Carlson v State of Queensland[2016] QDC 88

DISTRICT COURT OF QUEENSLAND

1. [1]
   The plaintiffs, Ms Carlson and Mr Garard, are the parents of a young man who died on 2 May 2010 as a consequence of a motor vehicle collision. The collision occurred at an intersection on the Bruce Highway near Kybong, south of Gympie, near a well-known and busy bus and truck stop at the Matilda Service Station. Ms Carlson came upon the scene of the accident and found that her son had been killed. She contacted Mr Garard. It is not disputed by the defendant that Ms Carlson suffered loss and damage in the sum of $150,000 and Mr Garard suffered loss and damage in the sum of $20,000. This is not admitted on the pleadings but was stated in open court and repeated in the written submissions of counsel for both parties. I proceed, therefore, on the basis that no adjudication is sought on the question of liability for the injuries admittedly suffered by the ‘secondary’ plaintiffs. That is, no submission was made that even if the defendant negligently caused the collision and death of the deceased driver, it is not liable for the plaintiff’s injuries. Nor has either plaintiff sought compensation beyond the stated amounts. The issues for determination are (only) whether the defendant was negligent with respect to the design of the intersection and whether certain aspects of the design of the intersection were a cause of the accident.

Facts not in Dispute

2. [2]
   Ms Carlson was born on 4 March 1971. Mr Garard was born on 16 August 1966. Their son, who was born on 21 November 1990 and was aged 19 at the time of the collision, held a provision licence.

3. [3]
   The Bruce Highway intersected with Tandur Road West and the entrance to and exit from the Matilda Service Station was from Tandur Road West. The defendant, acting through the Department of Transport and Main Roads (DTMR), was responsible for the intersection (including the design and/or construction of the intersection and its maintenance).

4. [4]
   The plaintiffs’ son was driving a white Hyundai Elantra car (I will refer to it as the white car). He had been to the Matilda Service Station on his way to work. From there he needed to travel south. This required leaving the Matilda Service Station, turning right on to Tandur Road West, crossing the north bound lane of the Bruce Highway and then turning right on to the Bruce Highway. At the intersection there were three lanes coming from the South – a left hand slip lane for vehicles travelling north wishing to turn into the Matilda Service Station; a single north bound lane and a dedicated turning lane for vehicles wishing to turn right at the intersection and head east.

5. [5]
   The white car was stopped at or behind a stop bar for about 30 seconds to one minute (so much is admitted on the pleadings – the plaintiff pleaded that the car was stopped for a couple of minutes – there was no evidence on the point). A north-bound Greyhound bus was in the left hand slip lane so as to turn into Tandur Road West. A truck described as a B-Double (hereafter ‘the truck’) had been following the Greyhound bus for about 10 minutes before the bus entered the left turn slip lane on approach to the intersection. The truck was in the north-bound lane. The white car moved across the north-bound lane of the Bruce Highway and was hit by the truck. The plaintiffs’ son suffered multiple injuries and died as a result.

6. [6]
   The following facts were also uncontested on the pleadings.

7. [7]
   The intersection was a difficult one to navigate. There were with six lanes to be observed, including a south bound turning lane, heavy traffic volumes, and a high proportion of heavy commercial vehicles. From October 2003 to May 2010 there had been 10 reported crashes at the intersection: one fatal,^[1] one requiring hospitalisation, three requiring medical treatment and one involving minor injuries. Six of the 10 crashes involved north-bound vehicles colliding with right-turning vehicles from the Matilda Service Station. Traffic modelling showed an average delay of 81 seconds for vehicles waiting to turn right from Tandur Road West under peak traffic conditions. That delay was significant and lengthy. That delay might lead to increased driver impatience.

8. [8]
   Large commercial vehicles, buses and articulated vehicles regularly travelled in the left hand turning lane of the Bruce Highway into Tandur Road West, momentarily restricting and/or blocking the continuous line of vision for drivers turning right from Tandur Road West into the southbound lane of the Bruce Highway.

9. [9]
   Drivers intending to turn right and travel south were required to stop at a stop sign and line adjacent to a median island. In 2003 the stop-line was moved three metres further back (west) from the Bruce Highway following an investigation into a fatal traffic accident. This relocation increased the time it took vehicles to make the turn from Tandur Road West into the southbound lane of the Bruce Highway.

