ought to reduce speed since a road where works are being undertaken is unlikely to be as safe as one not being worked on. But a detour is not going to go away at night, so this sign ought to have alerted Mr. Allen to the fact that the roadworks had a particular feature which was relevant to him.
There was evidence that it is difficult to maintain flashing yellow lights at roadworks because people take them or their batteries or deliberately damage them: p.83, p.312. I accept this evidence. No doubt there are limits to what a reasonably careful highway authority should have to do by way of providing and maintaining flashing yellow lights. What was done to maintain them in the present case was to service them once a week, preferably on Thursday or Friday so that everything would be working before the weekend: p.312. That is understandable, and probably a sensible precaution given the evidence that traffic was unusually heavy on a Sunday, and may mean that they are particularly likely to be defective on a Thursday night, when this accident happened. Whether this is a reasonable procedure I think depends a good deal on how it went, but the only evidence of this was that no checks were made at night to see what lights were or were not illuminated. That was understandable, but it did perhaps mean that there was a greater need to check carefully during the day time. There was no evidence either directly or indirectly from the person who actually checked these lamps as to what he typically found when he did so. If he usually found that there were few lights still functioning normally when he checked them that should have suggested that there was something wrong with the system.
The problem in this case was not explained by lights being vandalised or stolen; according to Senior Constable Blanchard the lights, or at least most of them, were still there, just not working. There is no evidence that any of them were damaged, and so far as I know they were not working because their batteries were either missing or run down. If batteries were regularly disappearing from the lights at this site it may have been difficult for the defendant to do anything about it, but there is no evidence of that. The batteries should have lasted for two weeks: p.315. There was no evidence that there was any warning given about when the batteries expire, or anything to show the system was not simply that if the battery was still functioning when it was inspected on any particular week it was left in place and only replaced once it had expired.
There was also evidence from Mr. Halloran that this particular set of roadworks was unusual in its absence of such flashing yellow lights: p.140. They were usually present, he said, if there was any sort of hazard to traffic at night, or at roadworks actually in progress. No doubt in the latter situation there are a lot off lashing lights, but for a site where there was no work in progress but there was some continuing hazard, his evidence was that the absence of such lights at this site was unusual: p.148. I am wary of Mr. Halloran's evidence because he does seem to have overlooked one flashing light which I am satisfied was present on the “Detour Ahead” sign, and I think that he was trying to paint this site as dangerous, but his is the only evidence of whether the site was unusual, and in the absence of evidence to contradict this I think I should accept it.
I do not think that Mr. Halloran would actually make this up, even if he is anxious to be critical of the site.
Even making allowances for the circumstances that it may be difficult to keep flashing yellow lights operating on signs warning of roadworks on country roads, it does appear in this case there were a large number of inoperable flashing lights mounted around the site, which suggests that there has been a failure to make reasonable efforts to keep them operational. The absence of any detailed evidence as to what was done to that end, coupled with the (admittedly fairly sparse) evidence that this site was unusual in this respect, suggests that there probably was a failure to make reasonable efforts to maintain the lights at this site. Although the use of such lights is not mandatory, the decision was taken to use them, and they were installed, and once that point is reached, I think that it is no answer to say that it would not have been negligent not to provide them, and the issue simply becomes whether reasonable efforts were made to maintain them: p.290 The evidence of a large number of inoperable lights suggests that reasonable efforts were notmade to maintain them, and that I think throws an evidentiary burden on the defendant which the defendant in this case has not discharged. In all the circumstances I am prepared to find that there was negligence in failing to maintain the flashing yellow lights which were in place on the signs and barriers, but which Senior Constable Blanchard found to be inoperable, apart from the one light on the “Detour Ahead” sign.
Causation: Test
That gives rise to an issue of causation, whether if they had been properly maintained this would have made any difference. This involves a past hypothetical fact, but there is clear authority from the Queensland Court of Appeal that where a court is considering the question of causation in the context of a failure to give some advice or warning which ought to have been given, the question is whether, had the warning been given it is more probable than not that the harm would have been averted: Keeys v.State of Queensland [1998] 2 Qd.R. 36; Green v. Chenoweth [1998] 2 Qd.R. 572; Hallmark-Mitex Pty Ltd v. Rybarczyk (unreported, Court of Appeal, Appeal 11009/97, 4.9.98); Hornberg v. Horrobin (unreported, Court of Appeal, Appeal 10477/97, 18.9.98). Counsel for the plaintiff formally submitted that I should instead deal with the question of causation on the basis of Sellars v. Adelaide Petroleum NL (1994) 179 CLR 332 at 351, which would require me to make an assessment of the probability that if these lights had been present, Mr. Allen would have slowed earlier, and if that was more than an insignificant possibility, the plaintiff had suffered some damage as a result of that negligence. All of these decisions of the Court of Appeal refer to Sellars v. Adelaide Petroleum (supra), they are all binding on me, so the appropriate course is for me to follow them.
The day before judgment was reserved the High Court delivered judgment in Chappel v. Hart (1998) 72 ALJR 1344. That case also dealt with the question of causation in the context of a negligent failure to give a warning or advice, but not in a way which throws any light on the present issue. If anything, it serves to emphasise that what matters is what the plaintiff can prove about the consequences if the warning or advice had been given. There is nothing in that decision which provides any basis for not following the decisions of the Queensland Court of Appeal.
The question of what would have happened if there had been more lights is difficult to answer. There would not have been a lot more lights; the design provided for two lights (the number recommended in Exhibit 4) on each of the signs except for the speed limit signs. It does not appear however that such lights were put on the “Reduce Speed” sign; they do not appear in Exhibit 3 and see p.315. Given the nature and prominence of that sign, I do not think that matters. In any case, by the time the driver got to the “Reduce Speed” sign, he should have been in sight of the lights on the “Road Closed” and “Detour” signs. I think for practical purposes there is a distinction between a set of signs with lights almost all of which are not operating and a set of signs with lights almost all of which are operating. The question is whether it would have made a difference to Mr. Allen. There is, of course, no evidence on the point from him, although had he survived his evidence on that point might not have been reliable anyway. However, if there were some explanation from him as to how he came to do what he did, and particularly what it was that he reacted to, that might have thrown some light on the question. See Hornberg (supra) at para. 17 per Chesterman J. So long as I do not know why he did not react sooner to such warning as he had, it is hard to find that he probably would have reacted sooner if something else had been done.
According to Mr. Beard, the main purpose of flashing lights is to draw attention to the signs and make them more visible, and this is less important now signs are reflectorised, as these were: p.290. Mr. Halloran's evidence suggests another purpose, showing that the signs are still applicable at night when one would not expect road works to be in progress, but that should have been apparent anyway from the inclusion of the “Detour Ahead” sign, since the detour was likely to be still there at night. It was argued for the plaintiff that operating lights would have shown that this was not a site where the detour was no longer operating. Mr. Beard did not seem to accept this proposition: p.290.
Conclusion on Causation
In all the circumstances I am not persuaded that it is more likely than not that if most of the flashing yellow lights had been operating it would have made any difference to Mr. Allen's driving on this occasion. This is not a case where there was little or no warning given; there were numerous signs which were readily visible, and he must have chosen to disregard them. There is no sufficient reason to think that having the lights on the signs as well would have made all the difference. Mr. Halloran slowed down anyway, and obviously so did the vast majority of the other drivers who came to this site. If the real point is to emphasise that there was some continuing hazard, warning of that was given by the “Detour Ahead” sign, and an immediate warning was given by the presence of the side track, identified I think particularly by the lights coming from the B-double. Accepting that the coach headlights were probably dipped in response to the oncoming vehicle, so that he did not see the barriers and signs in the road, he may well have not seen flashing yellow lights there either. There is no evidence as to the distance over which they would have been visible at night, and I would expect them to be masked to some extent by the glare of the oncoming headlights.
The evidence of the effect of flashing yellow lights from Sergeant Ruller, a very experienced accident investigator, was (p.67):
“I think the same could be said had the flashing lights been operating on those signs, [it] is also possible that he may have taken greater notice of the signs.” (emphasis added)
I accept this evidence, with that emphasis. This is, I think, consistent with what he said on p.22 of Exhibit 14, that had the lights been operational they would have drawn attention to the signs much more readily which would ensure that drivers who may have been fatigued would have more likely recognised the importance of the signs and taken appropriate action to avoid the hazards ahead. That is to say, there was an increased likelihood of drivers' responding to the signs if they had flashing lights on them. There is no particular reason to regard Mr. Allen as fatigued. On p.7 of Exhibit 14 there is a statement: “If he was lacking from sleep after being on the road for 18 hours the same symptoms may had been evident”. That was not the situation Mr. Allen was in at the time; he had only been driving from Townsville, some six hours earlier, he had had a break of over 30 minutes near Mackay, he had come from Cairns to Townsville that morning as a passenger, which would have been less demanding than driving over the route, and he had then had a rest break in Townsville of several hours which he apparently spent in a motel room, presumably resting. Mr. Barnes gave evidence that in his experience drivers ordinarily do take advantage of rest breaks in order to rest: p.108 Mr. Halloran saw Mr. Allen during the rest break near Mackay and did not observe any signs that he was tired: p.127. There is, in my opinion, no reason to think that Mr. Allen's capacity to observe and take account of warning signs was impaired by fatigue.