Other Facts, from the Evidence

10. [10]
    The left hand turning lane started to diverge from the north bound lane about 190 metres before the intersection. The ‘diverge taper’ was about 70 metres longer and then there was a full width turning lane for about 120 metres. The speed limit was 80 kilometres per hour.

11. [11]
    The Stop sign and stop line were 6.2 metres west of the continuity line – the edge of the north bound through lane. The Stop sign was adjacent to the median island.

12. [12]
    Judith Down, called by the plaintiff, witnessed the collision. She gave a statement to police on 1 June 2010, which was tendered. She drove out of the Matilda service station behind the white car. She intended to turn left, that is to head north, on the highway. She saw the white car stopped at the intersection in front of her. From her position, she looked south to the turning lane. Her experience of the intersection was that the traffic coming from the south was difficult to see because it came around a bend and there was a slight rise in the road.

13. [13]
    Ms Down saw the truck coming and then she saw the white car in front of her start to move. A collision was inevitable. Her vision of the truck was not obscured by a bus.

14. [14]
    The plaintiffs plead that Ms Down’s position was different from the deceased driver’s position, so her evidence is not indicative of his view. In her police statement, Ms Down wrote that she was stopped at a give-way sign that controlled the left (north) turning lane and she was ‘quite away back before the curve in the left lane so’ she could see south along the north bound left turning lane. At trial, she confirmed she had not yet turned into the left hand turn lane and said she was more than two metres behind the stationary white car. She was behind it ‘probably only a couple of minutes’ before it moved off.

15. [15]
    I am satisfied that Ms Down was further from the continuity line than the white car. That she could see the truck before the car moved suggests that the plaintiffs’ son had the opportunity to see the truck before moving.

16. [16]
    Vaughan Moldre, called by the defendant, was the driver of the truck. He had been driving north behind a Greyhound bus. Just before the service station the speed limit was 80 kilometres per hour. The bus went into the turning lane. He stayed in the north bound lane travelling at about 70 to 72 kph. He was ‘nose to nose’ with the bus when he saw the white car behind the stop line. He made eye contact with the driver before the car moved into the intersection in front of him. He applied the brakes. He thought he skidded for 3 to 5 metres but the evidence was that the skid marks were 19 metres long. He thought he was only two seconds from the intersection when he saw the car but the expert evidence suggests he might have been about 4 seconds out from the intersection, taking into account the speed he was travelling, reaction time and the length of the skid mark.^[2]

17. [17]
    Mr Moldre was cross examined closely about his recall of the incident, the suggestion being that he did not see the white car stationary before the collision – he had not said so in his police statement nor in evidence at the inquest into the incident in September 2011. He agreed the fact was not written in his police statement, but he insisted he did see the driver ‘long enough to have two seconds before he pulled out’. Having negotiated the intersection hundreds of times and declaring himself ‘not a fan’ of the intersection, he said he always had eye contact with a driver trying to turn south.

18. [18]
    Mr Moldre conceded that an answer he gave at the inquest - “Before he took off I wasn’t watching him, sir.” - seemed to be inconsistent with his evidence at trial. He did not concede any inconsistency in another answer he gave at the inquest, “I was not looking at the man’s face as he took off.” He explained he was no longer looking at the man’s face before he moved off and confirmed he had made eye contact before the car moved.

19. [19]
    Mr Moldre said that by the time the car started to move into the intersection the bus was turning left. This is consistent with a statement from the bus driver extracted in the report of Mr Jamieson, the traffic engineer called by the plaintiffs.^[3]

20. [20]
    I accept Mr Moldre as a truthful and reliable witness. He was ready to concede an (arguable) inconsistency. But the essence of his evidence, that he became aware of the car before it started to move into the intersection, is consistent with Mr Down’s evidence and I accept it.

21. [21]
    Mr Beard, the traffic engineer called by the defendant, prepared something of a reconstruction of the collision, assuming uniform deceleration by the bus in the turning lane. His diagrams suggest the bus and the truck would have been ‘nose to nose’ about 4 seconds before the collision. I consider this to be consistent with Mr Moldre’s evidence that he was nose to nose with the bus when he saw the white car stopped behind the stop line, before it moved. By Mr Beard’s reconstruction, the driver of the white car would have first been able to see the truck starting to emerge from behind the bus about 7 seconds before the collision.

The Expert Witnesses

22. [22]
    Mr Jamieson, Consulting Traffic Engineer, called by the plaintiffs, was in many respects a persuasive witness. He conceded propositions^[4] put to him in the style of an expert who understood what the essential issue was and his duty to the court.  For example, he agreed that at most if not all intersections there was potential for visibility to be temporarily obscured by turning vehicles. But his evidence was ultimately unpersuasive. There was a perceptible shift in, at least the emphasis if not the nature of, his opinion on the design and construction of the intersection. The primary basis of his (the plaintiffs’) attack was that the position of the stop line was unambiguously outside the various guidelines and standards because it was not at the edge of the through lane. So, the plaintiff’s case was the defendant negligently moved the line from where it once was to the position it was in on 2 May 2010. While I respect the statements of both engineers that standard designs are for traffic engineers, not lawyers or the public, to read, in my opinion, the material Mr Jamieson relied on in proof of his assertion did not support it. Each diagram certainly showed a proximity between the continuity line and the stop bar but no prescribed distances. If the standards he referred to showed a relationship between the stop line and the continuity line, they showed a stronger relationship between the position of the stop line and the median island. The shift became quite clear when Mr Jamieson was referred to a diagram attached to Mr Beard’s report,^[5] which clearly shows a stop line and median set well back from the continuity line. As Mr Jamieson said, the figure:

[S]hows the elongated median of the stem of the T… with the holding line placed at the end of that median… That position allows a motorist stopped at that holding line to look to his or her right, see past… much of the left turn lane, whether or not it’s occupied… and get some view of the through lane.

Mr Jamieson’s point was that the:

[A]ctual configuration at the time of the crash [as seen in a photograph in Mr Jamieson’s report]… shows the median and the holding line further back, which would not afford a motorist stopped there to see past the left-hand slip lane. (1-64.5-25)

23. [23]
    I refer to that photograph and opinion below.

24. [24]
    Mr Jamieson’s understanding was that the sign and holding line ‘had originally been placed in alignment with the eastern kerbing of the seagull islands’.^[6] This appears not to have been the case.

25. [25]
    Mr Jamieson’s report continues:

However, it was suggested that this original position of the holding line inhibited right turning heavy vehicles into the truck stop – noting that articulated vehicles require a significant “swept path” during a turn. The sign and Stop line were thus moved to their position… sometime prior to this crash.

26. [26]
    This understanding informed his view, and in turn the plaintiff’s argument, that the ‘original design was inadequate’ and the change ‘gave priority to intersection operation over safety’.^[7]

27. [27]
    Ultimately, I think Mr Jamieson’s opinion reduced to the following. When asked why the intersection design ‘absolutely did not comply even with the Queensland MUTCD’, he said, ‘The median...., the sign, and the bar were too far to the west’. (1-63.12)

28. [28]
    Mr Beard, a traffic engineer, was called by the defendant. He sometimes seemed not as detached an expert as Mr Jamieson but ultimately I was impressed by the opinions he shared. Mr Beard said that the stop bar would usually be as far forward as it can practically be, usually at the end of the median island. He accepted visibility of through vehicles was an issue at the intersection. With knowing, he suggested the obstruction caused by a turning vehicle might occur 100 times a day. He considered the intersection required ‘considerable care as a motorist’ and that impatience may lead to errors of judgment.

29. [29]
    Mr Beard considered it would have taken the white car up to 2½ seconds to reach the point of impact, during which time the truck would have travelled 45 to 50 metres.

30. [30]
    Mr Beard reports that the advice of the DTMR to the Coroner was that the distance of the stop bar west of the continuity line varied: before 2000, between 5 and 6 metres; from 2000 to 2008, about 3.8 m and, after 2008, 6.2 metres. If that is correct, the stop line was moved 2.4 metres west in 2003.