There is also the circumstance that the coach seems to have got quite close to the approaching B-double before Mr. Allen reacted. Even if its headlights were not visible over the crest, the glare of its lights and its marker lights should have made it obvious for at least a couple of seconds that it was there, and I have thought it surprising all along that Mr. Allen did not react sooner to the presence of the B-double. I think Mr. King discounted this factor by his incorrect assumption that the B-double was effectively down in the dip at a time when Mr. Allen first began to react, which I think is quite wrong. During the trial, in some of my questioning I was probably making the opposite mistake, of assuming that the B-double was practically in front of the bus at the time when the driver reacted: and see p.15. After giving the matter some further thought, and doing some calculations as mentioned earlier, I think that was unjustified. It is not possible to position the B-double with any accuracy at the point where Mr. Allen reacted to something, but the most likely position is with its headlights about to come over the crest of the side track, or having just done so. As I have said, there would have been ample warning of its presence for at least a couple of seconds before that point. In circumstances where Mr. Allen did not react sooner to the approach of the oncoming vehicle, it is I think more difficult to conclude that he would probably have reacted differently had there been flashing yellow lights on the warning signs. There is also the consideration that I have found that there was one working light on the sign which was perhaps the most important sign, the “Detour Ahead” sign.
In case the matter may become relevant elsewhere, I assess the possibility of Mr. Allen's having reacted differently so as to avoid the collision if all or most of the flashing yellow lights had been working at 25%. Applying the approach adopted in the Queensland Court of Appeal decisions, however, my conclusion is that the negligent failure to maintain flashing yellow lights did not cause this collision.
I should add that for similar reasons, if I had been satisfied that there was negligence in failing to give better warning in other respects, such as in failing to provide some additional sign, a similar reasoning would have led to the conclusion that that negligence was not a cause of the collision. Sergeant Ruller conceded that the prospect of an extra sign making a difference was speculation: p.68.
Contributory Negligence
In these circumstances it is unnecessary for me to deal with the issue of contributory negligence, although I should make the necessary findings in case the matter goes further. I am not satisfied that Mr. Allen was suffering any physical or mental affliction which impaired his ability to drive. His perspiring freely was readily explained and does not suggest illness or other difficulty. His behaviour on this occasion is surprising and it is tempting to suspect that it may be explained on the basis that he had unexpectedly taken ill, but that is speculation. There is no evidence to support such a conclusion. It does seem to me however that it is clear that he either failed to keep any proper lookout or failed to respond appropriately to the various warning signs that he passed or had within his field of view, and that he drove too fast in the circumstances, and failed to slow down as he ought to have until it was too late to avoid the collision. I think the particulars of negligence in para. 5(a),(b),(d),(f) and (g) of the defence are made out.
It was also alleged that the plaintiff was negligent in failing to warn Mr. Allen of the existence of the detour at this site. It was not the plaintiff's practice to provide warnings to drivers of hazards posed by roadworks (p.106) which, on the basis of the evidence in this case, are a fairly common feature on the Bruce Highway: (and see p.101). It is true that the plaintiff's drivers were using the highway regularly, and so could have reported the presence of the roadwork and side track, and it would have been possible, although somewhat cumbersome, to provide advice to drivers who were going to use the road. Such advice would probably in most cases be a little more than stating the obvious, and in the case of those drivers who were not particularly familiar with the road, would be unlikely to tell them anything which they would not find out simply by paying attention to the warning signs. It is not as though there was some real prospect of a driver being suddenly confronted with a side track of which he was given no warning by the highway authority. In addition, such a system might encourage drivers to think that they only needed to be concerned about hazards included on the plaintiff's list, and that might increase the risk of a failure to react appropriately to a hazard which for one reason or another was not included on the list, either because it was missed or because it had only just arisen. It is, I think reasonable to expect that a coach driver will drive on the basis of the conditions of the road as they exist from time to time, (p.98) and will be in a position to respond appropriately to any hazard of the road that presents itself, and I do not think that the plaintiff had a duty to provide this sort of warning to its drivers. I think that some of the comments of the Court of Appeal in Hill-Douglas v. Beverley (unreported, Appeal 2829/98, Court of Appeal 4.1.99) are apposite. I do not think there was any contributory negligence in failing to provide to drivers warnings of roadworks.
Conclusion
It follows that the appropriate course is to dismiss the plaintiff's action, with costs. It is unnecessary in these circumstances to deal with the claim for interest. There are no factual issues involved in it.
Counsel for the plaintiff: | K.N. Wilson |
Counsel for the defendant: | D.O.J. North SC and J.B. Rolls |
Solicitors for the plaintiff: | Barron & Allen, town agents for Barry & Nilsson |
Solicitor for the defendant: | Crown Solicitor |
Dates of Hearing: | 31 August, 1,2,3 September 1998 |
Footnotes
[1]1 The “kink” suggests that there was not a smooth transition from one curve to the other, but the difference is minimal; Mr. Beard who noticed this put the alignment at 1 metre off to the side, which, given the width of the pavement, is of no consequence: p.294.
[2]2 This figure assumes no effective braking prior to the start of the skid mark. Mr. King, at pp 173-4, said that there was some braking effect in the half second prior to the skid marks, and to the extent that that reduced the average speed during that half second this distance will be shorter, but the difference is unlikely to be significant. At 88 kph (average of 94 kph and 82 kph: see Exhibit 9) the coach in half a second moves 12.2 metres.