31. [31]
    Mr Beard expressed the opinion that the drawings referred to by Mr Jamieson do not demonstrate the stop bar was in breach of standards because the guidelines and standard do not specify a distance between the continuity line and the stop bar.^[8]

32. [32]
    Mr Beard, in his report, writes that the intersection is ‘entirely consistent’ with relevant diagrams extracted from the MUTCD in that the median in the minor road (in the present case, Tandur Road West) is set back an unspecified distance behind the continuity line. The setback, he writes, ‘is not dimensioned because it depends on the overall intersection geometry and the size of the turning vehicles which are being designed for’. I do not understand Mr Jamieson to challenge that view. Both experts say the design of an intersection depends on site considerations. But I notice that in three of the four diagrams referred to by Mr Jamieson, the nose of the median island and the stop line are placed sufficiently close to the continuity line that a driver is more likely, from that position looking to the right, to be able to look down the left turning lane. In one of the diagrams, the earliest in time, the nose of the median island is less than a lane’s width from the continuity line but the stop line is drawn back somewhat. Mr Jamieson points out that, in the subject intersection, the median island and the related stop line were moved so far back from the continuity line that ‘a driver occupying a space behind that holding line when they looked to their right they’re looking up on to the paddock, as it were, not to the road at all.’^[9]  Mr Jamieson formed that view by looking at a photograph, Figure 5 in his firm’s report. The photograph is not taken from the point of view of a driver positioned at the relevant stop line but certainly leaves open the view he expresses, although in my view there is doubt that it shows what he contends for. In any case, the photograph does not suggest the intersection was significantly different from an extracted diagram from the DTMR Road Planning and Design Manual, ‘C3’ in Mr Beard’s report, and a diagram extracted from the 2009/2010 Austroads Guide to Road Design, at D17 and D20 of Mr Beard’s report. In fact, the diagrams support Mr Beard’s assertion that the intersection accorded with all relevant guides and standards.

33. [33]
    Mr Beard explained that the stop sign and line may be 6.2 metres from the continuity line ‘just as a matter of geometric design in terms of making sure that the island and the vehicles that it’s protecting are clear of turning paths.’^[10]

34. [34]
    Mr Beard accepted that an alternative design was available which would allow the median island to be wider, shifting the stop line closer to the continuity line but still allowing for the turning paths of vehicles. It is not necessary to describe the proposal further. Mr Beard agreed the change could be made but disagreed with Mr Jamieson about the usefulness of the change. It was not suggested the alternative design would be unreasonably expensive.

35. [35]
    I accept Mr Beard’s opinion that the design and construction of the intersection was not in breach of relevant guidelines.

36. [36]
    Both sides were quick to submit that compliance with or breach of standards and guidelines was neither an answer to a claim nor proof of negligence. It is a question in each case whether the appropriate standard of care has been breached. Nonetheless, evidence of the statutory and regulatory context is relevant. It might inform an assessment of what was a reasonable response to a particular risk in all relevant circumstances.^[11]

The Issues

37. [37]
    Was the defendant negligent with respect to the design of the intersection? If so, were certain aspects of the design of the intersection a cause of the accident?

38. [38]
    Answering the questions requires first a clear understanding of the nature and scope of the defendant’s duty.

39. [39]
    The statutory context within which the DTMR, the authority responsible for the design and construction of the intersection, and particularly placement of the stop sign and line, is found in the Transport Operations (Road Use Management) Act 1995.

40. [40]
    The Act provides that Official Traffic Signs shall be installed by the Chief Executive,^[12] the local government,^[13] or a ‘prescribed person’ acting with the approval of the Chief Executive or a local government.^[14]  An official traffic sign ‘means a sign, marking, light or device placed or erected to regulate, warn or guide traffic’.^[15] For the purposes of the Act, to ‘install’ is defined as ‘to construct, make, mark, place or erect, or affix to or paint on any structure, and repair, maintain, manage and control’.^[16]

41. [41]
    The Act provides that, whilst an appropriate balance must be struck between safety and cost,^[17] any official traffic sign must be installed in a way specified by the MUTCD^[18]  (the Manual of Uniform Traffic Control Devices).^[19] The Chief Executive has the power to approve the design of, and a method, standard or procedure about, an official traffic sign.^[20] The approved design, method, standard or procedure must be contained in the MUTCD or an approved notice,^[21] and be available for purchase or inspection.^[22]

42. [42]
    In Brodie v Singleton SC (2001) 206 CLR 512, Gaudron, McHugh and Gummow JJ said that an authority having statutory powers such as those exercised by the DTMR are obliged to take reasonable care that their exercise of the powers does not create a foreseeable risk of harm to road users.^[23] A foreseeable risk of harm may arise from the design or method of construction of the road.^[24] While a ‘variable factor’ might be inadvertence or thoughtlessness of a road user, ‘a proper starting point may be the proposition that the persons using the road will themselves take ordinary care.’^[25]

43. [43]
    In Thompson v Woolworths (Q’land) Pty Ltd (2005) 221 CLR 234, the Court remarked that:

‘The obviousness of the risk, and the remoteness of the likelihood that other people will fail to observe and avoid it, are often factors relevant to a judgment about what reasonableness requires as a response’.^[26]

……

‘If the obviousness of a risk, and the reasonableness of an expectation that other people will take care for their own safety, were conclusive against liability in every case, there would be little room for a doctrine of contributory negligence’.^[27]

44. [44]
    In RTA v Dederer (2007) 234 CLR 330, Gummow J, referring to Thompson v Woolworths (O'Land) Pty Ltd, said:

‘Of course, the weight to be given to an expectation that potential plaintiffs will exercise care for their own safety is a general matter in the assessment of breach in every case’.^[28]

45. [45]
    Earlier, in the same case, Gummow J said:

‘First, the proper resolution of an action in negligence depends on the existence and scope of the relevant duty of care. Secondly, whatever its scope, a duty of care imposes an obligation to exercise reasonable care; it does not impose a duty to prevent potentially harmful conduct. Thirdly, the assessment of breach depends on the correct identification of the relevant risk of injury. Fourthly, breach must be assessed prospectively and not retrospectively. Fifthly, such an assessment of breach must be made in the manner described by Mason J in Wyong Shire Council v Shirt ((1980) 146 CLR 40 at 47-48).’^[29]

46. [46]
    As to breach of duty, the Civil Liability Act 2003 provides, in s. 9:

3. 1)
   A person does not breach a duty to take precautions against a risk of harm unless –

3. a.
   The risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and

3. b.
   The risk is not insignificant; and

3. c.
   In the circumstances, a reasonable person in the position of the person would have taken the precautions

3. 2)
   In deciding whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (among other relevant things):

3. a.
   The probability that the harm would occur if care were not taken;

3. b.
   The likely seriousness of the harm;

3. c.
   The burden of taking precautions to avoid the risk of harm;

3. d.
   The social utility of the activity that creates the risk of harm.

47. [47]
    Section 10 relevantly provides:

3. a.
   ....

3. b.
   The fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done; and

3. c.
   The subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in relation to the risk and does not of itself constitute an admission of liability in connection with the risk.

48. [48]
    As to defining the actual risk, the plaintiffs plead only that the duty owed to them was to protect them from reasonably foreseeable injury, including psychiatric injury. Among other facts, the plaintiffs plead the defendant knew or ought to have known:

‘That there was an elevated risk of other drivers making a[n] error like the error that caused [the driver’s] death’.

49. [49]
    The plaintiffs plead that the driver ‘stopped at the stop bar’, ‘was not aware that a prime mover was following the Greyhound bus’, ‘attempted to cross the northbound lane of the Bruce Highway and was hit by a northbound prime mover’. It is then pleaded that the driver:

‘Did not see the prime mover because the intersection was constructed in a way that significantly reduced the visibility of the northbound lane especially if there were vehicles, especially large commercial vehicles, in the northbound left turning lane.’

50. [50]
    The error that the plaintiffs assume really reduces to entering the intersection when it was dangerous to do so, in effect, by failing to give way to the north-bound truck. If, as the plaintiffs plead, the driver could not see the truck because it was masked by the bus, the error was to enter the intersection unknowingly, into the path of the truck rather than waiting for a clear view once the temporary, moving obstruction caused by the bus in the turning lane was gone. This, on the plaintiffs’ case, was the obvious cause of the collision, the result of the ‘elevated risk’ that a driver would make the error. The question for the moment is whether the defendant breached a duty owed.

51. [51]
    The relevant risk and the scope of the duty of care are not abstract notions. They must be assessed in the light of facts found. I do not accept the factual premise for the plaintiffs’ case, namely that their son did not see the truck (nor the implied alternative, that he was not at fault if he did not see the truck) before proceeding into the intersection. Ms Down, from a position behind him, even further west of the continuity line, saw the truck before the white car moved. While, obviously, Ms Down was not in precisely the same position of the driver of the white car, there is no reason to conclude other than that he had a similar opportunity to see the truck. Mr Moldre, the driver of the truck, saw the white car before it started to move into the intersection. Again, the reasonable inference is that the driver saw, or had the reasonable opportunity to see.

52. [52]
    The only alternative is that he became impatient and started to move off before he had a clear view, was then committed to his path and had gone too far to avoid the collision.

53. [53]
    If any of these occurred, the actions of the driver were not ‘inadvertence’, ‘thoughtlessness’ or other ‘variable factors’ such as should inform the scope of the duty owed by the defendant to road users.

54. [54]
    As to the ‘the relevant risk of injury’ which informs the scope of the duty owed, Counsel for the defendant submits it was the risk of injury to a driver on Tandur Road West upon entering the intersection and colliding with north-bound traffic. In written submission, counsel for the defendant writes that the defendant accepts that such risk was foreseeable and that it knew of that risk – there had been ten reported crashes at the intersection - and that the risk was not insignificant, given the potential for catastrophe. The plaintiffs rely on that concession.

55. [55]
    But is this the correct description of the risk in this case? Before a driver could be injured as a result of entering the intersection from Tandur Road West and colliding with a vehicle moving within the speed limit in the north-bound lane the driver must pass through a Stop sign and move into the path of the north bound vehicle such that that vehicle could not avoid collision. If the driver’s vision of traffic coming from the south was obscured by a bus in the turning lane, that obstruction was temporary. The risk was that a person would, against the Stop sign and the give-way rule, enter the intersection when he/she could not see - because a vehicle was in the turning lane - whether a vehicle was in the north-bound lane so close to the intersection that a collision was inevitable.^[30]

56. [56]
    The plaintiffs’ case is, in effect, that the breach of duty is the placing of the Stop sign/holding line in a dangerous position. More particularly, the argument was that moving the Stop line back from a position that did not show negligence, by about 3 metres, created the risk of injury. In written submissions, counsel for the plaintiffs writes: ‘The issue is whether moving back the Stop bar increased restriction to vision of large vehicles such as the one which came into collision with [the deceased driver].’

57. [57]
    The only description of the way in which the design and construction caused the collision is that pleaded, which I have put in italics: ‘did not see the prime mover because the intersection was constructed in a way that significantly reduced the visibility of the northbound lane ….’

58. [58]
    In written submission, Counsel for the plaintiffs writes that the plaintiffs admit ‘that drivers entering the intersection had a responsibility to ensure they had a clear view of conflicting traffic streams before commencing any crossing or turning manoeuvres but say that the design of the intersection impeded [the driver’s] ability to do so.’^[31]  I have already said that, as a matter of fact, it is unlikely the plaintiffs’ son did not see the truck or did not have the same opportunity as Ms Down had to see it. If the plaintiffs’ case is that the design of the intersection encouraged or promoted or compelled the taking of the risk as I have attempted to articulate it, then I do not accept the case. Such case was not clearly pleaded. At most, the plaintiffs hint at the idea by pleading, in paragraph 11 k of the Amended Statement of Claim, that the defendant knew or ought to have known that ‘the [81 second average] delay referred to above leads to increased driver impatience and increases the risk of traffic incidents.’  The plaintiffs do not plead or prove how the delay, if it led to impatience, increased the risk of traffic incidents.

59. [59]
    To the proposition that there was always obstruction of vehicles in the through lane by vehicles in the turning lane, the plaintiffs argue that moving the stop line back made the intersection more dangerous. In fact, Mr Jamieson’s formulation was that ‘had the stop line been positioned forward like it previously had been, the probability of the accident occurring would have been greatly reduced, if not eliminated.’ Again, I am not satisfied the plaintiffs have pleaded or proven how or why this proposition is so.

60. [60]
    The point made by Mr Beard was that were the stop line further forward the ability to see a vehicle travelling north would not be greater but the vehicle would be obscured at a slightly different time. This seems correct as a matter of geometry. Without having done any calculations, he considered the difference might be that the vehicle would be obscured perhaps two seconds earlier. In written submissions, Counsel for the plaintiffs writes, ‘the plaintiffs submit the critical issue is not just overall quantum of visibility, but indeed, points at which visibility is lost for vehicles in the position of that occupied by the deceased.’ Mr Beard’s opinion was that the difference in the timing of the obstruction would not change things materially because a driver in the position of the white car would not, in any case, have sufficient ‘sight distance’ – that is, it was necessary to wait for the bus to turn in order to see sufficiently to enter the intersection safely.

61. [61]
    Any obstruction from a vehicle in the turning lane was temporary, even if frequently so. Mr Beard’s modelling suggested the truck would have been completely obscured by the bus for 2 or 2½ seconds from about 10 seconds before the collision. Even if the placement of the stop line, three metres further back from the continuity line than it was before 2003, moved the period of obstruction closer to the intersection but a second or two, the obstruction was temporary. I am unable to conclude that the change in position of the stop line materially affected the safety of the intersection such that the placement, or failure to return the stop line to a position closer to the continuity line, amounted to a breach of the duty owed to the plaintiffs. If, which I doubt, the test for breach of duty is whether the design and construction of the intersection promoted the taking of the risk, I am not satisfied this has been shown by the plaintiffs.

62. [62]
    Once the relevant risk of injury is understood, and so the scope of the duty owed by the defendant, it is clear there has been no breach of duty in the design and construction of the intersection. The placement of the stop sign and line were within the regulatory framework and a valid response to the site considerations. That an alternative was available does not require a conclusion that the defendant was negligent to have employed the design.

Causation

63. [63]
    The Civil Liability Act s 11(1) provides:

3. 1.
   A decision that a breach of duty caused particular harm comprises the following elements:

3. a.
   The breach of duty was a necessary condition of the occurrence of the harm (factual causation);

3. b.
   It is appropriate for the scope of liability of the person in breach to extend to the harm so caused (scope of liability).

3. 2.
   In deciding in an exceptional case, in accordance with established principles, whether a breach of duty – being a breach of duty that is established but which can not be established as satisfying subsection (1) (a)—should be accepted as satisfying subsection (1) (a), the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party in breach.

3. 3.
   If it is relevant to deciding factual causation to decide what the person who suffered harm would have done if the person who was in breach of the duty had not been so in breach—

3. a.
   the matter is to be decided subjectively in the light of all relevant circumstances, subject to paragraph (b); and

3. b.
   any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

3. 4.
   For the purpose of deciding the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party who was in breach of the duty.

64. [64]
    Having found the defendant was not in breach of a duty owed, it is difficult to deal separately with the question of causation. It is for the plaintiffs to prove^[32] that, within the premises of this case as litigated, if the defendant had not moved the stop sign and line (about) 3 metres further west from the continuity line, the collision and death of their son would not have occurred and so they would not have suffered the injuries it is admitted they suffered. I have so qualified the issue because the plaintiffs’ case was expressly not that the defendant was negligent because it did not construct, as it has since done at very significant expense, a separate exit ramp. Alternatively, the question is whether the plaintiff has proved that the difference in the timing of the obstruction of the truck by the bus in the turning lane, brought about by moving the stop sign and line as described, caused the collision.

65. [65]
    The plaintiffs, in the written submissions, refer to Mr Jamieson’s opinion that if the stop sign and holding line were positioned ‘where they originally were’ the probability of the crash happening would have been greatly reduced if not eliminated. The plaintiffs do not say how so. In particular, although Counsel for the plaintiffs relies on Mr Beard’s evidence as to the different timing of the obstruction, that did not, as I follow his evidence, form part of Mr Jamieson’s theory.

66. [66]
    It might be that the ability to see the truck for the extra short period of time before it reached the intersection would have allowed the deceased driver to move through the intersection sufficiently quickly to avoid collision. Or perhaps the driver would have seen the truck earlier and decided not to move until it had passed. The difficulty for the plaintiffs is that once the evidence of other drivers is accepted as to their opportunity to see each other vehicle, and once it is understood that the obstruction caused by traffic in the left turning lane was temporary even if frequent, these possibilities remain speculative. I am not satisfied that, if the defendant had been negligent in the design and construction of the intersection, such negligence caused the collision, and so the plaintiffs’ injuries.